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I N THE T EXAS C OURT OF C RIMINAL A PPEALS

_________________________________________________ 

## J OSE 

## M IGUEL 

## G ARCIA A PPELLANT

vs. 

## T HE 

## S TATE OF 

## T EXAS A PPELLEE

_________________________________________________ F ROM THE F IFTH C OURT OF A PPEALS C AUSE N O

. 05

- 13

- 01578

- CR

A PPEAL FROM C RIMINAL D ISTRICT C OURT N O

. 2 OF D ALLAS C OUNTY , T EXAS , C AUSE N O

. F1 2

- 35086

- I

_________________________________________________ 

## A PPELLANT 

## ’ S 

## P ETITION FOR 

## D ISCRETIONARY 

## R EVIEW

_________________________________________________

B RUCE A NTON State Bar No. 01274700 ba@sualaw.com

B RETT E. O RDIWAY State Bar No. 24079086 bordiway@sualaw.com S ORRELS , U DASHEN & A NTON 2311 Cedar Springs, Suite 250 Dallas, Texa s 75201 2 14

- 468

- 8100 (office) 214

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- 8104 (fax) Counsel for Appellant2 Ground for Review

Whether evidence that is merely legally sufficient to support a conviction necessarily indicates the conviction was “ certain. ”3 T able of Contents

Ground for Review

................................ ................................ ...................... 2

Index of Authorities

................................ ................................ .................... 4 Identity of Parties and Counsel

................................ ................................ . 5 Statement Regarding Oral Argument

................................ ....................... 6 Statement of the Case and Procedural History

................................ ........ 7 Argument

................................ ................................ ................................ .... 9 Evidence that is merely sufficient to support a conviction does not necessarily mean the conviction was certain. They are related, yet distinct, inquiries.

................................ ................................ ................... 9 Prayer

................................ ................................ ................................ ........ 17
Certificate of Service

................................ ................................ ................ 19 Certificate of Compliance

................................ ................................ ......... 19 Appendix

................................ ................................ ................................ ... 204 I ndex of Authorities

Cases Alvarado v. State , 775 S.W.2d 851, 857 (Tex. App.

— San Antonio 1989, pet. ref’d)

................................ ................................ ................................ 13 Clewis v. State , 922 S.W.2d 126, 135 (Tex. Crim. App. 1996)

................ 16 Fahy v. Connecticut , 375 U.S. 85, 88 (1963)

................................ ............ 17 Garcia v. State , No. 05

- 13

- 01578

- CR, 2015 WL 3451867 (Tex. App.

— Dallas 2015)

................................ ................................ ........... 8, 12, 14, 15 Ga rdner v. State , 730 S.W.2d 675, 698 (Tex. Crim. App. 1987)

............. 11 Garrett v. State , 641 S.W.2d 232 (Tex. Crim. App. 1981)

....................... 13 Harris v. State , 790 S.W.2d 568, 587

– 88 (Tex. Crim. App. 1989)

.......... 13 Jackson v. Virginia , 443 U.S. 307, 319 (1979)

................................ ........ 16 Kotteakos v. United States , 328 U.S. 750, 765 (1946)

............................. 17 Lopez v. State , 288 S.W.3d 148, 178 (Tex. App.

– Corpus Christi 2009, pet. ref’d)

................................ ................................ ................................ 17 Marshall v. State , 210 S.W.3d 618, 625 (Tex. Crim. App. 2006)

............ 16 Menefee v. State , 614 S.W.2d 167, 168 (Tex. Crim. App. 1981)

.............. 13 Mosley v. State , 983 S.W.2d 249, 259 (Tex. Crim. App. 1998)

.......... 12, 14 Nauert v. State , 838 S.W.2d 328, 329 (Tex. App.

— Austin 1992, pet. ref’d)

................................ ................................ ................................ ....... 11 Rabb v. State , 434 S.W.3d 613, 616 (Tex. Crim. App. 2014)

.................. 16 Swearingen v. State , 101 S.W.3d 89, 95 (Tex. Crim. App. 2003)

........... 16 Vasquez v. State , 819 S.W.2d 932, 936 (Tex. App.

