                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-12-00068-CR


PAUL JOSEPH LAIR, JR.                                                 APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


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          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION1

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                                 I. INTRODUCTION

      Appellant Paul Joseph Lair, Jr. appeals his convictions for one count of

aggravated sexual assault of a child and one count of indecency with a child by

contact. In three issues, Lair argues that the trial court abused its discretion by

allowing the State‘s child forensic interviewer to testify as to ―why‖ a child might

make a ―rolling disclosure‖; that the trial court erred by allowing the State to


      1
       See Tex. R. App. P. 47.4.
introduce evidence of what he claims is an extraneous offense without proper

notice to him by the State; and that the trial court erred by denying his motion for

mistrial after the trial court sustained both his objections to comments made by

the State during closing arguments of the guilt/innocence phase of trial. We will

affirm.

                                 II. BACKGROUND

      After a divorce when Boy, born July 10, 2003,2 was roughly three years

old, working mother (Mom) needed childcare for Boy. Having children around

Boy‘s age, Mom‘s sister (Wife) and Wife‘s husband (Lair), offered to help for free.

It was decided that Boy would stay overnight with Lair and Wife frequently on

Friday nights because Mom worked Saturdays. It was not unusual for Lair to buy

candy and toys for the children, Boy‘s toys were often ―better than everyone

else‘s,‖ and Boy described Lair as his ―best friend.‖ Boy typically slept in the

room with Lair, but Lair‘s own children slept in their own rooms and Wife slept on

the couch. By Wife‘s account, she and Lair were more like ―roommates‖ than

husband and wife. By Mom‘s account, Lair and Boy had a father-and-son-like

relationship, Boy loved Lair, and Lair would request that Boy stay over.

      Mom and Boy, then five years old, were riding from daycare on

November 25, 2008, when Mom told Boy that he was going to spend the night

with Wife and Lair. Boy protested, ―Okay, but [Lair] makes me do stuff.‖ When

      2
       ―Boy,‖ ―Mom,‖ and ―Wife‖ are fictitious names used in an effort to protect
the identity of the child complainant. See Munoz v. State, 288 S.W.3d 55, 57, n.2
(Tex. App.—Houston [1st Dist.] 2009, no pet.).

                                         2
Mom asked Boy what type of things, Boy responded that Lair ―makes me touch

his privates.‖ Boy explained that Lair would put his ―privates‖ in Boy‘s mouth and

―wiggle it around.‖ Boy described how Lair would ―pee in his mouth,‖ and that the

―pee‖ was ―sticky.‖ Boy said that this was his and Lair‘s ―secret‖ and that he was

not supposed to tell anyone. Mom inquired whether Lair ever touched Boy in a

similar manner, and Boy described that Lair would touch Boy‘s ―privates‖ and

―wiggle them around in his hand.‖ At one point, Mom became emotional, and

Boy responded that Lair ―only touched my front parts, he didn‘t touch my back

privates.‖ After discussing this outcry with other family members, Mom contacted

the police.

      Stephanie Nick, a child forensic interviewer, interviewed Boy the next day.

Boy told Nick the same things that he had told Mom regarding Lair putting his

penis in Boy‘s mouth and ejaculating. But Boy also described that Lair had put

his penis in Boy‘s anus. According to Nick, Boy ―pointed to his front genital area

and said that, [Lair] would put that, and then pointed to his bottom.‖ Boy used

the term ―bottom hole‖ to explain where Lair had put his penis.         By Nick‘s

account, Boy described these acts as ―gooey‖ but not painful. Boy also revealed

that he was familiar with Lair‘s tattoo of a Texas longhorn, which Lair had on his

front, lower hip. Pictures of Lair‘s tattoo were published to the jury. A video of

the forensic interview was played for the jury.

      Rebecca Sullivan, a sexual assault examiner, examined Boy after the

forensic interview. Boy told Sullivan that Lair had put his penis in his mouth and


                                         3
bottom. Sullivan testified that Boy said that Lair had put his penis in Boy‘s anus

and that Boy said that it hurt, but there was no bleeding.

