### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 18
- 00286
- CR

Robert Wayne Corporon, Appellant

v. The State of Texas, Appellee

FROM THE 424TH DISTR ICT COURT OF LLANO C OUNTY NO. CR7543, THE HONO RABLE EVAN C. STUBBS , JUDGE PRESIDING

O P I N I O N
A jury convicted appellant Robert Wayne Corporon of two counts of indecency with a child by sexua l contact and assessed punishment at twelve years ’ imprisonment for count

on e and fifteen years ’ imprisonment for coun t two

. See Tex . Penal Code § 21.11 (a )(1). The district court rendered judgment on the verdict s and ordered the sentence s to run consecutively. In five issues on appeal, Corporon asserts tha t : (1) the district court abused its discretion when it failed to hold a heari ng on Corporon ’ s moti o n for new trial; (2) his right to a public tr ial was violated when members of his family were “ excluded ” from the courtroom during jury selection ; (3) the district court erred when it failed to conduct a hearing on the admissibilit y o f extra neous of fense e vidence ; (4) the evide nce is insufficient to support his convictions; and (5) the district court abused its discretion in failing to grant a mistrial when the State elicited testimony re lating
to the prosecutor ’ s opinion of the case
. We will af fi rm the district court ’ s judgmen ts.2 BACKGROUND Corporon is the step

- grand father of C16

- 788, the victim in the case

. 1 At the time of the alleged offenses, C16

- 788 lived in Co lorado with her parents and siblings , and Corporon, the husband of the children ’ s m aternal grandmother , lived in L lano County, Texas. The jury heard evidence that in the summer of 2016, when C16

- 788 ’ s fami l y was v ac ationing in Texas at Corporon ’ s lake house , Corporon touched C16

- 788 ’ s sexual organ and her anus.
C16

- 788, who was eight years old at the time of the offense s and ten years old at the time of trial, testified that on July 4, 2016, during a fi reworks display , Corporon picked her up, with one arm ho lding her legs and the other arm behind her back. C16

- 788 recounted that Corp oron , using the arm that was behind her back, moved his hand underneath her pants and underwear , touching her “ cheeks ” and “ back end

. ” C16

- 788 added that Corporon ’ s hand w ent inside her “ crack ” and push ed up against her “ hol e , ” which she identified as the part of her body that is use d for “ going number two. ” According to C16

- 788, the incident was observed by Corporon ’ s father, who was staring at C orporon w hen his hand was in C16

- 7 88 ’ s pants, which made her uncom fortable. Corporon stopped touching C16

- 788 when she pulled hi s hand out of her pants and “ got down to go see what [her] dad w as doing. ”
C16

- 788 further testified that on a later date during the same vacation, Corporon touched her in he r “ front area ” while helping her put on a life jacket t o go s wimming. C16

- 788 explained t hat Corporon p ut his hand inside her swimsuit, “ cupped ” the area between her legs, and “ pinched the pin k thing ” “ in the middle ” of “ t he front part ” of her body , which she identified

1 C16

- 788 is a pseudonym assigned to the child by the investigators in the case

. The pseudonym was used in the trial transc ript and the appellate b riefs to protect the chil d ’ s identit y an d w e will do th e sa me in thi s opinion

. See Tex. R. App. P. 9.10.3 as the part of her body that is used fo r “ goi ng number one. ” C16

- 788 test ified that wh i le Corporon was putting on her life jacket and touching her there , he asked her, “ How does that feel? ” C16

- 788 pulled his hand out of her swimsuit and ran off to go swimming. Later that day , as C16

- 788 was wa tching a movie wi th Cor poron and other family members, Corporon asked her to sit on his lap. C16

- 788 testified that when she did so, Corporon placed his hand underneat h her clothes and touched her “ cheek. ” C16

- 788 pulled his hand out , told him , “ Don ’ t do th at, ” and sat o n the floor. C16

- 788 also testified that at some point before the movie b egan , Corporon had touched her ches t

. C16

- 788 ’ s mother testified that while they were staying at the lakehouse , C16

- 788 told her that Corporon was “ constantly putt ing his hands dow n her pants and touching her

. ”
C16

- 788 ’ s mother told her hu s band, and they agreed to return to Colorado the following day. Upon their return , C16

- 788 ’ s parents contacted law en forcement in both Colorado and Texas and an investigation beg an. C16

- 788 was first interv iewed in Colorado . T he information obtained during the interview w as relayed to investigators in Texas , who determined that the touc hing described by C16

- 788 during her interview in Colorado did not meet the elements of the Te xas in decency sta tute and clo sed the case. The case was later reopened when C16

- 788 ’ s mother contacted the Llano County Sheriff ’ s Office with additional information. The mother informed investigators that she had additional conversations with C16

- 788, a nd that during th ese conversa tions, the child had provided a more detailed account of the incidents . C16

- 788 was then interviewed in Texas. Based on the information obtained during th e Texas interview and other evidence, which we discuss in more detail below, Corporon was charged in a four

- count indictment with the offense of indecency with a child by contact. At trial, the State abandoned Count IV of the4 indictment

. The jury found Corporon guilty of Count I , which al leged that Corporon had touched C1 6

- 788 ’ s anus , and C ount II , w hich alleged that Corporon had touched C16

- 788 ’ s sexual organ. T he jury found Corporon not guilty of Count III, which alleged that Corporon had touched C16

- 788 ’ s brea st. This appeal followed.

