                                                                                                 PD-1318-15
                                   PD-1318-15                                  COURT OF CRIMINAL APPEALS
                                                                                                AUSTIN, TEXAS
                                                                               Transmitted 10/6/2015 4:18:30 PM
                                                                                 Accepted 10/7/2015 5:09:50 PM
                                      NO. 03-13-00202-CR                                         ABEL ACOSTA
                                                                                                         CLERK



STEVEN DELEON                                          §       IN THE COURT        OF
                                                       §
VS.                                                    §       CRIMINAL APPEALS OF
                                                       §
THE STATE OF TEXAS                                     §      THE STATE OF TEXAS

            MOTION FOR EXTENSION OF TIME TO FILE
       APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:
      Now     comes Kerrisa Chelkowski, attorney             for Appellant, Steven     DeLeon,

and ﬁles    this   Motion asking     this   Honorable Court to extend the time for ﬁling

Appellant’s Petition for Discretionary Review in this cause.               In support of this


Motion, Appellant shows the following:

                                                 I.



      This cause      is   on appeal from the         4215‘ Judicial District Court, Caldwell


County, Texas, in which Appellant was convicted of Continuous Sexual Abuse of

a   Young   Child, No. 2012-166, styled The State of Texas               vs.   Steven DeLeon.

Punishment was assessed       at   32 years imprisonment.




             October 7, 2015
                                                       II.



        Appellant's conviction           was affirmed by the Court of Appeals, Third Court of

Appeals District of Texas, San Antonio, Texas on                       May 29, 2015. Appellant ﬁled a
Motion       for   Rehearing and such Motion was denied on September 17, 2015. The

current deadline for ﬁling Appellant’s Petition for Discretionary                          Review from   that


decision     is    October   17,   2015. This    is   Appellant’s      first   request for an extension of

time.   The opinion of the Third Court of Appeals                 is   attached.


                                                       III.



        Appellant moves that the Court extend the time for ﬁling his Petition for

Discretionary Review in this cause for a period of 30 days, to                          November   17, 2015.


In support thereof, undersigned counsel shows this Court the following:

        1.          Counsel for Appellant has a brief due on October 13, 2015 to
                    the United States Courts of Appeal for the Fifth Circuit in USA
                    vs. Igcmacio Flores, Jr. in case number 15-50148.


        2.          Counsel   is   set for jury trial in State   of Texas       vs.   Jana Shilts, No.
                    465822 in Bexar County, Texas. Jury selection is scheduled                     to
                    begin on October 13, 2015, and the trial will last more than
                    three days.


        3.          Counsel is set for july trial in State of Texas vs. Keith Coelho,
                    No. 461465 in Bexar County, Texas. Jury selection is
                    scheduled to begin on October 26, 2015, and the trial will last
                    more than three      days.
                                         IV.

       For the foregoing reasons, Appellant needs additional time to prepare

Appellant's Petition for Discretionary Review.

                                          V.

       WHEREFORE, PREMISES CONSIDERED,                     Counsel for Appellant prays

that this   Honorable Court grant an extension of time    to   November   17,   2015 for the

ﬁling of Appellant's Petition for Discretionary Review.




                                        Respectfully submitted,

                                        Law Ofﬁce of Kerrisa Chelkowski
                                        l0 17 South     Alamo
                                        San Antonio, Texas 78210
                                        (210) 228-9393 Telephone
                                        (210) 226-7540 Fax
                                        Email: kerrisa@defendtexas.com




                                        By:    /s/   Kerrisa Chelkowski
                                              KERRISA CHELKOWSKI
                                              State   Bar No. 24034373


                                           Attorney for Appellant:
                                           Steven DeLeon
                          CERTIFICATE OF SERVICE
      I,   Kerrisa Chelkowski, do hereby certify that a copy of this Motion for

Rehearing for the Appellant was sent by certiﬁed mail to the Caldwell County

District Attorney’s Office at 201 E.     San Antonio    Street, P.O.   Box   869, Lockhart,

                          6"‘
Texas 78644 on this the         day of October, 2015.

                                                        /s/   Kerrisa Chelkowski
                                                   KERRISA CHELKOWSKI
                      CERTIFICATE OF COMPLIANCE
      Pursuant to the Texas Rules of Appellate Procedure (TRAP) 9.4(i)(3), the
undersigned certiﬁes this brief complies with the type-volume limitations or TRAP
9.4(i)(3)


l.EXCLUSIVE OF THE EXEMPTED PORTIONS IN TRAP                          9.4(i)(3),   THE
BRIEF CONTAINS (select one):

       A.      644 words,    OR
       B.            lines   of text in monospaced typeface.

2.   THE BRIEF HAS BEEN PREPARED (select one):
       A. in proportionally spaced typeface using:

       Software Name and Version: Microsoft Office Word 2011
       in (Typeface Name and Font Size): 14 pt. Times New Roman,           OR
       B. in monospaced (nonproportianally spaced) typeface using:

       Typeface name and number of characters per inch:


3.       THE UNDERSIGNED UNDERSTANDS A MATERIAL
MISREPRESENTATION IN COMPLETING THIS CERTIFICATE, OR
CIRCUMVENTION OF THE TYPE-VOLUIVIE LIMITS IN TRAP 9.4(i)(3),
MAY RESULT IN THE COURT’S STRIKING THE BRIEF AND IMPOSING
SANCTIONS AGAINST THE PERSON SIGNING THE BRIEF.

