Affirmed and Opinion Filed May 29, 2015




                                          S   In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                       No. 05-13-01578-CR

                              JOSE MIGUEL GARCIA, Appellant
                                           V.
                               THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 2
                                   Dallas County, Texas
                           Trial Court Cause No. F-12-35086-I

                              MEMORANDUM OPINION
                          Before Justices Bridges, Lang-Miers, and Myers
                                    Opinion by Justice Bridges
       Jose Miguel Garcia appeals his continuous sexual abuse of a child conviction. A jury

convicted appellant, and the trial court sentenced him to thirty-five years’ imprisonment. In a

single issue, appellant argues the trial court erred in permitting the State to argue at closing that

the jury should believe the complainant’s accusations because others already had. We affirm the

trial court’s judgment.

       Because appellant does not challenge the sufficiency of the evidence to support his

conviction, only a brief recitation of the facts is necessary. The complainant, G.A., was three

years old when her mother met appellant.         G.A. grew up thinking that appellant was her

biological father. G.A. was “about seven” when appellant began touching her over her clothes

“and then he progressed to touching, going under [her] shirt and under [her] pants.” When G.A.
was eight, appellant began making her put her mouth on his penis. Eventually, appellant began

putting his penis in G.A.’s vagina, and this happened “over fifty times.” When G.A. was

fourteen, her mother told her that appellant was not her biological father. A “couple of weeks”

later, G.A. was “playing a game of telling secrets” with two friends at school by passing notes.

G.A. wrote “my dad touches me” in a note, and her friend responded with a “disgusted kind of

look” and initiated a follow-up conversation. The friend advised G.A. to go to the counselor,

Tracy Bennett. In response to G.A.’s disclosure, Bennett followed the protocol of notifying an

administrator, who in turn involved the school resource officer, Tom Goane, who was the “police

officer on campus.” Goane briefly questioned G.A. and contacted an Irving police detective,

Stephen Lee.

       Appellant was subsequently indicted on a charge of continuous sexual abuse of a child.

In closing argument, defense counsel asserted the State had spent “the lion’s share of their time”

telling the jury why there was no proof of the underlying offense. Defense counsel argued, “the

only thing [the State has] is the assertions of [G.A.] and they spent their entire time telling you

why.” Defense counsel argued G.A. “changed her story . . . on the stand even.” Characterizing

G.A. as “embellishing” and adding to her story, defense counsel stated, “They said, well that’s

normal. The more she tells it the better it gets and the more she adds and the more she opens up.

Can you believe that beyond a reasonable doubt?” Defense counsel argued G.A.’s mother, when

first told of the allegations of abuse, did not believe G.A. and thought G.A. had made the

allegations “because she was mad because she had just found out [appellant] was to [sic] her

biological father.” Defense counsel argued the State was asking jurors to “Trust us. Why would

[G.A.] go through this.” Immediately, defense counsel raised the issue of G.A.’s mental health:

       Well, they did find out that she was having a mental problem. She was having
       ideation. She was hearing voices. She did hear voices say hurt people, hurt
       people in the family. Well, this happened after she said all this began? But the

                                               –2–
       development preceded any of these allegations. She’s relating these things prior
       to the allegations being made, these occurrences of hearing things.

       Co-counsel for the defense emphasized that “whether she was sexually abused or not,”

G.A. was “a young girl with severe problems.” Co-counsel made the following argument:

       The thing that [G.A.] said on the stand that which is telling is that she does hear
       voices. That’s quite an astonishing thing. I’m so sorry to hear that, but it has to
       be considered. The voices tell her to do things. They told her to harm her sister
       and her brother. They told her to push down the grandfather, the shadowy figure
       out there, the grandfather. Push him down. She was somewhat evasive. She
       couldn’t remember when those voices talked to her but she did remember they
       started a long time ago. So she is a person – if that doesn’t raise a reasonable
       doubt, you might wonder what could. Can you base the verdict on the credibility
       of a person who hears voices? It’s that simple really.

       In his closing argument, the prosecutor urged the jury to “Remember the evidence. I’m

not going to try to mischaracterize it, all right, or change anything that people really said up

there. I’m just going to ask you to listen and you decide what’s reasonable and what makes

sense.” The prosecutor emphasized the many opportunities G.A. had to “take it back” and the

“financial ruin” that followed for the family once appellant went to jail. As to G.A.’s suicidal

thoughts and cutting, the prosecutor stated those behaviors started when G.A. was ten years old,

at the same time appellant began having sex with her. After the prosecutor raised the subject of

G.A.’s forensic interview, the following exchange occurred:

       [PROSECUTOR]: [G.A.] was forensically interviewed. They’re trained to look
       for signs of coaching and signs that they’re lying. And guess what, Detective Lee
       was standing out there watching that forensic interview. If he thought she was
       lying, would he have filed a case?

       [DEFENSE COUNSEL]: Objection, judge. Improper argument regarding the
       credibility of the alleged victim.

       [THE COURT]: Overruled.

       [PROSECUTOR]: Think about it. We brought you people who know G.A. All
       right? Your job is to judge witness credibility. Think about it. You do it every
       day in your normal life. Somebody you don’t know well comes up to you and
       says some story that sounds a little bit outlandish, okay, and you kind of call them
       on their bull crap; right? Somebody you know that says something that
       exaggerates something and you just know they’re exaggerating. We brought you
                                                –3–
       the people who knew her. When [[G.A.]’s friend from school] hears from her
       what happened, he knew it was true. That’s why he took her in to Ms. Bennett.
       When Ms. Bennett saw how she was acting and her demeanor, she knew it was
       true. She called in an officer. When Detective Lee was watching that forensic
       interview, he knew what he was hearing was the absolute truth.

