Affirmed and Opinion Filed February 27, 2015




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-14-00148-CR

                          ADRIAN THOMAS WALKER, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                      On Appeal from the 283rd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F-1235059-T

                                          OPINION
                           Before Justices Lang, Brown, and Whitehill
                                  Opinion by Justice Whitehill
       In this aggravated sexual assault of a child case, we consider whether the trial court erred

in overruling appellant’s objection to comments about appellant’s sexual urges made during

closing argument. We conclude the prosecutor’s argument did not concern extraneous offenses

or inappropriate reference to matters outside the record, but rather constituted proper rebuttal to

the defense theory that appellant’s sexual misconduct was not intentional. Therefore, the trial

court did not abuse its discretion in overruling appellant’s objection. Moreover, even if the trial

court erred, the record does not reflect that appellant suffered harm. We thus affirm the trial

court’s judgment.
                                                            I. BACKGROUND

          LW was five years old when her father sexually assaulted her. LW had crawled into bed

with her parents that evening because she was afraid. While her mother Emily remained

sleeping, appellant, her father, “stuck his penis” in her mouth. LW felt “sad and mad” and asked

appellant why he had done this, but appellant did not respond.

          The next day, LW told her mother, “Mom, Papa stuck his penis in my mouth. I need you

to talk to him.” After she took LW to school, Emily confronted appellant. Appellant claimed he

did not remember the offense. Emily went to the Family Advocacy Center and a family member

reported the offense to Child Protective Services. Emily and her two children subsequently

moved to Indiana to live with Emily’s sister.

          After the event, appellant conducted an internet search and decided that he suffered from

a sleep disorder called “sexomia.” Appellant attributed his sexual assault of his daughter to this

disorder. He also attributed the disorder to sexual acts he forced on his wife while he was

sleeping.

          When the police interviewed appellant, he initially told them he did not recall assaulting

his daughter. Later in the interview, he told them he remembered putting his penis in his

daughter’s mouth and remembered that it felt good. Appellant was charged with aggravated

sexual assault of a child under six.1 Appellant pled guilty and his judicial confession was

admitted into evidence in a jury trial on punishment.

          The defensive theory of the case was that appellant did not recall sexually assaulting his

daughter and did so because of his “sleep issues.” To this end, appellant offered testimony from




     1
         The indictment was later amended to aggravated sexual assault of a child under the age of fourteen. LW was seven years old when she
testified at trial.



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several doctors, a counselor, and a psychologist, but none of the witnesses offered testimony

about “sexomia.”

         Dr. Maxwell treated appellant prior to the offense. Appellant complained about a rash,

and stated on his questionnaire that he had “sleep issues, trouble going to sleep, snoring, and

acting out while sleeping.” Dr. Maxwell treated appellant with steroids for allergies.

         After the offense, appellant attended two counseling sessions at a counseling center. He

told his counselor that he was acting out sexually in his sleep. His counselor testified that he

believed appellant was depressed and had an alcohol dependency problem and might benefit

from prescription medication. As a result, he referred appellant to a primary care physician, Dr.

Lopez.

         Appellant saw Dr. Lopez and mentioned that he was having “problems with sex in his

sleep.” Dr. Lopez referred appellant to a sleep clinic. The record does not indicate whether

appellant ever visited the sleep clinic.

         Dr. William Flynn, a psychologist, testified as a mitigation expert for the defense. Dr.

Flynn was retained to perform a risk assessment to determine appellant’s potential for

recidivism. When Dr. Flynn interviewed appellant, appellant told him that his daughter was not a

liar, but he did not remember assaulting her. Dr. Flynn opined that appellant was in the “low

category” for sexually re-offending. He formed his opinion before he reviewed the part of the

video of appellant’s police interview where appellant stated that he did remember the assault.

