PD-1318-15 PD-1318-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 10/6/2015 4:18:30 PM Accepted 10/7/2015 5:09:50 PM NO. 03-13-00202-CR ABEL ACOSTA CLERK
STEVEN DELEON § IN THE COURT OF § VS. § CRIMINAL APPEALS OF § THE STATE OF TEXAS § THE STATE OF TEXAS
MOTION FOR EXTENSION OF TIME TO FILE APPELLANT’S PETITION FOR DISCRETIONARY REVIEW TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS: Now comes Kerrisa Chelkowski, attorney for Appellant, Steven DeLeon,
and files this Motion asking this Honorable Court to extend the time for filing
Appellant’s Petition for Discretionary Review in this cause. In support of this
Motion, Appellant shows the following:
I.
This cause is on appeal from the 4215‘ Judicial District Court, Caldwell
County, Texas, in which Appellant was convicted of Continuous Sexual Abuse of
a Young Child, No. 2012-166, styled The State of Texas vs. Steven DeLeon.
Punishment was assessed at 32 years imprisonment.
October 7, 2015 II.
Appellant's conviction was affirmed by the Court of Appeals, Third Court of
Appeals District of Texas, San Antonio, Texas on May 29, 2015. Appellant filed a Motion for Rehearing and such Motion was denied on September 17, 2015. The
current deadline for filing Appellant’s Petition for Discretionary Review from that
decision is October 17, 2015. This is Appellant’s first request for an extension of
time. The opinion of the Third Court of Appeals is attached.
III.
Appellant moves that the Court extend the time for filing his Petition for
Discretionary Review in this cause for a period of 30 days, to November 17, 2015.
In support thereof, undersigned counsel shows this Court the following:
1. Counsel for Appellant has a brief due on October 13, 2015 to the United States Courts of Appeal for the Fifth Circuit in USA vs. Igcmacio Flores, Jr. in case number 15-50148.
2. Counsel is set for jury trial in State of Texas vs. Jana Shilts, No. 465822 in Bexar County, Texas. Jury selection is scheduled to begin on October 13, 2015, and the trial will last more than three days.
3. Counsel is set for july trial in State of Texas vs. Keith Coelho, No. 461465 in Bexar County, Texas. Jury selection is scheduled to begin on October 26, 2015, and the trial will last more than three days. IV.
For the foregoing reasons, Appellant needs additional time to prepare
Appellant's Petition for Discretionary Review.
V.
WHEREFORE, PREMISES CONSIDERED, Counsel for Appellant prays
that this Honorable Court grant an extension of time to November 17, 2015 for the
filing of Appellant's Petition for Discretionary Review.
Respectfully submitted,
Law Office of Kerrisa Chelkowski l0 17 South Alamo San Antonio, Texas 78210 (210) 228-9393 Telephone (210) 226-7540 Fax Email: kerrisa@defendtexas.com
By: /s/ Kerrisa Chelkowski KERRISA CHELKOWSKI State Bar No. 24034373
Attorney for Appellant: Steven DeLeon CERTIFICATE OF SERVICE I, Kerrisa Chelkowski, do hereby certify that a copy of this Motion for
Rehearing for the Appellant was sent by certified mail to the Caldwell County
District Attorney’s Office at 201 E. San Antonio Street, P.O. Box 869, Lockhart,
6"‘ Texas 78644 on this the day of October, 2015.
/s/ Kerrisa Chelkowski KERRISA CHELKOWSKI CERTIFICATE OF COMPLIANCE Pursuant to the Texas Rules of Appellate Procedure (TRAP) 9.4(i)(3), the undersigned certifies this brief complies with the type-volume limitations or TRAP 9.4(i)(3)
l.EXCLUSIVE OF THE EXEMPTED PORTIONS IN TRAP 9.4(i)(3), THE BRIEF CONTAINS (select one):
A. 644 words, OR B. lines of text in monospaced typeface.
2. THE BRIEF HAS BEEN PREPARED (select one): A. in proportionally spaced typeface using:
Software Name and Version: Microsoft Office Word 2011 in (Typeface Name and Font Size): 14 pt. Times New Roman, OR B. in monospaced (nonproportianally spaced) typeface using:
Typeface name and number of characters per inch:
3. THE UNDERSIGNED UNDERSTANDS A MATERIAL MISREPRESENTATION IN COMPLETING THIS CERTIFICATE, OR CIRCUMVENTION OF THE TYPE-VOLUIVIE LIMITS IN TRAP 9.4(i)(3), MAY RESULT IN THE COURT’S STRIKING THE BRIEF AND IMPOSING SANCTIONS AGAINST THE PERSON SIGNING THE BRIEF.