— Corpus Christi 1991, pet. ref’d)

................................ ................................ ................................ 11 Statutes T EX

. P EN

. C ODE § 21.02

................................ ................................ .............. 8 Rules T EX

. R. A PP . P. 21.8(c)

................................ ................................ ................. 8 T EX

. R. A PP

. P. 44.2(b)

................................ ................................ ............... 12 Treati ses George E. Dix & John M. Schmolesky, 43A T EXAS P RACTICE : C RIMINAL P RACTICE A ND P ROCEDURE § 51:1 (3d ed.)

................................ ............ 155 Identity of Parties and Counsel
For Appellant Jose Miguel Garcia :
R USS H ENRICHS Trial counsel of record R USS H ENRICHS & A SSOCIATES P.O. Box 190983 Dallas, Texas 75291

J OHN H EATHER Trial counsel of record 3409 Oak Grove Avenue, Suite 303 Dallas, Texas 75204

B RUCE A NTON B RETT E. O RDIWAY Appellate counsel of record S ORRELS , U DASHEN & A NTON 2311 Cedar Springs, Suite 250 Dallas, Texas 75201 For Appellee the State of Texas:

R OBBIE P FEIFFER R ENEE H ARRIS Trial counsel of record D ALLAS C OUNTY D ISTRICT A TTORNEY ’ S O FFICE 133 North Riverfront Boulevard Dallas , Texas 7 5207

L ISA M C M INN Appellate counsel of record D ALLAS C OUNTY D ISTRICT A TTORNEY ’ S O FFICE6 S tatement Regarding Oral Argument Garcia waives oral argument.7 S tatement of the Case and Procedural History

Garcia met Tania Aleman at the restaurant in which she worked. (RR3: 14). They soon had two children together, in addition to Aleman ’ s daughter from a previous relationship, the complainant , who Aleman nonetheless raised to believe Garcia was her biological father. (RR3: 13

- 15, 32).

When t he complainant was a teenager, she accused Garcia of fo ndling her beginning when she was seven years old. (RR3: 70). She a lleged it progressed to oral sex, and then intercourse when she was ten years old

. (RR3: 78)

. A pediatric nurse practitioner f ound no physical e vidence of the complainant ’ s allegations, though , and, despite the co mplainant ’ s contentions that the abuse occurred when others were in the
home, the complainant ’ s family members n ever observed any suspicious behavior. (RR3: 212

- 213 ; RR4: 41

- 42 , 50, 54)

. Additionally, t wo or three

we eks prior to the complainant’s outcry Aleman had confessed that

Garcia was not her biological father , and, i n fact, even Aleman assumed
the complainant ’ s allegations were made in rebellion to learning Garcia

was not he r biological father. (RR3: 32

- 35). Fur ther , soon after accusing8 Garcia the complainant was hospitalized for depression and suicidal behavior. (RR3: 37

- 38). A Dallas County grand jury nonetheless indicted Garcia on Jan uary 23, 2013, for continuous sexual abuse of a child. See T EX

. P EN

. C ODE § 21.02

. The State offered a plea bargain of 25 years ’ imprisonment, but there was “never really negotiat [ion] because Garcia “was [n]ever going
to accept.” (RR2: 5). He pleaded not guilty , and jury selection for his tr ial began October 9, 2013. (RR2: 6

- 7). The trial spanned the following two days, at the conclusion of which the jury found Garcia guilty. (RR4: 97). Approximately one month later, the parties reconvened and the

court sentence d Garcia to 35 years ’ imprisonment. (RR5: 18; CR: 63

- 64).

Garcia then timely filed notice of appeal and a motion for a new trial, the latter of which was overruled by operation of law. (CR: 68, 70); see
T EX

. R. A PP . P. 21.8(c)

. Garcia then appeale d to the Fifth Court of Appeals, raising one i ssue. See Garcia v. State , No. 05

- 13

- 01578

- CR, 2015 WL 3451867 (Tex. App.