                                                /s/Kerrisa Chelkowski
                                               Signature of Filing Party
      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

                                            NO. 03-13-00202-CR


                                          Steven DeLeon, Appellant

                                                           v.


                                        The State of Texas, Appellee


  FROM THE DISTRICT COURT OF CALDWELL COUNTY, 421ST JUDICIAL DISTRICT
       NO. 2012-166, HONORABLE TODD A. BLOMERTH, JUDGE PRESIDING


                                MEMORANDUM OPINION
                 A jury found appellant Steven DeLeon guilty of continuous sexual abuse of a young
child and assessed punishment at thirty-two years in prison.                 DeLeon contends       that insufﬁcient


evidence supports the judgment and that the                trial   court abused   its   discretion and violated the


constitution   by refusing to allow him to make a defense and              fully confront witnesses against him.


He also   contends that the   trial   court abused   its   discretion   by denying his motion     for mistrial   when

the prosecutor   commented on his        exercise of his right to remain silent and         by imposing   a sentence


without the possibility of parole.       We will affirm the judgment.

                                               BACKGROUND
                 DeLeon taught physical education at the elementary school M.G.                   attended.   He met

M.G. and her mother, D.A., in January 2010 when M.G. started playing on the school’s fourth-grade

basketball team.   M.G. played basketball through the summer of 201 l, and DeLeon spent time with

D.A. ’s family. The adults went on one date and never became romantically linked, though there was
testimony that D.A. wanted more than a friendship.                  DeLeon testified that he helped D.A. with her

ﬁnances, helped her          start   a checking account, and counseled her about her relationship with her

son, D.G.,      who DeLeon also taught. DeLeon attended a parent-teacher conference regarding D.G.

in place   of D.A., helped M.G. with homework, and stayed with the children, sometimes overnight.

The children stayed with DeLeon and his brother overnight once. M.G.                     testiﬁed that   it   was during

such stays that DeLeon assaulted her in the summer of 201                   l.



                    M.G.     first   repoited an assault in     May 2012 after her mother found a recording of a

March     19,   2012 telephone conversation between M.G. and DeLeon. The conversation began with

a discussion of M.G.’s grandfather’s surgery, but veered into sex—related topics.                  DeLeon deemed

the shift in topics inappropriate and said that              M.G. was responsible     for the shift, but   he admitted

that   he participated in the inappropriate discussions. In a discussion prompted by M.G.’s query of

why DeLeon seemed uncomfortable whenever female body parts were discussed, DeLeon said, “It’s

kind of like with you        like    I   remember like I would tell you: Well, am Ihurting you? Or you know

is   everything okay?      I just        want to make sure   that you’re like comfortable.”   DeLeon testified that

this   statement referred to a basketball practice during which he had unknowingly hurt M.G. by

inadvertently touching her breast and she had been embarrassed to explain her pain in front of

the other players.     The conversation           also spanned other topics ranging     from the inappropriateness

of physical violence       in a relationship to      M.G.    getting whistled at in a store to the size of DeLeon’s


girlfriend’s vagina.       D.A. made a copy of the recording and took it to school officials, leading to the

police investigation and this prosecution.

                    M.G.     testified at trial that   DeLeon      assaulted her four times during the        summer of

201 l—-three times      at   her home and once        at his.   She testified that one time he lay on top of her with
his clothes on.    M.G.   said that another time he touched the outside of her private parts with his


ﬁnger. She testiﬁed that DeLeon asked if she was okay or if he was hurting her. She said that, after

this incident,   she requested a different babysitter, but her mother               still   chose DeLeon. She testiﬁed

that when she    and her brother stayed overnight at DeLeon’ s house, DeLeon touched her private parts

while her brother slept next to them. In the ﬁnal incident, she testiﬁed that she and                          DeLeon were

in her mother’s    room talking when DeLeon pulled his pants down and told her to touch his penis.

She said   that she   touched     it   brieﬂy and that he then grabbed her hand, put                 it   onto his penis, and

moved their hands up and down on his penis while he grunted. She testified that, after ﬁve minutes,

something gooey came out of his penis.

                  M.G. conceded          at trial that    she had related different versions of these assaults at

different times to different audiences.             M.G.   told her   mother that DeLeon assaulted her once, told

a child advocate about three instances, and testiﬁed about four instances.                        At trial, she recanted her

allegation to the child advocate that DeLeon               had touched the inside of her vagina. She testified that

the touching hurt but had told the child advocate that it had not hurt.                  At trial, she rejected her report

that   one of the incidents occurred during the day, insisting that                 it   occurred at night. M.G. told a

child advocate that the    phone recorded the March 19 phone conversation without her knowledge,

but she recanted that assertion          at trial   and explained the steps needed           to   make    a recording.    M.G.

acknowledged      at trial that   she was sometimes perceived as “overly dramatic.”

