                                                                                   PD-1318-15
                             PD-1318-15                           COURT OF CRIMINAL APPEALS
                                                                                  AUSTIN, TEXAS
                                                                Transmitted 11/18/2015 1:26:48 PM
                                                                  Accepted 11/18/2015 3:43:04 PM
                                                                                   ABEL ACOSTA
                                                                                           CLERK
                         NO.

                    IN THE   COURT OF CRIMINAL APPEALS
                        OF TEXAS AT AUSTIN, TEXAS

                               STEVEN DELEON,
                                            Appellant
                                       v.


                             THE STATE OF TEXAS,
                                            Appellee


        APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

                    FROM THE THIRD COURT OF APPEALS
                             AT AUSTIN, TEXAS
                        CAUSE NUMBER 03-13-00202-CR

                    ON APPEAL FROM THE 421“ DISTRICT COURT
                          OF CALDWELL COUNTY, TEXAS
                             CAUSE NUMBER 2012-166
                     HONORABLE TODD BLOMERTH, PRESIDING

                               KERRISA CHELKOWSKI
                         The Law Office of Kerrisa Chelkowski
                                  1017 South Alamo
                              San Antonio, Texas 78210
                               Telephone: (210) 228-9393
November 18, 2015              Telecopier: (210) 226-7540
                                 State Bar No. 24034373

                             ATTORNEY FOR APPELLANT
                          ORAL ARGUMENT REQUESTED
                           IDENTIFICATION OF THE PARTIES
TRIAL JUDGE:
Honorable Todd Blornerth, 4215‘ District Court

FOR THE STATE OF TEXAS:
Luke Alsobrook — Counsel at Trial
Bar No. 24059374
Katy Alsobrook — Counsel at Trial and on Appeal
Bar No. 24051894
Assistant District Attorneys for Caldwell County
201 E. San Antonio Street
Lockhait, Texas 78644
TELEPHONE:        (512) 398-1811

Lisa McMinn — Counsel on Appeal
Bar No. 13803300
State Prosecuting Attorney
P.O. Box 13046
Austin, Texas 78711
TELEPHONE: (512) 463-5724
APPELLANT/PETITIONER’S COUNSEL:
Kevin Collins — Counsel at Trial
Bar No. 04625510
600 Navarro, Suite 250
San Antonio, Texas 78205
TELEPHONE: (210) 223-9480
J eb   Lock — Counsel   at Trial
Bar No. 24050943
1011 South Alamo
San Antonio, Texas 78210
TELEPHONE: (210) 602-9646
Kerrisa Chelkowski      — Counsel on Appeal
Bar No. 24034373
1017 South Alamo
San Antonio, Texas 78210
TELEPHONE: (210) 228-9393
THIRD COURT OF APPEALS PANEL:
Chief Justice Jeff Rose — Authored the opinion
Justice Bob Pemberton
Justice Cindy Olson Bourland




                                        iii
                                    TABLE OF CONTENTS
                                                                                      PAGE1 S1

PARTIES TO THE CASE ................................................................              ..ii



INDEX OF AUTHORTIES ................................................................ ..v
STATEMENT REGARDING ORAL ARGUMENT ................................ ..Vii
STATEMENT OF THE CASE ........................................................... ..2
STATEMENT OF PROCEDURAL HISTORY ........................................ ..3
GROUND FOR REVIEW ................................................................. ..3
ARGUMENT AND AUTHORITIES .................................................... ..4
PRAYER ....................................................................................   ..12


CERTIFICATE OF SERVICE ............................................................ ..13

CERTIFICATE OF COMPLIANCE .................................................... ..14

APPENDIX ................................................................................     .   .   15




                                                iv
                                 INDEX OF AUTHORITIES
                                                                                      PAGE§S[
CASES
Abbott   v.       State,
         196 S.W.3d 334 (Tex. App.—-Waco 2006,           pet. refd) ......................... ..8


Archie v. State,
      340 S.W.3d 734 (Tex. Crim. App. 2011) ........................................ ..8

Bustamante v. State,
      48 S.W.3d 761 (Tex. Crim. App. 2001) .......................................... ..6

Dickinson v. State,
      685 S.W.2d 320 (Tex. Crim. App. 1984) ........................................ ..9

