In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-22-00164-CR

___________________________

On Appeal from the 396th District Court

Tarrant County, Texas

Trial Court No. 1554184D

Before Sudderth, C.J.; Birdwell and Womack, JJ. 

Memorandum Opinion by Justice Birdwell

SCOTT ALEXANDER MELTON, Appellant

V. 

THE STATE OF TEXAS
2

MEMORANDUM OPINION

Appellant Scott A. Melton appeals his convictions for four counts of 

aggravated sexual assault of a child and one count of indecency with a child. See Tex. 

Penal Code Ann. §§ 21.11(a)(1), 22.021(a)(2)(B). Melton contends (1) that the trial 

court erred by permitting the State to present an improper jury argument in which it 

urged the jurors to consider statements made by venire members during voir dire and 

(2) that the jury argument was manifestly improper, harmful, and prejudicial. Because

we conclude that Melton forfeited his complaints for our review, we affirm.

I. Background

Melton’s three-year-old niece, S.M.,

1 made an outcry against Melton in July 

2018, and he was ultimately indicted on four counts of aggravated sexual assault and 

one count of indecency with a child. Melton’s case went to a jury trial in August 2022.

During voir dire, the State questioned several venire members about their own 

previous experiences with child sexual abuse and commented on how that abuse 

affected the venire members. For example, the prosecutor had the following exchange 

with one venireperson, who stated that they had been sexually assaulted as a small 

child:

[STATE]: And I can tell from your demeanor that --

VENIREPERSON: -- I can’t be impartial.

1

To protect her identity, we refer to S.M. by her initials. See Tex. R. App. 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 with us. We do know. 

Knowing that everything that happened to you, right, is that something -

- well, let me ask it this way.

Even knowing that nobody was prosecuted for that sexual 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 to pay for therapy. I can’t afford

that [expletive].

[STATE]: Can I ask you how many years ago it happened?

VENIREPERSON: It was several years of trauma, so I can’t give 

you an exact number.

Speaking to another venireperson who had worked with an anti-human trafficking 

organization, the prosecutor asked, “Knowing that you’ve heard their stories and 

probably seen the emotions on their faces as they talked about how this has affected 

them, even into adulthood, can you, for the purposes of this trial, not think about that 

to the extent that you make me prove my case . . . ?” The prosecutor also commented

on how past child sexual abuse had affected one venireperson’s marriage and how 

another venireperson’s brother still experienced the trauma of child sexual abuse as an 

adult. 

At the close of the evidence in the guilt–innocence phase of trial, both sides 

gave jury arguments. During the State’s closing argument, the prosecutor argued,
4

I’m so glad that we’re finally here and we can finally bring some closure 

to [S.M.’s] life. Because every single one of you was here on Monday 

afternoon [during voir dire], and you got to hear the stories of so many 

survivors of child[] sexual abuse. 

[DEFENSE COUNSEL]: I’m going to object to that being 

outside of the scope of evidence.

THE COURT: Overruled.

[STATE]: You got to hear those surviv[o]rs. When they talked 

about how they were the same age as [S.M.], and you got to see their

visible emotions in court and how this --

[DEFENSE COUNSEL]: I object. This is improper argument to 

talk about what happened in voir dire. That is not evidence.

[STATE]: It’s a plea for law enforcement, Judge.

THE COURT: Overruled.

[STATE]: You got to see their emotions how, as an adult, they are 

still 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 going to think that. She might not understand 

now . . . . But she will in the future, and she’s going to think back on this

day.

While Melton’s counsel objected to the first two instances that the State’s argument

referenced statements made by venire members during voir dire—both of which the 

trial court overruled—he did not object to the last instance, nor did he obtain a 

running objection.

The jury found Melton guilty and assessed his punishment at 60 years’

confinement on each of the four counts of aggravated sexual assault and 20 years’
5

confinement on the indecency with a child count. The trial court entered its judgment 

on the verdict and ordered the sentences to run concurrently. This appeal followed.

II. Discussion

Melton contends that the State improperly argued that the jury should recall the 

statements of their fellow venire members in voir dire; that the argument was 

manifestly improper, harmful, and prejudicial; and that the trial court erred by 

permitting the State to present its improper argument. In response, the State asserts 

that Melton forfeited appellate review of his complaints because he objected to only 

two of the three instances of the State’s referencing the venire members’ statements. 

Alternatively, the State concedes that the argument was improper but asserts that, in 

any event, the argument was harmless, as the “gist” of the State’s remarks was both a 

matter of common knowledge and a reasonable inference that the jurors could draw 

from S.M.’s testimony.

A. Permissible Jury Arguments

To be permissible, the State’s jury argument generally must fall within one of 

the following four areas: (1) summation of the evidence; (2) reasonable deduction 

from the evidence; (3) answer to opposing counsel’s argument; or (4) plea for law 

enforcement. Freeman v. State, 340 S.W.3d 717, 727 (Tex. Crim. App. 2011). As 

relevant here, statements made during voir dire are not evidence. Hyundai Motor Co. v. 

