Opinion filed July 19, 2012




                                             In The


   Eleventh Court of Appeals
                                           __________

                                      No. 11-10-00184-CR
                                          __________

                     SHOKO LANARDO CROWLEY, Appellant

                                                 V.

                                STATE OF TEXAS, Appellee


                              On Appeal from the 278th District Court

                                      Walker County, Texas

                                   Trial Court Cause No. 24865


                              MEMORANDUM OPINION
       The jury convicted Shoko Lanardo Crowley of stalking. The trial court assessed his
punishment at confinement for a term of eight years. We affirm.
                                         Issues on Appeal
       Appellant does not challenge the sufficiency of the evidence to support his conviction.
Appellant presents two issues for review. In his first issue, appellant contends that the trial court
erred by overruling his objection to the State’s jury argument during the guilt/innocence phase
and by denying his motion for new trial that was based on the allegedly improper jury argument.
In his second issue, appellant contends that the trial court erred by admitting evidence of two
extraneous offenses.
                                       The Charged Offense
       The State charged appellant with the offense of stalking under Section 42.072 of the
Penal Code. See TEX. PENAL CODE ANN. § 42.072 (West Supp. 2011). Section 42.072 provides,
in relevant part, as follows:
           (a) A person commits an offense if the person, on more than one occasion and
       pursuant to the same scheme or course of conduct that is directed specifically at
       another person, knowingly engages in conduct that:

                     (1) the actor knows or reasonably believes the other person
               will regard as threatening:

                        (A) bodily injury or death for the other person; [or]

                         ....

                        (C) that an offense will be committed against the
                       other person’s property;

                    (2) causes the other person . . . to be placed in fear of bodily injury or
               death or fear that an offense will be committed against the other person’s
               property; and

                     (3) would cause a reasonable person to fear:

                         (A) bodily injury or death for himself or herself;
                       [or]

                           ....

                          (C) that an offense will be committed against the
                       person’s property.

Id. § 42.072(a).
       In this case, the indictment identified four specific acts allegedly committed by appellant:
(1) that, on or about September 24, 2008, appellant pushed Tanya Mwangi into a metal rail;
(2) that, on or about September 26, 2008, appellant told Mwangi that he was going to shoot her;
(3) that, on or about September 25, 2008, appellant told Mwangi that he was going to “f--k up


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[her] car”; and (4) that, on or about September 24, 2008, appellant painted Mwangi’s car. The
State presented evidence supporting the first, third, and fourth alleged incidents. The State did
not present any evidence in support of the second alleged incident, and the trial court did not
include the second incident in its charge to the jury.
                                       The Evidence at Trial
       Although appellant does not challenge the sufficiency of the evidence to support his
conviction, we will summarize the evidence to provide context for the issues on appeal.
       In the fall of 2008, Mwangi was a student at Sam Houston State University in Huntsville.
Mwangi testified that, at that time, she lived in an apartment at the Exchange of Huntsville
student apartment complex. One evening in September 2008, Mwangi’s roommate, Lauren
Jackson, introduced Mwangi to appellant at the pool at the apartment complex. Mwangi later
learned that Jackson had given Mwangi’s cell phone number to appellant.
       The following day, appellant sent Mwangi text messages and called her.             Mwangi
testified that the text messages were friendly. Mwangi said that, the next day, she and appellant
talked again. She said that appellant asked her for directions to the Health and Kinesiology
Center (HKC) on the campus of Sam Houston State University. Mwangi said that there were
two gyms in the HKC. After talking with appellant, Mwangi went to the HKC and watched a
basketball game to kill some time before her next class began. Mwangi testified that she saw
appellant at the HKC about thirty minutes after she got there. Mwangi said that appellant told
her he had been calling her but that she had not answered her phone. She testified that, before
she could explain to appellant that there was no cell phone reception in the HKC, “he was in
[her] face” and yelling at her. Mwangi said that some of her friends, including Joseph Sam,
escorted her out the back door of the HKC and that she then went to her class. Sam testified that
appellant followed Mwangi out the back door. Sam said that appellant was really mad and was
yelling at Mwangi. Mwangi testified that appellant’s conduct at the HKC scared her and that she
did not know if appellant was going to hit her.
       Mwangi also testified that appellant texted her after the incident at the HKC. She did not
reply to his text messages. Mwangi said that she called appellant the following day and asked
him to meet her at the pool at the Exchange because she wanted to tell him that she did not want
to be his girlfriend. Mwangi wanted to meet appellant at the pool because it was a public place.
She said that appellant met her at the pool. Mwangi testified that appellant appeared to be