Eastep    v.      State,
       919 S.W.2d 151 (Tex. App.-Dallas 1996) ......................................         ..10


F[ores v. State,
         194 S.W.3d 34 (Tex. App. Texarkana 2006) .................................... ..7

Garrett v. State,
         632 S.W.2d 350 (Tex. Crim. App. 1982) ........................................ ..9

Guidry       v.   State,
         9 S.W.3d 133 (Tex. Crim. App. 1999) ........................................... ..4

Johnson        v.   State,
         611 S.W.2d 649 (Tex. Crim. App. 1981) .......................................       ..10


Ladd v.      State,
         3    S.W.3d 547 (Tex. Crim. App. 1999) ........................................... ..6

Mosley v.          State,
         983 S.W.2d 249 (Tex. Crim. App. 1998) ..................................... ..7,           8


Owen V.        State,
         656 S.W.2d 458 (Tex. Crim. App. 1983) .................................... ..9, 10
Patrick v. State,
         906 S.W.2d 481 (Tex. Crim. App. 1995) ..................................... ..10

Pollard v. State,
         552 S.W.2d 475 (Tex. Crim. App. 1977) ........................................                   ..6


Riney   v.    State,
         28 S.W.3d 561 (Tex. Crim. App. 2000) ........................................               ..   10

Silva   v.    State,
         989 S.W.2d 64 (Tex. App. San Antonio 1998) .................................. ..6

Simpson        v.   State,
         119 S.W.3d 262 (Tex. Crim. App. 2003) ........................................                   ..6


Smith    v.   State,
         65 S.W.3d 332 (Tex.           App.—Waco 2001, no pet.) .............................. ..4

Wesbroolc v. State,
      29 S.W.3d 103 (Tex. Crim. App. 2000) ..........................................                     ..8



Wood V.        State,
         18 S.W.3d 642 (Tex. Crim. App. 2000) ..........................................                  ..6




RULES & STATUTES

TEX.     R.    APP. PRO. 38 .................................................................. ..4, 9

TEX. R. APP.            P. 44.2(a) .................................................................... ..7




                                                        Vi
                   STATEMENT REGARDING ORAL ARGUMENT
      Appellant believes and respectfully suggests to this Court that the important

issues raised in this petition are worthy of oral argument. Appellant believes that

presentation of oral argument in this case will assist this Court in understanding the

effects   of the Third Court of Appeals’ opinion on the lower courts which are bound

to follow    its   law. Therefore, for the above reasons he respectfully requests oral

argument.




                                             vii
                           NO.

                 IN   THE COURT OF CRIMINAL APPEALS
                        OF TEXAS AT AUSTIN, TEXAS

                                 STEVEN DELEON,
                                                 Appellant
                                            V.


                             THE STATE OF TEXAS,
                                                 Appellee


      APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

                 FROM THE THIRD COURT OF APPEALS
                            AT AUSTIN, TEXAS
                       CAUSE NUMBER 03-13-00202-CR

                ON APPEAL FROM THE 421“ DISTRICT COURT
                      OF CALDWELL COUNTY, TEXAS
                         CAUSE NUMBER 2012-166
                 HONORABLE TODD BLOMERTH, PRESIDING


TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
APPEALS:
      NOW COMES, Steven DeLeOn, Appellant in this cause, by and through his
attorney of record, Kerrisa Chelkowski, and pursuant to the provisions of TEX. R.

APP. PRO. 66,   et seq.,   moves   this   Court to grant discretionary review, and in

support shows the following:
                                  STATEMENT OF THE CASE
         Appellant, Steven DeLeon,               was charged by indictment of one count of

Continuous Sexual Abuse of                 A     Child, and   two counts of Aggravated Sexual

Assault of a Child, each count a First Degree Felony, in Cause                      Number 2012-166.

