PD-0230-15
PD-0230-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS
Transmitted 3/2/2015 12:00:00 AM PD No. Accepted 3/2/2015 2:14:02 PM ABEL ACOSTA
CLERK
IN THE COURT OF CRIMINAL APPEALS AT AUSTIN, TEXAS
ROBERT THORNBURG, JR. § Appellant § § CAUSE NO. 11-12-00328-CR V. § TRIAL COURT NO. 21,718 §
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- 897-8126 Fax. 512-215-8144
March 2, 2015 email: ecopeland63@yahoo.com
ERIKA COPELAND State Bar No. 16075250 Attorney for Appellant
TABLE OF CONTENTS
Page
Table of Contents i
Index of Authorities/Identity of Trial Court and Parties ii-iv
Statement Regarding Oral Argument 1
Statement of the Case 2
Statement of the Procedural History of the Case 3
Ground for Review 3
The trial court not only allowed the state to describe appellant as a “sociopath” over objection where there was no testimony, expert or otherwise, to that effect, it also commented that the state’s argument was a reasonable inference from the evidence. Did the Court of Appeals’ decision supporting that ruling encourage the use of the epithet any time a defendant denies guilt? (See R.R. 5, pp.135-136, and Shannon v. State, 942 S.W. 2d 591, 597 (Tex. Crim. App.1996).
Summary of the Argument 3
Background 4
Statement of Pertinent Evidence 5
Court of Appeals’ Decision 6
Argument 7
Prayer 13
Certificate of Service and of Compliance with Rule 9 14
i
INDEX OF AUTHORITIES
Authorities Page
Texas Court of Criminal Appeals’ cases
Berry v. State 9 233 S.W.3d 847 (Tex. Crim. App. 2007)
Borjan v. State 8 787 S.W.2d 53 (Tex. Crim. App. 1990)
Brown v. State 10,11 122 S.W.3d 794 (Tex. Crim. App. 2003)
Brown v. State 8 270 S.W.3d 564 (Tex. Crim. App. 2008)
Freeman v. State 8 340 S.W.3d 717 (Tex. Crim. App. 2011)
Guidry v. State 8 9 S.W.3d 133 (Tex. Crim. App. 1999)
Kepp v. State 8 876 S.W.2d 330 (Tex. Crim. App. 1994)
Mosley v. State 9 983 S.W.2d 249 (Tex. Crim. App. 1998)
Shannon v. State 3,9,10, 942 S.W. 2d 591 (Tex. Crim. App.1996) 12,13
ii
INDEX OF AUTHORITIES, continued
Authorities Page
Court of Appeals cases
Bachus v. State 11 803 S.W.2d 402 (Tex. App. – Dallas 1991, pet. ref’d)
Cifuentes v. State 8 983 S.W.2d 891 (Tex. App. – Houston [1st Dist.] 1999, pet. ref’d)
Clark v. State 11 878 S.W.2d 224 (Tex. App. – Dallas 1994, no pet.)
Davis v. State 9 894 S.W.2d 471 (Tex. App. – Fort Worth 1995, no pet.)
Joung Youn Kum v. State 12 331 S.W.3d 156 (Tex. App. – Houston [14th Dist.]
2011, pet. ref’d)
Morrow v. State 9 757 S.W.2d 484 (Tex. App. – Houston [1st Dist.] 1988, pet. ref’d)
Spurlock v. State 6 No. 11-11-00010-CR, 2013 WL 205388 at 6 (Tex. App. – Eastland January 18, 2013, no pet.)
Statutes
TEX. PENAL CODE §22.011 (West 2011) 3
iii
IDENTITY OF TRIAL COURT AND PARTIES
TO THE HONORABLE COURT OF APPEALS:
NOW COMES Robert Thornburgh, Jr., Appellant, and would show the
Court the trial court and interested parties herein are as follows:
HON. STEPHEN ELLIS, Judge Presiding, 35th Judicial District
Court, Brown County, Texas.
ROBERT THORNBURGH, JR., Appellant, TDCJ Number 01915283,
Bill Clements Unit, 9601 Spur 591, Amarillo, Texas 79107.
RANDY TAYLOR, Trial Attorney for Appellant, 205 Center Avenue,
Brownwood, Texas 76801.