                                                  3
agitated and that he became angry. Mwangi said that she told appellant she did not want to be
his friend and that appellant responded, “[I]f you’re not my friend you’re my enemy.” At that
point, Mwangi turned around and walked toward her apartment. She said that appellant followed
her from the pool area into a stairwell and that, as appellant followed her, he called her “all kinds
of names” and cursed at her. Mwangi testified that appellant pushed her and that she fell onto a
guard rail. Mwangi hurt her side in the incident. She got up, ran to her car, and then drove to the
police station. The record shows that Mwangi reported this incident to the police on
September 24, 2008, at about 10:30 p.m. At the station, Mwangi told an officer what had just
happened and also what had happened at the HKC the day before. Sam and some of his friends
met Mwangi at the police station. Sam testified that Mwangi was upset at the police station.
Mwangi testified that, after she talked with the officer, Sam rode with her back to her apartment
complex. When they arrived at the complex, Mwangi went straight to her apartment. Sam
accompanied her to the apartment and then left.
       Mwangi said that, when she saw her car the following morning, she discovered that it had
been spray-painted with white paint. She reported the spray-painting incident to the police on
September 25, 2008, at about 8:45 a.m. Huntsville Police Officer Mat McDaniel went to
Mwangi’s apartment and took a criminal mischief report from Mwangi. Officer McDaniel took
pictures showing the spray paint on Mwangi’s car.           Mwangi testified that she received a
threatening phone call from appellant after her car was spray-painted. On September 26, 2008,
just after midnight, Mwangi called the police to report that she had received the threatening call.
Sergeant David O’Rear of the Huntsville Police Department went to Mwangi’s apartment to
meet with her. Sergeant O’Rear testified that Mwangi believed that appellant was the person
who had spray-painted her car. Mwangi told Sergeant O’Rear that appellant had called her and
said, “[B]itch, I’m going to f--k up your car again for f-----g with my cousin.” Mwangi told
Sergeant O’Rear that appellant had pushed her against a rail at the apartment complex. Mwangi
showed Sergeant O’Rear injuries on her right side, and he took pictures of her right side.
       Mwangi testified that she started getting phone calls from a private (blocked) number.
She said that she got a “whole bunch of phone calls” from the private number. Mwangi said that
she did not answer the calls. Mwangi testified that appellant’s conduct scared her and her
roommates. Mwangi said that she bought a knife and pepper spray because she thought that
appellant was going to attack her.

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       On September 30, 2008, Mwangi’s car was spray-painted again while she was at work at
Hastings.     At about 9:30 a.m. that morning, Huntsville Police Officer Joe Thornton was
dispatched to Hastings on a report of criminal mischief. After arriving at Hastings, Officer
Thornton spoke with Mwangi. She believed that appellant had spray-painted her car. Officer
Thornton said that he saw metallic gold spray paint on Mwangi’s car. He took pictures of the
car.
       Mwangi said that, on another occasion, her car had been “keyed” while she was at work.
Huntsville Police Officer Kurt Bubela testified that, on October 11, 2008, he was dispatched to
Hastings in reference to a criminal mischief call.      He arrived at Hastings and talked with
Mwangi. Officer Bubela also looked at Mwangi’s car. Officer Bubela testified that he observed
“deep” scratches on the driver’s side of Mwangi’s car and that her car had been “keyed.”
Officer Bubela took pictures of the car. Mwangi believed that appellant had “keyed” her car.
Mwangi testified that, during the time period that was relevant to this case, she did not have
problems with anyone but appellant.
       Huntsville Police Detective Gary Shearer testified that he became involved in the
investigation of this case on September 29, 2008. On that date, Detective Shearer met with
Mwangi. At that time, Mwangi was afraid. Mwangi gave appellant’s phone number to the
police department. Detective Shearer said that he called the number but that the phone went to
voice mail and he did not leave a message. Detective Shearer testified that appellant was the
only person who Mwangi thought was a possible suspect in the case. Detective Shearer said that
the police obtained a warrant for appellant’s arrest and that appellant was arrested on October 1
or 2, 2008.
       The defense called Jackson as a witness. Jackson testified that she met appellant at night
at the swimming pool at the Exchange. She said that appellant had a dog with him. Appellant
told Jackson that he was going to a party later that night, and Jackson told appellant that she
would watch his dog for him when he went to the party. Later, appellant brought his dog to her
apartment, but he did not go to a party. Jackson said that appellant also brought a Play Station
and video games to her apartment. She said that appellant set up the game system in Mwangi’s
room and played video games while Mwangi was in the room. Jackson testified that, the next
morning, Mwangi told her that appellant had spent the night.          Mwangi denied during her
testimony that appellant went into her room, set up a Play Station in her room, or spent the night.

