                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-12-00167-CR

ARANDAL CARY HIGHTOWER
AKA ARENDALL CARY HIGHTOWER,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                           From the 54th District Court
                            McLennan County, Texas
                           Trial Court No. 2011-736-C2


                          MEMORANDUM OPINION


      In this appeal, appellant, Arandal Cary Hightower a/k/a Arendall Cary

Hightower, challenges his convictions for: (1) aggravated sexual assault of a child, a

first-degree felony, see TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (e) (West Supp. 2012);

and (2) indecency with a child by contact, a second-degree felony. See id. § 21.11(a)(1),

d) (West 2011). In one issue, appellant complains that the trial court erred in overruling

his objection to the State’s closing argument. We affirm.
                                        I.      BACKGROUND

       Here, appellant was charged by indictment with one count of aggravated sexual

assault of a child, T.D., and two counts of indecency with a child by contact.1 The

indictment also contained:         (1) an enhancement paragraph referencing appellant’s

September 29, 2005 felony conviction for unlawful possession of a controlled substance;

and (2) a habitual allegation pertaining to appellant’s August 24, 1989 felony conviction

for injury to a child. In any event, during trial, the State abandoned one of the counts of

indecency with a child by contact and proceeded against appellant on the remaining

charged counts.

       The evidence at trial showed that appellant knew T.D. through T.D.’s

grandmother, who was caring for T.D. at the time. Apparently, appellant and T.D.’s

grandmother were “going together,” and on the day in question, T.D. was at the

grandmother’s apartment with T.D.’s stepbrother and appellant.

       T.D. testified that she was lying on a bed with her stepbrother and appellant

while her grandmother was away. At some point, appellant “got under the cover[s]

when I got under the cover[s] and he told me to unbutton my pants.” T.D. refused to

do so, but appellant began “feeling on [her].” T.D. recalled that appellant touched her

breasts under her shirt and that he “put his hand inside [her] pants and then he was

rubbing on it.” Later testimony revealed that T.D. accused appellant of also penetrating

her vagina with his finger.



       1  The record reflects that T.D. was nine years old at the time of the incident. To protect her
identity, we will use initials to refer to T.D. and her family members.

Hightower v. State                                                                             Page 2
       T.D. made outcry statements to several family members, including her

grandmother, who did not believe her. After hearing T.D.’s outcry, T.D.’s grandmother

forced her to speak to appellant on the telephone about the incident.            In this

conversation, appellant denied any involvement.       Instead, he asserted that he was

merely tickling or wrestling with T.D. Eventually, another family member called the

police to report the incident. T.D. was interviewed, and a sexual-abuse exam was

administered. Several of T.D.’s family members were interviewed. T.D.’s stepbrother,

who was present at the time of the incident, stated that appellant tried to “rape” T.D.

and that he got on top of her and tried to “take off her pants.” Appellant was also

interviewed about the incident. A videotape of appellant’s interview was admitted into

evidence.

       At the conclusion of the evidence, the jury found appellant guilty of one count of

aggravated sexual assault of a child and one count of indecency with a child by contact.

Appellant pleaded “true” to the enhancement and habitual allegations contained in the

indictment.    The jury assessed punishment at life incarceration in the Institutional

Division of the Texas Department of Criminal Justice for the aggravated-sexual-assault-

of-a-child count and sixty years’ confinement for the indecency-with-a-child-by-contact

count. The trial court ordered that the imposed sentences run consecutively. This

appeal followed.

                                     II.    ANALYSIS

       In his sole issue, appellant contends that the trial court erred in overruling his

objection to comments made by the State in closing argument that he was yawning,

Hightower v. State                                                                 Page 3
bored, and considered this case to be “no big deal.” Specifically, appellant argues that

these statements improperly commented on his failure to testify at trial.

