                                       NO. 12-13-00127-CR

                              IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                           TYLER, TEXAS

HAROLD JAYLYNN COUCH,                                   §       APPEAL FROM THE 8TH
APPELLANT

V.                                                      §       JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                                §       RAINS COUNTY, TEXAS

                                       MEMORANDUM OPINION
       Harold Jaylynn Couch appeals his conviction for indecency with a child. He raises nine
issues on appeal. We affirm.


                                                BACKGROUND
       On June 15, 2011, a Rains County grand jury returned an indictment against Appellant
for the offense of indecency with a child, M.L., alleged to have occurred on or about
September 7, 2010.1 Appellant pleaded ―not guilty‖ to the offense, and his first trial resulted in a
hung jury. In his second trial, the jury found Appellant guilty and assessed punishment at twelve
years of imprisonment. This appeal followed.


                                         PRESERVATION OF ERROR
       Appellant raises nine issues on appeal relating to prosecutorial misconduct, the admission
of evidence, the denial of the right to confrontation, and the trial court’s rulings on his
objections. The State contends that Appellant failed to preserve error on several of these issues.




       1
           Subsequently, the indictment was amended to change the date to September 6, 2010.
Applicable Law
       Challenges to the propriety of trial court rulings must be preserved for appeal. Moore v.
State, 371 S.W.3d 221, 225 (Tex. Crim. App. 2012). Failure to present a timely and specific
request, objection, or motion to the trial court for a ruling results in waiver or forfeiture of the
right to present the claim on appeal. See TEX. R. APP. P. 33.1; Mendez v. State, 138 S.W.3d 334,
341–42 (Tex. Crim. App. 2004). The requirement that complaints be raised in the trial court
(1) ensures that the trial court will have an opportunity to prevent or correct errors, thereby
eliminating the need for a costly and time-consuming appeal and retrial; (2) guarantees that
opposing counsel will have a fair opportunity to respond to complaints; and (3) promotes the
orderly and effective presentation of the case to the trier of fact. Gillenwaters v. State, 205
S.W.3d 534, 537 (Tex. Crim. App. 2006); Stinecipher v. State, 438 S.W.3d 155, 159 (Tex.
App.—Tyler 2014, no pet.).
       A complaint is timely if it is made ―as soon as the ground of objection becomes
apparent.‖ Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011) (citations omitted). A
party need not ―spout magic words‖ or recite a specific statute to make a valid objection. Ford v.
State, 305 S.W.3d 530, 533 (Tex. Crim. App. 2009).


       Straightforward communication in plain English will always suffice. . . . [A]ll a party has to do to
       avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he
       thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time
       when the trial court is in a proper position to do something about it.


Id. (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992) (en banc)). In
determining whether an objection is sufficiently clear to provide an opportunity to correct the
purported error, the appellate court should consider the context in which the complaint was made
and the parties’ understanding of the complaint at the time. Ford, 305 S.W.3d at 533. An issue
on appeal must comport with the objection made at trial, i.e., an objection stating one legal basis
may not be used to support a different legal theory on appeal. See Clark v. State, 365 S.W.3d
333, 339 (Tex. Crim. App. 2012); Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990).
Thus, when an appellant’s trial objection does not comport with his argument on appeal, he has
forfeited his right to raise the issue. See Clark, 365 S.W.3d at 339; Goff v. State, 931 S.W.2d
537, 551 (Tex. Crim. App. 1996).




