                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-17-00029-CR


JOE DAVID MOON                                                     APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


                                    ----------

          FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY
                      TRIAL COURT NO. 56,532-A

                                    ----------

                        MEMORANDUM OPINION 1

                                    ----------

      A jury found appellant Joe David Moon guilty of one count of aggravated

sexual assault of a child and two counts of indecency with a child by sexual

contact. On both indecency counts, the jury further found that the children were

under 14 years of age at the time of the offenses. For the aggravated-sexual-

assault-of-a-child conviction, the jury assessed Moon’s punishment at 60 years’


      1
      See Tex. R. App. P. 47.4.
imprisonment and a $10,000 fine. On both indecency convictions, the jury

assessed Moon’s punishment at 15 years’ imprisonment and a $5,000 fine. The

trial court sentenced Moon accordingly and ordered the two indecency

convictions to run concurrently with each other but consecutively with the

aggravated-sexual-assault conviction. In two points, Moon argues that the trial

court erred by (1) finding that he voluntarily absented himself from trial and

(2) overruling his objections to numerous arguments that the State made during

the trial’s punishment phase. We affirm.

                                     Evidence

      Moon does not contest the sufficiency of the evidence. The jury convicted

him of three counts of sexually abusing his granddaughter and step-

granddaughter. Although Moon was not charged with it, there was evidence that

he also sexually abused another granddaughter. For purposes of this opinion, we

refer to all three as Moon’s granddaughters.

                                     Point One

                 Moon voluntarily absented himself from trial

      In his first point, Moon argues that the trial court erred by finding that he

voluntarily absented himself from trial.

                                    Background

      On Thursday, November 3, 2016, after both the State and Moon had

rested and closed and with Moon present, the trial court excused the jury for the




                                           2
remainder of the day and informed the jurors that it would present the guilt–

innocence charge to them at 9:30 a.m. on the following Monday morning.

      On that Monday morning, however, Moon failed to appear. At 9:50 a.m.,

the trial court forfeited Moon’s bond, recessed the trial until 1:00 p.m., and

informed the parties that the trial would resume then with or without Moon.

      At 1:00 p.m., outside the jury’s presence, the trial court conducted a brief

hearing addressing Moon’s absence. James Carpenter, an investigator for the

district attorney’s office, testified that based on an earlier tip about where Moon

had recently been spotted, he found Moon that morning at the Kiowa Casino in

Oklahoma playing slot machines. 2 Carpenter, who was familiar with Moon’s

appearance during trial, testified that Moon now looked different because he had

cut his hair. After investigators took him into custody, Moon asked if there had

been a mistrial and was told no. A deputy from the Cotton County (Oklahoma)

Sheriff’s Office arrested Moon on the active warrant out of Wichita County,

Texas, and at the time of the 1:00 p.m. hearing Moon was in jail in Cotton

County, Oklahoma, awaiting extradition back to Texas. Arguing that Moon had

voluntarily absented himself, the prosecutor asked that the trial proceed.

      Moon’s defense counsel then introduced an affidavit from his own

investigator, Don Spaulding. Although the prosecutor objected to the affidavit on

hearsay grounds, the trial court stated on the record that it would “take a look at

      2
      The Kiowa Casino is roughly twenty miles from Wichita Falls, Texas,
where the trial was taking place.


                                         3
it,” agreeing with defense counsel that “the rules of evidence would not apply in

this proceeding.” In the affidavit, Spaulding averred:

      On November 7, 2016 [the same date on which Moon was found at
      the casino], I had a conversation with Max Green who works for A to
      Z Bail Bonds. During this conversation, Mr. Green stated that he had
      conversations with Joe Moon stating that he heard there had been a
      mistrial, and Joe probably would not need to show up to his court
      hearing on this date because “he may get a whole new trial or
      resetting, I was just trying to keep his nerves down and give him
      some kind of hope.” Mr. Green also stated that he spoke to Mr.
      Moon at 6:30 on Saturday [November 5]. He stated that he told Joe
      that there had been a mistrial.