ANALYSIS Motion for new trial / right to public tria l Following his conviction s , Corporon filed a n amended motion for new trial in which he asserted that he had been denied his right to a public t rial. Sp eci fically, Corporon
conte nded tha t three of his famil y members had been “ exclude d ” from t he courtroom during jury selection when an assistant to defense counsel advised th e family members that they could not be present in the courtroom at that ti me
. 2 The mo tion for new trial was overrule d by operation of law. In his first i ssue , Cor poron as serts that t he district court abused its discretion in failing to hold a hearing on the motion for new trial . In his second issue, Corporon claims that he sh ould be g ra nted a new trial because he was denied his right to a public trial

. B ecause th ese issu es are relat ed, we address them together. We review a trial court ’ s ruling on a motion for new trial, as well as its decision on whether to hold a hearing o n the motio n, for an abuse of discretion. See Briggs v. State , 560 S.W.3d 176 , 1 83

– 84 (Te x. Crim. App. 2018); Freeman v. State , 340 S.W.3d 717 , 732 (Tex. Crim. App. 2011 )

. “ ‘ In so doing, we reverse only when the trial judge ’ s decision was so

2 The identity of the assistant is unclear from the record. The motion for new trial refer red to t he individual as bo th “ defense counsel ’ s co - counsel ” and “ the legal assistant. ” Tw o of the fami ly members , i n t heir a f fidav its attached to the motion for new t ria l , identif ied th e individual as “ the assistant attorney, ” while the third family member refer red to him as “ the assistant to [Corporon ’ s] lawyers. ”5 clearly wron g as to lie outside that zone within which reasonable persons might disagree. ’ ” Gonzale s v . State , 304 S.W.3d 838, 842 (Tex. Crim. App. 2010) (quoting Smith v. State , 286 S.W.3d 333 , 349 (Tex. Crim. App. 2009) )

.

“ The purposes of a new trial hearing are (1) to dete rmine whether the case should b e retried or (2) to complete the record for pres e nting i ssues on app eal. ” Hobbs v. State , 298 S.W.3d 193 , 199 (Tex. Crim. App. 2009) (citing Smith , 286 S.W.3d at 338 )

. “ Such a hearing is not an absolute right. ” Id . A tria l court abuses its discretion i n failing to hold a he aring only “ if th e motion a nd acco mpanying aff idavits (1) raise matters wh ich are not determinable from the record and (2) establish reasonable grounds showing that the defendant could potentially be ent itled to relief. ” Id

. “ This s econd requirement limits and prevents ‘ fishing

e x peditio ns. ’ ” Id

. Although a defendan t “ need not plead a prima facie case in his mot ion for new trial, he must at least allege sufficient facts that show reasonable gro unds t o demonstrate that he could pre vail ” on the merits of his claim. Id

. at 199

– 20 0 ; see a lso Colone v . State , 573 S.W.3d 249 , 260 (Tex. Crim. App. 2019) ( “ Bare assertions, without supporting factual allegations, are not sufficient to entitle a party to a hea ring, and a trial court is not required to hold a hearing to conduct a ‘ fishing e xpedit ion. ’ ” ).
In Corporon ’ s motion for new trial, he asserted a violation of his right to a public trial

. “ The Sixth Amendment of the United States Constitu tion guarante es an accused the right to a public trial in all criminal prosecutions

. ” Lilly v. Stat e , 365 S.W.3 d 321 , 328 (Tex. Crim. App. 2012) (citing U.S. Const. amend. VI ). I f a def endant p r ove s that his right to a public trial was violated, he is entitled to a new trial. See id

. at 333. To prevail on his claim that he was d enied h is rig ht t o a public t rial, Corporon
must show that (1) his trial was, in fact, closed to the pub lic and (2) that any such closure was not6 justified by compe ting interests

. See id

. at 328

– 29 (citing Waller v. Georgia , 467 U.S. 39, 4 2, 48 (1984) ). “ Whe n d etermi ni ng whether a d ef endant has proved that his trial was closed to the public, the focus is n ot on whethe r the defendant can show that someone was actually excluded. ” Id . at 331. “ Rather, a reviewing court must look to the totality of the evid ence an d dete rmi ne whether th e tr ial court fulfi lled its obligation ‘ to take every reasonable measure to accommodate public attendance at criminal trials. ’ ” Id . (quoting Presley v. Georgia , 558 U.S. 209, 215 (2010)). Corporon attached three affidavits t o his m otion f or new trial, o ne from each of the three family members allegedly excluded from the courtr oom. The affidavit s indicate that defense counsel or an assistant to defense counsel instructed the family me mbers to leave the courtroom during jury s elec tion , eff ect ively resulti ng in their “ exc lusion ” from the court room at that time