/s/Kerrisa Chelkowski Signature of Filing Party TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00202-CR
Steven DeLeon, Appellant
The State of Texas, Appellee
FROM THE DISTRICT COURT OF CALDWELL COUNTY, 421ST JUDICIAL DISTRICT NO. 2012-166, HONORABLE TODD A. BLOMERTH, JUDGE PRESIDING
MEMORANDUM OPINION A jury found appellant Steven DeLeon guilty of continuous sexual abuse of a young child and assessed punishment at thirty-two years in prison. DeLeon contends that insufficient
evidence supports the judgment and that the trial court abused its discretion and violated the
constitution by refusing to allow him to make a defense and fully confront witnesses against him.
He also contends that the trial court abused its discretion by denying his motion for mistrial when
the prosecutor commented on his exercise of his right to remain silent and by imposing a sentence
without the possibility of parole. We will affirm the judgment.
BACKGROUND DeLeon taught physical education at the elementary school M.G. attended. He met
M.G. and her mother, D.A., in January 2010 when M.G. started playing on the school’s fourth-grade
basketball team. M.G. played basketball through the summer of 201 l, and DeLeon spent time with
D.A. ’s family. The adults went on one date and never became romantically linked, though there was testimony that D.A. wanted more than a friendship. DeLeon testified that he helped D.A. with her
finances, helped her start a checking account, and counseled her about her relationship with her
son, D.G., who DeLeon also taught. DeLeon attended a parent-teacher conference regarding D.G.
in place of D.A., helped M.G. with homework, and stayed with the children, sometimes overnight.
The children stayed with DeLeon and his brother overnight once. M.G. testified that it was during
such stays that DeLeon assaulted her in the summer of 201 l.
M.G. first repoited an assault in May 2012 after her mother found a recording of a
March 19, 2012 telephone conversation between M.G. and DeLeon. The conversation began with
a discussion of M.G.’s grandfather’s surgery, but veered into sex—related topics. DeLeon deemed
the shift in topics inappropriate and said that M.G. was responsible for the shift, but he admitted
that he participated in the inappropriate discussions. In a discussion prompted by M.G.’s query of
why DeLeon seemed uncomfortable whenever female body parts were discussed, DeLeon said, “It’s
kind of like with you like I remember like I would tell you: Well, am Ihurting you? Or you know
is everything okay? I just want to make sure that you’re like comfortable.” DeLeon testified that
this statement referred to a basketball practice during which he had unknowingly hurt M.G. by
inadvertently touching her breast and she had been embarrassed to explain her pain in front of
the other players. The conversation also spanned other topics ranging from the inappropriateness
of physical violence in a relationship to M.G. getting whistled at in a store to the size of DeLeon’s
girlfriend’s vagina. D.A. made a copy of the recording and took it to school officials, leading to the
police investigation and this prosecution.
M.G. testified at trial that DeLeon assaulted her four times during the summer of
201 l—-three times at her home and once at his. She testified that one time he lay on top of her with his clothes on. M.G. said that another time he touched the outside of her private parts with his
finger. She testified that DeLeon asked if she was okay or if he was hurting her. She said that, after
this incident, she requested a different babysitter, but her mother still chose DeLeon. She testified
that when she and her brother stayed overnight at DeLeon’ s house, DeLeon touched her private parts
while her brother slept next to them. In the final incident, she testified that she and DeLeon were
in her mother’s room talking when DeLeon pulled his pants down and told her to touch his penis.
She said that she touched it briefly and that he then grabbed her hand, put it onto his penis, and
moved their hands up and down on his penis while he grunted. She testified that, after five minutes,
something gooey came out of his penis.
M.G. conceded at trial that she had related different versions of these assaults at
different times to different audiences. M.G. told her mother that DeLeon assaulted her once, told
a child advocate about three instances, and testified about four instances. At trial, she recanted her
allegation to the child advocate that DeLeon had touched the inside of her vagina. She testified that
the touching hurt but had told the child advocate that it had not hurt. At trial, she rejected her report
that one of the incidents occurred during the day, insisting that it occurred at night. M.G. told a
child advocate that the phone recorded the March 19 phone conversation without her knowledge,
but she recanted that assertion at trial and explained the steps needed to make a recording. M.G.
acknowledged at trial that she was sometimes perceived as “overly dramatic.”