                                                        2
       Appellant’s First Issue
       In his first issue, Appellant contends that he was ―denied due process of law as a result of
prosecutorial misconduct,‖ and states ―[e]xamples are set out below.‖ Appellant’s examples are
found throughout his brief and relate to the prosecution’s closing argument and cross
examination of defense witnesses.
       Prosecutorial misconduct rises to a due process violation when it is so significant that it
deprives a defendant of a fair trial. Clark, 365 S.W.3d at 338. To preserve error in cases of
prosecutorial misconduct, the defendant must (1) object on specific grounds, (2) request an
instruction that the jury disregard the comment, and (3) move for a mistrial. Penry v. State, 903
S.W.2d 715, 764 (Tex. Crim. App. 1995) (per curiam); see also Johnson v. State, 432 S.W.3d
552, 561–62 (Tex. App.—Texarkana 2014, pet. denied) (holding that appellant was required to
preserve any perceived error regarding prosecutorial misconduct by making timely and specific
objection on that basis).
               i. Appellant’s Examples of Misconduct
       Appellant provides four examples that he characterizes as prosecutorial misconduct. His
first example relates to the prosecutor’s closing argument in which he stated, ―In fact, did you
hear the defendant tell you why she would say such a thing? No. He didn’t even try. Because
maybe he does have an eighth-grade education, and maybe he’s not smart.‖ Defense counsel
objected to this statement, approached the bench, and argued that it was improper because it was
―shifting the burden of proof to my client.‖ The prosecutor responded, ―We’re not shifting the
burden. We accept the burden of proof.‖ He further stated, ―I think I can talk about motive. . . .
That’s how you determine somebody’s credibility.‖ At the conclusion of the bench conference,
the trial court sustained the objection, instructed the jury to disregard the prosecutor’s statement,
and denied defense counsel’s motion for mistrial.
       Appellant’s second example of alleged misconduct relates to another statement the
prosecutor made during closing argument. But defense counsel did not object to this statement.
       Appellant’s third example of alleged misconduct relates to the prosecutor’s cross
examination about photographs that the trial court had ruled inadmissible.          Again, defense
counsel did not object to the prosecutor’s conduct.
       Appellant’s last example of alleged misconduct relates to the prosecutor’s cross
examination of Appellant about his volunteer activities at M.L.’s school. Specifically, the



                                                 3
prosecutor asked, ―Would it surprise you to know that [M.L.’s teacher] says you never
volunteered there?‖ Defense counsel objected to the prosecutor’s question on the grounds of
―testifying‖ and ―relevance.‖ The prosecutor responded as follows:


       Judge, he’s brought this into question. He’s testified that he volunteered at this school, and I’ve
       got a right to ask him, would it surprise you to know that the teacher of [M.L.] says you never
       volunteered.


The trial court overruled defense counsel’s objection.
                ii. Context and Understanding of Appellant’s Complaints
       We note that Appellant cites Rogers v. State, 725 S.W.2d 350 (Tex. App.—Houston [1st
Dist.] 1987, no pet.), as support for finding prosecutorial misconduct in this case. The Rogers
holding created an exception to the general rule of error preservation when the ―entire record‖
shows that a prosecutor’s conduct creates such impermissible prejudice that it had a ―probable
cumulative effect upon the jury. Rogers v. State, 725 S.W.2d 350, 360–61 (Tex. App.—Houston
[1st Dist.] 1987, no pet.). Having reviewed the entire record and the alleged errors, we cannot
conclude that the prosecutor’s conduct permeated the trial with such ―impermissible prejudice‖
as to have had a cumulative effect of denying Appellant a fair trial. See Rogers, 725 S.W.2d at
360–61.
       Defense counsel objected to only two of the four examples mentioned in Appellant’s
brief. Thus, Appellant has forfeited his right to complain on appeal about the alleged error in his
second and third examples of alleged prosecutorial misconduct. See TEX. R. APP. P. 33.1;
Mendez, 138 S.W.3d at 342. In the other two examples, defense counsel objected but did not
raise prosecutorial misconduct or due process as a ground for his objection.
       The trial court’s and prosecutor’s responses to those objections do not indicate that they
understood counsel’s objections to relate to prosecutorial misconduct or due process. See Clark,
365 S.W.3d at 339; Ford, 305 S.W.3d at 533. Therefore, Appellant’s argument does not
comport with his objections at trial. Consequently, he has forfeited his right to complain about
prosecutorial misconduct on appeal. See TEX. R. APP. P. 33.1; Clark, 365 S.W.3d at 339.
Accordingly, we overrule Appellant’s first issue.
       Appellant’s Second Issue
       In his second issue, Appellant argues that the trial court abused its discretion ―when it
permitted the [S]tate’s expert to give [an] opinion on the veracity of the complaining witness.‖


