Affirmed and Memorandum Opinion filed August 18, 2015.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-14-00501-CR
                               NO. 14-14-00502-CR
                               NO. 14-14-00503-CR


                        TIMOTHY HEARNE, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 180th District Court
                            Harris County, Texas
              Trial Court Cause Nos. 1344552, 1344550 & 1344551

                 MEMORANDUM                       OPINION


      Appellant appeals his conviction for three counts of indecency with a child.
The jury assessed punishment at twelve years in prison on each count. In two
issues, appellant contends that the trial court erred by (1) admitting six photographs
of the complainants making gestures during a forensic interview; and (2) denying
his motion for mistrial because the prosecutor commented on his failure to testify
during the punishment phase of trial. We affirm.

                                     BACKGROUND

      On March 9, 2012, Officer Efrain Vaquera was dispatched to the
complainant’s house at 3730 Eagle Street, Harris County, Texas because the
complainant’s mother called to report that her daughter had been sexually abused.
The six-year-old complainant’s mother had been giving her a bath when the
complainant, N.A., began putting her finger in her genital area. The mother asked
the complainant what she was doing and who showed her how to do that. The
complainant then told her mother that her grandfather, the appellant, put his finger
in her private area. N.A. told Officer Vaquera that appellant had done this before
and that he also did it to her cousin, D.O. Officer Vaquera spoke with D.O., who
told him that appellant touched her private area on previous occasions. D.O. and
N.A. were taken to Texas Children’s Hospital where a SANE nurse performed
exams on the children. A special investigator with Child Protective Services
interviewed D.O., N.A., and their cousin, A.H. A.H. also explained that appellant
touched her genital area on one occasion.

      Appellant was charged by indictment with two counts of indecency with a
child and one count of aggravated sexual assault of a child younger than 14 years
of age. Tex. Penal Code § 21.11(a); Tex. Penal Code § 22.021(a). Appellant
pleaded not guilty to the indictment. Appellant testified at the guilt-innocence
phase of trial but did not testify at the punishment phase. The jury found appellant
guilty on three counts of indecency with a child and assessed punishment at twelve
years in prison for each count.

                                  ISSUES AND ANALYSIS

      In two issues, appellant contends that (1) the trial court erred by admitting


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six photographs depicting two of the complainants during their forensic interview
because the photographs constitute inadmissible hearsay; and (2) the trial court
erred by denying appellant’s motion for mistrial during the punishment phase of
trial because the prosecutor improperly commented on appellant’s failure to testify.

      I.     Hearsay

      Appellant contends that the trial court abused its discretion by admitting six
photographs that depict the complainants making gestures during a forensic
interview at the Children’s Assessment Center. Appellant argues that the
complainants’ gestures in the photographs constitute “assertions by conduct” and
are inadmissible nonverbal hearsay.

      We review a trial court’s ruling on the admissibility of evidence for an abuse
of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).
We must uphold the trial court’s ruling if it was within the zone of reasonable
disagreement. Id.

      Hearsay is defined as a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted in the statement. Tex. R. Evid. 801(d). A “statement” is (1) an oral
or written verbal expression, or (2) nonverbal conduct of a person, if it is intended
by the person as a substitute for verbal expression. Tex. R. Evid. 801(a). Nonverbal
actions may be hearsay if they are “assertions by conduct.” Graham v. State, 643
S.W.2d 920, 926−27 (Tex. Crim. App. 1981).

      The six exhibits appellant complains of are still photographs taken from the
Children’s Assessment Center’s videotaped interview with N.A. and D.O. Exhibits
8, 9, 10, 11, and 12 show N.A. making gestures with her hands while she is
responding to the forensic interviewer’s questions. Exhibit 16 shows D.O. making


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a gesture with her hand in response to the forensic interviewer’s question “how
was he doing it with your school clothes?” Appellant argues that the six
photographs admitted at trial are inadmissible hearsay because they are nonverbal
conduct, intended as a substitute for verbal expression. We disagree.

        Because the gestures were being made along with the complainants’ verbal
statements about what appellant did to them, we cannot say that the gestures were
intended as a substitute for verbal expression. See Foster v. State, 779 S.W.2d 845,
862 (Tex. Crim. App. 1989) (holding that declarant’s gesture “was not a substitute
for verbal expression where a declarant is asked a specific question and responds
assertively to that question in a non-verbal manner”). Because the photographs are
not out-of-court statements, the trial court did not abuse its discretion by admitting
them.

        We overrule appellant’s first issue.

        II.   Motion for Mistrial

        In his second issue, appellant contends that the trial court erred by denying
his motion for mistrial because the prosecutor improperly commented on his
failure to testify during the punishment phase of trial.

