Affirmed and Memorandum Opinion filed April 30, 2019.




                                       In the

                     Fourteenth Court of Appeals

                               NO. 14-17-00953-CR

                       JUAN JAVIER LAGOS, Appellant
                                          v.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 228th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1469774

                          MEMORANDUM OPINION

      Appellant was convicted of indecency with a child and sentenced to ten-years
confinement. See Tex. Penal Code §§ 12.33, 21.11(a)(1), (d). Appellant brings two
issues on appeal: (1) whether the trial court committed reversible error by overruling
appellant’s objections to the State’s closing argument during the punishment phase
and (2) whether the assessment of a “summoning witness/mileage” fee facially
violates the separation-of-powers provision of the Texas Constitution. We affirm.
                               I.     BACKGROUND

      Appellant was the owner of—and a coach at—a boxing gym. On the afternoon
of May 30, 2014, he asked one of his students, a thirteen-year-old girl, to join him
alone in his office because she had not applied enough special boxing lotion to her
body. Behind that closed door, appellant grabbed her wrist with one hand. Appellant
placed his other hand under her sports bra and touched the complainant’s breasts.
Appellant also licked her nipples. He told her not to tell anyone what happened.

      A few weeks later, the complainant told her mother. When confronted by the
complainant’s mother, appellant apologized and asked her not to contact the police.
Appellant was indicted for indecency with a child. A jury found him guilty of the
offense and assessed his punishment at ten-years confinement.

                                II.    ANALYSIS

A. State’s closing argument during punishment

      In his first issue, appellant argues that the trial court committed reversible
error by overruling appellant’s objections to the State’s improper statements during
closing argument in the punishment phase. Specifically, appellant contends that the
State improperly injected facts from outside the record and invited the jury’s
speculation regarding the complainant’s later having children and enrolling them in
sports:

             [STATE]: [The complainant] is 16 right now. In six years she
      will be graduating from college. At some point she will hopefully start
      a family. And I want you to think of the day that when [the complainant]
      is trying to sign up her daughter for team sports, or for an individual
      sport—
            [DEFENSE]: Judge, I’m going to object to that. That’s pure
      speculation, and that’s going outside the record, and it’s not relevant.
            [STATE]: Your Honor, this is—

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             THE COURT: The objection is overruled to what has been stated
      thus far. You have two minutes remaining.
            [STATE]: Thank you, Your Honor.
            Think of the day that she has a daughter of her own and every
      decision she makes is going to be influenced—
            [DEFENSE]: Same objection, Judge.
            THE COURT: It’s overruled.
             [STATE]: —by what that man did to her. She will carry this for
      the rest of her life. . . .
            When are you ready for him to be in your community? That’s
      how you come to this number. Twenty is not the wrong answer. Think
      about this. In six years [the complainant] will be finally coming home
      from college, or be done with college. Is she going to have to worry
      about him then? Is it ten years, maybe when she starts a family, she’s
      going to have to worry about him then?
            [DEFENSE]: Judge, I’m going to object to that. It’s pure
      speculation. It’s talking about the future.
            THE COURT: It’s overruled.
            [STATE]: Is it 20 years when her own kids are in sports that she’s
      going to have to worry about it then?
            [DEFENSE]: Again, Judge, this is pure speculation. There is no
      evidence of this whatsoever.
            THE COURT: Sustained.
            [DEFENSE]: May we ask this jury to disregard?
            THE COURT: Disregard the last statement.
            [DEFENSE]: Move for a mistrial.
            THE COURT: Denied.

      “Permissible jury argument generally 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.”
Berry v. State, 233 S.W.3d 847, 859 (Tex. Crim. App. 2007). However, the Texas


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Court of Criminal Appeals has explained that the State may not use closing argument
“to get evidence before the jury which is outside the record and prejudicial to the
accused.” Borjan v. State, 787 S.W.2d 53, 57 (Tex. Crim. App. 1990); Everett v.
State, 707 S.W.2d 638, 641 (Tex. Crim. App. 1986).

      According to the State, its argument constituted a proper plea for law
enforcement, was in response to appellant’s argument asking the jury to consider the
effects of the crime on him and his family, and “merely asked the jury to consider
one of the many effects of appellant’s crime, as shown by the evidence.” We agree
with the State that there is evidence of how the crime emotionally and
psychologically affected the complainant: she had depression, anxiety, anger and
aggression issues, behavioral changes, and nightmares; used drugs to help her sleep;
and was suspended from school. Evidence of a crime’s impact on a victim is
generally admissible during punishment because it bears on the defendant’s personal
responsibility and moral guilt. See, e.g., Stavinoha v. State, 808 S.W.2d 76, 77–79
(Tex. Crim. App. 1991) (per curiam) (psychological aftereffects of aggravated
sexual assault on child victim and his mother).