CR1:     9-10.’ Trial before a jury          was held     in the 4215‘ District Court          of Caldwell

County, Texas, the Honorable Todd Blomerth Presiding. RRl:                            1.      DeLeon     pled

“Not Guilty”       to the allegations       on February     20"‘,   2013 and the jury returned with

its   Verdict   on February      25”‘,   2013. RR7: 68.        DeLeon was found             “guilty” of the


single count of Continuous Sexual                Abuse of a Child.      R7: 68.
          The jury sentenced DeLeon              to   32 years imprisonment. RR7: 128. DeLeon

ﬁled a timely Notice of Appeal on March 18, 2013. CR2: 707.                                       Petitioner


complained on appeal, among other                 issues, that the trial court erred        when   it   denied

his   Motion     for Mistrial after he objected to the prosecution’s improper                  comment on

his failure to testify. This Petition challenges the Third Court of Appeals ruling                          on



    Appellant uses the following abbreviations to refer to the record in this case:
1




          a.   CRV0l#: page # refers to the Clerk’s record containing the evidence, documents,
               motions and pleadings of the parties, judgment, orders, etc. of the court. Supp. refers
               to the   Supplemental C1erk’s Record.

          b.   RRVol.#: page#    refers to the   volumes prepared by the Court Reporters       in connection
               with Appellant’s pretrial hearings, voir dire, trial, sentencing,   etc.    MNT refers to the
               record on the hearing for the Motion for New Trial.

          c.    See App.Br.SOF:    _     refers to the Statement   of Facts section of Appellant’s Brief.
whether     trial   court abused         its   discretion    when    it   denied Petitioner’s Motion for

Mistrial.




                             STATEMENT OF PROCEDURAL HISTORY
        On May 29, 2015, the Third Court of Appeals issued an unpublished                            opinion

affirming the       trial   court’s decision attached in the Appendix.                 DeLe0n v.   State,   No.

03-13-00202~CR, (Tex. App.—Austin,                        May   29, 2015).       The   appellate court found


that the trial court did not abuse               its   discretion   when    it   denied Petitioner’s Motion

for Mistrial after he objected to the prosecution’s improper                        comment on     his failure


to testify,      and further denied Petitioner’s remaining points of error.

        On       September     17, 2015, the           Third Court of Appeals overruled Appellant’s

Motion      for Rehearing. After this Honorable Court granted Appellant’s                          Motion   for


Extension of Time to File the Petition for Discretionary Review, Appel1ant’s

Petition    is   timely ﬁled on     November            18, 2015.




                                         GROUND FOR REVIEW
SOLE ISSUE: The Third Court of Appeals erred in ﬁnding the trial court did not
abuse   its   discretion     when   it   denied Petitioner’s Motion for Mistrial after the

prosecution improperly commented on Petitioner’s failure to                            testify.
                               ARGUMENT AND AUTHORITIES
         Jury argument     is       limited to: (1)   summations of the evidence;            (2) reasonable

deductions from the evidence; (3) answers to argument of opposing counsel; and

(4) a plea for       law enforcement. Guidiy            v.    State, 9   S.W.3d 133, 154 (Tex. Crim.

App. 1999).         “A comment on         an accused’s failure to          testify violates the accused’s


state    and federal constitutional privileges against self—incrimination.” Smith                        v,



State,   65 S.W.3d 332, 339 (Tex.            App.—Waco 2001, no pet.); see also TEX. CODE

CRIM. PROC. ANN. art.                38.08 (Vernon 2005).

         At the sentencing phase of the           trial,     during the state’s closing argument, the

prosecutor stated to the jury:


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

         Mr. Collins: Your honor, could we approach the bench‘?

                                     (Bench Conference)

         Mr. Collins: 1 am going to ask for a mistrial. He did not testify at
         punishment. He just said to the jury, if he got up on the stand at this
         phase and told you —

         l\/Ir.   Alsobrook:    I   was speciﬁcally referring to         guilt/innocence.

         Mr. Collins:  He didn’t say that. He said, if he got up here and                       asked
         for forgiveness — this --- I’m asking for a mistrial, Judge.

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

         Mr. Collins: That’s unbelievable.
                                   (Open Court.)
        The Court: Ladies and gentlemen, the last comment by the prosecutor
        is improper, and you will not consider that for any purpose
        whatsoever.

        Mr. Collins: Your honor,           is   that a ruling    on the mistrial,         as well?

        The Court: Denied.” RR7: 124-125.

        This was a blatant and intentional                comment on DeLeon’s                failure to testify.


To   construe     it   as anything else    would be outrageous. During the guilt/innocence

stage of the      trial   DeLeon’s took the stand              to testify.    However, DeLeon did not

testify during the            punishment phase. Even           if the state tried to        argue that    it   was

referring to his trial testimony,           which    it   clearly   was      not,   would be more absurd.

