Opinion filed June 14, 2018




                                      In The

        Eleventh Court of Appeals
                                   __________

                              No. 11-16-00180-CR
                                  __________

                 KENAN RUSSELL SCHAFER, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 142nd District Court
                             Midland County, Texas
                         Trial Court Cause No. CR43535


                      MEMORANDUM OPINION

      Appellant, Kenan Russell Schafer, was charged by indictment with indecent
exposure to a child (count one), criminal solicitation (count two), and indecency with
a child by contact (count three). The jury convicted Appellant of indecent exposure
to a child and indecency with a child by contact. The second count, criminal
solicitation, was not submitted to the jury. The jury assessed punishment at eight
years for the indecent-exposure count and sixteen years for the indecency count. The
trial court sentenced him accordingly.        On appeal, Appellant challenges the
sufficiency of the evidence and argues that his due process rights were violated, that
the evidence was unduly prejudicial, and that the prosecutor’s closing remarks were
improper. Because the evidence was sufficient to support Appellant’s convictions
and because the trial court committed no reversible error, we affirm the trial court’s
judgment.
                                      Brief Facts
      The complainant, L.T., was a ten-year-old girl who lived with her mother,
twin brother, and her stepfather, Appellant, in a mobile home park. Her older brother
lived with them intermittently.      Sometime in the spring or summer of 2012,
Appellant began to tickle L.T. on her abdomen. The tickling moved to her “breast
area.” On five to seven occasions, L.T. would see Appellant at her bedroom window
while she was changing clothes. Once, while L.T. was sitting on the couch watching
television, Appellant unzipped his shorts, held a spoonful of ice cream near the tip
of his exposed penis, and told L.T. to “come get it.”
                              Elements of the Offenses
      To prove the allegations in count one of the indictment, indecent exposure,
the State was required to prove (1) with the intent to arouse and gratify his sexual
desires, (2) Appellant exposed a part of his genitals to, (3) L.T., a child younger than
seventeen years of age, (4) knowing that she was present.
      To prove the allegations in count three of the indictment, indecency with a
child by contact, the State was required to prove (1) with the intent to arouse and
gratify his sexual desires, (2) Appellant touched the breast of, (3) L.T., a child
younger than seventeen years of age.
                             Sufficiency of the Evidence
      In a single, multifarious point, Appellant challenges both the legal and factual
sufficiency of the evidence of Appellant’s guilt regarding both indecent exposure to
a child and indecency with a child by contact. We shall, nevertheless, address his
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arguments in the interest of justice. We have not engaged in a separate factual
sufficiency review since 2010 when the Court of Criminal Appeals instructed us in
Brooks v. State as follows:
       Jackson v. Virginia legal-sufficiency standard is the only standard that
       a reviewing court should apply in determining whether the evidence is
       sufficient to support each element of a criminal offense that the State is
       required to prove beyond a reasonable doubt.1

Consequently, we do not consider Appellant’s factual sufficiency complaint.
       As we understand his remaining complaints, Appellant appears to argue that
L.T. is not worthy of belief and that she testified only that Appellant touched her
breast area, while the indictment alleged touching of the breast. He also argues that
the evidence regarding indecent exposure is insufficient to support conviction
because L.T.’s testimony differs from her mother’s; her mother said Appellant
exposed his penis so that L.T. could lick ice cream off it, while L.T. testified only
that Appellant exposed himself. As this court has previously explained:
       It is now settled that we review the sufficiency of the evidence under
       the currently applicable legal sufficiency standard of review. Whether
       it is denominated as a legal or factual challenge, we review the
       challenge under the standard set forth in Jackson v. Virginia, 443 U.S.
       307, 319 (1979).

               The standard of review for an appellate court in evaluating the
       legal sufficiency of the evidence is to determine whether any rational
       finder of fact could have found the existence of the elements of the
       offense beyond a reasonable doubt after viewing all of the evidence in
       a light most favorable to the verdict. The appellate court’s duty is not
       to sit as a thirteenth juror reweighing the evidence or deciding whether
       it believes the evidence established the elements in question beyond a
       reasonable doubt.2
       1
        Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010).
       2
         Ridings v. State, 357 S.W.3d 855, 860–61 (Tex. App.—Eastland 2012, pet. ref’d) (citations
omitted).