. T he inquir y is not whether individuals were excluded but whether the district court

“ fulfilled its obligation to take every reasonable mea sure to accommodate public atte ndance ” at Co rpo ron ’ s trial. See id

. N othing in the affidavits suggest s that the dis trict court failed to fulfill that obligation in this case or was in any way responsible for the removal of Corporon ’ s family members from the courtroom

. 3 Cf

. P resley , 5 58 U.S. at 21 0 ( co ncluding that defendant was

3 Corporon a sserts that def ense counsel ’ s actions sho uld be im p uted to the district court because defense counsel i s an “ officer of the court

. ” As support for this contention , Corporon cites to Owens v. United States , a case in which “ uniformed office rs, ” specificall y a U nited Stat es Marshal and his deputie s , preven t ed spectators fr om entering the courtroom during jur y selection to e nsure that there would be enough seats in the courtro om for the jury pool

. 483 F.3d 48, 54, 61 ( 1st Cir. 2007). The circuit court concl uded “ that if t he trial court barred spec tat ors fr o m the courtroom as Owens alleges, he was denied his Sixth Amendment right to have a public trial

. ” Id . at 63. However, in Owens and sim ilar cases , the cl o sure was effectuated by court room security office rs , not defense counsel

. See also United St ates v

. Deluca , 137 F.3d 24 , 30 , 3 2

– 34 (1st Cir. 1998) (United States Marshal im plemented securi ty procedures that amounted to

“ partial closure ” of courtroom); Mar tineau v. Perrin , 601 F.2d 1196, 1 197

– 99 (1st Cir . 1979) (court bailiff mistakenly locked cou rtroom doors )

. We have found no authority for the7 denied right to pub lic trial when trial court instructed defend ant ’ s family member to leave courtroom during voir dire) ; Cameron v. State , 490 S.W.3d 57, 58

– 59, 62 (Tex. Crim. App. 2014) (concludin g that defend ant wa s denie d r ig ht to public trial when trial cou rt prevented spectators from entering courtroom because of security concerns and inadequate sea t ing s pace in
courtroom )

. Th erefore , Corporon ’ s motion a nd accompany ing affidavits fail to “ establish

reasona ble grounds s how in g that the defendant could potentially be entitled to relief , ” and a hearing on his motion would amount to nothing more than a “ f ishing expedition

. ” See Hobbs , 298 S.W.3d at 199

– 200. Accordingly , on this record, we can not conclude that the district cou rt abuse d its discretion in overruling Corporon ’ s motion for new trial without conducting a n evidentiary hearing

. We similarly cannot conclude that Corporon was denied hi s right to a pub lic trial. We overrule Corporon ’ s first and se cond i ssues.
A r ti cl e 38.37 hearing During trial, the district court admitted e xtraneous

- off ense evidence concerning other acts that Corporon a llegedly com mitted against C16

- 788 and h er sister C16

- 78 9 , under the authority of Art icle 38.37 of the Code o f Criminal Proced u re
. See Tex. Code of Crim. Proc.
art. 38.37 , § § 1(b) , 2(b)

. However, co ntrary to the requirements o f Article 38.37, the distri ct
court did not conduct a hearing o utside the presence of the jury to determine if the evidence was admissibl e
. See id . § 2

- a ( “ Be fore evidence described by Section 2 may be introduced, the trial

pr o position that actions take n by defense counsel to remove individuals from the courtroom , a

bse nt any involveme nt by the trial court or court room personnel , a mo unt to a denial of the defendant ’ s right to a publ i c trial. On the other hand , there are federal cases holding that when defense counsel is responsible for the ex c l usion of individuals fr om the courtroom or consen ts to their exclusio n, the defendant forfe its any complai nt on appeal that his tria l w as clo s ed. See, e.g. , Addai v. Schmalenberger , 776 F.3d 528 , 532

– 34 (8th C ir. 2015 ); United States v. Gomez , 705 F.3d 68 , 75

– 76 (2nd Cir. 2013)

.8 jud ge must determine that the e vidence likely to be admitt ed at trial will be adequate to support a finding by the jur y that t he defendant committed the separate offens e beyond a reason a ble doubt and conduct a hearing out of the presence of the jury for that purpose
. ” ). 4 In his third i ssue on appeal, Corporon as serts that the failure to conduct a n Article 38.37 heari ng violated his due

process rights

. The Stat e argues i n response that Corp oron failed to preserve this issue for review. We agre e. As a prere quisite to presenting a complaint for a ppellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion a nd that the tri a l co urt ruled on the request, objection, or motion, either expressly or
i mplicitly . Tex . R. App. P. 33.1(a). “ A party satisfies the requi rement of a time ly trial