      By the time of his trial testimony, February 8, 2012, Boy was eight years

old. Boy testified that he and Lair had a ―secret‖ and that Lair would take him to

buy candy ―if I would do this thing for him.‖ Boy described how he would sleep in

the bed with Lair when he would stay overnight, and how the other children and

Wife would sleep elsewhere. Boy stated that Lair put ―his wiener‖ in Boy‘s mouth

and that Lair would ―pee in [Boy‘s] mouth, and [Boy] would have to go to the

restroom and spit it out.‖ Boy described Lair‘s ―pee‖ as ―green.‖ Boy further

testified that Lair ―would put his wiener in [Boy‘s] butt.‖ Boy also stated that Lair

would put Boy‘s penis in Lair‘s mouth.

      A jury found Lair guilty of one count of aggravated sexual assault of a

child, by causing Boy‘s mouth to contact Lair‘s penis, and one count of indecency

with a child, for engaging in sexual contact by touching Boy‘s genitals. The jury

was unable to reach a verdict on a count of sexual assault alleging that Lair

caused Boy‘s anus to contact Lair‘s penis; thus, a mistrial was declared on that

count. After a punishment hearing, the jury sentenced Lair to life imprisonment

and a $10,000 fine for the aggravated-sexual-assault-of-a-child count and twenty

years‘ confinement and a $10,000 fine for the indecency-with-a-child count. This

appeal followed.




                                         4
                                   III. DISCUSSION

      A.     Testimony of a “Rolling Disclosure.”

      In his first issue, Lair asserts that the trial court erred by allowing Nick, the

child forensic interviewer who interviewed Boy, to express her opinion as to why

a child might make a so-called ―rolling disclosure.‖ Lair does not challenge Nick‘s

qualifications to testify to what a rolling disclosure is or that one might have

occurred in this case; rather, Lair argues that Nick is not qualified to express her

opinion regarding ―why‖ a child might make one. Lair claims that the answer to

why a child makes a rolling disclosure is a topic reserved to ―people in the field of

child psychology. Nick had no training in that field.‖ The State argues that the

trial court properly admitted Nick‘s testimony and that Lair offers no support for

his position that ―only a psychologist could testify about the reasons why a child

might give a rolling disclosure.‖ We agree with the State.

             1.    Applicable Law and Standard of Review

      Rule of evidence 702 allows a witness qualified by knowledge, skill,

experience, training, or education to testify on scientific, technical, or other

specialized subjects if the testimony would assist the trier of fact in understanding

or determining a fact issue. See Tex. R. Evid. 702. Before admitting expert

testimony under Rule 702, the trial court must be satisfied that three

requirements are met: (1) the witness qualifies as an expert by reason of her

knowledge, skill, experience, training, or education; (2) the subject matter of the

testimony is an appropriate one for expert testimony; and (3) admitting the expert


                                          5
testimony will actually assist the factfinder in deciding the case. Davis v. State,

329 S.W.3d 798, 813 (Tex. Crim. App. 2010), cert. denied, ––– U.S. –––, 132

S. Ct. 128 (2011).       These requirements are commonly referred to as

(1) qualification, (2) reliability, and (3) relevance. Id. (citing Vela v. State, 209

S.W.3d 128, 131 (Tex. Crim. App. 2006)). Each of these requirements raises

distinct questions and issues, and an objection based on one requirement does

not preserve error as to another. Shaw v. State, 329 S.W.3d 645, 655–56 (Tex.

App.—Houston [14th Dist.] 2010, pet. ref‘d). At trial, and now on appeal, Lair

challenges Nick‘s qualification only.

      The court of criminal appeals has held that:

             Qualification is a two-step inquiry. A witness must first
             have a sufficient background in a particular field, and a
             trial judge must then determine whether that
             background goes to the matter on which the witness is
             to give an opinion. The proponent must establish that
             the expert has knowledge, skill, experience, training, or
             education regarding the specific issue before the court
             that would qualify the expert to give an opinion on that
             particular subject.

Davis, 329 S.W.3d at 813 (citations omitted); see Vela, 209 S.W.3d at 131–32.