                  DeLeon argued          that the allegations of assault          were unfounded. He denied              that   he

touched M.G.’s sexual organ and that she touched                      his.   He   denied being unclothed around the

children and denied sleeping in a bed with them.                 DeLeon testified that his relationship with D.A.

and her family changed       in the fall     of 201   1   when she began dating a man whom DeLeon described
as extremely jealous.         D.A. changed M.G.’s phone number—M.G. linked the change to D.A.’s new

boyfriend, but D.A. testified          it   was because DeLeon yelled       at   M.G. on the phone after she did not

invite     him     to her holiday   band concert    in   December 2011. M.G.           testiﬁed that she surreptitiously


stored his        number in her new phone under the name “William.” DeLeon testified                        that   he decided

not to communicate with the family beginning in December 201                     1.   In February 20 l 2,   DA. contacted

him       after   he sent a flyer to students    at his   school (including D.G.) regarding an event in Austin.

DeLeon testified that D.A.           called to   tell   him that M.G. (who was now attending a different school

for sixth graders)        wanted    to attend.


                       DeLeon   testified that   D.A. used inappropriate language around the children when

talking about topics including her ex—husbands and ex—boyfriends.                      He testified that M.G. picked up

the language         from her mother. He acknowledged that he fell into similar patterns when around the

family, including during the recorded              March l9 telephone       conversation.

                       DeLeon’s brother, who has lived with DeLeon for almost ﬁfteen years, testified that

he never heard DeLeon express a sexual                   interest in children.   DeLeon’s brother testified          that they


watched television together the night             that    M.G.   said   DeLeon   assaulted her at the brothers’        home.

He testiﬁed that DeLeon slept on the couch that night. DeLeon’s brother also testified that the home

is   l   ,30O square feet, that the bedroom doors had been removed during a remodel, and that the interior

of the bedrooms was visible from the living room.

                       A student, a parent of a student, and two fellow teachers testified about DeLeon.                 The

student testified that she liked him, found              him truthful, and never had any problems with him. The

parent testified that she and her daughter loved DeLeon and that he loved the kids, was truthful, and

was a mentor. One fellow teacher described him                   as truthful, while another testiﬁed that she did not
like   him because he was not prompt. She                 testified that   she told    DeLeon she thought he        acted too


familiar with      all   the girls   on the team and that he should not be alone with any of the               girls   because

it   looked inappropriate, but said that she did not see him pay any extra attention to M.G. The teacher

testiﬁed that she found         M.G.    to   be truthful.

                    At the punishment phase, DeLeon’s                   friends, colleagues,       and family     testified in


support of DeLeon. They described him as a good teacher and a good person who was supportive

and appropriate with children.               A psychologist evaluated DeLeon and testified that the test results
showed no sexual deviancy,              that   he is quite conservative in his sexual practices,        that   he showed no

sexual interest in children, and that he scored Very low on a scale of potential recidivism.



                                                        DISCUSSION

                    DeLeon raises four issues on appeal. He contends that the court improperly limited

his ability to confront witnesses            and put on a defense. He argues that the evidence            is   insufficient to


prove    all   of the required elements.         He contends that the trial court erred by denying his motion for

mistrial based      on the prosecution’s comment on his                failure to testify.    DeLeon also asserts      that the


sentence was unconstitutional because                 it is   disproportionate and cruel and unusual.



DeLeon was not harmed by any error in                         the exclusion of evidence.

                     DeLeon contends            that the trial court   abused   its   discretion   and violated   his right to


confront witnesses when it prevented him from cross-examining D.A. about problems she had with

Child Protective Services, in particular D.A.’s report to                     DeLeon      that she    had abused her      son.


DeLeon also contends that the trial court improperly refused to allow him to question D.A. regarding

her anger after he ignored her romantic advances toward him.                             He   contends that this evidence
would have shown that D.A.’s report of his                alleged abuse         was a tactic   to divert attention      from her

abuse of her children.

                   The Constitution guarantees defendants a meaningful opportunity                                   to present a


complete defense. Crane        v.      Kentucky, 476 U.S. 683, 690 (1986); see also U.S. Const. amends. VI

(compulsory process and confrontation of witnesses)                     & XIV (due process).        There      is,   however, no

absolute constitutional right to present favorable evidence. Potier                       v.   State, 68   S.W.3d 657, 659

(Tex. Crim. App. 2002) (citing United States                v.   Sc/zeﬂer, 523 U.S. 303,        316 (1998)). The             right to


present relevant evidence         is   subject to reasonable restrictions through evidentiary rules that are


not arbitrary or disproportionate to the rule’s purpose.                 Id.;   see also Davis v. State, 313 S.W.3d 317,

329 n.26 (Tex. Crim. App. 2010). The improper exclusion of evidence may establish a constitutional

violation (1)     when   a state evidentiary rule categorically and arbitrarily prohibits the defendant

from offering relevant evidence            that is vital to his defense; or (2)         when a trial    court precludes the


defendant from presenting a defense by erroneously excluding relevant evidence that                                     is    a vital


portion ofthe case.      Ray v.   State,    l78 S.W.3d 833, 835 (Tex. Crim. App. 2005). The exclusion of

evidence    is   unconstitutional only where        it   infringes     on a weighty     interest   of the accused. Potier,

68 S.W.3d    at   660 (citing Schejfer, 523 U.S.          at 308).     Erroneous evidentiary rulings rarely rise to the

level   of denying the fundamental constitutional rights                 to present a   meaningﬁil defense.            Id. at   663.