      Moon’s defense counsel then moved to reinstate Moon’s bond and to

continue the trial. The trial court denied both and said, “We will proceed without

Mr. Moon, who has voluntarily absented himself from the proceedings.”

      During a hearing on Moon’s later motion for new trial, Green—Moon’s

bondsman—testified that he knew there had been no mistrial but told Moon there

might be one simply to encourage Moon to be in court on Monday. Green

testified that he made this effort because an informant had already told him that

Moon did not intend to come to court. Green admitted lying to Moon to try to

ensure his presence.

      At the hearing on his new-trial motion, Moon also introduced his affidavit in

which he stated:

      Max Green communicated with me on or about Friday, November 4,
      2016 and over the subsequent weekend. His communications led
      me to believe that there had been a mistrial in my case. I did not
      freely and voluntarily absent myself from the court proceedings. After
      I was subsequently arrested, I was being held involuntarily in



                                         4
      Oklahoma. Had I been given the opportunity, I would have returned
      to Wichita County and participated in my trial.

      Again concluding that Moon’s absence was voluntary, the trial court

overruled Moon’s motion for new trial.

                                Standard of review

      Article 33.03 of the code of criminal procedure, in relevant part, provides

that “[i]n all prosecutions for felonies, the defendant must be personally present

at the trial,” but adds the caveat that “in all cases, when the defendant voluntarily

absents himself after pleading to the indictment or information, or after the jury

has been selected when trial is before a jury, the trial may proceed to its

conclusion.” Tex. Code Crim. Proc. Ann. art. 33.03 (West 2006).

      As we have discussed, the trial court twice addressed whether Moon’s

absence was voluntary—initially when it decided to proceed with the trial in his

absence and again at Moon’s motion-for-new-trial hearing. In his brief, Moon

does not distinguish between the two events but relies on both to support his

arguments.

      When reviewing whether the trial court properly decided to proceed with

trial in a defendant’s absence, we are not restricted to considering evidence that

was before the trial court at the time it made its ruling, nor must we ignore

evidence that developed after it ruled (such as evidence presented at a motion-

for-new-trial hearing). Moore v. State, 670 S.W.2d 259, 261 (Tex. Crim. App.

1984); Polk v. State, No. 02-02-00038-CR, 2003 WL 21197404, at *2 (Tex.



                                         5
App.—Fort Worth May 22, 2003, no pet.) (mem. op., not designated for

publication). We review a trial court’s determination that a defendant is voluntarily

absent under an abuse-of-discretion standard. Polk, 2003 WL 21197404, at *2.

As long as there was some evidence before the trial court from which it could

infer that the defendant was voluntarily absent, the court did not abuse its

discretion. See Heard v. State, 887 S.W.2d 94, 99 (Tex. App.—Texarkana 1994,

pet. ref’d); see also Summage v. State, No. 06-14-00210-CR, 2015 WL 3486031,

at *2 (Tex. App.—Texarkana June 3, 2015, no pet.) (mem. op., not designated

for publication).

      We review a trial judge’s motion-for-new-trial denial also under an abuse-

of-discretion standard. Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App.

2014). We do not substitute our judgment for the trial court’s; rather, we decide

only whether the trial court’s decision was arbitrary or unreasonable. Id. A trial

court abuses its discretion by denying a motion for new trial when no reasonable

view of the record could support its ruling. Id. We view the evidence in the light

most favorable to the trial court’s ruling and presume that all reasonable factual

findings that could have been made against the losing party were in fact made

against that losing party. Id. At a motion-for-new-trial hearing, the judge alone

determines the witnesses’ credibility and does not have to believe even

uncontroverted or uncross-examined testimony. Id.