The focus is on the ―fit‖ between the subject matter at issue and the expert‘s

familiarity with it, and not on a comparison of the expert‘s title or specialty with

that of the defendant or competing expert. Vela, 209 S.W.3d at 133. Just as the

subject matter of an expert‘s testimony should be tailored to the facts of a case,

the expert‘s background must be tailored to the specific area of expertise in

which the expert desires to testify. Id.


                                           6
      ―Because the spectrum of education, skill, and training is so wide, a trial

court has great discretion in determining whether a witness possesses

appropriate qualifications as an expert on a specific topic in a particular case.‖

Davis, 329 S.W.3d at 813 (citing Vela, 209 S.W.3d at 136). When a trial judge

determines that a witness is or is not qualified to testify as an expert, ―appellate

courts rarely disturb the trial court‘s determination.‖ Vela, 209 S.W.3d at 136

(quoting Rodgers v. State, 205 S.W.3d 525, 528 n.9 (Tex. Crim. App. 2006)).

            2.     Nick is Qualified to Testify Why Rolling Disclosures Occur

      In this case, Nick explained that a rolling disclosure was the prolonged

outcry by a child ―where a child will give some information to one person [about

an alleged abuse], and then when they‘re asked by a second person, they may

give additional information than they gave to the first person.‖        Over Lair‘s

objection, Nick also averred that ―[s]ome of the reasons‖ a child might disclose

abuse in this manner ―may be that [the child is] afraid that they‘re going to get in

trouble, so they stop. It may be based on the reaction of the person that they‘re

telling, or they may fear what will happen if they do tell all of the information.‖

Nick explained that based upon her experience, rolling disclosures were

commonplace in children‘s outcries about sexual abuse. And Nick testified to her

particular background regarding rolling disclosures.

      Nick received her bachelor‘s degree in social work from the University of

Texas at Arlington. She is a licensed social worker. Prior to working as a child

forensic interviewer, she worked for roughly five years as an investigator for Child


                                         7
Protective Services. At the time she interviewed Boy, Nick was a child forensic

interviewer for The Alliance for Children, which houses a multidisciplinary team

for investigations involving child abuse and neglect.          She has conducted

approximately 1,000 forensic interviews of children.        According to Nick, she

obtained her knowledge of rolling disclosures through training, seminars, and

education that she attended as a child forensic interviewer. She testified that

rolling disclosures were discussed at ―every‖ seminar she has attended, and she

also explained that she was ―taught‖ about the subject at ―the Finding Words

training‖ seminar—a week-long seminar for forensic interviewers. Nick stated

that the concept of rolling disclosures is widely accepted in the field of forensic

interviewing and that she has testified on the topic before in Texas courts.

      Lair does not dispute Nick‘s familiarity with the subject of rolling

disclosures, and at trial Lair stated that he did not object to Nick explaining what

one was. Instead, Lair focuses on Nick‘s ―title or specialty,‖ assailing only her

lack of a degree in child psychology to explain his position that Nick could not

testify as to why a child might outcry through a rolling disclosure. See Vela, 209

S.W.3d at 133 (reasoning that a trial court conducts an insufficient inquiry into an

expert‘s qualification when it considers the expert‘s ―title‖ alone). But Lair has not

presented anything to support his bare assertion that rolling disclosures as a

subject are the sole province of child psychologists and that licensed and trained

forensic interviewers or social workers are per se unqualified to testify regarding

this topic. See Morris v. State, 361 S.W.3d 649, 666 (Tex. Crim. App. 2011)


                                          8
(discussing ―grooming‖ testimony and explaining that such ―evidence has been

received by courts from numerous types of experts—which include psychiatrists,

psychologists, therapists, []social workers[, and] law enforcement.‖).          We

conclude that the State established that Nick has the knowledge, skill,

experience, training, and education regarding rolling disclosures that would

qualify her to give an opinion on that particular subject. See Davis, 329 S.W.3d

at 813. Therefore, we hold that the trial court did not abuse its discretion by

determining that Nick possessed a sufficient background in the particular subject

of rolling disclosures, and that her background went to the matter of what a

rolling disclosure is and why one might occur. See Id. We overrule Lair‘s first

issue.