                                                       4
Defense counsel made no objection to the expert’s opinion relating to M.L.’s credibility. Thus,
Appellant has forfeited his right to raise this issue on appeal. See TEX. R. APP. P. 33.1; Mendez,
138 S.W.3d at 342. Accordingly, we overrule Appellant’s second issue.
        Appellant’s Third Issue
        In his third issue, Appellant contends that the trial court ―erred in limiting the defense
cross examination. . . .‖ The Sixth Amendment guarantees the right of an accused to be
confronted with the witnesses against him. U.S. CONST. amend. VI; Lopez v. State, 18 S.W.3d
220, 222 (Tex. Crim. App. 2000).                This right to confrontation includes the right of cross
examination, but a trial court may impose reasonable limits to avoid harassment, prejudice,
confusion of the issues, endangering the witness, and the injection of cumulative or collateral
evidence. Lagrone v. State, 942 S.W.2d 602, 613 (Tex. Crim. App. 1997). When an accused
desires to elicit certain, specific responses from a State’s witness but is precluded from doing so
by the trial judge, the requirements of Texas Rule of Evidence 103(a)(2) must be satisfied.2 See
Holmes v. State, 323 S.W.3d 163, 170–71 (Tex. Crim. App. 2009) (clarifying holding in Virts v.
State, 739 S.W.2d 25 (Tex. Crim. App. 1987) that established preservation requirements for
limitation of cross examination regarding matters requiring specific responses to impeach
witness testimony and matters about general subjects affecting witness credibility)).
        When a trial court excludes evidence, Rule 103(a)(2) requires the complaining party to
make an ―offer of proof‖ that sets forth the substance of the proffered evidence to preserve error
for appeal. See TEX. R. EVID. 103; Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009).
The primary purpose of an offer of proof is to enable the appellate court to determine whether
the exclusion was erroneous and harmful. Id. at 890. A secondary purpose is to permit the trial
judge to reconsider his ruling in light of the actual evidence. Id.
        The offer of proof may consist of a concise statement by counsel, or be in question and
answer form. Id. at 889. If the offer is in the form of a statement, it ―must include a reasonably
specific summary of the evidence offered and must state the relevance of the evidence unless the

        2
            Rule 103(a)(2) states as follows:

        Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial
        right of the party is affected, and . . . the substance of the evidence was made known to the court
        by offer, or was apparent from the context within which questions were asked.

TEX. R. EVID. 103(a)(2).




                                                        5
relevance is apparent, so that the court can determine whether the evidence is relevant and
admissible.‖ Id. at 890 (quoting Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998) (en
banc)).
                         i. Testimony of M.L.’s Mother
          The events involving Appellant’s conduct with M.L. occurred during a Labor Day
gathering in Rains County. On direct examination, M.L.’s mother, Janice, testified that her older
daughter, Jerrie, planned to go to the gathering and Jerrie’s daughter, Cristine, and grandson,
E.S., were also going with Jerrie.3 M.L. was asked to go with them, and Janice reluctantly
agreed that M.L. could go. Janice testified that she did not want M.L. to go to Rains County,
expressed her concern to Jerrie, and told Jerrie to ―watch the children.‖
          On cross examination, Janice testified that she knew M.L.’s biological father, Michael,
was already at the gathering in Rains County, but she was nevertheless concerned for M.L.
Pursuant to the State’s motion in limine, defense counsel approached the bench and the
following discourse took place:


          Defense counsel: It’s my understanding—and I’m—my understanding is [Janice] has two sons,
          and they’re both convicted sex offenders. And I would like—I’m considering I may go into that,
          or it may come out because she’s expressed concern about why they’re there. I—at this point,
          they’re left the impression that they’re concerned because this group’s down there. And—

          Trial court: I haven’t got any impression. Just the fact that she’s—just the fact that she was
          away—my wife is concerned when kids go—

          Defense counsel: Well, that was her testimony, is that she was concerned that her—and didn’t
          want her daughter to go.

          Prosecutor: I think it could be any type of concern because that’s—just the drive. But if you go
          into that, I don’t think you’re going to like what you get. The only thing you can ask now is why
          is she concerned, and if you do that—

          Defense counsel: Well, no. Now, there’s a motion in limine in place that I can’t ask about anyone
          who doesn’t have direct evidence or knowledge of this. His mother has direct knowledge of
          Michael being a registered sex offender and—

          Trial court: And you want to ask it for what purpose?

          Defense counsel: To show that there are many reasons for her being concerned about the child
          going down there.

          Trial court: Okay. And what does that get you? What does that get you?



          3
              M.L.’s biological grandmother (Janice) adopted M.L. and is now her legal parent.


                                                            6
       Prosecutor: I tell you what it’s going to get you, [counselor], is, it’s going to get you she was
       concerned about him because of what he’s done in the past to her—her other daughter, her
       granddaughter, and they all know to watch out for him because of what he did when she was five
       years old. That’s what it’s going to get you. That’s what I’m saying. She’s not going to say she
       was concerned about her own son. For crying out loud, he’s living with her.