                   The courts’    exercise of discretion          is   guided by competing        interests.     Courts should

permit great latitude for the accused to show any fact that would tend to establish                         ill—feeling, bias,


motive and animus upon the part of any witness testifying against him. Koehler v. State, 679 S.W.2d

6,   9 (Tex. Crim. App. 1984).            On the   other hand, the        trial   judge retains wide latitude          to    impose

reasonable limits on cross-examination to                show bias based on concerns           about,   among other things,
harassment, prejudice, confusion of the issues, the witness’ s safety, or interrogation that is repetitive

or only marginally relevant. Irby                v.   State,   327 S.W.3d 138, 145 (Tex. Crim. App. 2010).

                 The parties at trial entered an agreed order in limine concerning the mention of prior

contact between any of the witnesses and Child Protective Services. During his cross—examination

of D.A., DeLeon notiﬁed the court that he intended to ask questions regarding CPS involvement with

D.A.’s family, which prompted the following exchange:



         [Defense counsel]:     . There is direct relations to this discipline going on that ties
                                    .   .   .




         to a very important defensive theory that this discipline made the child scared of her
         mother.

         THE COURT: You haven’t shown anything yet, Counsel, so I am not going to let
         anything like that   in,   unless you           show something that has some bearing on the case.

          [Defense counsel]: Well, then—okay, a                         later   time then. Okay. So that’s   fine.




During DeLeon’s testimony, the State objected when he mentioned that the children had been

“retumed from CPS custody,” and the court cautioned the witness not to blurt out CPS references.

Later,   DeLeon agreed with         a question that after a conversation with D.A. he felt compelled to do


something—speciﬁcally, “as an educator,                        it   was my obligation to Contact CPS to let them know—”

at   which time the   State again objected              and invoked the motion           in limine.   The following exchange

occurred during a bench conference:



         [Defense counsel]: This is different, Judge. This goes to her motive in                             filing the
         case. This is not talking about something that happened in the past. This                           is   talking
         about directly what her motive would be when this case was started.

          [Prosecutor]:   So wouldn’t the appropriate person to be—have gone                            into that    been
         with her?

          [Defense counsel]: This               is   my case. You can recall her.
                                                                        7
           [Prosecutor]: This witness can’t testify about her motive.


           [Defense counsel]: He can testify about what happened, not her motive.                 I   can argue
           it, based on the evidence.



          THE COURT:                I’m sustaining the objection at this time.   You can call the appropriate
          person to do        it.




DeLeon      did not recall D.A. for further interrogation, but after the close of evidence, his attorney

made the     following offer of proof:



           We   attempted to ask questions before the jury concerning whether [D.A.] had
           informed my client, Steven DeLeon, of child abuse that she had inflicted upon her
           son, [D.G.]. And that would have given her a direct motive to go into the place with
           a recording [of the phone conversation between M.G. and DeLeon]. It happened
           shortly before the recording was—excuse me—shortly before the recording was
           discovered. And that would have prompted her to go to the authorities with that and
           given her motive. And we were not allowed to ask those questions.



                      It is   not entirely clear that      DeLeon preserved      this issue for appellate review.       To

preserve error in the admission of evidence, a party generally must                        make   a complaint to the

trial   court with sufficient speciﬁcity that the trial court is aware of the complaint, and the court must

rule    on the request. Tex. R. App. P.           33.1(a). In order for a defendant to perfect a complaint that he


was not allowed to inquire regarding a witness or party’s bias, he must establish what subject matter

he desired      to   examine the witness about during the cross—examination. Koelzler, 679 S.W.2d                     at 9.


DeLeon      has not     shown that he was          totally forbidden    from making the    inquiries.   The   trial   court


stopped him from asking D.A. about                  CPS until he “show[ed] something that has some bearing on

the case.”    When the State objected to defense counsel’s attempt to ask DeLeon aboutD.A.’s motive
for contacting        law enforcement, the         trial   court sustained the objection “at this time,” adding this
directive to counsel:   “You can call the appropriate person to do it.” DeLeon did not recall D.A.                                or


any other witness on the subject.

                 Even   if DeLeon’s offer       of proof is sufficient   to preserve the issue regarding                      CPS’s

investigation into a report of abuse,     DeLeon has not demonstrated that the trial court erred. There

is   no showing that evidence relating     to D.A.’s abuse         of D.G. had any relevance on any element of

whether DeLeon sexually assaulted M.G.             It   can therefore be excluded absent some other theory of

admissibility.   See Tex. R. Evid. 402. Whether D.A. abused her son is not admissible impeachment

evidence about her character for truthfulness and             is   not evidence of conviction for a crime. See

Tex. R. Evid. 608(a), 609.      It is   a speciﬁc instance of conduct           which “may not be inquired                      into


on cross—examination of the witness nor proved by              extrinsic evidence.”              See   id.   608(b). Also, the


relevance to bias or motivation for D.A. reporting the recording of the phone conversation between

MG. and DeLeon is not plainly apparent.             Iﬂ as   DeLeon argues, D.A. wanted to distract CPS from

the report that she abused her son,     it is   not clear that she would serve that purpose by reporting that

her daughter was sexually abused by a             man D.A.     repeatedly selected as a babysitter despite her

daughter’s request that she not do so. Further, because there              is   no challenge           to the validity        of the

recorded phone conversation, D.A.’s motive or bias in supplying                   it   to   law enforcement              is   at best


marginally relevant to the contested issues in this case. See Irby, 327 S.W.3d at 145                           (trial   court can


limit marginally relevant interrogation).         The content of the conversation matters much more. On

the record presented, the   trial   court did not err     by excluding evidence of D.A.’s involvement with

CPS and did not prevent DeLeon from presenting a defense.

