NO. 07-10-0362-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
MAY 24, 2011 _____________________________
DAVID GRAGERT,
Appellant v.
THE STATE OF TEXAS,
Appellee _____________________________
FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2009-425,869; HONORABLE JIM BOB DARNELL, PRESIDING _____________________________
Memorandum Opinion _____________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
David Gragert was convicted of indecency by contact with his four-year-old
niece. The evidence established that he touched the child’s genitalia while locked in the
bathroom with her. He seeks reversal by contending the trial court erred 1) in admitting
evidence of an extraneous bad act during the guilt/innocence phase of the trial, and 2)
in overruling his objection to several instances of allegedly improper prosecutorial
argument. We affirm the judgment. Prior Notice of Bad Act
Appellant sought to prevent the admission of evidence illustrating that he
previously had bathed with the complainant, his four-year-old niece. The evidence was
purportedly inadmissible because he was not afforded notice of the State’s intent to
offer the bad act.1 Yet, appellant already knew of the act (given his involvement in it)
and of the fact that the State did as well. Indeed, he broached it in his oral confession
to the police. Furthermore, we are not told that appellant would have altered his
defense, adopted different trial strategies, or presented other evidence had he been
given prior notice of the State’s intent to use the incident against him.
Instead, appellant argues that detrimental surprise arose from the manner in
which the prosecutor attempted to convince the court that the incident did not depict a
bad act. Even if we were to assume that the prosecutor tried to somehow dupe the trial
court into believing that the incident did not evince a bad act, that would not affect the
type of harm sought to be avoided by the rule requiring prior notice. As explained in
Hernandez v. State, 176 S.W.3d 821 (Tex. Crim. App. 2005), the harm related to
surprise which effectively denied the accused opportunity to prepare a means to
address the evidence or ameliorate its impact. Id. at 825-26. Simply arguing that the
trial court somehow was mislead into believing prior disclosure was unnecessary
because the evidence was not of a bad act implicates neither of those concerns. So,
given the circumstances before us and the absence of any indicia of surprise, we, like
1 There was much debate about whether a 25-year-old man bathing naked with a four-year-old girl constituted a bad act. Whether it inherently is or is not matters little. This is so because the prosecution certainly used it to portray appellant in a bad light. Given that, we will assume arguendo that the event was evidence of a prior bad act.
2 the court in Hernandez, have no basis to conclude that the State’s failure to afford
appellant prior notice was harmful and, therefore, overrule the issue.
Admissibility Under Rules 402, 403 and 404
Appellant next contends that evidence of the bathing incident was inadmissible
due to its irrelevance, prejudicial nature, and depiction of a prior bad act. TEX. R. EVID.
402 (stating that irrelevant evidence is inadmissible); TEX. R. EVID. 403 (stating that
relevant evidence may be excluded if its probative value is substantially outweighed by
the danger of unfair prejudice); TEX. R. EVID. 404(b) (stating that evidence of other
crimes, wrongs, or acts is inadmissible to prove the character of a person in order to
show action in conformity with that character). We overrule the contention for the
following reasons.
First, article 38.27 of the Code of Criminal Procedure, which applies to the
prosecution of an offense against a child under seventeen years of age, provides that,
notwithstanding Rule of Evidence 404, evidence of other wrongs or acts committed
against the child shall be admitted for its bearing on matters such as the state of mind of
the defendant and the child and the previous and subsequent relationship between the
two. TEX. CRIM. PROC. CODE ANN. art. 38.37 §§1 & 2 (Vernon Supp. 2010). No one
denies that the evidence in question involved an incident between a 25-year-old man
and a four-year-old child. Nor does anyone deny that the same four-year-old child was
the victim in the crime for which appellant was being prosecuted. And, one would be
hard-pressed to deny that the bathing incident (and its admitted sexual connotation)
evinces the nature of appellant’s relationship with and mindset towards his niece. Thus,
we cannot say that the trial court abused its discretion in admitting it, given article 38.37.
3 See Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007) (stating that a trial
court abuses its discretion when its decision falls outside the zone of reasonable
disagreement); see also Brown v. State, 6 S.W.3d 571, 577-79 (Tex. App.–Tyler 1999,
pet. ref’d) (holding that the trial court did not abuse its discretion by admitting evidence
that the defendant had previously asked the victim of the sexual assault for a kiss and
touched her buttocks as probative of the state of mind of the defendant and the victim).
As for the evidence having insufficient probative value when compared to its
alleged prejudicial effect, we again refer to the sections of article 38.37 mentioned
above. The legislature deemed evidence of that ilk as relevant. So, we cannot consider
it irrelevant. Additionally, a limiting instruction was provided in the court’s charge to
lessen the risk of impermissible impact. Finally, it is difficult to say that informing the
jury of the event had any more impact than the circumstances underlying the indecency
for which he was prosecuted. At the very least, one could reasonably debate whether
the alleged prejudicial nature of disclosing the bathing incident substantially outweighed
the probative value inherent in the evidence. And, because of that, we cannot say that
the trial court abused its discretion in rejecting the Rule 403 challenge.
