                                                                        PD-0288-15
                         PD-0288-15                    COURT OF CRIMINAL APPEALS
                                                                        AUSTIN, TEXAS
                                                     Transmitted 3/19/2015 9:28:11 AM
                                                      Accepted 3/19/2015 10:23:47 AM
                                                                         ABEL ACOSTA
                       PD No.                                                   CLERK

              IN THE COURT OF CRIMINAL APPEALS
                       AT AUSTIN, TEXAS


JEFFREY DEE STEADMAN,           §
             Appellant          §
                                §   CAUSE NO. 11-13-00034-CR
v.                              §   TRIAL COURT NO. 8299-D
                                §
THE STATE OF TEXAS,             §
             Appellee           §


            PETITION FOR DISCRETIONARY REVIEW
           FROM THE ELEVENTH COURT OF APPEALS
                    AT EASTLAND, TEXAS


              CHIEF JUSTICE J. WRIGHT, PRESIDING


             PETITION OF PETITIONER (APPELLANT)




                                    COPELAND LAW FIRM
                                    P.O. Box 399
                                    Cedar Park, Texas 78613
                                    Tel. 512-897-8196
      March 19, 2015                Fax. 512-215-8144
                                    Email: tcopeland14@yahoo.com

                                    TIM COPELAND
                                    State Bar No. 04801500
                                    Attorney for Appellant
                          TABLE OF CONTENTS
                                                                     Page

Table of Contents                                                    i

Index of Authorities                                                 ii,iii

Identities of Trial Court and Parties                                1

Statement Regarding Oral Argument                                    3

Statement of the Case                                                4

Statement of the Procedural History of the Case                      4

Ground of Review                                                      5
            The trial court erred when, on re-trial of an aggravated
     sexual assault of a child case and over objection, it allowed the
     state to argue that appellant had, in his first trial, ―put’ his
     victims ―through a trial‖, had ―called them liars in front of a
     jury, and made them get up…‖ . (R.R. 3, pp. 81-82). The Court
     of Appeals compounded the trial court’s error when it
     concluded that the impermissible argument was merely a
     reasonable inference drawn from the record. See, Villarreal v.
     State, 860 S.W.2d 647, 649 (Tex. App. – Waco 1993, no pet.)

Summary of the Argument                                              5

Background                                                           5

Statement of Pertinent Evidence                                      6

Court of Appeals’ Decision                                           8

Argument                                                             8

Prayer                                                              15

Certificate of Service and Compliance with Rule 9                    16


                                        i
                           INDEX OF AUTHORITIES

Authorities                                                       Page

                   United States Supreme Court Cases

Spevack v. Klein                                                  9
     385 U.S. 511, 515 (1967)

                     Texas Court of Criminal Appeals’ cases

Alejandro v. State                                                11
      493 S.W. 230 (Tex. Crim. App. 1973)

Franklin v. State                                                 9
     576 S.W.2d 621 (Tex. Crim. App. 1978)

Gipson v. State                                                   10
     844 S.W.2d 738, 740-41 (Tex. Crim. App. 1992)

Juarez v. State                                                   10
     439 S.W.2d 346, 347 (Tex. Crim. App. 1969)

Lane, Ex parte                                                    14
      303 S.W.3d 702 (Tex. Crim. App. 2009)

                          Texas Court of Appeals’ cases

Carter v. State                                                   10
      No. 01-98-00556-CR, 1999 WL 517130,
      (Tex. App. Houston [1st Dist.] July 22, 1999, pet. ref’d)

Carlock v. State                                                  9
      8 S.W.3d 717 (Tex. App. – Waco 1999, pet. ref’d)

Chaouachi v. State                                                8
     870 S.W.2d 88 (Tex. App. – San Antonio 1993, no pet.)

Steadman v. State                                                 6
     329 S.W.3d 66 (Tex. App. – Eastland 2010) reversed by
     360 S.W.3d 499 (Tex. Crim. App. 2012)
                                  ii
                INDEX OF AUTHORITIES, continued

Authorities                                                       Page

                Texas Court of Appeals cases, continued

Stroble v. State                                                 13
      2011 WL 1631812 (Tex. App. – Houston
      [1st Dist] pet. ref’d 2011)

Villarreal v. State
      5,11,12,14,15
      860 S.W.2d 647 (Tex. App. – Waco 1993, no pet.)