      However, we disagree with the State that its argument stayed within the
bounds of permissible argument based on this evidence. The cases cited by the State
do not persuade us that its specific statements relating to the complainant’s potential
future life decisions were proper pleas for law enforcement. Cf. Hall v. State, 643
S.W.2d 738, 741 (Tex. Crim. App. 1983) (proper plea for law enforcement when
State asked jury to draw on general common knowledge that defendant’s crimes—
sexual abuse, sexual abuse of child, and indecency with child—would have lasting
effects on victims); Stone v. State, 574 S.W.2d 85, 90 (Tex. Crim. App. [Panel Op.]
1978) (same when State asked jury to consider that child victim would have “scars
of some sort” and lasting embarrassment from crime of sexual abuse). Nor does

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asking the jury to consider a speculative aspect of the complainant’s future properly
respond to appellant’s argument that he suffered emotional effects from the crime,
or to his argument that his wife and son would lack financial support while appellant
was incarcerated. See Brown v. State, 270 S.W.3d 564, 572 (Tex. Crim. App. 2008)
(rejecting State’s position that its statements were allowed in response to defense
argument when they were not “tailored to the facts in the record or to misstatements
by opposing counsel”). There is no evidence in the record regarding the
complainant’s future plans to have children and involve them in sports, which is
what the State specifically asked the jury to consider. Therefore, we conclude that
the State’s pleas for the jury to consider the complainant’s fears and worries, when
her future children are in sports, “strayed beyond the evidentiary basis in the record”;
and the trial court erred by overruling appellant’s objections. See Palermo v. State,
992 S.W.2d 691, 696–97 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d)
(improper for State to ask jury to (1) think about what Christmas forever would be
like for family of murder victim and how family would be laying wreath on victim’s
grave rather than composing Christmas lists and (2) imagine how parent who already
had received one call in middle of night from morgue would fear receiving another
similar call).

       This does not end our inquiry, however. Improper-argument error is
nonconstitutional in nature, and a nonconstitutional error “that does not affect
substantial rights must be disregarded.” Tex. R. App. P. 44.2(b); Martinez v. State,
17 S.W.3d 677, 692–93 (Tex. Crim. App. 2000). We will affirm the judgment of the
trial court if we have “fair assurance that the error did not influence the jury, or had
but a slight effect.” Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
In assessing whether an appellant’s substantial rights were affected, we balance three
factors: (1) the severity of the misconduct (prejudicial effect); (2) any curative


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measures; and (3) the certainty of the punishment assessed absent the misconduct
(likelihood of the same punishment being assessed). Hawkins v. State, 135 S.W.3d
72, 77 (Tex. Crim. App. 2004) (appropriately tailored version of harm factors from
Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998), applies in “noncapital trial
punishment phase context”).

      Severity of the misconduct. Appellant does not contend that the State’s
comments were particularly shocking, inflammatory, or egregious. Rather, appellant
argues that the State’s comments were not “single” or “isolated” and were
“emphasized by the State at the end” of its closing argument.

      While the State did make and repeat these statements near the end of its
closing argument, the record reflects that fewer than two of the eleven pages
comprising the State’s argument included the improper statements related to the
complainant’s future children engaging in sports. The State presented several other
lines of argument. For example, the State emphasized that the jury also should keep
the complainant in mind when determining justice in this case and that it was
appellant who was responsible for his family’s suffering. The State discounted the
value of appellant’s mitigation evidence where there was evidence from a State’s
witness (director of the Harris County Children’s Assessment Center) that sex
offenders “tr[y] to look like you and me.” The State also pointed out that appellant
had taken advantage of the complainant’s trust and his position of authority as a
coach. The State argued that the jury’s role was to protect its community and the law
permitted the jury to consider the full punishment range. The State again described
the facts of the crime, telling the jury that the complainant and her family “will live
with [that day/pain] for the rest of their lives.” The State told the jury it was allowed
to be angry. Viewing the State’s closing as a whole, it does not appear that the State
was making a willful and calculated effort with its misconduct to deprive appellant

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of a fair and impartial trial. See Brown, 270 S.W.3d at 573 (citing Cantu v. State,
939 S.W.2d 627, 633 (Tex. Crim. App. 1997)). This factor appears to be neutral or
mildly prejudicial in favor of appellant.

