Opinion filed February 5, 2015




                                       In The


        Eleventh Court of Appeals
                                     __________

                                 No. 11-12-00328-CR
                                     __________

                ROBERT THORNBURGH, JR., Appellant
                                        V.
                     THE STATE OF TEXAS, Appellee

                     On Appeal from the 35th District Court
                            Brown County, Texas
                         Trial Court Cause No. 21718

                      MEMORANDUM OPINION
      Appellant, Robert Thornburgh, Jr., pleaded not guilty to two counts of
sexual assault of a child. See TEX. PENAL CODE ANN. § 22.011 (West 2011). The
jury found Appellant guilty of both counts.       Appellant pleaded true to two
enhancement allegations. The trial court assessed his punishment for each count at
confinement in the Institutional Division of the Texas Department of Criminal
Justice for life, with the sentences to be served consecutively. Appellant argues
that Section 22.011(a)(2) of the Texas Penal Code is unconstitutional. Appellant
also argues that the trial court erred when it failed to grant a mistrial based upon
prejudicial jury argument made by the State and that the trial court’s response to
the jury argument constituted an impermissible comment on the weight of the
evidence. We affirm.
                                  Background Facts
      Although Appellant does not dispute the sufficiency of the evidence, we will
briefly summarize the evidence presented at trial. The record shows that, in 2006,
Appellant entered into a sexual relationship with V.A., a fourteen-year-old girl.
V.A. stated that, early in 2006, she went over to Appellant’s sister’s house to talk
to Appellant. While there, she used the restroom. When she came out of the
bathroom, Appellant asked her into the bedroom.          After lying on the bed,
Appellant proceeded to kiss V.A. and initiate sex. V.A. told Appellant to stop and
told him that it hurt, but he continued.
      After the first time, Appellant and V.A. continued to have sex every week in
various locations in Brown County, with one occasion out by TYC, a state school
located in Brownwood. V.A. testified that Appellant drove her and K.W.C., her
friend, to a lake in Abilene where he had sex with V.A. K.W.C. also testified
about the Abilene trip and stated that Appellant and V.A. had sex. V.A. testified
that her relationship with Appellant was interrupted in November 2006 when she
moved to Waco after her parents learned of the relationship.
      Appellant denied that he dated or had sexual relations with V.A. while she
was underage. Appellant admitted to a sexual encounter with V.A. when she was
nineteen. Appellant described V.A.’s testimony as lies. He also denied the trip to
Abilene with V.A. and K.W.C. Appellant testified that all of the State’s witnesses
had lied about certain events. Appellant’s defense was that he was falsely accused
and set up by the State’s witnesses.
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                                         Analysis
      A. Constitutionality of Section 22.011(a)(2)
      In his first issue on appeal, Appellant argues that Section 22.011(a)(2) is
unconstitutional in violation of both the federal Due Process Clause and the Texas
constitution’s due course of law provision. Appellant contends that the statute is
unconstitutional because it fails to require a culpable mental state that relates to the
conduct alleged and because it fails to allow a mistake-of-fact defense about the
victim’s age.
      Appellant lodges a “facial” challenge to the constitutionality of
Section 22.011(a)(2). A facial challenge asserts that a statute, by its terms, always
operates unconstitutionally. Gillenwaters v. State, 205 S.W.3d 534, 536 n.2 (Tex.
Crim. App. 2006). An “as applied” challenge to the constitutionality of a statute
asserts that a statute, although generally constitutional, operates unconstitutionally
as to the claimant because of his particular circumstances. Id. at n.3. Facial and
as-applied challenges to the constitutionality of statutes are forfeited if they are not
raised in the trial court. Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App.
2009) (facial challenge); Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App.
1995) (as-applied challenge). Appellant did not challenge the constitutionality of
Section 22.011(a)(2) in the trial court. Therefore, Appellant did not preserve the
issue for appellate review. See TEX. R. APP. P. 33.1; Karenev, 281 S.W.3d at 434.
Appellant’s first issue is overruled.
      We note that courts have upheld the constitutionality of Section 22.011(a)(2)
and Section 22.021 of the Penal Code1 when faced with arguments that were
similar to those raised by Appellant in this appeal. Fleming v. State, 376 S.W.3d
854, 857–62 (Tex. App.—Fort Worth 2012), aff’d, No. PD-1250-12, 2014 Tex.

