## In the Court of Appeals Second Appella te District of Texas at Fort Worth

___________________________ No. 02

- 22 -0 016 4- CR

___________________________

On Appeal from the 396th District Court Tarrant County, Texas Trial Court No. 1554184D

Before Sudderth, C .J. ; Birdwel l and Womack, J J. M emorandum Opinion by Justice Birdwell 

### S COTT 

### A LEXANDER 

### M ELTON 

### , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION Appellant Scot t A. M elton appeals his convictions for four counts of aggravated sexual assault of a child and one count of indecency with a ch il d. See Tex. Penal Code Ann. §§ 21. 11( a)(1) , 22.02 1(a)(2)(B)

. Melton con tends (1) that the trial
court erred by perm ittin g the State to present an improper jury argu ment in which it urged the jurors to consider statements made by venire members during voi r dire and (2) that the jury argument w as manifestly improper, harmf ul , and prejudicial

. B ecause

we concl ude t hat Melton for feited his complaint s for our review , we affirm

. I. Background
Melton ’ s three

- year

- old nie c e, S.M. , 1 made an outcry against Melton in July
2018 , and he was ultimately indicted on four counts of aggravated sexual assault and

o ne count of indecency with a child

. Melto n ’ s case went to a jury trial in August 2022

. During voir dire, the State questioned several venire members about t heir own previous experiences with child sexual abuse and commented on how tha t abu se affecte d the venire mem bers

. For example, the prosecutor had the foll owing ex change
with one venireperson , who stated t hat they had been sexua lly assaulted as a small
child: [ ST ATE] : And I can tell from your demeanor that

- - VEN IREPERSON:

-- I can ’ t be impartial.

1 To protect her ident i ty, we re fer to S.M

. by her initials. Se e Tex. R. Ap p. P. 9.8 cmt.; McClendon v. State , 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).3 [STATE ] : Right. And you have shared that wit h us. We do know. K nowing that everything that happened to you, right, is that something

-

- well, let me ask it this way. Even knowing that nobody was prosecuted for tha t sex ual abuse, is that something that still affects you here today?
VENIREPERSON: Yes. [STATE ] : And I can tell it from your voice; all right? VENIREPERSON: Yeah, I have t o pa y for therapy. I can ’ t afford t hat [expletive]

. [STATE ] : Can I ask you how ma ny ye ars ago it happened? VENIREPERSON: It was several years of trauma, so I can ’ t give yo u an exact num ber. Speaking to a nother venireperson who had worked with a n anti

- human trafficking organization, the p rosecutor asked , “ Knowing tha t you ’ ve heard their stories and probab ly seen the emotions o n their faces as they talked about how this has affected them, even into adulthood, can you , for the purposes of this tria l, not think about that
to the exten t that y ou make me prove my case

. . . ? ” The prosecutor al so commen t ed
on how past child sexual abuse had affected one venireperson ’ s marriage and how

a nother venireperson ’ s brother still experience d the trauma of child sexual abuse as an adult

. At the c lose of the evidence in the guilt

–

innocence phase of trial, both sides gave jury arguments. During t he State ’ s closing argument, the prosecutor argue d ,4 I ’ m so gla d that we ’ re finally h ere a nd we can finally b ring some closure to [S.M. ’ s] li fe. Becau se every si ng le on e of you was here on Monday afternoon [during voir dire] , and you got to hear the stories o f so many survivors of child [] sexual abuse. [DEFENS E COU NSEL] : I ’ m going to object to that being outside of the scope of evidence.
T HE COURT: Overruled. [STATE]: You got to hear those surviv [o]rs. When they talked about how they were th e s ame age as [S.M.], and you got to see their visible emotions in court and how this

-- [DEFENS E COUNSEL]: I object. This is improper argument to talk abou t what happ en ed in voir dire. That is not evidence. [STATE] : It ’ s a plea for law en for cement, Judg e. THE COURT: Overruled. [STATE]: You got to see their emotions h ow, as an adult, the y are s till processing the trauma they experienced at [S.M

