      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-13-00202-CR



                                   Steven DeLeon, Appellant

                                                v.

                                  The State of Texas, Appellee


  FROM THE DISTRICT COURT OF CALDWELL COUNTY, 421ST JUDICIAL DISTRICT
       NO. 2012-166, HONORABLE TODD A. BLOMERTH, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury found appellant Steven DeLeon guilty of continuous sexual abuse of a young

child and assessed punishment at thirty-two years in prison. DeLeon contends that insufficient

evidence supports the judgment and that the trial court abused its discretion and violated the

constitution by refusing to allow him to make a defense and fully confront witnesses against him.

He also contends that the trial court abused its discretion by denying his motion for mistrial when

the prosecutor commented on his exercise of his right to remain silent and by imposing a sentence

without the possibility of parole. We will affirm the judgment.


                                        BACKGROUND

               DeLeon taught physical education at the elementary school M.G. attended. He met

M.G. and her mother, D.A., in January 2010 when M.G. started playing on the school’s fourth-grade

basketball team. M.G. played basketball through the summer of 2011, and DeLeon spent time with

D.A.’s family. The adults went on one date and never became romantically linked, though there was
testimony that D.A. wanted more than a friendship. DeLeon testified that he helped D.A. with her

finances, helped her start a checking account, and counseled her about her relationship with her

son, D.G., who DeLeon also taught. DeLeon attended a parent-teacher conference regarding D.G.

in place of D.A., helped M.G. with homework, and stayed with the children, sometimes overnight.

The children stayed with DeLeon and his brother overnight once. M.G. testified that it was during

such stays that DeLeon assaulted her in the summer of 2011.

               M.G. first reported an assault in May 2012 after her mother found a recording of a

March 19, 2012 telephone conversation between M.G. and DeLeon. The conversation began with

a discussion of M.G.’s grandfather’s surgery, but veered into sex-related topics. DeLeon deemed

the shift in topics inappropriate and said that M.G. was responsible for the shift, but he admitted

that he participated in the inappropriate discussions. In a discussion prompted by M.G.’s query of

why DeLeon seemed uncomfortable whenever female body parts were discussed, DeLeon said, “It’s

kind of like with you like I remember like I would tell you: Well, am I hurting you? Or you know

is everything okay? I just want to make sure that you’re like comfortable.” DeLeon testified that

this statement referred to a basketball practice during which he had unknowingly hurt M.G. by

inadvertently touching her breast and she had been embarrassed to explain her pain in front of

the other players. The conversation also spanned other topics ranging from the inappropriateness

of physical violence in a relationship to M.G. getting whistled at in a store to the size of DeLeon’s

girlfriend’s vagina. D.A. made a copy of the recording and took it to school officials, leading to the

police investigation and this prosecution.

               M.G. testified at trial that DeLeon assaulted her four times during the summer of

2011—three times at her home and once at his. She testified that one time he lay on top of her with


                                                  2
his clothes on. M.G. said that another time he touched the outside of her private parts with his

finger. She testified that DeLeon asked if she was okay or if he was hurting her. She said that, after

this incident, she requested a different babysitter, but her mother still chose DeLeon. She testified

that when she and her brother stayed overnight at DeLeon’s house, DeLeon touched her private parts

while her brother slept next to them. In the final incident, she testified that she and DeLeon were

in her mother’s room talking when DeLeon pulled his pants down and told her to touch his penis.

She said that she touched it briefly and that he then grabbed her hand, put it onto his penis, and

moved their hands up and down on his penis while he grunted. She testified that, after five minutes,

something gooey came out of his penis.