                 Harm from any wrongful             exclusion of this evidence              is   also not apparent.             The

recording was not made in retaliation for D.A.’s admission of abuse. The conversation occurred on
March     19,   2012, and D.A. made the abuse admission to DeLeon “shortlybefore” she discovered the

recording on M.G.’s phone on May 20, 2012.          DeLeon does not dispute          that   he made the recorded

statement, and although M.G.      may have introduced the topic of DeLeon’ s discomfort with discussion

of female body parts, he      initiated the discussion   of unspeciﬁed events with      MG. when he wanted
to ensure that she was comfortable      and that he was not hurting her. The trial court’s failure to allow

DeLeon to delve into D.A.’s potential motivations for disclosing this recording to law enforcement

did not affect the jury’s consideration of the substance of the phone        call.


                    Further diminishing any harm,    DeLeon was      able to challenge D.A.’s and M.G.’s

credibility in other ways.    DeLeon testified and ﬂatly denied that the assaults occurred. He presented

evidence that D.A. was biased against him because she was angered by his rejection of her romantic

overtures.      He queried M.G. who    said that D.A.    had a “crush” on DeLeon and that he did not            like


her mother in that way. DeLeon’ s brother testified that D.A. was obsessed with DeLeon and that his

brother did not return her affection.      He testiﬁed that D.A. would show up              at the brothers’   house

unannounced while they were out and would wash their dishes and feed their dog. DeLeon himself

testified that    D.A. wanted to marry him but that, while he was interested in helping her children, he

was not    interested in marriage with her. All this testimony called into question D.A.’s credibility


because she testiﬁed that she and DeLeon went on a date but decided that they were better off as

friends. Further, although     D.A. asserted that she did not telephone DeLeon, he confronted her with

records showing that 570 calls went from her phone to his.         He confronted M.G.          about the different

stories   of abuse she told to different questioners.    He highlighted the fact that she reported one, then

three, then four incidents,   and noted inconsistencies between versions as to whether the contact hurt,

where her brother was during an incident, and whether the         assault occurred during the         day or night.


                                                         10
Further,   DeLeon’s brother contradicted               details   of M.G.’s story about the assault            at the brothers’


house.    The trial court’s failure to allow him to obtain the testimony he wanted about D.A.’s alleged

abuse of her son did not prevent him from confronting witnesses and challenging their                             credibility.


We conclude beyond a reasonable doubt that any erroneous exclusion of evidence discussed above
did not contribute to DeLeon’s conviction or punishment. See Tex. R. App. P. 44.2(a).



The evidence is     sufﬁcient to support the conviction.

                  In reviewing the sufficiency of the evidence to support a conviction,                         we determine

whether a rational trier of fact could have found that the essential elements of the crime were proven

beyond a reasonable doubt. Brooks                v.   State,   323 S.W.3d 893, 895 (Tex. Crim. App. 2010). In

making this determination, we consider all evidence that the trier of fact was permitted to                         consider,


regardless of whether     it   was    rightly or      wrongly admitted. Clayton            v.   State,   235 S.W.3d 772, 778

(Tex. Crim. App. 2007); Allen v. State, 249 S.W.3d 680, 688-89 (Tex.                            App.—Austin 2008, no pet.).

We view this evidence in the light most favorable to the verdict.                        Clayton, 235 S.W.3d at 778.      The

jury, as the trier of fact,   is   the sole judge of the credibility of the witnesses and the weight to be given


to their testimony. Id. Therefore,            we presume that the jury resolved any conﬂicting inferences and

issues   of credibility in favor of the judgment.              Id.


                  A person commits continuous sexual abuse of a child                       if,   while the person is 17 years

of age or older and the victim is a child younger than fourteen years, the person commits two or more

acts   of sexual abuse during a period that is 30 or more days in duration. Tex. Penal Code § 21.02(b).

Acts of sexual abuse include indecency with a child                           if the   person committed the offense in a

manner other than by touching the child’s breast,                    id.   § 21.11(a)(1), sexual assault, id. § 22.011,   and

aggravated sexual assault,          id. §   22.011.

