                                   NO. 07-05-0059-CR
                                   NO. 07-05-0064-CR
                                   NO. 07-05-0065-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL D

                                 DECEMBER 6, 2005
                          ______________________________

                           MICHAEL EDWARD KILPATRICK,

                                                               Appellant

                                             v.

                                THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

          FROM THE 22ND JUDICIAL DISTRICT COURT OF HAYS COUNTY;

      NOS. CR-03-711, CR-04-528, CR-04-570; HON. RON CARR, PRESIDING
                     _______________________________

                               Memorandum Opinion
                         _______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

       Michael Edward Kilpatrick appeals his convictions for attempted sexual performance

by a child, attempted aggravated sexual assault, and criminal solicitation of a minor. These

convictions resulted from his contact with a law enforcement officer posing as a 13-year-old

girl (i.e. “Carrie”) on the internet and appellant’s attempt to meet the girl to engage in a
sexual relationship. The three issues before us concern the propriety of the State’s closing

argument. We affirm the judgments.

                 Issue One - Comment on Fifth Amendment Privilege

       Through the first issue, appellant contends that during the State’s closing argument,

it commented on the invocation of his right to remain silent following arrest. We overrule

the issue.

       The comment alluded to a video of appellant’s interrogation wherein he waived his

right to remain silent. According to the prosecutor, appellant’s reaction (i.e. standing silent

with bowed head) to the charges being levied were not indicative of someone who was

innocent. Yet, when the video was made, appellant not only had been informed of his right

to remain silent but waived it. Appellant having waived that right during the interrogation,

the prosecutorial comments about his demeanor during the interrogation and as captured

on the video violated no right to remain silent. Garcia v. State, 126 S.W.3d 921, 924 (Tex.

Crim. App. 2004) (stating that appellant’s complaint about his right to remain silent “‘during

the time his statement was made’” was “nonsensical” since he waived his post -arrest right

to silence when he agreed to make the statement).

       Furthermore, the comment was nothing more than a summation of testimony uttered

by appellant during trial. Through that testimony, appellant explained the reason for his

demeanor as captured in the video. Furthermore, no one objected to the admission of that

testimony. Being a summation of evidence actually admitted at trial without objection, the

comment was proper. See Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000)

(stating that the four permissible areas of jury argument are summation of the evidence,



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reasonable deductions from the evidence, answer to argument of opposing counsel, and

proper pleas for law enforcement).

               Issues Two and Three - References to a Real Minor Girl

       In his second and third issues, appellant contends that the State should not have

been allowed to argue that 1) “[o]n August 16, 2003, but for the law enforcement agent, a

13 year old girl would have been sexually assaulted . . . [i]t is as easy as that” and 2)

appellant “scoured the internet, entered a 13 through 17 year old chat room and met this

girl for one reason.” The former was improper since “[n]othing in the record even remotely

suggests that a thirteen year old girl would have been sexually assaulted . . . had appellant

not been arrested,” according to appellant. The latter was allegedly improper because it

suggested that a “‘real girl’” was involved, as opposed to a male undercover police officer.

In other words, the prosecutor misstated the facts of record. We overrule the issues.

       As to the first utterance, the statement was used by the prosecutor to end her

description of the actions undertaken by appellant in preparing to have sex with someone

appellant believed to be a 13-year-old girl. And, when seen in context, it connotes that

given the evidence of appellant’s belief, intent, or goal, and conduct in pursuit of that intent,

he would have engaged in sex with a 13-year-old female had the object of his intent been

such a girl rather than an undercover officer. See Chen v. State, 42 S.W.3d 926, 930 (Tex.

Crim. App. 2001) (stating that if the officer had been a 13-year-old girl, what the defendant

intended to accomplish would have been an actual crime). So viewed, the comment can

be interpreted as a reasonable deduction from the evidence, and a proper mode of

argument. Wesbrook v. State, supra.



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       Regarding the second utterance, the context of the statement is again of import.

Through it, the prosecutor endeavored to explain how he met and what appellant intended

to do with someone he believed to be a 13-year-old girl. Furthermore, nothing was said

by the State of the “girl” being “real” as alleged by appellant. Indeed, the record is replete

with evidence illustrating that the “girl” to which the State referred was “Carrie,” the fictitious

child played by the undercover officer. Given this, the statement also can be interpreted

as a summation or characterization of the evidence actually before the factfinder, and a

proper mode of argument.

       Accordingly, the judgments of the trial court are affirmed.



                                                    Brian Quinn
                                                    Chief Justice

Do not publish.




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