Opinion filed October 4, 2018




                                      In The


        Eleventh Court of Appeals
                                   __________

                                No. 11-16-00307-CR
                                    __________

                  JUSTIN TODD CAMPBELL, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 238th District Court
                            Midland County, Texas
                        Trial Court Cause No. CR46950


                      MEMORANDUM OPINION
      The jury convicted Justin Todd Campbell of aggravated sexual assault of a
child and assessed his punishment at confinement for a term of twenty-five years in
the Institutional Division of the Texas Department of Criminal Justice. Appellant
brings three issues on appeal. Appellant contends that the trial court (1) improperly
excluded evidence of the victim’s prior accusations of sexual abuse, (2) abused its
discretion by ruling that the State’s closing argument was proper, and (3) violated
Appellant’s fundamental right to a fair trial by permitting the jury to decide when
deliberations would begin. We affirm.
                                  Background Facts
      Appellant shared a three-bedroom house in Midland with C.B., C.B.’s mother,
Lorenzo (the landlord), and C.B.’s brother. While C.B.’s mother was celebrating
her birthday, she left her twelve-year-old daughter, C.B., at home with Appellant.
C.B. went to sleep in her mother’s room, and Appellant slept in the same room but
in a different bed. C.B. testified that, while she was in bed, Appellant stuck his hands
down her pants, touched her vagina, and put his fingers inside her. Appellant
stopped, apologized, and instructed her not to tell anyone, but then he “did it again.”
Appellant testified that he mistook C.B. for her mother and made sexual advances
toward her because he and C.B.’s mother had had prior sexual relations. When he
realized it was C.B., he apologized and stated that he thought she was her mother.
                                       Analysis
      In his first issue, Appellant contends that the trial court abused its discretion
by excluding C.B.’s testimony regarding prior accusations of sexual abuse that C.B.
had made. The State contends that Appellant failed to preserve this issue for
appellate review. We agree with the State’s contention.
      On cross-examination, Appellant’s trial counsel asked C.B.: “[H]ave you ever
made accusations before about any kind of abuse?” and “Has there ever been any
previous abuse by someone else?”          The prosecutor objected to this line of
questioning on the basis that it was an impermissible inquiry into the victim’s prior
sexual history. The trial court sustained the objection after a bench conference.
      There are some circumstances where evidence of prior accusations of sexual
assault are admissible in “sexual assaultive cases.” Hammer v. State, 296 S.W.3d
555, 564–66 (Tex. Crim. App. 2009).            For example, evidence of prior false
accusations may be admissible to show a witness’s possible motives, bias, or
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prejudice. Id. at 565–66. Appellant’s trial counsel suggested to the trial court that
C.B. “had made prior allegations before.” However, Appellant did not make an offer
of proof or a bill of exception regarding any details of C.B.’s prior accusation of
abuse.
         A party may complain on appeal about a ruling excluding evidence if the error
“affects a substantial right of the party” and the party “informs the court of [the
evidence’s] substance by an offer of proof, unless the substance was apparent from
the context.” TEX. R. EVID. 103(a). An offer of proof may consist of a concise
statement by counsel that includes a reasonably specific summary of the evidence
and the relevance of the evidence, or the offer may be in question-and-answer form.
Mays v. State, 285 S.W.3d 884, 889–90 (Tex. Crim. App. 2009). “The primary
purpose of an offer of proof is to enable an appellate court to determine whether the
exclusion was erroneous and harmful. A secondary purpose is to permit the trial
judge to reconsider his ruling in light of the actual evidence.” Id. at 890. Failure to
make an offer of proof, where the record does not show what the excluded testimony
would have been or shown, waives the complaint for appellate review. Guidry v.
State, 9 S.W.3d 133, 153 (Tex. Crim. App. 1999) (citing Stewart v. State, 686
S.W.2d 118 (Tex. Crim. App. 1984)); see TEX. R. APP. P. 33.1.
         The record does not provide any details of prior accusations of abuse made
by C.B. Because the record does not show the facts and circumstances of any alleged
prior allegations, we cannot determine whether the testimony that Appellant sought
to offer would have been admissible or relevant. Furthermore, we cannot assess the
harm, if any, that resulted from the exclusion of the evidence. Thus, Appellant did
not preserve this complaint for appellate review. We overrule Appellant’s first issue.
         In his second issue, Appellant contends that the trial court abused its discretion
by overruling his objection during the State’s closing argument. Appellant asserted
that the State improperly shifted the burden to him to produce evidence when the
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prosecutor argued: “But you saw her here in court, and I promise you if she had ever
told anybody that he didn’t put his fingers inside of her, the Defense would have
made sure you heard about that.” We disagree.
      We review a trial court’s ruling on an objection to improper jury argument for
an abuse of discretion. Garcia v. State, 126 S.W.3d 921, 924 (Tex. Crim. App.
2004). Permissible jury argument falls into one of four areas: (1) summation of the
evidence; (2) reasonable deduction from the evidence; (3) an answer to the argument
of opposing counsel; or (4) a plea for law enforcement. Brown v. State, 270 S.W.3d
564, 570 (Tex. Crim. App. 2008); Cannady v. State, 11 S.W.3d 205, 213 (Tex. Crim.
App. 2000). A remark that calls attention to the absence of evidence that only the
defendant can supply requires reversal because it constitutes a comment on the
defendant’s failure to testify. Patrick v. State, 906 S.W.2d 481, 491 (Tex. Crim.
App. 1995). However, if the language can reasonably be construed to refer to the
defendant’s failure to produce evidence other than his own testimony, the comment
is not improper. Id. at 490–91. We “review the argument in the context of the entire
argument and not in isolation.” Sennett v. State, 406 S.W.3d 661, 670 (Tex. App.—
Eastland 2013, no pet.).
      The prosecutor made the challenged argument in response to the argument of
defense counsel alleging inconsistencies in the various accounts given by C.B. about
the incident. Accordingly, the prosecutor’s argument fell into one of the four
categories of permissible argument because it was in rebuttal to defense counsel.
Furthermore, the prosecutor’s argument was proper because it called attention to a
lack of evidence that can reasonably be construed to refer to any witness’s testimony,
not just from Appellant. Accordingly, the trial court did not abuse its discretion by
overruling Appellant’s objection to the prosecutor’s argument.          We overrule
Appellant’s second issue.


