Opinion issued May 16, 2017.




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-15-00902-CR
                              NO. 01-15-00903-CR
                            ———————————
                    ROEL DAVID GONZALEZ, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee


                   On Appeal from the 177th District Court
                            Harris County, Texas
                   Trial Court Case No. 1325153 & 1325154


                                  OPINION

      A jury found Appellant, Roel David Gonzalez, guilty of the offense of

aggravated sexual assault of a child on the first offense and indecency with a child
on the second.1 Appellant elected for the jury to assess punishment, and it assessed

his punishment at confinement for twenty years on the first offense and five years

on the second offense, to run concurrently. Appellant raises the following five

issues: “Evidence was insufficient as a matter of law to sustain Appellant’s

conviction for” (1) “the offense of aggravated sexual assault of a child [and (2)] for

the offense of indecency with a child”; (3) “[t]he trial court erred in denying

Appellant’s motion [for] mistrial for the constitutional challenge to article 39.15 of

the Texas Code of Criminal Procedure;” (4) “[t]he trial court erred when it

overruled Appellant’s objection to the improper argument of the prosecutor

injecting evidence outside the record”; and (5) “[t]he trial court erred in denying

Appellant’s motion for mistrial based upon the prosecutor’s improper jury

argument.”

      We affirm.

                                    Background

      Mother testified that she met Appellant through work, began dating him, and

eventually they moved into a house along with Mother’s three daughters in 2008.

At the time, Alice was almost twelve, Belle was ten, and Cici, the complainant,




1
      See TEX. PENAL CODE ANN. §§ 21.11 (Vernon 2011) & 22.021 (Vernon 2016).

                                          2
was age eight.2 Appellant became the family’s primary supporter because, as Belle

and Cici testified, Mother contracted multiple sclerosis.          They lived together

happily until one night when Appellant and Mother argued and threw beer

containers at each other.

      According to Mother’s testimony, Appellant was outside drinking with

friends. After she asked them to come inside, she went outside where she and

Appellant argued. Mother conceded that, after they argued, she threw a six-pack

of beer at Appellant, and then he threw a twelve-pack of beer at her, cutting her

forehead and cheek. Alice testified that she heard Mother go outside, and then she

heard a loud boom. Alice went outside, smelled beer and blood, and saw her

mother on the floor next to broken glass beer bottles with a bleeding gash on her

forehead. Belle testified that, after Alice woke her, she ran outside to the garage

and saw her mother bleeding and beating on Appellant’s car window. Cici also

saw her mother bleeding after the beer bottle incident.

      Following this incident, the relationship between the girls and Appellant was

strained. Mother testified that, before the beer bottle incident, the girls would greet

Appellant, but afterwards, they did not want to be home with him on the weekends.

Priscilla Mango and Bryanna Gonzalez, Appellant’s daughters, also observed the


2
      For the purpose of this appeal, we refer to the children using the pseudonyms
      Alice, Belle, and Cici, rather than using their initials, and their mother as Mother.
      See TEX. CODE CRIM. PROC. ANN. art. 57.02(h) (Vernon Supp. 2016).

                                            3
change in behavior.     Mango testified that the girls initially called her father

“Daddy,” but stopped after the beer bottle incident. Gonazalez testified that “[the

girls] loved him like their own father,” but became cold and distant after the

incident.   Also, during cross-examination, an investigator for the Texas

Department of Family and Protective Services (DFPS) testified that Alice told her

that she wanted Appellant out of the house and that she wanted her Mother and her

biological father to reconcile. According to the investigator, Alice’s dislike for

Appellant increased after the beer bottle incident. The investigator also confirmed

that Mother knew her daughters did not like Appellant.          Belle and Cici both

conceded on the stand that they did not like Appellant.

      In 2009, on the night of the first incident, Belle testified that she, Cici, and

Appellant were up late playing Monopoly, as they often were, and Mother had

gone to sleep. Belle lost. While the game continued, she fell asleep. She testified

that she woke up as Appellant tried to unzip her blue jean shorts to the light of a

camouflage-colored flashlight, but she rolled over, dissuading him.          She also

testified that she saw Appellant move towards Cici with a flashlight, and then stand

over her. Belle said that she thought Appellant did the same thing to Cici.3




3
      Belle also testified that on another date, Appellant attempted to kiss her on the
      mouth, but she pulled away from him. She did not mention this during her
      forensic interview.

                                          4
      Cici testified that Appellant stood over her and pulled her nightgown up and

underpants aside to put his mouth and tongue on her genitals. Cici defined her

genitals as the part of her body she uses to go to the bathroom. Cici was scared

and “didn’t know what to do.”

      Cici further testified that, after a while, Appellant stopped, retrieved a beer

from the kitchen, and came back. Appellant re-opened her legs by grabbing her

ankles, and returned to licking her genitals. Cici kept her eyes shut, so that

Appellant would not know she was awake.

      Cici also testified that, on a second night, she awoke to Appellant

unbuttoning her shorts and sticking two fingers into her vagina, which she

demonstrated during trial using a Kleenex box. She was in the room where all

three girls slept. Unlike the last time, Cici said it hurt her, so she opened her eyes,

but she did not try to wake her sisters. Cici testified that Appellant stopped, went

to the bathroom, and washed his hands.

      On a third night, Cici testified that she saw Appellant enter their room, but

Cici shook Alice awake. Alice questioned Appellant’s presence. Also, the noise

woke Mother, who asked Appellant to turn off the light. Appellant left the room.

      Alice testified that she learned of the abuse from Belle and Cici in the

summer of 2010, and she started a rumor at school that Appellant had raped her.

She testified that the point of the rumor was to remove Appellant from the house or



                                          5
to call attention to Appellant’s wrongdoing.        When confronted by a school

counselor, Alice conceded that she lied when she said that Appellant raped her.

The DFPS investigator testified that she received a report about suspected abuse in

April of 2011, and that both Belle and Cici told her about the sexual abuse.

      All three girls were transported to, and participated in, forensic interviews at

the Children’s Assessment Center.       Stephanie Jones, the forensic interviewer,

testified that Cici was 10 years old at the time of the interview and made the

comment “my stepfather raped me.”

      The State provided Brady notices for the forensic interviews to Appellant.