       Defense counsel: Okay.

       Trial court: Well, I’m going to deny your request to ask that question.


Following this discussion, defense counsel established that M.L. has been attending counseling
since the age of seven. No other objections were made during Janice’s testimony.
       On appeal, Appellant argues that the trial court’s ruling ―refused to let the defense delve
into the fact [that Janice] had other reasons to be concerned[.]‖ But the above-quoted discourse
does not show that Janice would have testified that her knowledge that Michael was a registered
sex offender was the reason she was concerned about M.L. going to Rains County.
       The record does not set forth the substance of the testimony that Appellant complains he
was prohibited from eliciting at trial. See TEX. R. EVID. 103. Without more, we are unable to
determine whether the trial court’s denial of defense counsel’s request to question Janice about
Michael’s sex offender status was erroneous and harmful.                    Mays, 285 S.W.3d at 890–91.
Appellant has failed to preserve this alleged error for appeal. See TEX. R. APP. P. 33.1; TEX. R.
EVID. 103. Accordingly, we overrule Appellant’s third issue.
       Appellant’s Fourth Issue
       In his fourth issue, Appellant contends that the trial court ―erred in overruling hearsay
objection.‖ Appellant follows this statement with a section explaining the law of hearsay. The
record shows that the trial court sustained the hearsay objection Appellant refers to in his brief.
Therefore, the alleged error he complains of did not occur.                      Accordingly, we overrule
Appellant’s fourth issue.
       Appellant’s Sixth Issue
       In his sixth issue, Appellant argues the prosecutor injected his personal opinion of M.L.’s
truthfulness by stating ―she is telling the truth‖ in his closing argument. Defense counsel did not
object to the prosecutor’s statement. Thus, Appellant has forfeited his right to raise this issue on
appeal. See TEX. R. APP. P. 33.1; Mendez, 138 S.W.3d at 342. Accordingly, we overrule
Appellant’s sixth issue.




                                                        7
       Appellant’s Seventh Issue
       In his seventh issue, Appellant argues that the trial court ―erred in admitting photographs
and testimony concerning a collateral matter.‖ When the prosecutor proffered the photographs,
defense counsel objected on relevance grounds.


       Prosecutor: He’s testified about his house—it being his house, but yet it’s not really his house.
       He’s now straightened that up. It’s his daddy’s house. First off, he said his daddy was living with
       him, and now it’s not really that way.

       And I don’t think he can even explain—the truth is, [the security cameras] are not there for cutting
       down trees. The truth is because they’re spying on the neighbors, is what the truth is, and I’ve got
       witnesses to come and testify about these and what they’ve been doing.

       Defense counsel: That has nothing to do with what we’re here for today. Nothing.

       Trial court: I suppose that could go to impeachment. Is that your—

       Prosecutor: That’s what I’m getting at, Judge.

       Trial court: Impeach credibility?

       Prosecutor: Yes, his prior testimony—the impression he gave was that he has this house in Dallas;
       he sold his house in Kaufman, he’s got this house in Dallas, he lives there. He doesn’t live down
       there. I think the testimony is actually going to be that he does not live there. We’ve got two
       witnesses that’s going to testify he does not.

       ....

       Trial court: All right. Let the record reflect that we’re outside the presence of the jury. I mean, I
       understand impeaching credibility. For that, I understand it. But the—

       Prosecutor: I’m not going much longer with this, Judge. I’ve got two witnesses back there that
       are probably going to testify that most everything he just said is a lie. . . .

       Defense counsel: Then what does it matter? I mean, how does that tend to prove that there was an
       offense that occurred on September 6, 2010, that—what does this tend to prove that he did
       something on this date?

       Prosecutor: It goes to his credibility. Everything he said about that is lies. Everything he’s saying
       about this is lies.

       Defense counsel: [I]t’s totally irrelevant. The witnesses that he plans to call were in a civil
       dispute—criminal dispute with another person in the family. Has nothing to do with this guy.

       Trial court: It would not be admissible or relevant at all if [Appellant] had not taken the stand and
       put those issues before the court to talk about those things. I’ll overrule the objection as to
       relevance.