Jury Argument
Through his remaining issues, appellant challenges three different arguments
made to the jury during the punishment phase. At trial, he objected to each as being
outside of the record. We overrule the issues for several reasons.
First, the grounds urged before us as supporting his claim of error differ from
those mentioned below. Here, appellant argues that the State was engaging in “fear
mongering.” Without appellant explaining to the trial court how interjecting matter
4 outside the scope of the evidentiary record equated with “fear mongering,” we find it
difficult to say that the trial court should have interpreted the actual objection as
including “fear mongering.” This, in turn, means that appellant did not preserve his “fear
mongering” contention for review. See Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim.
App. 2002) (stating that the grounds asserted at trial must comport with those on
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NO. 07-10-0362-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
MAY 24, 2011 _____________________________
DAVID GRAGERT,
Appellant v.
THE STATE OF TEXAS,
Appellee _____________________________
FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2009-425,869; HONORABLE JIM BOB DARNELL, PRESIDING _____________________________
Memorandum Opinion _____________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
David Gragert was convicted of indecency by contact with his four-year-old
niece. The evidence established that he touched the child’s genitalia while locked in the
bathroom with her. He seeks reversal by contending the trial court erred 1) in admitting
evidence of an extraneous bad act during the guilt/innocence phase of the trial, and 2)
in overruling his objection to several instances of allegedly improper prosecutorial
argument. We affirm the judgment. Prior Notice of Bad Act
Appellant sought to prevent the admission of evidence illustrating that he
previously had bathed with the complainant, his four-year-old niece. The evidence was
purportedly inadmissible because he was not afforded notice of the State’s intent to
offer the bad act.1 Yet, appellant already knew of the act (given his involvement in it)
and of the fact that the State did as well. Indeed, he broached it in his oral confession
to the police. Furthermore, we are not told that appellant would have altered his
defense, adopted different trial strategies, or presented other evidence had he been
given prior notice of the State’s intent to use the incident against him.
Instead, appellant argues that detrimental surprise arose from the manner in
which the prosecutor attempted to convince the court that the incident did not depict a
bad act. Even if we were to assume that the prosecutor tried to somehow dupe the trial
court into believing that the incident did not evince a bad act, that would not affect the
type of harm sought to be avoided by the rule requiring prior notice. As explained in
Hernandez v. State, 176 S.W.3d 821 (Tex. Crim. App. 2005), the harm related to
surprise which effectively denied the accused opportunity to prepare a means to
address the evidence or ameliorate its impact. Id. at 825-26. Simply arguing that the
trial court somehow was mislead into believing prior disclosure was unnecessary
because the evidence was not of a bad act implicates neither of those concerns. So,
given the circumstances before us and the absence of any indicia of surprise, we, like
1 There was much debate about whether a 25-year-old man bathing naked with a four-year-old girl constituted a bad act. Whether it inherently is or is not matters little. This is so because the prosecution certainly used it to portray appellant in a bad light. Given that, we will assume arguendo that the event was evidence of a prior bad act.
2 the court in Hernandez, have no basis to conclude that the State’s failure to afford
appellant prior notice was harmful and, therefore, overrule the issue.
Admissibility Under Rules 402, 403 and 404
Appellant next contends that evidence of the bathing incident was inadmissible
due to its irrelevance, prejudicial nature, and depiction of a prior bad act. TEX. R. EVID.
402 (stating that irrelevant evidence is inadmissible); TEX. R. EVID. 403 (stating that
relevant evidence may be excluded if its probative value is substantially outweighed by
the danger of unfair prejudice); TEX. R. EVID. 404(b) (stating that evidence of other
crimes, wrongs, or acts is inadmissible to prove the character of a person in order to
show action in conformity with that character). We overrule the contention for the
following reasons.
First, article 38.27 of the Code of Criminal Procedure, which applies to the
prosecution of an offense against a child under seventeen years of age, provides that,
notwithstanding Rule of Evidence 404, evidence of other wrongs or acts committed
against the child shall be admitted for its bearing on matters such as the state of mind of
the defendant and the child and the previous and subsequent relationship between the
two. TEX. CRIM. PROC. CODE ANN. art. 38.37 §§1 & 2 (Vernon Supp. 2010). No one
denies that the evidence in question involved an incident between a 25-year-old man
and a four-year-old child. Nor does anyone deny that the same four-year-old child was
the victim in the crime for which appellant was being prosecuted. And, one would be
hard-pressed to deny that the bathing incident (and its admitted sexual connotation)
evinces the nature of appellant’s relationship with and mindset towards his niece. Thus,
we cannot say that the trial court abused its discretion in admitting it, given article 38.37.