         During closing argument, the defense emphasized its theory that appellant was unaware

of his actions. Counsel reminded the jury of appellant’s statement to Dr. Flynn that he believed

his daughter, but did not recall the assault. Counsel argued, “Everyone who testified said he

doesn’t remember . . . He said he didn’t remember and so there is no testimony to refute that, that

he did not remember.” Finally, defense counsel argued:

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               He’s an anomaly. I can’t explain it other than he has a sleep issue. He has
               some kind of sleep issue. He tried to get help and there we are . . . He’s in
               a home in his bed. The child comes into bed and he doesn’t remember
               what happened.

       At one point during the State’s closing argument, the prosecutor argued, “Do you, using

your common sense and reason, think the first time he had the sexual urge for his daughter was

on that day?” Defense counsel objected, but the objection was overruled.

       When the evidence closed and arguments concluded, the jury assessed punishment at

twenty years’ imprisonment and a $10,000 fine. The trial court entered judgment, and appellant

perfected this appeal.

                     II. ISSUES ON APPEAL AND STANDARD OF REVIEW

        In a single issue on appeal, appellant asserts the trial court erred in overruling his

objection to the prosecutor’s closing argument. According to appellant, the comments about his

sexual urges improperly referred to extraneous offenses and matters outside the record. The State

responds that the objection was properly overruled because the comments were made in response

to the defensive theory of the case.

        The standard of review for a trial court’s ruling on an objection asserting improper jury

argument is abuse of discretion. Whitney v. State, 396 S.W.3d 696, 703–04 (Tex. App.—Fort

Worth 2013, pet. ref’d). An abuse of discretion involves a decision that was so clearly wrong that

it lies outside the zone within which reasonable persons might disagree. See McCarty v. State,

257 S.W.3d 238, 239 (Tex. Crim. App. 2008)

                                            III. ANALYSIS

Was the argument improper?

        The State is afforded wide latitude in its jury argument and may draw all reasonable, fair,

and legitimate inferences from the evidence. Allridge v. State, 762 S.W.2d 146, 156 (Tex. Crim.

App. 1988). But, a prosecutor may not present evidence that is outside the record during closing
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argument. Freeman v. State, 340 S.W.3d 717, 728 (Tex. Crim. App. 2011). The Texas Court of

Criminal Appeals recognizes four areas of proper jury argument: (1) summation of the evidence

presented at trial; (2) reasonable deduction drawn from that evidence; (3) answer to the opposing

counsel’s argument; or (4) a plea for law enforcement. Davis v. State, 329 S.W.3d 798, 821 (Tex.

Crim. App. 2010); Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000). In examining

challenges to a jury argument, we consider the remark in the context in which it appears. Gaddis

v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988).

       Here, viewing the State’s argument in context, the comments did not refer to collateral

offenses, nor did they constitute inappropriate reference to matters outside the record. Rather, the

State’s argument falls within the parameters of answering opposing counsel’s argument and

drawing reasonable deductions from the evidence presented at trial. The complained-of argument

was as follows:

               STATE: And do you think that all of a sudden he had his first compulsion
               to do something to [LW] and that was the first time he acted?

               DEFENSE: I object to any testimony that was not presented, sounds like
               he’s going to say there are other times.

               STATE: It’s not what I’m saying, Your Honor.

               COURT: Overruled at this point.

               STATE: You can use your own common sense. I’m not saying there are
               other times at all. There was one time. Make no mistake. There was one
               time. That doesn’t mean that we excuse it because it’s one time or we
               minimize that. We went through that.

               Do you, using your common sense and reason, think the first time he had
               the sexual urge for his daughter was on that day?

               DEFENSE: That’s what I am objecting to. There’s no testimony and he
               can’t argue that to the jury.

               COURT: Overruled.




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       This argument does not refer to any other instances of conduct or offenses other than the

charged offense. Indeed, the State emphasized that there was only one offense.

       Whether appellant’s conduct was knowing or intentional was a critical issue in the case.