ERIKA COPELAND, Appellate Attorney for Appellant, 930 S. Bell
Blvd., Suite 408, Cedar Park, Texas 78613.
SAM C. MOSS, Brown County Assistant District Attorney, Trial
Attorney for Appellee, the State of Texas, 200 South Broadway, Brownwood,
Texas 76801.
MICHAEL MURRAY, Brown County District Attorney, Appellate
Attorney for Appellee, the State of Texas, 200 South Broadway, Brownwood,
Texas 76801.
-iv-
STATEMENT REGARDING ORAL ARGUMENT
Appellant believes the clarity of the issue in this case is such that oral
argument would add nothing.
Petition for Discretionary Review Robert Thornburg, Jr. v. The State of Texas No. 11-12-00328-CR 1
PD No.
IN THE COURT OF CRIMINAL APPEALS AT AUSTIN, TEXAS
ROBERT THORNBURGH, JR. § Appellant § § CAUSE NO. 11-12-00328-CR V. § TRIAL COURT NO. 21,718 §
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)
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:
STATEMENT OF THE CASE
A jury convicted Robert Thornburgh, Jr. of two counts of sexual
assault of a child. See TEX. PENAL CODE §22.011 (West 2011).
Thornburgh pleaded true to two enhancement allegations, and the trial court
assessed his punishment for each count at confinement in the Texas
Petition for Discretionary Review Robert Thornburg, Jr. v. The State of Texas No. 11-12-00328-CR 2
Department of Criminal Justice’s Institutional Division for life, with the
sentences to be served consecutively. (C.R. 1, pp. 122-123 and R.R. 6, pp.
169-170).
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE
The Eleventh Court of Appeals at Eastland, Texas, by Memorandum
Opinion dated February 5, 2015, affirmed Thornburgh’s convictions and
sentences. A copy of that opinion is hereto attached as if fully incorporated
herein at length.
GROUND FOR REVIEW
The trial court not only allowed the state to describe appellant as a
“sociopath” over objection where there was no testimony, expert or
otherwise, to that effect, it also commented that the state’s argument was a
reasonable inference from the evidence. Did the Court of Appeals’ decision
supporting that ruling encourage the use of the epithet any time a defendant
denies guilt? (See R.R. 5, pp.135-136, and Shannon v. State, 942 S.W. 2d
591, 597 (Tex. Crim. App.1996).
SUMMARY OF THE ARGUMENT
In final argument, the trial court overruled the defense objection to the
state’s use of the epithet “sociopath” in describing Thornburgh. It also
commented that the state was entitled to make reasonable inferences from
Petition for Discretionary Review Robert Thornburg, Jr. v. The State of Texas No. 11-12-00328-CR 3 the evidence thus suggesting to the jury that the epithet was justified. There
was no testimony, expert or otherwise, that Thornburgh was a sociopath.
The Court of Appeals, in its opinion supporting the trial court’s ruling,
suggests that the epithet may be used anytime a defendant’s character or
veracity is questioned by the prosecution.
BACKGROUND
In 2006, Thornburgh was alleged to have entered into a sexual
relationship with a fourteen-year-old girl. V.A. testified that she had met
Thornburgh after he moved in with his sister – who was the mother of
V.A.’s friend. (R.R. 3, pp. 23-27). After an initial sexual encounter in
Thornburgh’s bedroom, V.A. said that she and Thornburgh thereafter began
a relationship that included sexual intercourse on a regular basis. (R.R. 3,
pp. 43-45). V.A. testified that she moved to Waco in November 2006, when
her parents moved her to live with an aunt. V.A. testified that she returned
to Coleman in 2007, but by then Thornburgh had begun a relationship with
another girlfriend. V.A. said that she met Thornburgh one last time and had
sexual intercourse in May, 2010, when she was nineteen and pregnant with
her first child. (R.R. 3, pp. 50-51). After the birth of that baby, she testified,
Child Protective Services (CPS) became involved with her family, and
during a visit by a caseworker, V.A. said she told CPS about her prior
Petition for Discretionary Review Robert Thornburg, Jr. v. The State of Texas No. 11-12-00328-CR 4 relationship with Thornburgh. A criminal investigation ensued that resulted
in the instant convictions. (R.R. 3, pp. 53-56).