— Dallas 2015) . The court overruled the issue and affirmed the trial court’s judgment. Id. No motion for rehearing was filed.9 Argument

Evidence that is merely sufficient to support a conviction does not necessarily mean the convi ction was certain. They are related, yet distinct, inquiries.

I Upon the conclusion of the State ’ s short case
- in

- chief, in which the

State produced no forensic, eyewitness, or circumstantial evidence, but
instead relied solely on the complainant ’ s accusations , the State repea tedly argued to the jury, over objection, that it should nonetheless b elieve the complainant because others already ha d :
Prosecutor: [The complainant] was forensically inte rviewed. They ’ re trained to look for signs of coaching and signs that they ’ re lying. And guess what, [the police detective] was standing out there watching that forensic interview. If he thought she wa s lying, would he have filed a case?

Defense: Objection, Judge. Improper argument r egarding the credibility of the alleged victim.

The court: Overruled.10 Prosecutor: Think about it. We brought you people who know [the complainant]. All right? Your job is to judge witness credibility.
Think about it. You do it every day in your normal life. Somebody you don ’ t know well comes up to you and says some story that sounds a little bit outlandish, okay, and you kind of call them on their bull crap; right? Somebody you know that says something that exaggerates something and you just know they ’ re exaggerating. We brought you the people who knew her. When [her best friend] hears from her what happened, he knew it was true. That ’ s why he took her into [the de an of students]

. When [the dean of students] saw how she was acting and her demeanor, she knew it was true. She called in an officer.

When [the police detective] was watching that forensic interview, he knew what he was hearing was the absolute truth.

Defense: Judge, objection to the bolstering and the argument about the truth of the alleged vi ctim, the alleged victim being the truth

teller by these witnesses.

The court: Overruled.11 (RR4: 90

- 92). In effect , then, the prosecutor argued to the jury that the police, the complainant’s teacher, and the complainant’s best friend b elieved her to be telling the truth, and that, therefore, she was
. There is little question that the trial court erred in overruling Garcia’s objections. Th is Court has clearly held that it is improper to suggest to the jury during closing that it should defer to another’s a ssessment of the truthfulness of testimony, no matter how “experienced” that other may be, and in this case, it is plain that the State d id just

that. Gardner v. State , 730 S.W.2d 675, 698 (Tex. Crim. App. 1987)

. This Court held as much because, “[p] atently, determination of the cre dibility of a witness is the job of the factfinder.” Id . Accordingly, in Ga rcia’s brief on appeal, he argued that the trial court erred in overruling his objection to the prosecutor’s argument to the jury that it should b el ieve the complainant simply because another did. ( Ap. Br. at 11 ) (citing

id ; see also Nauert v. State , 838 S.W.2d 328, 329 (Tex. App.

— Austin 1992, pet. ref’d) ; Vasquez v. State , 819 S.W.2d 932, 936 (Tex. App.

— Corpus Christi 1991, pet. ref’d))

.12 The court of appeals didn’t disagree. Garcia v. State , No. 05

- 13

-
01578

- CR, 2015 WL 3451867, *3 (Tex. App.

— Dallas 2015). Instead, it addressed “[t]he real question”: whether the trial court’s error affected Garcia’s substantial rights. See (Ap. Br. at 12) (characterizing the harm analysis as “[t]he real quest ion) (citing Mosley v. State , 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (improper comments by the prosecutor r egar ding the honesty or credibility of participants are not considered constitutional errors); T EX

. R. A PP

. P. 44.2(b) (a non

- constitutional error must be disregarded unless it affected a sub stantial right) ; see also id

. As to that question, Garcia argued in his brief on appeal that, in
this case, where there was a total lack of evidence absent the complai nant’s testimony, the court should have grave an d severe doubts that the jury’s guilty verdict was free from the substantial influence of the pro secutor’s improper argument suggesting her testimony was credible. (Ap.