                                         6
                                   Discussion

      The evidence showed that Green’s informant had told him even before

Green communicated with Moon that Moon did not intend to appear at trial the

following Monday. The evidence also showed that Green communicated with

Moon for the express purpose of encouraging Moon to appear by giving him a

(false) hope that the trial court would declare a mistrial. 3 The trial court could

have reasonably concluded that Moon never intended to appear for trial on

Monday and that Moon fabricated a story about misunderstanding Green to try to

plausibly explain his absence. When ruling on Moon’s motion for new trial, the

trial court was the sole judge of the weight and credibility of the evidence,

including Moon’s affidavit. See Odelugo v. State, 443 S.W.3d 131, 137 (Tex.

Crim. App. 2014); Graham v. State, No. 12-15-00160-CR, 2016 WL 3568056, at

*3 (Tex. App.—Tyler June 30, 2016, no pet.) (mem. op., not designated for

publication).

      Moon argues from the assumption that he genuinely believed there had

been a mistrial. As the factfinder, the trial court was free to disbelieve Moon’s

claimed genuine belief. See Colyer, 428 S.W.3d at 122. Moon’s affidavit did not

mention having contacted his attorney or the trial court to verify anything his

bondsman had told him. But even assuming Moon genuinely believed the trial

      3
        At the hearing on Moon’s new-trial motion, Green acknowledged that one
of his concerns about Moon’s not showing up that Monday was financial: Green
recalled that the bonds for which he would be on the “financial hook” totaled
“over 100,000.”


                                        7
court had declared a mistrial, his affidavit does not explain why that development

would have excused him from appearing on Monday to learn about his retrial, or

simply to confirm the status of his case.

      Moon also complains that his absence prejudiced him because the

prosecutor used his absence to the State’s advantage and because he was not

there to defend himself. But Moon’s absconding in the middle of his trial was

what invited the prosecutor’s attacks; although the prosecutor delivered “hard

blows,” they were fair ones. See Jordan v. State, 646 S.W.2d 946, 948 (Tex.

Crim. App. 1983). By his actions, Moon waived his right to be present. See

Taylor v. United States, 414 U.S. 17, 17, 20, 94 S. Ct. 194, 195–96 (1973)

(holding trial court properly denied defense counsel’s motion for mistrial based on

argument that defendant’s absence would taint jurors’ minds and would deprive

him of his right to confront witnesses; defendant’s voluntary absence constituted

waiver of his right to be present). Moon could have avoided any alleged prejudice

by appearing for his trial instead of going to Oklahoma to play the slots.

      Moon contends that because he was willing to return to the trial and

because his jailing in Oklahoma prevented him from returning, his absence was

involuntary. Moon appears to argue that he wanted to reclaim his right to

participate in his trial but that his incarceration in Oklahoma kept him from doing

so, referring us to Illinois v. Allen and Morrison v. State. See Illinois v. Allen,

397 U.S. 337, 343, 90 S. Ct. 1057, 1061 (1970) (“Once lost, the right to be

present can, of course, be reclaimed as soon as the defendant is willing to


                                            8
conduct himself consistently with the decorum and respect inherent in the

concept of courts and judicial proceedings.”); Morrison v. State, 480 S.W.3d 647,

651, 662 (Tex. App.—El Paso 2015, no pet.) (holding that Texas does not have a

bright-line rule on what steps a trial court must take to ensure that a defendant is

given a reasonable opportunity to return to the courtroom).

      But those cases involve instances where the trial court removed the

defendants from their trials because the defendants were disruptive. Here, the

trial court did not remove Moon from the proceedings; Moon removed himself.

See Smith v. State, 494 S.W.3d 243, 251–54 (Tex. App.—Texarkana 2015, no

pet.) (holding trial court did not abuse discretion by denying motion for

continuance    after   defendant’s   failed   suicide     attempt   and   subsequent

hospitalization); Bottom v. State, 860 S.W.2d 266, 267 (Tex. App.—Fort Worth

1993, no pet.) (holding that defendant who was in a hospital because he had

attempted suicide during trial was voluntarily absent).