. ’ s] age. And I don ’ t know how [S .M.] will process it in 20 years, but science tells us it ’ s going to be hard , and she is g oing to think that. She might not understand now . . . . B ut she will in the futur e, and she ’ s going to think back on this day.
W hile Melton ’ s counsel o bj ected to the first two instances that the State ’ s argument referenced statements m ade by venire members during voir dire

— both o f which the
trial court overruled

— he did not object to the last instance , nor did he obtain a running objection.
The jury foun d Melt on guilty and assessed his punishme nt at 60 years ’
confinement on eac h of the four counts of aggravated sexual assault and 20 years ’5 confi nement on the indecency with a c hild count
. The trial court entered its judgment
on the verdic t and ordered the se ntences to run concurrently

. This appea l follow ed.
II. Discussion
Melton contends that the State improperly argued that the jury should recall the

stat ements of their f ellow veni re members in voir dire ; that the argument was mani festly im proper, harmful , and prejudicial ; and that the trial cou rt e rred by permitting the State t o present its improper a rgument
. In response, the State assert s th at Melton forfei te d appella te review of his complaints because he objected to only

two of the three instances of th e State ’ s referencing the venire mem bers ’ statements
. Alternatively, t he State conced e s that the argument was improper but asserts that , in

a ny event, the argument was harmless , as the “ gist ” of the Sta te ’ s remark s was both a matter of common knowledge and a reasonable in ference that the jur ors c ould draw
from S.M. ’ s testimony.
A. Permissible Jury Arguments To be permissible, the Sta te’s jury argument generall y must fall within one of the following fo ur areas: (1) summation of the evidence; (2) reason able d ed uction
from the evidence; (3) a nswer to opposing counsel’s argument; or (4) plea for law
enforcement. Freeman v. State , 340 S.W.3d 717, 727 (Tex. C rim. App. 2011)

. As relevant here, s tatements made during voir di re are not evidence. Hyundai Motor C o. v. Va squez , 189 S.W. 3d 743, 753 (Tex . 2006) ; Montez v. State , No. 02

- 16

- 00175

- CR, 20176 WL 2807395 , at * 6 (Tex . App.

— Fort Wort h June 29, 2017, no pet.) ( mem. op., not designated for publication).
B. Stand ard of Review Improper jury argument is reviewed under a n on constitutiona l harm analysis

. S ee Tex. R. App. P. 44.2(b)

. Even if a jury argument exceeds the permissible bounds,

we will not reverse a trial co urt’s erroneously overruling a defense objection un less the
error affected the defendant’s substanti al righ ts
. Id. ; Mar tinez v. State , 17 S.W.3d 677,
692

– 93 (Tex. Crim. App. 2000)

. A substantial right is affec ted when the error had a

su bstantial and injurious effect or influence in dete rmining the jury ’ s verdict. King v.
State , 953 S. W. 2d 266, 271 (Tex. Crim. App . 1997) (c iting Kotteakos v. U nited States , 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)). In determini ng whether substantial rights were affected, we consider (1) the severity of t he misconduct (that is, the prejudicial
effe ct o f the prosecutor’s rem ar ks), (2) cu rative measures, and (3) the certainty of
conviction absent the misconduct

. Freeman , 340 S.W.3d at 728.
C
. Preservati on of Error
We must first address whether Melton has pre served his complaint . To
preserve a complain t fo r our review, a party mu st have pr e sented to the trial court a timely request, objection , or motion sufficiently stating the speci fic grounds, if not
ap parent fr om the context, for the desired ruling. Tex. R. App. P. 33.1(a)(1); Montelongo v. State , 62 3 S. W.3d 819, 822 (Tex. Cr im . App. 202 1 ). Further, the party must obtain an express or implicit adverse trial

- court ruling or object t o the trial7 court ’ s re fusal to rule. Tex. R. App. P. 33.1(a)(2); Dixon v. Stat e , 595 S.W.3d 216, 223 (Tex. Crim. App. 2020 ). T hese preservation requ ir ements app l y to complaints of improper jury argument
. See Hernandez v. State , 538 S.W.3d 619, 622 (Tex. Cr im. App. 2018) (“The r ight to a trial untainted by improper jury argument is f orfeitable.”); Threadgill v. State , 146 S.W. 3d 6 54, 667 (Tex. Crim. Ap p. 2004) (ho l ding that because appellant did not object to complained

