NUMBER 13-17-00663-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

ZACHARY GIDCUMB, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 25th District Court

of Gonzales County, Texas.

 

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Benavides and Longoria

Memorandum Opinion by Justice Benavides

Appellant Zachary Gidcumb appeals his conviction on six counts of aggravated 

sexual assault of two children, first-degree felonies. See TEX. PENAL CODE ANN.

§ 22.021. By a single issue, Gidcumb argues that the trial court should have granted 

his motion for a mistrial based upon the prosecutor’s improper closing argument. We 

affirm.
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I. BACKGROUND

Gidcumb, age eighteen, lived with his parents and siblings in Smiley, Texas in 

2016. His next door neighbors were a family with four young children: L.H. a one-year 

old, B.H., a four-year old, G.H., a six-year old, and C.H., a seven-year old.1 Another 

neighbor, Tucker Nohrer, a seventeen-year old friend of Gidcumb watched the four 

children almost every day. The children often visited the Gidcumb house to play with 

Gidcumb’s younger siblings on the trampoline and also to play video games with Gidcumb 

and his siblings, ages eleven and seventeen. 

As a juvenile, Gidcumb was convicted of aggravated sexual assault of a child, a 

five-year old boy. When Gidcumb was released from juvenile detention in Illinois and 

moved with his family to Smiley in November 2014, Gidcumb was a registered sex 

offender and the terms of his release did not permit him to be alone with children. 

Gidcumb’s mother advised G.H. and S.H., the four children’s parents, of Gidcumb’s prior 

conviction and the conditions of his release. Gidcumb’s mother was not employed and 

was home most of the time. She testified that when she left the house, she almost 

always took Gidcumb with her. She testified she was aware of his conditions of release 

and worked very hard to ensure that he complied and was not left alone with children. 

In February 2016, Gidcumb had minor surgery on his penis to correct an 

incomplete circumcision. At the conclusion of the surgery, he had a three-quarter inch 

mark where the excised skin was cauterized. According to his doctor who testified at 

 

1 We refer to the children and their parents by their initials to protect the children’s identities. See

TEX. R. APP. P. 9.8.
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trial, the mark might not be noticeable after it healed.

According to Gidcumb’s mother and S.H., March 11, 2016 was the last day of 

school before spring break and the children were out of school early that day. On March 

15, 2016, B.H. and G.H. told Tucker that Gidcumb touched them inappropriately. Tucker 

told their parents when they each got home from work. Gidcumb was arrested on March 

19, 2016. He was later indicted on multiple counts of aggravated sexual assault of the 

children that occurred on or about March 11, 2016 and March 14, 2016. 

The children were interviewed by a forensic interviewer with the Gonzales 

Regional Children’s Advocacy Center. Using anatomically correct dolls and drawings, 

G.H., the six year old, revealed that Gidcumb put his penis in G.H.’s mouth and in his 

anus. G.H. described the event taking place in B.H.’s bedroom, but also said he went 

home later. G.H. also reported that Gidcumb did the same thing to his older brother, 

C.H. G.H. testified at trial.

B.H. also revealed to the forensic interviewer using drawings and anatomically 

correct dolls that Gidcumb penetrated her vaginally and anally, kissed her on her anus 

and her genitalia. B.H. also told the interviewer that Gidcumb put her and C.H. on his 

lap with their clothes off. B.H. testified at trial that these events happened more than 

once. The children testified that Gidcumb’s penis looked “normal.” 

The interviewer also spoke to C.H. who was seven. According to the interviewer, 

C.H. was very closed-off. He admitted that Gidcumb had done something to his siblings 

but would not discuss what he knew. At trial, he testified that he did not want to talk 

about it.
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During closing argument, the prosecutor referenced defense counsel’s remark that 

the surgery left Gidcumb’s penis looking different than other circumcised penises and the 

children would have noticed. The prosecutor referred to defense counsel’s statement as 

“the most ridiculous thing I’ve heard throughout this trial.” Defense counsel objected, 

and the trial court sustained the objection. Later on the prosecutor argued:

And if you think that the sheriff’s office should have done more, you call the 

sheriff and you tell the sheriff that they messed up and they should have 

done more. You do not punish these kids. You do not deny them justice 

that they deserve because you are mad.

Defense counsel again objected, the trial court sustained the objection, and instructed the 

jury to disregard the prosecutor’s statement. The prosecutor continued and later argued:

Then I want you to think about how they were able to describe what 

happened to them, because the only way you come back with a not guilty 

verdict in this case is if you come back and you say [B.H.] and [G.H.], you’re 

lying, you were not sexually assaulted. That’s it.

Defense counsel objected, the trial court sustained, and instructed the jury to 

disregard. The prosecutor closed with the following argument:

Now, ladies and gentlemen, it’s your time to make your choice, and your 

choice is so incredibly important and so incredibly powerful. You have the 

choice to come back with a guilty verdict and say, We believe you. We will 

stand up for you. We will hold the person who stole your innocence from 

you accountable, or you can come back not guilty and you can let this 

Defendant move on to his next victim.

Defense counsel objected; the trial court sustained the objection. Defense counsel 

asked for an instruction for the jury to disregard and the trial court instructed the jury. 