Thornburgh denied that he sexually assaulted V.A. or that he acted in
any way inappropriately with her. His specifically denied certain details of
V.A.’s story. He concluded his defense by saying that V.A. and her friends
had fabricated the allegations against him, that “all these people were lying”,
that certain events were taken out of context, and that others had never
occurred. (R.R. 3, pp. 295-297).
STATEMENT OF PERTINENT EVIDENCE
During the State’s argument on guilt-innocence, the prosecutor called
Thornburgh a “sociopath.” Defense counsel objected and requested a
mistrial. (R.R. 5, p. 135). The trial court denied the mistrial whereupon
Thornburgh’s counsel asked that the jury “be told to disregard” the State’s
use of the term. The trial court responded as follows: “Overruled. This is
final argument. You can argue any reasonable inference in the case. There
has been no testimony from anyone about being a sociopath, but this is final
argument. You may argue if you think the evidence tends to indicate your
view of the case. You may proceed.” (R.R. 5, pp. 135-136). The following
exchange occurred as the State resumed its argument:
Petition for Discretionary Review Robert Thornburg, Jr. v. The State of Texas No. 11-12-00328-CR 5
STATE: That’s why I’m arguing that. That’s a
person that can’t tell you the truth. That is a person that
can’t comport - -
DEFENSE COUNSEL: Objection, Your Honor.
STATE: - - what the community expects out of us.
DEFENSE COUNSEL: Now he is testifying to
the jury. There is no evidence in this trial whatsoever
that an expert has given a sociopath definition.
THE COURT: And that is true and the jury is so
instructed, but final argument is not confined to just the
evidence. It’s also reasonable inferences that can be
drawn from the evidence. The attorneys can attempt to
point those out.
You may do so.
– (R.R. 3, p. 136).
COURT OF APPEALS’ DECISION
a. Jury Argument
The Court of Appeals held that the prosecution assertion that
Thornburgh was a “sociopath” constituted a “reasonable inference from the
evidence” and thus “was not improper.” (Slip op. at 6 citing Spurlock v.
Petition for Discretionary Review Robert Thornburg, Jr. v. The State of Texas No. 11-12-00328-CR 6
State, No. 11-11-00010-CR, 2013 WL 205388 at 6 (Tex. App. – Eastland
January 18, 2013, no pet.)). The use of the term, the Court of Appeals noted,
“was intended to demonstrate the repeated misstatements by Appellant in
cross-examination and to urge the jurors to make reasonable inferences and
deductions from the evidence.” (Slip op. at 7).
b. Comment on the Weight of the Evidence
Thornburgh also argued before the appellate court that the trial court’s
remarks, when it overruled his objection to the State’s use of the epithet,
constituted an impermissible comment on the weight of the evidence. The
Court of Appeals disagreed. That appellate court held that the trial court’s
comment – that in closing arguments the State may make reasonable
inferences from the evidence – “merely stated a correct rule of law.” (Slip
op. at 8). Thus, the Court of Appeals reasoned, the comment “cannot be
seen as tainting Appellant’s presumption of innocence or vitiating the
impartiality of the jury. . . .” (Slip op. at 8).
ARGUMENT
Permissible Areas for Jury Argument
As this Court well knows, there are four permissible areas for jury
argument: (1) summation of the evidence; (2) reasonable deductions from
the evidence; (3) an answer to the argument of opposing counsel; and (4) a
Petition for Discretionary Review Robert Thornburg, Jr. v. The State of Texas No. 11-12-00328-CR 7 plea for law enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim.
App. 2008). Cifuentes v. State, 983 S.W.2d 891, 895 (Tex. App. – Houston
[1st Dist.] 1999, pet. ref’d). “The law provides for, and presumes a fair trial,
free from improper argument by the prosecuting attorney.” Cifuentes, 983
S.W.2d at 895. A prosecutor may not use closing argument to present new
evidence before the jury that is outside the record and prejudicial to the
accused. See Freeman v. State, 340 S.W.3d 717 (Tex. Crim. App. 2011).
References to facts that are neither in evidence, nor inferable from the
evidence, are improper. See Borjan v. State, 787 S.W.2d 53, 57 (Tex. Crim.