Br. at 13

- 14) (citing Lopez v. State , 288 S.W.3d 148, 178 (Tex. App.

– Corpus Christi 2009, pet. ref ’ d) (in evaluating whether a non

constitutional error affected an appellant’s substantial right, and where

the evidence is otherwise “not overw helming,” even the uncertainty of13 harm requires reversal); Menefee v. State , 614 S.W.2d 167, 168 (Tex. Crim. App. 1981) (finding reversible error where prosec u tor’s remarks

bolstered the te s timony of the only witness); Garrett v. State , 641 S.W.2d 232 (Tex. Crim. App. 1981) (hearsay testimony o f fered to bolster testimony of State’s principal witness was prejudicial) ) . “In this case, as in almost any case, ‘[i]t is difficult to determine what evidence infl uenced the jury in reaching [its] criminal verdict, without such a judicial incursion into the mental processes of jurors.’” Lopez , 288 S.W.3d at 179 (quoting Alvarado v. State , 775 S.W.2d 851, 857 (Tex. App.

— San Ant onio 1989, pet. ref’d) ). But t his reality, coupled with t he improper arg ument’s great potential to disrupt the juror’s evaluation of the evidence,

should cause the reviewing court to seriously question whether the j urors were properly able to apply law to facts in order to reach a just ve rdict. See generally Har ris v. State , 790 S.W.2d 568, 587

– 88 (Tex. Crim. App. 1989) (“[T]he reviewing court should focus not on the w eight of the other evidence of guilt, but rather on whether the e r ror at issue might possibly have prejudiced the jurors' decision

- making; it should ask not whether the jury reached the correct result, but rather whether the j u-14 rors were able properly to ap ply law to facts in order to reach a ve rdict.”). This time, the court of appeals disagreed

. For three reasons: 1) The complainant’s “testimony alone was sufficient to support a ppellant's conviction”; 2) “The prosecutor's statements came after defense counsel had

characterized G.A. as someone who ‘heard voices’ and was ther efore not credible”; 3) The court instructed the jury both orally and in writing that it was “the exclusive judges of the facts proved, of the credibility of the
witnesses and the weight to be given to the testimony....”

Garcia , 2015 WL 3451867 at *3

- 4 . The court’s opinion was entirely based upon this Court’s in Mosley , in which this Court applied a three

factor analysis “generally” used by federal courts in evaluating har mless error. Id . (citing Mosley , 983 S.W.2d at 259 ( “In applying the federal

ru le to improper argument cases, federal courts generally look to three factors: (1) severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor's remarks), (2) measures adopted to cure the15 misconduct (the efficacy of any cautionary instruction by the judge), and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction”)).

II It is clear from the court of appeals’s opinion that it considered the

final Mosley factor

— “the certainty of conviction absent the misco nduct”

— as weighing in favor of a finding of harmlessness. See Garcia , 2015 WL 3451867 at *3. But the only basis on which the court conclu ded as much was that the complainant’s “testimony alone was sufficient
to support appellant’s conviction.” And while related, that is an entirely
distinct inquiry. Evidence sufficiency “addresses not the persuasion of the trial fact

finder

— the jury or if jury trial is waived the trial judge

— on the basis of this evidence but rather the scrutiny of this evidence to assure that it is sufficient for the trial fact finder to reach a finding of guilt.” George E. Dix & John M. Schmolesky, 43A T EX AS P RACTICE : C RIM INAL P RACTICE
A ND P ROCEDURE § 51:1 (3d ed.) . To that end, i n evaluating the legal su fficiency of the evidence, all that matters is whether, viewing the ev i-16 dence in the light most favorable to the verdict, a rational trier of fact could have found the defendant guilty of all of the e lements of the o ffense beyond a reasonable doubt. See, e.g., Rabb v. State , 434 S.W.3d 613, 616 (Tex. Crim. App. 2014) (citing Jackson v. Virginia , 443 U.S. 307, 319 (1979) ; Swearingen v. State , 101 S.W.3d 89, 95 (Tex. Crim. App. 2003) ). This is far short of the standard required to find a person
guilty in the trial court. Indeed, evidence that rationally supports a ve rdict of guilt beyond a reasonable doubt under the Jackson v. Virginia legal sufficiency standard does not even necessarily meet the since

discarded factual sufficiency standard. Marshall v. State , 210 S.W.3d 618, 625 (Tex. Crim. App. 2006) . And that, too, required a “def erential
standard[ ] of review applied” to jury verdicts. Clewis v. State , 922 S.W.2d 126, 135 ( Tex. Crim. App. 1996)