                                                                 11
                     M.G. ’s testimony is sufficient to support the conviction.           It is   undisputed that DeLeon

and M.G. were, respectively,             thirty-nine   and twelve years old during the summer of 2011. M.G.

testiﬁed that around June 3 201 1, ,
                                             DeLeon touched her vagina. She testiﬁed that they were lying on

the ﬂoor, he asked her to         remove her shorts, and he moved his ﬁngers on her vagina. She testiﬁed

that, after   he touched her for about ﬁve minutes, he kissed her neck really hard and left a mark. She

said he asked if she        was okay or       if   he was hurting her. This testimony supports a ﬁnding that

DeLeon committed indecency with a child by contact. See                      id.   § 21.1 l(a)(1).    M.G.    testiﬁed that,


about a month later—longer than thirty days, she said—when she and her brother were staying

overnight     at   DeLeon’s house, DeLeon touched her vagina. She testiﬁed that, wl1ile they were lying

on his bed, he asked her to remove her shorts and underwear, and he moved                           his   ﬁnger around and

inside her vagina for about            ﬁve minutes. He again asked her if he was hurting her. This testimony

supports a ﬁnding of indecency with a child by contact, sexual assault of a child, and aggravated

sexual assault of a child. See id. §§ 21.l1(a)(l), 22.011(a)(2), 22.021(a)(1)(B)(i). M.G. testiﬁed that

about three weeks        later   when she and DeLeon were talking in her mom’s bedroom, DeLeon pulled

down his pajama pants and told M.G. to touch his penis. She did quickly, but he grabbed her hand,

put his hand over hers, and moved their hands together up and down his penis for about five minutes.

She said he made grunting noises, then something clear and gooey came out of the top of                                    his


penis. This testimony is sufﬁcient to support a             ﬁnding of indecency with a child by contact. See id.

§ 21.1 1(a)(1).      The   child testiﬁed that the second incident occurred            more than thirty days          after the


ﬁrst,   and that the third incident occurred about three weeks              after the second.       Even if the testimony

that the   second incident occurred “about a              mom     ”
                                                                      after the ﬁrst   were insufﬁcient        to   show   the


requisite period, the third incident occurred about a                  month and       three   weeks      after the   ﬁrst—a


                                                             12
combination sufficient to support a ﬁnding of two incidents of sexual abuse of a child occurring over

a period of at least thirty days. See             id. §   2l.02(b)(1).

                     DeLeon challenges M.G.’s credibility, pointing to inconsistencies               in her statements


at   various times and to contrary testimony by others.                  He notes her failure to make an outcry before

her mother confronted her with the recorded telephone conversation with DeLeon.                         He points out

that   she reported one incident, then three, then four, and that her reports varied with regard to

how he touched her, whether his touch hurt, what time the offenses occurred, and where her brother

was during these           events.     He   notes that she admitted liking to use sexual language, initiating the

sexual theme into the telephone conversation, and being overly dramatic.                     DeLeon also points to his

brotl1er’s   testimony that           DeLeon did not      share a bed with her    when   she stayed at their   home and

that the   bedrooms         at that   house have no doors. The jury, however, could have either rejected            that


testimony or found that the offense simply occurred in a short period during which DeLeon’s brother

was not monitoring him. The jury was faced with a credibility choice and selected M.G. The record

is   not such that we can intrude on the jury’s role and override its choice to credit M.G.’s testimony.

See Clayton, 235 S.W.3d               at   778; Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996).         We
ﬁnd the evidence           sufficient to support the conviction.



The court  did not abuse its discretion by denying DeLeon’s motion for mistrial during the
State’s argument at the punishment phase.

                     Permissible jury argument includes summation of the evidence, reasonable

deduction from the evidence, answer to argument of opposing counsel, and plea for law enforcement.

Allridge     v.   State,   762 S.W.2d 146, 155 (Tex. Crim. App. 1988). Commenting on an accused’s

failure to testify violates his state            and federal constitutional privileges against self—incrimination.


                                                                 13
Arc/zie   v.    State,   340 S.W.3d 734, 738 (Tex. Crim. App. 2011).                A defendant’s Fifth Amendment
privilege against self—incrimination continues during the punishment phase of trial. See Mitchell


v.   United States, 526 U.S. 314, 325-27 (1999); Carroll v. State, 42 S.W.3d 129, 131-32 (Tex. Crim.

App. 2001).

                     We can reverse      a   trial   court’s denial of a   motion for mistrial only for an abuse

of discretion. Archie v. State, 22] S.W.3d 695, 699 (Tex. Crim. App. 2007). To determine whether

the court’s instruction cured the prejudicial effect of the improper                         comment, we balance

three factors: (1) the severity of the misconduct’s prejudicial effect, (2) any curative measures,


and    (3) the likelihood      of the same punishment being assessed absent the misconduct. Hawkins

v.   State, 135    S.W.3d 72, 75 (Tex. Crim. App. 2004). Mistrial              is   the appropriate   remedy when the

objectionable events are so emotionally inﬂammatory that curative instructions are not likely to

prevent the juiy from being unfairly prejudiced against the defendant. Archie, 340 S.W.3d                       at   739.


Only in extreme circumstances where the prejudice is incurable will a mistrial be required. Hawkins,

135 S.W.3d          at 77.    Where a comment            leads to   two plausible inferences—one of which              is



permissible—we do not presume that the jury would necessarily choose the improper inference. See

Henson     v.   State,   683 S.W.2d 702, 704-05 (Tex. Crim. App. 1984).               A comment on the defendant’s
failure to      show remorse     is   generally not proper if the defendant testifies at the guilt stage and

presents       some defense, but does not testify at the punishment phase. Randolph v. State, 353 S.W.3d

887, 892 (Tex. Crim. App. 2011).              The prosecutor may during the punishment phase comment on

any testimony given by the defendant                 in the guilt/innocence   phase and,   if the   defendant expressly

or impliedly denies criminal responsibility during that testimony, the prosecutor may                      comment on

that denial. Id. at 895.      A statement during punishment argument that the defendant failed to express

                                                              14
remorse might be taken as a comment on his                      failure to testify, but   any harm from that violation

can be cured by an instruction               to disregard the   comment. Moore     v.   State,   999 S.W.2d 385, 405-06

(Tex. Crim. App. l999).

