Affirmed and Memorandum Opinion filed May 29, 2014.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-12-00949-CR
                              NO. 14-12-00950-CR

                        ABRAHAM JOSEPH, Appellant

                                        V.

                       THE STATE OF TEXAS, Appellee

                   On Appeal from the 208th District Court
                            Harris County, Texas
                  Trial Court Cause Nos. 1359481 & 1359482

                  MEMORANDUM OPINION
      Appellant Abraham Joseph was convicted of two counts of felony
aggravated sexual assault by a public servant. On appeal, he contends that the trial
court erred by admitting extraneous-offense evidence. Further, he contends the trial
court erred by overruling his objections and denying his motions for mistrial
during the State’s closing argument. We affirm.
                                   BACKGROUND

      Complainant Angela,1 an immigrant from El Salvador, was a waitress at a
Houston nightclub. At the time of the trial, she had been residing in Houston for
less than three years and spoke very little English. Joseph was a Houston police
officer that frequently patrolled the area around the nightclub.

      The trial record reflects that about two months before the charged offense,
Angela and another employee encountered Joseph in his patrol car as they walked
to a store. According to the record, Joseph asked for Angela’s name. As she
approached him, he grabbed her, pulled her towards his open car door, and put his
hand under her skirt. At trial, Angela identified Joseph as the man who had
touched her on this occasion.

      According to Angela’s trial testimony, on the night of January 2, 2011
Joseph pulled up to the nightclub in his patrol car while Angela and another man,
Giovanni, were standing outside talking. Joseph yelled something at Angela and
Giovanni. Angela did not understand him. Joseph handcuffed Giovanni and placed
him in his patrol car. Joseph then turned to Angela, pushed her on top of the hood
of Giovanni’s car, and grabbed her genitals. She tried to say, “no touch,” but
instead spoke Spanish to which Joseph responded, “[n]o comprende. I don’t
understand.” Joseph handcuffed her and put her into the patrol car with Giovanni.

      Trial testimony reflects that Joseph drove them to a gas station, released
Giovanni, and told him to leave. Joseph then drove to a nearby park with Angela
still locked in the patrol car. At the park, he pulled Angela from the car and
forcefully had sexual intercourse with her, penetrating her mouth and sexual organ
with his sexual organ. After the incident, Angela contacted law enforcement

      1
        To protect the privacy of the complainant in this case, we identify her by the
pseudonym “Angela.”

                                          2
authorities, which led to the two indictments in this case: one charging sexual
assault by Joseph’s penetration of the complainant’s mouth, and one charging
sexual assault by Joseph’s penetration of the complainant’s sexual organ. Joseph
pleaded “not guilty” to the charges.

       In her opening statement at trial, defense counsel stated that the sexual
encounter was consensual and that Angela had agreed to the encounter. Defense
counsel also stated that Angela stood to benefit from her allegations, claiming,
“[y]ou will learn, as the prosecutor has already pointed out, that not only is there a
civil suit with quite a lot of money at stake, you will learn that there are other
benefits that the witnesses in this case stand to be able to achieve[.]” During cross-
examination of Angela, defense counsel established that Angela had applied for a
U-Visa, an immigrant permit for victims of a violent crime.

       The State offered testimony from two other women who reported similar
encounters with Joseph. Defense counsel objected to the testimony, citing Texas
Rules of Evidence 403 and 404(b). The State argued the testimony would show the
charged offenses in the case were not consensual and that the testimony was
admissible to prove Joseph’s motive, plan, and opportunity. After hearing the
offered testimony of one of the women, Christina,2 outside the presence of the jury,
the trial court found the testimony to be more probative than prejudicial. Defense
counsel’s objections were overruled, and Christina’s testimony was admitted.
Christina testified that Joseph had sexually assaulted her on two previous
occasions: once in August 2010, and again just hours before the assault on Angela.

       Additionally, the State offered evidence of Joseph’s DNA on Angela’s
clothing and on the ground at the park, GPS evidence tracking Joseph’s patrol car

       2
        To protect the privacy of the extraneous-offense witness in this case, we identify her by
a pseudonym, “Christina.”

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to the park at the time of the alleged events, and video surveillance evidence from
the gas station which showed Joseph releasing Giovanni and driving away.

      The jury convicted Joseph of both counts of aggravated sexual assault and
assessed his punishment at imprisonment for life in each cause. The trial court
ordered the sentences to run concurrently.