. Whether the evidence was l egally sufficient, then, is hardly indicative of whether Garcia’s conviction was “certain” absent the trial court’s error. The former is insulated by

far too much def erence
. It is for this reason that, in determining whether a substantial right was affected , a reviewing court should not be concerned “with17 whether there was sufficient evidence on which [Garcia] could have

been convicted.” Lopez , 288 S.W.3d at 178 (quoting Fahy v. Connecticut , 375 U.S. 85, 88 (1963) ). The question, instead, is whether there is a re asonable possibility that the prosecutor’s closing argument “might have

contributed to the conviction.” Fahy , 375 U.S. at 88. As the United States Supreme Court explained in Kotteakos : [I]f one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not af fected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the convict ion cannot stand.

Kotteakos v. United States , 328 U.S. 750, 765 (1946) (emphasis added)

. The court of appeals in this case di d just the opposite: it evaluated whether the evidence was sufficient, and, upon concluding it was, a ffirmed Garcia’s conviction. This was incorrect.
Prayer Accordingly, Garcia respectfully requests this Court to grant this
petition so that it may revers e and remand this case to the court of a p-18 peals to properly evaluate whether Garcia’s conviction was certain a bsent the trial court’s error. Respectfully submitted,

/s/ Bruce Anton B RUCE A NTON Bar Card No. 01274700

/s/ Brett E. Ordiway B RETT E. O RDIWAY Bar Card No. 24079086

S ORRELS , U DASHEN & A NTON 2311 Cedar Springs Road Suite 250 Dallas, Texas 75201 bordiway@sualaw.com (214)

- 468

- 8100 (office) (2 14)

- 468

- 8104 ( fax ) Attorneys for Appellant19 Certificate of Service I, the undersigned, hereby certify that a true and correct copy of the foregoing Appellant ’ s Petition for Discretionary Review was ele ctronically served to the Dallas County District Attorney ’s office on July 20, 2015

.

/s/ Bruce Anton Bruce Anton

Certificate of Compliance

Pursuant to T EX

. R. A PP

. P . 9.4(i)(3) , undersigned counsel certifies that this brief complies with :

1. the type

- volume limitation of T EX

. R. A PP

. P. 9.4 (i)(2) ( D ) because this brief contains 1, 702 words, excluding the parts of the brief e xempted by T EX

. R. A PP

. P. 9. 4(i)(1 ).

2. the typeface requirements of T EX

. R. A PP

. P. 9.4(e) and the type style requirements of T EX

. R. A PP

. P . 9.4(e) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2011 in 14

- point Century

.