       [DEFENSE COUNSEL]: Judge, objection to the bolstering and argument about
       the truth of the alleged victim, the alleged victim being the truth-teller by these
       witnesses.

       [THE COURT]: Overruled.

       [PROSECUTOR]: So right up through . . . the therapist. She’s been seeing her
       now for eleven months. Not one time did she ever have any reason to believe that
       nothing happened. I mean, so you’re being asked -- folks, think about this. All
       right? This is what you’re being asked to do. You’re being asked to believe that
       G.A. made this all up, but for what? Okay? So let me get this straight then. The
       smoking gun is that we have a teenager who would rather listen to music and not
       do chores, and so therefore something must be wrong. All right? That’s absurd.
       And how about finding out that that’s not really her biological dad. Think about
       that. So let me get this straight. She finds out it’s not her biological dad. But I
       guess then -- what does she gain then from saying that he sexually abused her?
       What would she gain from that? All right?

The jury convicted appellant of continuous sexual abuse of a child, and this appeal followed.

       In his sole point of error, appellant argues the trial court erred in permitting the State to

argue at closing that the jury should believe the complainant’s accusations because others

already had.

       The trial court’s ruling on an objection to improper jury argument is reviewed for an

abuse of discretion. Garcia v. State, 126 S.W.3d 921, 924 (Tex. Crim. App. 2004). Proper areas

of jury argument are: (1) summation of the evidence; (2) reasonable deductions from the

evidence; (3) answers to argument of opposing counsel; and (4) pleas for law enforcement. See

Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). Counsel is generally given wide

latitude in drawing inferences from evidence as long as they are reasonable, fair, legitimate, and

offered in good faith. See Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988). We

review a trial court’s ruling on an objection to improper jury argument for abuse of discretion.

See Garcia, 126 S.W.3d at 924.
                                               –4–
       The State argues the prosecutor’s argument was a proper response to defense counsel’s

argument that G.A. was not credible. But see Gardner v. State, 730 S.W.2d 675, 698 (Tex.

Crim. App. 1987) (it is error to argue jury should believe witness simply because prosecutors and

investigators do).

       However, even assuming without deciding the trial court erred in overruling appellant’s

objections, he cannot show he was harmed. Even if jury argument falls outside permissible

areas, an appellate court will not reverse unless the error is harmful. See Mosley v. State, 983

S.W.2d 249, 259 (Tex. Crim. App. 1998). Improper jury argument is reviewed under rule

44.2(b) of the rules of appellate procedure and must be disregarded unless it affected appellant’s

substantial rights. TEX. R. APP. P. 44.2(b); see Martinez v. State, 17 S.W.3d 677, 692-93 (Tex.

Crim. App. 2000). In determining whether appellant’s substantial rights were affected, we

consider: (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 instructions by the judge); and (3) the certainty of conviction absent the misconduct

(the strength of the evidence supporting the conviction). Mosley, 983 S.W.2d at 259.

       Here, G.A. testified she was “about seven” when appellant began touching her over her

clothes “and then he progressed to touching, going under [her] shirt and under [her] pants.”

When G.A. was eight, appellant began making her put her mouth on his penis. Eventually,

appellant began putting his penis in G.A.’s vagina, and this happened “over fifty times.” This

testimony alone was sufficient to support appellant’s conviction. See TEX. CODE CRIM. PROC.

ANN. art 38.07 (West Supp. 2014). The prosecutor’s statements came after defense counsel had

characterized G.A. as someone who “heard voices” and was therefore not credible. Prior to

either side presenting argument, the trial court gave the jury the following instruction:

       Once the charge is read to you, you will hear arguments from the lawyers. The
       purpose of the argument is to try to guide you to the conclusion that the person
                                                –5–
       giving the argument believes is appropriate under the evidence. But I want to
       remind you that the arguments themselves do not constitute evidence. Evidence
       is what you heard from the witness stand from witnesses who were sworn in and
       questioned, or evidence is whatever was introduced into evidence by way of
       photographs or reports. So again, you will base your verdict on the law that I give
       you and the evidence as it was developed during the trial, and the argument is to
       try to guide you to the conclusion the arguer believes is appropriate.

In its charge to the jury, the trial court once again instructed the jury that they were “the

exclusive judges of the facts proved, of the credibility of the witnesses and the weight to be given

to the testimony . . . .” After examining the record as a whole, we have a fair assurance that the

error did not influence the jury, or had but a slight effect. See Mosley, 983 S.W.2d at 259. We

overrule appellant’s sole issue.

       We affirm the trial court’s judgment.




Do Not Publish
TEX. R. APP. P. 47.2(b)                               /David L. Bridges/
                                                      DAVID L. BRIDGES
131578F.U05                                           JUSTICE




                                                –6–
                                      S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                     JUDGMENT

JOSE MIGUEL GARCIA, Appellant                     On Appeal from the Criminal District Court
                                                  No. 2, Dallas County, Texas
No. 05-13-01578-CR       V.                       Trial Court Cause No. F-12-35086-I.
                                                  Opinion delivered by Justice Bridges.
THE STATE OF TEXAS, Appellee                      Justices Lang-Miers and Myers
                                                  participating.

      Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered May 29, 2015.




                                            –7–