         B.     Extraneous Offense Evidence and the State’s Notice

         In his second issue, Lair argues that the trial court erred by allowing the

State to elicit testimony from Wife, during the guilt/innocence phase of trial, in

which she described entering the back bedroom where Lair and Boy often slept

and discovering both Lair and Boy on the bed in their underwear only; Boy was

near Lair‘s thighs facing Lair; Boy acted surprised; Lair rolled over onto his

stomach; and, after a short exchange, Lair told her to ―get out.‖ Lair argues that

this was extraneous-offense evidence and that the State failed to formally notify

him of its intent to introduce this evidence despite his request for such

notification.




                                          9
      The State responds that this was same-transaction contextual evidence

and that it was not required to formally notify Lair of its intent to introduce this

testimony.   Alternatively, the State argues that Lair was not harmed by the

introduction of this evidence. We will assume without deciding that the State was

required to notify Lair of its intention to introduce this testimony, but we conclude

that Lair has failed to demonstrate how his defense was harmed by the State‘s

alleged failure to provide reasonable notice of its intent to introduce this

evidence.

             1.    Applicable Law and Standard of Review

      Texas Rules of Evidence Rule 404(b) states:

             Evidence of other crimes, wrongs, or acts is not
             admissible to prove the character of a person in order to
             show action in conformity therewith. It may, however,
             be admissible for other purposes, such as proof of
             motive,     opportunity,   intent,  preparation,    plan,
             knowledge, identity, or absence of mistake or accident,
             provided that upon timely request by the accused in a
             criminal case, reasonable notice is given in advance of
             trial of intent to introduce in the State‘s case-in-chief
             such evidence other than that arising in the same
             transaction.

Tex. R. Evid. 404(b). The court of criminal appeals has held that a trial court errs

by admitting objected-to extraneous offense evidence when the State failed to

comply with Rule 404(b)‘s notice provisions. Hernandez v. State, 176 S.W.3d

821, 822 (Tex. Crim. App. 2005). This is so because ―Rule 404(b) literally

conditions the admissibility of other-crimes evidence on the State‘s compliance

with the notice provision of Rule 404(b).‖ Id. at 824. And because the notice


                                         10
requirement of Rule 404(b) is a rule of evidence admissibility, the trial court‘s

error of admitting extraneous offense evidence despite the State‘s failure to

properly notify the defendant is subject to a Texas Rules of Appellate Procedure

Rule 44.2(b) harm analysis. See id. at 825; see also Tex. R. App. P. 44.2(b).

      Even so, the harm analysis that a reviewing court is to conduct when the

error is that the trial court erroneously admitted evidence despite the State‘s

failure to comply with Rule 404(b)‘s notice provisions is unique. Hernandez, 176

S.W.3d at 825. In Hernandez, the court clarified that rather than conduct ―the

usual harm analysis applied to the improper admission of evidence,‖ a reviewing

court‘s harm analysis begotten by the State‘s non-compliance with the notice

requirements of 404(b) revolves around the question of whether a defendant was

unable to prepare his defense in a particular case. Id. That is, we consider how

the lack of notice harmed the defendant‘s ability to prepare a defense to the

wrongfully admitted evidence and not whether the admitted evidence injured the

jury‘s verdict. Id.; Padilla v. State, 254 S.W.3d 585, 593 (Tex. App.—Eastland

2008, pet. ref‘d).

      Factors that reviewing courts have considered in analyzing this specific

type of harm include: whether the defendant was surprised by the evidence,

Hernandez, 176 S.W.3d at 822–23; whether the admission of the evidence was

the result of prosecutorial bad faith, Roethel v. State, 80 S.W.3d 276, 282 (Tex.

App.—Austin 2002, no pet.); whether the defendant was unable to prepare cross-

examination or present mitigating evidence, McDonald v. State, 179 S.W.3d 571,


                                       11
578 (Tex. Crim. App. 2005); whether the defendant moved for a continuance so

that he might defend against the evidence, Webb v. State, 36 S.W.3d 164, 183

(Tex. App.—Houston [14th Dist.] 2000, pet. ref‘d) (en banc); and whether the

defendant has demonstrated how his defensive strategy might have been

different had the State explicitly notified him of its intention to introduce the

evidence. Hernandez, 176 S.W.3d at 823.