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           Sufficiency of the Evidence of Indecency with a Child by Contact
       Courtney, L.T.’s mother, specifically testified her daughter had told her that,
when Appellant would tickle her, his hand “would actually stay right there on her
breasts.” She testified that L.T.’s outcry included reporting that Appellant touched
her breasts. L.T. testified that Appellant’s touching did not make her uncomfortable
until “it got to the touching on the breasts and stuff like that.” Indeed, during his
objection to lack of notice, Appellant’s trial counsel conceded that L.T. “testified
about touching her breasts on more than one occasion.”
       Before the jury, the prosecutor asked L.T. how it made her feel when
Appellant touched her “on the breast.” L.T. responded that it made her feel
uncomfortable. She also testified before the jury that she had told her mother “about
it” and that Appellant had “messed with” her breast under her shirt.
                    Sufficiency of the Evidence of Indecent Exposure
       L.T. testified that Appellant exposed the pink tip of his private part to her
when he put a spoon with ice cream near it. She testified that the proper name for
his private part was penis. A jury may accept or reject any or all of the testimony of
any witness.3 Any credibility issues arising from a difference between L.T.’s
description of the event and her mother’s description must be resolved by the jury.
The appellate court’s application of the Jackson standard of review “gives full play
to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts.”4



       3
        Limuel v. State, 568 S.W.2d 309, 311 (Tex. Crim. App. 1978).
       4
        Klein v. State, 273 S.W.3d 297, 302 (Tex. Crim. App. 2008) (citing Jackson, 443 U.S. at 319).


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                      Holding Regarding Sufficiency of the Evidence
       Applying the appropriate standard of review, we hold the evidence is
sufficient to support the jury’s verdict as to counts one and three of the indictment.
We overrule Appellant’s first point on appeal.
                                           Due Process
       Appellant argues in his second point on appeal, erroneously designated as his
third point, that because Appellant was convicted on the basis of insufficient
evidence, he was denied due process. This court’s analysis of Appellant’s first point
disposes of his second point as well. The evidence is sufficient to support the jury’s
verdict. Consequently, Appellant was not denied due process as he argues in his
second point. We overrule Appellant’s second point on appeal.
                                Evidence of Extraneous Events
       In his third point, Appellant argues that the trial court reversibly erred in
admitting evidence that Appellant had smelled L.T.’s panties and had made lewd
statements.
       Courtney testified that, while they were doing laundry and in response to her
confusion over which part of the clothes had already been laundered, Appellant had
smelled L.T.’s panties to determine whether they were clean or dirty. Shae Stephens,
a friend of Appellant’s, testified that Appellant saw a young woman who was not
“of age” and said “he would tear that ass up if he had the chance.”
       We review a trial court’s admission or exclusion of evidence for an abuse of
discretion.5 We, therefore, do not reverse the exercise of that discretion if it is within
the zone of reasonable disagreement.6 A trial court does not abuse its discretion


       5
         See Bosquez v. State, 446 S.W.3d 581, 585 (Tex. App.—Fort Worth 2014, pet. ref’d); Sanders v.
State, 422 S.W.3d 809, 812 (Tex. App.—Fort Worth 2014, pet. ref’d).
       6
        Bosquez, 446 S.W.3d at 585.


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unless its ruling is arbitrary and unreasonable. The mere fact that a trial court may
decide a matter within its discretionary authority in a different manner than an
appellate court would, in a similar circumstance, does not demonstrate that an abuse
of discretion has occurred.7
      The trial court admitted the complained of testimony under Article 38.37 of
the Code of Criminal Procedure. The trial court admitted the testimony concerning
the panties, finding that the testimony was admissible under Article 38.37,
Section (1)(b) of the Code of Criminal Procedure, which provides, in the trial of a
defendant for indecency with a child, as follows:
            Notwithstanding Rules 404 and 405, Texas Rules of Evidence,
      evidence of other crimes, wrongs, or acts committed by the defendant
      against the child who is the victim of the alleged offense shall be
      admitted for its bearing on relevant matters, including:
              (1) the state of mind of the defendant and the child; and
            (2) the previous and subsequent relationship between the
      defendant and the child.8
      The trial court found that the probative value of the evidence was not
outweighed by the danger of unfair prejudice. The trial court found Shae Stephens’s
testimony admissible under Article 38.37 and overruled Appellant’s objections
under Rules 403, 404 and 608.
      Both sides agree that neither act violated any law. On appeal, Appellant
argues that the trial court erred in admitting the complained-of testimony because it
related to acts that were not criminal, were not proved beyond a reasonable doubt,
and were in no way similar to the offenses alleged in the indictment.
      The State argues that, because the State was required to prove Appellant
committed the acts of indecency with intent to arouse and gratify his sexual desire,

      7
       Foster v. State, 180 S.W.3d 248, 250 (Tex. App.—Fort Worth 2005, pet. ref’d).
      8
       TEX. CODE CRIM. PROC. ANN. art. 38.37, § 1(b) (West 2018).