A.     The State’s Closing Argument

       The portion of the State’s closing argument about which appellant complains is

as follows:

       [The State]:        And—and talking about liberty interest at stake and
                           how important it is when you find beyond a
                           reasonable doubt. This man can’t stop yawning at his
                           own trial. He is bored to tears hearing the arguments
                           made at his trial to determine the outcome of his
                           liberty—

       [Defense counsel]: Your Honor, I’m going to object. That’s a comment
                          on his right to testify at this point[,] and I think it’s
                          highly inappropriate[,] and I’d ask that the jury
                          disregard her last argument.

       THE COURT:          The objection is overruled.

       [The State]:        This man is yawning because he’s bored. He’s bored
                           with his trial. That’s what this means to him. No big
                           deal—

       [Defense counsel]: Your Honor, I object. That is a comment on his right
                          not to testify.

       THE COURT:          Your objection is overruled.

B.     Applicable Law

       We review a trial court’s rulings on objections to argument for abuse of

discretion. York v. State, 258 S.W.3d 712, 717 (Tex. App.—Waco 2008, pet. ref’d). Proper

jury argument falls within one of four general areas: (1) summation of evidence; (2)

reasonable deductions from the evidence; (3) answers to arguments of opposing


Hightower v. State                                                                    Page 4
counsel; and (4) pleas for law enforcement. Lagrone v. State, 942 S.W.2d 602, 619 (Tex.

Crim. App. 1997). To determine whether the argument properly falls within one of

these categories, we consider the argument in light of the record as a whole. Sandoval v.

State, 52 S.W.3d 851, 857 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d).          Jury

argument must be extreme or manifestly improper or inject new and harmful facts into

evidence to constitute reversible error. Shannon v. State, 942 S.W.2d 591, 597 (Tex. Crim.

App. 1996). Furthermore, in most cases, if error occurs, an instruction to disregard will

cure any error committed. Id.

       A prosecutor is permitted, during argument, to “draw from the facts in evidence

all inferences which are reasonable, fair and legitimate, but he may not use jury

argument to get before the jury, either directly or indirectly, evidence which is outside

the record.” Jordan v. State, 646 S.W.2d 946, 948 (Tex. Crim. App. 1983); see Cantu v.

State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997) (holding that the State has “wide

latitude” in drawing inferences from evidence, as long as the inferences are reasonable

and offered in good faith). The State may call the jurors’ attention to that which they

had an equal opportunity to observe, provided that such information is reflected in the

record or is of such common occurrence “that its recognition requires no expertise

before proper comment thereon may occur.” Jordan, 646 S.W.2d at 948.

       In Good v. State, the Texas Court of Criminal Appeals held that, although the

State may allude during argument to a testifying defendant’s demeanor while he

testified, the State may not reference the defendant’s non-testimonial courtroom

demeanor as evidence of guilt. 723 S.W.2d 734, 736 (Tex. Crim. App. 1968); see Wead v.

Hightower v. State                                                                  Page 5
State, 129 S.W.3d 126, 130 n.8 (Tex. Crim. App. 2004) (“We have recognized that, during

closing argument at the guilt/innocence phase, a prosecutor may not properly

comment upon the defendant’s demeanor in the courtroom, since the defendant’s

demeanor in the courtroom is not evidence of guilt.”). The Good court noted that a

defendant’s demeanor during a witness’s testimony was not a proper subject for

argument because “[i]t was not offered into evidence through any legally recognizable

method of proof.”     Good, 723 S.W.2d at 736.       “Allowing the State to summarize

appellant’s non[-]testimonial demeanor impermissibly placed appellant’s demeanor

before the jury through the prosecutor’s unsworn jury argument.” Id. Nevertheless, the

Texas Court of Criminal Appeals has also noted that, if the record reflects that the

defendant “misbehaved or conducted himself in the jury’s presence in an unacceptable

manner,” this conduct is proper subject for discussion during argument. Dickinson v.

State, 685 S.W.2d 320, 323 (Tex. Crim. App. 1984).

       In both Good and Dickinson, the prosecutor referred to the defendant’s orderly

non-testimonial behavior as evidence of the defendant’s lack of remorse and contrition.

