                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 02-11-00038-CR


TAUREAUS ALVARO MAXWELL                                                  APPELLANT

                                          V.

THE STATE OF TEXAS                                                             STATE


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          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

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                          MEMORANDUM OPINION1
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                                    Introduction

      Appellant Taureaus Alvaro Maxwell appeals his conviction for sexual

assault of a child, claiming in a single point that the trial court erred by overruling

his objection to the prosecutor’s improper jury argument. We affirm.




      1
       See Tex. R. App. P. 47.4.
                    Background Facts and Procedural History

      Appellant and S.R.’s mother, “Kathy” (a pseudonym) had an on-again-off-

again, dating and cohabitation relationship for about twenty years.      Appellant

acknowledged that S.R. was not one of his biological children,2 but he considered

her his daughter.

      On April 20, 2008, Appellant, Kathy, and S.R. were living in Kathy’s

apartment in Grapevine. Appellant had been unemployed since 2007, Kathy was

a director of a child-care center, and S.R. was sixteen and in high school.

      After everyone had gone to bed that night, S.R. woke to a loud tapping on

her bedroom window. Afraid that someone might be trying to come in through

her window, she went to her mother’s bedroom, where Kathy and Appellant were

sleeping, and tried to wake them. She testified that only Appellant woke up and

that he went with her back to her bedroom to make sure that no one was at her

window. She further testified that first he looked out the window from inside her

room and that he then went outside to check as well. Even though he assured

her that no one was there and that she could go back to bed, she was still

unsettled. As she lay back down, Appellant asked if she wanted him to stay, and

she replied that she did. She testified that she felt that he could protect her if

something happened.



      2
      He had seven––ranging in age from eighteen months to twenty-two
years––each from a different mother.


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      Although S.R. conceded the possibility that early on in the investigation

she may have told investigators that Appellant had lain on the bed before she

did, at trial she was certain that she had lain down first. She testified that at first

he was on top of the covers but that at some point he got under them behind her

as she lay on her side facing the window. Appellant started rubbing her back on

top of her t-shirt, progressed to rubbing her bottom, and eventually put his hand

inside her underwear and penetrated her vagina with his finger. She testified that

he moved his finger in an “in-and-out motion” for one to two minutes before

getting up and leaving her room without saying anything.

      S.R. testified that she was upset and angry with Appellant the day after

and avoided him while trying to decide whether to tell her mother what he had

done. She also testified that the next night she sensed someone in her room

while she slept. When she awoke, she was alarmed to see Appellant standing in

her doorway looking at her. As he had the night before, he left without saying

anything.

      The next day, Appellant was gone from the apartment when S.R. awoke.

That night she told her mother everything that had happened. Kathy became

upset, took a phone outside, and the police arrived shortly thereafter.

      Appellant’s testimony differed from S.R.’s on what happened during the

two nights and on a motive for the charges against him. He agreed that S.R. had

come to her mother’s bedroom because she had been frightened by a noise at

her window. He also agreed that he had gone to her bedroom and had stayed


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there after assuring her that no one was outside her window.            He denied,

however, that he ever got in or even on the bed with her but that he had tried to

“camouflage” himself by kneeling next to it in case anyone returned to tap on the

window. He further denied inserting his finger into her private parts and returning

to her room the next night to watch her from the doorway.

      He testified that Kathy wanted him to marry her and that she had

threatened him if he did not do so.      Although he described a loving father-

daughter relationship with S.R., he also testified that Kathy had contrived false

allegations against him and had coached S.R. into making them.

      The jury found Appellant guilty of sexual assault of a child as alleged in the

indictment and assessed punishment at twelve years’ confinement and a $6000

fine. The trial court sentenced Appellant accordingly.

                                 Jury Argument

      In his sole point on appeal, Appellant contends that the trial court erred by

overruling his objection that the following remark the prosecutor made during

closing argument in the guilt-innocence phase asked the jury to speculate by

putting itself in the position of the victim:    “Imagine being [S.R.].     This is

somebody she’s loved, who’s been in her life for 16 years . . . . Imagine how she

was feeling.”

      The realm of proper jury argument is home to the following four categories:

(1) answers to the argument of opposing counsel; (2) summations of the

evidence presented at trial; (3) reasonable deductions drawn from the evidence;


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and (4) pleas for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.

Crim. App. 2000), cert. denied, 532 U.S. 944 (2001); McCabe v. State, No. 02-

08-00331-CR, 2009 WL 3823203, at *4 (Tex. App.––Fort Worth Nov. 12, 2009,

no pet.) (mem. op., not designated for publication). To determine whether a

party’s argument properly resides in one of these categories, we must consider

the argument in light of the record as a whole and in the context in which it is

made. Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988).

      Before the prosecutor made the remark to which Appellant takes issue,

defense counsel had asked the jury during Appellant’s closing argument, “If you

were a kid, wouldn’t you remember––if you were a young girl––wouldn’t you

remember whether you got in bed with a great big man or whether he got into

bed with you? Think about that. Wouldn’t you remember that?”

      Counsel argued to the jury that the details in S.R.’s story had changed

because her mother had concocted the story to get back at Appellant for not

wanting to marry her. In advancing his argument, he asked the jurors to put

themselves in S.R.’s position and speculate about what they might do––what

they might remember. Appellant’s trial counsel did exactly what Appellant now

complains of the prosecutor doing during jury argument.