No    defendant would take the stand during guilt/innocence and profess their guilt

and take responsibility for the crime he                  is   accused      of.     That would completely

vacate the purpose of pleading “not guilty” and letting ajudge or jury decide on the

verdict.    The only time a defendant might take                  the stand and profess his guilt and

apologize    is   during the sentencing phase of the              trial   and even that      is   improbable, as

it   would vacate any           positive result   on appeal. The             state clearly        commented on

DeLeon’s      right to         remain   silent thereby violating his Fifth                 Amendment       right.


        The Third Couit of Appeals              relied    on   this Court’s direction         when reviewing

the denial of a motion for mistrial and reviewed under an abuse of discretion

standard.     As       this   Court has ruled, the denial of a motion for                   mistrial,   which    is


appropriate for “highly prejudicial and incurable errors,”                           is    reviewed under an
abuse of discretion standard. See Simpson                   v.   State, 119       S.W.3d 262, 272 (Tex.

Crim. App. 2003) (quoting                Wood V.   State, 18     S.W.3d 642, 648 (Tex. Crim. App.

2000)); Laola’ v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999).

         Over    thirty years   ago in Pollard       v.   State,   552 S.W.2d 475 (Tex. Crim. App.

1977) this Honorable Court held that where (Pollard) was the only person                               who

could refute the complainant’s testimony; the prosecutor’s reference to the

complainant’s testimony as uncontroverted was a                     comment on (Pollard’s)        failure to


testify.    The same reasoning            applies here because Appellant              was the only person

who   could have testiﬁed and apologized to the jury, which in effect would be a

admission of         guilt,    in   answer to the prosecutor’s comments to the                         jury.


           A   prosecutor cannot         comment on       a defendant’s failure to testify because

such a comment violates the privilege against self-incrimination and the freedom

from compulsion        to testify contained in the Fifth             Amendment of the United          States


Constitution and Article            1,   section 10, of the Texas Constitution. Bustamante                v.



State,     48 S.W.3d 761, 764 (Tex. Crim. App. 2001).                         A    prosecutor’s statement

constitutes a direct          comment on       a defendant’s failure to testify if           it   references

evidence that only the defendant can supply. Silva                      v.   State,   989 S.W.2d 64 (Tex.

App. San Antonio 1998). The prosecution knew                           that   an apology from DeLeon

would be a de facto admission of guilt.

           Because commenting on a defendant’s                     failure to testify violates     both the
U.S. Constitution and the Texas Constitution this error                      is   constitutional error under


Texas Rule of Appellate Procedure (T.R.A.P.) Rule                            44.2.    Constitutional error,

within the context of T.R.A.P. Rule 44.2               (a), is       “an error that directly offends the

United States Constitution or the Texas Constitution without regard to any statute

or rule that might also apply.”                 Flores    v.    State, 194         S.W.3d 34 (Tex. App.

Texarkana 2006). Rule 44.2(a) provides: “If the appellate record                           in a criminal case


reveals constitutional error that          is   subject to harmless error review, the court of

appeals must reverse a judgment of conviction or punishment unless the court

determines beyond a reasonable doubt that the error did not contribute to the

conviction or punishment.”

         The question of whether a          mistrial should          have been granted involves most,

if not all,   of the same considerations that attend a harm analysis.                       A mistrial is the
trial   court’s   remedy     for improper conduct that          is   “so prejudicial that expenditure of

further time and expense           would be wasteful and               futile.” In effect,      the   trial   court

conducts an appellate function: determining whether improper conduct                                          is   so


harmful that the case must be redone.             Of course,          the   harm    analysis   is   conducted      in


light    of the    trial   court’s curative instruction. Therefore, the appropriate test for


evaluating whether the          trial   court abused     its   discretion in overruling a             motion       for


mistrial    is    a version of the test originally set out in               Mosley    v.   State,   983 S.W.2d

249, 259-60 (Tex. Crim. App. 1998), a              harm        analysis case.
         The Mosley           factors that the appellate court             must consider     in determining


whether the        trial     court abused      its   discretion in denying a mistrial during the


punishment phase             are: (l) the prejudicial effect, (2) curative            measures, and (3) the

likelihood of the            same punishment being             assessed.    See Mosley, 983 S.W.2d           at


259; see Abbott         v.   State, 196   S.W.3d 334, 347 (Tex.            App.—Waco 2006, pet.         refd).

