NUMBER 13-23-00293-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
KADIR GUNER, Appellant,
v.
THE STATE OF TEXAS, Appellee.
ON APPEAL FROM THE 187TH DISTRICT COURT OF BEXAR COUNTY, TEXAS
MEMORANDUM OPINION
Before Justices Longoria, Silva, and Peña Memorandum Opinion by Justice Peña
Appellant Kadir Guner appeals his conviction for sexual assault, a second-degree
felony. See TEX. PENAL CODE ANN. § 22.011(b)(1). After returning a verdict of guilty, a jury
sentenced Guner to eight years’ imprisonment. In two issues, Guner argues that (1) the
evidence was legally insufficient to support his conviction, and (2) the State made improper jury arguments during closing. We affirm. 1
I. BACKGROUND
Guner was indicted with one count of sexual assault. See id. The indictment
alleged that on or about February 27, 2018, Guner
intentionally and knowingly cause[d] the SEXUAL ORGAN of [Jane] 2 . . . to CONTACT the SEXUAL ORGAN 3 of [Guner], said act having been committed without the consent of [Jane], in that [Guner] COMPELLED [Jane] TO SUBMIT AND PARTICIPATE BY THE USE OF PHYSICAL FORCE AND VIOLENCE[.]
A jury trial was commenced on February 28, 2023, at which the following evidence
was adduced, among which was the testimony of Jane, who was twenty-three years old
at the time of testifying. In February of 2018, when Jane was eighteen years old, her
friend Karen arranged for Jane to interview at a Turkish restaurant with Guner, the
restaurant manager. After interviewing with Guner, Jane was offered the job and asked
to report to work the following day. Jane testified that for the first few hours of her first day
everything was fine, and she mostly shadowed her friend Karen. At some point, Guner
told Karen to take a break. Guner shortly thereafter asked the two remaining employees
in the restaurant to take their breaks. Jane testified that she was sitting alone in one of
the restaurant’s booths when Guner came to sit at the same booth across from her to
talk. The conversation became concerning to Jane when Guner asked her if she had a
1 This case is before this Court on transfer from the Fourth Court of Appeals in San Antonio pursuant to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.
2 To protect the identity of the complainant, we refer to her and her friend by fictitious names. See
TEX. CONST. art. I, § 30(a)(1) (providing that a crime victim has “the right to be treated . . . with respect for the victim’s dignity and privacy throughout the criminal justice process”). 3 The indictment also alleged contact of Jane’s sexual organ by Guner’s mouth. The State omitted
this language from the jury charge without objection. 2 boyfriend, which she felt was “inappropriate.” Guner then stood up and moved to sit next
to Jane. Jane testified that Guner put “his hand on my back,” and was talking to her, “[a]nd
that’s when he also grabbed my face and then proceeded to kiss me.” Guner “then said
we should go into the back to the storage room.” He then turned off the restaurant’s “open”
sign and walked her to the back to the storage room by putting “[h]is hand” “on [her] back.”
According to Jane, Guner also locked the door. Jane testified that as this was happening
she felt “[v]ery scared,” and that she had realized that something was wrong because
Guner had sent everybody on a break. According to Jane, she felt that she did not “have
power, didn’t have a say,” and she “just kind of . . . shut down.”
After walking to the storage room, Guner “just starts kissing” Jane. Guner then
lifted up Jane’s shirt, and “start[ed] kissing [Jane] on [her] chest,” including her breasts.
Guner then told Jane to lay down. Jane then began “pulling down [her] pants,” and Guner
“pulled them down . . . to [her] ankles.” It was during this time that Jane told Guner to
“please stop,” and that she “just want[ed] to go home.” With Jane now laying down, Guner
inserted his penis into her vagina, and then ejaculated into a rag in the storage room.
Guner told Jane to go to the restroom to clean herself up. Jane then went to the restroom
to clean herself and cried. After returning to the main restaurant area, Guner asked Jane
to sit next to him, and he began saying things that troubled her. For example, after telling
Jane that he would need her to go purchase supplies for the restaurant, Guner “said he
wanted to pick [her] up and take [her] to a hotel room and that [they] could finish there.”