Prior to and during trial, Appellant moved for copies of the forensic interviews in

order to fully prepare his defense. The trial court allowed access to the interviews,

but did not allow Appellant to copy the interviews. Both Appellant’s counsel and

expert reviewed all three videos prior to trial. Appellant also asked for a mistrial

on the basis that the lack of copies hindered his right to prepare and confront

witnesses, and the trial court denied the mistrial request. During its rebuttal case,

the State called the forensic interviewer, and, after Appellant waived his

objections, all three interviews were admitted by the trial court and published to

the jury.

      During his cross-examination of the girls,             Appellant highlighted

inconsistencies between their testimony on the stand and their forensic interviews.



                                          6
Belle conceded on the stand that in the forensic interview she did not mention the

flashlight, did not remember telling Cici to go to her room, did not see Appellant

get a beer after the initial abuse of Cici, and did not see Appellant go back and

touch Cici again. Cici testified that she did not remember Appellant using a

flashlight, and still did not remember the flashlight after reviewing her forensic

interview testimony in which she said she woke up to a bright light. Cici did not

tell the forensic interviewer about Appellant’s massaging her feet before she fell

asleep

         Appellant, on appeal, calls our attention to discrepancies between Belle and

Cici’s testimony: Cici did not remember falling asleep on the couch, nor did she

remember anyone else being awake, even though Belle had testified to being

awake. Also, Belle said the girls did not wear shorts around Appellant, but Cici

said she was wearing shorts during the second assault.

         Concerning the third night, Appellant also points out on appeal that Cici

testified in the forensic interview that her older sister, Alice, was at her

grandmother’s house, not at home, as she testified at trial.

         Dr. Reena Isaac, a child abuse pediatrician and the medical director of the

forensic nurse team at Texas Children’s Hospital, conducted the medical

examinations for the DFPS investigation, and specifically of Cici. Isaac testified

that Cici told her that Appellant touched “in my private parts” and pointed to her



                                           7
genitals. Isaac related that Cici said Appellant touched her genitals with his mouth

and his fingers two times, but Cici never saw Appellant’s private part. Isaac

further testified that she found no damage in Cici’s genital area, which was

expected because any damage could have repaired itself within days. On cross-

examination, Isaac conceded that, even though the exam itself is not dispositive,

she did not see any physical signs of abuse.

      Dr. Gilbert Garcia, a pediatrician with Northeast Pediatric Associates of

Humble, testified that Cici visited his office twice in 2011. The first was a normal

visit, where everything “looked fine.” On a second visit for an upper respiratory

infection several months later, Mother and Cici met with one of Dr. Garcia’s

physician’s assistants. Dr. Garcia read the assistant’s notes to the jury, which

indicated Mother was very concerned about child abuse dating back two years, and

she asked for a referral to a psychiatrist:

      Mom states that patient was sexually abused for over two years. She
      found out this April that her boyfriend was sexually abusing [Belle]
      and her sister. Mom had gone to the police and both girls had been
      examined by CPS physicians. The boyfriend is no longer in the
      picture. Mom is pressing charges. Mom is very concerned, crying in
      the office. She states that the girls do not talk about what happened
      and are very withdrawn. Mom would like for them to be seen by a
      psychiatrist.

Dr. Garcia testified that his office did make a referral, but Mother never updated

them about any treatment CiCi was receiving.




                                              8
      Dr. Mathew Ferrara, a licensed psychologist and licensed sex offender

treatment provider, suggested on the stand that about 42% of sexual abuse

allegations are unfounded. He stated that false allegations most typically occur in

older children who either have specific motives or who are coached for custody or

divorce hearings by a parent. Motives may include lying to protect a parent from

being hurt by another. Ultimately, he asserted that contradictions in the testimony

of children are the key to identifying whether a statement is false. Dr. Ferrara

suggested that if one child says she saw someone touching another’s genitals with

his fingers, but another child felt or saw the offender touching her genitals with his

mouth, that would be a major contradiction.

      Dr. Ferrara also confirmed, on cross-examination, a few basic truths about

child sexual abuse: victims and offenders usually know one another; offenders can

have active sexual relationships with their spouses while committing sexual

offenses with children; and intoxication could encourage an offender.

      Appellant provided three character witnesses: his ex-wife, a relative, and a

neighbor. Appellant’s ex-wife testified that she had known him for 30 years, and

he was a good person, despite her having filed a protective order against him in the

past. His ex-wife testified she filed the protective order after three death threats.

First, Appellant threatened to kill his ex-wife when he caught her alone. Second,

he followed his ex-wife into a neighbor’s house, and told everyone that they could



                                          9
neither leave nor use a phone. He, then, shoved her into a wall, while grabbing and

squeezing her wrists, saying that if he hit her, she would not get up. Third, he

grabbed her arm while she was leaving work and threatened to kill her because he

said that she was having a relationship with another man.

      Enedelia Pina, who identified Appellant as her husband’s nephew, testified

that she knew Appellant, and knew he was a peaceful and law abiding citizen.

Michael Santos, Appellant’s neighbor since 1977 and a sergeant with the Harris

County Sheriff’s Office, testified that Appellant was a peaceful, law-abiding

citizen and a good neighbor. Both Pina and Santos were aware of the beer bottle

incident, but it did not change their opinion of Appellant.

      In June 2012, the State indicted Appellant for the offenses of aggravated

sexual assault of and indecency with Cici, a child under the age of fourteen. The

indictments for aggravated sexual assault and indecency with a child alleged,

respectively:

      The duly organized Grand Jury of Harris County, Texas, presents in
      the District Court of Harris County, Texas, that in Harris County,
      Texas, ROEL DAVID GONZALEZ, hereafter styled the Defendant,
      heretofore on or about JANUARY 1, 2009, did then and there
      unlawfully, intentionally and knowingly cause the sexual organ of
      [Cici], a person younger than fourteen years of age, to contact the
      MOUTH of THE DEFENDANT.

      The duly organized Grand Jury of Harris County, Texas, presents in
      the District Court of Harris County, Texas, that in Harris County,
      Texas, ROEL DAVID GONZALEZ, hereafter styled the Defendant,
      heretofore on or about JANUARY 30, 2009, did then and there

                                          10
      unlawfully, intentionally and knowingly cause the penetration of the
      SEXUAL ORGAN of [Cici], hereinafter called the Complainant, a
      person younger than fourteen years of age, by placing HIS FINGER in
      the SEXUAL ORGAN of the Complainant.