                DeLeon contends that the trial court should have granted his motion for mistrial after

the State commented on his exercise of his right to remain silent during the sentencing phase of trial.

DeLeontestif1ed during the guilt/innocence phase and denied committing the offense but did not take

the stand during the punishment phase.                The controversy centers on the following exchange during

the State’s punishment argument:



        [Prosecutor]:    .   And it’s scary the way that he conducted himself, the absolute
                             .   .   .



        denial with what he showed, and then the complete support of his family behind him.
        I do not believe 25 years, as a punishment, is appropriate in this case. Ibelieve a

        sentence of 60 years would be appropriate. [M.G.] is going to have to live with this
        for the rest of her          life.



       And if the Defendant had taken the stand, admitted what he had done, and begged for
       forgiveness, I believe the minimum sentence would be appropriate. But that’s not
       what we have here.

        [Defense counsel]: Your honor, could                    we approach the bench?

        (Bench Conference)


                                         DEFENSE MOTION FOR MISTRIAL
       [Defense counsel]: I am going to ask for a mistrial. He did not testify at punishment.
       He just said to the jury, if he got up on the stand at this phase and told you—

        [Prosecutorl]:       Iwas speciﬁcally          referring to guilt/innocence.


        [Defense counsel]:   didn’t say that. He said, if he got
                                         He                                               up here and asked   for
        forgiveness—this—I’m asking for a mistrial, Judge.




                                                                 15
                                                  COURT’S RULING

          The Court: Well, you’re not going             to get one.      I   am   going to instruct the jury   to
          disregard that.

          [Defense counsel]: That’s unbelievable.

          (Open Court.)

          The Court: Ladies and gentlemen, the last comment by the prosecutor is improper,
          and you will not consider that for any purpose whatsoever.


The   court then expressly denied the motion for mistrial.

                     As   the   trial   court found, the argument      was improper. The prosecutor’s comment

violated DeLeon’s right not to testify. See Randolph, 353                S.W.3d at 89l. Even if the statement that

DeLeon     did not take the stand and admit what he had done referred to DeLeon’s testimony

at guilt/innocence        during which he denied wrongdoing, the statement that he did not beg for

forgiveness    is   equivalent to the failure to express remorse found to be an improper                    comment by

the court of criminal appeals. See Swallow             v.   State,   829 S.W.2d 223, 226 (Tex. Crim. App. 1992),

overruled    in     part by Randolph, 353 S.W.3d              at   894-95 (distinguishing between prosecutorial

argument that defendant did not accept responsibility—a proper summation of the defendant’s

guilt/innocence testimony denying committing the                     crime—from argument that defendant did not

express   remorse—an improper comment on the failure to testify at punishment).

                     We conclude, however, that the trial court’ s prompt, thorough, and proper instruction
to the jury to entirely disregard the prosecutor’s                 argument cured the harm. DeLeon received a

sentence of thirty—two years—seven years above the minimum of twenty-five years permitted for the

offense of continuous sexual abuse of a child, but well below the maximum                      life   sentence permitted.

See Tex. Penal Code             § 2l.O2(h).   Considering that the sexual abuse of the child found by the jury

                                                              16
was committed by an elementary school teacher——one                         entrusted with the safety and well—being of


children—we are conﬁdent that the jury was not inﬂamed by the improper comment and very likely

would have assessed the same punishment absent the misconduct. Hawkins, 135 S.W.3d at 77. The

trial   court did not abuse     its   discretion   by denying the motion for mistrial.


The sentence did not violate the constitution.

                       DeLeon contends       that his    punishment violates constitutional prohibitions against

cruel    and unusual punishment because it does not have a possibility of parole. See Tex. Penal Code

§ 21.02(h); see also Tex.        Gov’t Code        § 508.l45(a).      He notes that his minimum possible sentence

was twenty-five years         in prison, while     someone who murders             a child could get as   few as ﬁve years

in prison with a possibility          of parole. See Tex. Penal Code            § 12.32; Tex.    Gov’t Code    § 508.l45(t).


He      contends   that,   because a child murderer sentenced                  to thirty-two years in prison        would be

eligible for parole but he      would not, his sentence is disproportionate to his crime. He contends that,

in assessing whether this categorical denial of parole to persons guilty of continuous child sexual


abuse     is   cruel   and unusual,     we   should examine four factors:               (1)    whether there   is   a national

consensus against imposing the particular punishment                         at issue; (2)     the moral culpability of the


offenders at issue in light of their crimes and characteristics; (3) the severity of the punishment; and


(4)   whether the punishment serves legitimate penological goals. Meadoux v. State, 325 S.W.3d 189,

194 (Tex. Crim. App. 2010). He contends that murder is a worse crime than sexual abuse and that

Texas’s sentencing parameters are inconsistent with that hierarchy.                        He contends that the sentence

is   severe because he will be incarcerated until he               is in   his late sixties.


