                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                     No. 07-10-00220-CR


                          JONATHAN JACOBSON, APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE

                           On Appeal from the 140th District Court
                                    Lubbock County, Texas
              Trial Court No. 2007-418,173, Honorable Jim Bob Darnell, Presiding

                                       June 14, 2013

                             MEMORANDUM OPINION
                 Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


      Appellant, Jonathan A. Jacobson, appeals his conviction, by jury, for aggravated

sexual assault of a child1 and the resulting punishment of 45 years imprisonment. On

appeal, he contends the trial court erred by overruling his objection to the State‘s jury

argument striking at him over the shoulders of counsel. We will affirm.




      1
          See TEX. PENAL CODE ANN. § 22.021(a)(2)(B) (West Supp. 2010).
                          Factual and Procedural Background


      By prior opinion issued in this Court, we affirmed appellant‘s conviction. See

Jacobson v. State, 343 S.W.3d 895 (Tex.App.—Amarillo 2011). In so doing, we held

that appellant‘s action in admitting that he had an ongoing sexual relationship with the

under-aged victim during the punishment portion of the trial precluded the Court from

addressing the merits of appellant‘s claim. Id. at 899. Subsequently, the Texas Court

of Criminal Appeals granted appellant‘s petition for review and held that a criminal

defendant who testified at the punishment stage of a trial and admitted guilt did not

forfeit his right to complain on appeal about errors occurring during the guilt-innocence

stage of the trial. Jacobson v. State, No. PD-1466-11, 2013 Tex. Crim. App. LEXIS

254, at *2 (Tex.Crim.App. Feb. 6, 2013). Accordingly, the Texas Court of Criminal

Appeals remanded the case to this Court to consider the merits of appellant‘s

contention regarding the objections to the State‘s final arguments. Id. at *28.


      Appellant does not challenge the sufficiency of the evidence to support the

conviction. In fact, he concedes that the evidence was sufficient. In light of his sole

issue on appeal, we address only those facts necessary to the disposition of the appeal.


      Appellant was a family friend of complainant, B.J.P. The relationship between

twelve-year-old B.J.P. and twenty-year-old appellant began as one resembling siblings

but transformed into a possessive, sexual relationship. After a number of outbursts by

appellant in response to any effort to keep B.J.P. away from him and after discovering

love letters between appellant and B.J.P., B.J.P.‘s mother reported her suspicions to the

Lubbock Police Department. The department began its investigation.



                                            2
       Initially, B.J.P. was reluctant to discuss her relationship with appellant. Early in

her interview with Detective Richard Mayer, she denied the existence of a sexual

relationship. Based on his investigation up to that point, however, Detective Mayer

sensed that B.J.P. was not being truthful with him and, so, he persisted in asking her

questions while reassuring her that, if she and appellant had had a sexual relationship,

she would not be in trouble. B.J.P. admitted that she and appellant did have a sexual

relationship.


       During cross-examination, Mayer testified that, at the beginning of his

investigation, he did not know whether appellant was guilty or innocent.                 Mayer

explained that, even after B.J.P. admitted that she and appellant had engaged in sexual

intercourse, he continued his investigation into the matter:


       I still knew that even with her saying yes [that sexual intercourse did
       occur] that I would need more to prove the case, which would be the
       CARE exam. So I wasn‘t like, ―Oh, I got this one in my win pile,‖ you know
       . . . I still have to go through the steps of investigation to be sure that I‘m
       not just falsely accusing somebody of something.

       During closing argument to the jury, defense counsel seized on the ―win pile‖

phrase and focused on Detective Mayer‘s investigatory approach as he attempted to

paraphrase Mayer‘s testimony:


       Some of the things that Detective Mayer told you that came out, that just
       jumped up. ―We have to ask ourselves, now, what is it going to take as far
       as details, as far as testimony, to put this case in the win pile?‖ You
       remember that‘s what the detective said, ―in the win pile.‖ And he thought
       about that. From the interview with Mike Privette right off the bat, the first
       interview.
       ...