Jane testified that “he also just made comments about [her] getting his name tattooed on
[her] and saying that he wanted [her] to have his children.”
Jane then stood up to get her phone charger, at which point she texted Karen for
3 help. 4 Jane then went to the bathroom and called her mother and informed her that her
“manager did something to [her] that he shouldn’t have,” and asking her mother to pick
her up. Jane then left through the back of the restaurant to a store nearby, where she
waited until law enforcement arrived. On cross-examination, defense counsel challenged
Jane’s recollection of events, especially her testimony that she told Guner to stop and
that she wanted to go home. Jane admitted that she did not push or otherwise use any
physical force to get Guner to stop the assault. She also affirmed that Guner “didn’t
threaten” her or “use any physical force to get” her to the storage room.
In the Sexual Abuse Nurse Examiner’s (SANE) Report entered into evidence, Jane
reported that Guner “turned [her] face and stuck his tongue in [her] mouth,” when they
were first sitting at the restaurant booth. After Guner “locked the front door,” Guner began
kissing her again and “lifted [her] shirt and started kissing [her] breast.” The SANE Report
also details how Jane left the restaurant and ran to the store nearby, where she told a
female employee that “my boss had just raped me.” At the close of evidence, a jury
returned a verdict of guilty and sentenced Guner to eight years’ imprisonment. This
appeal followed.
II. SUFFICIENCY OF THE EVIDENCE
By his first issue, Guner argues that the evidence was legally insufficient to
establish that he committed sexual assault “by physical force or violence,” as charged in
the indictment. Pointing to the language of the sexual assault statute, which allows sexual
4 A copy of these text messages were entered into evidence. In these texts, Jane tells Karen to
come pick her up, stating “He kissed me,” “It’s just us,” “Please hurry,” “I don’t know what to do,” “He doesn’t know I’m texting you,” “Just stay with me[,] Till my mom comes,” and “Hurry[,] He wants me to leave with him.” 4 assault to be proven by either “physical force, violence, or coercion,” Guner argues that
the evidence against him is insufficient as charged because, at most, he is guilty of sexual
assault by coercion, which was not one of the alternatives charged in the indictment. See
TEX. PENAL CODE ANN. § 1.07(a)(9) (defining “coercion” as a “threat, however
communicated,” to “commit an offense,” “to inflict bodily injury in the future on the person
threatened or another,” “to accuse a person of any offense,” “to expose a person to
hatred, contempt, or ridicule,” “to harm the credit or business repute of any person,” or “to
take or withhold action as a public servant, or to cause a public servant to take or withhold
action”).
Further, Guner argues that the State, by alleging in the indictment that he
committed sexual assault through compulsion by use of “physical force and violence,”
was subsequently required to satisfy a higher evidentiary burden than would be the case
if the indictment had used those terms in the disjunctive. During the charge conference,
defense counsel objected to the inclusion of the phrase “physical force or violence” in the
jury charge and argued that the jury charge was required to conform to the indictment.
Defense counsel argued that the use of the disjunctive “would allow the jury to convict on
proof different from, less than, that required to prove the allegation” in the indictment. The
trial court overruled Guner’s objection.
A. Standard of Review & Applicable Law
“Under the Due Process Clause, a criminal conviction must be based on legally
sufficient evidence.” Harrell v. State, 620 S.W.3d 910, 913 (Tex. Crim. App. 2021) (citing
Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015)). Evidence is legally
sufficient if “any rational trier of fact could have found the essential elements of the crime
5 beyond a reasonable doubt.” Joe v. State, 663 S.W.3d 728, 731–32 (Tex. Crim. App.
