                                        COURT OF APPEALS
                                     EIGHTH DISTRICT OF TEXAS
                                          EL PASO, TEXAS

    RONALD FAY SCHERMERHORN,                             §
                                                                            No. 08-13-00236-CR
                                  Appellant,             §
                                                                               Appeal from the
    v.                                                   §
                                                                  Criminal District Court Number Four
    THE STATE OF TEXAS,                                  §
                                                                         of Tarrant County, Texas
                                  Appellee.              §
                                                                              (TC#1323955R)
                                                         §

                                                 OPINION

         Appellant Ronald Fay Schermerhorn was found guilty of continuous sexual abuse of a

young child and sentenced to life in prison. Appellant raises one issue on appeal, complaining the

trial court erred in overruling his objection to the State’s jury argument. We conclude the error

was harmless and affirm.1

                                               BACKGROUND

         The jury charge submitted this case on the primary offense of continuous sexual abuse of a

young child and on the lesser-included offenses of aggravated sexual assault of a child and

indecency with a child by contact. After instructing the jury on the offense of continuous sexual


1
  This case was transferred to this Court from the Second Court of Appeals in Fort Worth, and we apply the precedent
of that court to the extent required by TEX.R.APP.P. 41.3.
abuse of a young child, the charge instructed the jury under what circumstances it could consider

the lesser-included offense of aggravated sexual assault of a child:

         Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt
         thereof, you will acquit the Defendant of the offense of Continuous Sexual Abuse
         of a Child and proceed to consider whether the defendant is guilty of the
         lesser-included offense of Aggravated Sexual Assault of a child.2

This instruction properly informed the jury that: (1) it should acquit Appellant of continuous

sexual abuse of a child unless it found beyond a reasonable doubt, or if it had a reasonable doubt,

that Appellant committed the offense; and (2) if so, it was to consider whether Appellant was

guilty of the lesser-included offense of aggravated sexual assault of a child.

         In attempting to explain these instructions to the jury in final argument, however, the

prosecutor stated:

         There is [sic], on about Page 4, a series of instructions, what we call lesser-included
         offenses.… [A]s the Court makes clear here, these, what we call lesser-includeds,
         the other verdicts below the first one are the place for you to manifest that. If you,
         first of all, find and believe beyond a reasonable doubt that the continuous sex
         abuse did not occur, you must, as the instructions tell you, first to – [emphasis
         added].

Defense counsel immediately objected, arguing that by telling the jury “[i]f they believe beyond a

reasonable doubt that the sexual abuse did not occur,” the State had shifted the burden of proof to

the defense. The trial court overruled the objection. The prosecutor then immediately corrected

his misstatement:

         Unless you so find beyond a reasonable doubt or if you have a reasonable doubt
         thereof, you will acquit the Defendant of the offense of continuous sex abuse and
         proceed to consider whether the Defendant is guilty of the lesser-included offense

2
  The jury was also instructed on the lesser-included offense of indecency with a child by contact: “Unless you so
find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the Defendant of the offense
of Aggravated Sexual Assault of a child and proceed to consider whether the defendant is guilty of the lesser-included
offense of Indecency with a Child by contact.”

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        of aggravated sexual assault of a child. You first deliberate on the continuous.
        Unless you -- if you find beyond a reasonable doubt there, stop. If you find
        beyond a reasonable doubt or you -- if you find -- unless you find or you have a
        reasonable doubt thereof, then you move on to the lessers.

                                           DISCUSSION

        In a single issue, Appellant complains the trial court erred in overruling his objection

because the State’s comment “improperly inverted the burden of proof in the case.” Appellant

notes that it is error for the State to present a statement of law that is contrary to that presented in

the jury charge. See Whiting v. State, 797 S.W.2d 45, 48 (Tex.Crim.App. 1990) (while it is not

error for the State to quote or paraphrase the jury charge, “it is error for the State to present a

statement of the law that is contrary to that presented in the charge to the jury”); see also Slater v.

State, No. 02-11-00368-CR, 2013 WL 2631194, at *4 (Tex.App. – Fort Worth June 13, 2013, pet.

ref’d) (mem. op., not designated for publication). The State contends any error was harmless.

We agree the error was harmless.

        It is clear that the prosecutor both misstated the law and made a comment that was contrary

to the court’s charge. See Whiting, 797 S.W.2d at 48; Burke v. State, 652 S.W.2d 788, 790

(Tex.Crim.App. 1983); Grant v. State, 738 S.W.2d 309, 311 (Tex.App. – Houston [1st Dist.] 1987,

pet. ref'd); see also Slater, 2013 WL 2631194, at *4. And, by overruling the defense’s objection,

the trial court put its stamp of approval on the prosecutor’s misstatement of the law. See Griffin v.