      Later, in closing argument, both Appellant and the State revisited the night

when Appellant struck Mother on the head with a beer bottle. In his closing

argument in the guilt phase, Appellant suggested that the girls had lied about the

sexual abuse in order to protect their Mother from Appellant.          During the

punishment phase, after recounting Appellant’s mistreatment of his ex-wife, the

State suggested he continued the same pattern of behavior with Mother because

Appellant “bash[ed] her head in with a beer bottle.” Appellant objected that the

State’s statement was outside the evidence because the bottle was “thrown.” The

trial court overruled the objection and instructed the jury to rely on testimony as

evidence.

      Also in closing argument for the punishment phase, Appellant and the State

also discussed what impact the length of jury deliberation should have on

Appellant’s punishment.       Appellant suggested that the jurors could use any

residual doubts they had when they considered Appellant’s punishment. The State

responded in their argument “Don’t let anyone tell you or make you feel bad about

your verdict. That’s not right.” Appellant objected. The trial court sustained the

objection and instructed the jury to disregard the last comment. Appellant then

asked for, but the trial court denied, a request for mistrial.


                                           11
      The jury found Appellant guilty of aggravated sexual assault of and

indecency with a child and assessed punishment at twenty years’ confinement on

the first offense and five years’ confinement on the second offense. The trial court

entered judgment on the jury’s verdict and punishment sentence. Appellant now

brings this appeal.

                           Sufficiency of the Evidence

      In his first and second issues, Appellant argues that the evidence is

insufficient to support the offense of aggravated sexual assault of a child or of

indecency with a child because enough factual inconsistencies proliferate the

record to prevent a rationale juror from finding Appellant guilty beyond a

reasonable doubt. Appellant contends that the children were motivated by anger,

after Appellant bloodied their mother with a beer bottle. The State asserts that

Appellant is asking this Court to re-weigh the evidence, which is the jury’s

responsibility. Instead, the State argues that the children’s testimony combined

with the forensic interview videos and medical records was sufficient for the jury

to find Appellant placed his mouth on Cici’s sexual organ and two fingers into

Cici’s sexual organ while she was younger than fourteen years of age.

      In evaluating the sufficiency of the evidence, we review all the evidence in

the light most favorable to the trial court’s judgment to determine whether any

rational jury could have found the essential elements of the offense beyond a



                                        12
reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010)

(citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979));

Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d);

but see Johnson v. State, 419 S.W.3d 665, 671 n.2 (Tex.App.—Houston [1st Dist.]

2013, pet. ref’d) (suggesting the Court of Criminal appeals should revisit whether

legal and factual sufficiency standards of review are indistinguishable). Evidence

is legally insufficient when the “only proper verdict” is acquittal. Tibbs v. Florida,

457 U.S. 31, 41–42, 102 S. Ct. 2211, 2218 (1982). We examine sufficiency under

the direction of Brooks, while giving deference to the responsibility of the jury “to

fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13

(Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19, 99 S. Ct. at 2788–89).

We defer to the fact finder’s resolution of conflicting evidence unless the

resolution is not rational. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007).

      Jurors are the exclusive judges of the facts, the credibility of the witnesses,

and the weight to be given the witness’s testimony. Penagraph v. State, 623

S.W.2d 341, 343 (Tex. Crim. App. [Panel Op.] 1981); Jaggers v. State, 125

S.W.3d 661, 672 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). And, they may

choose to believe or disbelieve any part of a witness’s testimony. See Davis v.



                                         13
State, 177 S.W.3d 355, 358 (Tex. App.—Houston [1st Dist.] 2005, no pet.).

Likewise, “reconciliation of conflicts in the evidence is within the exclusive

province of the jury.” Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000)

(citing Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986)).

      A person commits the offense of aggravated sexual assault of a child if the

person intentionally or knowingly causes the penetration of the anus or sexual

organ of a child by any means, and the victim is under the age of fourteen. See

TEX. PENAL CODE ANN. § 22.021 (a) (1) (B) (i), (2) (B) (Vernon Supp. 2016). The

uncorroborated testimony of a child victim is alone sufficient to support a

conviction of aggravated sexual assault of the child. See TEX. CODE CRIM. PROC.

ANN. art. 38.07 (Vernon Supp. 2016) (providing that if victim is age seventeen or

younger, requirement that victim inform another person of alleged offense within

one year does not apply); Johnson, 419 S.W.3d at 671–72.

      A person commits the offense of indecency with a child if, among other

things, he touches the breast or genitals of someone younger than 17 years of age

with the intent to arouse or gratify the sexual desire of anyone. TEX. PENAL CODE

ANN. § 21.11(a)(1), (c)(1). Touching a child through her clothing is encompassed

by the offense. § 21.11(c)(1). The required intent may be inferred from the

surrounding circumstances. Navarro v. State, 241 S.W.3d 77, 79 (Tex. App.–

Houston [1st Dist.] 2007, pet. ref’d). The uncorroborated testimony of either the



                                       14
child or an outcry witness suffices to support a conviction for indecency with a

child. Jones v. State, 428 S.W.3d 163, 169 (Tex. App.–Houston [1st Dist.] 2014,

no pet.).

      Here, Cici was nine years old at the time of the offenses. Cici testified that

Appellant pulled her underpants aside to put his mouth and tongue on her genitals.

Cici defined her genitals as the part of her body she uses to go to the bathroom.

Belle testified that on the same night, Appellant tried to unzip her shorts, but she

rolled over, dissuading him. Belle testified that she also saw Appellant move

towards Cici with a flashlight, and then stand over her.

      Cici testified that another night, she awoke to Appellant unbuttoning her

shorts and sticking two fingers into her vagina, which she demonstrated during trial

using a Kleenex box. Cici’s testimony that Appellant placed his mouth on and

finger inside her vagina is alone sufficient to support Appellant’s convictions for

aggravated sexual assault of and indecency with a child. See TEX. CODE CRIM.

PROC. ANN. art. 38.07; Jones 428 S.W.3d at 169; Johnson, 419 S.W.3d at 671–72.

      Viewing the evidence in the light most favorable to the jury’s verdict, as we

must, we conclude that a rational trier of fact could have found that Appellant

committed the offense of aggravated sexual assault of and indecency with a child,

and we defer to that finding. The jury could resolve any contradictions between

the girls’ live testimony and earlier forensic interviews in favor of the girls’



                                         15
account. See Wyatt, 23 S.W.3d at 30. Accordingly, we hold that the evidence is

sufficient to support Appellant’s conviction for aggravated sexual assault of and

indecency with a child.