      We must place the State’s argument in context and cannot simply consider

isolated portions that are removed from their context. See Gaddis, 753 S.W.2d

at 398. The record shows the following:




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             MS. WHELCHEL [for the State]: Imagine being [S.R.]. This is
      somebody she’s loved, who’s been in her life for 16 years. She
      didn’t want him to go. What does he do? He touches her in a
      sexual way. Imagine how she was feeling.

             MR. MCCARTHY [for Appellant]: Your Honor, I’m going to
      object. She’s asking them to speculate by putting themselves in the
      position of the––of the victim.

            THE COURT: Overruled.

             MS. WHELCHEL: You heard from her. How were you
      feeling? She didn’t know what to do. She was shocked. She was
      confused. She had thought about it for two days. What really
      prompted her to tell is when he was staring at her in the doorway.
      That scared her because you know what was going through her
      mind. What is he going to do next?

      To determine whether the State’s argument was proper, we must consider

it in light of the whole record. See id. Appellant’s position at trial and on appeal

was and is that S.R. testified as she did because her mother had coached her.

In his argument, defense counsel asked the jurors to put themselves in the place

of a child and speculate about what they would have remembered about the

events that had been alleged. By asking the jurors to step inside the shoes of

the child complainant and to speculate about what they would remember,

counsel invited the State to respond in similar fashion but from the point of view

of a child that had been abused by someone she had loved. The fair import of

the prosecutor’s remarks was that the abuse by a loved one had caused S.R. to

feel frightened, hurt, and confused.         From this argument, the jury could

reasonably infer that such an experience might affect how the child would

remember things. We hold that when viewed in context of the full record and


                                         6
argument of opposing counsel, the prosecutor’s remarks were invited and

supported by the record. See Rodriguez v. State, 520 S.W.2d 778, 779–80 (Tex.

Crim. App. 1975).

      Even if the prosecutor’s remarks in this case find no shelter within the

bounds of proper jury argument, to warrant reversal, the remarks must be

manifestly improper, violate some mandatory statute, or inject some new harmful

fact into the case. Mathews v. State, 635 S.W.2d 532, 539 (Tex. Crim. App.

[Panel Op.] 1982); Chandler v. State, 689 S.W.2d 332, 334 (Tex. App.––Fort

Worth 1985, pet. ref’d).      The prosecutor’s remarks do not violate some

mandatory statute or inject new and harmful facts into the case, and Appellant

has not contended that they do. The question we must decide, then, is whether

they were manifestly improper.

      It is improper for a prosecutor to invite jurors into a victim’s shoes.

Chandler, 689 S.W.2d at 334. And in Brandley v. State, the court of criminal

appeals held that the prosecutor’s argument, “it is fair for you to think about how

you would feel if you lost your children . . .” was improper because it asked the

jurors to abandon their objectivity. 691 S.W.2d 699, 712 (Tex. Crim. App. 1985).

The trial court had sustained Brandley’s objection to the preceding remark and

had instructed the jury to disregard it, and Brandley’s conviction was affirmed on

appeal. Id. at 712–13. Appellant argues that Brandley compels reversal in his

case because Appellant’s objection in the trial court was overruled. We disagree.




                                        7
      In Brandley, the court of criminal appeals wrote, “Given the record as a

whole and given the timely instruction to disregard, we find that the argument is

not of the tenor to require reversal. Similar cases have found such argument to

be harmless. [citations omitted].” Id. at 713. We find nothing in Brandley that

compels reversal in this case simply because the trial court overruled Appellant’s

objection.

      Further, if a jury argument exceeds the bounds of proper argument, a trial

court’s erroneous overruling of a defendant’s objection is not reversible error

unless it affected the appellant’s substantial rights. Tex. R. App. P. 44.2(b);

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

State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied,

526 U.S. 1070 (1999). In determining whether the appellant’s substantial rights

were affected, we consider (1) the severity of the misconduct (i.e., the prejudicial

effect of the prosecutor’s remarks); (2) curative measures; and (3) the certainty

of conviction absent the misconduct. Martinez, 17 S.W.3d at 692–93; Mosley,

983 S.W.2d at 259.

      Appellant has not cited any authority reversing a conviction solely for one

brief, isolated remark such as the one at issue here. Cf. Rudd v. State, 921

S.W.2d 370, 372 (Tex. App.––Texarkana 1996, pet. ref’d) (stating that improper

comment made briefly and only once was unlikely to have had any effect on

jury); Holmes v. State, 962 S.W.2d 663, 675 (Tex. App.––Waco 1998, pet. ref’d,




                                         8
untimely filed) (holding harmless improper jury argument when State did not

repeat it, and offered overwhelming evidence of defendant’s guilt).

         S.R.’s testimony established all elements of the offense for which

Appellant stood charged, and the complained-of remark did not alter that to any

degree to his detriment. Therefore, because even if we were to assume that the

State’s argument was objectionable and we were to analyze it under the Martinez

factors, we would conclude that it did not affect Appellant’s substantial rights

because it caused no substantial and injurious effect or influence on the verdict.

Tex. R. App. P. 44.2(b); see Martinez, 17 S.W.3d at 692–93; King v. State, 953

S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328

U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946). Accordingly, we overrule his sole

point.

                                     Conclusion

         Having overruled Appellant’s sole point on appeal, we affirm the judgment.



                                                    LEE GABRIEL
                                                    JUSTICE

PANEL: MCCOY, MEIER, and GABRIEL, JJ.

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

DELIVERED: July 12, 2012




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