State, 779 S.W.2d 431, 434 (Tex.Crim.App. 1989); Burke, 652 S.W.2d at 790.

        Our inquiry does not end here, however. Improper argument error of this type is

non-constitutional in nature, and a non-constitutional error “that does not affect substantial rights

must be disregarded.”      TEX.R.APP.P. 44.2(b); Freeman v. State, 340 S.W.3d 717, 728-29

(Tex.Crim.App. 2011); Martinez v. State, 17 S.W.3d 677, 692–93 (Tex.Crim.App. 2000). To

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determine whether appellant’s substantial rights were affected, we balance the severity of the

misconduct (i.e., the prejudicial effect), any curative measures, and the certainty of conviction

absent the misconduct. Freeman, 340 S.W.3d at 728; Martinez, 17 S.W.3d at 692–93; Mosley v.

State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998).

        The prosecutor’s comment was a very small portion of the State’s entire closing argument

at the guilt phase. The State did not emphasize the comment. In fact the prosecutor – apparently

recognizing his mistake – immediately corrected himself and properly told the jury that “[u]nless

you so find beyond a reasonable doubt or if you have a reasonable doubt thereof, you will acquit

the Defendant of the offense of continuous sex abuse and proceed to consider whether the

Defendant is guilty of the lesser-included offense of aggravated sexual assault of a child.”

Viewing the State’s closing argument as a whole, we cannot conclude that there was a willful and

calculated effort to deprive Appellant of a fair and impartial trial. See Brown v. State, 270 S.W.3d

564, 572-73 (Tex.Crim.App. 2008) (in evaluating the severity of the misconduct, we assess

whether the jury argument is extreme or manifestly improper by looking at the entire record of

final arguments to determine if there was a willful and calculated effort on the part of the State to

deprive appellant of a fair and impartial trial).

        Further, viewing the record as a whole, we cannot conclude that Appellant was prejudiced

by the prosecutor’s comment. There was no curative instruction given because the trial court

overruled the objection.     The prosecutor, however, immediately corrected himself, thereby

mitigating any harmful effect of his misstatement. See Hawkins v. State, 135 S.W.3d 72, 84

(Tex.Crim.App. 2004) (“Although a prosecutor’s self-corrective action might not carry the same

weight as a trial court’s instruction to disregard, it is nevertheless a relevant consideration in


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determining harm and can, in the appropriate circumstances, render an improper comment

harmless.”); see also Walker v. State, No. 14-10-00389-CR, 2011 WL 977534, at *8 (Tex.App. –

Houston [14th Dist.] March 22, 2011, pet. ref’d) (mem. op., not designated for publication)

(prosecutor’s misstatement of law concerning lesser-included offense harmless where prosecutor

corrected herself).

       And, the trial court’s charge properly instructed the jury that, if the State failed to prove

beyond a reasonable doubt that Appellant committed continuous sexual abuse, it should consider

the lesser-included offenses. The jury is presumed to have followed the trial court’s instructions.

Thrift v. State, 176 S.W.3d 221, 224 (Tex.Crim.App. 2005). Given this presumption, it is

unlikely that Appellant could have been harmed by the prosecutor’s comment. See Hawkins, 135

S.W.3d at 84 (discussing importance of fact that charge accurately instructed jury on the law); see

also Lee v. State, 971 S.W.2d 130, 131-32 (Tex.App. – Houston [14th Dist.] 1998, pet. ref’d) (in an

almost identical case, prosecutor’s misstatement of burden of proof with regard to lesser-included

offense was harmless where charge accurately set out the law).

       Moreover, the evidence presented during the guilt phase showed clearly that Appellant

sexually abused the child over a period of time such that any misstatement about lesser-included

offenses and the burden of proof could not have affected the jury. See Walker, 2011 WL 977534,

at *9 (misstatement of law concerning lesser-included offenses was harmless where evidence

overwhelmingly showed defendant committed greater offense).

       Given the brevity of the prosecutor’s comments, the lack of prejudice, and the strength of

the evidence supporting Appellant’s conviction, we conclude that any error associated with the

prosecutor’s comment was harmless. Appellant’s sole issue is overruled.


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                                        CONCLUSION

       The trial court’s judgment is affirmed.


                                             STEVEN L. HUGHES, Justice
July 1, 2015

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)




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