- level complaint ‘ if the party ma kes the complaint as soon as the grounds f or it become appa r ent[ .] ’ ” London v. State , 490 S.W.3d 503 , 507 (Tex . Crim. App. 2016) (qu oting Gillenwaters v. State , 205 S.W.3d 534, 537 (Tex. Crim. App. 2006) ). “ This means ‘ as soo n as the [objecti ng party] kn ows or should know that an error has occurr e d. ’ ” Id . (quoti n g Ho llins v. State , 805 S.W.2d 475, 476 (Tex. Crim. App. 1 991) ). “ The r equirement that complaints be raised in the trial court (1) ensure s that the trial court will have an opportuni ty to preven t or correct errors, thereby eliminating th e need for a cost l y an d time

- consuming appeal and retrial; (2) guarantees th at opposing co unsel will have a fair opportunity to r espond to complaints; and ( 3) promotes the

4 We note that th e requirement of a hearing applies only to eviden ce relating to extran eous offense s commit ted again s t the victim ’ s sister, not to extraneous offenses committed against the victim

. See Garcia v. State , No. 13

- 17

- 00218

- CR , 2019 Tex. App. LEXIS 2397 , at *26

– 27 (Tex. App.

— Corp us Christi Mar. 28, 2019 , pet. ref ’ d) (mem. o p., no t designated for publ ic ation) ( holding that section 1 (b) of article 38.37 , relating to extraneous offenses co mmitted against victim of charged offense, is not subject to hearing requirem ent )

.9 orderly and effective present ati on of the case to the trier of fact. ” Gillenwaters , 205 S.W

. 3d at
53 7. Here, the record reflects that Corporon did not object at any point t o the failure of the distr ict court to conduct the requisite Article 38.37 he aring . In fact , before the State began quest ion ing C16

- 7 89 on the alleged extraneous of fenses, the r ecor d ref lect s th at the following occurred:

[Prosecutor] : Actually, can we approach, You r Honor?
[The court] : Yo u may. (At bench)
[Prose cutor] : At this time I ’ m going to be goin g into some ext raneous conduct with this witness, so I just realize d I need to a

p proach first and entertain any

— [Defense counsel] : What a re we

— where ar e we going? Just what hap pened?
[Prose cutor] : What happened with C16

- 789, the stuff in my [extraneous

of fense] notic e, the ice cub es. And then eve ntually I ’ m going to ask h er ab out t hings in other houses that made her uncomfor table as well.
[Defense counsel] : Sure.
[Prosecutor] : Okay. Just making sure.
[Defense counsel] : No problem.
[The court] : Okay.10 Thus , not only did Corporon fail to object to th e lack of hearing , he stat ed th at he had “ no problem ” with the admission of the extraneou s - offense evidence

. Howev er, Corporon asserts in his brief that the failure to hold an Article 38.37 hearing is not subje ct to the rules of error preser vation

. We d isagree. The req uirement of er ror preservat ion “ generally applies to all c omplaints exce pt those that involve rules that are

‘ w aivable only ’ or ‘ systematic ’ (or ‘ absolute ’ ) requirements. ” London , 490 S.W.3d at 507 (citin g Mendez v. State , 13 8 S.W.3d 334, 342 (Tex. Crim. App. 2004 ) ). Rights t hat are waivable

- only include the right to the assistance of counsel and the right to a jury trial

. Saldano

v. State , 70 S.W.3d 873 , 888 (Tex. Crim. Ap p. 2002). Absolute “ systemic ” requirements include jurisdictional requirements and the con stitu tional p rohibition against ex post facto laws

. See i d

. at 888

– 89. “ [ A ] ll other complaints, whether con stitutional, st atutory, or otherwise, are forfeited by failure to comply with Rule 33.1 (a). ” Mende z , 138 S. W.3d at 342. The Court of Crimin al A ppeal s has “ c onsistently held that the failure to object in a timely an d specific man ner during trial forfeit s complaints ab out the admissibility of evidence. ” Saldano , 70 S.W.3d at 88 9

. Complai nts rega rdin g a rticle 38.37 concern the admissibility of evi dence

. Accor d ingly, m ultiple intermediate appellate courts , including this Court, have h eld that a d e f e n d a n t , by not objecting during trial, f o r f e i t s h i s c o m p l a i n t t h a t t h e t r i a l c o u r t f a i l e d t o

c o n d u c t a n A r t i c l e 3 8

. 3 7 h e aring

. See , e.g. , Carmichael v. State , 505 S. W.3d 95, 103 (Tex. App.

— San Antonio 2016, pet. ref ’ d) ; Baker v. State , No. 03

- 18

- 00240

- CR , 2019 Tex

. App. LEXIS 3062 , at * 9

– 10 (Tex. App.

— Austin Apr. 17, 2019, no pet.)