DeLeon argued that the allegations of assault were unfounded. He denied that he
touched M.G.’s sexual organ and that she touched his. He denied being unclothed around the
children and denied sleeping in a bed with them. DeLeon testified that his relationship with D.A.
and her family changed in the fall of 201 1 when she began dating a man whom DeLeon described as extremely jealous. D.A. changed M.G.’s phone number—M.G. linked the change to D.A.’s new
boyfriend, but D.A. testified it was because DeLeon yelled at M.G. on the phone after she did not
invite him to her holiday band concert in December 2011. M.G. testified that she surreptitiously
stored his number in her new phone under the name “William.” DeLeon testified that he decided
not to communicate with the family beginning in December 201 1. In February 20 l 2, DA. contacted
him after he sent a flyer to students at his school (including D.G.) regarding an event in Austin.
DeLeon testified that D.A. called to tell him that M.G. (who was now attending a different school
for sixth graders) wanted to attend.
DeLeon testified that D.A. used inappropriate language around the children when
talking about topics including her ex—husbands and ex—boyfriends. He testified that M.G. picked up
the language from her mother. He acknowledged that he fell into similar patterns when around the
family, including during the recorded March l9 telephone conversation.
DeLeon’s brother, who has lived with DeLeon for almost fifteen years, testified that
he never heard DeLeon express a sexual interest in children. DeLeon’s brother testified that they
watched television together the night that M.G. said DeLeon assaulted her at the brothers’ home.
He testified that DeLeon slept on the couch that night. DeLeon’s brother also testified that the home
is l ,30O square feet, that the bedroom doors had been removed during a remodel, and that the interior
of the bedrooms was visible from the living room.
A student, a parent of a student, and two fellow teachers testified about DeLeon. The
student testified that she liked him, found him truthful, and never had any problems with him. The
parent testified that she and her daughter loved DeLeon and that he loved the kids, was truthful, and
was a mentor. One fellow teacher described him as truthful, while another testified that she did not like him because he was not prompt. She testified that she told DeLeon she thought he acted too
familiar with all the girls on the team and that he should not be alone with any of the girls because
it looked inappropriate, but said that she did not see him pay any extra attention to M.G. The teacher
testified that she found M.G. to be truthful.
At the punishment phase, DeLeon’s friends, colleagues, and family testified in
support of DeLeon. They described him as a good teacher and a good person who was supportive
and appropriate with children. A psychologist evaluated DeLeon and testified that the test results showed no sexual deviancy, that he is quite conservative in his sexual practices, that he showed no
sexual interest in children, and that he scored Very low on a scale of potential recidivism.
DISCUSSION
DeLeon raises four issues on appeal. He contends that the court improperly limited
his ability to confront witnesses and put on a defense. He argues that the evidence is insufficient to
prove all of the required elements. He contends that the trial court erred by denying his motion for
mistrial based on the prosecution’s comment on his failure to testify. DeLeon also asserts that the
sentence was unconstitutional because it is disproportionate and cruel and unusual.
DeLeon was not harmed by any error in the exclusion of evidence.
DeLeon contends that the trial court abused its discretion and violated his right to
confront witnesses when it prevented him from cross-examining D.A. about problems she had with
Child Protective Services, in particular D.A.’s report to DeLeon that she had abused her son.
DeLeon also contends that the trial court improperly refused to allow him to question D.A. regarding
her anger after he ignored her romantic advances toward him. He contends that this evidence would have shown that D.A.’s report of his alleged abuse was a tactic to divert attention from her
abuse of her children.
The Constitution guarantees defendants a meaningful opportunity to present a
complete defense. Crane v. Kentucky, 476 U.S. 683, 690 (1986); see also U.S. Const. amends. VI
(compulsory process and confrontation of witnesses) & XIV (due process). There is, however, no
absolute constitutional right to present favorable evidence. Potier v. State, 68 S.W.3d 657, 659
(Tex. Crim. App. 2002) (citing United States v. Sc/zefler, 523 U.S. 303, 316 (1998)). The right to
present relevant evidence is subject to reasonable restrictions through evidentiary rules that are
not arbitrary or disproportionate to the rule’s purpose. Id.; see also Davis v. State, 313 S.W.3d 317,
329 n.26 (Tex. Crim. App. 2010). The improper exclusion of evidence may establish a constitutional
violation (1) when a state evidentiary rule categorically and arbitrarily prohibits the defendant
from offering relevant evidence that is vital to his defense; or (2) when a trial court precludes the
defendant from presenting a defense by erroneously excluding relevant evidence that is a vital
portion ofthe case. Ray v. State, l78 S.W.3d 833, 835 (Tex. Crim. App. 2005). The exclusion of
evidence is unconstitutional only where it infringes on a weighty interest of the accused. Potier,
68 S.W.3d at 660 (citing Schejfer, 523 U.S. at 308). Erroneous evidentiary rulings rarely rise to the
level of denying the fundamental constitutional rights to present a meaningfiil defense. Id. at 663.