Wages v. State                                                11,12
     703 S.W.2d 636 (Tex. App. – Houston [14th Dist.] 1986,
     pet. dism’d improvidently granted, 770 S.W.2d 779
     (Tex. Crim. App. 1987)

Washington v. State                                              11
     822 S.W.2d 110, 117-121 (Tex. App. – Waco 1991),
     rev’d on other grounds, 856 S.W.2d 184 (Tex. Crim. App. 1993)

                                Statutes

TEX. PENAL CODE ANN. §22.021(a) (2) (B)(West Supp. 2014) 4

TEX. CODE CRIM. PROC. arts. 1.05 and 1.12(West 2112)             9

Tex. R. App. Proc. 44.2 (West 2012)                           10,12


                                Constitutions

U.S. Constitution - Sixth Amendment                              6,8
U.S. Constitution – Fourteenth Amendment                         9

TEX. CONST. Art. I, §10                                          9

                                      iii
                             PD No.

                   IN THE COURT OF CRIMINAL APPEALS
                            AT AUSTIN, TEXAS


JEFFREY DEE STEADMAN,                        §
             Appellant                       §
                                             §   CAUSE NO. 11-13-00034-CR
v.                                           §   TRIAL COURT NO. 8299-D
                                             §
THE STATE OF TEXAS,                          §
             Appellee                        §

                 IDENTITY OF TRIAL COURT AND PARTIES

TO THE HONORABLE COURT OF APPEALS:

       NOW COMES Jeffrey Dee Steadman, appellant herein, who would show

the trial court and interested parties herein are as follows:

       HON. THOMAS WHEELER, Judge Presiding, 350th District                 Court,

Taylor County, Texas, 300 Oak St., Ste. 404, Abilene, Texas 79602.

       JEFFREY DEE STEADMAN, appellant, TDCJ No. 1498601, Byrd Unit,

21 FM 247, Huntsville, Texas 77320.

       LARRY ROBERTSON, trial attorney for appellant, P.O. Box 889,

Abilene, Texas, 79604.

       TIM COPELAND, appellate attorney for appellant, P.O. Box 399, Cedar

Park, Texas 78613.


Petition for Discretionary Review
Jeffrey Dee Steadman v. The State of Texas
Cause No. 11-13-00034-CR
       DAN JOINER AND PATRICIA DYER, Taylor County Asst. District

Attorneys, trial and appellate attorneys respectively for appellee, the State of

Texas, 300 Oak St., Ste. 300, Abilene, Texas 79604.




Petition for Discretionary Review
Jeffrey Dee Steadman v. The State of Texas
Cause No. 11-13-00034-CR
                STATEMENT REGARDING ORAL ARGUMENT

       Appellant believes the clarity of the issue in this cause is such that oral

argument would add nothing.




Petition for Discretionary Review
Jeffrey Dee Steadman v. The State of Texas
Cause No. 11-13-00034-CR
                             PD No.

                   IN THE COURT OF CRIMINAL APPEALS
                            AT AUSTIN, TEXAS

JEFFREY DEE STEADMAN,                        §
             Appellant                       §
                                             §   CAUSE NO. 11-13-00034-CR
v.                                           §   TRIAL COURT NO. 8299-D
                                             §
THE STATE OF TEXAS,                          §
             Appellee                        §

                            STATEMENT OF THE CASE

       On November 2, 2012, Jeffrey Dee Steadman entered an open plea of guilty

to the first degree felony offense of aggravated sexual assault of a child. (R.R. 2,

p. 5) and see TEX. PENAL CODE ANN. §22.021(a) (2) (B)(West Supp. 2014).

The trial court assessed punishment at forty-five years’ confinement in the Texas

Department of Criminal Justice’s Institutional Division. (R.R. 3, p. 86).

     STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

       The Eleventh Court of Appeals at Eastland, Texas, by Memorandum

Opinion dated February 19, 2015, affirmed Steadman’s conviction and sentence.

A copy of that opinion is hereto attached as if fully incorporated herein at length.