        A comment on a defendant’s failure to testify violates both the state and
federal constitutional privileges against self-incrimination, as well as Texas
statutory law. Randolph v. State, 353 S.W.3d 887, 891 (Tex. Crim. App. 2011);
Archie v. State, 340 S.W.3d 734, 738 (Tex. Crim. App. 2011). The defendant has a
separate Fifth Amendment privilege not to testify at either the guilt or punishment
phases of trial. Randolph, 353 S.W.3d at 891. A waiver of the privilege at the guilt
phase does not waive the privilege for the punishment phase. Id. Thus, a comment
on the defendant’s silence at the punishment phase is improper even if the


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defendant testified at the first phase of trial. Id.

       A violation of defendant’s constitutional privilege against self-incrimination
occurs when “the language used was manifestly intended or was of such a
character that the jury would necessarily and naturally take it as a comment on the
defendant’s failure to testify.” Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim.
App. 2007). In applying this standard, the context in which the comment was made
must be analyzed to determine whether the language used was of such character.
Randolph, 353 S.W.3d at 891; Bustamante v. State, 48 S.W.3d 761, 765 (Tex.
Crim. App. 2001). It is not sufficient that the comment might be construed as an
implied or indirect allusion to a defendant’s failure to testify. Bustamante, 48
S.W.3d at 765. We view the challenged argument from the jury’s standpoint and
resolve any ambiguities in the language in favor of it being a permissible
argument. Randolph, 353 S.W.3d at 891. It cannot be said that the prosecutor
manifestly intended to comment on the defendant’s failure to testify, if some other
explanation for his remark is equally plausible. Id.

       A mistrial is a device used to halt trial proceedings when error is so
prejudicial that expenditure of further time and expense would be wasteful and
futile. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). We review the
denial of a motion for mistrial for an abuse of discretion. Archie v. State, 221
S.W.3d 695, 699 (Tex. Crim. App. 2007). Only in extreme circumstances, where
prejudice is incurable, will mistrial be required. Id.

       Appellant testified at the guilt-innocence phase of trial but did not testify at
the punishment phase. During the State’s closing argument at the punishment
phase of trial, the following took place:

       [The Prosecutor]: You haven’t heard any remorse coming from the
       defendant. He is not here asking you for forgiveness.

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      [Defense Counsel]: Objection, Judge, that’s a comment on the
      defendant’s failure to testify.
      [The Court]: Sustained.
      [Defense Counsel]: Instruct to disregard, Your Honor.
      [The Court]: You are instructed to disregard the last statement.
      [Defense Counsel]: Motion for mistrial.
      [The Court]: Denied.
      [The Prosecutor]: He didn’t get up here during guilt/innocence and
      express any concern for those children who he watched struggle up
      there on that stand. You haven’t heard any desire on his part when he
      testified to help these children.
      Assuming without deciding that the prosecutor’s argument was an improper
comment on appellant’s failure to testify, we analyze the trial court’s denial of
appellant’s motion for mistrial under the three factors: (1) the severity of the
misconduct (the magnitude of the prejudicial effect of the prosecutor’s remarks);
(2) the measures adopted to cure the misconduct (the efficacy of any cautionary
instruction by the judge); and (3) the certainty of conviction absent the misconduct
(the strength of the evidence supporting the conviction). Id. at 700 (citing Mosley
v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998)). Except in the most blatant
cases, harm from a comment on a defendant’s failure to testify is cured by an
instruction to disregard. Moore v. State, 999 S.W.2d 385, 405−06 (Tex. Crim. App.
1999).

      Under the first factor, any prejudicial effect was not severe, nor did it have a
large effect. After the trial court instructed the jury to disregard the argument, the
prosecutor immediately clarified her comment by stating that appellant did not
show remorse when he testified during the guilt/innocence phase. Appellant did
not object to this portion of the prosecutor’s argument. With respect to the second
factor, the trial court took immediate curative measures by sustaining the objection

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and instructing the jury to disregard the comment. The prosecutor immediately
turned the jury’s attention to appellant’s lack of remorse during his testimony at the
guilt/innocence phase of trial.

      Under the third factor, the objected-to argument did not cause appellant’s
conviction because the argument was made at the punishment phase. The severity
of appellant’s punishment was likely due to the nature of the conduct described by
the three complainants. The jury heard testimony from all three complainants
during the guilt/innocence phase that appellant touched them in their genital area
on multiple occasions. Indecency with a child is a second degree felony that carries
a punishment range of imprisonment not more than 20 years or less than 2 years.
Tex. Penal Code § 12.33. The jury’s assessment of twelve years on each count is in
the middle of the full range of punishment. Taking into consideration the jury’s
imposition of the middle of the range of punishment and the nature and severity of
the crime, we find that the punishment assessed was certain absent the alleged
misconduct. See Schultze v. State, 177 S.W.3d 26, 45 (Tex. App.—Houston [1st
Dist.] 2005, pet. ref’d). We conclude that the trial court did not abuse its discretion
by denying appellant’s motion for mistrial.

      We overrule appellant’s second issue.

                                    CONCLUSION

      We overrule appellant’s issues and affirm the judgment of the trial court.



                                        /s/       Ken Wise
                                                  Justice

Panel consists of Justices Christopher, McCally, and Wise.
Do Not Publish — TEX. R. APP. P. 47.2(b).

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