. Following these cases , we conclu d e that the district court ’ s failur e to hold a n Artic le 38.37 hearing has not been
pre served for review. We overrule Corporon ’ s third iss ue.11 Evidentiary sufficiency A person commits the offense of indecency with a child by sexual contact if the
pe rson engages in sexual contact with a child younge r than 17 ye ars of age. Tex. Penal Code § 21.11(a)(1). “Sexual contact” means any touching by a pers on, including touching through clothing, of the anus, breast, or any part of the genitals of a child, if committed with the intent to arouse or grat ify th e sexual des ire of any person. Id . § 21.11(c)(1). In his fourth issue, Corporon

a s serts that the e vi dence is insufficient to support his convictions for th is offense

. When examining the sufficiency of the evidence to sup port a finding of guilt,

“ [ t ] h e standar d of review i s ‘ whether, after viewing the evidence in th e light most favo r able to the pros ec ution, any rational trier of fact could have found the essential elements of the crime beyond a reasonab le doubt. ’ ” Arroyo v. State , 559 S.W.3d 484 , 487 (Tex. Cri m. App. 2018) (quoting Jackson v. Virginia , 443 U.S. 307, 319 (1979) )

. “ T h is standard give s ‘ full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to w eigh the evidence, and to draw reasonable in ferenc es from b asic facts to ultimate facts. ’ ” Id . (quot ing Jackson , 443 U.S. at 318

– 19; Whatley v. State , 445 S.W.3d 15 9, 166 (Tex. Crim. App. 2014) )

.

“ In considering whether the inferences drawn by the trier of fact are reasonable, an appellate
court m ust con sider th e ‘ combined a nd cumulative force of all th e evidence. ’ ” Id . (quoting
Murr a y v. State , 457 S. W.3d 446, 448 (Tex. Crim. App. 20 15) ). “ An appellate court cannot act as a thirteenth juror and make it s own assessment of the evidence. ” Id

. (cit ing Car y v. Sta te , 507 S.W.3 d 761, 766 (Tex. Crim. App. 2 016) )

. “ A court ’ s role on appea l is restricted t o guarding against the rare occurrence when the factfinder does not act rationally

. ” Id

. (citing Morgan v . State , 501 S.W.3d 84, 89 (Tex. Crim. App. 2016) )

.12 Corpo ron argues that the evidence is insufficient for several reasons. First, h e places significance on the evidence that was admitted per taining to the Color ado interview, in which C16

- 788 “ gave no in formation that met the elements of any offen se in t he state of Texas. ”
Howeve r, the jury could have discounted this evidence and instead credited C16

- 788 ’ s later intervi ew in T exas , in which she provided information that the jury could ha v e concluded sati sf ied the statutory elements of th e charged o ffen s e s
. Grace Yeager, the forensic services manager for the C hild ren ’ s A dvocacy C enter in Burnet, Texas, conducted the interview. Yeager testified that C16

- 788 had disclosed to her during the interview that C or poron had touched her genitals. According to Yeag er,

She told me that it happened at Rob ’ s house while they were putting life

— their life jackets on. She described wearing a swimsuit and how he put his hand into that swimsuit, used his h a nd. He cupped hi s hand and he

— she demonstrated multiple times this c upping that he did his fingertips to

— it started at the area between the anus and the opening of the vagina and he moved his hand up to the top of her vagina where she described a “ pink th i ngy , ” which I wo ul d consider the clitoris is what she showed on the doll. She asked to use the doll. And she described that pretty thoroughl y. Yeager added, “ She did tell me spec ifically the places that his

— that she felt his hand and she told me that w h en he got to the p ink thing

— the pink thingy at the top of her vagina he used his two fingers and he squeezed it and it hurt her. ” Yeager provided similar testimony regarding the a nal contact

. She testified that
C16

- 788 “ talked about the hole on the bac k of her body in be tween the cheekies, the plac e where number two com es out, and I understood that to be her anus because number two comes out of there and she uses it for the bathro om, and she ac tually showed [that] on the doll. ” Yeager a lso testifi ed , “ I had to verbaliz e it for her because she held up a side of he r hand and said that he13 would try to put

— ‘ to put , ’ ‘ to push ’

— there was a couple of different adjectives that she used, b ut to put this area of her hand in her hol e and she told me that she could n ’ t see his hand be cause it was behind her body, but that she could f eel it pushing just like someone pushes on your body,
yes. ” The jury, as factfinder, was free to credit Yeager ’ s testimony regarding the specific information obtained during the Texas inter view and to d i scount the lack of information obtained du rin g the C olorado i nterview. See Dob bs v. State , 434 S.W.3d 166 , 170 (Tex. Crim. App. 2014) ( “ When the record supports conflicting inferences, we presume that the jury resolved the conflicts in favor of the verdi ct, and we defer to that determination. ” ).
C orporon also di s putes C16

- 788’s te stimon y descri bing how Corporon touched her anus while he held her in his arms . Corporon asserts that it would have been “ physically impossible ” for him , “ w ith hi s arms spread apart on two separate parts of her body , ” i.e ., with

on e arm on her legs and th e other arm on her back, “ to then place his hands down her shorts, underwear, and to reach her anus. ” Again, however, it was for the jury to decide whether it was possible for Corporon to touch C16

- 788 in the manner she d escribe d , and w e are t o defer to that finding

. “ Courts g ive wide latitude to testimony provided by child victims of sexual abuse. ”
Jones v. State , 428 S.W.3d 163 , 170 (Tex. App.