      1
       TEX. PENAL CODE ANN. § 22.021 (West Supp. 2014).

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Crim. App. Lexis 879 (Tex. Crim. App. June 18, 2014), cert. denied, 2015 WL
231987 (U.S. Jan. 20, 2015) (No. 14–559) (Section 22.021); 2 Byrne v. State, 358
S.W.3d 745, 748–51 (Tex. App.—San Antonio 2011, no pet.) (Section
22.011(a)(2)(A)).       Had Appellant preserved his issue for review, we would
conclude, based on the reasoning of these courts, that Section 22.011(a)(2) is not
unconstitutional.
       B. Jury Argument
       In his second issue, Appellant complains that the prosecutor made an
improper jury argument in his closing arguments when he characterized Appellant
as a “sociopath.” The following exchange took place during the complained-of
jury argument:
             [PROSECUTOR]: Remember I made him go through and
       name them again just to make sure these were all the times you have
       been to Abilene. Well, then what comes out? He lives in Abilene.
       He grew up in Abilene. His dad had a mechanic shop in Abilene.
       The man was driving back and forth to Abilene at different points.
       Why not tell you that? Because he is a sociopath. He is going to tell
       you whatever he needs to tell you --
             [DEFENSE COUNSEL]:               Objection, Your Honor.    To
       characterize him as a sociopath without any evidence in this trial, I
       would request a mistrial at this time.
               THE COURT: Denied.
              [DEFENSE COUNSEL]: Well, then I would ask that he be
       admonished not to use technical words like that that are -- that are
       required by an expert to be decided, which has not been done, and that
       the jury be told to disregard it.


       2
         On June 18, 2014, the Court of Criminals Appeals affirmed the opinion of the Fort Worth Court
of Appeals in Fleming v. State. The Court of Criminal Appeals issued its mandate in Fleming on
October 14, 2014. However, the Court of Criminal Appeals subsequently withdrew its mandate on
November 3, 2014. Based upon that withdrawal, West Publishing has withdrawn the court’s opinion
from both Westlaw and West’s bound volume. The opinion of the Court of Criminal Appeals remains on
Lexis as of the date of this opinion.

                                                  4
            THE COURT: Overruled. This is final argument. You can
      argue any reasonable inference in the case. There has been no
      testimony from anyone about being a sociopath, but this is final
      argument. You may argue if you think the evidence tends to indicate
      your view of the case.
            You may proceed.
            [PROSECUTOR]: That’s why I'm arguing that. That’s a per-
      son that can’t tell you the truth. That is a person that can’t comport --
            [DEFENSE COUNSEL]: Objection, Your Honor.
            [PROSECUTOR]: -- what the community expects out of us.
            [DEFENSE COUNSEL]: Now he is testifying to the jury.
      There is no evidence in this trial whatsoever that an expert has given a
      sociopath definition.
             THE COURT: And that is true and the jury is so instructed, but
      final argument is not confined to just the evidence. It’s also
      reasonable inferences that can be drawn from the evidence. The
      attorneys can attempt to point those out.

            You may do so.

      Proper jury argument generally falls within four 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. Brown v. State, 270 S.W.3d
564, 570 (Tex. Crim. App. 2008); Esquivel v. State, 180 S.W.3d 689, 692 (Tex.
App.—Eastland 2005, no pet.).        Counsel is allowed wide latitude to draw
inferences from the record, as long as the inferences are reasonable, fair,
legitimate, and offered in good faith. Shannon v. State, 942 S.W.2d 591, 597 (Tex.
Crim. App. 1996). We review a trial court’s denial of a motion for new trial for an
abuse of discretion. Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App.
2006); Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995).
      The prosecutor called Appellant a “sociopath” and commented that
Appellant would say whatever necessary to avoid a conviction. The Court of