2022) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Under a legal sufficiency
review, we view the evidence in the light most favorable to the verdict, while recognizing
that “[t]he trier of fact is responsible for resolving conflicts in the testimony, weighing the
evidence, and drawing reasonable inferences from basic facts to ultimate facts.” Id. at
732; see Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (noting that “the
reviewing court is required to defer to the jury’s credibility and weight determinations”).
We need not “disprove all reasonable alternative hypotheses that are inconsistent with
the defendant’s guilt,” but rather we consider “only whether the inferences necessary to
establish guilt are reasonable based upon the cumulative force of all the evidence when
considered in the light most favorable to the verdict.” Wise v. State, 364 S.W.3d 900, 903
(Tex. Crim. App. 2012) (citations omitted).
We measure the evidence produced at trial against the essential elements of the
offense as defined by a hypothetically correct jury charge. David v. State, 663 S.W.3d
673, 678 (Tex. Crim. App. 2022) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.
App. 1997)). “A hypothetically correct jury charge ‘accurately sets out the law, is
authorized by the indictment, does not unnecessarily increase the State’s burden of proof
or unnecessarily restrict the State’s theories of liability, and adequately describes the
particular offense for which the defendant was tried.’” Id. (quoting Malik, 953 S.W.2d at
240). The “law” as “authorized by the indictment” includes the statutory elements of the
offense as modified by the charging instrument. Curry v. State, 30 S.W.3d 394, 404 (Tex.
Crim. App. 2000).
“[A]lthough the indictment may allege the differing methods of committing the
6 offense in the conjunctive, it is proper for the jury to be charged in the disjunctive.”
Williams v. State, 474 S.W.3d 850, 855 (Tex. App.—Texarkana 2015, no pet.) (quoting
Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991)); see, e.g., Hernandez v.
State, 470 S.W.3d 862, 867 (Tex. App.—Fort Worth 2015, pet. ref’d) (“[A]lthough the
State alleged in the indictment that Appellant ‘intentionally or knowingly threaten[ed]
Indalacio Quintero with imminent bodily injury by pointing a firearm at Indalacio Quintero
and threatening to shoot Indalacio Quintero,’ the jury charge properly asked the jury
whether Appellant ‘intentionally or knowingly threaten[ed] Indalacio Quintero with
imminent bodily injury by pointing a firearm at Indalacio Quintero or threatening to shoot
Indalacio Quintero.’”).
A sexual assault is without the consent of the other person if “the actor compels
the other person to submit or participate by the use of physical force, violence or
coercion[.]” TEX. PENAL CODE ANN. § 22.011(b)(1). The terms “force” and “violence” are
not defined in the penal code “and so we interpret those terms in accordance with their
ordinary meaning.” See Dobbs v. State, 434 S.W.3d 166, 171 (Tex. Crim. App. 2014).
The dictionary definition of “force” includes “strength or energy exerted or brought to bear”
and “violence” includes “exertion of physical force so as to injure or abuse.” MERRIAM–
WEBSTER’S COLLEGIATE DICTIONARY 489, 1396 (11th ed. 2008); see also Arredondo v.
State, No. 04-08-00248-CR, 2009 WL 1900416, at *4 (Tex. App.—San Antonio July 1,
2009, pet. ref’d) (mem. op., not designated for publication). “Under the terms of this
statute, the emphasis is placed upon the actor’s compulsion rather than the victim’s
resistance.” Carbajal v. State, 659 S.W.3d 164, 180 (Tex. App.—El Paso 2022, pet. ref’d)
(citing Barnett v. State, 820 S.W.2d 240, 241 (Tex. App.—Corpus Christi–Edinburg 1991,
7 pet. ref’d)). “The State is not required to demonstrate any certain threshold of force used
to compel the victim’s submission, only that the defendant used some force.” Id. (citations
omitted). “Physical injury to the victim is not required to prove that the actor compelled a
victim to participate through force.” Id. (citations omitted). “The degree of physical
resistance by a victim does not render the evidence insufficient to prove the lack of
consent.” Gonzales v. State, 2 S.W.3d 411, 415 (Tex. App.—San Antonio 1999, no pet.).