— Houston [1st Dis t. ] 2014 , no pet.)

. “ We liberally construe this testimony, a nd, as long a s the c hild communicates to the jury that the touching occurred on a p art of the body within the definition of the statute, the evidence will be sufficient. ” Id

. “ The victim ’ s desc ription of wh at happened to her need not be precise, and she is not expect ed to e xpress herself at the same level of sophistication as an adult. ” Gonzalez Soto
v. State , 267 S.W.3d 327, 332 (Tex. App.

— Corpus Christi 2008, no pet.). Here, C16

- 788 testifie d that Corpor on’s hand went inside her “crack” and pushed up against her “ hole,” which she identifi ed as the part of her body that is used for “going number two.” Also admitted i nto14 evidence was an anatomical diagram of a girl’s body , which was marked by C16

- 788 in a manner consistent with her testimony that Corpor on had tou che d th at area of her body

. This evidence is sufficient to prove that Corporon touched C16

- 788 ’ s anus as alleged in Count I of the indictment. See Jones , 428 S.W.3d at 169

– 70 ; see als o Alba v. Sta te , N o . 03

- 16

- 00680

- CR , 2018 Tex . Ap p. LEXIS 126 1 , at * 7

- 9 (T ex. App

. — Austin Feb. 15, 2018, no pet.) (mem. op., not designated for publication) (collecting cases concluding that child victim ’ s testimony alone was suffi cient to support convicti on for sexual offense a nd explaining rational e fo r rule)

. Fi nally, Corp oron as serts that there w as no evidence presented that Corporon acted with the intent to arouse or gratify the sexual desire of any person

. However, it is well established that “the requisite sp ecific intent to arouse or gratify the sexual desi re of a ny p erson

c an be inferred fro m the defendant’s conduct, his remarks and all surrounding circumstances

. ”
McKenzie v. State , 617 S.W.2d 211, 216 (Tex. Crim. App. 1981) ; Gonzalez Soto , 267 S.W.3d at
33 2; Nav arro v. State , 241 S.W.3d 77, 79 (Tex. App.

— Houston [1s t Dist. ] 2007, pet. ref ’ d )

. Here, the jury could have inferred Corporon ’ s sexual intent in touching C16

- 788 ’ s anus from th e manner in which he picked her up and placed his hand unde rneath her pa nts an d underwear , and the jury could have inferre d his sex ua l inten t in touching her genita ls from the manner in which he placed his hand underneath her swimsuit , “ cupped ” her genital area , and “ pinched ” her sexual
organ , asking her, “ How doe s th at feel ? ” We conclude that this and other evidence is suff icient
to p rove th at Co rporon touched C16

- 788 ’ s anus and genitals with the requisite se xual intent. We overrule Corporon ’ s fourth issue.

Motion for mistrial
As discussed above , t he case was investigated in both Colorado and Texas. Deputy Mary Chitw ood of the Llano County Sheriff ’ s Department testified that after speaking15 with a detective in Colorado who had inte rviewed C16

- 788 , she deci ded to close the case

“ b ecause it just did n ot meet the elements ” of the Texas indecency statute

. D uring cross examin atio n, defense counsel questioned Chitwood as to the pr osecut or ’ s involvement in communicating that decision to C16

- 788 ’ s mother :

Q. So that ’ s what you told [ C16

- 7 88 ’s mother] , we h ave found t here ’ s not enough to go on? Yes?

A. That ’ s correct.
Q. Then you ref erred h er to other persons if she wanted to continue?

A. I referred her to the district attorney ’ s offic e.
Q. And what does that mean that you referred her? What would you do that fo r?

A. I don ’ t remember exactly all of why I referred it to S ta cy B urk e, the assistant district attorney, but I believe it was because she was not understanding why the case would be closed when I explained to her that it didn ’ t meet the elem ents, so I referred her to the district attorney so the district attorney could g o over it with her.
Q. Fair to say [the mother] was not pleased with the decision to close the case?

A. I can ’ t say if she was pleased or not, sir

. Q. You don ’ t recall?

A. She was n ot understanding why.
Q. In your official police report did yo u ever s tate anyth ing such as if16 additional information develops this case can be reopened?

A. No, sir.
Q. As I understand the sequences here, Deputy Chitwood, you closed the case , you refer red [ C16

- 788 ’s mother] to another office, and then the ca se wa s reope ne d; is that fair?

A. To my knowledge. I just found that out a few days ago.

On redirect examinati on, Stac y Burke, the prosecutor who had been mentioned in the above testim ony , sought to clarify her involvement in the decision to close the c ase:

Q. All r ight. Now, Deputy Chitwood, regarding referring [ C16

- 788 ’s mother] to me, my office and then ultimately myself, you and I certainly had discussions after you received the anatomical diagrams from Detective Baumhover in Colorado?