The courts’ exercise of discretion is guided by competing interests. Courts should
permit great latitude for the accused to show any fact that would tend to establish ill—feeling, bias,
motive and animus upon the part of any witness testifying against him. Koehler v. State, 679 S.W.2d
6, 9 (Tex. Crim. App. 1984). On the other hand, the trial judge retains wide latitude to impose
reasonable limits on cross-examination to show bias based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ s safety, or interrogation that is repetitive
or only marginally relevant. Irby v. State, 327 S.W.3d 138, 145 (Tex. Crim. App. 2010).
The parties at trial entered an agreed order in limine concerning the mention of prior
contact between any of the witnesses and Child Protective Services. During his cross—examination
of D.A., DeLeon notified the court that he intended to ask questions regarding CPS involvement with
D.A.’s family, which prompted the following exchange:
[Defense counsel]: . There is direct relations to this discipline going on that ties . . .
to a very important defensive theory that this discipline made the child scared of her mother.
THE COURT: You haven’t shown anything yet, Counsel, so I am not going to let anything like that in, unless you show something that has some bearing on the case.
[Defense counsel]: Well, then—okay, a later time then. Okay. So that’s fine.
During DeLeon’s testimony, the State objected when he mentioned that the children had been
“retumed from CPS custody,” and the court cautioned the witness not to blurt out CPS references.
Later, DeLeon agreed with a question that after a conversation with D.A. he felt compelled to do
something—specifically, “as an educator, it was my obligation to Contact CPS to let them know—”
at which time the State again objected and invoked the motion in limine. The following exchange
occurred during a bench conference:
[Defense counsel]: This is different, Judge. This goes to her motive in filing the case. This is not talking about something that happened in the past. This is talking about directly what her motive would be when this case was started.
[Prosecutor]: So wouldn’t the appropriate person to be—have gone into that been with her?
[Defense counsel]: This is my case. You can recall her. 7 [Prosecutor]: This witness can’t testify about her motive.
[Defense counsel]: He can testify about what happened, not her motive. I can argue it, based on the evidence.
THE COURT: I’m sustaining the objection at this time. You can call the appropriate person to do it.
DeLeon did not recall D.A. for further interrogation, but after the close of evidence, his attorney
made the following offer of proof:
We attempted to ask questions before the jury concerning whether [D.A.] had informed my client, Steven DeLeon, of child abuse that she had inflicted upon her son, [D.G.]. And that would have given her a direct motive to go into the place with a recording [of the phone conversation between M.G. and DeLeon]. It happened shortly before the recording was—excuse me—shortly before the recording was discovered. And that would have prompted her to go to the authorities with that and given her motive. And we were not allowed to ask those questions.
It is not entirely clear that DeLeon preserved this issue for appellate review. To
preserve error in the admission of evidence, a party generally must make a complaint to the
trial court with sufficient specificity that the trial court is aware of the complaint, and the court must
rule on the request. Tex. R. App. P. 33.1(a). In order for a defendant to perfect a complaint that he
was not allowed to inquire regarding a witness or party’s bias, he must establish what subject matter
he desired to examine the witness about during the cross—examination. Koelzler, 679 S.W.2d at 9.
DeLeon has not shown that he was totally forbidden from making the inquiries. The trial court
stopped him from asking D.A. about CPS until he “show[ed] something that has some bearing on
the case.” When the State objected to defense counsel’s attempt to ask DeLeon aboutD.A.’s motive for contacting law enforcement, the trial court sustained the objection “at this time,” adding this directive to counsel: “You can call the appropriate person to do it.” DeLeon did not recall D.A. or
any other witness on the subject.
Even if DeLeon’s offer of proof is sufficient to preserve the issue regarding CPS’s
investigation into a report of abuse, DeLeon has not demonstrated that the trial court erred. There
is no showing that evidence relating to D.A.’s abuse of D.G. had any relevance on any element of
whether DeLeon sexually assaulted M.G. It can therefore be excluded absent some other theory of
admissibility. See Tex. R. Evid. 402. Whether D.A. abused her son is not admissible impeachment
evidence about her character for truthfulness and is not evidence of conviction for a crime. See
Tex. R. Evid. 608(a), 609. It is a specific instance of conduct which “may not be inquired into
on cross—examination of the witness nor proved by extrinsic evidence.” See id. 608(b). Also, the
relevance to bias or motivation for D.A. reporting the recording of the phone conversation between
MG. and DeLeon is not plainly apparent. Ifl as DeLeon argues, D.A. wanted to distract CPS from
the report that she abused her son, it is not clear that she would serve that purpose by reporting that
her daughter was sexually abused by a man D.A. repeatedly selected as a babysitter despite her
daughter’s request that she not do so. Further, because there is no challenge to the validity of the
recorded phone conversation, D.A.’s motive or bias in supplying it to law enforcement is at best
marginally relevant to the contested issues in this case. See Irby, 327 S.W.3d at 145 (trial court can
limit marginally relevant interrogation). The content of the conversation matters much more. On
the record presented, the trial court did not err by excluding evidence of D.A.’s involvement with
CPS and did not prevent DeLeon from presenting a defense.