“Rather, the issue is whether sufficient evidence exists to show appellant compelled the
victim’s submission by actual force.” Id.
“The facts in each individual case determines whether force was used,” Gonzales,
2 S.W.3d at 415, and the fact-finder considers “the totality of the factual circumstances in
determining whether [the victim] consent[ed].” Brown v. State, 576 S.W.2d 820, 823 (Tex.
Crim. App. 1978); see also Arredondo, No. 04-08-00248-CR, 2009 WL 1900416, at *1.
“A sexual-assault complainant’s uncorroborated testimony alone is sufficient to support a
conviction for sexual assault if the complainant informed any person, other than the
defendant, of the offense within one year after the date on which the offense is alleged to
have occurred.” Carbajal, 659 S.W.3d at 180 (citing TEX. CODE CRIM. PRO. ANN. art.
38.07(a)).
B. Discussion
There is no dispute that Jane informed another person of the offense within one
year after the date on which it was alleged to have occurred, and consequently Jane’s
uncorroborated testimony alone may be sufficient to support Guner’s conviction. See id.
As to Jane’s testimony, although she affirmed on cross-examination that Guner did not
“threaten” her or use “physical force” during the offense, her testimony in its entirety
8 sufficiently alleged the use of physical force. See Maciel v. State, 631 S.W.3d 720, 725
(Tex. Crim. App. 2021) (noting that it “seems unreasonable to focus” on a witness’s
responsive testimony to questions using undefined terms from a statute in order to infer
the existence or non-existence of the corresponding statutory element). For example, in
Barnett, we found evidence “sufficient to indicate force” where the male victim testified
“that appellant straddled his chest, moved [his] head apparently in a thrusting motion, and
pushed [his] head back down when he attempted to get up[.]” 820 S.W.2d at 241. We
found the victim’s testimony sufficient even though he testified on cross-examination that
appellant did not “force” him to engage in sexual contact. Id. The victim also
acknowledged that he was physically able to leave the situation, and could have asked
for help, but did not because he was “afraid” and felt “scared to death.” Id.
Jane testified that Guner “grabbed” her face and “proceeded to kiss” her when she
was first sitting at the restaurant booth. She testified that Guner “put his hand on [her]
back” as he guided her to the back of the restaurant. She testified that once at the storage
room, Guner “just start[ed] kissing” her. Jane testified that Guner lifted up her shirt and
“start[ed] kissing [her] on [her] chest,” including her breasts. Guner then told Jane to lay
down. Jane then began “pulling down [her] pants,” and Guner “pulled them down . . . to
[her] ankles.” At this point Jane told Guner to “please stop,” and that she “just want[ed] to
go home.” Jane testified that once she was laying down, Guner then “got in between [her]
legs, and then he inserted himself inside” her. All these statements describe “strength or
energy exerted or brought to bear” upon Jane’s person, and describe acts amounting to
the use of actual force. See Gonzales, 2 S.W.3d at 415.
Further, Jane testified that Guner’s actions made her feel unable to leave. See
9 Barnett, 820 S.W.2d at 241. Jane testified that she remembered “just standing there, like
just letting him like do what he did.” As Guner was guiding her to the storage room, Jane
testified that she was “very scared,” as if she had no power, and that she sort of “shut
down.” When he was kissing her chest, Jane testified that she “just felt frozen almost.”
These statements indicate compulsion by use of actual force. See id; Gonzales, 2 S.W.3d
at 415. Also, the jury was presented with Jane’s contemporaneous statement to an
employee at a nearby store that she was “raped,” which implies the use of force. See
Limonta-Diaz v. State, 593 S.W.3d 447, 457 (Tex. App.—Austin 2020, pet. ref’d) (finding
sufficient evidence of “force” to sustain sexual assault conviction based, in part, on the
fact that the victim “told her brother that she had been ‘raped,’ which is a term that implies
force used to compel sexual activity against a person’s will”).