                                             3
       The State then asked the detective if he was uncomfortable, and he felt
       essentially as though he had been attacked, because he sat in that chair
       and faced hard questions . . . . We start with him talking about how he put
       it in the win pile. Not about an investigation. Not about following where
       the evidence leads. You heard him say, ―We know what happened. We
       know who did it.‖

Defense counsel‘s jury argument continued in a rather scathing tone, characterizing the

investigation as a ―witch hunt.‖


       The State responded in its argument to the jury: ―Somebody in this courtroom

has an end result that they will twist and turn and fill in the holes to make it work–‖

Appellant objected to the State‘s argument as striking at appellant over shoulders of

counsel, and the trial court overruled appellant‘s objection. The State completed its

argument by stating: ―The Defense in this case had their end result, and they will twist

the words of Detective Mayer. And if you don‘t believe me, how many times did he

stand up here and use the word ‗win pile‘?‖


       After hearing the evidence during the guilt-innocence stage of the trial, the jury

found appellant guilty of aggravated sexual assault of a child, as alleged in the

indictment and, after considering the punishment evidence, sentenced appellant to

confinement for 45 years in the Institutional Division of the Texas Department of

Criminal Justice.


       Appellant timely appealed and now contends that the State struck at defendant

over the shoulders of counsel. He maintains that the trial court erred by overruling his

objection to the State‘s argument and that, in light of the nature of the State‘s argument

and the absence of any curative instruction to the jury, such error was harmful.




                                              4
                                         Analysis


      If we assume, arguendo, that the trial court erred in overruling appellant‘s

objections to the State‘s argument, something we do not decide, then, we must

ascertain whether such error was harmful. In making a harm determination, we are

mindful that improper jury argument is nonconstitutional error. See Brown v. State, 270

S.W.3d 564, 572 (Tex.Crim.App. 2008). Consequently, our determination of harm is

guided by the strictures of Texas Rule of Appellate Procedure 44.2(b), which provides

that ―[a]ny other error, defect, irregularity, or variance that does not affect substantial

rights must be disregarded.‖ TEX. R. APP. P. 44.2(b).2 In analyzing this proposition, we

are taught to weigh three factors: (1) the severity of the misconduct, (2) measures

adopted to cure the misconduct, and (3) the certainty of conviction absent the

misconduct. See Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998) (op. on

reh‘g) (citing United States v. Millar, 79 F.3d 338, 343 (2nd Cir. 1996), and United

States v. Palmer, 37 F.3d 1080, 1085 (5th Cir. 1994)).


      When reviewing the record to determine the severity of the misconduct, we note

that the objected-to portion of the final argument accounted for less than a page of the

State‘s nine-plus pages of closing arguments on the issue of guilt or innocence.

Further, the argument of the State‘s attorney, when read in the context of the closing

argument of appellant‘s trial counsel, appears to be an attempt to respond to the

argument of appellant‘s trial counsel, which mischaracterized Detective Mayer‘s

testimony. While the State‘s attorney may have gone too far, it does not appear that the


      2
        Further reference to the Texas Rules of Appellate Procedure will be by
reference to ―Rule ___.‖

                                            5
argument is extreme or manifestly improper when the entire record of final arguments is

taken into consideration. See Brown, 270 S.W.3d at 573. Additionally, the State never

returned to the subject matter after the initial objection by appellant. The error, which

we have assumed, was not of the magnitude to lead us to conclude the State‘s

argument was part of a willful and calculated effort to deprive appellant of a fair and

impartial trial. See id. Accordingly, the first Mosley factor appears to only slightly favor

appellant.


         Regarding curative efforts of the trial court to correct the situation, the objection

was overruled.      Accordingly, no instruction was given.      This results in the second

Mosley factor to weigh in favor of appellant.


         Finally, there is the third Mosley factor: the certainty of conviction absent the

improper comments. Mosley, 983 S.W.2d at 259. Our review of the record leads us to

conclude that the evidence of appellant‘s guilt was substantial. The jury heard the

victim testify in graphic detail about a series of escalating incidents of sexual assault

that began when she was 12 years old and continued for over a year. The jury also

heard the sexual assault nurse examiner explain in clinician‘s detail the physical

evidence and how this supported the victim‘s testimony. Lastly, there were the notes

that the victim and appellant sent to each other. These notes supported the victim‘s

recitation of how appellant attempted to separate the victim from the rest of her family

and friends. In short, the record demonstrates that the conviction of appellant, even

without the comments, appeared certain, and, accordingly, this factor weighs heavily in

favor of the State. See Martinez v. State, 17 S.W.3d 677, 693 (Tex.Crim.App. 2000) (en

banc).

                                                6
        Our review of the Mosley factors leads to our conclusion that appellant was not

harmed by the comments of the State‘s attorney during final arguments. See Rule

44.2(b). Appellant‘s sole issue is overruled.


                                       Conclusion


        Having overruled appellant‘s sole point of error, we affirm the judgment of the

trial court.




                                                Mackey K. Hancock
                                                    Justice


Do not publish.




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