Harm from any wrongful exclusion of this evidence is also not apparent. The
recording was not made in retaliation for D.A.’s admission of abuse. The conversation occurred on March 19, 2012, and D.A. made the abuse admission to DeLeon “shortlybefore” she discovered the
recording on M.G.’s phone on May 20, 2012. DeLeon does not dispute that he made the recorded
statement, and although M.G. may have introduced the topic of DeLeon’ s discomfort with discussion
of female body parts, he initiated the discussion of unspecified events with MG. when he wanted to ensure that she was comfortable and that he was not hurting her. The trial court’s failure to allow
DeLeon to delve into D.A.’s potential motivations for disclosing this recording to law enforcement
did not affect the jury’s consideration of the substance of the phone call.
Further diminishing any harm, DeLeon was able to challenge D.A.’s and M.G.’s
credibility in other ways. DeLeon testified and flatly denied that the assaults occurred. He presented
evidence that D.A. was biased against him because she was angered by his rejection of her romantic
overtures. He queried M.G. who said that D.A. had a “crush” on DeLeon and that he did not like
her mother in that way. DeLeon’ s brother testified that D.A. was obsessed with DeLeon and that his
brother did not return her affection. He testified that D.A. would show up at the brothers’ house
unannounced while they were out and would wash their dishes and feed their dog. DeLeon himself
testified that D.A. wanted to marry him but that, while he was interested in helping her children, he
was not interested in marriage with her. All this testimony called into question D.A.’s credibility
because she testified that she and DeLeon went on a date but decided that they were better off as
friends. Further, although D.A. asserted that she did not telephone DeLeon, he confronted her with
records showing that 570 calls went from her phone to his. He confronted M.G. about the different
stories of abuse she told to different questioners. He highlighted the fact that she reported one, then
three, then four incidents, and noted inconsistencies between versions as to whether the contact hurt,
where her brother was during an incident, and whether the assault occurred during the day or night.
10 Further, DeLeon’s brother contradicted details of M.G.’s story about the assault at the brothers’
house. The trial court’s failure to allow him to obtain the testimony he wanted about D.A.’s alleged
abuse of her son did not prevent him from confronting witnesses and challenging their credibility.
We conclude beyond a reasonable doubt that any erroneous exclusion of evidence discussed above did not contribute to DeLeon’s conviction or punishment. See Tex. R. App. P. 44.2(a).
The evidence is sufficient to support the conviction.
In reviewing the sufficiency of the evidence to support a conviction, we determine
whether a rational trier of fact could have found that the essential elements of the crime were proven
beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). In
making this determination, we consider all evidence that the trier of fact was permitted to consider,
regardless of whether it was rightly or wrongly admitted. Clayton v. State, 235 S.W.3d 772, 778
(Tex. Crim. App. 2007); Allen v. State, 249 S.W.3d 680, 688-89 (Tex. App.—Austin 2008, no pet.).
We view this evidence in the light most favorable to the verdict. Clayton, 235 S.W.3d at 778. The
jury, as the trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given
to their testimony. Id. Therefore, we presume that the jury resolved any conflicting inferences and
issues of credibility in favor of the judgment. Id.
A person commits continuous sexual abuse of a child if, while the person is 17 years
of age or older and the victim is a child younger than fourteen years, the person commits two or more
acts of sexual abuse during a period that is 30 or more days in duration. Tex. Penal Code § 21.02(b).
Acts of sexual abuse include indecency with a child if the person committed the offense in a
manner other than by touching the child’s breast, id. § 21.11(a)(1), sexual assault, id. § 22.011, and
aggravated sexual assault, id. § 22.011.
11 M.G. ’s testimony is sufficient to support the conviction. It is undisputed that DeLeon
and M.G. were, respectively, thirty-nine and twelve years old during the summer of 2011. M.G.
testified that around June 3 201 1, , DeLeon touched her vagina. She testified that they were lying on
the floor, he asked her to remove her shorts, and he moved his fingers on her vagina. She testified
that, after he touched her for about five minutes, he kissed her neck really hard and left a mark. She
said he asked if she was okay or if he was hurting her. This testimony supports a finding that
DeLeon committed indecency with a child by contact. See id. § 21.1 l(a)(1). M.G. testified that,
about a month later—longer than thirty days, she said—when she and her brother were staying
overnight at DeLeon’s house, DeLeon touched her vagina. She testified that, wl1ile they were lying
on his bed, he asked her to remove her shorts and underwear, and he moved his finger around and
inside her vagina for about five minutes. He again asked her if he was hurting her. This testimony
supports a finding of indecency with a child by contact, sexual assault of a child, and aggravated
sexual assault of a child. See id. §§ 21.l1(a)(l), 22.011(a)(2), 22.021(a)(1)(B)(i). M.G. testified that
about three weeks later when she and DeLeon were talking in her mom’s bedroom, DeLeon pulled
down his pajama pants and told M.G. to touch his penis. She did quickly, but he grabbed her hand,
put his hand over hers, and moved their hands together up and down his penis for about five minutes.