                                         ANALYSIS

   I. Extraneous-Offense Testimony

      In his first issue, Joseph asserts that the trial court violated Texas Rules of
Evidence 403 and 404(b) by allowing Christina’s extraneous-offense testimony.
According to Joseph, her testimony served only to improperly demonstrate his
propensity to engage in inappropriate sexual conduct while he was on the job, and
its probative value was substantially outweighed by of the danger of unfair
prejudice.

   A. The Testimony

      Christina testified that Joseph had sexually assaulted her on two occasions
prior to the charged offense. The record reflects that Christina was a waitress at the
same nightclub as Angela and worked the same evening-to-morning shift as
Angela. Christina, like Angela, identified herself as Hispanic. Unlike Angela,
Christina spoke both Spanish and English fluently. Christina testified that during
all her encounters with Joseph, he wore his uniform and badge, and he pulled up to
the nightclub in his patrol car.

      Christina testified that she first encountered Joseph when he pulled her aside
while she was standing outside the nightclub with another man. Joseph poured out
the man’s beer and ordered the man inside. Joseph next processed Christina’s
information in a computer in his patrol car, discovering that she had outstanding

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traffic warrants. Joseph threatened to take her to jail because of the warrants if she
did not follow him. Christina testified that she followed him in her car to a
pharmacy, where he then placed her into his patrol car and drove to a secluded area
behind an abandoned building. Joseph removed her clothing and had sexual
intercourse with Christina against her wishes. Afterward, he ordered her not to tell
anyone or he would take her to jail.

      Christina’s second encounter with Joseph occurred in the early morning of
January 2, 2011, roughly two hours before the assault on Angela. Christina
testified that Joseph again ordered her to follow him in her car to a nearby location,
where he put her in his patrol car and threatened to take her to jail. Christina
testified that Joseph drove her to a nearby park where he motioned for her to
perform oral sex on him. Christina testified that she complied because she was
fearful of being taken to jail and the effect it would have on her children. The
record reflects that this park was the same location where Joseph took Angela later
that night.

   B. Standard of Review

      We review the admissibility of extraneous-offense evidence under an abuse-
of-discretion standard. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim.
App. 1991) (op. on reh’g). As long as a trial court’s ruling is within the zone of
reasonable disagreement about the availability of a particular inference, an
appellate court should affirm. See id. A trial court abuses its discretion and goes
beyond the zone of reasonable disagreement in evidentiary rulings when it acts
without reference to any guiding rules and principles. Id. at 380.

   C. Rule 404(b)

      Evidence is relevant if it has “any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less
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probable than it would be without the evidence.” Tex. R. Evid. 401. Rule 404(b)
provides that “[e]vidence of other crimes, wrongs or acts is not admissible to prove
the character of a person in order to show action in conformity therewith.” Tex. R.
Evid. 404(b). However, extraneous-offense evidence may be admissible when it
has relevance apart from the prohibited use of character conformity. See id.;
Montgomery, 810 S.W.2d at 387. Such extraneous-offense testimony may be
relevant to prove motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident. See id. This list is illustrative rather
than exhaustive. See De La Paz, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009).
Extraneous offense testimony may also be admitted to rebut a defensive issue that
negates one of the elements of the defense. Id.

      Courts have recognized a defendant’s modus operandi—i.e., a defendant’s
“distinctive and idiosyncratic manner of committing criminal acts”—as an
exception to the general rule excluding extraneous-offense if the modus operandi
tends to prove a material fact at issue, other than propensity. See Casey v. State,
215 S.W.3d 870, 880–81 (Tex. Crim. App. 2007). When a defensive theory of
consent is raised, a defendant necessarily places at issue his intent to commit the
crime. Rubio v. State, 607 S.W.2d 498, 501 (Tex. Crim. App. 1980). Thus, modus
operandi evidence has been used to prove lack of consent as a fact at issue in a
sexual assault case. See Casey, 215 S.W.3d at 881–82; Martin v. State, 173 S.W.3d
463, 466–68 (Tex. Crim. App. 2005); Rickerson v. State, 138 S.W.3d 528, 531–32
(Tex. App.—Houston [14th Dist.] 2004, pet. ref’d).