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Criminal Appeals has stated that the use of “sociopath,” without any witness
testimony, does stray outside the record. Shannon, 942 S.W.2d at 597. However,
there was conflicting testimony in regard to Appellant’s character and whether he
told the truth. On direct examination, Appellant testified that he had only been to
Abilene five times since he moved to Brownwood.              On cross-examination,
Appellant, however, testified that he used to live in Abilene, that he grew up in
Abilene, that his father had a mechanic shop in Abilene, and that Appellant drove
back and forth to Abilene numerous times.          The prosecutor’s comment that
Appellant is “a sociopath” and “is going to tell you whatever he needs to tell you,”
thus questioning Appellant’s truthfulness, was an appropriate inference from the
evidence. Spurlock v. State, No. 11-11-00010-CR, 2013 WL 205388, at *6 (Tex.
App.—Eastland January 18, 2013, no pet.). The trial court did instruct that the
definition of sociopath was outside the record.        An instruction to disregard
statements outside the record will generally cure any error. Freeman v. State, 340
S.W.3d 717, 727–28 (Tex. Crim. App. 2011). Therefore, the comment was a
reasonable inference from the evidence, and the argument was not improper.
      Even if the prosecutor’s comment was improper, we cannot agree that any
harm warrants the remedy of reversal. An improper comment made in closing
argument is considered a nonconstitutional error. Martinez v. State, 17 S.W.3d
677, 692 (Tex. Crim. App. 2000). A nonconstitutional error that does not affect
substantial rights must be disregarded. TEX. R. APP. P. 44.2(b); Martinez, 17
S.W.3d at 692; Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). To
determine the harm of an improper jury argument, three factors are balanced:
(1) the severity of the misconduct (the magnitude of the prejudicial effect);
(2) curative measures (the efficacy of any cautionary instruction by the trial court);
and (3) the certainty of the conviction in the absence of misconduct (the strength of
the evidence that supports the conviction). Martinez, 17 S.W.3d at 692–93.
                                          6
      The prosecutor’s comment was not of such great magnitude as to cause
Appellant severe prejudice. The use of the term “sociopath” was intended to
demonstrate the repeated misstatements by Appellant in cross-examination and to
urge the jurors to make reasonable inferences and deductions from the evidence.
Jurors heard contradictory testimony from Appellant and several of the State’s
witnesses about trips to Abilene and were able to decide for themselves the
credibility of the witnesses. Furthermore, there is strong evidence that supports
Appellant’s conviction. Accordingly, we hold that the trial court did not abuse its
discretion when it overruled Appellant’s objection to the State’s jury argument and
denied Appellant’s request for a mistrial. We overrule Appellant’s second issue.
      C. Comment on the Weight of the Evidence
      In his third issue on appeal, Appellant argues that the failure to grant the
mistrial was an impermissible comment on the weight of the evidence by the trial
court. Appellant contends that the trial court’s comments indicated a disbelief in
Appellant’s position that he was falsely accused and implied approval that
Appellant was a sociopath and, thus, incapable of telling the truth.         While
Appellant made neither a timely objection to the judge’s comments nor a request
for a limiting instruction, we need not address whether Appellant waived this issue.
See Unkart v. State, 400 S.W.3d 94, 99, 102 n.37 (Tex. Crim. App. 2013)
(recognizing that, “[o]rdinarily, a complaint regarding an improper judicial
comment must be preserved at trial” but declining to address the procedural
consequences of a late objection); Sharp v. State, 707 S.W.2d 611, 619 (Tex. Crim.
App. 1986); Minor v. State, 469 S.W.2d 579, 580 (Tex. Crim. App. 1971).
However, we will nevertheless determine whether the trial court made an
impermissible comment on the weight of the evidence.
      When the trial court determines the admissibility of evidence, it shall not
discuss or comment upon the weight of the same or its bearing in the case, but shall
                                         7
simply decide whether or not it is admissible. TEX. CODE CRIM. PROC. ANN.
art. 38.05 (West 1979).      A trial court must refrain from making any remark
calculated to convey to the jury its opinion of the case. Brown v. State, 122
S.W.3d 794, 798 (Tex. Crim. App. 2003).
      A trial court improperly comments on the weight of the evidence if it makes
a statement that implies approval of the State’s argument, indicates disbelief in the
defense’s position, or diminishes the credibility of the defense’s approach to the
case. See Joung Youn Kim v. State, 331 S.W.3d 156, 160 (Tex. App.—Houston
[14th Dist.] 2011, pet. ref’d). If a trial judge makes an improper comment on the
weight of the evidence, we must then decide whether the comment was material.
Id. (citing Simon v. State, 203 S.W.3d 581, 592 (Tex. App.—Houston [14th Dist.]
2006, no pet.)). Only if the comment is material must we determine whether it
rises to the level of reversible error. See id.
      The trial court overruled Appellant’s objection to the use of the term
“sociopath” and denied the request for a mistrial. However, the court merely stated
a correct rule of law—that in closing arguments the State may make reasonable
inferences from the evidence. See Brown, 270 S.W.3d at 570. The court did agree
and instructed the jury that no sociopath definition had been entered into evidence.
Appellant did not request an instruction to disregard the court’s comments on the
use of “sociopath” by the State. The court’s comments cannot be seen as tainting
Appellant’s presumption of innocence or vitiating the impartiality of the jury, and
if there were any residual harm, it would have been cured by a timely instruction to
disregard. See Unkart, 400 S.W.3d at 102; Jasper v. State, 61 S.W.3d 413, 421
(Tex. Crim. App. 2001). We overrule Appellant’s third issue.




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                                   This Court’s Ruling
      We affirm the judgment of the trial court.




                                                     JOHN M. BAILEY
                                                     JUSTICE


February 5, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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