Petition for Discretionary Review
Jeffrey Dee Steadman v. The State of Texas
Cause No. 11-13-00034-CR
                               GROUND FOR REVIEW

       The trial court erred when, on re-trial of an aggravated sexual assault of a

child case and over objection, it allowed the state to argue that appellant had, in his

first trial, ―put‖ his victims ―through a trial‖, had ―called them liars in front of a

jury, and made them get up…‖. (R.R. 3, pp. 81-82). The Court of Appeals

compounded the trial court’s error when it concluded that the impermissible

argument was merely a reasonable inference drawn from the record. See, Villarreal

v. State, 860 S.W.2d 647, 649 (Tex. App. – Waco 1993, no pet.).

                         SUMMARY OF THE ARGUMENT

       The state argued that appellant had ―forced‖ his victims to trial and called

them ―liars‖ by his election to have a jury determine his guilt or innocence in a

previous trial. The Court of Appeals erred when it concluded that argument, made

during his second trial after remand, was merely a reasonable inference derived

from the evidence. Rather, with that argument, the state impermissibly commented

on appellant’s constitutional right to a jury trial.

                                    BACKGROUND

       In 2010, in a single jury trial, the appellant was convicted of three counts of

aggravated sexual assault of a child and two counts of indecency with a child. The

jury assessed punishment at three life sentences for the aggravated assault


Petition for Discretionary Review
Jeffrey Dee Steadman v. The State of Texas
Cause No. 11-13-00034-CR
convictions, two twenty-year sentences for the indecency convictions, and              a

$10,000.00 fine for each conviction. On appeal from that judgment, Steadman

argued that the trial court erred in excluding four members of his family from the

courtroom during jury selection in violation of his Sixth Amendment right to a

public trial. In a published opinion, the Eleventh Court of Appeals disagreed,

affirming Steadman’s convictions. On his petition for discretionary review from

the Eleventh Court of Appeals, the Texas Court of Criminal Appeals reversed and

remanded. 1 This appeal results from that remand.

                   STATEMENT OF PERTINENT EVIDENCE

       Here, Steadman entered an open plea of guilty to the first count of his

indictment which alleged aggravated sexual assault of a child, a first degree felony.

(R.R. 2, p. 5). In exchange for that plea, the state agreed to waive the remaining

counts and to ―cap‖ Steadman’s potential sentence upon a finding of guilt at 45

years’ imprisonment. (R.R. 2, pp. 10-11).

       During the punishment phase in this, his second trial, Steadman testified that

he was a changed man and that he had decided some time in 2006 to ―take

responsibility for his actions.‖ (R.R. 3, p. 68). The state asked him why he did not

plead guilty in trial the first time. ―Why . . . put the children . . . through   trial?‖

1
 Steadman v. State, 329 S.W.3d 66 (Tex. App. – Eastland 2010) reversed by 360
S.W.3d 499 (Tex. Crim. App. 2012) (No. PD-1356-10).
Petition for Discretionary Review
Jeffrey Dee Steadman v. The State of Texas
Cause No. 11-13-00034-CR
(R.R. 3, p. 68). Then, in punishment argument the state expounded on his answers

to those questions, and the following exchange occurred:

                     MR. JOINER for the State: So he has not accepted
              responsibility. His back and forth, well, in ’06 that all changed
              but in ’08 I wasn’t prepared at that point to take responsibility
              so I put them through a trial, by extension we called them liars
              in front of a jury, we made them get up, we made –

                     MR. ROBERTSON: Your Honor, we’d object to that.
              That’s not what we did. We did not testify at trial. We didn’t
              call them liars at all. We put the State to the burden which is
              the requirement of the Constitution of the United States and the
              Constitution of the State of Texas.

                    THE COURT: I will allow the State to make reasonable
              inferences. The Court will decide whether or not those
              inferences are justified.

                     MR. ROBERTSON: Note our objection to that. And if
              the Court does consider that argument, we would object to it in
              violation of our constitutional right to a fair trial and to the
              facts.

                    THE COURT: The Court notes the objection, does not
              look at that as a denial. But the Court notes the –

                     MR. JOINER: What he said was – I’m sorry, Judge.

                     THE COURT: Go ahead.

                     MR. JOINER: What he said, Judge, was: I didn’t do
              this, and I’m going to make you get up here and say you did –

                     MR. ROBERTSON: Your Honor, we would object to
              that. That’s not what –


Petition for Discretionary Review
Jeffrey Dee Steadman v. The State of Texas
Cause No. 11-13-00034-CR
                   MR. JOINER: Your Honor, this is closing argument. I
              can make an inference from the facts.

