                                        NO. 07-09-00148-CR

                                 IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                           AT AMARILLO

                                              PANEL B

                                           MAY 19, 2010


                                       SCOTT A. WHEELER,
                                                                            Appellant
                                                   v.

                                     THE STATE OF TEXAS,
                                                                            Appellee
                               ____________________________

             FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

      NO. 2007-418,302; HONORABLE BRADLEY S. UNDERWOOD, PRESIDING


                                     Memorandum Opinion


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

        Scott A. Wheeler appeals his conviction of sexual assault of a fourteen-year-old

girl1 by contending 1) the trial court erred in denying his motion to suppress because his

confession was not voluntary, 2) the evidence was legally and factually insufficient to

establish the location of the assault, and 3) he was harmed by the prosecutor’s closing

argument. We disagree and affirm the judgment.




       1
         Appellant was charged with two counts of sexual assault. One count involved the penetration of
the complainant’s vagina by appellant’s penis while the second count involved the contact of appellant’s
penis with the complainant’s mouth. Appellant was acquitted of the second count.
         Issue 1 – Voluntariness of Confession

         After taking a polygraph examination, appellant gave a written statement to

police in which he admitted having consensual sexual relations with the complainant.

Appellant seems to be arguing that his confession was involuntary, despite having been

Mirandized at the time, because it was given while he was in custody. We overrule the

issue.

         Before us is one of those arguments where we can but only shake our collective

heads and say “what?” We know of no authority holding that a confession is involuntary

simply because it was made while the speaker (who had been Mirandized) was in

custody. More importantly, appellant cites us to no such authority. And, to the extent

that the tact undertaken by appellant is one that incorporates an implied request for us

to write new law on the subject, we leave that to other governmental bodies, such as the

legislature or our Court of Criminal Appeals. Thus, appellant’s first issue is overruled.

         Issue 2 – Sufficiency of the Evidence

         Next, appellant argues that the evidence was legally and factually insufficient to

establish that the offense occurred in Lubbock County as alleged in the indictment. We

overrule the issue.

         Appellant admitted, in his confession, that he had sex with the victim at his

friend’s house. A sheriff’s deputy testified that the “friend” alluded to by appellant was

Ricky Daniels. Other evidence, which appellant does not question, illustrates that Ricky

Daniels lived in Lubbock County.        Assuming arguendo that the legal and factual

sufficiency analysis applicable here is that used when assessing whether the State

established the elements of the offense, the foregoing is some evidence upon which a



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rational jury could conclude beyond reasonable doubt that the crime occurred in

Lubbock County. That the victim said she was assaulted at a locale other than Daniels’

residence simply created an issue of fact and credibility for the jury to decide. It could

have legitimately doubted the accuracy of her comments about the location given that

she was intoxicated (high on drugs) at the time and opted to believe appellant. And, its

doing so would not be wrong or manifestly unjust.

       Issue 3 – Jury Argument

           Finally, appellant complains of several instances of allegedly improper jury

argument. They consist of the prosecutor supposedly vouching for the credibility of the

complainant and striking at appellant over the shoulder of defense counsel. The issue

is overruled.

       Regarding two of the alleged instances of vouching for the credibility of the

complainant, appellant objected to both and each objection was sustained. The trial

court also instructed the jury to disregard the comments; however, it refused to grant a

mistrial.2 We presume that the jury followed the instruction to disregard. Brock v. State,

275 S.W.3d 586, 591-92 (Tex. App.–Amarillo, 2008, pet. ref’d). Moreover, nothing in

the record indicates that it did not. See Gamboa v. State, 296 S.W.3d 574, 580 (Tex.

Crim. App. 2009). Parenthetically, we note that appellant was acquitted of one charge

made against him by the complainant.

       As for the third instance of purported vouching, the prosecutor argued: “[a]nd if

[the complainant] was being consistent with her history today, she would have taken the

       2
          Appellant further complains that one of those statements (“she has told you the truth”) was
apparently on a slide presentation. Appellant requested the State to make a copy of that statement for
inclusion in the record although it does not appear in the record. We note that the trial court did not
actually order the State to do so. Furthermore, as noted above, an instruction to disregard was given to
the jury.

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easy way out, but [the complainant] is a different person.” The trial court overruled

appellant’s objection to that comment.      We note that a prosecutor may permissibly

summarize the evidence. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008),

cert. denied, ___ U.S. ___, 129 S.Ct. 2075, 173 L.Ed.2d 1139 (2009). Although

appellant argues that the prosecutor was personally assuring the jury that the

complainant had changed, she herself testified at trial that she had lied in the past but

she had changed for the sake of her young son because she did not want him to be a

liar.   Thus, the remark was arguably a summation of the testimony given by the

complainant. Therefore, the trial court did not abuse its discretion in overruling the

objection. See York v. State, 258 S.W.3d 712, 717 (Tex. App.–Waco 2008, pet. ref’d)

(stating that abuse of discretion is the standard of review).

        Appellant also refers to a remark he deems as an effort to strike at him over the

shoulder of his counsel. The remark was:

               But the law does not just protect the good children, sometimes the
        troubled ones. The defendant has confessed to this offense. Have we
        come to a place in our society that if you’re willing to sling enough mud
        that you can get away with the crimes that you admit to?

The objection was overruled. Appellant argues that the statement must refer to his

defense counsel because he did not testify at trial.

        Argument that strikes at a defendant over the shoulders of defense counsel is

improper. Dinkins v. State, 894 S.W.2d 330, 357 (Tex. Crim. App. 1995). That is not

the ilk of the comment at bar for several reasons. First, it does not refer to defense

counsel personally as opposed to the nature of the defense presented by counsel.

Second, argument made in response to argument of counsel is proper, Cole v. State,

194 S.W.3d 538, 546 (Tex. App.–Houston [1st Dist.] 2006, pet. ref’d), and appellant’s

                                             4
counsel repeatedly attempted to label the victim as a liar. We believe that the statement

of the prosecutor can be legitimately viewed as a response to appellant’s accusations.

Consequently, the trial court did not abuse its discretion in overruling the objection. See

id. at 545-46 (holding that the statement that law enforcement officers know better than

the defense attorney when fingerprint testing should be done was not objectionable

when it was a response to closing argument that the police had not done their jobs by

dusting for fingerprints).

       Finally, we cannot forget appellant’s confession to committing the crime. That

alone tends to vouch more for the credibility of the complainant than any utterance by

the prosecutor. We further couple this with the fact that appellant was acquitted of one

count and the overall nature of the appellate record and cannot but conclude that no

harm resulted from the comments at issue, assuming arguendo that they were

improper.

       Having overruled all of appellant’s issues, the judgment is affirmed.



                                                 Brian Quinn
                                                 Chief Justice

Do not publish.




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