                M.G. conceded at trial that she had related different versions of these assaults at

different times to different audiences. M.G. told her mother that DeLeon assaulted her once, told

a child advocate about three instances, and testified about four instances. At trial, she recanted her

allegation to the child advocate that DeLeon had touched the inside of her vagina. She testified that

the touching hurt but had told the child advocate that it had not hurt. At trial, she rejected her report

that one of the incidents occurred during the day, insisting that it occurred at night. M.G. told a

child advocate that the phone recorded the March 19 phone conversation without her knowledge,

but she recanted that assertion at trial and explained the steps needed to make a recording. M.G.

acknowledged at trial that she was sometimes perceived as “overly dramatic.”

                DeLeon argued that the allegations of assault were unfounded. He denied that he

touched M.G.’s sexual organ and that she touched his. He denied being unclothed around the

children and denied sleeping in a bed with them. DeLeon testified that his relationship with D.A.

and her family changed in the fall of 2011 when she began dating a man whom DeLeon described


                                                   3
as extremely jealous. D.A. changed M.G.’s phone number—M.G. linked the change to D.A.’s new

boyfriend, but D.A. testified it was because DeLeon yelled at M.G. on the phone after she did not

invite him to her holiday band concert in December 2011. M.G. testified that she surreptitiously

stored his number in her new phone under the name “William.” DeLeon testified that he decided

not to communicate with the family beginning in December 2011. In February 2012, D.A. contacted

him after he sent a flyer to students at his school (including D.G.) regarding an event in Austin.

DeLeon testified that D.A. called to tell him that M.G. (who was now attending a different school

for sixth graders) wanted to attend.

               DeLeon testified that D.A. used inappropriate language around the children when

talking about topics including her ex-husbands and ex-boyfriends. He testified that M.G. picked up

the language from her mother. He acknowledged that he fell into similar patterns when around the

family, including during the recorded March 19 telephone conversation.

               DeLeon’s brother, who has lived with DeLeon for almost fifteen years, testified that

he never heard DeLeon express a sexual interest in children. DeLeon’s brother testified that they

watched television together the night that M.G. said DeLeon assaulted her at the brothers’ home.

He testified that DeLeon slept on the couch that night. DeLeon’s brother also testified that the home

is 1,300 square feet, that the bedroom doors had been removed during a remodel, and that the interior

of the bedrooms was visible from the living room.

               A student, a parent of a student, and two fellow teachers testified about DeLeon. The

student testified that she liked him, found him truthful, and never had any problems with him. The

parent testified that she and her daughter loved DeLeon and that he loved the kids, was truthful, and

was a mentor. One fellow teacher described him as truthful, while another testified that she did not


                                                 4
like him because he was not prompt. She testified that she told DeLeon she thought he acted too

familiar with all the girls on the team and that he should not be alone with any of the girls because

it looked inappropriate, but said that she did not see him pay any extra attention to M.G. The teacher

testified that she found M.G. to be truthful.

               At the punishment phase, DeLeon’s friends, colleagues, and family testified in

support of DeLeon. They described him as a good teacher and a good person who was supportive

and appropriate with children. A psychologist evaluated DeLeon and testified that the test results

showed no sexual deviancy, that he is quite conservative in his sexual practices, that he showed no

sexual interest in children, and that he scored very low on a scale of potential recidivism.


                                           DISCUSSION

               DeLeon raises four issues on appeal. He contends that the court improperly limited

his ability to confront witnesses and put on a defense. He argues that the evidence is insufficient to

prove all of the required elements. He contends that the trial court erred by denying his motion for

mistrial based on the prosecution’s comment on his failure to testify. DeLeon also asserts that the

sentence was unconstitutional because it is disproportionate and cruel and unusual.


DeLeon was not harmed by any error in the exclusion of evidence.

               DeLeon contends that the trial court abused its discretion and violated his right to

confront witnesses when it prevented him from cross-examining D.A. about problems she had with

Child Protective Services, in particular D.A.’s report to DeLeon that she had abused her son.

DeLeon also contends that the trial court improperly refused to allow him to question D.A. regarding

her anger after he ignored her romantic advances toward him. He contends that this evidence


                                                  5
would have shown that D.A.’s report of his alleged abuse was a tactic to divert attention from her

abuse of her children.