See Good, 723 S.W.2d at 735; see also Dickinson, 685 S.W.2d at 322. In both of these cases,

the record did not include admitted evidence pertaining to the defendant’s actual

courtroom behavior and demeanor.          See Good, 723 S.W.2d at 736 (“Appellant’s

demeanor during the complainant’s testimony was not evidence subject to reference by

the prosecutor.”); Dickinson, 685 S.W.2d at 323 (“[W]e have yet to find, and the State

does not refer us to any place in the record, any act on the part of the appellant that

might enable us to conclude that he misbehaved or conducted himself in an improper

Hightower v. State                                                                   Page 6
manner during the course of his trial.”); see also Jordan, 646 S.W.2d at 947 (stating that

the record did not contain evidence to support the prosecutor’s argument imploring

jurors to “look at the needle tracks on [appellant’s arms]”).

C.     Discussion

       In his closing argument, appellant emphasized the reasonable-doubt standard

and the importance of his liberty interest that was at stake in this case. The State argues

that its comments about appellant’s indifferent demeanor could be construed as a

response to defense counsel’s closing argument or as a reasonable deduction from the

evidence. See Lagrone, 942 S.W.2d at 619. However, appellant did not testify in this

case. As stated above, “[a] defendant’s non[-]testimonial demeanor does not constitute

evidence that may be referenced by the prosecutor.              Allowing the prosecutor to

comment on non[-]testimonial courtroom demeanor improperly places a defendant’s

demeanor before the jury through unsworn argument.” Mayberry v. State, 830 S.W.2d

176, 178 (Tex. App.—Dallas 1992, pet. ref’d) (citing Good, 723 S.W.2d at 736). And

“[b]ecause a defendant’s non[-]testimonial demeanor is not evidence, it provides no

basis for reasonable deductions from the evidence. Courtroom demeanor is simply

irrelevant to the issue of guilt.” Id. (citing Good, 723 S.W.2d at 737). Therefore, based on

the foregoing, we cannot say that the State’s comments during closing argument

amounted to a reasonable deduction from the evidence.

       The State also argues that its comments during closing argument were a

response to appellant’s emphasis during closing argument on his liberty interest. The

Mayberry court noted that: “The invited argument rule allows the prosecution to go

Hightower v. State                                                                    Page 7
outside the record to respond to unsubstantiated arguments made by defense counsel.”

Id. (citing Johnson v. State, 611 S.W.2d 649, 650 (Tex. Crim. App. [Panel Op.] 1981)).

Here, appellant did not argue in his closing argument that his non-testimonial

demeanor supported a judgment of acquittal; instead, he merely emphasized how

important the jury’s decision was to his liberty interest. We are not persuaded that the

State’s comments during closing argument were an appropriate response to appellant’s

emphasis on his liberty interest. Accordingly, the State’s comments cannot be justified

as invited argument.

        Because the State does not contend that its comments during closing argument

constituted a summation of the evidence or a plea for law enforcement, we cannot say

that the comments fell within the four areas of acceptable jury argument; as such, we

conclude that the State’s comments about appellant’s non-testimonial demeanor were

improper. We must now conduct a harm analysis to determine the impact of this error.

D.      Harm Analysis

        An erroneous ruling regarding comments made during argument is non-

constitutional error subject to a harm analysis under Texas Rule of Appellate Procedure

44.2(b).2 See TEX. R. APP. P. 44.2(b); see also Mosley v. State, 983 S.W.2d 249, 259 (Tex.