- of jury argument , he “failed to preser ve error”). Indeed, er roneous jury argument , even if “incurably improper ,” is forfeited unless the complaining party objec ts a t the time of the argu me nt and pur s ues the objection to an adverse ruling. Her nandez , 538 S.W.3d at 623.
While Melton objected to the first two instance s of the State ’ s argument improperly referenc ing the chi ld

- sexual

- abuse statements m ade by venire me mbers during voir dire, he d id not obj e ct to the third instance of the improper a rgument , nor did he obtain a runnin g ob jection

. “ [L]ike all complaints that are subject to
p reservation, a defenda nt must object ea ch time an improper argument is made, o r he forfeits his complain t, re ga rdless of how egre g ious the argume nt. ” Morris v. S tate , No.
02

- 16

- 00171

- CR , 2017 WL 2590569, at * 5 (Tex. App.

— Fort Worth June 15, 2017,
pet. ref ’d

) (me m. op., not desi gnated for publication) (citing Valdez v. State , 2 S.W.3d
518 , 521

– 22 (Tex. App.

— Housto n [1 4th Dist.] 1999, pet. ref ’ d)) ; s ee also Hopper v

. S tate , 483 S.W.3d 235, 236

– 37 (Tex. App.

— Fort Worth 2016, pet. ref ’ d) (“[ Appellant] did not object to the se cond ar gument and, therefore, forfeited any errors arising from
this argument by the prose cuto r.”) ; Polk v. State , No. 02

- 13

- 00556

- CR , 2015 WL8 1883014 , at *11 (Tex. App.

— Fort Worth Apr. 23, 2015, pet. ref ’ d

) (mem. op., not designated for publication) ( “ To the exten t that appellant complains on appeal a bout
the State ’ s repeated argument
. . . , we [ ] co nc lude that appellant forfeited the complaint by f a iling to object to each occasion

. . . that the State made that
argument. ” )

. Because Melton d id not o bject when the S tate made the same “ incurabl y improper ” argument for the thir d time or obtain a runni ng ob jection , he ha s failed to
preserve his complaint for our review

. See Hernandez , 538 S.W.3d a t 621 ( holding that the right not to be subjected to improper jury argument is for feitab le and that even inflamma tory language outside the record “ does not dis pen se w ith error preservation requirements ” ) ; William s v. State , No. 02

- 17

- 00165

- CR , 2018 WL 359916, at *2 (Tex. App.

— Fort Worth Jan. 11, 2018, pet. ref ’ d) (mem. op., not designated for publication) ( “ [T ]he preservation requirements apply even when the Sta te ’ s ar gument is egregious. ” ). We o verrule Melton ’ s complaints on appeal

. 2

2 We note that we dis agree with the State ’s c ont e ntion that , because it is both a matter o f public knowledge and a reasonable i n f erence from the trial testimony that the effects of child sexual abuse follow a victim into adulthood , the complained

- of argument w as harmless

. The miscon duct

— urging the ju ry t o consider the emotional pain of their fellow venire members as a result of th e ir personal experienc es with child
sexua l abuse

— was essentially a call for justice on behal f of the v enire members. We th erefore cannot say that the State ’ s argument did not a f f

ec t Melton ’s substantial rights and would otherwise find the argument incurabl y egregious

. See Freeman , 340 S. W.3d at 728 ; cf. Montez , 2017 WL 2807395, at *6

– 7 ( holdin g jury argume nt referencing comme n ts by venire person during v oir di re did not a ffect def e n dant ’s substantial rights when the complained

- of comments consisted of eviden c e otherwise introduced at tria l , o r duplicative ).9 III. Co n clusio n We hold that Melton for feited his complaint s for our review . Accordingly, we
affirm the trial court ’ s judgmen t. /s/ Wade Birdwell
Wade Birdwell Justice
Do Not P ublish Tex. R. App . P

. 47 .2(b)
Delivered : A ugust 3, 2023