      We overrule Appellant’s issues error one and two.

                          Constitutionality of Article 39.15

      In issue three, Appellant asserts “[t]he trial court erred in denying

Appellant’s motion [for] mistrial for the constitutional challenge to article 39.15 of

the Texas Code of Criminal Procedure.” Appellant argues that his limited access

to the girls’ forensic interviews under of the Texas Code of Criminal Procedure

interfered with his counsel’s and his expert’s preparations, and he was unable to

confront the child witnesses as allowed by the Confrontation Clause and Article I

Section 10 of the Texas Constitution. See U.S. CONST. amends. VI, XIV; TEX.

CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN. art. 39.15 (Vernon Supp. 2016).

Appellant asserts he should have been given copies of the videos, not access to

them. The State argues that Article 39.15 is constitutional because Appellant was

able to view the forensic interviews and use the information within them against

the girls when they testified in the trial court. We must, therefore, determine

whether the records were made reasonably available to Appellant, satisfying the

statutory requirements, and then whether the statute violates the Confrontation

Clause.



                                         16
A.    Reasonable Availability of Forensic Records under Article 39.15

      Article 39.15 of the Texas Code of Criminal Procedure provides that a court

should make a child victim’s forensic interviews reasonably available for

inspection, but should not allow the defendant’s team to copy them:

             (a) In the manner provided by this article, a court shall allow
      discovery under Article 39.14 of property or material:
      ....
             (3) that is described by Section 2 or 5, Article 38.071, of this
      code.
             (b) Property or material described by Subsection (a) must
      remain in the care, custody, or control of the court or the state as
      provided by Article 38.45.
             (c) A court shall deny any request by a defendant to copy,
      photograph, duplicate, or otherwise reproduce any property or
      material described by Subsection (a), provided that the state makes the
      property or material reasonably available to the defendant.
             (d) For purposes of Subsection (c), property or material is
      considered to be reasonably available to the defendant if, at a facility
      under the control of the state, the state provides ample opportunity for
      the inspection, viewing, and examination of the property or material
      by the defendant, the defendant’s attorney, and any individual the
      defendant seeks to qualify to provide expert testimony at trial.

TEX. CODE CRIM. PROC. ANN. arts. 39.15 & 38.071 (Vernon Supp. 2016).


      The State provided Brady notices for the forensic interviews to Appellant.

See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). Accordingly, three

times prior to trial, Appellant filed motions requesting production of the forensic

interviews of Belle and Cici, which the State opposed because it was statutorily

prevented from producing the videos:



                                        17
            1. In Texas, defendants have no general right of discovery as
      governed by Article 39.14 of the Texas Code of Criminal Procedure.
            2. The Texas legislature amended both Article 39.15 of the
      Code of Criminal Procedure and § 264.408 of the Family Code to
      prohibit a court from ordering that videotaped interview of a child
      made at a child advocacy center (CAC) be copied or otherwise
      reproduced for a defendant, as long as it is made available to the
      defendant as required under Article 39.15(d) of the Code of Criminal
      Procedure.

See TEX. CODE CRIM. PROC. ANN. art. 39.15, § (c); TEX. FAM. CODE ANN. §

264.408 (Vernon Supp. 2016) (“(d-1) . . . A court shall deny any request by a

defendant to copy, photograph, duplicate, or otherwise reproduce a video recording

of an interview described by Subsection (d),” including child forensic videos). The

trial court partially granted the motions, allowing for access to the interviews but

not to copies.

      During a break in Belle’s trial testimony, Appellant moved for the State to

provide copies of all three forensic interviews as sealed exhibits. He asserted that

Article 39.15, as applied to his case, violated his due process and confrontation

rights because any witness impeachment using the information on the tapes

required that he play back part of the tape recording or a transcript. He also asked

for a mistrial because it “hinder[ed] the defendant’s right to prepare and confront

witnesses.”      Appellant’s counsel conceded to watching the forensic interview

videos multiple times, including three times over the weekend before trial.

Appellant’s expert also reviewed all three interviews prior to trial. The trial court



                                         18
denied the motions, but ordered the forensic interviews sealed and placed in the

record for appellate purposes. Appellant proceeded to cross-examine Belle and

Cici, pointing out inconsistencies between their present testimony and the forensic

interviews.

      During its rebuttal case, the State called the forensic interviewer, and, after

Appellant waived his objections, all three interviews were admitted by the trial

court and published to the jury.

      Our sister courts, considering reasonable availability in the light of the Sixth

Amendment, have consistently held that making available forensic interviews for

defense counsel constitutes making the records reasonably available. In In Matter

of W.E.J., the Waco Court of Appeals held that a trial court did not abuse its

discretion when it interpreted Article 39.15 to bar the creation of a translated

transcript of children’s forensic interviews to play before the jury. 494 S.W.3d

178, 180 (Tex. App.—Waco 2015, pet. denied). Instead, the forensic interviews

were reasonably available when: “appellant’s counsel viewed the video of the

forensic interviews and used his own translator to transcribe and translate word for

word the interviews of the child victims from Spanish to English.”            See id.

Similarly, in Flores v. State, the videos were reasonably available when “he

received full access to the video interview and did in fact inspect the video and was

able to refer to specific times and statements on the video during his trial



                                         19
questioning.” No. 04-14-00915-CR, 2015 WL 5730263, at *3 (Tex. App.—San

Antonio Sept. 30, 2015, pet. ref’d) (mem. op., not designated for publication).

Finally, in Loveday v. State, the court said that having “ample opportunity to

review the recording before it was shown to the jury” was reasonable availability,

but rejected Appellant’s request for copies of the recording or to view the

recording outside a “State[-]controlled facility.” No. 09-12-00240-CR, 2013 WL

5874280, at *5–6 (Tex. App.—Beaumont Oct. 30, 2013, pet. ref’d) (mem. op., not

designated for publication).

      One sister court has held that the right to access the videos is statutorily

limited to defense counsel and an expert, and a court reporter cannot do so on

behalf of a defendant. In re Ligon, No. 09-14-00262-CR, 2014 WL 2902324, at

*1–2 (Tex. App.—Beaumont June 26, 2014, no pet.) (mem. op., per curiam, not

designated for publication) (granting mandamus to prevent court reporter from

transcribing child’s video despite Appellant’s argument that transcription is not

reproduction).