               The Constitution guarantees defendants a meaningful opportunity to present a

complete defense. Crane v. Kentucky, 476 U.S. 683, 690 (1986); see also U.S. Const. amends. VI

(compulsory process and confrontation of witnesses) & XIV (due process). There is, however, no

absolute constitutional right to present favorable evidence. Potier v. State, 68 S.W.3d 657, 659

(Tex. Crim. App. 2002) (citing United States v. Scheffer, 523 U.S. 303, 316 (1998)). The right to

present relevant evidence is subject to reasonable restrictions through evidentiary rules that are

not arbitrary or disproportionate to the rule’s purpose. Id.; see also Davis v. State, 313 S.W.3d 317,

329 n.26 (Tex. Crim. App. 2010). The improper exclusion of evidence may establish a constitutional

violation (1) when a state evidentiary rule categorically and arbitrarily prohibits the defendant

from offering relevant evidence that is vital to his defense; or (2) when a trial court precludes the

defendant from presenting a defense by erroneously excluding relevant evidence that is a vital

portion of the case. Ray v. State, 178 S.W.3d 833, 835 (Tex. Crim. App. 2005). The exclusion of

evidence is unconstitutional only where it infringes on a weighty interest of the accused. Potier,

68 S.W.3d at 660 (citing Scheffer, 523 U.S. at 308). Erroneous evidentiary rulings rarely rise to the

level of denying the fundamental constitutional rights to present a meaningful defense. Id. at 663.

               The courts’ exercise of discretion is guided by competing interests. Courts should

permit great latitude for the accused to show any fact that would tend to establish ill-feeling, bias,

motive and animus upon the part of any witness testifying against him. Koehler v. State, 679 S.W.2d

6, 9 (Tex. Crim. App. 1984). On the other hand, the trial judge retains wide latitude to impose

reasonable limits on cross-examination to show bias based on concerns about, among other things,


                                                  6
harassment, prejudice, confusion of the issues, the witness’s safety, or interrogation that is repetitive

or only marginally relevant. Irby v. State, 327 S.W.3d 138, 145 (Tex. Crim. App. 2010).

                The parties at trial entered an agreed order in limine concerning the mention of prior

contact between any of the witnesses and Child Protective Services. During his cross-examination

of D.A., DeLeon notified the court that he intended to ask questions regarding CPS involvement with

D.A.’s family, which prompted the following exchange:


        [Defense counsel]: . . . . There is direct relations to this discipline going on that ties
        to a very important defensive theory that this discipline made the child scared of her
        mother.

        THE COURT: You haven’t shown anything yet, Counsel, so I am not going to let
        anything like that in, unless you show something that has some bearing on the case.

        [Defense counsel]: Well, then—okay, a later time then. Okay. So that’s fine.


During DeLeon’s testimony, the State objected when he mentioned that the children had been

“returned from CPS custody,” and the court cautioned the witness not to blurt out CPS references.

Later, DeLeon agreed with a question that after a conversation with D.A. he felt compelled to do

something—specifically, “as an educator, it was my obligation to contact CPS to let them know—”

at which time the State again objected and invoked the motion in limine. The following exchange

occurred during a bench conference:


        [Defense counsel]: This is different, Judge. This goes to her motive in filing the
        case. This is not talking about something that happened in the past. This is talking
        about directly what her motive would be when this case was started.

        [Prosecutor]: So wouldn’t the appropriate person to be—have gone into that been
        with her?

        [Defense counsel]: This is my case. You can recall her.

                                                    7
        [Prosecutor]: This witness can’t testify about her motive.

        [Defense counsel]: He can testify about what happened, not her motive. I can argue
        it, based on the evidence.

        THE COURT: I’m sustaining the objection at this time. You can call the appropriate
        person to do it.