      Allen and Morrison are inapposite for another reason: those defendants’

ability to return to trial depended on whether the trial judge would allow it. Here

the trial judge was not the impediment to Moon’s returning to the trial. Even

though, logistically, Moon could not return because he was locked up in

Oklahoma, it was his voluntary decision to go gamble that landed him there. See

Smith, 494 S.W.3d at 251–54; Bottom, 860 S.W.2d at 267.

      Under article 33.03, factors such as the likelihood that the trial can take

place soon with the defendant present, the difficulty of rescheduling, and juror


                                         9
inconvenience are not required to be analyzed, although the trial court, in its

discretion, may consider such matters and others when deciding whether to

proceed. Moore, 670 S.W.2d at 261. As Judge Clinton wrote in his Moore

concurrence, “Interests of both the State and the court in the speedy and orderly

administration of justice justified the trial court’s refusal to continue the case

under these circumstances.” Id. at 262 (Clinton, J., concurring). Stated another

way, “‘The busy trial courts of our state cannot stop the wheels of an already

burdened criminal justice system because a defendant chooses to be absent

from his own trial.’” Smith, 494 S.W.3d at 254 (quoting Sanchez v. State,

842 S.W.2d 732, 733 (Tex. App.—San Antonio 1992, pet. ref’d)). Because Moon

voluntarily absented himself from trial, the trial court did not abuse its discretion

by proceeding without him. See Tex. Code Crim. Proc. Ann. art. 33.03.

      We overrule Moon’s first point.

                                    Point Two

                            Prosecutorial arguments

      In Moon’s second point, he argues that the trial court erred by overruling

his objections to numerous arguments that the State made during the trial’s

punishment phase, pinpointing three particular instances when the prosecutor

allegedly argued outside the record.




                                         10
                                      Mistrial

      First, Moon contends that the prosecutor speculated that he avoided trial in

a deliberate effort to generate a mistrial. He directs us to the following argument:

      [Prosecutor]: And then we talk about Paragraph 10, that’s the
      evidence of extraneous acts. And that’s what we’re talking about, the
      evidence . . . regarding [Moon’s] being at the casino yesterday
      morning when he was supposed to be here for closing arguments.
      And you notice that one thing that [defense counsel] didn’t bring up
      and what I asked [the investigator] is what did [Moon] say? He said,
      well, I thought there was a mistrial. He’s [gaming] you, ladies and
      gentlemen. He thought that he could [game] the system by going up
      to the casino while all of you spent your morning up here; that we
      were supposed to be deliberating your guilt/innocence verdict, and
      instead he thought that he could get a mistrial by going up and
      playing the slot machines.

      [Defense counsel]: Objection, Judge. Calls for speculation and goes
      outside the record.

      THE COURT: Overruled.

                              Impact on victim’s lives

      Next, Moon maintains that the prosecutor speculated at length about how

his actions would impact his grandchildren’s future lives. The prosecutor argued:

      The view of the children. You know, [defense counsel] wants to talk
      about how there’s not any evidence of lasting physical trauma. And
      I’ll submit that there is no evidence of that at the moment.

             When [you] get to emotional trauma, however, the trauma is
      only beginning. You know, these girls have spent some time in
      counseling, they’ve started to realize that they need to talk about this
      and it’s something that’s going to sit with them.

             You know, every time [Moon’s granddaughter] drives by that
      house she’s going to remember her grandfather. Every time [Moon’s
      other granddaughter] has a grandparent’s day or some other event
      that’s calling for her grandparents, she’s going to remember what
      her step grandfather did to her.

                                         11
      [Defense counsel]: Objection, Judge. Going outside the record.

      THE COURT: Overruled.

      [Prosecutor]: They’re going to be dealing with all of these things for
      the rest of their life, and, you know, their issues with trust in people,
      in men specifically. We don’t know the extent that that’s going to
      harm them. And I can’t speculate standing before you today, but
      certainly you can consider and appreciate the lasting damage and
      the stigma that this Defendant has left in these girl[s’] wake. And I’d
      ask you to consider that as well when you talk about what an
      appropriate sentence is.