/s/ Bruce Anton Br uce Anton20 

## AppendixAffirmed and Opinion Filed May 29, 2015 

# S

In The 

### Court of Appeals Fifth District of Texas at Dallas

No. 05-13-01578-CR JOSE MIGUEL GARCIA, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the Crimin al District Court No. 2 Dallas County, Texas Trial Court Cause No. F-12-35086-I
MEMORANDUM OPINION Before Justices Bridges, Lang-Miers, and Myers Opinion by Justice Bridges Jose Miguel Garcia appeals his continuous se xual abuse of a child conviction. A jury convicted appellant, and the trial court sentenced him to thirty-fiv e years’ imprisonment. In a single issue, appellant argues the trial court erred in permitting the State to argue at closing that the jury should believe the complainant’s accusati ons because others already had. We affirm the trial court’s judgment. Because appellant does not challenge the sufficiency of the evidence to support his conviction, only a brief recitation of the facts is necessary. The complainant, G.A., was three years old when her mother met appellant. G. A. grew up thinking that appellant was her biological father. G.A. was “about seven” when appellant began touching her over her clothes “and then he progressed to touc hing, going under [her] shirt and unde r [her] pants.” When G.A.–2– was eight, appellant began making her put her mouth on his penis. Eventually, appellant began putting his penis in G.A.’s vagina, and this happened “over fifty times.” When G.A. was fourteen, her mother told her that appellant wa s not her biological father. A “couple of weeks” later, G.A. was “playing a game of telling secr ets” with two friends at school by passing notes. G.A. wrote “my dad touches me” in a note, and her friend responded with a “disgusted kind of look” and initiated a follow-up co nversation. The friend advised G.A. to go to the counselor, Tracy Bennett. In response to G.A.’s disclosu re, Bennett followed the protocol of notifying an
administrator, who in tu rn involved the school resource officer, Tom Goane, who was the “police officer on campus.” Goane briefly questioned G. A. and contacted an Irving police detective, Stephen Lee. Appellant was subsequently indicted on a ch arge of continuous sexual abuse of a child. In closing argument, defense couns el asserted the State had spent “the lion’s share of their time” telling the jury why there was no proof of the underlying offense. Defense counsel argued, “the only thing [the State has] is the assertions of [G.A.] and they spent th eir entire time telling you why.” Defense counsel argued G. A. “changed her story . . . on th e stand even.” Characterizing G.A. as “embellishing” and adding to her story, defense counsel stated, “They said, well that’s normal. The more she tells it the better it gets and the more she adds and the more she opens up. Can you believe that beyond a reasonable doubt?” Defense counsel argued G.A.’s mother, when first told of the allegations of abuse, did no t believe G.A. and thought G.A. had made the allegations “because she was mad because she ha d just found out [appellant] was to [sic] her biological father.” Defense couns el argued the State was asking juro rs to “Trust us. Why would [G.A.] go through this.” Immediat ely, defense counsel raised the i ssue of G.A.’s mental health: Well, they did find out that she was ha ving a mental problem. She was having ideation. She was hearing voices. Sh e did hear voices say hurt people, hurt people in the family. Well, this happened after she said all this began? But the–3– development preceded any of these allegatio ns. She’s relating these things prior to the allegations being made, thes e occurrences of hearing things. Co-counsel for the defense emphasized that “whether she was sexually abused or not,” G.A. was “a young girl with severe problems.” Co-counsel made the following argument: The thing that [G.A.] said on the stand that which is telling is that she does hear voices. That’s quite an ast onishing thing. I’m so sorry to hear that, but it has to be considered. The voices te ll her to do things. They told her to harm her sister and her brother. They told her to push down the grandfather, the shadowy figure out there, the grandfather. Push him down. She was somewhat evasive. She couldn’t remember when those voices talk ed to her but she did remember they started a long time ago. So she is a pe rson – if that doesn’t raise a reasonable doubt, you might wonder what could. Can you base the verdict on the credibility of a person who hears voices? It’s that simple really. In his closing argument, the prosecutor urge d the jury to “Remember the evidence. I’m not going to try to mischaracterize it, all right, or change anything that people really said up there. I’m just going to as k you to listen and you decide wh at’s reasonable and what makes sense.” The prosecutor emphasized the many oppor tunities G.A. had to “take it back” and the