                       The State leans on the conclusion by the Amarillo court that the punishment structure

for continuous sexual abuse of a child                  is   constitutional,    even when a person about forty years

                                                                 17
of age   is   sentenced to a sixty—year prison term without the possibility of parole. Glover                          v.   State,


406 S.W.3d 343, 346-50 (Tex. App.—Amarillo 2013,                            pet.    ref d). The Amarillo court found a

national consensus in favor of the constitutionality of the sentencing range for this offense, primarily

based on the request by a judge on the Court of Criminal Appeals that the legislature enact tougher

punishment on those who commit continuous sexual assaults of children. See                                  id. at   348    (citing


Dixon    v.   State,    201 S.W.3d 731, 737 (Tex. Crim. App. 2006) (Cochran,                        J.,   concurring)).       The

Amarillo court wrote that—despite court holdings that murder is a more serious offense than child

sexual assault—the nature of the offense,                its   repetitive nature,   and the vulnerability of child victims

combined to make the moral culpability of the offenders weigh in favor of the no—parole punishment

being constitutional. Glover, 406 S.W.3d                   at   348-49.   The Amarillo       court opined that the severity


of imprisonment for sixty years              (in that case) without the possibility          of parole weighed against the

constitutionality of the statute. Id. at 349. Finally, the Amarillo court opined that the                       mere fact that

the sentencing range for this offense            is   greater than that for child murder does not necessarily render


the sentencing range unconstitutional. Id. That court reasoned that those convicted of the crime are


already recidivists and opined that they are more likely to reoffend than murderers who, aside from

serial killers,   tend not to reoffend.         Id. at   349—50.    The court held that the prison term without parole

served the penological goals of retribution, deterrence, and incapacitation.                        Id.


                       DeLeon has presented no evidence or argument that requires rejection of the Glover

opinion.      The sentence imposed in this case—thirty—two years                     in   prison—is substantially      less than


the sixty—year prison term             imposed on a similarly aged defendant                 in that case   and found        to   be

constitutional.        See   id. at   345.   We are not persuaded that the mere fact that a child sexual abuser
might be sentenced to a longer prison term than a child murderer necessarily renders the sentencing


                                                                   18
structure unconstitutional.   Assuming that criminal behavior is     affected   by the punishment ranges

enshrined in law,   we are somewhat concerned by the “incentive” inherent in a sentencing structure

that mandates a   minimum sentence for a person who improperly sexually touches a child twice that

is   ﬁve times longer than the   five-year   minimum sentence available   for a person   who murders that

same child, but we are not persuaded that our concern is sufficient to render the statutes or DeLeon’ s

sentence unconstitutional.



                                               CONCLUSION
                 Finding that DeLeon has presented no reversible error,       we affirm the judgment.




                                                   Jeff Rose, Chief Justice


Before Chief Justice Rose, Justices Pernbeiton and Bourland

Affirmed

Filed:    May 29, 2015
Do Not Publish




                                                     19
            TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

                             JUDGMENT RENDERED MAY 29, 2015


                                        NO. 03-13-00202—CR


                                     Steven DeLeon, Appellant

                                                     v.


                                    The State of Texas, Appellee



          APPEAL FROM 421ST DISTRICT COURT OF CALDWELL COUNTY
       BEFORE CHIEF JUSTICE ROSE, JUSTICES PEMBERTON AND BOURLAND
                AFFIRMED -- OPINION BY CHIEF JUSTICE ROSE


This   is   an appeal from the judgment entered by the      trial court.   Having reviewed the record and

the parties’ arguments, the Court holds that there          was no    reversible error in the trial court’s


judgment. Therefore, the Court affirms the      trial     court’s judgment.    The appellant   shall   pay   all


costs relating to this appeal, both in this Court   and the court below.
                                            COURT OF APPEALS
                                                   THIRD DISTRICT OF TEXAS
                                                   PO.   BOX I2547, AUSTIN, TEXAS 78711-2547
                                                           www,lxcourIs.g0v/3rdcoa.aspx
                                                                     (512) 463-1733




JEFF   L.   ROSE. CHIEF JUSTICE                                                             JEFFREY D. KYLE, CLERK
DAVID PURYEAR, JUSTICE
BOB PEMBERTON. JUSTICE
MELISSA GOODWIN, JUSTICE
SCOTT K. FIELD, JUSTICE
CINDY OLSON BOURLAND, JUSTICE
                                                September      17,   2015


Ms. Kathryn T. Alsobrook                                             Ms. Kerrisa J. Chelkowski
Assistant Criminal District Attorney                                 Law Ofﬁce of Kerrisa Chelkowski
Caldwell County, Texas                                               1017 South Alamo
P. O. Box 869
                                                    ‘-
                                                                     San Antonio,TX 78210
Lockhait, TX 78644                                                   *   DELIVERED VIA E-MAIL *
*   DELIVERED VIA E-MAIL *

RE:          Court of Appeals Number:     O3-13-00202~CR
             Trial Court Case Number:     20 I 2-1 66

Style:         Steven DeLe0n
               v.The State of Texas


Dear Counsel:

             Appellant's motion for rehearing   was overruled by this Court on the date noted above.


                                                               Very truly yours,

                                                               JEFFREY D. KYLE, CLERK
                                                                          C      QT‘
                                                                BY:
                                                                                       -




                                                                               e,/(4%?/kn
                                                                            Liz Talerico, Deputy Clerk