             I’d like you to consider this case from the eyes of the children.
      That [child’s] sleeping or pretending to sleep on the couch to scare
      her grandfather. She’s not afraid of him. But he picks her up the first
      time, she’s never been picked up before, and she doesn’t know what
      to do. And I want you to think about how she felt when she was
      brought into that room and laid on the mattress and [Moon] went in a
      circular form and penetrated her because that’s the first sexual
      experience that she will ever have and that’s the one that she’s
      going to remember for the rest of her life.

             And with regard to [the other granddaughter] and to [Moon’s
      third granddaughter] as well. This is—we’re dealing with their first
      sexual experience at the hands of [their grandfather]. It’s going to
      have lasting [e]ffects on these girls and I ask you—

      [Defense counsel]: Objection. Going outside the record.

      THE COURT: Overruled.

      [Prosecutor]: I’d ask you to consider that when deciding what the
      appropriate verdict is.

                                 Recidivism

      Lastly, Moon asserts that despite there being no evidence about his

propensity for recidivism, the prosecutor argued:

      [Moon] is 61. There’s nothing in the record to say that he won’t do
      this at 71, at 81, at 91.



                                         12
      [Defense counsel]: Objection, Judge. Again, going outside the
      record.

      THE COURT: Overruled.

      [Prosecutor]: If the opportunity presents itself, there’s nothing to say
      that he won’t do it again.

                            Standard of review

      To be permissible, the State’s jury argument must fall within one of the

following four general areas: (1) summation of the evidence; (2) reasonable

deduction from the evidence; (3) answer to argument of opposing counsel; or

(4) plea for law enforcement. Felder v. State, 848 S.W.2d 85, 94–95 (Tex. Crim.

App. 1992), cert. denied, 510 U.S. 829 (1993); Alejandro v. State, 493 S.W.2d

230, 231 (Tex. Crim. App. 1973). The Texas Court of Criminal Appeals has

“consistently held that counsel may during final argument draw from those facts

in evidence all inferences that are reasonable, fair, and legitimate and that he

has wide latitude without limitation in this respect so long as the argument is

supported by the evidence and offered in good faith.” Vaughn v. State,

607 S.W.2d 914, 922–23 (Tex. Crim. App. [Panel Op.] 1980). We review a trial

court’s ruling on an improper-jury-argument objection for an abuse of discretion.

See Garcia v. State, 126 S.W.3d 921, 924 (Tex. Crim. App. 2004); Ramires v.

State, No. 02-16-00185-CR, 2017 WL 4542857, at *4 (Tex. App.—Fort Worth

Oct. 12, 2017, no pet.) (mem. op., not designated for publication).




                                        13
                                      Mistrial

      When the investigators confronted Moon at the Kiowa Casino, he asked

whether there had been a mistrial. One reasonable inference from Moon’s

question was that Moon was trying to explain to the investigators that he was in

Oklahoma because he thought the trial court had declared a mistrial and was

asking the investigators to confirm that. But the flaw in this inference is that

Moon’s question effectively conceded that he entertained doubts about whether

the trial court had declared a mistrial but went to Oklahoma anyway.

      Another reasonable inference is that when Moon asked that question, he

was asking the investigators whether his absence had caused the trial court to

declare a mistrial. Green testified that he had told Moon that a mistrial might

mean that the prosecutors would give him a different offer or a retrial. Either way,

Green had communicated to Moon that a mistrial—whatever its source—was

something that potentially worked to Moon’s favor, and a reasonable inference is

that Moon thus wanted a mistrial, even if he had to be its cause. See Dues v.

State, 634 S.W.2d 304, 305 (Tex. Crim. App. [Panel Op.] 1982) (stating that

factfinder may infer intent from acts, words, and conduct of the accused); Turner

v. State, Nos. 02-11-00070-CR, 02-11-00071-CR, 2013 WL 530972, at *1 (Tex.