      Prior to trial and during trial, in the instant case, Appellant moved for copies

of all three forensic interviews, but the trial court only granted access to them and

did not provide copies. His counsel reviewed all three forensic interview videos,

including three times over one weekend break, and used inconsistencies against




                                         20
Belle and Cici during their trial testimony. Appellant’s expert also reviewed the

videos.

      We conclude that access was reasonable under Article 39.15. However,

Appellant does not argue that his access was unreasonable as defined by the

statute, but that the limitation that prevented him from copying the forensic

interviews was unconstitutional. See art. 39.15. We therefore turn to whether the

limitation violated the Confrontation Clause in the Constitution of the United

States and, therefore, whether Article 39.15 places an unconstitutional limitation

on a defendant’s access to evidence needed for cross-examination.

B.    Constitutionality of Article 39.15 as Applied Under the Confrontation
      Clause

      The Confrontation Clause of the Sixth Amendment guarantees an accused

the right “to be confronted with the witnesses against him” by having an

opportunity to cross-examine the witnesses. U.S. CONST. amends. VI, XIV; see

also Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S. Ct. 1431, 1435 (1986);

Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000). While admitting that

the goal of the Confrontation Clause is reliability of evidence, “[i]t commands, not

that evidence be reliable, but that reliability be assessed in a particular manner: by

testing in the crucible of cross-examination.” Crawford v. Washington, 541 U.S.

36, 61, 124 S. Ct. 1354, 1370 (2004); see also Henley v. State, 493 S.W.3d 77, 95

(Tex. Crim. App. 2016) (summarizing the interaction of the Confrontation Clause


                                         21
and the Texas Rules of Evidence) (upholding Lopez v. State, 18 S.W.3d 220, 225

(Tex. Crim. App. 2000).4

      “[S]tate and federal rulemakers have broad latitude under the Constitution to

establish rules excluding evidence from criminal trials.”          Holmes v. South

Carolina, 547 U.S. 319, 324, 126 S. Ct. 1727, 1731 (2006). Also, “[t]he trial court

maintains broad discretion to impose reasonable limits on cross-examination to

avoid harassment, prejudice, confusion of the issues, endangering the witness, and

the injection of cumulative or collateral evidence.” Henley v. State, 493 S.W.3d at

95; TEX. R. EVID. 101(d); Holmes, 547 U.S. at 326, 126 S. Ct. at 1732.

      The evidence rules should not, however, infringe upon defendant’s ability to

present a complete defense. Holmes, 547 U.S. at 324, 126 S. Ct. at 1731; see Smith

v. State, 236 S.W.3d 282, 292 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d);

see e.g., Coronado v. State, 351 S.W.3d 315, 324–31 (Tex. Crim. App. 2011)

(holding admission of child’s written interrogatories in lieu of live testimony,

under TEX. CODE CRIM. PROC. ANN. art. 38.071 §2, was unconstitutional); compare

with Thomas v. State, 837 S.W.2d 106, 112–14 (Tex. Crim. App. 1992) (holding in

camera review by trial court to determine whether crime stoppers information



4
      Parties do not contest the testimonial nature of the forensic examinations. See
      Woodall v. State, 336 S.W.3d 634, 642 (Tex. Crim. App. 2011) (holding that, in
      reviewing Confrontation Clause challenge, appellate courts must “first determine
      whether the Confrontation Clause is implicated.”).


                                         22
contained Brady information would meet the balance of defendant’s constitutional

rights against the State’s interest in fostering law enforcement).

      Appellant, argues that his inability to copy the forensic interviews prevented

his counsel and expert from preparing for confrontation of the witnesses, and

therefore Article 39.15 is unconstitutional.     He cites Davis v. Alaska for the

proposition that confidentiality must give way to a defendant’s right to cross-

examination. 415 U.S. 308, 320, 94 S. Ct. 1105, 1112 (1974).

      In Davis, the Supreme Court of the United States faced the question of

whether a defendant’s rights under the Sixth Amendment’s Confrontation Clause

could trump a state’s interest in keeping juvenile records confidential. Id. at 309,

94 S. Ct. at 1107. The Supreme Court held that, under the specific facts presented,

Davis’s confrontation rights would be violated if he could not show the potential

bias of the juvenile witness against him. Id. at 319, 94 S. Ct. at 1112. Specifically

where the juvenile witness, Green, was on probation for burglarizing two cabins,

Green had the potential for bias when an emptied safe was found near his family’s

property. Id. at 310–11, 317–18, 94 S. Ct. at 1107–08, 1111.

      The Court found Green to be “a crucial witness for the prosecution” because

he testified that he saw Davis near where the safe was discovered “with something

like a crowbar,” and he identified Davis in a photographic lineup and at trial. The

Court stated:



                                          23
      Richard Green was a crucial witness for the prosecution. He testified
      at trial that while on an errand for his mother he confronted two men
      standing beside a late-model metallic blue Chevrolet, parked on a road
      near his family’s house. The man standing at the rear of the car spoke
      to Green asking if Green lived nearby and if his father was home.
      Green offered the men help, but his offer was rejected. On his return
      from the errand Green again passed the two men and he saw the man
      with whom he had had the conversation standing at the rear of the car
      with ‘something like a crowbar’ in his hands. Green identified
      petitioner at the trial as the man with the ‘crowbar.’ The safe was
      discovered later that afternoon at the point, according to Green, where
      the Chevrolet had been parked.

Id. at 310, 94 S. Ct. at 1107. When he was brought in to identify the individuals on

a six person photo-array, Green identified Davis “within 30 seconds to a minute.”

Id. at 309–10, 94 S. Ct. at 1107.

      Before Green testified, the State sought a protective order to prevent

reference to Green’s juvenile record in cross-examination. Id. at 310, 94 S. Ct. at

1107. Davis opposed the motion because he wanted to argue that Green might

have been pressured to make his identifications under the fear of possible

probation revocation. Id. at 311, 94 S. Ct. at 1108. The trial court granted the

State’s motion. Id.

      On cross-examination, “counsel for petitioner did his best to expose Green’s

state of mind at the time Green discovered that a stolen safe had been discovered

near his home.” Id. at 312, 94 S. Ct. at 1108. When asked whether he was worried

about police suspicions, Green answered, “No,” but he “did admit that it crossed

his mind that the police might have thought he had something to do with the


                                        24
crime.” Id. The Alaskan Supreme Court affirmed Davis’ conviction, suggesting

that this cross-examination was sufficient to resolve any bias or motive issue. Id.

at 314–15, 94 S. Ct. at 1109–10.