3 See Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007) (stating that a trial
court abuses its discretion when its decision falls outside the zone of reasonable
disagreement); see also Brown v. State, 6 S.W.3d 571, 577-79 (Tex. App.–Tyler 1999,
pet. ref’d) (holding that the trial court did not abuse its discretion by admitting evidence
that the defendant had previously asked the victim of the sexual assault for a kiss and
touched her buttocks as probative of the state of mind of the defendant and the victim).
As for the evidence having insufficient probative value when compared to its
alleged prejudicial effect, we again refer to the sections of article 38.37 mentioned
above. The legislature deemed evidence of that ilk as relevant. So, we cannot consider
it irrelevant. Additionally, a limiting instruction was provided in the court’s charge to
lessen the risk of impermissible impact. Finally, it is difficult to say that informing the
jury of the event had any more impact than the circumstances underlying the indecency
for which he was prosecuted. At the very least, one could reasonably debate whether
the alleged prejudicial nature of disclosing the bathing incident substantially outweighed
the probative value inherent in the evidence. And, because of that, we cannot say that
the trial court abused its discretion in rejecting the Rule 403 challenge.
Jury Argument
Through his remaining issues, appellant challenges three different arguments
made to the jury during the punishment phase. At trial, he objected to each as being
outside of the record. We overrule the issues for several reasons.
First, the grounds urged before us as supporting his claim of error differ from
those mentioned below. Here, appellant argues that the State was engaging in “fear
mongering.” Without appellant explaining to the trial court how interjecting matter
4 outside the scope of the evidentiary record equated with “fear mongering,” we find it
difficult to say that the trial court should have interpreted the actual objection as
including “fear mongering.” This, in turn, means that appellant did not preserve his “fear
mongering” contention for review. See Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim.
App. 2002) (stating that the grounds asserted at trial must comport with those on
appeal, otherwise the contention is waived).
Second, there are four permissable areas of jury argument. They include 1)
summarizing the evidence, 2) making reasonable deductions from the evidence, 3)
answering argument of opposing counsel, and 4) pleading for law enforcement.
Cannady v. State, 11 S.W.3d 205, 213 (Tex. Crim. App. 2000). The arguments in
question can be interpreted as falling within at least one of those permissible areas, as
we now illustrate.
Through the first utterance, the State said:
. . . The defendant is 25 years old. In two years he will be 27. In five years he will be 30, in 20 he will be 35. [sic] 20 years he will be 45.
Look at this from this perspective. In two years [the victim] will be eight. In five, she will be 11. [I]n 10 she will be 16, learning how to drive. In 20 years, in 20 years she will be 26 years old. At what point do you think she will be able to defend herself from this man?
Rhetorical questions, such as this, are generally within the scope of jury argument if
based on reasonable deductions from the evidence. Wolfe v. State, 917 S.W.2d 270,
280 (Tex. Crim. App. 1996). And, the State is afforded a wide degree of latitute in
drawing reasonable deductions from the evidence so long as the inferences are
reasonable, fair, legitimate, and offered in good faith. Gaddis v. State, 753 S.W.2d 396,
398 (Tex. Crim. App. 1988); Strahan v. State, 306 S.W.3d 342, 350 (Tex. App.–Fort
5 Worth 2010, pet. ref’d). The aforementioned utterance can be deemed a reasonable
inference or deduction given the evidence of the age of both appellant and his victim.
Thus, the analysis of their respective ages at different times in the future was a
reasonable inference from the record. Because appellant was the victim’s uncle, one
could also reasonably deduce that he might someday be in attendance at family
functions. Indeed, the child’s mother testified that, after the incident at bar, the child’s
grandmother took the child to see a movie, and appellant went with them. To that, we
had appellant’s own admission that he had “urges” that he had to control. So, the
prospect of the child again being at risk while in the presence of appellant was not
improper argument outside the record’s scope.
The next two utterances consisted of the following:
You are looking now at a range of two to 20. There is abolutely nothing that says you have to start at two and build your way up. And every time you start at that 20 and every time you think about coming off of it, when you say - - your mind goes to David and you wonder where he is going to be, think about this. Do you want to see a headline with a picture of Mr. Gragert right next to the words “Defender commits assault again”?
* * *
You can punish somebody for what they did yesterday, what they did today, and what they might do tomorrow.
Do you ever want to pick up the A-J and see that this man had done it again?
The remarks suggest that appellant may repeat his crimes. And, there was evidence
presented indicating that he had been unsuccessful in controlling his “urges.” Given
this, we find that the argument constituted a lawful plea for law enforcement. Indeed,
we previously held argument suggesting that the accused may offend again to be
6 allowable. Watson v. State, 760 S.W.2d 756, 759-60 (Tex. App.–Amarillo 1998, pet.
ref’d); accord McBride v. State, 706 S.W.2d 723, 729 (Tex. App.–Corpus Christi 1988,
pet. ref’d) (holding argument that if the jury made a mistake, “they might bury somebody
else” was a proper plea for law enforcement).
Having overruled all issues, we affirm the judgment.
Brian Quinn Chief Justice
Do not publish.