Opinion issued March 15, 2018




                                   In The

                            Court of Appeals
                                  For The

                        First District of Texas
                          ————————————
                            NO. 01-17-00089-CR
                         ———————————
                    RICARDO GUTIERREZ, Appellant
                                     V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 230th District Court
                          Harris County, Texas
                      Trial Court Case No. 1467247


                        MEMORANDUM OPINION

     Appellant, Ricardo Gutierrez, pleaded guilty to the second-degree felony

offense of indecency with a child by contact without an agreed recommendation
from the State on punishment.1 After the preparation of a presentence investigation

report, the trial court assessed appellant’s punishment at eighteen years’

confinement. In one issue, appellant contends that the State made an improper

argument at the sentencing hearing by referring to appellant’s behavior toward the

complainant as “grooming” when no expert testimony on grooming was entered into

evidence at the hearing.

      We affirm.

                                   Background

      N.E. and appellant were in a relationship for over four years and had a young

daughter together. N.E. also had two older children from a previous relationship,

including the complainant, A.P., who was eight years old at the time of the

underlying events in this case.

      In 2014, A.P.’s biological father contacted N.E. and told her that he had found

pornography on A.P.’s tablet computer. N.E. asked A.P. who showed her that

material and how to put it on her tablet. Appellant was also present during this

conversation. N.E. told A.P., “[Y]ou need to tell me. We’re not going anywhere,”

and she noticed that A.P. was looking at appellant “with this look of disgust.” N.E.

questioned A.P. about why she was looking at appellant in that way, and A.P. stated




1
      See TEX. PENAL CODE ANN. § 21.11(a)(1) (West Supp. 2017).
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that appellant made her watch pornography on his cell phone. N.E. forced appellant

out of the house and immediately called the police.

      During her forensic interview, A.P. disclosed that appellant would force her

to watch pornographic videos on his cell phone and that he would touch her vagina

and force her to touch his penis while they watched the videos. Appellant initially

denied the allegations, suggesting that N.E. had coached A.P. into making false

accusations, but he ultimately pleaded guilty to the offense of indecency with a child

by contact.   The trial court accepted appellant’s guilty plea and ordered the

preparation of a presentence investigation report prior to the sentencing hearing.

      A.P. briefly testified at the sentencing hearing, and N.E. testified concerning

her relationship with appellant, how she learned about appellant’s abuse of A.P., and

the impact his actions had had on her family. Appellant’s eighteen-year-old niece,

P.T., testified that she had been molested by appellant in 2012, when she was

fourteen years old, and that she had disclosed this incident to her mother in 2016

after she heard appellant talking about the charge involving A.P. and asserting that

N.E. “was making [A.P.] say” false accusations against him. A.P., N.E., and P.T.

were the only witnesses who testified on behalf of the State at the sentencing hearing.

Appellant’s mother, Frances Gutierrez, testified on his behalf and requested that

appellant receive community supervision.




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      During argument, defense counsel argued that community supervision was an

appropriate punishment for appellant. The State made the following argument:

      The forced introduction to [A.P.] of pornography by the defendant was
      not—by this defendant was not a harmless act. It was not done without
      forethought. It was not done without intent. Rather [he] very much
      intended to numb his stepdaughter’s mind to the things that he wanted
      to do to her and things that he wanted her to do to him, to arouse and
      gratify his sexual desire.
      It was for the purpose of grooming both—both grooming her for future
      abuse and molestation as well as corrupt and twisted pleasure for the
      present abuse that happened at that time.

Defense counsel did not object to this argument or request any curative measures.

      The trial court assessed appellant’s punishment at eighteen years’

confinement. This appeal followed.

                              Improper Argument

      In his sole issue, appellant contends that the State made an improper argument

at the sentencing hearing because it referenced appellant’s “grooming” of A.P., but

no expert testimony concerning grooming had been introduced into evidence at the

hearing.

A.    Preservation of Error

      Proper closing argument generally falls within one of four categories:

(1) summation of the evidence; (2) reasonable deductions from the evidence;

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

Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). “[E]rror exists when

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facts not supported by the record are interjected in the argument, but such error is

not reversible unless, in light of the record, the argument is extreme or manifestly

improper.” Id. (citing Allridge v. State, 762 S.W.2d 146, 155 (Tex. Crim. App.