A. Y es, ma ’ am.
Q. An d you forwarded those diagrams to me, correct?

A. Yes, ma ’ am.
Q. And did I agree with you tha t based on those diagrams it did not meet the elements of indecency with a chil d by sexual contact?

A. Yes, ma ’ am. At that point, defense coun sel asked to appr oach the bench a nd objected to the prosecutor becoming “ a witness in the case. ” The prosecutor responded that “ the only reason [she] went down this path is that [ her] name ha s specifi ca lly been brought up ” and that she wanted to “ clear17 up any misco nception ” an d “ not lea v e some impression that I disagreed with anyone’s decision at that time ” to close the case. The district court overruled the objection and Cor poron moved for a mistrial , whic h the district court denied. Burke then con t inued her ques tioning of C hitwood

as fo llows:

Q. S o, Deputy Chitwood, you contacted me through my office and we discussed the information that was available at the time and that your decision wa s going to be to close the case and I agreed with that decision; is that a fair repre sentation?

A. That ’ s cor rect.
Q. All right. And your testimony was that [ C16

- 788 ’s mother] was not understanding why that was happening and you referred her to our offi ce as well ?

A. That ’ s cor rect.
In his fifth issue, Corporon asserts t hat the distric t court ab u sed its discr etion in failing to grant a mistrial. “A mistrial is an appropriate reme dy in extreme circumstances for a narrow class of highly prejudicial an d incurable errors.” T urner v. State , 570 S.W.3d 250 , 268 (Tex. Crim. App . 2018). “ A mistrial h a lts trial pr oceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile

. ” Ocon v. State , 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). “ Whether an error requires a mistrial mus t b e determined by the
par t icular facts of the case. ” Id

.

“ We review a trial court ’ s denial of a mistrial fo r an abuse of discretion. ” Balderas v. State , 517 S.W.3d 756 , 783 (Tex . Crim. App . 2016)

. “ We review the evidence in the18 light most favorabl e t o the trial cour t ’ s ruling a nd consi der only those arguments before the court at the time of the ruling. ” Turn er , 570 S.W.3d at 268. “ The trial c ourt ’ s ruling must be upheld if it was within the zone of reasonable disagreement

. ” Id

. In d etermining w het her a trial court abused it s discret ion in failing to grant a mistrial following prosecutorial misconduct , revi ewin g courts are to consider: (1) the severity of the misconduct ; (2) a ny measures adopted to cure the misconduct ; and (3) the certainty of co nvi ction absent the misconduct

. Ramon v. State , 159 S.W.3d 927 , 929 (Tex. Crim. App. 2004). In this case, Corporon ’ s motion for mistrial was based on his contention that the
prosec utor had be come a witness in the case. “ ‘ The concepts of due process a nd fundamental fairnes s require a separ ation between the State ’ s advocates and its witnesses. ’ ” Id

. at 931 (quoting Brown v. State , 921 S.W.2d 2 27, 231 (Tex. Crim. App. 1996) (Keller, J., concurr ing) ).

“ ‘ The prosecutor who tries a case shou ld not testify as a witness in regard to a cont e sted matter absent a showing that [h er] testimony is necessary. ’ ” Id

. “ ‘ Such necessity generally involves a showing that the test imony is important t o the State ’ s case or required to rebut the defendant ’ s

cas e and that t he need for the testimo ny could n o t rea sonably have been anticipated. ’ ” Id

. Here, the prosecutor did not testif y . Instead, she elicited testimony from Chitwood indicating t h a t she ha d agreed wi th Chitwood ’ s de cision to close the case

. Corporon
asserts tha t this was the funct ional equ i valent of the prosecu tor testifying, and a violation of Texas Disciplinary Rule of Professional Conduct 3.08 , which prohibits an attorney from serving

a dual role as both witness and advocate during trial

. See Tex. Disciplina ry R. Prof. Conduct 3.08(a )

. T he Court of Criminal Appeals has held that in cases where a disciplinary rule violation is alleged, “it is unnecessary for trial and appellate cou rts to deci de whether the State’s19 conduct violated a disciplinary rule. T hat is the domain of th e State B a r.” House v. State , 947 S.W.2d 251, 253 (Tex. Crim. App. 1997). Instead , our role is to determine the effect of the alleged rule violation on the f airness of the trial proceedings

. See id . at 252

– 53 ; see also Smith v. Ph illips , 455 U.S. 209 , 2 19 (1982) ( “ [ T ] he t ouchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpab ility of the pros ecutor. ” ).
A n alleged discip linary rule violation by th e State does not r equire a reversal of a c onviction unless t he defendant can demonstrate “actual prejudice, ” i.e., that “ the alleged disciplinary rule violation affected his substantial rights or depr ived him of a fair trial

. ” Id

. at 252 (citi ng Brown , 921 S.W.2d at 229

– 30 ). When the alleged d isciplina r y viola tion is based on Rule 3.08 ’ s prohibition against a lawyer serving as both witness and advocate , we look to “ the sub ject matter of the
prosec utor ’ s test imony ” to determine prejudice

. See Ramon , 159 S.W.3d at 931. “ When a lawyer ’ s testimon y relates solely to an uncontested issue or to a mere matter of formality, there is little concern for the possible confusion generated by undertaking the du al role of advocate

witness

. ” Gonzalez v. State , 63 S.W.3d 865 , 877

– 78 (T ex. App.