                     THE COURT: The Court looks at it as a reasonable
              inference regarding the circumstance and nothing to do with the
              client’s decision to testify or not testify. The Court will hear
              the argument and determine whether it’s appropriate or not.

                     MR. ROBERTSON: Well, the only – make sure that the
              Court understands that I’m arguing that when a person pleads
              not guilty, he’s not telling the Judge or the jury that anybody is
              lying; he’s just putting the State to the burden of proof, and the
              State’s argument, if the Court considers that –

                   THE COURT: That is the Court’s understanding, too,
              Mr. Robertson.

                                              – (R.R. 3, pp. 81-82).

                     COURT OF APPEALS’ DECISION
       The Court of Appeals concluded that the complained of state’s argument

constituted a ―reasonable inference from the evidence.‖ Accordingly, the trial

court did not err in overruling Steadman’s objection to the prosecutor’s argument.

(Slip op. at 4).

                                    ARGUMENT

       ―The Fourteenth Amendment to the United States Constitution guarantees a

right to trial by jury in all criminal cases that, were they to be tried in a federal

court, would come within the Sixth Amendment’s guarantees.‖ Chaouachi v.

State, 870 S.W.2d 88, 90 (Tex. App. – San Antonio 1993, no pet.); see also U.S.
Petition for Discretionary Review
Jeffrey Dee Steadman v. The State of Texas
Cause No. 11-13-00034-CR
CONST. Amend. VI (―[I]n all criminal prosecutions, the accused shall enjoy the

right to a speedy . . . trial.‖) Article I, section 10 of the Texas Constitution

guarantees the right to trial by jury in criminal prosecutions. Chaouachi, 870

S.W.2d at 90; see also TEX. CONST. Art. I, §10; TEX. CODE CRIM. PROC.

arts. 1.05 and 1.12 (West 2012); Franklin v. State, 576 S.W.2d 621, 623 (Tex.

Crim. App. 1978) (―Article I, §10 of the State Constitution, provides that in all

criminal prosecutions the accused shall have a speedy public trial by an impartial

jury.‖) It is impermissible to impose a penalty for the exercise of a constitutional

right. See Villarreal v. State, 860 S.W.2d 647, 649 (Tex. App. – Waco 1993, no

pet.) (right to jury trial guaranteed under Sixth and Fourteenth Amendments;

prosecutor’s comments about defendant’s forcing victim to testify [by virtue of

proceeding to trial] were improper because penalty cannot be imposed for exercise

of constitutional right); see also Spevack v. Klein, 385 U.S. 511, 515 (1967)

(penalty cannot be imposed for exercise of a constitutional right). ―When a

comment is made by a prosecutor regarding a defendant’s election to proceed with

a jury trial, the concern on the court centers around whether the prosecutor had, in

effect, asked the jury to punish or otherwise penalize the defendant for exercising

his right to a trial by jury.‖ Carlock v. State, 8 S.W.3d 717, 724 (Tex. App. –

Waco 1999, pet. ref’d); and see Carter v. State, No. 01-98-00556-CR, 1999 WL


Petition for Discretionary Review
Jeffrey Dee Steadman v. The State of Texas
Cause No. 11-13-00034-CR
517130, at *6 (Tex. App. Houston [1st Dist.] July 22, 1999, pet. ref’d) (not

designated for publication).

       This was a bench trial. It was once presumed in bench trials that the trial

court did not consider improper argument or inadmissible evidence. Juarez v.

State, 439 S.W.2d 346, 347 (Tex. Crim. App. 1969). Although it did not mention

the former presumption, the Texas Court of Criminal Appeals expressly overruled

the latter. Gipson v. State, 844 S.W.2d 738, 740-41 (Tex. Crim. App. 1992).

Specifically, the court stated, ―The promulgation of Rule 81(b) (2) implicitly

voided the presumption test, and we now expressly do so.‖ Id. at 741. Rule 81(b)

stated, ―If the appellate record in a criminal case reveals error in the proceedings

below, the appellate court shall reverse the judgment under review, unless the

appellate court determines beyond a reasonable doubt that the error made no

contribution to the conviction or to the punishment.‖ Id. at 740.