                                                        8
       On appeal, Appellant appears to argue that the probative value of the evidence was
outweighed by the danger of unfair prejudice.4 Once a trial court has ruled that evidence is
relevant, the opponent of the evidence must make a separate objection to raise unfair prejudice to
preserve error. Paschal v. State, 35 S.W.3d 80, 82 (Tex. App.—Texarkana 2000, no pet.) (citing
Bell v. State, 938 S.W.2d 35, 49 (Tex. Crim. App. 1996)). Defense counsel’s sole basis for
objecting to the admissibility of the photographs was relevance. Because he failed to make a
separate Rule 403 objection, he did not preserve error on this issue. See id. Accordingly, we
overrule Appellant’s seventh issue.
       Appellant’s Eighth Issue
       In his eighth issue, Appellant complains of the prosecutor’s continued questioning of a
witness about evidence that was ruled inadmissible. Defense counsel did not object to this
conduct. Thus, Appellant has forfeited his right to raise this issue on appeal. See TEX. R. APP. P.
33.1; Mendez, 138 S.W.3d at 342. Accordingly, we overrule Appellant’s eighth issue.
       Appellant’s Ninth Issue
       In his ninth issue, Appellant argues that the trial court erred by ―overruling the objection
allowing the prosecutor to testify permitting the prosecutor to cross examine the Defendant in an
attempt to impeach. . . .‖ During cross examination, the prosecutor questioned Appellant about
his volunteer work at M.L.’s school, and asked Appellant, ―Do you even remember [the
teacher’s] name?‖ Appellant responded, ―Names are my worst deal that there is.‖ The following
discourse then took place:


       Prosecutor: I bet—in fact, her name is [T.M.]. Would it surprise you to know that she says you
       never volunteered there?

       Defense counsel: Objection, your Honor.

       Prosecutor: I’m just asking—


       4
           Appellant’s brief states as follows:

       However, the reviewing court cannot simply conclude that the trial court conducted a balancing
       test and did not rule arbitrarily or capriciously. . . . Instead, we must look at the proponent’s need
       for the evidence in addition to determining the relevance of the evidence, and whether the
       prejudice of this evidence outweighs its probative value. . . . The prosecutor felt he needed the
       nonsense in the cross examination on the absolutely collateral issues surrounding a dispute
       between neighbors an hour[’]s drive away from the scene, but does that make it relevant and
       admissible as opposed to confusing and unduly prejudicial?




                                                         9
       Defense counsel: He’s testifying, and he’s not asking the proper question. At this point, if she’s
       available to testify, she should come to court.

       Trial court: What’s the objection?

       Defense counsel: Well, number one is, he’s testifying. He’s not a witness. Number two, it’s
       relevance. I don’t see what any of this has to do about September 6 of 2010.

       Prosecutor: Judge, he’s brought this into question. He’s testified that he volunteered at this
       school, and I’ve got a right to ask him, would it surprise you to know that the teacher of [M.L.]
       says you never volunteered.

       Trial court: Overruled.


       Defense counsel’s explanation of ―testifying‖ and ―relevance‖ to the prosecutor’s cross
examination was not sufficiently specific to let the trial judge know what he wanted and why he
thought he was entitled to have the trial court sustain his objection. See TEX. R. APP. P. 33.1;
Ford, 305 S.W.3d at 533. The trial court’s and prosecutor’s responses show that they did not
understand Appellant’s objection to be, as he now argues on appeal, that the question was
improper because it assumed facts that were not in evidence. See TEX R. APP. P. 33.1; Clark,
365 S.W.3d at 339. Because Appellant’s argument does not comport with his objections at trial,
he has forfeited his right to raise this issue on appeal. See TEX. R. APP. P. 33.1; Clark, 365
S.W.3d at 339. Accordingly, we overrule Appellant’s ninth issue.


                                            DENIAL OF MISTRIAL
       In his fifth issue, Appellant argues that the trial court erred by failing to grant a mistrial
when the prosecutor attempted to shift the burden of proof during his final argument. When a
trial court sustains an objection and instructs the jury to disregard, but denies a defendant’s
motion for mistrial, the issue is whether the trial court erred in denying the mistrial. See Barrera
v. State, 321 S.W.3d 137, 156 (Tex. App.—San Antonio 2010, pet. denied) (citing Hawkins v.
State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004).
Standard of Review and Applicable Law
       A trial court’s denial of a mistrial is reviewed for abuse of discretion. Ocon v. State, 284
S.W.3d 880, 884 (Tex. Crim. App. 2009). We view the evidence in the light most favorable to
the trial court’s ruling, considering only those arguments before the court at the time of the
ruling. Id.