She said he made grunting noises, then something clear and gooey came out of the top of his
penis. This testimony is sufficient to support a finding of indecency with a child by contact. See id.
§ 21.1 1(a)(1). The child testified that the second incident occurred more than thirty days after the
first, and that the third incident occurred about three weeks after the second. Even if the testimony
that the second incident occurred “about a mom ” after the first were insufficient to show the
requisite period, the third incident occurred about a month and three weeks after the first—a
12 combination sufficient to support a finding of two incidents of sexual abuse of a child occurring over
a period of at least thirty days. See id. § 2l.02(b)(1).
DeLeon challenges M.G.’s credibility, pointing to inconsistencies in her statements
at various times and to contrary testimony by others. He notes her failure to make an outcry before
her mother confronted her with the recorded telephone conversation with DeLeon. He points out
that she reported one incident, then three, then four, and that her reports varied with regard to
how he touched her, whether his touch hurt, what time the offenses occurred, and where her brother
was during these events. He notes that she admitted liking to use sexual language, initiating the
sexual theme into the telephone conversation, and being overly dramatic. DeLeon also points to his
brotl1er’s testimony that DeLeon did not share a bed with her when she stayed at their home and
that the bedrooms at that house have no doors. The jury, however, could have either rejected that
testimony or found that the offense simply occurred in a short period during which DeLeon’s brother
was not monitoring him. The jury was faced with a credibility choice and selected M.G. The record
is not such that we can intrude on the jury’s role and override its choice to credit M.G.’s testimony.
See Clayton, 235 S.W.3d at 778; Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). We find the evidence sufficient to support the conviction.
The court did not abuse its discretion by denying DeLeon’s motion for mistrial during the State’s argument at the punishment phase.
Permissible jury argument includes summation of the evidence, reasonable
deduction from the evidence, answer to argument of opposing counsel, and plea for law enforcement.
Allridge v. State, 762 S.W.2d 146, 155 (Tex. Crim. App. 1988). Commenting on an accused’s
failure to testify violates his state and federal constitutional privileges against self—incrimination.
13 Arc/zie v. State, 340 S.W.3d 734, 738 (Tex. Crim. App. 2011). A defendant’s Fifth Amendment privilege against self—incrimination continues during the punishment phase of trial. See Mitchell
v. United States, 526 U.S. 314, 325-27 (1999); Carroll v. State, 42 S.W.3d 129, 131-32 (Tex. Crim.
App. 2001).
We can reverse a trial court’s denial of a motion for mistrial only for an abuse
of discretion. Archie v. State, 22] S.W.3d 695, 699 (Tex. Crim. App. 2007). To determine whether
the court’s instruction cured the prejudicial effect of the improper comment, we balance
three factors: (1) the severity of the misconduct’s prejudicial effect, (2) any curative measures,
and (3) the likelihood of the same punishment being assessed absent the misconduct. Hawkins
v. State, 135 S.W.3d 72, 75 (Tex. Crim. App. 2004). Mistrial is the appropriate remedy when the
objectionable events are so emotionally inflammatory that curative instructions are not likely to
prevent the juiy from being unfairly prejudiced against the defendant. Archie, 340 S.W.3d at 739.
Only in extreme circumstances where the prejudice is incurable will a mistrial be required. Hawkins,
135 S.W.3d at 77. Where a comment leads to two plausible inferences—one of which is
permissible—we do not presume that the jury would necessarily choose the improper inference. See
Henson v. State, 683 S.W.2d 702, 704-05 (Tex. Crim. App. 1984). A comment on the defendant’s failure to show remorse is generally not proper if the defendant testifies at the guilt stage and
presents some defense, but does not testify at the punishment phase. Randolph v. State, 353 S.W.3d
887, 892 (Tex. Crim. App. 2011). The prosecutor may during the punishment phase comment on
any testimony given by the defendant in the guilt/innocence phase and, if the defendant expressly
or impliedly denies criminal responsibility during that testimony, the prosecutor may comment on
that denial. Id. at 895. A statement during punishment argument that the defendant failed to express
14 remorse might be taken as a comment on his failure to testify, but any harm from that violation
can be cured by an instruction to disregard the comment. Moore v. State, 999 S.W.2d 385, 405-06
(Tex. Crim. App. l999).