To satisfy the elements of aggravated sexual assault of a child in this case, the State was required

to prove that appellant intentionally or knowingly contacted and penetrated the mouth of the

victim, a child under fourteen at the time, with his sexual organ. See TEX. PENAL CODE ANN. §

22.021 (West Supp. 2014). The defensive theory was that appellant’s actions resulted from

accident rather than sexual desire—that is, were not knowing or intentional. It is not outside the

zone of reasonable disagreement to view the State’s reference to appellant’s sexual urges as an

effort to rebut the defensive theory of the case.

       Moreover, arguing that appellant thought about an offense does not constitute a reference

to an extraneous offense. Lascivious thoughts alone are not a crime., See, e.g., Copeland v. State,

No. 06-13-00044-CR, 2013 WL 6388585, at *7 (Tex. App.—Texarkana Nov. 26, 2013, no pet.)

(“Absent any actual conduct, which alone or in combination with such thoughts could

constitute . . . a crime, a defendant’s comments about a desire or intent to commit an offense do

not constitute prior misconduct”); see also Massey v. State, 933 S.W.2d 141, 154 (Tex. Crim.

App. 1996) (“Statements concerning a defendant’s thoughts of wrongdoing are merely inchoate

thoughts”); Cook v. State, 884 S.W.2d 485, 487 (Tex. Crim. App. 1994) (observing crime

requires both actus reus and mens rea).

       Under these circumstances, we cannot conclude the trial court abused its discretion in

overruling the objection to the State’s argument. See Acosta v. State, 411 S.W.3d 76, 94 (Tex.

App.—Houston [1st Dist.] 2013, no pet.).




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Was the argument harmful?

       Even if the trial court erred in overruling appellant’s objection, the error did not affect

appellant’s substantial rights. Improper jury argument is reviewed under a nonconstitutional

harm analysis under rule 44.2(b) of the rules of appellate procedure, and must be disregarded

unless it affected appellant’s substantial rights. TEX. R. APP. P. 44.2(b); see Threadgill v. State,

146 S.W.3d 654, 666 (Tex. Crim. App. 2004); Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim.

App. 1998) (op. on reh’g). A substantial right is affected when the error had a substantial and

injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271

(Tex. Crim. App. 1997). Conversely, an error does not affect a substantial right if we have “fair

assurance that the error did not influence the jury, or had but a slight effect.” Solomon v. State,

49 S.W.3d 356, 365 (Tex. Crim. App. 2001).

       In determining whether the appellant’s substantial rights were affected, we consider (1)

the severity of the misconduct (i.e., the prejudicial effect of the prosecutor’s remarks); (2)

curative measures; and (3) the certainty of the punishment assessed absent the misconduct. See

Martinez v. State, 17 S.W.3d 677, 692–93 (Tex. Crim. App. 2000).

       Applying these factors, we note that the argument was brief and largely inconsequential

in light of appellant’s judicial confession. Throughout closing argument, both the State and the

defense emphasized that there was only one offense, thereby eliminating any potential for

confusion and mitigating any potential for the argument to have impressed the jury in an

irrational way. Considering the evidence adduced at trial and the entire record before us, there is

nothing to suggest the State’s comments influenced the jury’s assessment of punishment.




                                                –7–
       We therefore overrule appellant’s issue and affirm the trial court’s judgment.



Do Not Publish
TEX. R. APP. P. 47                                  /Bill Whitehill/
140148F.U05                                         BILL WHITEHILL
                                                    JUSTICE




                                              –8–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

ADRIAN THOMAS WALKER, Appellant                    On Appeal from the 283rd Judicial District
                                                   Court, Dallas County, Texas
No. 05-14-00148-CR        V.                       Trial Court Cause No. F-1235059-T.
                                                   Opinion delivered by Justice Whitehill.
THE STATE OF TEXAS, Appellee                       Justices Lang and Brown participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered February 27, 2015.




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