Defense counsel requested a mistrial, but the trial court denied the request. The 

prosecutor explained to the trial court that her argument was a reasonable deduction from 

the evidence and “he’s already had one victim, he’s now had three.” Defense counsel 
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objected again, and again the trial court sustained the objection, and instructed the jury 

to disregard.

The jury found Gidcumb guilty on all six counts and sentenced him to sixty years’ 

imprisonment in the Institutional Division of the Texas Department of Criminal Justice on 

each count with his sentences to run concurrently. Gidcumb appealed.

II. MOTION FOR MISTRIAL

Gidcumb’s sole issue is that the trial court abused its discretion when it failed to 

grant his request for a mistrial.

A. Standard of Review

We review a trial court’s ruling on a motion for mistrial for an abuse-of-discretion. 

Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). We view the evidence in 

the light most favorable to the trial court’s ruling and uphold the trial court’s ruling if it was 

within the zone of reasonable disagreement. Id.; Wead v. State, 129 S.W.3d 126, 129 

(Tex. Crim. App. 2004). We do not substitute our judgment for that of the trial court, but 

rather decide whether the trial court’s decision was arbitrary or unreasonable. Charles 

v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004). Thus, a trial court abuses its 

discretion in denying a motion for mistrial only when no reasonable view of the record 

could support the trial court’s ruling. Id.

A mistrial is the appropriate remedy when the objectionable event is so emotionally 

inflammatory that a curative instruction is unlikely to prevent the jury from being unfairly 

prejudiced against the defendant. See Young v. State, 137 S.W.3d 65, 71 (Tex. Crim. 

App. 2004). 
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B. Applicable Law and Discussion

During closing argument, the State made an appeal to the jury to find Gidcumb 

guilty or he would move on to his next victim. The State also argued that a not guilty 

verdict would tell the children that the jury did not believe they were sexually assaulted. 

The jury received instructions to disregard both times. 

Proper jury argument falls within one of four general categories: (1) summation of 

the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of 

opposing counsel; and (4) pleas for law enforcement. Jacobs v. State, 787 S.W.2d 397, 

406 (Tex. Crim. App. 1990); Lookingbill v. State, 855 S.W.2d 66, 76 (Tex. App.—Corpus 

Christi–Edinburg 1993, pet. ref’d). For an improper jury argument to constitute reversible 

error, it must: “(1) be manifestly improper, harmful and prejudicial; (2) be violative of a 

statute; or (3) inject new and harmful facts into the case.” McBride v. State, 706 S.W.2d 

723, 727 (Tex. App.—Corpus Christi–Edinburg 1986, pet. ref’d).

The State argues that its argument was both a reasonable deduction from the 

evidence and a permissible plea for law enforcement. See Cook v. State, 858 S.W.2d 

467, 477 (Tex. Crim. App. 1993) (holding that the prosecutor’s argument that defendant 

“is going to kill people. He’s dangerous. How many times will it take before that man is 

forever stopped?” was both a proper summation of the evidence and plea for law 

enforcement); Debolt v. State, 604 S.W.2d 164, 169 (Tex. Crim. App. [Panel Op.] 1980) 

(holding a proper plea for law enforcement included the argument that “[w]hat I’m mainly 

concerned with is he is not out among the public, living next door to me or next door to 

anybody else.”); Starvaggi v. State, 593 S.W.2d 323, 328 (Tex. Crim. App. 1979) (holding 
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that the State’s closing argument that “I hope he doesn’t come knocking on one of your 

doors at eight o’clock in the evening” was a permissible plea for law enforcement and a 

reasonable deduction from the evidence); McBride, 706 S.W.2d at 729 (holding that

argument was a proper plea for law enforcement when prosecutor stated: “if you-all make 

a mistake, what might happen? . . . he’s dangerous, this could happen again, it is likely 

to happen again. . . . They always say about doctors that they bury their mistakes. Youall make a mistake and they might bury somebody else.”). 

A prosecutor is permitted wide latitude in drawing inferences from the evidence 

provided those inferences are reasonable and offered in good faith. Coble v. State, 871 

S.W.2d 192, 205 (Tex. Crim. App. 1993); see also Bustillo v. State, No. 03-00-00773-CR, 

2002 WL 58222, at *8 (Tex. App.—Austin Jan. 17, 2002, no pet.) (op., not designated for 

publication). Moreover, “any harm resulting from an improper jury argument by the 

prosecutor is obviated when the objection to the instruction is sustained and the jury 

instructed to disregard the argument.” DeBolt, 604 S.W.2d at 170.

“On appeal, we generally presume the jury follows the trial court’s instructions in 

the manner presented. The presumption is refutable, but the appellant must rebut the 

presumption by pointing to evidence that the jury failed to follow the trial court’s 

instructions.” Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005) (presuming 

jury followed trial court’s instruction to limit its consideration of nude photographs of young 

men to one of several charged offenses); Waldo v. State, 746 S.W.2d 750, 754 (Tex. 

Crim. App. 1988). 
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We hold that the trial court’s instruction to the jury to disregard the prosecutor’s 

argument was sufficient to cure any prejudice and Gidcumb has not overcome the 

presumption that the jury followed the trial court’s instruction to disregard the argument. 

We overrule Gidcumb’s sole issue.

III. CONCLUSION

We affirm the judgment of the trial court.

GINA M. BENAVIDES,

Justice

Do not publish.

TEX. R. APP. P. 47.2 (b).

Delivered and filed the

11th day of July, 2019.