DeLeon contends that the trial court should have granted his motion for mistrial after
the State commented on his exercise of his right to remain silent during the sentencing phase of trial.
DeLeontestif1ed during the guilt/innocence phase and denied committing the offense but did not take
the stand during the punishment phase. The controversy centers on the following exchange during
the State’s punishment argument:
[Prosecutor]: . And it’s scary the way that he conducted himself, the absolute . . .
denial with what he showed, and then the complete support of his family behind him. I do not believe 25 years, as a punishment, is appropriate in this case. Ibelieve a
sentence of 60 years would be appropriate. [M.G.] is going to have to live with this for the rest of her life.
And if the Defendant had taken the stand, admitted what he had done, and begged for forgiveness, I believe the minimum sentence would be appropriate. But that’s not what we have here.
[Defense counsel]: Your honor, could we approach the bench?
(Bench Conference)
DEFENSE MOTION FOR MISTRIAL [Defense counsel]: I am going to ask for a mistrial. He did not testify at punishment. He just said to the jury, if he got up on the stand at this phase and told you—
[Prosecutorl]: Iwas specifically referring to guilt/innocence.
[Defense counsel]: didn’t say that. He said, if he got He up here and asked for forgiveness—this—I’m asking for a mistrial, Judge.
15 COURT’S RULING
The Court: Well, you’re not going to get one. I am going to instruct the jury to disregard that.
[Defense counsel]: That’s unbelievable.
(Open Court.)
The Court: Ladies and gentlemen, the last comment by the prosecutor is improper, and you will not consider that for any purpose whatsoever.
The court then expressly denied the motion for mistrial.
As the trial court found, the argument was improper. The prosecutor’s comment
violated DeLeon’s right not to testify. See Randolph, 353 S.W.3d at 89l. Even if the statement that
DeLeon did not take the stand and admit what he had done referred to DeLeon’s testimony
at guilt/innocence during which he denied wrongdoing, the statement that he did not beg for
forgiveness is equivalent to the failure to express remorse found to be an improper comment by
the court of criminal appeals. See Swallow v. State, 829 S.W.2d 223, 226 (Tex. Crim. App. 1992),
overruled in part by Randolph, 353 S.W.3d at 894-95 (distinguishing between prosecutorial
argument that defendant did not accept responsibility—a proper summation of the defendant’s
guilt/innocence testimony denying committing the crime—from argument that defendant did not
express remorse—an improper comment on the failure to testify at punishment).
We conclude, however, that the trial court’ s prompt, thorough, and proper instruction to the jury to entirely disregard the prosecutor’s argument cured the harm. DeLeon received a
sentence of thirty—two years—seven years above the minimum of twenty-five years permitted for the
offense of continuous sexual abuse of a child, but well below the maximum life sentence permitted.
See Tex. Penal Code § 2l.O2(h). Considering that the sexual abuse of the child found by the jury
16 was committed by an elementary school teacher——one entrusted with the safety and well—being of
children—we are confident that the jury was not inflamed by the improper comment and very likely
would have assessed the same punishment absent the misconduct. Hawkins, 135 S.W.3d at 77. The
trial court did not abuse its discretion by denying the motion for mistrial.
The sentence did not violate the constitution.
DeLeon contends that his punishment violates constitutional prohibitions against
cruel and unusual punishment because it does not have a possibility of parole. See Tex. Penal Code
§ 21.02(h); see also Tex. Gov’t Code § 508.l45(a). He notes that his minimum possible sentence
was twenty-five years in prison, while someone who murders a child could get as few as five years
in prison with a possibility of parole. See Tex. Penal Code § 12.32; Tex. Gov’t Code § 508.l45(t).
He contends that, because a child murderer sentenced to thirty-two years in prison would be
eligible for parole but he would not, his sentence is disproportionate to his crime. He contends that,
in assessing whether this categorical denial of parole to persons guilty of continuous child sexual
abuse is cruel and unusual, we should examine four factors: (1) whether there is a national
consensus against imposing the particular punishment at issue; (2) the moral culpability of the
offenders at issue in light of their crimes and characteristics; (3) the severity of the punishment; and
(4) whether the punishment serves legitimate penological goals. Meadoux v. State, 325 S.W.3d 189,
194 (Tex. Crim. App. 2010). He contends that murder is a worse crime than sexual abuse and that
Texas’s sentencing parameters are inconsistent with that hierarchy. He contends that the sentence
is severe because he will be incarcerated until he is in his late sixties.