We find further support for our conclusion that the evidence was sufficient in the
fact that Guner’s interpretation of the force required under the sexual assault statute is
inconsistent with the legislature’s intent in repealing Texas’s old rape statute, which had
required that the State prove that a defendant compelled submission “by force that
overcomes such earnest resistance as might reasonably be expected under the
circumstances.” Bannach v. State, 704 S.W.2d 331, 332 (Tex. App.—Corpus Christi–
Edinburg 1986, no pet.). As this Court has explained,
By eliminating the “resistance” language from [§ 22.011], the legislature appears to have shifted the emphasis from the victim’s resistance to the actor’s compulsion. By merely stating that, if the actor’s use of physical force or violence compels the victim to submit, the “without consent” standard is satisfied, the legislature has made it easier for the State to prove lack of consent.
Id. at 332–33 (emphasis added). 10 Guner’s overarching argument that the evidence is insufficient in this case because
Guner did not use enough force is consequently without merit. By eliminating the
requirement of victim resistance, the legislature detached the term “force” from its
definitional relation to such resistance. See id. In other words, while under the prior rape
statute the question was whether a defendant used enough force to overcome the victim’s
resistance, under the present sexual assault statute, the question is whether physical
force was used at all, without qualification. For this reason, “[t]he State is not required to
demonstrate any certain threshold of force used to compel the victim’s submission, only
that the defendant used some force.” Carbajal, 659 S.W.3d at 180 (emphasis added).
Further, we are not persuaded by Guner’s argument that the evidence was
insufficient because the State was required to prove the use of physical force and
violence, which Guner argues implies a higher evidentiary burden. Although an indictment
may allege different methods of committing the offense in the conjunctive, it is proper for
a jury to be charged in the disjunctive. Williams, 474 S.W.3d at 855; see, e.g., Gonzales,
2 S.W.3d at 414 (conducting a sufficiency review of a conviction for sexual assault by use
of “physical force or violence” where the indictment alleged the use of “physical force and
violence”); see also Gil v. State, No. 08-05-00108-CR, 2007 WL 926470, at *6 (Tex.
App.—El Paso Mar. 29, 2007, no pet.) (not designated for publication) (finding sufficient
evidence that appellant “compelled the victim’s submission by the use of physical force
or violence,” where the indictment alleged the use of “physical force and violence”).
Viewing the evidence in the light most favorable to the verdict, and deferring to the
jury’s credibility determinations, see Joe, 663 S.W.3d at 731–32, we conclude that a
11 rational trier of fact could have found Guner guilty beyond a reasonable doubt based on
the combined and cumulative force of the evidence along with the reasonable inferences
drawn from it. See Wise, 364 S.W.3d at 903; Limonta-Diaz, 593 S.W.3d at 457 (finding
sufficient evidence of the use of “physical force” where victim testified that appellant “was
on top of her while she was on her back in the back seat of his car,” and felt “pinned
down”); Horne v. State, 46 S.W.3d 391, 394 (Tex. App.—Fort Worth 2001, pet. ref’d)
(finding sufficient evidence of the use of force where the evidence showed that appellant
had the victim “pinned to her bed so that she was unable to move,” where the victim
pleaded with the appellant to stop his assault, and where he “continued to grope her and
penetrate her vagina with his finger”); see also Gonzales v. State, No. 05-02-00702-CR,
2003 WL 1647183, at *2 (Tex. App.—Dallas Mar. 31, 2003, pet. ref’d) (not designated for
publication) (finding sufficient evidence of compulsion by use of force where victim
testified that “appellant pulled down her shorts and underwear, put her on the trunk of his
car, pulled her legs apart, and kissed and licked her vagina,” and when “she refused to
lie on the ground, appellant pulled her down to the ground and tried to insert his penis
into her vagina”). We overrule Guner’s first issue.