                                                      10
       In evaluating whether the trial court abused its discretion, we balance three factors:
(1) the severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor’s
remarks), (2) the measures adopted to cure the misconduct (the efficacy of any cautionary
instruction by the judge), and (3) the certainty of conviction absent the misconduct (the strength
of the evidence supporting the conviction). See Archie v. State, 221 S.W.3d 695, 700 (Tex.
Crim. App. 2007) (Archie I); Searcy v. State, 231 S.W.3d 539, 548 (Tex. App.—Texarkana
2007, pet. ref’d). In most cases, an instruction to disregard will cure the alleged harm. See
Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000).
The Prosecutor’s Closing Argument
       The objectionable portion of the prosecutor’s closing argument is as follows:


       How do you determine the truth? We talked about it. Look at a party’s motive, their bias, what
       they have to gain or lose, and their relationship to the parties. Let’s compare [M.L.] and the
       defendant. What about a motive to testify falsely? If the defendant tells the truth, he’s going to
       prison. He’s getting convicted. [M.L.], she has no motive whatsoever.

       In fact, did you hear the defendant tell you why she would say such a thing? No. He didn’t even
       try. Because maybe he does have an eighth-grade education, and maybe he’s not smart.


Defense counsel objected, contending that the argument was shifting the burden of proof to
Appellant. The trial court sustained the objection and gave the following instruction:


       Ladies and gentlemen, I’m going to ask you to disregard—just one second. Let me go back and
       look—the statement, ―In fact, did you hear the defendant tell you why she would say such a thing?
       No. He didn’t even try.‖

       I’ve sustained the defendant’s objection that that would suggest that the burden shift[ed] and, of
       course, that’s not the law. I’ll remind you to—that you are instructed by the law as it is in the jury
       charge, and so you are instructed to disregard that statement and consider it for no purpose at all.


Thereafter, defense counsel made an oral motion for mistrial, which the trial court denied. The
prosecutor resumed his argument by stating, ―[W]e are not trying to shift the burden of proof in
this case. As I said in voir dire, we accept it. It’s a high burden.‖
Discussion
       We first note that it is generally permissible for the State to comment on a defendant’s
failure to present favorable evidence, and such comments do not shift the burden of proof. See
Orellana v. State, 381 S.W.3d 645, 655 (Tex. App.—San Antonio 2012, pet. ref’d); see also



                                                        11
Larry v. State, No. 12-13-00072-CR, 2014 WL 2521593, at *2 (Tex. App.—Tyler May 30,
2014, no pet.) (mem. op., not designated for publication) (identifying four categories of
permissible argument as summation of evidence, reasonable deduction from evidence, answer to
opposing counsel’s argument, and plea for law enforcement). The prosecutor’s argument and
defense counsel’s objection in this case are similar to those before the Fort Worth court of
appeals in Harris v. State, 122 S.W.3d 871 (Tex. App.—Fort Worth 2003, pet. ref’d).
       In Harris, the defendant argued that the prosecutor shifted the burden of proof in his
closing argument by stating


       [l]ook at the motive. Do [the girls] have any motive whatsoever to come in here and tell you
       anything but the truth? No. They’re not gaining anything by coming here and talking about this.
       Absolutely the most embarrassing thing has happened in their life or will happen in their life, and
       they have to come talk about it. Do they have any motive? No.

       The defense has subpoena power, the power to call any witness to come testify. Anyone to say
       anything on how it might be possible for these girls to have some sort of motive to come in here
       and lie.