       The current harm rule, Rule 44.2 (―Reversible Error in Criminal Cases‖), is

similar to former Rule 81(b) (2) and states,

       (a) Constitutional Error. If the appellate record in a criminal case
           reveals constitutional error that is subject to harmless error review,
           the court of appeals must reverse a judgment of conviction or
           punishment unless the court determines beyond a reasonable doubt
           that the error did not contribute to the conviction or punishment.




Petition for Discretionary Review
Jeffrey Dee Steadman v. The State of Texas
Cause No. 11-13-00034-CR
       (b) Other Errors. Any other error, defect, irregularity, or variance that
           does not affect substantial rights must be disregarded.

                                             – Tex. R. App. Proc. 44.2
                                               (West 2012)

       Steadman had every right to invoke his right to a jury trial in the first trial of

this cause. That the prosecutor in his re-trial made reference to Steadman’s

exercise of that right in a way calculated to place blame on him for exercising the

right constitutes error. See Alejandro v. State, 493 S.W. 230, (Tex. Crim. App.

1973).2 Here, the state placed blame when it accused him of ―putting children

through a trial‖ and by extension ―call(ing) them liars in front of a jury. . . .‖ (R.R.

3, p. 81). In fact, the state’s argument in this case is analogous to that found

impermissible in Wages v. State, 703 S.W.2d 636, 740 (Tex. App. – Houston [14th

Dist.] 1986, pet. dism’d improvidently granted, 770 S.W.2d 779 (Tex. Crim. App.

1987), where the appellate court characterized the prosecutor as having argued

―that the only reason the jury had to come to court for four days was because the

appellant insisted on a trial.‖ The argument is also like that made by the state in

Villarreal, 860 S.W.2d at 649, where the prosecutor argued, ―This man [Villarreal]

2
 Proper jury argument must fall within one of the following categories: (1) a
summation of the evidence, (2) a reasonable deduction from the evidence, (3) an
answer to argument of opposing counsel, or (4) a plea for law enforcement.
Alejandro at 231. All other arguments are improper. Washington v. State, 822
S.W.2d 110, 117-121 (Tex. App. – Waco 1991), rev’d on other grounds, 856
S.W.2d 184 (Tex. Crim. App. 1993).
Petition for Discretionary Review
Jeffrey Dee Steadman v. The State of Texas
Cause No. 11-13-00034-CR
made a conscious decision to rape a ten-year-old     child. But he didn’t do it just

once. He forced her to have to come into this courtroom in front of a bunch of

 strangers.‖ Clearly, the state’s argument in this case was, like those in Wages and

Villarreal, an improper comment on Steadman’s exercise of his right to a jury trial.

       When the court overrules an objection to improper argument, error results,

and a harm analysis must proceed under Rule 44.2. TEX. R. APP. P. 44.2 (West

2012); Villarreal, 806 S.W.2d at 648.

       In this case, Steadman entered a plea of guilty to the offense of aggravated

sexual assault of a child. Evidence adduced at trial indicated he was also guilty of

a similar offense with that first victim’s sister. (See e.g., testimony of ―Pseua‖, a

pseudonym, at R.R. 3, pp. 25-30). In light of the egregious nature of the offenses

charged then, it might seem that a 45 year prison sentence seems mid-range for a

first degree felony of the nature of aggravated sexual assault. However, the state

had agreed to cap Steadman’s potential punishment on re-trial at the 45-year level.

Thus, the trial court’s assessment of punishment here was, in fact, the maximum

allowed in his case. While Steadman’s charged offense was egregious, he was,

nevertheless, eligible for deferred adjudication community supervision.

       In an unpublished opinion addressing, in part, harm caused appellant by

improper argument, the Court of Appeals in Houston’s 1st District wrote that its


Petition for Discretionary Review
Jeffrey Dee Steadman v. The State of Texas
Cause No. 11-13-00034-CR
confidence that the trial court would not have imposed a lesser sentence but for an

improper argument was not undermined. Stroble v. State, 2011 WL 1631812

(Tex. App. – Houston [1st Dist] pet. ref’d 2011). In large part, the Court said its

decision in that case was based on the fact that appellant had failed to complete

community supervision, and had it revoked in a prior case of indecency. That

finding suggests that whether community supervision is available to the court in its