DeLeon did not recall D.A. for further interrogation, but after the close of evidence, his attorney

made the following offer of proof:


        We attempted to ask questions before the jury concerning whether [D.A.] had
        informed my client, Steven DeLeon, of child abuse that she had inflicted upon her
        son, [D.G.]. And that would have given her a direct motive to go into the place with
        a recording [of the phone conversation between M.G. and DeLeon]. It happened
        shortly before the recording was—excuse me—shortly before the recording was
        discovered. And that would have prompted her to go to the authorities with that and
        given her motive. And we were not allowed to ask those questions.


                It is not entirely clear that DeLeon preserved this issue for appellate review. To

preserve error in the admission of evidence, a party generally must make a complaint to the

trial court with sufficient specificity that the trial court is aware of the complaint, and the court must

rule on the request. Tex. R. App. P. 33.1(a). In order for a defendant to perfect a complaint that he

was not allowed to inquire regarding a witness or party’s bias, he must establish what subject matter

he desired to examine the witness about during the cross-examination. Koehler, 679 S.W.2d at 9.

DeLeon has not shown that he was totally forbidden from making the inquiries. The trial court

stopped him from asking D.A. about CPS until he “show[ed] something that has some bearing on

the case.” When the State objected to defense counsel’s attempt to ask DeLeon about D.A.’s motive

for contacting law enforcement, the trial court sustained the objection “at this time,” adding this



                                                    8
directive to counsel: “You can call the appropriate person to do it.” DeLeon did not recall D.A. or

any other witness on the subject.

               Even if DeLeon’s offer of proof is sufficient to preserve the issue regarding CPS’s

investigation into a report of abuse, DeLeon has not demonstrated that the trial court erred. There

is no showing that evidence relating to D.A.’s abuse of D.G. had any relevance on any element of

whether DeLeon sexually assaulted M.G. It can therefore be excluded absent some other theory of

admissibility. See Tex. R. Evid. 402. Whether D.A. abused her son is not admissible impeachment

evidence about her character for truthfulness and is not evidence of conviction for a crime. See

Tex. R. Evid. 608(a), 609. It is a specific instance of conduct which “may not be inquired into

on cross-examination of the witness nor proved by extrinsic evidence.” See id. 608(b). Also, the

relevance to bias or motivation for D.A. reporting the recording of the phone conversation between

M.G. and DeLeon is not plainly apparent. If, as DeLeon argues, D.A. wanted to distract CPS from

the report that she abused her son, it is not clear that she would serve that purpose by reporting that

her daughter was sexually abused by a man D.A. repeatedly selected as a babysitter despite her

daughter’s request that she not do so. Further, because there is no challenge to the validity of the

recorded phone conversation, D.A.’s motive or bias in supplying it to law enforcement is at best

marginally relevant to the contested issues in this case. See Irby, 327 S.W.3d at 145 (trial court can

limit marginally relevant interrogation). The content of the conversation matters much more. On

the record presented, the trial court did not err by excluding evidence of D.A.’s involvement with

CPS and did not prevent DeLeon from presenting a defense.

               Harm from any wrongful exclusion of this evidence is also not apparent. The

recording was not made in retaliation for D.A.’s admission of abuse. The conversation occurred on


                                                  9
March 19, 2012, and D.A. made the abuse admission to DeLeon “shortly before” she discovered the

recording on M.G.’s phone on May 20, 2012. DeLeon does not dispute that he made the recorded

statement, and although M.G. may have introduced the topic of DeLeon’s discomfort with discussion

of female body parts, he initiated the discussion of unspecified events with M.G. when he wanted

to ensure that she was comfortable and that he was not hurting her. The trial court’s failure to allow

DeLeon to delve into D.A.’s potential motivations for disclosing this recording to law enforcement

did not affect the jury’s consideration of the substance of the phone call.