              2.   Lair’s Defense was not Harmed by Wife’s Testimony

      Here, ―it strains credulity to think that [Lair] was not on notice that the State

intended to use‖ the complained-of testimony. Id. at 826. Not only was Lair not

surprised by the testimony, he objected to the precise nature and content of

Wife‘s testimony3 after she was sworn in but before she was ever called and

questioned.

      In a hearing that followed his objection, Lair admitted to the trial court that

he first learned of the content and nature of Wife‘s testimony through the State‘s

open file policy, which included Wife‘s witness statement, before he filed his

requests for notice of the State‘s intentions to admit extraneous-offense


      3
       On the second day of trial and prior to the jury being seated, Lair objected:
―Yes, Judge. The State is intending to call [Wife] to the stand. That‘s the witness
that you just swore in. Obviously, I don't know all the topics that the State
intends to cover with [Wife], but I am aware of an extraneous offense that the
witness might be asked about, and I can only ask the prosecutor if they intend to
go into the time that [Wife] alleges that she walked into the room -- to the
bedroom, and my client, [] Lair, was in the bed with [Boy], the alleged victim, and
they were both in their underwear.‖ From there, the trial court conducted a
hearing that consumed more than twenty pages of the record—ultimately ruling
the testimony admissible and seating the jury.

                                         12
evidence. Lair also agreed with the State‘s contention that he had discussed the

topic of Wife‘s testimony with the prosecutor ―on multiple occasions.‖ Wife was

listed as a ―potential witness‖ on all three of the State‘s filed witness lists.

Furthermore, Lair had interviewed Wife multiple times over a three-year period

leading up to trial. The record belies any notion that Lair was surprised by the

evidence. See id. at 823. Additionally, Lair was prepared to and did cross-

examine Wife about the incident in question and attempted to mitigate her

testimony. See McDonald, 179 S.W.3d at 578–79. Lair elicited testimony that

both Lair and Boy appeared to be watching television in the room when she

walked in, that Wife saw nothing illegal transpire between Lair and Boy, and that

Wife did not call the police or report the incident to Child Protective Services.

      On appeal, Lair makes no argument that the lack of notice prejudiced his

ability to prepare or present a defense to this evidence.4 See Hernandez, 176

S.W.3d at 822–23. And although at trial Lair claimed during the 404(b) hearing

that he would have conducted his voir dire differently or modified his opening

statements to defend against this evidence had he received formal notice from

the State, we conclude, as other courts have, that when the evidence is known


      4
        In his briefing to this court, Lair cites traditional harm analysis rules
regarding the improper admission of substantively inadmissible evidence and
argues that we ―should not conclude that this evidence had no bearing on the
verdict.‖ See Solomon v. State, 49 S.W.3d 356, 364 (Tex. Crim. App. 2001).
But the harm analysis conducted in cases where the State fails to comply with
Rule 404(b)‘s notice provision concerning ―substantively admissible Rule 404(b)
evidence‖ is governed by the harm standard articulated in Hernandez. 176
S.W.3d at 825.

                                         13
well before trial, these types of claims are not a demonstration of how a

defensive strategy was affected by the lack of formal notice and do not

demonstrate harm. See Hernandez, 176 S.W.3d at 823 (―Surely, having been

given the complete tape recordings [months before his 404(b) notice request],

appellant‘s counsel listened to them and thus was in a position to develop

evidence to mitigate their impact.‖); see also Hopson v. State, No. 09-06-00088-

CR, 2007 WL 1793873, at *2 (Tex. App.—Beaumont, June 20, 2007, no pet.)

(mem. op; not designated for publication) (overruling appellant‘s argument that

had he received formal notice of the State‘s intent to introduce the complained-of

evidence, he ―could have questioned the jury about the matter during jury

selection‖ when reference to the complained-of extraneous offense was in a

recorded statement produced in discovery well before trial.).