      Curative measures. Appellant next argues that no curative measures were
taken. This is incorrect. See Hawkins, 135 S.W.3d at 84 (all corrective measures and
admonitions, including those in jury charge, must be considered). Prior to reading
the jury charge on punishment, the trial court admonished: “Again, keep in mind that
what the lawyers say during closing argument is not evidence.” The trial court
described “evidence” as what the jury “heard in this courtroom from the witness
stand” and “the documents and items that were admitted.” The jury charge further
included this instruction: “During your deliberations in this case, you must not
consider, discuss, nor relate any matters not in evidence before you. You must not
consider nor mention any personal knowledge or information you may have about
any fact or person connected with this case which is not shown by the evidence.”

      Finally, we consider the full context of the State’s closing. Although the trial
court overruled the first three objections by appellant, the court sustained his final
objection that the State’s statement—“Is it 20 years when her own kids are in sports
that she’s going to have to worry about it then?”—was “pure speculation” and there
was “no evidence of this whatsoever.” The trial court instructed the jury to disregard
the State’s statement. The trial court denied appellant’s motion for mistrial; however,
appellant does not raise this as an error on appeal. Absent evidence to the contrary,
we presume that the jury followed all the trial court’s instructions. See Hutch v. State,
922 S.W.2d 166, 170 (Tex. Crim. App. 1996). This factor tends to weigh in favor of
the State.

      Likelihood of same punishment being assessed. The range of appellant’s
possible punishment was two to twenty years. See Tex. Penal Code §§ 12.33,

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21.11(a)(1), (d). Appellant asked for the minimum, the State asked for “somewhere
in the top of that range,” and the jury landed at ten years. Appellant emphasizes the
strength of his mitigation evidence as someone with no criminal record, who attends
church, and is a family man. He argues that he was harmed by the State’s
inappropriate comments.

      As discussed above, however, the State urged that appellant was a sex
offender who took advantage of his position and power as a trusted coach and
authority figure in the community: “He was able to infiltrate our complainant’s life
due to the way he carried out himself the rest of the time.” The State presented
argument not only about the details of appellant’s indecent behavior, but also the
“horrific” emotional and psychological effects that appellant’s crime and betrayal of
the complainant’s trust had on her, which she would “carry . . . for the rest of her
life.” The jury was permitted to hold appellant morally accountable for
psychological trauma to the complainant. See Johnson v. State, 987 S.W.2d 79, 87
(Tex. App.—Houston [14th Dist.] 1998, pet. ref’d); Stavinoha, 808 S.W.2d at 79.
Based on our review of the record, we conclude that the jury likely would have
awarded a similar punishment even without the challenged remarks. In other words,
the State’s improper conduct did not have an “appreciable impact on the jury’s
consideration of appellant’s punishment.” See Palermo, 992 S.W.2d at 697. This
factor also tends to weigh in favor of the State.

      After carefully considering the three factors, we conclude that the State’s
comments did not affect appellant’s substantial rights. We overrule his first issue.

B. Constitutionality of “summoning witness/mileage” fee

      In his second issue, appellant argues that the $60 “summoning
witness/mileage” fee pursuant to Code of Criminal Procedure article 102.011(a)(3)
and (b) is facially “unconstitutional to the extent it allocates funds to the general fund
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of the city, county, and State because those funds allow spending for purposes other
than legitimate criminal justice purposes in violation of the separation of powers
provision of the Texas Constitution.”1 See Tex. Const. art. II, § 1.

       This court recently overruled a facial constitutional challenge to article
102.011 where the appellant also challenged the “summoning witness/mileage” fee.
Lopez v. State, 565 S.W.3d 879, 890–91 (Tex. App.—Houston [14th Dist.] 2018,
pet. filed). This court concluded that the sheriff’s fee for summoning witnesses and
for related mileage is facially constitutional because “the sheriff’s fee is an actual
recoupment of the out of pocket expenses incurred for summoning witnesses and for
associated mileage.” Id. at 891. There, we held that the appellant had “not met his
burden to show that the sheriff’s fees collected under the statute cannot be used for
legitimate criminal justice purposes in all possible circumstances.” Id. Likewise,
appellant has not met his burden here.

       Applying Lopez, we overrule appellant’s second issue.

                                  III.    CONCLUSION

       Having overruled appellant’s issues, we affirm the trial court’s judgment.




                                             /s/       Charles A. Spain
                                                       Justice

Panel consists of Justices Christopher, Spain, and Poissant.
Do Not Publish—TEX. R. APP. P. 47.2(b).

       1
         In his briefing, appellant relied on a panel opinion from the First Court of Appeals.
However, post briefing, the First Court of Appeals, sitting en banc, concluded that the “summoning
witness/mileage” fee in article 102.011(a)(3) and (b) was not facially unconstitutional. Allen v.
State, —S.W.3d—, No. 01-16-00768-CR, 2018 WL 4138965, at *5–*9 (Tex. App.—Houston [1st
Dist.] Aug. 30, 2018, pet. granted) (op. on reh’g).

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