App. 1990). An improper argument constitutes reversible error when, in
light of the record as a whole, it is extreme or manifestly improper, violates
a mandatory statute, or injects new facts harmful to the accused into the trial
proceedings. See, Guidry v. State, 9 S.W.3d 133 (Tex. Crim. App. 1999).
Denial of Mistrial
An appellate court reviews a denial of a mistrial under an abuse-of-
discretion standard. Kepp v. State, 876 S.W.2d 330 (Tex. Crim. App. 1994).
A mistrial is warranted only after the appellate court balances three factors:
(1) the severity of the misconduct (the magnitude of the prejudicial effect of
the prosecutor’s remarks); (2) measures adopted to cure the misconduct (the
efficacy of any cautionary instruction by the judge); and (3) the certainty of
Petition for Discretionary Review Robert Thornburg, Jr. v. The State of Texas No. 11-12-00328-CR 8 the conviction absent the misconduct (the strength of the evidence
supporting the conviction. Berry v. State, 233 S.W.3d 847, 858-859 (Tex.
Crim. App. 2007); Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App.
1998). Notably, an instruction to disregard improper jury argument
generally suffices to cure improper argument error. Morrow v. State, 757
S.W.2d 484, 494 (Tex. App. – Houston [1 st Dist.] 1988, pet. ref’d); Davis v.
State, 894 S.W.2d 471, 474-475 (Tex. App. – Fort Worth 1995, no pet.).
Comments on the Weight of the Evidence
In this case, in deciding whether the trial court abused its discretion in
denying his request for mistrial, Thornburgh asked that the Court of Appeals
not only find that the state’s final argument was impermissible, but that the
trial court’s comments in overruling appellant’s request for mistrial
constituted impermissible comments on the evidence that affected his
presumption of innocence before the jury and violated his right to a fair trial
by an impartial jury.
Analysis
In Shannon v. State, 942 S.W. 2d 591,597 (Tex. Crim. App. 1996), in
the punishment phase of a capital murder trial, the prosecutor argued:
“You know, I had some things I planned on saying, but I
don’t know what else to say. I don’t know how to respond to
Petition for Discretionary Review Robert Thornburg, Jr. v. The State of Texas No. 11-12-00328-CR 9 that argument that was made. That is a killer. That is a rapist.
His past shows you he never expresses any remorse over what
he’s done, and he doesn’t want to change. That is a sociopath.”
The Defendant objected, and the trial court instructed the jury to
disregard the argument. Id. The court denied the defendant’s motion for a
mistrial. Id. The jury returned special issues contrary to the defendant, and
the court sentenced the defendant to death. Id. at 594. The Court of
Criminal Appeals concluded that the comment calling the defendant a
sociopath was improper. Id. at 598.1
Here, the severity of the misconduct (i.e., the magnitude of the
prejudicial effect of the prosecutor’s improper argument) cannot be viewed
in a vacuum. Rather, the impact of the argument by the state must be
assessed with that of the trial court’s improper comment as well that the
state’s argument, however prejudicial, was only an inference from the
evidence.
A trial court must refrain from making any remark calculated to
convey to the jury its opinion of the case. Brown v. State, 122 S.W.3d 794,
1 While the Court of Criminal Appeals ultimately held that the impermissible argument in Shannon should not result in a mistrial, it did so mainly because there had been a curative instruction. Shannon at 598.
Petition for Discretionary Review Robert Thornburg, Jr. v. The State of Texas No. 11-12-00328-CR 10 798 (Tex. Crim. App. 2003). In Brown, the Court of Criminal Appeals
explained the rationale for this rule, stating:
[J]urors are prone to seize with alacrity upon any conduct
or language of the trial judge which they may interpret as
shedding light upon his view of the weight of the
evidence, or the merits of the issues involved.
-122 S.W.3d at 798.
The trial court improperly comments on the weight of evidence if it
makes a statement that implies approval of the state’s argument, indicates
disbelief in the defense’s position, or diminishes the credibility of the
defense’s approach to the case. Clark v. State, 878 S.W.2d 224, 226 (Tex.
App. – Dallas 1994, no pet.). Jurors tend to take hold of a trial judge’s
remarks, which they often “interpret as shedding light upon his view of the
weight of the evidence, or the merits of the issues involved.” Bachus v.