        2  In his brief, appellant generally cites law that commenting on a defendant’s failure to testify is
constitutional error subject to analysis under Texas Rule of Appellate Procedure 44.2(a). See TEX. R. APP.
P. 44.2(a). However, in reviewing his brief, we are not persuaded that Rule 44.2(a)-error analysis applies
here, especially considering that most other cases involving similar error employ a Rule 44.2(b)-error
analysis. See Mayberry v. State, 830 S.W.2d 176, 178-79 (Tex. App.—Dallas 1992, pet. ref’d); see also Miles v.
State, Nos. 01-10-00784-CR & 01-10-00785-CR, 2011 Tex. App. LEXIS 8514, at **13-14 (Tex. App.—Houston
[1st Dist.] Oct. 27, 2011, pet. ref’d) (mem. op., not designated for publication); Smith v. State, No. 14-03-
01174-CR, 2005 Tex. App. LEXIS 2133, at **7-8 (Tex. App.—Houston [14th Dist.] Mar. 22, 2005, pet. ref’d)
(mem. op., not designated for publication); Cherry v. State, No. 04-01-00046-CR, 2002 Tex. App. LEXIS
7310, at **3-7 (Tex. App.—San Antonio Sept. 30, 2002, no pet.) (not designated for publication); but see

Hightower v. State                                                                                     Page 8
Crim. App. 1998). We disregard any non-constitutional error that does not affect a

defendant’s substantial rights by having a “substantial and injurious effect or influence

in determining the jury’s verdict.” Jabari v. State, 273 S.W.3d 745, 754 (Tex. App.—

Houston [1st Dist.] 2008, no pet.) (citing Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim.

App. 2000); see TEX. R. APP. P. 44.2(b). We should not reverse a conviction for non-

constitutional error 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.” Jabari, 273 S.W.3d at

754 (citing Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)).

        Here, the focus of the closing arguments for both sides was on the credibility of

T.D.    The complained-of exchange was but a small portion of the State’s closing

argument. Most of the State’s closing argument focused on the credibility of T.D.’s

outcry and testimony. Moreover, the record contains ample evidence regarding the

incident, including testimony from several witnesses recounting T.D.’s outcry and from

T.D.’s stepbrother, who noted that he was present at the time of the incident and that

appellant tried to take off T.D.’s pants and appeared to “rape” her.

        After examining this record as a whole, we have fair assurance that the

complained-of error did not influence the jury, or had but a slight effect. See Johnson,


Dickinson v. State, 685 S.W.2d 320, 323 (Tex. Crim. App. 1984) (holding that prosecutorial argument that
points to a defendant’s lack of remorse or contrition is an impermissible comment on a defendant’s
failure to testify). Furthermore, while the State’s statements during closing argument were improper, we
do not believe that they amount to a comment on appellant’s failure to testify. See Wead v. State, 129
S.W.3d 126, 130 (Tex. Crim. App. 2004) (citing United States v. Jefferson, 258 F.3d 405, 414 (5th Cir. 2001);
Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001)). The record does not reflect that the State’s
statements were manifestly intended to be a comment on appellant’s failure to testify, nor were the
statements of such a character that a typical jury would naturally and necessarily take the statements to
be a commentary on appellant’s failure to testify. See Wead, 129 S.W.3d at 130; see also Bustamante, 48
S.W.3d at 765.

Hightower v. State                                                                                    Page 9
967 S.W.2d at 417; see also Jabari, 273 S.W.3d at 754. As such, we conclude that the

complained-of error was harmless beyond a reasonable doubt. See Snowden v. State, 353

S.W.3d 815, 824-25 (Tex. Crim. App. 2011) (concluding that a prosecutor’s summation

directing the jury to consider appellant’s lack of present, in-court remorse was harmless

beyond a reasonable doubt because it was isolated and imbedded within a legitimate

argument and because “[t]he evidence against the appellant was substantial, if not

overwhelming”).3 We therefore overrule appellant’s sole issue on appeal.

                                           III.    CONCLUSION

        Having overruled appellant’s sole issue on appeal, we affirm the judgments of

the trial court.




                                                         AL SCOGGINS
                                                         Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed October 3, 2013
Do not publish
[CRPM]




        3 We note that the Snowden court applied a Rule 44.2(a)-error analysis in arriving at is conclusion
that the State’s comments during closing argument were harmless beyond a reasonable doubt. See
generally Snowden, 353 S.W.3d 815 (Tex. Crim. App. 2011).

Hightower v. State                                                                                 Page 10