      The Supreme Court of the United States did not agree that the testimony

adequately developed the issue of bias. Id. at 318, 94 S. Ct. at 1111. It suggested

that Green’s bold ‘No’ would not have been given but for the protective order and

that the police probably did question Green concerning his prior burglaries prior to

Green’s identification of Davis. Id. at 314, 94 S. Ct. at 1109. “While counsel was

permitted to ask Green whether he was biased, counsel was unable to make a

record from which to argue why Green might have been biased or otherwise lacked

that degree of impartiality expected of a witness at trial.” Id. at 318, 94 S. Ct. at

1111. The jury might have thought the inquiry was a “baseless line of attack” on a

“blameless witness” or repetitive cross-examination.        Id.   Therefore, the jury

needed access to the protected facts to draw “inferences relating to the reliability of

the witness.” Id.

      Thus, the Court held that the State’s interest in protecting the anonymity of

juvenile offenders was outweighed by Davis’ right of cross-examination, stating,

      Whatever temporary embarrassment might result to Green or his
      family by disclosure of his juvenile record—if the prosecution insisted
      on using him to make its case—is outweighed by petitioner’s right to
      probe into the influence of possible bias in the testimony of a crucial
      identification witness.



                                          25
Id. at 319, 94 S. Ct. at 1112.

      While the Texas Court of Criminal Appeals has addressed the Davis holding

in earlier cases, in Carmona v. State, it sought to clarify that Davis’s holding was

limited by its facts. 698 S.W.2d 100, 104 (Tex. Crim. App. 1985). “The opinion

in Davis is replete with references to ‘on the facts of this case,’ ‘in this setting,’

and other such references.” Id. Davis’s holding is distinguishable from other cases

in which cross-examination occurred because in Davis “the defendant was

completely deprived of the opportunity to develop his theory of the witness’ bias or

motive for testifying.” Id. The Court of Criminal Appeals held in Carmona that

Davis was not a per se rule mandating the reversal of a conviction limiting cross-

examination into juvenile offenses, but a rationale that criminal defendants be

allowed an effective cross-examination. Id. at 103–04.

      The Court also distinguished Davis because “the bias and prejudice of the

witness [was] so patently obvious” in Carmona.            Id. at 105.     The cross-

examination of the juvenile witness, Garcia, took over a day and a half by four

defense attorneys. Id. His testimony revealed that he received “great leniency”

and a grant of immunity from the State in exchange for favorable testimony; a

“chilling picture” of drug and alcohol abuse along with prior crimes since the age

of four; and to a prior aggravated perjury before a Travis County grand jury, to

which he was not immune. Id. In that case, the defendant, along with Garcia and



                                         26
other co-defendants, were accused of abducting, raping, and killing a woman. Id.

at 102.   “In sum, Garcia’s testimony vividly portrayed the life of a habitual

juvenile miscreant.” Id. at 104. Thus, the Carmona court held that a trial court can

prohibit questions about an unrelated pending charge when the defendant has

otherwise been afforded an effective cross-examination and the bias and prejudice

of the witness is patently obvious. Id. at 104–05.

      The Court of Criminal Appeals again clarified Davis in Irby v. State to mean

that a defendant must show the logical connection between the witnesses’

testimony and the witnesses’ probationary status. 327 S.W.3d 138, 146, 154 (Tex.

Crim. App. 2010).       In Irby, Irby wanted to cross-examine the testifying

complainant, W.P., about the fact the W.P. was on deferred-adjudication probation

for aggravated assault with a deadly weapon to show bias and motive, but the trial

court did not allow the impeachment. Id. at 140. Irby was charged with sexual

assault of the minor W.P. Id. Specifically, Irby cited Davis and “explained that,

on the day that W.P. told the police about the sexual encounters, W.P. believed that

he could get into trouble because William had planned to rob [Irby]” to retrieve

W.P.’s money. Id. at 142, 153. The trial court disallowed the proposed cross-

examination because it held the probation and sexual assault matters were

completely separate. Id. at 140. The Dallas Court of Appeals upheld the trial

court’s ruling. Id. at 144–45. The Court of Criminal Appeals agreed with the trial



                                         27
court’s holding that the defendant failed to show the logical connection between

the complainant’s testimony and the complainant’s probationary status. Id. at 154.

Factually, W.P. had already told other people of the sexual encounters, and the

robbery had already been foiled before W.P. spoke to the police. Id. As the court

explained, Irby “fails to suggest how William’s conduct would be attributable to

W.P. or how a false story of W.P.’s consensual sexual encounters would exonerate

or ameliorate the conduct of either of them.” Id.

      The Court of Criminal Appeals pointed out that the Supreme Court of the

United States had held that Davis should be allowed to cross-examine the juvenile

witness on probation because the State could leverage the juvenile’s probationary

status, raising the questions of bias and motivation in the witness, but that was not

always the case. Id. at 146. It stated,

      [Green] may have felt that the police would suspect him of the
      burglary both because he had a prior burglary adjudication and
      because the emptied safe was found on his family’s property. Based
      upon these particular facts, [Green] had a possible motive to divert
      suspicion from himself to another[, such as Davis]. Further, the police
      might also have brought undue pressure upon [Green] to make an
      identification of someone—anyone—because he was in “a vulnerable
      relationship” by virtue of being on probation for burglary, a fact that
      the investigating officers may also have known and used in
      questioning him.

Id. at 146.




                                          28
      The Court of Criminal Appeals went on to explain that Davis is not “a

blunderbuss,” but a “rapier” allowing for admissible evidence to impeach on bias

and motive, stating:

         In sum, Davis v. Alaska is not a blunderbuss that decimates all other
         evidentiary statutes, rules, and relevance requirements in matters of
         witness impeachment. It is a rapier that targets only a specific mode
         of impeachment—bias and motive—when the cross-examiner can
         show a logical connection between the evidence suggesting bias or
         motive and the witness’s testimony.