State, 803 S.W.2d 402, 405 (Tex. App. – Dallas 1991, pet. ref’d). The
Bachus court observed, “it defies logic and common sense to expect a jury
to tell its ‘own judge’ that he is wrong.” Bachus, 803 S.W.2d at 405. The
law commands that a judge presiding over a trial shall govern the trial and
his own conduct in such a manner that his opinion of the merits of the case
or the credibility of the witnesses shall not be made known to the jury.
Petition for Discretionary Review Robert Thornburg, Jr. v. The State of Texas No. 11-12-00328-CR 11
Shannon, in turn it is submitted, stands for the proposition that the
use of “sociopath,” without any witness testimony, expert or otherwise,
strays outside the record and is improper. Here, on the other hand, the
appellate court suggests that that proposition fails where there is any
conflicting testimony by a defendant or where the state questions a
defendant’s veracity. In those circumstances, the Court of Appeals’ opinion
suggests, the door is opened for the use of epithets such as that argued here.
After all, the appellate court noted, the use of the term here “was intended to
demonstrate the repeated misstatements by Appellant in cross-
examination….” (Slip op. at 7). Surely, the Shannon Court intended more.
Finally, while the Court of Appeals noted an instruction to disregard
statements outside the record will generally cure any error, here 1) the trial
court denied the request to disregard, and 2) it injected a statement
suggesting its dismissive opinion of defendant’s testimony, thereby adding
insult to injury. The Court of Appeals’ reasoning that the trial court’s
comments “merely stated a correct rule of law” does not address the harm of
the comments or their potential for prejudice as was done in the case of
Joung Youn Kim, the case the appellate court cites to support its position.
See, Joung Youn Kum v. State, 331 S.W.3d 156, 160 (Tex. App. – Houston
[14th Dist.] 2011, pet. ref’d).
Petition for Discretionary Review Robert Thornburg, Jr. v. The State of Texas No. 11-12-00328-CR 12
In sum, if the state’s use of the epithet in this case was improper
argument, as held in Shannon, it must follow that the trial court’s comments
that the epithet was a reasonable inference from the evidence where there
was no testimony, expert or otherwise, was also error. The Court of Appeals
compounded the trial court’s error in its opinion by suggesting that epithets
such as that used by the state in this case are appropriate anytime the
defendant denies his guilt.
PRAYER
WHEREFORE, Thornburgh prays that this Court reverse the
judgment of the appellate court and remand for reconsideration by the
appellate court of Appellant’s complaints in keeping with its findings herein.
COPELAND LAW FIRM P.O. Box 399 Cedar Park, TX 78613 Phone/Text: 512.897.8126 Fax: 512.215.8114 Email: ecopeland63@yahoo.com
By: /s/ Erika Copeland
Erika Copeland State Bar No. 16075250 Attorney for Appellant
Petition for Discretionary Review Robert Thornburg, Jr. v. The State of Texas No. 11-12-00328-CR 13
CERTIFICATE OF SERVICE AND OF COMPLIANCE WITH RULE 9
This is to certify that on February 26, 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 Michael Murray, District Attorney, Brown County Courthouse, Room, 323, 200 S. Broadway, Brownwood, Texas 76801, 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 2460 words.
/s/ Erika Copeland
Erika Copeland
Petition for Discretionary Review Robert Thornburg, Jr. v. The State of Texas No. 11-12-00328-CR 14
11TH COURT OF APPEALS ·
EASTLAND, TEXAS
JUDGMENT
* From the 35th District
Robert Thornburgh, Jr., Court of Brown County, Trial Comi No. 21718.
* February 5, 2015
Vs. No. 11-12-00328-CR * Memorandum Opinion by Bailey, J.
· The State of Texas, (Panel consists of: Wright, C.J., \Villson, J., and Bailey, J.)
This court has inspected the record in this cause and concludes that thereis no enor in the judgment below. Therefore, in accordance with this court's opinion, the judgment of the trial comi is in all things affirmed.
Opinion filed February 5, 2015
In The
ELEVENTH COURT OF APPEALS No. 11-12-00328-CR
ROBERT THORNBURGH, JR., Appellant v.