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          Jackson also testified that she believed appellant was crazy. She said that she was afraid
of him.
                                                       Jury Argument
          Appellant argues in his first issue that the trial court erred by overruling his objection to
the prosecutor’s jury argument and by denying his motion for new trial based on the allegedly
improper jury argument. Proper jury argument generally falls within four areas: (1) summation
of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing
counsel; or (4) plea for law enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App.
2008); Esquivel v. State, 180 S.W.3d 689, 692 (Tex. App.—Eastland 2005, no pet.). Counsel is
allowed wide discretion in drawing inferences from the record that are reasonable, fair,
legitimate, and offered in good faith. Shannon v. State, 942 S.W.2d 591, 597 (Tex. Crim. App.
1996). We review a trial court’s denial of a motion for new trial for an abuse of discretion.
Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006); Lewis v. State, 911 S.W.2d 1, 7
(Tex. Crim. App. 1995).
          Appellant complains that the prosecutor engaged in improper jury argument during the
guilt/innocence phase by asking the jurors to place themselves in the shoes of the victim. The
following exchange took place during the complained-of jury argument:
                  [PROSECUTOR]: Imagine if you had a conversation with a guy and you
          were trying to be polite and say I don’t really like you like that. I don’t really
          appreciate it and I don’t really like you like that. And the next thing that happens
          is you find yourself pushed up against --

                  [DEFENSE COUNSEL]: Your Honor, I object to the improper argument.
          She is putting the jury in the shoes of the defendant.1 It’s improper.

                    THE COURT: Overruled.

                  [PROSECUTOR]: Imagine if you find yourself pushed up against a rail
          and the next thing that happens is you report that to the police and you come
          outside the next morning and your car is painted up. And then the next thing that
          happens is your phone rings is [sic] and you answer it and the voice you recognize
          on the other end says I’m going to fix up your car again. And imagine if you go
          outside and your car is painted again or it’s keyed up, scratched all over. Imagine
          the terror. All from a man she had known less than a week. A guy who seemed
          perfectly normal to everybody -- for a minute. That’s what this case is about,
          that’s what we are here about, is what happened to her. And everything you need

          1
           Defense counsel intended to state “shoes of the victim” instead of “shoes of the defendant.”

                                                                6
       to know is right here in this piece of paper. And I’m certain that after you listen
       to argument and the twelve of you go back in that room and you really think about
       this, like twelve reasonable, ordinary people, there is no other conclusion that you
       can come to but that that man is guilty of what he’s accused of doing.