Considering the Mosley factors, the                  trial   court abused    its   discretion in denying the

motion for mistrial and the appellate court further erred                     in affirming the decision to


deny the motion. The prejudicial                 effect      of the prosecutor’s remark was incurable

because the comment was direct and ﬂagrantly improper. The                                      trial   court’s


instruction to disregard          was an     insufficient curative         measure in     this instance.   See

Wesbrook V.       State,     29 S.W.3d 103, ll5~l6 (Tex. Crim. App. 2000); see also Archie

v.   State,   340 S.W.3d 734, 741 (Tex. Crim. App. 2011).

         Finally,   DeLeon was            facing a sentence of a         minimum of 25       years in prison

with no possibility of parole. Punishment evidence included only of numerous

witnesses        discussing        DeLeon’s good               nature,     professional     demeanor,      and

appropriate interaction with his students.                   The   State did not put     on any punishment

evidence or witnesses.               Their entire case at punishment relied on their jury

argument. The likelihood of the same punishment being assessed without the

State’s   comment is very          low.

         The    trial   court erred in denying his motion for mistrial after the prosecution
commented on            Petitioner’s failure to testify.                The Texas Code of Criminal

Procedure states that the failure of a defendant to                       testify “shall not      be taken as a

circumstance against him, nor shall the same be alluded to or commented on by

counsel.”      TEX. CODE. CRIM. PROC.                           art 38.08.    The     test   of whether closing

remarks are proper         is    whether the language was such that a jury would naturally

and necessarily take        it   to    be a comment on the accused’s                 failure to testify. Garrett


v.   State,   632 S.W.2d 350 (Tex. Crim. App. 1982).

         The    facts   of this case mirror those of               Owen      v.   State,   656 S.W.2d 458, 459

(Tex. Crim. App. 1983). In                  Owen, the prosecution commented                   that the Appellant


had the opportunity, during the punishment phase,                       to take the stand        and say he was

sorry, but that he did not             do   it.   The prosecutor went on            to say that the jury should


not assess probation as punishment where the defendant had not apologized for

what happened.           This Court stated that if the remark complained of called the

jury’s attention to the absence of evidence, which only the testimony from the

appellant could supply, the conviction must be reversed.                                   The remarks   that the


defendant failed to apologize during the punishment phase were said to be direct

references to what the jury had not heard the appellant say.

         Similarly, in Dickinson                  v.   State,   685 S.W.2d 320, 322 (Tex. Crim. App.

1984), the court found            it   was    error to     deny a   mistrial      where the prosecutor    stated,


during the punishment phase, that appellant had failed to express any remorse,
shame or pity toward        his victim.


       In the present case, as in Owen, the prosecutor’s comments:                             “And       if    the

defendant had taken the stand, admitted what he had done, and begged for

forgiveness,     I   believe the   minimum   sentence would be appropriate. But that’s not

what we have here,” can only be construed                   as a reference to    DeLeon’s           failure to


testify at the       punishment phase because that was the only time                  in   which     it   would

have been somewhat logical and/or relevant for him to express remorse                                 after     he

pled not guilty. The prohibition against a                comment on       the defendant’s failure to

testify is   mandatory and adverse        effects    of any references are not usually cured by

an instruction to the jury         to disregard.         Johnson   v.   State, 611    S.W.2d 649 (Tex.

Crim. App. 1981).

       To      constitute a    comment on           the defendant’s         failure    to    testify,      it    is


insufficient that the jury     might have inferred the prosecutor alluded                  to the failure to


testify; the   language used must         make   the inference necessary. Eastep               v.   State,     919

S.W.2d 151, 154 (Tex. App.-Dallas 1996), aﬂ’d on other grounds, 941 S.W.2d 130

(Tex. Crim. App. 1997), overruled by Riney                  v.   State,   28 S.W.3d 561 (Tex. Crim.

App. 2000).      A comment that calls the jury’s attention to the absence of evidence,
which only the defendant can supply,                is   reversible. Patrick    v.    State,   906 S.W.2d

481, 491 (Tex. Crim. App. 1995).