THE STATE OF TEXAS, Appellee
On Appeal from the 35th District Court Brown County, Texas
Trial Court Cause No. 21718
M E M O R A N D U M O P I N I ON Appellant, Robert Thornburgh, Jr., pleaded not guilty to two counts of sexual assault of a child. See TEX. PENAL CODE ANN. § 22.011 (West 2011). The jury found Appellant guilty of both counts. Appellant pleaded true to two enhancement allegations. The trial.court assessed his punishment for each count at confinement in the Institutional Division of the Texas Department of Criminal Justice for life, with the sentences to be served consecutively. Appellant argues
2
that Section 22.01 l (a)(2) of the Texas Penal Code is unconstitutional. Appellant also argues that the trial court erred when it failed to grant a mistrial based upon prejudicial jury argument made by the State and that the trial court 's response to the jury argument constituted an impermissible comment on the "'eight of the evidence. We affi1m.
Background Facts
Although Appellant does not dispute the sufficiency of the evidence, we will briefly summarize the evidence presented at trial. The record shows that, in 2006, Appellant entered into a sexual relationship with V.A., a fourteen-yearold girl. V.A. stated that, early in 2006, she went over to Appellant's sister's house to talk to Appellant. While there, she used the restroom. When she came out of the bathroom, Appellant asked her into the bedroom. After lying on the bed, Appellant proceeded to kiss V.A. and initiate sex. V.A. told Appellant to stop and told him that it hurt, but he continued.
After the first time, Appellant and V.A. continued to have sex every week in various locations in Brown County, with one occasion out by TYC, a state school located in Brownwood. V.A. testified that Appellant drove her and K.W.C., her friend, to a lake in Abilene where he had sex with V.A. K.W.C. also testified about the Abilene trip and stated that Appellant and V.A. had sex. V.A. testified that her relationship with Appellant was interrupted in November 2006 when she moved to Waco after her parents learned of the relationship.
Appellant denied that he dated or had sexual relations with V.A. while she was underage. Appellant admitted to a sexual encounter with V.A. when she was nineteen. Appellant described V.A.'s testimony as lies. He also denid the trip to Abilene with V.A. and K.W.C. Appellant testified that all of the State's witnesses had lied about ce1iain events. Appellant's defense was that he wa falsely accused and set up by the State'switnesses.
3
Analysis
A. Constitutionality of Section 22.011(a)(2)
In his first issue on appeal, Appellant argues that Section 22.0 l l (a)(2) is unconstitutional in violation of both the federal Due Process Clause and the Texas constitution's due course of law provision. Appellant contends that the statute is unconstitutional because it fails to require a culpable mental state that relates to the conduct alleged and because it fails to allow a mistake-of-fact defense about the victlm 'sage.
Appellant lodges a "facial" challenge to the constitutionality of Section 22.0 l l (a)(2). A facial challenge asserts that a statute, by its te1ms, always operates unconstitutionally. Gillenwaters v. State, 205 S.W.3d 534, 536 n.2 (Tex. Crim. App. 2006). An "as applied" challenge to the constitutionality of a statute asserts that a statute, although generally constitutional, operates unconstitutionally as to the claimant because of his particular circumstances. Id. at n.3. Facial and as-applied challenges to the constitutionality of statutes are forfeited if they are not raised in the trial comi. Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009) (facial challenge); Cuny v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995) (as-applied challenge). Appellant did not challenge the constitutionality of Section 22.0 ll (a)(2) in the t1ial comi. Therefore, Appellant did not preserve the issue for appellate review. See TEX. R. APP. P. 33.1; Karenev, 281 S.W.3d at 434. Appellant's first issue is overruled.
We note that courts have upheld the constitutionality of Section 22.011(a)
(2) and Section 22.021 of the Penal Code1 when faced with arguments that were similar to those raised by Appellant in this appeal. Fleming v. State, 376 S.W.3d 854, 85762 (Tex. App.-Fort Worth 2012), aff'd, No. PD-1250-12, 2014 Tex.
1 TEX. PENAL CODE ANN. § 22.021 (West Supp. 2014).
4
Crim. App. Lexis 879 (Tex. Crim. App. June 18, 2014), cert. denied, 2015 WL 231987 (U.S. Jan. 20, 2015) (No. 14--559) (Section 22.021);2 Byrne v. State, 358 S.W.3d 745, 748-51 (Tex. App.San Antonio 2011, no pet.) (Section 22.0 l l (a)(2)(A)). Had Appellant preserved his issue for review, we would conclude, based on the reasoning of these courts, that Section 22.0 l l (a)(2) is not unconstitutional.