      Furthermore, Lair makes no claims of, and there is no evidence in the

record of, prosecutorial bad faith; rather, the State has consistently maintained

that it considered the complained-of testimony as same-transaction contextual

evidence and did not think it was required to notify Lair, and Lair did not dispute

at trial the State‘s claim that it had discussed this specific testimony with Lair ―on

multiple occasions‖ prior to trial. See Roethel, 80 S.W.3d at 282. Finally, Lair did

not move for a continuance so that he might defend against the evidence. To the

contrary, and as discussed above, the record indicates that he was well-prepared

to cross-examine Wife about the incident and that he lodged a very precise

objection to her testimony regarding the incident before the State ever


                                         14
questioned her on direct examination. See Webb, 36 S.W.3d at 183. We hold

that Lair has failed to demonstrate how his defensive strategy might have been

different had the State explicitly notified him of its intention to introduce the

complained-of evidence; thus, Lair was not harmed by its admission.              See

Hernandez, 176 S.W.3d at 823. We overrule Lair‘s second issue.

      C.       Lair’s Motions for Mistrial

      In his third issue, Lair argues that the trial court abused its discretion by

denying his motions for a mistrial after he twice, in almost rapid succession,

objected to the State‘s closing argument and the trial court sustained his

objections. After both objections, Lair asked the trial court to instruct the jury to

disregard the State‘s argument, which the trial court did. Lair also moved for a

mistrial after both instructions, and the trial court denied the motions for mistrial.

Lair argues that the State‘s closing arguments asking the jury, ―Do you want

[Lair] to baby-sit your child?‖ followed shortly by ―Why wouldn‘t you want your kid

to be around [Lair]?‖ improperly asked the jury to place themselves in the shoes

of the complainant and his family.       Lair argues that the State‘s statements

―affected the substantive rights of [Lair]‖ and that this court should ―reverse his

conviction.‖

      The State argues that the arguments in question were not improper, and in

the alternative, the State argues that the trial court did not abuse its discretion by

overruling Lair‘s motions for mistrial because it promptly sustained Lair‘s

objections and instructed the jury to disregard the statements. We will assume


                                         15
without deciding that the statements made by the State were improper, but we

conclude that the trial court did not abuse its discretion by overruling Lair‘s

motions for mistrial.

             1.     Standard of Review and Applicable Law

      Almost any improper argument may be cured by an instruction to

disregard. Dinkins v. State, 894 S.W.2d 330, 357 (Tex. Crim. App.), cert. denied,

516 U.S. 832 (1995). And when the trial court sustains an objection and instructs

the jury to disregard but denies a motion for mistrial, the issue is whether the trial

court abused its discretion by denying the mistrial. Hawkins v. State, 135 S.W.3d

72, 76–77 (Tex. Crim. App. 2004).        A mistrial is the trial court‘s remedy for

improper conduct that is so prejudicial that expenditure of further time and

expense would be wasteful and futile. Hawkins, 135 S.W.3d at 77.

      The question of whether a mistrial should have been granted when a

curative instruction has been given involves most, if not all, of the same

considerations that attend a harm analysis. Id. Therefore, in cases in which

constitutional rights are not implicated, courts employ a three-factored analysis

which seeks to evaluate the effect of the harm on the outcome of the trial. See

id.; Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998); Tucker v.

State, 15 S.W.3d 229, 237–38 (Tex. App.—Houston [14th Dist.] 2000, pet. ref‘d).

The factors to be considered in determining whether the trial court abused its

discretion by denying a mistrial include:      (1) the severity of the misconduct

(magnitude of the prejudicial effect); (2) measures adopted to cure the


                                         16
misconduct (efficacy of any cautionary instruction by the judge); and (3) the

certainty of conviction absent the misconduct. See Hawkins, 135 S.W.3d at 77

(applying the three-factor test to improper arguments during the punishment

phase); Mosley, 983 S.W.2d at 259; Tucker, 15 S.W.3d at 237–38 (analyzing the

three factors to determine if improper argument during guilt/innocence phase

constituted reversal). We do not conclude that any constitutional rights were

impinged upon by the prosecutor‘s remarks in this case, and Lair does not

contend that constitutional rights are implicated. See Tucker, 15 S.W.3d at 237

(holding the trial court‘s erroneous ruling regarding improper comments made

during jury argument involved non-constitutional error); Ortiz v. State, 999

S.W.2d 600, 605–06 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (holding

that trial court‘s error in overruling the appellant‘s repeated objections to

arguments outside the record constituted non-constitutional error).       We will

therefore utilize the Mosley factors to determine if a mistrial should have been

granted.