                                                     10
                                         CONCLUSION

         It is   necessary for this Court to provide guidance and direction to the lower

courts to ensure that further defendant’s constitutional rights are not violated                   when

the prosecution commits improper argument.                     The lower   courts need this guidance

and direction on ruling on motions for                mistrial   when   a defendant’s constitutional

rights   have been violated. The         trial   court erred in denying          DeLeon’s motion      for


mistrial after the prosecution        commented on DeLeon’s               failure to testify.   Fuither,

the Third Court of Appeals erred in ﬁnding that the                     trial   court did not abuse   its


discretion in denying the       Motion    for Mistrial.        DeLeon’s    constitutional rights   were

blatantly violated. Lastly, guidance             by   this   Court will also ensure that prosecutors

across Texas are not violating defendant’s constitutional rights during jury

argument and        to ensure the right to a fair trial.




                                                       11
                                PRAYER FOR RELIEF
      WHEREFORE, PREMISES CONSIDERED,                         Steven DeLeon, Petitioner

respectfully requests this Court grant this Petition for Discretionary Review,

reverse the Third Court of Appeals’ opinion afﬁrming the conviction and remand

Petitioner’s case for a   new trial.



                                             Respectﬁxlly submitted,

                                             Law Office of Kerrisa Chelkowski
                                             1017 South Alamo
                                             San Antonio, Texas 78210
                                             Telephone: (210) 228—9393
                                             Telecopier: (210) 226-7540
                                             Email: kerrisa@defendtexas.com

                                       By:     /s/   Kerrisa Chelkowski
                                             KERRISA CHELKOWSKI
                                             State   Bar No: 24034373

                                             ATTORNEY FOR PETITIONER:
                                             STEVEN DELEON
                           CERTIFICATE OF SERVICE
     I,   Kerrisa Chelkowski, do hereby certify that a true and correct copy of this

foregoing document was sent Via certified mail to the Caldwell County District

Attomey’s Office    at   201 E. San Antonio   Street,   P.O.    Box   869, Lockhart, Texas

78644 and    to the State Prosecuting   Attorney located at       PO. Box 13046    Austin,

Texas 78711-3046 on this the    18“ day ofNovernber, 2015.

                                                        /s/   Kerrisa Chelkowski
                                                   KERRISA CI-IBLKOWSKI
                      CERTIFICATE OF COMPLIANCE
      Pursuant to the Texas Rules of Appellate Procedure (TRAP) 9.4(i)(3), the
undersigned certiﬁes this brief complies with the type-volume limitations or TRAP
9.4(i)(3)


1.EXCLUSIVE OF THE EXEMPTED PORTIONS IN TRAP                          9.4(i)(3),   THE
BRIEF CONTAINS (select one):

       A.      3,005 words,    OR
       B.            lines   of text in monospaced typeface.

2.   THE BRIEF HAS BEEN PREPARED (select one):
       A. in proportionally spaced typeface using:

       Software Name and Version: Microsoft Ofﬁce Word 2011
       in (Typeface Name and Font Size): 14 pt. Times New Roman, or


       B. in monospaced (nonproportianally spaced) typeface using:

       Typeface name and number of characters per inch:


3.      THE UNDERSIGNED UNDERSTANDS A MATERIAL
MISREPRESENTATION IN COMPLETING THIS CERTIFICATE, OR
CIRCUMVENTION OF THE TYPE-VOLUME LIMITS IN TRAP 9.4(i)(3),
MAY RESULT IN THE COURT’S STRIKING THE BRIEF AND IMPOSING
SANCTIONS AGAINST THE PERSON SIGNING THE BRIEF.

                                                /s/Kerrisa Chelkowski
                                               Signature of Filing Party
APPENDIX
     TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

                                           N O. 03-13-00202-CR


                                         Steven DeLeon, Appellant

                                                        v.


                                        The   State of Texas, Appellee



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


                                  MEMORANDUM OPINION
                 A jury found appellant Steven DeLeon guilty of continuous sexual abuse of a young
child and assessed   punishment       at thirty-two years in prison.    DeLeon contends        that insufficient


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


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


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

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

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

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

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

basketball team.   M.G. played basketball through the summer of 201 1, and DeLeon spent time with

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

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

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

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

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

such stays that DeLeon assaulted her in the summer of 201 1.