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the evidence was admissible under Article 38.37 of the Code of Criminal Procedure
to show Appellant’s state of mind.9 They argue that evidence showing Appellant’s
treating an intimate article of clothing of L.T. in a sexual manner bears on
Appellant’s state of mind, regarding L.T., citing Greene v. State.10 Appellant’s
statement to Stephens regarding his sexual attraction to a very young woman also
bears on his state of mind. But, as this court has previously explained:
       Statements concerning a defendant’s thoughts of wrongdoing are
       merely inchoate thoughts. To implicate Rule 404(b), there must be
       actual conduct that alone or in combination with these thoughts could
       constitute a bad act, wrong, or crime.11

       Considering the record as a whole and the argument of counsel, and applying
the appropriate standard of review, we hold that the trial court properly admitted the
evidence of Appellant’s smelling L.T.’s panties and his statement to Shae Stephens.
We overrule Appellant’s third point on appeal.
                                          Jury Argument
       In his fourth point, Appellant argues that the trial court should have granted a
mistrial based upon the prosecutor’s improper jury argument:
       [D]ue to blatant disregard of the law and a calculated effort to
       deliberately go beyond proper summation. Such inflamed the jury,
       incited them to reach a “guilty” verdict, and encouraged them to convict
       defendant/appellant.
              Because the prosecutor went FAR beyond the bounds of proper
       summation flagrantly defying both the trial Court’s ORDER and the
       rule of law recognized by every appellate court in this state, including
       the Court of Criminal Appeals, the case should be reversed.

       9
        Id. art. 38.37, § 1(b)(1).
       10
          Greene v. State, 287 S.W.3d 277, 285 (Tex. App.—Eastland 2009, pet. ref’d) (evidence of
defendant’s feelings about complainant and what he wanted to do to her were relevant to show defendant’s
state of mind and relationship between defendant and complainant).
       11
           Id. (citations omitted).


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        The law is well established that “[a] prosecutor’s improper jury argument
cannot be ‘error.’ Only the trial court can commit an ‘error.’”12 Additionally, as
this court has repeatedly explained, in order to preserve a complaint for appellate
review, the record must show that Appellant made a specific and timely complaint
to the trial court and that the trial court ruled on it.13 The objecting party must state
the grounds to support the requested ruling “with sufficient specificity to make the
trial court aware of the complaint, unless the specific grounds are apparent from the
context.”14 While Appellant has referred us generally to what he considers improper
argument by the State, he does not set out his complaint or direct us to a portion of
the record in which he made the trial court specifically aware of his complaint,
requested appropriate relief from the trial court, and was denied that relief. We are
not required to search through the record to do his job for him. Nevertheless, we
have searched the record in the interest of justice to locate any properly preserved
objection, request for instruction, and motion for mistrial regarding the State’s final
argument. While Appellant complains generally of arguments outside the record
and arguments expressing the prosecutor’s personal opinion, Appellant preserved no
reversible-error complaint for appellate review. Based on the record before us, we
overrule Appellant’s fourth point on appeal.




        12
            Faulkner v. State, 940 S.W.2d 308, 314 (Tex. App.—Fort Worth 1997, pet. ref’d) (citations
omitted).
        13
         Daniel v. State, No. 11-15-00059-CR, 2017 WL 3540224, at *7 (Tex. App.—Eastland Aug. 10,
2017, no pet.) (citing TEX. R. APP. P. 33.1; Layton v. State, 280 S.W.3d 235, 238–39 (Tex. Crim. App.
2009)).
        14
         TEX. R. APP. P. 33.1(a)(1)(A); Daniel, 2017 WL 3540224, at *7; see Resendez v. State, 306
S.W.3d 308, 314 (Tex. Crim. App. 2009) (“Only when there are clear contextual clues indicating that the
party was, in fact, making a particular argument will that argument be preserved.”).


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                                      Holding in the Case
       Having overruled Appellant’s four points on appeal, we affirm the judgment
of the trial court.




                                                      LEE ANN DAUPHINOT
                                                      SENIOR JUSTICE

June 14, 2018
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Willson, J.,
Bailey, J., and Dauphinot, S.J.15




       15
         Lee Ann Dauphinot, Senior Justice (Retired), Court of Appeals, 2nd District of Texas at Fort
Worth, sitting by assignment.

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