               Further diminishing any harm, DeLeon was able to challenge D.A.’s and M.G.’s

credibility in other ways. DeLeon testified and flatly denied that the assaults occurred. He presented

evidence that D.A. was biased against him because she was angered by his rejection of her romantic

overtures. He queried M.G. who said that D.A. had a “crush” on DeLeon and that he did not like

her mother in that way. DeLeon’s brother testified that D.A. was obsessed with DeLeon and that his

brother did not return her affection. He testified that D.A. would show up at the brothers’ house

unannounced while they were out and would wash their dishes and feed their dog. DeLeon himself

testified that D.A. wanted to marry him but that, while he was interested in helping her children, he

was not interested in marriage with her. All this testimony called into question D.A.’s credibility

because she testified that she and DeLeon went on a date but decided that they were better off as

friends. Further, although D.A. asserted that she did not telephone DeLeon, he confronted her with

records showing that 570 calls went from her phone to his. He confronted M.G. about the different

stories of abuse she told to different questioners. He highlighted the fact that she reported one, then

three, then four incidents, and noted inconsistencies between versions as to whether the contact hurt,

where her brother was during an incident, and whether the assault occurred during the day or night.


                                                  10
Further, DeLeon’s brother contradicted details of M.G.’s story about the assault at the brothers’

house. The trial court’s failure to allow him to obtain the testimony he wanted about D.A.’s alleged

abuse of her son did not prevent him from confronting witnesses and challenging their credibility.

We conclude beyond a reasonable doubt that any erroneous exclusion of evidence discussed above

did not contribute to DeLeon’s conviction or punishment. See Tex. R. App. P. 44.2(a).


The evidence is sufficient to support the conviction.

                In reviewing the sufficiency of the evidence to support a conviction, we determine

whether a rational trier of fact could have found that the essential elements of the crime were proven

beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). In

making this determination, we consider all evidence that the trier of fact was permitted to consider,

regardless of whether it was rightly or wrongly admitted. Clayton v. State, 235 S.W.3d 772, 778

(Tex. Crim. App. 2007); Allen v. State, 249 S.W.3d 680, 688-89 (Tex. App.—Austin 2008, no pet.).

We view this evidence in the light most favorable to the verdict. Clayton, 235 S.W.3d at 778. The

jury, as the trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given

to their testimony. Id. Therefore, we presume that the jury resolved any conflicting inferences and

issues of credibility in favor of the judgment. Id.

                A person commits continuous sexual abuse of a child if, while the person is 17 years

of age or older and the victim is a child younger than fourteen years, the person commits two or more

acts of sexual abuse during a period that is 30 or more days in duration. Tex. Penal Code § 21.02(b).

Acts of sexual abuse include indecency with a child if the person committed the offense in a

manner other than by touching the child’s breast, id. § 21.11(a)(1), sexual assault, id. § 22.011, and

aggravated sexual assault, id. § 22.011.

                                                    11
                M.G.’s testimony is sufficient to support the conviction. It is undisputed that DeLeon

and M.G. were, respectively, thirty-nine and twelve years old during the summer of 2011. M.G.

testified that around June 3, 2011, DeLeon touched her vagina. She testified that they were lying on

the floor, he asked her to remove her shorts, and he moved his fingers on her vagina. She testified

that, after he touched her for about five minutes, he kissed her neck really hard and left a mark. She

said he asked if she was okay or if he was hurting her. This testimony supports a finding that

DeLeon committed indecency with a child by contact. See id. § 21.11(a)(1). M.G. testified that,

about a month later—longer than thirty days, she said—when she and her brother were staying

overnight at DeLeon’s house, DeLeon touched her vagina. She testified that, while they were lying

on his bed, he asked her to remove her shorts and underwear, and he moved his finger around and

inside her vagina for about five minutes. He again asked her if he was hurting her. This testimony

supports a finding of indecency with a child by contact, sexual assault of a child, and aggravated

sexual assault of a child. See id. §§ 21.11(a)(1), 22.011(a)(2), 22.021(a)(1)(B)(i). M.G. testified that

about three weeks later when she and DeLeon were talking in her mom’s bedroom, DeLeon pulled

down his pajama pants and told M.G. to touch his penis. She did quickly, but he grabbed her hand,

put his hand over hers, and moved their hands together up and down his penis for about five minutes.