                    M.G.   ﬁrst reported an assault in      May 2012 after her mother found a recording of a
March     19,   2012 telephone conversation between M.G. and DeLeon. The conversation began with

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

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

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

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

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

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

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

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

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

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

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

police investigation and this prosecution.

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

201 l—-three times at her home and once at his. She testified            that   one time he lay on top of her with
his clothes on.      M.G.   said that another time he touched the outside of her private parts with his


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

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

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

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

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

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

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

something gooey came out of his penis.

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


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

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

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

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

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


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

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

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

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


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

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

and her family changed         in the fall     of 2011 when she began dating a man                  whom DeLeon described
as extremely jealous.     D.A. changed M.G.’s phone number—M.G. linked the change to D.A.’s new

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


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

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

not to communicate with the family beginning in December 201                   1.   In February 2012,   D.A. contacted

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

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

for sixth graders)    wanted to   attend.


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

talking about topics including her ex-husbands and ex—boyfn'ends.                    He testified that M.G. picked up

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

family, including during the recorded           March     19 telephone conversation.

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

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


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

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

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

of the bedrooms was visible from the living room.

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

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

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

was a mentor. One fellow teacher described him as truthful, while another testified that she did not
like   him because he was not prompt. She testified that she             told   DeLeon she thought he acted         too

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

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

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


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


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

and appropriate with children.      A psychologist evaluated DeLeon and testified that the test results
showed no sexual deviancy,       that   he is quite conservative in his sexual practices, that he showed no

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



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

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

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

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


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



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

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


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

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


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

her anger after he ignored her romantic advances toward him.                      He   contends that   this    evidence
would have shown         that D.A.’s report      of his alleged abuse was a tactic                 to divert attention     from her

abuse of her children.

                   The   Constitution guarantees defendants a meaningful opportunity to present a

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

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

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

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

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


not arbitrary or disproportionate to the rule’s purpose.                111.;   see also Davis       v.   State,   313 S.W.3d 317,

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

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

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

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

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

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


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

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

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

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


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

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

reasonable limits on cross-examination to                show bias based on concerns about, among other things,
harassment, prejudice, confusion of the issues, the witness’s safety, or interrogation that is repetitive

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

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

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

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

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



         [Defense counsel]:     . There is direct relations to this discipline going on that ties
                                    .   .   .




         to a very important defensive theory that this discipline made the child scared of her
         mother.

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

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



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

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

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


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

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

occurred during a bench conference:



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

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

          [Defense counsel]: This               is   my case. You can recall her.
                                                                       7
           [Prosecutor]: This witness can’t testify about her motive.


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



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




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

made the         following offer of proof:



           We   attempted to ask questions before the jury concerning whether [D.A.] had
           informed my client, Steven DeLeon, of child abuse that she had inﬂicted upon her
           son, [D.G.]. And that would have given her a direct motive to go into the place with
           a recording [of the phone conversation between M.G. and DeLeon]. It happened
           shortly before the recording was—excuse me—short1y before the recording was
           discovered. And that would have prompted her to go to the authorities with that and
           given her motive. And we were not allowed to ask those questions.



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

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


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

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

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

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


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

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

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

for contacting        law enforcement, the         trial   court sustained the objection “at this time,” adding this
directive to counsel:   “You can call the appropriate person to do it.” DeLeon did not recall D.A. or

any other witness on the   subject.


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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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


CPS and did not prevent DeLeon from presenting a defense.

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

recording was not made in retaliation for D.A.’s admission of abuse.                      The conversation occurred on
March 19, 2012, and D.A. made the abuse admission to DeLeon “shortly before” she discovered the

recording on M.G.’s phone on          May 20, 2012. DeLeon does not dispute that he made the recorded
statement, and although M.G. may have introduced the topic of DeLeon’s discomfort with discussion

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

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

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

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


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

credibility in other ways. DeLeontestif1ed          and ﬂatly denied that the assaults occurred.       He presented

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

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


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

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

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

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

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


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

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

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

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

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

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


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


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

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

We conclude beyond a reasonable doubt that any erroneous exclusion of evidence discussed above
did not contribute to DeLeon’s conviction or punishment. See Tex. R. App. P. 44.2(a).



The evidence is     sufficient to      support the conviction.

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

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

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

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

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

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

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

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


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

issues of credibility in favor of the judgment. Id.