      In Martin, the complainant testified that she became acquainted with Martin
at a private club, where he falsely told her he was a deputy in the Polk County
Sheriff’s Department. Martin, 173 S.W.3d at 464. She agreed to meet him at a
mobile-home park several days later, but once she arrived he took her to an

                                         6
unoccupied mobile home and forced her to have intercourse with him. Id. Martin
disputed that he had assaulted her and testified that their intercourse was
consensual. Id. at 465. After Martin testified, the State called a rebuttal witness.
She testified that, several months before the alleged offense, she met Martin
through a telephone “date line.” She stated that Martin told her he was a detective
with the Liberty County Sheriff’s Department. He later met her at an apartment
and sexually assaulted her. Id. Because Martin falsely claimed to be a law
enforcement officer to “pick up” both the complainant and the extraneous-offense
witness, both women agreed to meet Martin in a residential area, both women were
assaulted on the first face-to-face meeting after initial contact, and both assaults
took place in a residence, the court held that the extraneous-offense testimony was
admissible as sufficiently distinctive modus operandi evidence. See id. at 468.

      Likewise, Christina’s extraneous-offense testimony is sufficiently distinctive
and similar to the charged offenses to qualify as modus operandi evidence relevant
to the issue of consent. See id. Both women in this case were waitresses at the
same nightclub, working the same shift. Both women identified as Hispanic. Both
women were approached by Joseph while he wore his uniform and drove his patrol
car. Both women were assaulted in the same park and on the same night. See id. at
468; Webb v. State, 995 S.W.2d 295, 299 (Tex. App.—Houston [14th Dist.] 1999,
no pet.) (holding extraneous offenses sufficiently similar where “[a]ll complainants
were topless dancers, all the complainants had met at a topless club, all of the
assaults occurred in Appellant’s home, and all involved physical struggles and
violence”).

      Joseph argues that Christina’s ability to speak both English and Spanish
fluently is a fatal dissimilarity to a finding of modus operandi, but we disagree that
this factor is controlling. Furthermore, we have noted in the past that, when the

                                          7
contested material issue is intent, rather than identity, an extremely high degree of
similarity is not required. See Webb, 995 S.W.2d at 299.

      Given the remarkable similarities between the charged offense and the
extraneous offense testimony in this case, the trial court did not abuse its discretion
in determining the extraneous offenses were admissible. See Casey, 215 S.W.3d at
881; Martin, 173 S.W.3d at 648.

   D. Rule 403

      Even if relevant evidence is offered and admissible under Rule 404(b), a trial
court must nonetheless exclude the evidence if its probative value is substantially
outweighed by the danger of unfair prejudice. Tex. R. Evid. 403; Montgomery, 810
S.W.2d at 387; Bargas v. State, 252 S.W.3d 876, 892–93 (Tex. App.—Houston
[14th Dist.] 2008, no pet.). Making this determination requires balancing the
following factors: (1) the strength of the evidence in making a fact more or less
probable; (2) the potential of the extraneous-offense evidence to impress the jury in
some irrational but indelible way; (3) the amount of time the proponent needed to
develop the evidence; (4) the strength of the proponent’s need for this evidence to
prove a fact of consequence. Bargas, 252 S.W.3d at 892–93. When the record is
silent as to the trial court’s balancing of these factors, we presume the trial court
conducted the balancing test. Id. We review a trial court’s ruling under Rule 403
for an abuse of discretion. Montgomery, 810 S.W.2d at 391.

      The first factor weighs in favor of admissibility because the evidence was
relevant to the issue of intent. By arguing that his encounter with complainant was
consensual, Joseph put his intent to commit the offense at issue. See Rubio, 607
S.W.2d at 500–501. Christina’s testimony that Joseph coerced her through his
position as police officer, took her to the same place as Angela to assault her, and
did so on the same night strongly rebuts Joseph’s defensive argument that Angela

                                          8
was fabricating her story in order to gain a U-Visa and a civil-lawsuit victory.
Because the extraneous-offense evidence was so similar to the charged offense, it
was probative as modus operandi evidence to rebut the issue of intent. See Casey,
215 S.W.3d at 880–81; Martin, 173 S.W.3d at 468.