She said he made grunting noises, then something clear and gooey came out of the top of his

penis. This testimony is sufficient to support a finding of indecency with a child by contact. See id.

§ 21.11(a)(1). The child testified that the second incident occurred more than thirty days after the

first, and that the third incident occurred about three weeks after the second. Even if the testimony

that the second incident occurred “about a month” after the first were insufficient to show the

requisite period, the third incident occurred about a month and three weeks after the first—a


                                                  12
combination sufficient to support a finding of two incidents of sexual abuse of a child occurring over

a period of at least thirty days. See id. § 21.02(b)(1).

               DeLeon challenges M.G.’s credibility, pointing to inconsistencies in her statements

at various times and to contrary testimony by others. He notes her failure to make an outcry before

her mother confronted her with the recorded telephone conversation with DeLeon. He points out

that she reported one incident, then three, then four, and that her reports varied with regard to

how he touched her, whether his touch hurt, what time the offenses occurred, and where her brother

was during these events. He notes that she admitted liking to use sexual language, initiating the

sexual theme into the telephone conversation, and being overly dramatic. DeLeon also points to his

brother’s testimony that DeLeon did not share a bed with her when she stayed at their home and

that the bedrooms at that house have no doors. The jury, however, could have either rejected that

testimony or found that the offense simply occurred in a short period during which DeLeon’s brother

was not monitoring him. The jury was faced with a credibility choice and selected M.G. The record

is not such that we can intrude on the jury’s role and override its choice to credit M.G.’s testimony.

See Clayton, 235 S.W.3d at 778; Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). We

find the evidence sufficient to support the conviction.


The court did not abuse its discretion by denying DeLeon’s motion for mistrial during the
State’s argument at the punishment phase.

               Permissible jury argument includes summation of the evidence, reasonable

deduction from the evidence, answer to argument of opposing counsel, and plea for law enforcement.

Allridge v. State, 762 S.W.2d 146, 155 (Tex. Crim. App. 1988). Commenting on an accused’s

failure to testify violates his state and federal constitutional privileges against self-incrimination.


                                                  13
Archie v. State, 340 S.W.3d 734, 738 (Tex. Crim. App. 2011). A defendant’s Fifth Amendment

privilege against self-incrimination continues during the punishment phase of trial. See Mitchell

v. United States, 526 U.S. 314, 325-27 (1999); Carroll v. State, 42 S.W.3d 129, 131-32 (Tex. Crim.

App. 2001).

               We can reverse a trial court’s denial of a motion for mistrial only for an abuse

of discretion. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). To determine whether

the court’s instruction cured the prejudicial effect of the improper comment, we balance

three factors: (1) the severity of the misconduct’s prejudicial effect, (2) any curative measures,

and (3) the likelihood of the same punishment being assessed absent the misconduct. Hawkins

v. State, 135 S.W.3d 72, 75 (Tex. Crim. App. 2004). Mistrial is the appropriate remedy when the

objectionable events are so emotionally inflammatory that curative instructions are not likely to

prevent the jury from being unfairly prejudiced against the defendant. Archie, 340 S.W.3d at 739.