Vasquez, 189 S.W.3d 743, 753 (Tex. 2006); Montez v. State, No. 02-16-00175-CR, 2017 
6 

WL 2807395, at *6 (Tex. App.—Fort Worth June 29, 2017, no pet.) (mem. op., not 

designated for publication).

B. Standard of Review

Improper jury argument is reviewed under a nonconstitutional harm analysis. 

See Tex. R. App. P. 44.2(b). Even if a jury argument exceeds the permissible bounds, 

we will not reverse a trial court’s erroneously overruling a defense objection unless the 

error affected the defendant’s substantial rights. Id.; Martinez v. State, 17 S.W.3d 677, 

692–93 (Tex. Crim. App. 2000). A substantial right is affected when the error had a 

substantial and injurious effect or influence in determining the jury’s verdict. King v. 

State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328

U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)). In determining whether substantial rights 

were affected, we consider (1) the severity of the misconduct (that is, the prejudicial 

effect of the prosecutor’s remarks), (2) curative measures, and (3) the certainty of

conviction absent the misconduct. Freeman, 340 S.W.3d at 728.

C. Preservation of Error

We must first address whether Melton has preserved his complaint. To 

preserve a complaint for our review, a party must have presented to the trial court a 

timely request, objection, or motion sufficiently stating the specific grounds, if not 

apparent from the context, for the desired ruling. Tex. R. App. P. 33.1(a)(1); 

Montelongo v. State, 623 S.W.3d 819, 822 (Tex. Crim. App. 2021). Further, the party 

must obtain an express or implicit adverse trial-court ruling or object to the trial 
7 

court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Dixon v. State, 595 S.W.3d 216, 223 

(Tex. Crim. App. 2020). These preservation requirements apply to complaints of 

improper jury argument. See Hernandez v. State, 538 S.W.3d 619, 622 (Tex. Crim. App. 

2018) (“The right to a trial untainted by improper jury argument is forfeitable.”);

Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. App. 2004) (holding that because 

appellant did not object to complained-of jury argument, he “failed to preserve 

error”). Indeed, erroneous jury argument, even if “incurably improper,” is forfeited 

unless the complaining party objects at the time of the argument and pursues the 

objection to an adverse ruling. Hernandez, 538 S.W.3d at 623.

While Melton objected to the first two instances of the State’s argument

improperly referencing the child-sexual-abuse statements made by venire members

during voir dire, he did not object to the third instance of the improper argument, nor 

did he obtain a running objection. “[L]ike all complaints that are subject to 

preservation, a defendant must object each time an improper argument is made, or he 

forfeits his complaint, regardless of how egregious the argument.” Morris v. State, No. 

02-16-00171-CR, 2017 WL 2590569, at *5 (Tex. App.—Fort Worth June 15, 2017, 

pet. ref’d) (mem. op., not designated for publication) (citing Valdez v. State, 2 S.W.3d 

518, 521–22 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d)); see also Hopper v. 

State, 483 S.W.3d 235, 236–37 (Tex. App.—Fort Worth 2016, pet. ref’d) (“[Appellant] 

did not object to the second argument and, therefore, forfeited any errors arising from 

this argument by the prosecutor.”); Polk v. State, No. 02-13-00556-CR, 2015 WL 
8

1883014, at *11 (Tex. App.—Fort Worth Apr. 23, 2015, pet. ref’d) (mem. op., not 

designated for publication) (“To the extent that appellant complains on appeal about 

the State’s repeated argument . . . , we [] conclude that appellant forfeited the 

complaint by failing to object to each occasion . . . that the State made that 

argument.”).

Because Melton did not object when the State made the same “incurably 

improper” argument for the third time or obtain a running objection, he has failed to 

preserve his complaint for our review. See Hernandez, 538 S.W.3d at 621 (holding that 

the right not to be subjected to improper jury argument is forfeitable and that even

inflammatory language outside the record “does not dispense with error preservation 

requirements”); Williams 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 State’s argument 

is egregious.”). We overrule Melton’s complaints on appeal.

2

2

We note that we disagree with the State’s contention that, because it is both a 

matter of public knowledge and a reasonable inference from the trial testimony that 

the effects of child sexual abuse follow a victim into adulthood, the complained-of 

argument was harmless. The misconduct—urging the jury to consider the emotional 

pain of their fellow venire members as a result of their personal experiences with child 

sexual abuse—was essentially a call for justice on behalf of the venire members. We 

therefore cannot say that the State’s argument did not affect Melton’s substantial 

rights and would otherwise find the argument incurably egregious. See Freeman, 340 

S.W.3d at 728; cf. Montez, 2017 WL 2807395, at *6–7 (holding jury argument 

referencing comments by venireperson during voir dire did not affect defendant’s 

substantial rights when the complained-of comments consisted of evidence otherwise 

introduced at trial, or duplicative).
9

III. Conclusion

We hold that Melton forfeited his complaints for our review. Accordingly, we 

affirm the trial court’s judgment. 

/s/ Wade Birdwell

Wade Birdwell

Justice

Do Not Publish

Tex. R. App. P. 47.2(b)

Delivered: August 3, 2023