B. Ju1y Argument In his second issue, Appellant complains that the prosecutor made an improper jury argument in his closing arguments when he characterized Appellant as a "sociopath." The following exchange took place during the complained-of jmy argument:
[PROSECUTOR]: Remember I made him go through and name them again just to make sure these were all the times you have been to Abilene. Well, then what comes out? He lives in Abilene. He grew up in Abilene. His dad had a mechanic shop in Abilene. The man was driving back and forth to Abilene at different points. Why not tell you that? Because he is a sociopath. He is going to tell youwhatever he needs to tell you --
[DEFENSE COUNSEL]: Objection, Your Honor. To characterize him as a sociopath without any evidence in this trial, I would request a mistiial at this time.
THE COURT: Denied. [DEFENSE COUNSEL]: Well, then I would ask that he be admonished not to use technical words like that that are -- that are required by an expert to be decided, which has not been done, and that the jury be told to disregardit.
2 0n June 18, 2014, the Court of Criminals Appeals affirmed the opinion of the Fort Worth Court of Appeals in Fleming v. State. The Court of Criminal Appeals issued its mandate in Fle1ning on October 14, 2014. However, the Court of C1iminal Appeals subsequently withdrew its mandate on November 3, 2014. Based upon that withdrawal, West Publishing has withdrawn the court's opinion from both Westlaw and West's bound volume. The opinion of the Court of Criminal Appeals remains on Lexis as of the date of this opinion.
5
THE COURT: Overruled. This is final argument. You can argue any reasonable inference in the case. There has been no testimony from anyone about being a sociopath, but this is final argument. You may argue if you think the evidence tends to indicate your view of the case.
You mayproceed. [PROSECUTOR]: That's why I'm arguing that. Th.at's a person that can't tell you the truth. That is a person that can't comport --
[DEFENSE COUNSEL]: Objection, Your Honor. [PROSECUTOR]: -- what the community expects out of us. [DEFENSE COUNSEL]: Now he is testifying to the jury.
There is no evidence in this trial whatsoever that an expert has given a sociopathdefinition.
THE COURT: And that is true and the jmy is so instructed, but final argument is not confined to just the evidence. It's also reasonable inferences that can be drawn from the evidence. The attorneys can attempt to point those out.
You may do so.
Proper jmy argument generally falls within four areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; or (4) plea for law enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008); Esquivel v. State, 180 S.W.3d 689, 692 (Tex. App.-Eastland 2005, no pet.). Counsel is allowed wide latitude to draw inferences from the record, as long as the inferences are reasonable, fair, legitimate, and offered in good faith. Shannon v. State, 942 S.W.2d 591, 597 (Tex. Crim. App. 1996). We review a t1ial court's denial of a motion for new trial for an abuse of discretion. Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006); Lewis v. State, 911 S.W.2d l, 7 (Tex. Crim. App. 1995).
The prosecutor called · Appellant a · "sociopath" and commented that Appellant would say whatever necessary to avoid a conviction. The Comi of
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Criminal Appeals has stated that the use of "sociopath," without any witness testimony, does stray outside the record. Shannon, 942 S.W.2d at 597. However, there was conflicting testimony in regard to Appellant's character and whether he told the tluth. On direct examination, Appellant testified that he had only been to Abilene five times . since he moved to Brownwood. On cross-examination, Appellant, however, testified that he used to live in Abilene, that he grew up in Abilene, that his father had a mechanic shop in Abilene, and that Appellant drove back and forth to Abilene numerous times. The prosecutor's comment that Appellant is "a sociopath" and "is going to tell you whatever he needs to tell you," thus questioning Appellant's truthfulness, was an appropriate inference from the evidence. Spurlock v. State, No. 11-11-00010-CR, 2013 WL 205388, at *6 (Tex. App.Eastland January 18, 2013, no pet.). The trial court did instruct that the definition of sociopath was outside the record. An instruction to disregard statements outside the record will generally cure any error. Freeman v. State, 340 S.W.3d 717, 727-28 (Tex. Crim. App. 2011). Therefore, the comment was a reasonable inference from the evidence, and the argument was not improper.