App.—Fort Worth Feb. 14, 2013, pet. ref’d) (mem. op., not designated for

publication) (same).

      Because the prosecutor’s argument was a reasonable deduction from the

evidence, we hold that the trial court did not abuse its discretion by overruling


                                        14
Moon’s     objection.   See    Felder,   848    S.W.2d      at   94–95;   Ramires,

2017 WL 4542857, at *4.

                              Impact on victims’ lives

      Moon argues that there was no evidence that his sexually abusing his own

granddaughters would adversely affect their lives. But there was evidence. A

therapist for sex offenders testified about the effect that sexual abuse has on

children when the perpetrator is a trusted family member:

      When the perpetrator is an authority figure literally -- an authority
      figure with whom the child has some kind of familial relationship or
      family friend, processing the abuse is difficult because children tend
      to think in black and white. There are good guys and there are bad
      guys, and they typically think that people that hurt children or would
      do something to cross those kind of boundaries would be in the bad
      guy category. So when somebody who they think of as in the good
      guy category does that, it’s extremely confusing. They may have
      feelings of affection or love for this person, but then this person is
      doing something that feels shameful, violating, and wrong. And most
      often, children don’t know what to do with that. There’s no framework
      that they have to look at that with them.

She added:

      Children obviously in these situations feel extremely powerless. And
      because of that and the shame and the secrecy that goes with child
      sexual abuse, they often feel somehow like they are to blame; that
      they should have done something. And I’ve talked to many adults
      who are in this situation who, you know, particularly grown men, but
      women as well, who were abused as children and still feel a lot of
      shame and blame themselves.

Finally, she gave an example of how the consequences of abuse might surface

years later:

      I actually had a relatively recent case. The perpetrator, who did
      admit to the offense, he had molested his biological daughter, oh,


                                         15
      gosh, she’s 28 now, he had molested her when she was very young,
      you know, 9ish, something like that, 9 or 10, and never said anything
      until her brother, so the perpetrator’s son, had a child and it was a
      little girl. And the daughter, who is now 28, absolutely, for lack of a
      better term, she freaked out. She was really, really worried about her
      dad, who now had this little baby granddaughter, doing something
      because she remembered what had happened to her. And actually,
      now that I’m thinking about this, the abuse occurred with her, I
      believe, from the ages of 5 to 9 so it was ongoing for a long period of
      time.

See Vaughn, 607 S.W.2d at 922–23 (holding that, with wide latitude, inferences

are permissible if they are reasonable, fair, and legitimate and have evidentiary

support).

      Additionally, the prosecutor was responding to Moon’s argument that there

was no evidence of emotional trauma. See Felder, 848 S.W.2d at 94 (holding

that jury argument answering opposing counsel is permissible).

      The trial court did not abuse its discretion by overruling Moon’s objection.

See Felder, 848 S.W.2d at 94–95; Ramires, 2017 WL 4542857, at *4.

                                    Recidivism

      Moon argues that there was no evidence that he was a risk for recidivism.

We disagree. There was evidence that Moon had sexually abused three of his

granddaughters and that some of the abuse went back several years. That is the

very definition of recidivism: “repeated relapse into criminal or delinquent habits.”

Recidivism, Webster’s Third New Int’l Dictionary (2002). Because Moon had

already shown a penchant for this kind of conduct, we hold that it was a

reasonable deduction from the evidence that Moon presented a continued risk for



                                         16
recidivism; the trial court did not abuse its discretion by overruling Moon’s

objection. See Felder, 848 S.W.2d at 94–95; Ramires, 2017 WL 4542857, at *4.

      We overrule Moon’s second point.

                                Conclusion

      Having overruled both of Moon’s points, we affirm the trial court’s

judgments.




                                               /s/ Elizabeth Kerr
                                               ELIZABETH KERR
                                               JUSTICE

PANEL: MEIER, GABRIEL, and KERR, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 28, 2018




                                     17