Only in extreme circumstances where the prejudice is incurable will a mistrial be required. Hawkins,

135 S.W.3d at 77. Where a comment leads to two plausible inferences—one of which is

permissible—we do not presume that the jury would necessarily choose the improper inference. See

Henson v. State, 683 S.W.2d 702, 704-05 (Tex. Crim. App. 1984). A comment on the defendant’s

failure to show remorse is generally not proper if the defendant testifies at the guilt stage and

presents some defense, but does not testify at the punishment phase. Randolph v. State, 353 S.W.3d

887, 892 (Tex. Crim. App. 2011). The prosecutor may during the punishment phase comment on

any testimony given by the defendant in the guilt/innocence phase and, if the defendant expressly

or impliedly denies criminal responsibility during that testimony, the prosecutor may comment on

that denial. Id. at 895. A statement during punishment argument that the defendant failed to express


                                                14
remorse might be taken as a comment on his failure to testify, but any harm from that violation

can be cured by an instruction to disregard the comment. Moore v. State, 999 S.W.2d 385, 405-06

(Tex. Crim. App. 1999).

               DeLeon contends that the trial court should have granted his motion for mistrial after

the State commented on his exercise of his right to remain silent during the sentencing phase of trial.

DeLeon testified during the guilt/innocence phase and denied committing the offense but did not take

the stand during the punishment phase. The controversy centers on the following exchange during

the State’s punishment argument:


       [Prosecutor]: . . . . And it’s scary the way that he conducted himself, the absolute
       denial with what he showed, and then the complete support of his family behind him.
       I do not believe 25 years, as a punishment, is appropriate in this case. I believe a
       sentence of 60 years would be appropriate. [M.G.] is going to have to live with this
       for the rest of her life.

       And if the Defendant had taken the stand, admitted what he had done, and begged for
       forgiveness, I believe the minimum sentence would be appropriate. But that’s not
       what we have here.

       [Defense counsel]: Your honor, could we approach the bench?

       (Bench Conference)


                              DEFENSE MOTION FOR MISTRIAL

       [Defense counsel]: I am going to ask for a mistrial. He did not testify at punishment.
       He just said to the jury, if he got up on the stand at this phase and told you—

       [Prosecutorl]: I was specifically referring to guilt/innocence.

       [Defense counsel]: He didn’t say that. He said, if he got up here and asked for
       forgiveness—this—I’m asking for a mistrial, Judge.




                                                  15
                                       COURT’S RULING

       The Court: Well, you’re not going to get one. I am going to instruct the jury to
       disregard that.

       [Defense counsel]: That’s unbelievable.

       (Open Court.)

       The Court: Ladies and gentlemen, the last comment by the prosecutor is improper,
       and you will not consider that for any purpose whatsoever.


The court then expressly denied the motion for mistrial.

               As the trial court found, the argument was improper. The prosecutor’s comment

violated DeLeon’s right not to testify. See Randolph, 353 S.W.3d at 891. Even if the statement that

DeLeon did not take the stand and admit what he had done referred to DeLeon’s testimony

at guilt/innocence during which he denied wrongdoing, the statement that he did not beg for

forgiveness is equivalent to the failure to express remorse found to be an improper comment by

the court of criminal appeals. See Swallow v. State, 829 S.W.2d 223, 226 (Tex. Crim. App. 1992),

overruled in part by Randolph, 353 S.W.3d at 894-95 (distinguishing between prosecutorial

argument that defendant did not accept responsibility—a proper summation of the defendant’s

guilt/innocence testimony denying committing the crime—from argument that defendant did not

express remorse—an improper comment on the failure to testify at punishment).

               We conclude, however, that the trial court’s prompt, thorough, and proper instruction

to the jury to entirely disregard the prosecutor’s argument cured the harm. DeLeon received a

sentence of thirty-two years—seven years above the minimum of twenty-five years permitted for the

offense of continuous sexual abuse of a child, but well below the maximum life sentence permitted.

See Tex. Penal Code § 21.02(h). Considering that the sexual abuse of the child found by the jury

                                                16
was committed by an elementary school teacher—one entrusted with the safety and well-being of

children—we are confident that the jury was not inflamed by the improper comment and very likely

would have assessed the same punishment absent the misconduct. Hawkins, 135 S.W.3d at 77. The

trial court did not abuse its discretion by denying the motion for mistrial.


The sentence did not violate the constitution.