— Houston [14th Di st.] 2001 ) , aff ’ d , 117 S.W.3d 831 (Tex. Crim. App. 2003) (citing Tex. Disciplinary R. Prof ’ l Conduct 3.08,

c mt. 4)

. “ However, when the testimony goes to a c ontroversia l or contested matter, combining the roles can unfairly prejudi ce the opposing party. ” Id

. He r e, the challen ged exchange was that the prosecutor had agreed with the investigator ’ s decision to close the case. However, the decision to close the case was not “ a controversial or contested matter

. ” A t no point durin g trial did the State disp ute that t he
inf ormation obtained from the Colorado investigation w as insufficie nt to support a conviction under the Texas indecency statute

. Rather, the c ontested iss ue at trial was why the case had been20 re - opened. The defensiv e theory at trial was that C 16

- 788 ’ s mother had pressured the police to

re - open the case

. The State argu ed in response that the case had been re

- opened because new evidence had come to light fo llowing C16

- 788 ’ s forensic interview in Texas. B e c a u s e t he ch allenged exchange was limi t ed to th e uncontested issue of the decision to close the case and did not relate to the contested issue of the decision to re

- open the case , this weighs a gainst a find ing that Corporon suffered prejudice f rom the allege d rule vi olation

. See Ramon , 159 S. W.3d at 9 3 1

. We next consider any m e a s ures adopted to cure the alleged mis conduct

. This factor refers to the efficacy of any measures taken to ame liorat e the harm , i f any, from the alleged prosecutorial misconduct , such as sel f

- corrective actions taken by the pr o secutor, instructions to disregard by the trial court , or limiting instructions in the jury charge

. See Hawkins v. State , 135 S.W.3d 72 , 84

– 85 ( Tex. Crim. Ap p. 2004). Here, no such measures were adopted

. Finally, we consider “ the likelihood t hat appel l ant would have been convicted absen t the misconduct. ” Ramon , 159 S.W.3d at 9 31. In addition to the detailed testimony of
C16

- 788 , summarized ab ove, the evid ence against Corporon included the testimony of Corporon ’ s wi fe, Benita, who claimed tha t Corporo n had confessed to touching C16

- 788

u n d e r n e a t h t h e w a i s tb a n d o f h e r p a n t s “ w h i l e h e w a s r ub b i n g h e r b e l l y . ” C16

- 788 ’ s mother testified that Benita called and texted her , informing her that Cor poron had “ confessed ” to
tou ching C16

- 788. A copy of the text m essage was admitted into evidence . In the message , Beni ta wrote the following, “ I want you to know Rob has confessed an d is very sorry and has

as ked for my f orgiveness and your family ’ s forgiveness

. ” Additionally, Corp oron wrote a letter
to C16

- 788 ’ s mo t her and father in which he admitted to touching C16

- 788 “ inappr opriately ” and21 apologized for doing so, although he denied any sexual intent. A co py of this l etter was admitted into evidence and read into the record by C 16

- 788 ’ s mother

. The lett er contai n ed numerous details that were consistent with C16

- 788 ’ s description of the touching. At one point in the letter, Corporon wrote, “ In retrospect I realize now the degree of my inappropriateness, but I had no intention s o f ever molesting the se gir l s. ” Mor e over, Corporon testified in his defense and

a dmitted to “ accident ally ” and “ carelessly ” touching C16

- 788 underneath her pants and her swimsuit wit h his “ finge rtip s, ” and he further admitted that the touching was “ inappro priate, ” although he also claimed t h at the touching was un intentional and that he had no sexual thoughts or feelings toward C16

- 788

. However, as discussed above, there w as evidence admitted tha t Corporon had committed multiple extraneou s offenses against C16

- 788 and her sister C16

- 789, and this and other evidence supported the jury ’ s finding that Corporon , despite his denials to the
contra ry, had committed the charged offenses with t he req uisite s exual intent. Given the strength of the above and othe r evidence against Corporon a nd the
li m ited nature of the allegedly improper testimony , we cannot conclude on this record that the district court ’ s decision not to grant a mistrial w as outside t he zone of re asonable disagreement

. See Ramon , 159 S.W.3d at 932. Again, that remedy is re served fo r “ extreme circumstances. ”
See Turner , 570 S.W.3d at 268 . Such circumstances are not pres ent here. We overrule Corporon ’ s fifth is sue.22 CONCL USION We affirm the district court ’ s judgment s of convict ion

.

________ ____________________ ________ _

_____ Gisela D. Triana , J ustice Befor e Just ices Goodwin, Baker, and Triana
Af f irmed Filed: October 2, 2019 Publish