Id. at 884. The court of appeals held that the prosecutor’s comments about the defendant’s
subpoena power were proper if they referred to the defendant’s failure to produce evidence from
other sources. See id. (citing Livingston v. State, 739 S.W.2d 311, 338 (Tex. Crim. App. 1987),
cert. denied, 487 U.S. 1210, 108 S. Ct. 2858, 101 L. Ed. 2d 895 (1988)). The court also held that
comments relating to an accused’s failure to produce testimony is improper ―only if it points to
the absence of evidence that could be supplied only by the defendant’s testimony.‖ Id. (citing
Fuentes v. State, 991 S.W.2d 267, 275 (Tex. Crim. App. 1999), cert. denied, 528 U.S. 1026, 120
S. Ct. 541, 145 L. Ed. 2d 420 (1999)). The court concluded that the prosecutor’s comment was
―a summation of the evidence presented at trial, coupled with an argument that the jury should
not be concerned with evidence not presented at trial—any motive for the girls to lie about the
assault.‖ Id. at 884-85.
       1. Severity of the Misconduct
       Here, Appellant testified that he did not engage in any inappropriate conduct with M.L.
Using Harris as our guide, we hold that the prosecutor’s complained of argument was likely not
improper because the State may comment on a defendant’s failure to produce favorable
evidence. See id. at 884; see also Ford v. State, 444 S.W.3d 171, 197-98 (Tex. App.—San
Antonio Aug. 20, 2014, pet. filed) (holding argument ―reasonable deduction from the evidence‖


                                                       12
where prosecutor argued ―If not him, who? I mean, they’re going to tell you that’s shifting the
burden of proof. . . [.] Who? They’ve put on a case. They’ve called witnesses. They—they
have certainly cross[]examined.           Who?‖).        But even if the argument was improper, the
magnitude of its prejudicial effect was slight. See Orellana, 381 S.W.3d at 656 (holding that
even if question of whether defendant could request blood testing was improper burden shifting,
its prejudicial effect was slight). This factor weighs in favor of the trial court’s ruling.
       2. Curative Measures
       The law generally presumes that instructions to disregard and other cautionary
instructions will be duly obeyed by the jury. Archie v. State, 340 S.W.3d 734, 741 (Tex. Crim.
App. 2011) (Archie II). Only offensive or flagrant error warrants reversal when there has been
an instruction to disregard. See Wesbrook, 29 S.W.3d at 116.
       Here, the trial court sustained defense counsel’s objection and immediately instructed the
jury to disregard the prosecutor’s comment. In addition to his oral instruction, the court’s written
charge instructed the jury that

       [t]he prosecution has the burden of proving the defendant guilty and it must do so by proving each
       and every element of the offense charged beyond a reasonable doubt and if it fails to do so, you
       must acquit the defendant.

       ....

       The burden of proof in all criminal cases rest[s] upon the State throughout the trial and never shifts
       to the defendant.


These measures, when viewed in light of the prosecutor’s confirmation that the State bore the
burden of proof, were sufficient to cure any harm or prejudice that might have occurred. See
Archie I, 221 S.W.3d at 700; see also Wesbrook, 29 S.W.3d at 116 (prosecutor’s comment not
so flagrant that instruction to disregard was ineffective). This factor weighs in favor of the trial
court’s ruling.
       3. Certainty of Conviction
       The third balancing factor requires us to consider the strength of the evidence supporting
Appellant’s conviction absent the alleged misconduct.                   See Archie I, 221 S.W.3d at 700.
Accordingly, we will examine the evidence presented at trial.
       The State presented testimony from several witnesses. The State first called the victim,
M.L., who was ten years old at the time of trial. M.L. testified that on Labor Day weekend, she



                                                        13
rode in a van with some family members to an outdoor gathering in Rains County. Once they
arrived, M.L. and her cousin E.S. played tag, and ―ran around.‖ M.L. testified that Appellant
shot fireworks and showed them an electric wheelchair that they could play with. M.L. and E.S.
rode in the wheelchair ―[i]n between the tent,‖ ―a little bit behind the tent so we could turn.‖
M.L. testified that they could ride the wheelchair only in certain areas behind the tent because
there were ―a bunch of twigs and bushes.‖
        At some point, M.L. and E.L. were behind the tent, alone with Appellant. Appellant told
E.L. to go away, and after E.L. was gone, Appellant asked M.L. ―if he could kiss me.‖ M.L. told
Appellant he could kiss her on the cheek, but explained that ―then he started trying to kiss me on
my lips, and then he squeezed my butt.‖ M.L. testified that she was scared and pushed Appellant
away from her. After that, Appellant told M.L. to unzip his pants and M.L. ―left him and went to
the grownups.‖ M.L. testified that she did not leave the tented area again until it was time to go
home.
        M.L. testified that when it was time to leave, she grabbed her aunt’s cooler and carried it
to the back of their van. At this time, it was dark. As M.L. was trying to put the cooler in the
van, Appellant walked up to M.L., said ―I was looking for you,‖ put his hand inside M.L.’s shirt,
and ―squeezed my boob.‖ Janice, M.L.’s mother, testified that the next morning, M.L. told her
―Appellant tried to pinch titty and kiss[ed] me.‖
        Jerrie, M.L.’s aunt, was one of the family members with whom M.L. traveled to Rains
County. Jerrie testified that as she was preparing to leave, she heard ―hollering and carrying on.‖
She walked from the tent area and saw Appellant on the ground with Michael (M.L.’s biological
father) on top of him. Jerrie did not see Appellant touch M.L., but testified that she heard
Appellant say, ―I’m sorry. I didn’t mean to do it. I didn’t know what I was doing.‖
        Jerrie’s daughter, Cristine, also traveled to Rains County for the outdoor gathering. She
testified that she thought it was unusual that Appellant ―kept wanting to play with the children‖
and ―it was like he was always with the children.‖ Eventually, Cristine told M.L. and E.S. to sit
with her in the tented area because ―it was getting to where it was uncomfortable the way that
I—you know, the way that [Appellant] was looking to me was getting to be uncomfortable.‖
        Eventually, Cristine told everyone that it was time for them to leave. She testified that
M.L. wanted to stay, and when Cristine told her no, M.L. ―got mad‖ and ―ran off‖ to the car.
According to Cristine, Appellant followed M.L. to the car. Thereafter, M.L.’s father walked to