Id. at 152.   Thus, Davis addresses the admissibility of testimony when the

questioner can show a logical connection between the testimony and the witness

bias, not the access a defendant must have to impeachment evidence in general in

order to prepare for cross-examination. See Davis, 415 U.S. at 320, 94 S. Ct. at

1112. The Irby Court held that Davis did not apply in that case because a mere

showing that the witness was vulnerable to the State only through his probationary

status was insufficient to show the witness harbored bias in favor of the State.

Irby, 327 S.W.3d at 154. Thus, the trial court did not abuse its discretion in

excluding the impeachment evidence because it was irrelevant. Id.

      Like Davis, neither Carmona nor Irby presents the issue before us in this

case—whether access to evidence without being afforded the opportunity to copy it

is sufficient to allow for a defendant to prepare for cross-examination. By contrast

we find that In Matter of W.E.J. is similar to this case. 494 S.W.3d at 178. In In

Matter of W.E.J., the defendant argued that Davis allowed for transcription of


                                        29
children’s forensic interviews under the Confrontation Clause. Id. at 180. The

Waco Court of Appeals held, like our present case, that 39.15 did not prevent

defense counsel from confronting the juvenile accusers because counsel had

viewed the forensic interviews, had them translated, and cross-examined the

victims about the interviews. Id. Therefore, the Waco Court held that Article

39.15 did not damage the defendant’s “right to confront and cross-examine

witnesses to the degree shown in Davis.” Id. We agree with the reasoning of the

Waco Court of Appeals, and we find it applicable here.

      Appellant argues his limited access interfered with his trial preparation, but,

unlike Davis, we have already shown that, in fact, his counsel was not impeded

from using inconsistencies in the forensic interviews in his impeachment of the

trial testimony of Belle and Cici because Article 39.15 did not prevent Appellant

from confronting these juvenile accusers regarding their motivation or bias in

testifying. See generally Davis, 415 U.S. at 320, 94 S. Ct. at 1112; Irby, 327

S.W.3d at 146, 154. Also, like Carmona, by bringing the inconsistencies in the

girls’ testimony and the change in the girls’ behavior towards Appellant following

the beer bottle incident to the jury’s attention, Appellant provided the jury with

sufficient evidence to assess any bias of the girls against Appellant. Carmona, 698

S.W.2d at 104–05.      We conclude that Davis does not support Appellant’s

argument.



                                         30
      We conclude that Appellant has not shown that Article 39.15 denied

Appellant access to information necessary to allow him to confront the juvenile

witnesses. Therefore, he has not shown that Article 39.15 is unconstitutional

because it denies defense attorneys the evidence they need to confront juvenile

witnesses for their possible bias or motive.

      We overrule his third issue.

                             Improper Jury Argument

      In issues four and five, Appellant argues that the trial court erred by failing

to grant a mistrial in light of the State’s improper jury argument.

      Proper jury argument generally must occupy one of the following areas: (1)

a summation of the evidence presented at trial; (2) a reasonable deduction drawn

from that evidence; (3) an answer to the opposing counsel’s argument; or (4) a plea

for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999);

Acosta v. State, 411 S.W.3d 76, 93 (Tex.App.—Houston [1st Dist.] 2013, no pet.).

In reviewing whether jury argument falls within one of these four areas, we

consider the argument in light of the entire record. Acosta, 411 S.W.3d at 93.

Even if improper, the argument does not constitute reversible error unless, in light

of the record as a whole, the argument is extreme or improper, violates a

mandatory statute, or injects new harmful facts about the accused into the trial




                                          31
proceeding. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000);

Acosta, 411 S.W.3d at 93.

      “To preserve error in prosecutorial argument, a defendant must pursue to an

adverse ruling his objections to jury argument.” Archie v. State, 221 S.W.3d 695,

699 (Tex. Crim. App. 2007). When complaining about improper jury argument,

the proper method of pursuing an objection to an adverse ruling is to (1) object, (2)

request an instruction to disregard, and (3) move for a mistrial. TEX. R. APP. P.

33.1; Sawyers v. State, 724 S.W.2d 24, 38 (Tex. Crim. App. 1986), overruled on

other grounds by Watson v. State, 762 S.W.2d 591, 599 (Tex. Crim. App. 1988);

Ashire v. State, 296 S.W.3d 331, 343 (Tex. App.—Houston [1st Dist.] 2009, pet.

ref’d). If the objection is sustained, the failure to request an instruction for the jury

to disregard forfeits appellate review of errors that could have been cured by such

an instruction. See Young v. State, 137 S.W.3d 65, 70 (Tex. Crim. App. 2004);

Ashire, 296 S.W.3d at 343. If such an instruction could not have “cured” the

objectionable event, a motion for mistrial is the only essential prerequisite to

presenting the complaint on appeal. Young, 137 S.W.3d at 70.

      Moreover, a prompt instruction to disregard ordinarily cures any harm from

improper argument.      Wesbrook, 29 S.W.3d at 115–16.            And, on appeal, we

generally presume the jury followed the trial court’s instructions. See Thrift v.

State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005).



                                           32
      We review a trial court’s ruling on a motion for mistrial for an abuse of

discretion. See Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).

A.    Injection of Evidence Outside the Record

      In issue four, Appellant asserts “[t]he trial court erred when it overruled

Appellant’s objection to the improper argument of the prosecutor injecting

evidence outside the record.” For issue number four, Appellant asserts that the

State’s statement that Appellant “bashed [Mother’s] head in with a beer bottle”

was outside the evidence when the bottle was “thrown.” Appellant asserts that the

trial court’s instruction to the jury was insufficient to cure the comment.

      The State contends that “bashing” is a logical inference of the evidence. The

State also asserts that both comments were invited by defense counsel’s argument.

Even if the comments were harmful, the State argues Appellant’s substantive rights

were not affected because the harm was not severe, the trial court’s jury

instructions were curative, and any effect was minimal because the sentence was

on the lower end of the sentencing range.

      During the guilt phase of the trial, Mother conceded that she threw a six-

pack of beer at Appellant, and then he threw a twelve-pack of beer at her. Alice

also testified that she heard a loud boom, and then saw her mother on the floor next

to broken glass beer bottles, with a bleeding gash on her forehead, and smelling of

beer and blood.