                DeLeon contends that his punishment violates constitutional prohibitions against

cruel and unusual punishment because it does not have a possibility of parole. See Tex. Penal Code

§ 21.02(h); see also Tex. Gov’t Code § 508.145(a). He notes that his minimum possible sentence

was twenty-five years in prison, while someone who murders a child could get as few as five years

in prison with a possibility of parole. See Tex. Penal Code § 12.32; Tex. Gov’t Code § 508.145(f).

He contends that, because a child murderer sentenced to thirty-two years in prison would be

eligible for parole but he would not, his sentence is disproportionate to his crime. He contends that,

in assessing whether this categorical denial of parole to persons guilty of continuous child sexual

abuse is cruel and unusual, we should examine four factors: (1) whether there is a national

consensus against imposing the particular punishment at issue; (2) the moral culpability of the

offenders at issue in light of their crimes and characteristics; (3) the severity of the punishment; and

(4) whether the punishment serves legitimate penological goals. Meadoux v. State, 325 S.W.3d 189,

194 (Tex. Crim. App. 2010). He contends that murder is a worse crime than sexual abuse and that

Texas’s sentencing parameters are inconsistent with that hierarchy. He contends that the sentence

is severe because he will be incarcerated until he is in his late sixties.

                The State leans on the conclusion by the Amarillo court that the punishment structure

for continuous sexual abuse of a child is constitutional, even when a person about forty years

                                                  17
of age is sentenced to a sixty-year prison term without the possibility of parole. Glover v. State,

406 S.W.3d 343, 346-50 (Tex. App.—Amarillo 2013, pet. ref’d). The Amarillo court found a

national consensus in favor of the constitutionality of the sentencing range for this offense, primarily

based on the request by a judge on the Court of Criminal Appeals that the legislature enact tougher

punishment on those who commit continuous sexual assaults of children. See id. at 348 (citing

Dixon v. State, 201 S.W.3d 731, 737 (Tex. Crim. App. 2006) (Cochran, J., concurring)). The

Amarillo court wrote that—despite court holdings that murder is a more serious offense than child

sexual assault—the nature of the offense, its repetitive nature, and the vulnerability of child victims

combined to make the moral culpability of the offenders weigh in favor of the no-parole punishment

being constitutional. Glover, 406 S.W.3d at 348-49. The Amarillo court opined that the severity

of imprisonment for sixty years (in that case) without the possibility of parole weighed against the

constitutionality of the statute. Id. at 349. Finally, the Amarillo court opined that the mere fact that

the sentencing range for this offense is greater than that for child murder does not necessarily render

the sentencing range unconstitutional. Id. That court reasoned that those convicted of the crime are

already recidivists and opined that they are more likely to reoffend than murderers who, aside from

serial killers, tend not to reoffend. Id. at 349-50. The court held that the prison term without parole

served the penological goals of retribution, deterrence, and incapacitation. Id.

                DeLeon has presented no evidence or argument that requires rejection of the Glover

opinion. The sentence imposed in this case—thirty-two years in prison—is substantially less than

the sixty-year prison term imposed on a similarly aged defendant in that case and found to be

constitutional. See id. at 345. We are not persuaded that the mere fact that a child sexual abuser

might be sentenced to a longer prison term than a child murderer necessarily renders the sentencing


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structure unconstitutional. Assuming that criminal behavior is affected by the punishment ranges

enshrined in law, we are somewhat concerned by the “incentive” inherent in a sentencing structure

that mandates a minimum sentence for a person who improperly sexually touches a child twice that

is five times longer than the five-year minimum sentence available for a person who murders that

same child, but we are not persuaded that our concern is sufficient to render the statutes or DeLeon’s

sentence unconstitutional.


                                          CONCLUSION

               Finding that DeLeon has presented no reversible error, we affirm the judgment.




                                               Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Pemberton and Bourland

Affirmed

Filed: May 29, 2015

Do Not Publish




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