assessment of punishment may be a factor to be considered in deciding whether

harm occurred as the result of prejudicial argument. Moreover, in this case, by the

time of his second trial, Steadman had already sought help and counseling after his

first conviction in an attempt to understand, treat and prevent a reoccurrence of a

similar offense. (R.R. 3, p. 8). He testified, without rebuttal, that he had sought

counseling on his own upon his first entry into prison. (R.R. 3, p. 7). Upon

reversal and remand of his case and his return to Taylor County Jail in 2012, he

testified that he bonded out, immediately sought counseling through the VA on his

release from jail, and that he continued his efforts to secure counseling on his own

up until re-trial of his case in 2013. (R.R. 3, pp. 10-11).3

       Finally, the nature of the state’s argument itself supports a conclusion that,

on reviewing the record as a whole, there is a reasonable probability – i.e., a
3
  In fact, prior to his hearing on punishment, Steadman had sought a continuance
for the purpose of securing treatment by yet another referred clinician. (R.R. 3, pp.
7-12).
Petition for Discretionary Review
Jeffrey Dee Steadman v. The State of Texas
Cause No. 11-13-00034-CR
probability sufficient to undermine confidence in the outcome – that the trial court

would have imposed a lesser sentence but for the state’s improper argument. See

Ex parte Lane, 303 S.W.3d 702, 712 (Tex. Crim. App. 2009). Here, the state

argued that ―but for‖ Steadman’s decision to exercise his right to a jury trial, the

victims in his case would not have been ―put through a trial‖ or called ―liars in

front of a jury. . . .‖ (R.R. 3, p. 81). Also, according to the state, before the

argument was cut short by objection, by exercising his right to a jury trial,

Steadman essentially told his victims, ―I didn’t do this, and I’m going to make you

[victims] get up here and say you did —.‖ (R.R. 3, p. 81). In Villarreal, during

closing argument, the prosecutor stated, ―This man [Villarreal] made a conscious

decision to rape a ten-year old child. But he didn’t do it just once. He forced her to

come into this courtroom in front of a bunch of strangers —.‖ At that point

defense counsel, as in this case, objected. 80 S.W.2d at 649. The appeals court

wrote, in reversing the judgment of the trial court and remanding for new trial on

punishment, that:

                     Testifying as a witness is the responsibility of every
              citizen, regardless of the odious nature of the evidence. To
              equate the fulfillment of this responsibility with being subject to
              rape is the type of argument that should be considered extreme
              and manifestly improper and thus so inflammatory that its
              prejudicial effect could not reasonably be removed from the
              minds of the jurors by the instruction given.


Petition for Discretionary Review
Jeffrey Dee Steadman v. The State of Texas
Cause No. 11-13-00034-CR
                                                 --id. at 649.


       If the prejudicial effect of the offending argument could not be removed

from the mind of a jury by instruction as was the case in Villarreal, it follows that

it was probably not removed from the mind of the fact-finder in this case. In fact,

this fact- finder ruled essentially the same argument was merely a reasonable

inference from the facts. (R.R. 3, p. 82).

       In reviewing the entire record in this case, there is evidence that Steadman’s

punishment was probably negatively affected by the state’s argument, and

confidence that the trial court would not have imposed a lesser sentence but for the

state’s argument is undermined. For those reasons, this Court should reverse the

judgment of the Court of Appeals and remand to the trial court for a new

punishment hearing consistent with its findings herein.

                                             PRAYER

       WHEREFORE, Jeffrey Dee Steadman prays that this Court reverse the

judgment of the appellate court and remand for a new punishment hearing and for

such other orders as it finds just and appropriate in keeping with its findings herein.



                                             COPELAND LAW FIRM
                                             P.O. Box 399
                                             Cedar Park, TX 78613
Petition for Discretionary Review
Jeffrey Dee Steadman v. The State of Texas
Cause No. 11-13-00034-CR
                                             Phone: 512.897.8196
                                             Fax: 512.215.8114
                                             Email: tcopeland14@yahoo.com

                                             By: /s/Tim Copeland
                                                    Tim Copeland
                                                    State Bar No. 04801500
                                                    Attorney for Appellant

                      CERTIFICATE OF SERVICE AND OF
                         COMPLIANCE WITH RULE 9

      This is to certify that on March 16, 2015, a true and correct copy of the
above and foregoing document was served on the State Prosecuting Attorney, PO
Box 12405, Capitol Station, Austin, TX 78711, and on James Eidson, Taylor
County District Attorney, Attn: Patricia Dyer, Appellate Section, 300 Oak St., Ste.
300, Abilene, Texas 79602, in accordance with the Texas Rules of Appellate
Procedure, and that this Petition for Discretionary Review is in compliance with
Rule 9 of the Texas Rules of Appellate Procedure and that portion which must be
included under Rule 9.4(i)(1) contains 2973 words.