      The second and third factors also weigh in favor of admissibility. The
extraneous offense was no more heinous than the crime for which appellant was
indicted, so the testimony was not likely to create such prejudice in the minds of
the jury that it would have been unable to limit its consideration of the evidence to
its proper purpose. See Taylor v. State, 920 S.W.2d 319, 323 (Tex. Crim. App.
1996). Any danger that Christina’s testimony may have impressed the jury in a
prejudicial way is overshadowed by its probative value. See Bargas, 252 S.W.3d at
893 (viewing prejudicial tendencies of extraneous-offense testimony in sexual
assault case as outweighed by its probative value when it was used to rebut a
defensive issue). Furthermore, Christina’s testimony was developed relatively
quickly, taking only one of ten days of guilt-innocence proceedings.

      The State’s need for this testimony was also significant, favoring
admissibility under the fourth factor in Bargas. Joseph urges that the volume of
other evidence—namely the DNA evidence, GPS evidence, and video surveillance
showing Joseph kicking the man out of his patrol car at the gas station—
demonstrates the absence of the State’s need for Christina’s testimony. But none of
this evidence tends to discredit Joseph’s position that Angela consented to the
encounter. Because Joseph contested Angela’s allegations on a theory of consent,
the State demonstrated the need to counter Joseph’s theory that Angela fabricated
the allegations. See Casey, 215 S.W.3d at 884.

      Considering the above factors, we conclude the trial court did not abuse its
discretion under Rule 403 in admitting the extraneous-offense evidence. See

                                         9
Montgomery, 810 S.W.2d at 391–92; Bargas, 252 S.W.3d at 893–94. We overrule
appellant’s first issue.

   II. Allegations of Improper Argument

       Joseph argues in two issues that the trial court erred by denying his motions
for mistrial during the State’s closing arguments and by overruling Joseph’s
objections to the State’s comments during closing arguments. According to Joseph,
the prosecutor commented on Joseph’s failure to testify at trial in violation of his
state and federal constitutional rights, as well as his state statutory rights.

   A. Trial Court’s Denial of Motions for Mistrial

       The prosecutor made the following comments during closing argument when
discussing whether Angela consented to the sexual acts:

       Now, since we are talking about consent, let’s go there. . . . You know
       what the State’s case is. We are not going to beat a dead horse. We
       have been here for a month; but at this point, I want you to ask
       yourself, “What is the defense’s case?” Do you know, because I don’t.
       I have been here a month, and I still don’t know.
       ...
       [W]hat is the defense case? Ask yourself that because in opening, the
       defense counsel told you, looked you right in the eyes, and said . . .
       “Abraham Joseph did nothing that was not by agreement.” In plain
       English, [Angela] consented to what happened to her. . . . I kept
       waiting and waiting and waiting for a piece of evidence, just one, just
       one witness, one piece of evidence, something that would tell us that.
       I am still waiting.
       ...
       What are the defenses to rape? What are they? There are two. The first
       one is, not me. It wasn’t me. Somebody else must have done it. And
       the second one is, well, it was me; but it was consensual, okay? Do
       you think he wants to come to you and have to admit, oh, you are very
       disappointed . . .
       ...
                                            10
      So do you think he wants to have to say consent . . .
      ...
      Now, let’s talk shop a little bit on the rest of my time before I turn it
      over to the defense counsel and Mr. Bily; but why are we here? Why
      have we been here for a month? Are we here because we think that we
      are going to get a not guilty out of this? No.

After each comment, defense counsel objected and the trial court sustained each
objection. The jury was instructed to disregard the comments and the defense’s
request for mistrial was denied.

      As to sustained objections, the only adverse ruling—and thus the only
occasion for error—was the trial court’s denial of Joseph’s motions for mistrial.
Hawkins v. State, 135 S.W.3d 72, 76–77 (Tex. Crim. App. 2004). We consider
whether the refusal to grant appellant’s motions for mistrial was an abuse of
discretion. See id. Three factors are balanced to determine whether the trial court
abused its discretion in denying a mistrial for improper jury argument: (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 of any cautionary instruction by the judge); and (3) the certainty of
conviction absent the misconduct (the strength of the evidence supporting the
conviction). Archie v. State, 340 S.W.3d 734, 739 (Tex. Crim. App. 2011). This
analysis is conducted in light of the trial court’s curative instruction. Hawkins, 135
S.W.3d at 77. In most circumstances, an instruction to disregard improper
argument is considered a sufficient response by the trial court. Longoria v. State,
154 S.W.3d 747, 763–64 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d)
(citing Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000)). Thus, a
mistrial will only be required in extreme circumstances where the prejudice is
incurable. Hawkins, 135 S.W.3d at 77.


