Opinion filed January 20, 2011




                                            In The


   Eleventh Court of Appeals
                                          __________

                                    No. 11-09-00089-CR
                                        __________

                        RANDY MIGUEL WILSON, Appellant

                                                V.

                              STATE OF TEXAS, Appellee


                        On Appeal from County Criminal Court No. 5

                                     Tarrant County, Texas

                                 Trial Court Cause No. 1129731


                            MEMORANDUM OPINION
       The jury convicted Randy Miguel Wilson of assaulting a family or household member,
and the trial court assessed his punishment at 365 days in jail and a fine of $200. The trial court
also suspended the confinement portion of Wilson’s sentence and placed him on community
supervision for twenty-four months. We affirm.
                                      I. Background Facts
       Wilson and Nichole Kirchoffner had been in a relationship for five years and had a son
together. Kirchoffner testified that, at the time of the assault, the three were living in an
apartment in Bedford. On the morning of September 20, 2008, Kirchoffner started taking a
shower to get ready for work. She and Wilson had been arguing since the night before. Wilson
was drinking beer. He pulled the shower curtain down. Kirchoffner continued to get ready for
work and was brushing her hair in front of a mirror when Wilson punched her in the eye. The
two struggled, and Wilson started to choke Kirchoffner. Eventually, Kirchoffner was able to
push Wilson off and flee the apartment. She then called police.
       Officer William Burto of the Bedford Police Department arrived and spoke with
Kirchoffner. She was upset and claimed that Wilson had assaulted her. Officer Burto testified
that Kirchoffner had scratches around her neck and redness in her eye. Her hair was still wet.
Officer Burto found Wilson and their son by the swimming pool. Officer Burto testified that
Wilson was evasive and that his breath smelled of alcohol. Wilson had scratches on his head,
which Officer Burto believed were consistent with defensive wounds from Kirchoffner trying to
get away. Officer Burto arrested Wilson. After being handcuffed, Wilson told Officer Burto that
Kirchoffner was the one who had assaulted him, that she was bigger than he, and that it was
impossible for him to have assaulted her.       Officer Burto testified that Wilson’s story was
inconsistent with what he observed.
       Previously, Kirchoffner had assaulted Wilson and had been placed in the Domestic
Violence Diversion Program of the Tarrant County Community Supervision Corrections
Department. This allows individuals arrested for assaulting a family member to have their case
dismissed if they successfully complete the program’s conditions.           For Kirchoffner, one
condition was that she not have harmful or injurious contact with Wilson. Jennifer Staples was
Kirchoffner’s case manager. Staples saw Kirchoffner on September 25, 2008. Kirchoffner was
distraught. She had bruising around one eye, on both arms, and her neck. Kirchoffner told
Staples what happened. The record does not describe Staples’s investigation, but she ultimately
concluded that Kirchoffner had not violated the program’s conditions during the September
incident.
       Wilson testified that Kirchoffner was not living at the apartment at the time of the assault.
He claimed that, on the morning of September 20, she called him and said that she was coming
to pick up their son. She arrived at the apartment door and began screaming. Wilson testified
that she kicked in the door and pushed him back. She smashed his cell phone against the
fireplace so that he could not call police. Wilson grabbed their son, and Kirchoffner tried to take
him from Wilson’s hands. They hit each other. Wilson left the apartment with their son and

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waited by the pool until police arrived. He testified that he had not been drinking alcohol that
morning and claimed that he had acted in self-defense.
                                            II. Issues
       In two issues, Wilson argues that the State’s jury argument improperly commented on
whether Staples and police officers believed that Wilson acted in self-defense.
                                          III. Analysis
       Permissible jury argument generally falls into one of four areas: (1) a summation of the
evidence; (2) a reasonable deduction from the evidence; (3) an answer to the argument of
opposing counsel; or (4) a plea for law enforcement. Berry v. State, 233 S.W.3d 847, 859 (Tex.
Crim. App. 2007). If a jury argument exceeds the bounds of proper argument, a trial court’s
erroneous overruling of a defendant’s objection is not reversible error unless it affected the
defendant’s substantial rights. TEX. R. APP. P. 44.2(b); Martinez v. State, 17 S.W.3d 677, 692-93
(Tex. Crim. App. 2000).     To determine whether Wilson’s substantial rights were affected, we
consider (1) the severity of the misconduct, (2) any curative measures, and (3) the certainty of
conviction absent the misconduct. Martinez, 17 S.W.3d at 692-93.
       Wilson challenges the following argument:
               [PROSECUTOR]: And by the way the probation officer also testified that
       one of the conditions of this program, this diversion program that [Kirchoffner]
       was on, was that she was to have no harmful or injurious -- which would include
       anything violent or threatening or anything -- she’s to have no harmful or
       injurious contact with this defendant. And after learning what happened on that
       night and thinking about what happened she told you that [Kirchoffner] was not in
       any way found to have violated that, okay? [Staples] did not believe this was self-
       defense.

              [DEFENSE COUNSEL]: Object to what [Staples] believed, Your Honor.
       That’s not evidence.

               THE COURT: Overruled. Jury will recall the testimony as they heard it.

              [PROSECUTOR]: The officers didn’t think that was self-defense and you
       shouldn’t --

             [DEFENSE COUNSEL]: Object to what the officers think, Your Honor.
       They have no personal knowledge, speculation.

               THE COURT: Overruled. Jury caught the evidence as they heard it.



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Both of the statements to which Wilson objected fall within the scope of permissible jury
argument. The statement that Staples did not believe that Kirchoffner was the aggressor or that
Wilson acted in self-defense is a reasonable deduction from Staples’s conclusion that
Kirchoffner did not violate the Domestic Violence Diversion Program’s condition that she avoid
harmful or injurious contact with Wilson. Likewise, the statement that police officers did not
believe Wilson’s self-defense claim was a summation of Officer Burto’s testimony, in which he
stated that he did not think Wilson’s story was consistent with what he observed the morning of
the assault.   The trial court, therefore, did not err by overruling Wilson’s objections.
Accordingly, we overrule both of Wilson’s issues.
                                         IV. Conclusion
       The judgment of the trial court is affirmed.




                                                      RICK STRANGE
                                                      JUSTICE


January 20, 2011
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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