                                             /s/ Tim Copeland
                                                 Tim Copeland




Petition for Discretionary Review
Jeffrey Dee Steadman v. The State of Texas
Cause No. 11-13-00034-CR
                                11TH COURT OF APPEALS
                                   EASTLAND, TEXAS
                                      JUDGMENT


Jeffrey Dee Steadman,                           * From the 350th District
                                                  Court of Taylor County,
                                                  Trial Court No. 8299-D.

Vs. No. 11-13-00034-CR                          * February 19, 2015
The State of Texas,                             * Memorandum Opinion by Bailey, J.
                                                  (Panel consists of: Wright, C.J.,
                                                  Wilson, J., and Bailey, J.)

      This court has inspected the record in this cause and concludes that there is
no e1Tor in the judgment below. Therefore, in accordance with this court's
opinion, the judgment of the trial court is in all things affirmed.
Opinion filed February 19, 2015




                                        In The
                       ELEVENTH COURT OF APPEALS

                              No. 11-13-00034-CR


                 JEFFREY DEE STEADMAN, Appellant
                                          v.
                     THE STATE OF TEXAS, Appellee


                    On Appeal from the 350th District Court
                                  Taylor County, Texas
                           Trial Court Cause No. 8299-D


                     M E M O R A N D U M O P I N I ON
      Jeffrey Dee Steadman entered an open plea of guilty to the offense of
aggravated sexual assault of a child. TEX. PENAL CODE ANN. § 22.02 l (a)(2)(B)
(West Supp. 2014). The trial court assessed his punishment at confinement for a
te1m of forty-five years in the Institutional Division of the Texas Department of
Criminal Justice. Appellant challenges his sentence in a single issue. We affirm.
                                  Background Facts
       Appellant does not challenge the sufficiency of the evidence so we will
discuss only those facts necessary to our disposition of this appeal.         This case
arises from a remand to the trial court from the Texas Court of Criminal Appeals.
Appellant was previously convicted in a single jury trial of three counts of
aggravated sexual assault of a child and two counts of indecency with a child.
Steadma v. State, 360 S.W.3d 499, 499-500 (Tex. Crim. App. 2012). The Court
of Criminal Appeals reversed Appellant's convictions after determining that his
right to a public trial was violated, and it remanded the cause to the trial court for a
new trial. Id. at 510-11. On remand, Appellant entered an open plea of guilty to a
single count of aggravated sexual assault of a child. The State agreed to waive the
remaining counts and to cap Appellant 's potential sentence at imprisonment for
forty-five years.
      At the subsequent bench trial on punishment, Appellant testified that he
decided in 2006 to take responsibility for his actions. However, he testified that he
pleaded not guilty at his first trial in 2008 because he was in fear of his life.
Appellant further testified that he "was wrong for denying the truth" by pleading
not guilty during his first trial. Appellant testified that he was now ready to take
responsibility for his actions. After hearing all of the evidence, the trial court
sentenced Appellant to imprisonment for forty-five years.
                                       Analysis
      Appellant asse1is in his sole issue that the trial court e1Ted when it
overruled his objection to the State's final argument on punishment. Appellant
argues that the State impermissibly commented on him exercising his right to a
jury trial. We review challenges to 1ulings on objections to improper closing
argument for an abuse of discretion. Garcia v. State, 126 S.W.3d 921, 924 (Tex.
Crim. App. 2004).


                                           2
      Appellant challenges the following argument made by the prosecutor at the
end of the punishment hearing:

            [PROSECUTOR]: So he has not accepted responsibility.

            His back and forth about, well, in '06 that all changed but in '08
      I wasn't prepared at that point to take responsibility so I put them
      through a trial, by extension we called them liars in front of a jury, we
      made them get up, we made --

             [DEFENSE COUNSEL]: Your Honor, we'd object to that. That's
      not what we did. We did not testify at trial. We didn't call them liars at
      all. We put the State to the burden which is the requirement of the
      Constitution of the United States and the Constitution of the State of
      Texas.