            2.    Analysis

      With respect to the first factor, we do not find the State‘s alleged improper

arguments severe enough to warrant a mistrial or a reversal of Lair‘s convictions.

See Brandley v. State, 691 S.W.2d 699, 712 (Tex. Crim. App. 1985) (holding that

the prosecutor asking the jurors during the punishment phase of the trial to place

themselves in the shoes of the child victim‘s father was harmless error); Bible v.

State, No. 10-10-00070-CR, 2011 WL 1902021, at *9 (Tex. App.—Waco May 11,


                                        17
2011, pet. ref‘d) (holding that even though the trial court erroneously overruled

defendant‘s objection to the State‘s improper plea to the jury to place themselves

in the shoes of the victim, made during the guilt/innocence phase, such error

―was not great‖); see also Geuder v. State, 76 S.W.3d 133, 138 (Tex. App.—

Houston [14th Dist.] 2002), overruled on other grounds by, 115 S.W.3d 11 (Tex.

Crim. App. 2003) (concluding that a mistrial was not necessary despite the

statement ―who knows how many other people [defendant] has stolen from in

other counties‖ by the prosecutor during the guilt/innocence phase).

      Second, we conclude the curative measure employed by the trial court in

this case to disregard the prosecutor‘s statements sufficient to effectively cure

any alleged harm. Lair does not point to anything in the record leading us to

conclude that the jury did not or could not obey the trial court‘s instructions, and

we are to presume that the jury followed the instructions. See Gamboa v. State,

296 S.W.3d 574, 580 (Tex. Crim. App. 2009) (reasoning that a reviewing court

generally considers instructions given to the jury to be sufficient to remedy most

improprieties that occur during a trial and presumes that a jury will follow the trial

court‘s instructions).

      Last, we conclude that Lair‘s conviction was fairly certain, regardless of the

prosecutor‘s alleged improper remarks.        Boy testified that on more than one

occasion at night while in Lair‘s bed, both his and Lair‘s clothes ―were off‖ and

that Lair would put his penis in Boy‘s mouth and then ―pee‖ in Boy‘s mouth. Boy

also testified that Lair would put Boy‘s penis in Lair‘s mouth. This testimony was


                                         18
consistent with the testimony by Mother and the forensic interviewer, who both

also testified that Boy had described the ―pee‖ to them as ―sticky‖ or ―gooey.‖

The jury also heard testimony from Boy and Mother that Lair would buy Boy

―special‖ gifts. Specifically, Boy testified that Lair had told him that these acts

were their ―secret‖ and that if Boy would perform these acts, Lair ―would go take

[Boy] to get candy.‖ The jury also heard testimony that Boy would sleep alone

with Lair, that Wife would sleep on the couch, that Lair and Wife did not have a

normal marital relationship, and that Boy would often shower with Lair.

      Accordingly, we hold that the trial court did not abuse its discretion by

finding that the prosecutor‘s alleged improper comments to the jury were not so

prejudicial that expenditures of further time and expense would be wasteful,

futile, and demanding of a mistrial. See Newby v. State, 252 S.W.3d 431, 437–

38 (Tex. App.—Houston [14th Dist.] 2008, pet. ref‗d) (holding that prosecutor‘s

statement to jury, ―If you think that [defendant] is not guilty, I want each of you to

be able to walk out of this courtroom, right by [victim], and say [to victim], I don‘t

believe a word you said, because that‘s what you have to do,‖ did not warrant

mistrial, in prosecution for sexual assault of a child, and that trial court‘s curative

measure of ―[j]ury is instructed to disregard‖ was sufficient). We overrule Lair‘s

third issue.




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                               IV. CONCLUSION

      Having overruled all three of Lair‘s issues, we affirm the trial court‘s

judgments.




                                                BILL MEIER
                                                JUSTICE

PANEL: DAUPHINOT, WALKER, and MEIER, JJ.

WALKER, J., concurs without opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 8, 2013




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