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      In his third issue, Appellant contends that the trial court violated his
fundamental right to a fair and impartial trial when the court permitted the jury to
retire to the jury room in order to decide whether it wanted to begin deliberations
that day or the next day. When both sides closed the presentation of evidence at
2:34 p.m., the trial court advised the jury that it would take approximately an hour
for the trial court to prepare the charge and for closing arguments to be made. The
trial court further advised the jury that it would not be permitted to separate after the
charge was read to the jury if deliberations began that afternoon. Accordingly, the
trial court directed the jurors to decide if they wanted to begin deliberations that
afternoon or wait until the next morning.
      The trial court instructed the jurors to go into the jury room to decide when
they wanted to begin deliberations. As the jurors were about to leave the courtroom,
one of them asked: “Hypothetically, if the verdict were guilty, do we also have to do
the penalty phase at the same time before we are released?” The trial court
responded by saying that the jury would be permitted to recess between the
guilt/innocence phase and the punishment phase. After a sixteen-minute break, the
jurors advised the trial court that they wanted to begin deliberating that afternoon.
The jury began deliberating at 3:40 p.m. and returned a verdict of guilty at 5:43 p.m.
The punishment phase began the next morning.
      Appellant contends that the trial court’s action permitted the jury to
prematurely deliberate his guilt/innocence and that this action violated Appellant’s
fundamental right to a fair and impartial trial.           In this regard, Appellant
acknowledges that he did not object to the trial court’s action at trial. Accordingly,
Appellant asserts that the trial court’s action constituted fundamental error. We
disagree.
      Most appellate complaints must be preserved by a timely request for relief at
the trial court level. See TEX. R. APP. P. 33.1; Unkart v. State, 400 S.W.3d 94, 98
                                            5
(Tex. Crim. App. 2013); Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim. App.
1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262, 264 (Tex.
Crim. App. 1997). Even claims involving constitutional error, including claims that
due process rights have been violated, may be waived by the failure to object. See
Hull v. State, 67 S.W.3d 215, 218 (Tex. Crim. App. 2002); Briggs v. State, 789
S.W.2d 918, 924 (Tex. Crim. App. 1990). More specifically, where no objection is
made, remarks and conduct of the trial court may not be subsequently challenged
unless they rise to the level of fundamental error. Brewer v. State, 572 S.W.2d 719,
721 (Tex. Crim. App. [Panel Op.] 1978).
      Appellant cites no direct authority for his proposition that the trial court’s
action constituted fundamental error. While Appellant cites Blue v. State, 41 S.W.3d
129 (Tex. Crim. App. 2000), the facts in that case are distinguishable. In Blue, the
trial court made a statement to the jury that vitiated the presumption of innocence.
41 S.W.3d at 130. The Court of Criminal Appeals found that the trial court’s
comment constituted fundamental error. Id. at 131. But see Unkart, 400 S.W.3d at
99–101 (holding that Blue has no precedential value).
      In Trinidad v. State, 312 S.W.3d 23, 29 (Tex. Crim. App. 2010), the Court of
Criminal Appeals addressed a complaint concerning the manner in which jury
deliberations occurred. The trial court in Trinidad permitted an alternate juror to be
present during jury deliberations. The Court of Criminal Appeals determined that
the complaint was not preserved for appellate review in the absence of a timely
objection at trial. 312 S.W.3d at 29. In reaching this holding, the court cited State v.
Morales, 253 S.W.3d 686, 697 & n.41 (Tex. Crim. App. 2008), for the proposition
that the right to trial by an impartial jury is subject to forfeiture. Trinidad, 312
S.W.3d at 29 n.27. Under the analysis employed in Trinidad and Morales, we
conclude that Appellant’s complaint required a contemporaneous objection at trial.
See TEX. R. APP. P. 33.1.
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        Moreover, we disagree with Appellant’s contention that the trial court’s
instruction required the jurors to prematurely weigh their decision on guilt/innocence
in order to determine how fast they would reach a verdict. The trial court did not
instruct the jurors to determine how fast they could reach a verdict but simply asked
them to decide when they wished to begin deliberations. There is no evidence or
suggestion that the jurors deliberated guilt/innocence as opposed to discussing when
they wanted to deliberate. We overrule Appellant’s third issue on appeal.
                                         This Court’s Ruling
        We affirm the judgment of the trial court.




                                                           JOHN M. BAILEY
                                                           CHIEF JUSTICE


October 4, 2018
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.;
Gray, C.J., 10th Court of Appeals 1;
and Wright, S.C.J.2

Willson, J., not participating.




        1
         Tom Gray, Chief Justice, Court of Appeals, 10th District of Texas at Waco, sitting by assignment
to the 11th Court of Appeals.
        2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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