The trial court held a hearing on appellant’s motion for new trial. At the hearing, the trial court
concluded that it should have sustained appellant’s objection to the prosecutor’s jury argument
but that the error was harmless. Therefore, the trial court denied appellant’s motion for new trial.
       In Torres v. State, 92 S.W.3d 911 (Tex. App.—Houston [14th Dist.] 2002, pet ref’d), the
court provided a thorough analysis of cases involving jury arguments in which prosecutors asked
the jurors to place themselves in the shoes of the victim. As explained in Torres, a prosecutor
engages in improper argument in the punishment phase when the prosecutor “[asks] the [jurors]
to place themselves in the shoes of the victim to consider what punishment the victim would
want to impose upon the defendant.” Id. at 922–23. Such arguments are improper because they
request the jury “to assess punishment not on impartial objective notions of justice, but upon
personal passion accelerated by the outrage every human being naturally feels toward one who
has wrongfully caused him pain, embarrassment, grief, or loss.” Id. at 922. For example,
arguments are improper if they invite jurors, in assessing punishment, to consider how they
would feel if their children had been murdered or if their house had been firebombed and they
had seen their children on fire. See Brandley v. State, 691 S.W.2d 699, 712 (Tex. Crim. App.
1985); Boyington v. State, 738 S.W.2d 704, 709 (Tex. App.—Houston [1st Dist.] 1985, no pet.).
These types of arguments are improper because they amount to requests of the jurors to abandon
their objectivity in assessing punishment. Brandley, 691 S.W.2d at 712.
       However, the Torres court concluded that arguments asking the jurors to place
themselves in the shoes of the victim for the purpose of understanding the terror and fear
suffered by the victim are proper if they are based on reasonable deductions from the evidence.
Torres, 92 S.W.3d at 922–24. We agree with the sound reasoning of Torres. Thus, an argument
during the guilt/innocence phase describing a victim’s fear of a defendant is proper. Smith v.
State, 114 S.W.3d 66, 72 (Tex. App.—Eastland 2003, pet. ref’d). Also, an argument asking the
jurors to imagine “what it was like to be that woman” in a sexual assault case is proper if it is a
summation of the evidence or a reasonable deduction from the evidence. Linder v. State, 828
S.W.2d 290, 303 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d). These types of arguments
are proper because they focus on the impact of the defendant’s conduct on the victim and do not

                                                 7
amount to asking the jurors to abandon their objectivity in reaching a verdict. Torres, 92 S.W.3d
at 922–23; Linder, 828 S.W.2d at 303.
       In this case, the prosecutor made the complained-of statements during argument in the
guilt/innocence phase. We have summarized the evidence above. The prosecutor’s argument
requested the jurors to consider the terror experienced by Mwangi. We conclude that the
argument that Mwangi was terrorized by appellant’s conduct was a reasonable deduction from
the evidence. The prosecutor did not request the jurors to abandon their objectivity in reaching a
verdict but, instead, specifically requested the jury to “think about this, like twelve reasonable,
ordinary people.”
       To obtain a stalking conviction, the State had to prove, among other things, that
appellant’s conduct caused Mwangi “to be placed in fear of bodily injury or death or fear that an
offense [would] be committed against [her] property” and that it would cause a reasonable
person “to fear bodily injury or death for himself or herself . . . or that an offense [would] be
committed against the person’s property.”       Section 42.072(a)(2), (3).    The complained-of
statements by the prosecutor related to the “fear” elements of the charged stalking offense:
whether appellant’s conduct placed Mwangi in such fear and would place a reasonable person in
such fear. In essence, the prosecutor asked the jury to make a reasonable deduction from the
evidence that appellant’s conduct placed Mwangi in such fear and would place a reasonable
person in such fear. Because the prosecutor’s argument was a reasonable deduction from the
evidence, we conclude that the argument was proper. Therefore, the trial court did not err by
overruling appellant’s objection to the argument or by denying appellant’s motion for new trial.
Appellant’s first issue is overruled.
                                  Evidence of Extraneous Offenses
       Appellant argues in his second issue that the trial court erred by admitting evidence of the
damage done to Mwangi’s car on September 30, 2008, and October 11, 2008. Over appellant’s
objections, the State presented evidence that Mwangi’s car was spray-painted on September 30,
2008, and that her car was “keyed” on October 11, 2008. These two incidents were not included
in the indictment.
       Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith. TEX. R. EVID. 404(b). However, if
evidence has relevance apart from character conformity, Rule 404(b) permits the admission of