                                         11
      In reviewing the first factor, the magnitude of any prejudicial effects of the
prosecutor’s comments was lessened because the record reflects they were
embedded within other proper argument that allowed the jury to draw a legitimate
inference. See Archie, 340 S.W.3d at 741 (“Because the improper questions were
embedded within other remarks that invited the jury to draw a legitimate inference
from information contained in the appellant’s [out-of-court statement], we think
the magnitude of the prejudice was concomitantly diminished.”) (emphasis in
original). In this case, the prosecutor’s initial comments were buttressed by proper
argument where he clarified that, “anything that was told to you, you never heard.”
This argument can properly be interpreted as referring to the defendant’s failure to
produce evidence other than his own testimony. See Saldivar v. State, 980 S.W.2d
475, 501–02 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d); see also Smith v.
State, 65 S.W.3d 332, 338–39 (Tex. App.—Waco 2001, no pet.) (prosecutor’s
closing comment that defendant failed to present his injured leg to the jury was not
a comment on failure to testify because defense counsel had promised to display
the leg, and such display could have been made without defendant testifying).

      The second factor looks to the measures adopted to cure the misconduct.
Archie, 340 S.W.3d at 739. In most circumstances, an instruction to disregard
improper argument is considered a sufficient response by the trial court. Longoria
v. State, 154 S.W.3d at 763–64. This is true even for comments on the defendant’s
failure to testify, except in the most blatant cases. Moore v. State, 999 S.W.2d 385,
405–06 (Tex. Crim. App. 1999). A reviewing court generally presumes the jury
followed the trial court’s instruction to disregard. Gardner v. State, 730 S.W.2d
675, 696 (Tex. Crim. App. 1987). We do the same here, and presume that any
misconduct was cured by the trial court’s repeated instructions to the jury to
disregard the prosecutor’s improper remarks. See Longoria, 154 S.W.3d at 763–64.


                                         12
      The third factor—the certainty of the conviction absent the misconduct—
also weighs heavily in favor of the trial court’s ruling. The record reflects that
DNA evidence links Joseph to the events in question. GPS evidence places Joseph
at the park at the time Angela alleged the incident took place, and video
surveillance corroborates Angela’s testimony that Joseph kicked a man out of the
patrol car at a gas station before taking her to the park. Christina’s extraneous-
offense testimony about a remarkably similar assault rebutted Joseph’s defensive
theories of consent and fabrication by Angela. See Martin, 173 S.W.3d at 468.
Given this record, Joseph’s conviction was sufficiently certain regardless of the
alleged misconduct. See Newby v. State, 252 S.W.3d 431, 439 (Tex. App.—
Houston [14th Dist.] 2008, pet. ref’d) (holding denial of mistrial in sexual assault
conviction was not an abuse of discretion when appellant’s conviction was “fairly
certain” given the unambiguous testimony of complainant). We conclude that the
trial court did not abuse its discretion in denying Joseph’s motions for mistrial. See
Archie, 340 S.W.3d at 738–79. We overrule Joseph’s second issue.

   B. Trial Court’s Decision to Overrule Objections to Improper Argument

      Joseph also complains of the following comments, to which he objected as
improper comment on his failure to testify. The objections in question came when
the prosecutor explained two general defenses to rape, stating, “The first one is, not
me. It wasn’t me. . . . And the second one is, well, it was me, but it was consensual
. . .” The prosecutor continued, arguing, “ . . . the ‘not me’ [defense] goes sailing . .
. You don’t get to say ‘not me,’ okay? You don’t get to say it when there is a
mountain of evidence against you.” The trial court overruled Joseph’s objections to
both of the “not me” references.

   1. Preservation of Complaint for Appellate Review

      Initially, the State contends that Joseph failed to preserve this complaint for

                                           13
appellate review. To preserve error for appellate review, a defendant must make a
timely request, objection, or motion in the trial court. See Tex. R. App. 33.1;
Henson v. State, 407 S.W.3d 764, 767 (Tex. Crim. App. 2013). The objection must
be stated with “sufficient specificity to make the trial court aware of the complaint,
unless the specific grounds were apparent from the context . . .” See Tex. R. App.
P. 33.1.