III. IMPROPER JURY ARGUMENT
By his second issue, Guner argues that the prosecutor “repeatedly misstated the
law” during closing argument. During the State’s closing, Guner objected to the
prosecutor’s supposed misstatement of law as to the use of force required for conviction
when he said that “[a]ll that’s required is some sort of physical touching.” Defense counsel
also objected to the prosecutor’s reference to Jane as a “young girl” because she was
eighteen at the time of the sexual assault and twenty-three when she testified. Guner
12 otherwise complains of the prosecutor’s insinuations that Jane was compelled to submit
by coercion, arguing that such argument was improper because coercion was not one of
the alternative methods of sexual assault charged by the State.
Although the trial court failed to sustain any of Guner’s objections, defense counsel
was able to counter the State’s theory of the case in her own closing. For example,
defense counsel argued that if the jury believed that Guner only coerced Jane, then it
must return a not guilty verdict. As defense counsel explained, “If you think that she was
coerced in some manner, . . . that’s still a not guilty. It’s not in the indictment. It doesn’t
say coerced. It says physical force. They put it up there.”
Closing arguments serve “to facilitate the jury in properly analyzing the evidence
presented at trial so that it may ‘arrive at a just and reasonable conclusion based on the
evidence alone, and not on any fact not admitted in evidence.’” Milton v. State, 572
S.W.3d 234, 239 (Tex. Crim. App. 2019) (quoting Campbell v. State, 610 S.W.2d 754,
756 (Tex. Crim. App. 1980) (panel op.)); see also Thompson v. State, 89 S.W.3d 843,
850 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (“The law provides for, and
presumes, a fair trial free from improper argument by the State.”). Proper prosecutorial
argument should generally fall within one of the following categories: (1) summation of
the evidence; (2) reasonable deductions from the evidence; (3) answer to argument of
opposing counsel; and (4) pleas for law enforcement. Brown v. State, 270 S.W.3d 564,
571 (Tex. Crim. App. 2008); Cantu v. State, 944 S.W.2d 669, 671 (Tex. App.—Corpus
Christi–Edinburg 1997, pet. ref’d). “In examining challenges to jury argument, th[e] Court
considers the remark in the context in which it appears. Counsel is allowed wide latitude
13 without limitation in drawing inferences from the evidence so long as the inferences drawn
are reasonable, fair, legitimate, and offered in good faith.” Gaddis v. State, 753 S.W.2d
396, 398 (Tex. Crim. App. 1988).
We review a trial court’s rulings on objections as to the proper scope of closing
arguments for an abuse of discretion. See Milton, 572 S.W.3d at 240; Vasquez v. State,
484 S.W.3d 526, 531 (Tex. App.—Houston [1st Dist.] 2016, no pet.). A trial court abuses
its discretion when it acts without reference to any guiding rules and principles or when it
acts arbitrarily or unreasonably. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App.
2019) (citing Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)).
Therefore, we will uphold a trial court’s ruling on admissibility if it is within the “zone of
reasonable disagreement.” Inthalangsy v. State, 634 S.W.3d 749, 754 (Tex. Crim. App.
2021) (quoting Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001)). Further,
when analyzing an appellant’s argument on appeal, “[w]e generally presume the jury
follows the trial court’s instructions in the manner presented.” Colburn v. State, 966
S.W.2d 511, 520 (Tex. Crim. App. 1998) (noting that the presumption is rebuttable).
Improper jury argument generally constitutes non-constitutional error. See
Martinez v. State, 17 S.W.3d 677, 692 (Tex. Crim. App. 2000) (en banc) (“[M]ost [jury
argument] that fall outside the areas of permissible argument will be considered to be
error of the non[-]constitutional variety.”). A non-constitutional error “that does not affect
substantial rights must be disregarded.” Freeman v. State, 340 S.W.3d 717, 728 (Tex.