Even if the prosecutor's comment was improper, we cannot agree that any harm warrants the remedy of reversal. An improper comment made in closing argument is considered a nonconstitutional error. Martinez v. State, 17 S.W.3d 677, 692 (Tex. Crim. App. 2000). A nonconstitutional error that does not affect substantial rights must be disregarded. TEX. R. APP. P. 44.2(b); Martinez, 17 S.W.3d at 692; Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). To determine the harm of an improper jury argument, three factors are balanced: (1) the severity of the misconduct (the magnitude of the prejudicial effect); (2) curative measures (the efficacy of any cautionary instruction by the trial court); and (3) the ce1iainty of the conviction in the absence of misconduct (the strength of . the evidence that supports the conviction). Martinez, 17 S.W.3d at 692-93.
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The prosecutor's comment was not of such great magnitude as to cause Appellant severe prejudice. The use of the term "sociopath" was intended to demonstrate the repeated misstatements by Appellant in cross-examination and to urge the jurors to make reasonable inferences and deductions from the evidence. Jurors heard contradictory testimony from Appellant and several of the State's witnesses about trips to · Abilene and were able to decide for themselves the credibility of the witnesses. Furthermore, there is strong evidence that supports Appellant's conviction. Accordingly, we hold that the trial court did not abuse its discretion when it ovenuled Appellant's objection to the State's jury argument and denied Appellant's request for a mistrial: We ove1rule Appellant's second issue.
C. Comment on the Weight of the Evidence In his third issue on appeal, Appellant argues that the failure to grant the mist1ial was an impermissible comment on the weight of the evidence by the trial court. Appellant contends that the trial court's comments indicated a disbelief in Appellant's position that he was falsely accused and implied approval that Appellant was a · sociopath and, thus, incapable of telling the t1uth. While Appellant made neither a timely objection to the judge's comments nor a request for a limiting instrnction, we need not address whether Appellant waived this issue. See Unkart v. State, 400 S.W.3d 94, 99, 102 n.37 (Tex. Crim. App. 2013) (recognizing that, "[o]rdinarily, a complaint regarding . an improper judicial comment must be preserved at trial" but declining to address the procedural consequences of a late objection); Sharp v. State, 707 S.W.2d 611, 619 (Tex. C1im. App. 1986); Minor v. State, 469 S.W.2d 579, 580 (Tex. Crim. App. 1971). However, we will neve1theless determine whether the trial court made an impermissible comment on the weight of the evidence.
When the trial court determines the admissibility of evidence, it shall not discuss or comment upon the weight of the same or its bearing in the case, but shall
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simply decide whether or not it .is admissible. TEX. CODE CRIM. PROC. ANN. art. 38.05 (West 1979). A trial court must refrain from making any remark calculated to convey to the jury its opinion of the case. Brown v. State, 122 S.W.3d 794, 798 (Tex. Crim. App. 2003).
A trial comi improperly comments on the weight of the evidence if it makes a statement that implies approval of the State's argument, indicates disbelief in the defense's position, or diminishes the credibility of the defense's approach to the case. See Joung Youn Kim v. State, 331 S.W.3d 156, 160 (Tex. App.-Houston [14th Dist.] 2011, pet. ref d). If a trial judge makes an improper comment on the weight of the evidence, we must then decide whether the comment was material. Id. (citing Simon v. State, 203 S.W.3d 581, 592 (Tex. App.-Houston [14th Dist.] 2006, no pet.)). Only if the comment is material must we determine whether it rises to the level of reversible error. See id.
The trial comi overruled Appellant's objection to the use of the term "sociopath" and denied the request for a mistrial. However, the court merely stated a correct rule of law-that in closing arguments the State may make reasonable inferences from the evidence. See Brown, 270 S.W.3d at 570. The court did agree and instructed the jury that no sociopath definition had been entered intoevidence. Appellant did not request an instruction to disregard the comi's comments on the use of "sociopath" by the State. The court's comments cannot be seen as tainting Appellant's presumption of innocence or vitiating the impartiality of the jmy, and if there were any residual harm, it would have been cured by a timely inshuction to disregard. See Unkart, 400 S.W.3d at 102; Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001). We ovenule Appellant's third issue.
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This Court's Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY JUSTICE
February 5, 2015 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Wright, C.J., Willson, J., and Bailey, J.