1988)).

      The Court of Criminal Appeals has held that a defendant “must pursue to an

adverse ruling his objections” to closing argument. Mathis v. State, 67 S.W.3d 918,

927 (Tex. Crim. App. 2002); Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App.

2007). Even if a prosecutor’s statement during argument cannot be cured by an

instruction to disregard, the defendant is required to “object and request a mistrial”

to preserve error. Mathis, 67 S.W.3d at 927; Cockrell v. State, 933 S.W.2d 73, 89

(Tex. Crim. App. 1996) (“Before a defendant will be permitted to complain on

appeal about an erroneous jury argument or that an instruction to disregard could not

have cured an erroneous jury argument, he will have to show he objected and

pursued his objection to an adverse ruling.”); see also Estrada v. State, 313 S.W.3d

274, 303 (Tex. Crim. App. 2010) (stating that if prosecutor’s argument was so

egregious that no instruction to disregard could have cured harm, defendant should

have moved for mistrial to preserve error). A defendant’s failure to object to an

improper argument and pursue that objection to an adverse ruling thus forfeits the




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defendant’s right to complain about the error on appeal.2 See Mathis, 67 S.W.3d at

927; see also TEX. R. APP. P. 33.1(a) (providing that, to preserve complaint for

appellate review, complaint must be made to trial court by timely request, objection,

or motion that states ground for ruling sought with sufficient specificity to make trial

court aware of complaint); Threadgill v. State, 146 S.W.3d 654, 670 (Tex. Crim.

App. 2004) (holding that because defendant failed to object to jury argument, he

forfeited right to raise issue on appeal).

B.    Analysis

      During closing argument at appellant’s sentencing hearing, the State argued

as follows:

      The forced introduction to [A.P.] of pornography by the defendant was
      not—by this defendant was not a harmless act. It was not done without
      forethought. It was not done without intent. Rather [he] very much
      intended to numb his stepdaughter’s mind to the things that he wanted
      to do to her and things that he wanted her to do to him, to arouse and
      gratify his sexual desire.
      It was for the purpose of grooming both—both grooming her for future
      abuse and molestation as well as corrupt and twisted pleasure for the
      present abuse that happened at that time.




2
      The Court of Criminal Appeals recently reaffirmed this holding in Hernandez v.
      State, — S.W.3d —, No. PD-1389-16, 2018 WL 357612, at *3 (Tex. Crim. App.
      Jan. 10, 2018) (“Even incurably improper jury argument is forfeitable. Because
      defense counsel did not pursue his objection to an adverse ruling, the court of
      appeals should not have entertained his complaint about the prosecutor’s
      argument.”).
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Defense counsel did not object to this argument, nor did he request an instruction to

disregard or move for a mistrial.

      On appeal, appellant argues that the prosecutor “improperly inserted expert

opinion evidence, not otherwise into evidence, before the court during its closing

argument,” pointing out that no expert witness testified concerning grooming at the

sentencing hearing and that the presentence investigation report also contained no

reference to grooming. Appellant acknowledges that defense counsel did not object

to the statement, but he argues that “the misconduct was extremely severe” and

therefore this Court should consider his argument on the merits.

      The Court of Criminal Appeals, however, addressed a similar argument in

Estrada, in which defense counsel did not object to the prosecutor’s allegedly

improper argument at trial but instead argued on appeal that the argument was “so

egregious that no instruction to disregard could possibly [have] cure[d] the harm”

from the statements. See 313 S.W.3d at 303. The Court held that if the argument

was so egregious that the harm stemming from the statements could not be cured by

an instruction to disregard, the defendant should have moved for a mistrial to

preserve the error. Id.

      We hold that because appellant did not object to the allegedly improper

argument and pursue his objection to an adverse ruling, appellant has failed to

preserve his complaint concerning the argument for appellate review. See id.;


                                         7
Threadgill, 146 S.W.3d at 670; Mathis, 67 S.W.3d at 927; Cockrell, 933 S.W.2d at

89.

      We overrule appellant’s sole issue.

                                   Conclusion

      We affirm the judgment of the trial court.




                                               Evelyn V. Keyes
                                               Justice

Panel consists of Justices Keyes, Brown, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




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