                                                8
the evidence. Id. Even if evidence is admissible under Rule 404(b), the trial court may exclude
the same evidence if it determines that the probative value of such evidence is substantially
outweighed by its unfair prejudice. TEX. R. EVID. 403. Appellant contends that the evidence of
extraneous offenses had no relevance apart from character conformity and that, therefore, it was
inadmissible under Rule 404(b). Alternatively, appellant contends that the trial court should
have excluded the evidence under Rule 403.
       Assuming without deciding that the admission of the extraneous offense evidence was
error, we find any error to be harmless. The erroneous admission of evidence of an extraneous
offense is nonconstitutional error. Johnson v. State, 84 S.W.3d 726, 729 (Tex. App.—Houston
[1st Dist.] 2002, pet. ref’d); Roethel v. State, 80 S.W.3d 276, 281 (Tex. App.—Austin 2002, no
pet.). Accordingly, we must disregard the error unless it affects appellant’s substantial rights.
See TEX. R. APP. P. 44.2(b); Roethel, 80 S.W.3d at 281. A substantial right is affected when the
error had a substantial and injurious effect or influence on the jury’s verdict. Casey v. State, 215
S.W.3d 870, 885 (Tex. Crim. App. 2007); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App,
1997). Substantial rights are not affected by the erroneous admission of evidence if, after
examining the record as a whole, we have fair assurance that the error did not influence the jury,
or had but a slight effect. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).
       Our review of the entire record includes reviewing any testimony or physical evidence
admitted for the jury’s consideration, the nature of the evidence supporting the verdict, the
character of the alleged error, and how the error might be considered in connection with the other
evidence in the case. Id. We may also consider the jury instructions, the State’s theory and any
defensive theories, the emphasis placed on the erroneously admitted evidence, closing
arguments, and voir dire, if applicable. Id. at 355–56.
       The State presented ample evidence of appellant’s guilt. The trial court charged the jury
on three of the acts that the indictment alleged appellant had committed: (1) that, on or about
September 24, 2008, appellant pushed Mwangi into a metal rail; (2) that, on or about
September 24, 2008, appellant painted Mwangi’s car; and (3) that, on or about September 25,
2008, appellant told Mwangi that he was going to “f--k up [her] car.”
       Mwangi and Sam both testified about the incident at the HKC. Mwangi said that
“[appellant] was in [her] face yelling at her” and that her friends escorted her out of the HKC.
Likewise, Sam testified that appellant was really mad and was yelling at Mwangi. Mwangi said

                                                 9
that, the next night, she met appellant by the pool at the apartment complex. She testified that
appellant pushed her and caused her to fall onto a guard rail at the complex.             Mwangi
immediately reported the incident to the police on September 24, 2008. The next morning,
Mwangi discovered that her car had been spray-painted. Mwangi reported the incident to the
police, and an officer took pictures showing the spray paint on Mwangi’s car. Mwangi testified
that she received a threatening call from appellant after her car was spray-painted. She told
Sergeant O’Rear that, during the call, appellant told her that “[he was] going to f--k up [her] car
again for f-----g with [his] cousin.” Mwangi testified that she was not having problems with
anyone but appellant when her car was damaged.
       As the sole judge of the credibility of the witnesses and the weight to be given their
testimony, the jury was free to believe Mwangi’s testimony. Sharp v. State, 707 S.W.2d 611,
614 (Tex. Crim. App. 1986); Hawkins v. State, 283 S.W.3d 429, 433–34 (Tex. App.—Eastland
2009, pet. ref’d).   As demonstrated by its verdict, the jury believed her testimony.          The
extraneous offense evidence related to the spray-painting of Mwangi’s car on September 30,
2008, and the “keying” of her car on October 11, 2008. Like the September 24, 2008 spray-
painting incident, no one witnessed either of these acts. Thus, the State did not present any
eyewitness testimony relating to the extraneous offenses.       Had eyewitness testimony been
available and had a witness testified that he or she saw appellant commit either of the extraneous
offenses, it could be plausibly argued that the extraneous offense evidence influenced the jury in
finding that appellant also spray-painted Mwangi’s car on September 24, 2008, and committed
the other acts alleged in the indictment. Eyewitness testimony relating to either of the extraneous
offenses could have increased the credibility of Mwangi’s testimony. However, in the absence
of such eyewitness testimony, and considering the record in its entirety, we have fair assurance
that any error in admitting the extraneous offense evidence did not have a substantial and
injurious effect or influence on the jury’s verdict. See Casey, 215 S.W.3d at 885. Accordingly,
we hold that any error is harmless and should be disregarded. See Rule 44.2(b). The jurors
simply chose to believe Mwangi’s testimony. Appellant’s second issue is overruled.




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                                       This Court’s Ruling
       The judgment of the trial court is affirmed.




                                                             TERRY McCALL
                                                             JUSTICE


July 19, 2012
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.




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