                                                14
the van, and Cristine heard ―chaotic screaming.‖ She testified that she heard M.L.’s father
saying, ―I can’t believe you just touched my daughter in front of me like that.‖ Cristine then
heard Appellant say repeatedly, ―I’m sorry. I didn’t know what I was doing.‖
          The State presented testimony from an expert witness, Kathy Smedley, to testify about
the behavioral signs, symptoms, and effects that occur when a person has been sexually abused.
Smedley explained the grooming process and testified that after reviewing M.L.’s forensic
interview, she saw things that were consistent with the grooming process.
          Appellant denied ever being alone with M.L., and testified that the only time he touched
M.L. that night was when he put his hand on her shoulder, leaned over, and asked her how she
liked her new school. Appellant testified that he did not go behind the tents that night, and said
that the motorized wheelchair could not go behind the tents because briars and a refrigerator
were blocking its path. Contrary to Jerrie’s and Cristine’s testimony, Appellant testified that he
did not make any statement or say anything after Michael had kicked him to the ground.
Appellant also testified that he was wearing coveralls that night, and that they had a ―button
fl[y].‖
          Appellant called several other witnesses who had attended the outdoor gathering that
night. Appellant’s brother, Robert, testified that he did not hear anyone screaming that night.
Appellant’s cousin, Gary, testified that M.L. and E.S. never left his sight and that the children
stopped playing with the wheelchair after their aunt told them to stop. He testified that the
children were ―pretty happy,‖ did not seem to be upset, and that he did not see any
communication or contact between Appellant and M.L.
          Appellant’s other cousin, Tommy (Gary’s brother), testified that M.L. and her cousin
were playful and their attitudes did not change that night. He testified that Appellant played with
M.L. and her cousin, and related that he did not remember the children ever being out of sight.
Tommy did not hear what, if anything, was said when Appellant and M.L.’s father were fighting
on the ground, but testified that he heard the girlfriend of M.L.’s father tell him that Appellant
touched M.L.
          Although Appellant presented evidence in his case in chief, it is likely that Appellant
would have been convicted even if the prosecutor had not made the comment at issue. See id.
This factor weighs in favor of the trial court’s ruling.




                                                  15
Conclusion
         After balancing the severity of the prosecutor’s alleged misconduct, the curative
measures, and the certainty of Appellant’s conviction, we conclude that the trial court did not
abuse its discretion in denying Appellant’s motion for mistrial. See Ocon, 284 S.W.3d at 884;
Archie II, 340 S.W.3d at 742; Archie I, 221 S.W.3d at 700.              Accordingly, we overrule
Appellant’s fifth issue.


                                                    DISPOSITION
         Having overruled Appellant’s nine issues, we affirm the judgment of the trial court.

                                                                  BRIAN HOYLE
                                                                     Justice

Opinion delivered December 17, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)




                                                          16
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                         DECEMBER 17, 2014


                                          NO. 12-13-00127-CR


                                   HAROLD JAYLYNN COUCH,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                                  Appeal from the 8th District Court
                              of Rains County, Texas (Tr.Ct.No. 5172)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