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


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

acts   of sexual abuse during a period that is 30 or more days in duration. Tex. Penal Code                        §   21 .02(b).


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

manner other than by touching the child’s breast,                 id. §   21.1 l(a)(l), sexual assault,    id.   § 22.011,   and

aggravated sexual assault,          id. §    22.011.

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

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

testified that   around June 3, 201 1, DeLeon touched her vagina. She testiﬁed that they were lying on

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

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

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

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


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

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

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

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

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

sexual assault of a child. See id. §§ 21.1 l(a)(1), 22.011(a)(2), 22.02 1 (a)(1)(B)(i). M.G. testiﬁed that

about three weeks later when she and         DeLeon were talking in her 1nom’s bedroom, DeLeon pulled

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

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

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

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

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

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

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


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


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

a period of at least thirty days. See           id.   § 2l.O2(b)(1).

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

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

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

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

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

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


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

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

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

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

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

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

See Clayton, 235 S.W.3d at 778; Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996).                           We
find the evidence sufficient to support the conviction.



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

                    Pennissible jury argument includes summation of the evidence, reasonable

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

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

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


                                                                13
Archie    v.   State,   340 S.W.3d 734, 738 (Tex. Crim. App. 2011).                   A defendant’s Fifth Amendment
privilege against self-iricrimination continues during the punishment phase of trial. See Mitchell


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

App. 2001).

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


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

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

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

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

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

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

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

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

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


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

Henson        v.   State,   683 S.W.2d 702, 704-05 (Tex. Crim. App. 1984).              A comment on the defendant’s
failure to         show remorse     is   generally not proper if the defendant testifies at the guilt stage and

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

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

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

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

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

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

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

(Tex. Crim. App. l999)./

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

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

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

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

the State’s punishment argument:



        [Prosecutor]:    .   . And it’s scary the way that he conducted himself, the absolute
                                 .   .




        denial with what he showed, and then the complete support of his family behind him.
        I do not believe 25 years, as a punishment, is appropriate in this case. [believe a

        sentence of 60 years would be appropriate. [M.G.] is going to have to live with this
        for the rest of her life.


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

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

        (Bench Conference)


                                          DEFENSE MOTION FOR MISTRIAL
        [Defense counsel]: 1 am going to ask for a mistrial. He did not testify at punishment.
        He just said to the jury, if he got up on the stand at this phase and told you—

        [Prosecutorl]:       Iwas speciﬁcally referring           to guilt/innocence.


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




                                                                 15
                                            COURT’S RULING

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

       [Defense counsel]: That’s unbelievable.

       (Open Court.)

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


The court then expressly denied the motion        for mistrial.


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

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

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

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

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

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

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

argument that defendant did not accept responsibilityma proper summation of the defendant’s

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


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

                    We conclude, however, that the trial court’s prompt, thorough, and proper instruction
to the jury to entirely disregard the prosecutor’s           argument cured the harm. DeLeon received a

sentence of thirty-two years—seven years above the minimum of twenty—f1ve years permitted for the

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

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

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

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


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

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



The sentence did not violate the constitution.

                       DeLeon contends       that his    punishment violates constitutional prohibitions against

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

§ 21.02(h); see also Tex.        Gov’t Code        § 508.l45(a).        He notes that his minimum possible sentence

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


in prison      with a possibility of parole. See Tex. Penal Code § 12.32; Tex. Gov’t Code § 508. l45(t).

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

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

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

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


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

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


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

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

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

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


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

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

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


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

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

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

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


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

Amarillo court wrote that—-—<lespite court holdings that murder is a more serious offense than child

sexual assau1t—the nature of the offense,                 its   repetitive nature,   and the vulnerability of child victims

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

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

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

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

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


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

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

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

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


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

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

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

constitutional.        See   id.   at 345.   We are not persuaded that the mere fact that a child sexual abuser
might be sentenced to a longer prison term than a child murderer necessarily renders the sentencing


                                                                    18
structure unconstitutional.   Assuming that criminal behavior is   affected   by   the punishment ranges


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

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

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


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

sentence unconstitutional.



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




                                               Jeff Rose, Chief Justice


Before Chief Justice Rose, Justices Pemberton and Bourland

Affirmed

Filed:    May 29, 2015
Do Not Publish




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