Crim. App. 2011); see Brown , 270 S.W.3d at 570 (concluding that even when the State
makes an improper jury argument, it is error to deny a mistrial only if the argument is
“extreme or manifestly improper”). A substantial right is affected if the error had a
14 substantial and injurious effect or influence in determining the jury’s verdict. Cook v. State,
665 S.W.3d 595, 599 (Tex. Crim. App. 2023).
As previously noted, it is not entirely clear that the prosecutor’s statement that “all
that is required is some sort of physical touching” is incorrect as a matter of law. See
Carbajal, 659 S.W.3d at 180 (“The State is not required to demonstrate any certain
threshold of force used to compel the victim’s submission, only that the defendant used
some force.”). At the very least, given the fact that the term “physical force” is left
undefined in the statute, the trial court’s overruling of Guner’s objection was within the
zone of reasonable disagreement. See Inthalangsy, 634 S.W.3d at 754. For similar
reasons, given the non-legally significant phrase “young girl,” as opposed to legally
significant terms like “minor,” we cannot conclude that the trial court acted outside the
zone of reasonable disagreement in allowing the prosecutor to refer to Jane, who was
eighteen at the time of the offense and twenty-three when she was testifying, as a “young
girl.” See Id.; Milton, 572 S.W.3d at 240.
As to Guner’s complaints that the prosecutor impermissibly argued a coercion
theory of sexual assault to the jury, such a claim is also without merit. First, the prosecutor
never said that the jury could convict based solely on a coercion theory. Guner suggests
that by referring to certain words in closing argument, such as “control,” “intimidation,”
and “manipulation,” the prosecutor impermissibly sought to sway the jury to convict him
based on an uncharged coercion theory of sexual assault. Guner provides no authority
for the proposition that certain words are off-limits during closing argument simply
because they may possibly be associated with an uncharged alternative. See TEX. R.
15 APP. P. 38.1(i); Wolfe v. State, 509 S.W.3d 325, 343 (Tex. Crim. App. 2017) (“An appellate
court has no obligation to construct and compose an appellant’s issues, facts, and
arguments with appropriate citations to authorities and to the record.” (cleaned up)). At
the very least, permitting the prosecutor to use words such as “control,” “intimidation,”
and “manipulation,” was within the zone of reasonable disagreement given the State’s
ability to “facilitate the jury in properly analyzing the evidence presented at trial.” Milton,
572 S.W.3d at 239; see Inthalangsy, 634 S.W.3d at 754.
Even if we were to assume an abuse of discretion as to the supposed references
to an uncharged alternative, 5 Guner has failed to show how the complained-of
statements by the prosecutor had a “substantial and injurious effect or influence” on the
jury’s verdict. Cook, 665 S.W.3d at 599. We must presume that the jury followed its charge
and convicted Guner based on the use of “physical force or violence,” and not “coercion.”
See Colburn, 966 S.W.2d at 520. The charge instructed the jury that “the statements of
counsel made during the course of the trial or during the argument, if not supported by
evidence, or statements of law made by counsel[,] if not in harmony with the law as stated
to you by the Court in these instructions, are to be wholly disregarded.” We must presume
that the jury followed this instruction. See id. Given the scant support for Guner’s
contention that the State urged the jury to convict on an uncharged alternative, and in
light of the unrebutted presumption that the jury followed the trial court’s instructions, we
5 Guner argues that “his substantial rights were violated by the state’s improper closing argument
that advocated for a conviction based on a legal theory that was not alleged in the indictment.” Guner does not similarly claim that his substantial rights were violated by the prosecutor’s statements that “force” only requires “some sort of physical touching,” and referring to Jane as “young girl.” Accordingly, any such argument that those statements violated Guner’s substantial rights has been waived. See TEX. R. APP. P. 38.1(i); Wolfe v. State, 509 S.W.3d 325, 343 (Tex. Crim. App. 2017). 16 conclude that the complained-of statements were not “extreme or manifestly improper,”
Brown, 270 S.W.3d at 570, and did not otherwise have a “substantial and injurious effect
or influence” on the jury’s verdict. Cook, 665 S.W.3d at 599. We overrule Guner’s second
issue.
VII. CONCLUSION
We affirm the trial court’s judgment.
L. ARON PEÑA JR. Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed on the 14th day of November, 2024.