      Here, Joseph’s trial counsel objected to the prosecutor’s comments as
improper argument and “shifting the burden to call any witnesses, including the
defendant, to the defense.” The State claims that Joseph’s objection did not
preserve his complaint for appellate review because we have previously held that
an objection to “putting the burden on the defense” did not preserve for review a
prosecutor’s alleged comments on a defendant’s failure to testify. See McLendon v.
State, 167 S.W.3d 503, 510 (Tex. App.—Houston [14th Dist.] 2005). Unlike the
facts in McLendon, trial counsel in this case makes reference to shifting the burden
to call any witness, “including the defendant,” to the stand. In context, trial
counsel’s objections are objections to the prosecutor’s alleged comments on
Joseph’s failure to testify. Thus, Joseph’s complaint is preserved for appellate
review.

   2. Analysis

      Joseph asserts the trial court abused its discretion in overruling his
objections because the prosecutor’s comments highlighted his failure to testify,
violating his constitutional and statutory rights. There are four permissible areas of
argument for prosecutors: (1) summation of the evidence; (2) reasonable
deductions from evidence; (3) responses to argument by opposing counsel; and (4)
pleas for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim.
App. 2000). Commenting on an accused’s failure to testify violates the accused’s

                                         14
constitutional, as well as statutory, privileges against self-incrimination. U.S.
Const. amend. V; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. art. 38.08; Archie,
340 S.W.3d at 738; Bustamante v. State, 48 S.W.3d 761, 764 (Tex. Crim. App.
2001).

       An improper comment on an accused’s failure to testify occurs when it was
manifestly intended or was of such a character that the jury would necessarily and
naturally take it as a comment on the defendant’s failure to testify. Bustamante, 48
S.W.3d at 765. We consider the offending language from the jury’s perspective,
and an implication that the comment referred to the defendant’s failure to testify
must be clear. Id. If a prosecutor’s remark calls the jury’s attention to the absence
of evidence that only Joseph’s testimony can supply, the remark is improper. See
Garrett v. State, 632 S.W.2d 350, 353 (Tex. Crim. App. [Panel Op.] 1982). But if
the remark can reasonably be construed to refer to the failure to provide evidence
other than Joseph’s own testimony, the comment is not improper. See Fuentes v.
State, 991 S.W.2d 267, 275 (Tex. Crim. App. 1999). Thus, a mere indirect or
implied allusion to the failure to testify does not violate Joseph’s right to remain
silent. Bustamante, 48 S.W.3d at 765. Furthermore, there are no “trigger” words or
phrases, such as “I” or “he” or “she,” which make any jury argument automatically
improper. Cruz v. State, 225 S.W.3d 546, 549 (Tex. Crim. App. 2007). Rather, the
impermissibility of a reference is determined by the entirety of the prosecutor’s
comments, taken in the context in which the words were used and heard by the
jury. Id.

       When considered from the jury’s perspective, the use of the words “not me”
in this case can be reasonably construed as “a rhetorical device to explain to the
jury the elements of the law” of sexual assault. See Cruz, 225 S.W.3d at 549
(viewing prosecutor’s statement that, “in order to have self-defense, what has to

                                         15
happen is someone says, ‘Yeah, I committed this crime’” as proper jury argument
because the comment referred to appellant’s written statements and argument at
trial); Kan v. State, 4 S.W.3d 38, 45 (Tex. App.—San Antonio 1999, pet ref’d)
(holding that rhetorical questions “What contradicted that sexual conduct
occurred? What did Defendant put on there to show that sexual contact did not
happen?” in trial for sexual assault of a child were a proper summary of evidence
and did not call jury’s attention to lack of evidence only defendant could provide).
Moreover, nothing in the record demonstrates that the prosecutor intended to
comment on Joseph’s failure to testify. Taken in context, we hold the prosecutor’s
comments were not of such a character that the jury would necessarily and
naturally take them as a comment on Joseph’s failure to testify. See Bustamante, 48
S.W.3d at 765.

      We conclude that the trial court did not abuse its discretion in overruling
defense counsel’s objections. See Cruz, 225 S.W.3d at 549; Kan, 4 S.W.3d at 45.
Therefore, we overrule Joseph’s third issue.

      The trial court’s judgments are affirmed.



                                      /s/      Ken Wise
                                               Justice



Panel consists of Justices McCally, Busby, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).




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