             THE COURT: I will allow the State to make reasonable
     inferences. The Court will decide whether or not those inferences are
     justified.

             [DEFENSE COUNSEL]: Note our objection to that. And if the
      Court does consider that argument, we would object to it in violation
      of our constitutional right to a fair trial and to the facts.

             THE COURT: The Court notes the objection, does not look at
      that as a denial. But the Court notes the --

            [PROSECUTOR]: What he said was -- I'm sorry, Judge.

            THE COURT: Go ahead.

             [PROSECUTOR]: What he said, Judge, was: I didn't do this, and
      I'm going to make you get up here and say you did --

             [DEFENSE COUNSEL]: Your Honor, we would object to that.
      That's not what --

            [PROSECUTOR]: Your Honor, this is closing argument. I can
      make an inference from the facts.

                                          3
              THE COURT: The Court looks at it as a reasonable inference
        regarding the circumstance and nothing to do with the client's
        decision to testify or not testify. The Court will hear the argument and
        dete1mine whether it's appropriate or not.

               [DEFENSE COUNSEL]: Well, the only -- make sure that the
       Court understands that I'm arguing that when a person pleads not
       guilty, he's not telling the Judge or the jury that anybody is lying; he's
       just putting the State to the burden of proof, and the State's argument,
       if the Court considers that --

                THE COURT: That is the Court's understanding, too.
        Proper jury argument generally falls within one of four general 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.vV.3d 564, 570 (Tex. Crim. App. 2008); Esquivel v. State,
180 S.W.3d 689, 692 (Tex. App.-Eastland 2005, no pet.). We conclude that the
prosecutor's argument constituted a reasonable inference from the evidence.
Appellant testified that he entered a plea of not guilty at the first trial, and he
admitted that he knew he was guilty but did not want to take responsibility for his
actions. 1 The prosecutor's argument tracked Appellant's trial testimony. Further-
more, it rebutted Appellant's claim that he took responsibility for his actions
beginning in 2006. Counsel is allowed wide discretion in drawing inferences from
the record that are reasonable, fair, legitimate, and offered in good faith. Shannon
v. State, 942 S.W.2d 591, 597 (Tex. Crim. App. 1996). Accordingly, the trial court
did not in in overruling Appellant's objection to the prosecutor's argument.



        1
        This testimony was elicited during the prosecutor's cross-examination of Appellant, which
occurred without objection.
                                                  4
      Moreover, even if the trial court erred in overruling Appellant's objection, we
conclude that the error did not constitute reversible error. Improper argument of
this type is a non-constitutional error, which we disregard unless it affects Appellant's
substantial rights. See TEX. R. APP. P. 44.2(b); Freeman v. State, 340 S.W.3d 717,
728 (Tex. C1im. App. 2011). To determine whether Appellant's substantial rights
were affected, we balance the following factors: (1) the severity of the misconduct
(prejudicial effect), (2) any curative measures, and (3) the certainty of punishment
assessed absent the misconduct (likelihood of the same punishment being assessed).
See Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim.App. 2004).
      In examining challenges to a jury argument, a court considers the remark in the
context in which it appears. Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim.
App. 1988). As noted previously, the prosecutor's argument was very similar to
Appellant's t1ial testimony. Furthermore, this was a bench trial. Unlike the situation
of an extraneous, prejudicial matter being injected before a jury of laypersons, the
trial court was likely well aware of the procedural history of the case. Additionally,
the trial court stated it understood Appellant's objection, and it essentially advised
the parties that it would not consider the prosecutor's argument for an improper
purpose. The evidence presented at the punishment hearing was overwhelming.
Three women testified about numerous acts of sexual assault and sexual contact that
Appellant committed against them when they were children. Given the evidence of
Appellant's egregious conduct, there is a great likelihood of the same punishment
being assessed without the prosecutor's argument Accordingly, we overrule
Appellant's sole issue.




                                           5
                                   This Court's Ruling
      We affirm the judgment of the trial court.




                                                   JOHN M. BAILEY
                                                   JUSTICE


February 19, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Wilson, J., and Bailey, J.




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