The State leans on the conclusion by the Amarillo court that the punishment structure
for continuous sexual abuse of a child is constitutional, even when a person about forty years
17 of age is sentenced to a sixty—year prison term without the possibility of parole. Glover v. State,
406 S.W.3d 343, 346-50 (Tex. App.—Amarillo 2013, pet. ref d). The Amarillo court found a
national consensus in favor of the constitutionality of the sentencing range for this offense, primarily
based on the request by a judge on the Court of Criminal Appeals that the legislature enact tougher
punishment on those who commit continuous sexual assaults of children. See id. at 348 (citing
Dixon v. State, 201 S.W.3d 731, 737 (Tex. Crim. App. 2006) (Cochran, J., concurring)). The
Amarillo court wrote that—despite court holdings that murder is a more serious offense than child
sexual assault—the nature of the offense, its repetitive nature, and the vulnerability of child victims
combined to make the moral culpability of the offenders weigh in favor of the no—parole punishment
being constitutional. Glover, 406 S.W.3d at 348-49. The Amarillo court opined that the severity
of imprisonment for sixty years (in that case) without the possibility of parole weighed against the
constitutionality of the statute. Id. at 349. Finally, the Amarillo court opined that the mere fact that
the sentencing range for this offense is greater than that for child murder does not necessarily render
the sentencing range unconstitutional. Id. That court reasoned that those convicted of the crime are
already recidivists and opined that they are more likely to reoffend than murderers who, aside from
serial killers, tend not to reoffend. Id. at 349—50. The court held that the prison term without parole
served the penological goals of retribution, deterrence, and incapacitation. Id.
DeLeon has presented no evidence or argument that requires rejection of the Glover
opinion. The sentence imposed in this case—thirty—two years in prison—is substantially less than
the sixty—year prison term imposed on a similarly aged defendant in that case and found to be
constitutional. See id. at 345. We are not persuaded that the mere fact that a child sexual abuser might be sentenced to a longer prison term than a child murderer necessarily renders the sentencing
18 structure unconstitutional. Assuming that criminal behavior is affected by the punishment ranges
enshrined in law, we are somewhat concerned by the “incentive” inherent in a sentencing structure
that mandates a minimum sentence for a person who improperly sexually touches a child twice that
is five times longer than the five-year minimum sentence available for a person who murders that
same child, but we are not persuaded that our concern is sufficient to render the statutes or DeLeon’ s
sentence unconstitutional.
CONCLUSION Finding that DeLeon has presented no reversible error, we affirm the judgment.
Jeff Rose, Chief Justice
Before Chief Justice Rose, Justices Pernbeiton and Bourland
Affirmed
Filed: May 29, 2015 Do Not Publish
19 TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
JUDGMENT RENDERED MAY 29, 2015
NO. 03-13-00202—CR
APPEAL FROM 421ST DISTRICT COURT OF CALDWELL COUNTY BEFORE CHIEF JUSTICE ROSE, JUSTICES PEMBERTON AND BOURLAND AFFIRMED -- OPINION BY CHIEF JUSTICE ROSE
This is an appeal from the judgment entered by the trial court. Having reviewed the record and
the parties’ arguments, the Court holds that there was no reversible error in the trial court’s
judgment. Therefore, the Court affirms the trial court’s judgment. The appellant shall pay all
costs relating to this appeal, both in this Court and the court below. COURT OF APPEALS THIRD DISTRICT OF TEXAS PO. BOX I2547, AUSTIN, TEXAS 78711-2547 www,lxcourIs.g0v/3rdcoa.aspx (512) 463-1733
JEFF L. ROSE. CHIEF JUSTICE JEFFREY D. KYLE, CLERK DAVID PURYEAR, JUSTICE BOB PEMBERTON. JUSTICE MELISSA GOODWIN, JUSTICE SCOTT K. FIELD, JUSTICE CINDY OLSON BOURLAND, JUSTICE September 17, 2015
Ms. Kathryn T. Alsobrook Ms. Kerrisa J. Chelkowski Assistant Criminal District Attorney Law Office of Kerrisa Chelkowski Caldwell County, Texas 1017 South Alamo P. O. Box 869 ‘- San Antonio,TX 78210 Lockhait, TX 78644 * DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL *
RE: Court of Appeals Number: O3-13-00202~CR Trial Court Case Number: 20 I 2-1 66
Style: Steven DeLe0n v.The State of Texas
Dear Counsel:
Appellant's motion for rehearing was overruled by this Court on the date noted above.
Very truly yours,
JEFFREY D. KYLE, CLERK C QT‘ BY: -
e,/(4%?/kn Liz Talerico, Deputy Clerk