                                          33
      During the sentencing phase, the State argued that the jury could consider

Appellant’s violent history because they could consider his character.        After

recounting Appellant’s mistreatment of his ex-wife, the State suggested he

continued the same pattern of behavior with Mother because “when she starts

acting up, [he] bash[ed] her head in with a beer bottle.” Appellant objected,

“There’s no evidence he bashed her head with a beer bottle. He threw the beer

bottle after she threw beer cans at him.” The trial court overruled the objection

with an instruction, “Okay. Overruled. The jury—what the attorneys say in

closing arguments is not evidence, and the jury will rely on what the testimony was

presented.” The State continued with its argument that Appellant was a “violent,

violent person.”

      On Appeal, Appellant argues that the trial court erred when it overruled

Appellant’s objection to the improper argument of the State because “there was no

evidence that Appellant “bashed [Mother’s] head in with a beer bottle.” Because

Appellant’s objection resulted in an adverse ruling, his objection is preserved

without the necessity of requesting a curative instruction or asking for a mistrial.

See TEX. R. APP. P. 33.1; Sawyers, 724 S.W.2d 38; Young, 137 S.W.3d at 70;

Ashire, 296 S.W.3d at 343.

      The trial court, then, immediately offered a curative instruction. And on

appeal, we presume the jury followed the trial court’s instructions, curing any harm



                                        34
from improper argument. Thrift, 176 S.W.3d at 224; Wesbrook, 29 S.W.3d at 115–

16. Moreover, the Texas Penal Code does not distinguish between throwing and

bashing, so while factually distinguishable, the distinction is legally meaningless—

legally Appellant hit Mother with a beer bottle. See TEX. PENAL CODE ANN.

§§ 1.07, 21.01 (Vernon Supp. 2016), 21.02 (Vernon 2016). Because we presume

the jury followed the curative instruction, we must presume an error, if any, was

cured.

         We overrule Appellant’s fourth issue.

B.       Invited Argument

         In issue number five, Appellant argues, “The trial court erred in denying

Appellant’s motion for mistrial based upon the prosecutor’s improper jury

argument.” Appellant asserts that the State struck over the defense counsel’s

shoulders against Appellant, as improper jury argument, when the State said,

“Don’t let anyone tell you or make you feel bad about your verdict. That’s not

right.” For this issue, Appellant asserts that the trial court’s instruction to the jury

was insufficient to cure either comment.

         During closing argument at the punishment phase, Appellant suggested that,

because the jurors took ten hours to reach their verdicts, some jurors “had doubts

about whether or not he was guilty of either of these two charges.” Appellant

suggested to the jury “[t]hat residual doubt that you may have had is something



                                           35
you can consider in determining whether you should give him a long time in prison

or a short.” Later in his argument, Appellant reminded the jury to “[t]hink about

the questions you had about whether or not he was guilty.”

       The State responded that the jury “took [] a long time to deliberate,” because

“[y]’all have processed days and days of testimony.” The State went on to say,

“Don’t let anyone tell you or make you feel bad about your verdict. That’s not

right.”   But Appellant objected, and the trial court sustained the objection.

Appellant requested an instruction, and the trial court instructed to the jury to

disregard the last comment. Appellant then asked for, but the trial court denied, a

request for mistrial. Because Appellant (1) objected, (2) requested an instruction

to disregard, and (3) moved for a mistrial, he has preserved his issue for our

review. See TEX. R. APP. P. 33.1; Sawyers, 724 S.W.2d 38; Ashire, 296 S.W.3d at

343.

       The State may argue subjects that would otherwise be improper when

invited to do so by the defendant’s own remarks. Acosta, 411 S.W.3d at 93 (citing

Albiar v. State, 739 S.W.2d 360, 362 (Tex. Crim. App. 1987)). Appellant asserted

that ten hours of deliberations suggested the jury had doubts about the guilty

verdict and revived those feelings within the jury to achieve a lesser punishment.

Appellant invited the State’s argument that the jury need not feel guilty about

taking ten hours because that was part of the jury deliberation process.         See



                                         36
Wesbrook, 29 S.W.3d at 115; Albiar, 739 S.W.2d at 362; Acosta, 411 S.W.3d at

93. Even if the argument was not invited, the trial court sustained the objection,

and at Appellant’s request, immediately issued an instruction to disregard the last

comment. We presume the jury follows a curative instruction. Thrift, 176 S.W.3d

at 224; Wesbrook, 29 S.W.3d at 115–16.

      Appellant, however, argues that the comment was extreme enough to

overcome the presumption that the jury followed the instruction because the

comment struck over the shoulders of counsel. Specifically, Appellant asserts,

“Striking at a defendant over defense counsel’s shoulders is impermissible, as it

falls outside the generally permissible areas of jury argument,” citing Davis v.

State, in support. 268 S.W.3d 683, 712–13 (Tex. App.—Fort Worth 2008, pet.

ref’d). Striking over counsel’s shoulders involves the State calling defense counsel

a liar or accusing counsel of suborning perjury. Id. (citing Gomez v. State, 704

S.W.2d 770, 772 (Tex. Crim. App. 1985)). However, claiming the defense counsel

is arguing “something ridiculous” is directed at defense counsel’s argument, not at

defense counsel. Id. at 713.

      Telling the jury that they shouldn’t feel bad about taking a long time for a

verdict is more akin to calling Appellant’s argument ridiculous than calling his

counsel a liar.   See id.      Because the State’s comments attacked Appellant’s

arguments, rather than his counsel personally, the argument did not strike over his



                                          37
shoulders. See Acosta, 411 S.W.3d at 93 (stating that State’s comments suggesting

jury not be “fooled” by defense’s “good lawyering” and that argument was “just

words from the defense attorney’s mouth,” attacked defense counsel’s arguments,

not defense counsel personally); Garcia v. State, 126 S.W.3d 921, 925 (Tex. Crim.

App. 2004) (holding that State’s comment that defense was “argu[ing] that

hogwash that you’ve heard” was State’s opinion of defense’s arguments, not an

attack on counsel’s personal integrity). Because the argument did not strike over

the shoulders of counsel, the conduct did not rise to a level sufficient to overcome

the presumption that the jury followed the curative instruction. Thrift, 176 S.W.3d

at 224; Wesbrook, 29 S.W.3d at 115–16. As the instruction was curative, we

conclude the trial court did not abuse its discretion in denying the mistrial. See

Hawkins, 135 S.W.3d at 77.

      We overrule Appellant’s fifth issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                             Laura Carter Higley
                                             Justice

Panel consists of Justices Keyes, Higley, and Lloyd.

Publish. TEX. R. APP. P. 47.2(b).


                                        38