“financial ruin” that followed fo r the family once appellant went to jail. As to G.A.’s suicidal thoughts and cutting, the prosecutor stated those behaviors started when G.A. was ten years old, at the same time appellant began having sex with he r. After the prosecutor raised the subject of G.A.’s forensic interview, the following exchange occurred: [PROSECUTOR]: [G.A.] was forensically interviewed. They’re trained to look for signs of coaching and signs that they ’re lying. And guess what, Detective Lee was standing out there watching that fore nsic interview. If he thought she was lying, would he have filed a case? [DEFENSE COUNSEL]: Objection, judge . Improper argument regarding the credibility of the alleged victim. [THE COURT]: Overruled. [PROSECUTOR]: Think about it. We brought you people who know G.A. All right? Your job is to judge witness cred ibility. Think about it. You do it every day in your normal life. Somebody you don’t know well comes up to you and says some story that sounds a little b it outlandish, okay, and you kind of call them on their bull crap; right? Somebody you know that says something that exaggerates something and you just know they’re exaggerating. We brought you–4– the people who knew her. When [[G.A. ]’s friend from school ] hears from her what happened, he knew it was true. That’s why he took her in to Ms. Bennett. When Ms. Bennett saw how she was acti ng and her demeanor, she knew it was true. She called in an officer. When Detective Lee was watching that forensic interview, he knew what he was hearing was the absolute truth. [DEFENSE COUNSEL]: Judge, objection to the bolstering and argument about the truth of the alleged vi ctim, the alleged victim bei ng the truth-teller by these witnesses. [THE COURT]: Overruled. [PROSECUTOR]: So right up th rough . . . the therapist. She’s been seeing her now for eleven months. Not one time did sh e ever have any reason to believe that nothing happened. I mean, so you’re being asked -- folks, think about this. All right? This is what you’re being asked to do. You’re being asked to believe that G.A. made this all up, but for what? Okay? So let me get this straight then. The smoking gun is that we have a teenager who would rath er listen to music and not do chores, and so therefore something must be wrong. All right? That’s absurd. And how about finding out that that’s not really her bi ological dad. Think about that. So let me get this straight. She finds out it’s not her biological dad. But I guess then -- what does she gain then from saying that he sexually abused her? What would she gain from that? All right? The jury convicted appellant of continuous sexua l abuse of a child, and this appeal followed. In his sole point of error, appellant argues the trial court erred in permitting the State to argue at closing that the jury should believ e the complainant’s accusations because others already had. The trial court’s ruling on an objection to im proper jury argument is reviewed for an

abuse of discretion. Garcia v. State , 126 S.W.3d 921, 924 (Tex. Crim . App. 2004). Proper areas of jury argument are: (1) summation of th e evidence; (2) reasonable deductions from the evidence; (3) answers to argument of opposing c ounsel; and (4) pleas for law enforcement. See

Brown v. State , 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). Counsel is generally given wide latitude in drawing inferences from evidence as long as they are reasonable, fair, legitimate, and offered in good faith. See Gaddis v. State , 753 S.W.2d 396, 398 (Tex. Crim. App. 1988). We

review a trial court’s ru ling on an objection to improper jury argument for abuse of discretion.

See Garcia , 126 S.W.3d at 924.–5– The State argues the prosecutor’s argument wa s a proper response to defense counsel’s argument that G.A. was not credible. But see Gardner v. State , 730 S.W.2d 675, 698 (Tex. Crim. App. 1987) (it is error to argue jury should believe witness simply because prosecutors and investigators do). However, even assuming without deciding the trial court erred in overruling appellant’s objections, he cannot show he was harmed. Even if jury argument falls outside permissible areas, an appellate court will not reverse unless the error is harmful. See Mosley v. State , 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). Improper jury argumen t is reviewed under rule 44.2(b) of the rules of appellate procedure and must be disregarde d unless it affect ed appellant’s substantial rights. T EX

. R. A PP

. P. 44.2(b); see Martinez v. State , 17 S.W.3d 677, 692-93 (Tex. Crim. App. 2000). In determini ng whether appellant’s substant ial rights were affected, we consider: (1) the severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor’s remarks); (2) the measures adopte d to cure the misconduct (the efficacy of any cautionary instructions by the judge); and (3) th e certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction). Mosley , 983 S.W.2d at 259.
Here, G.A. testified she was “about seven” when appellant began touching her over her clothes “and then he progressed to touching, go ing under [her] shirt and under [her] pants.” When G.A. was eight, appellan t began making her put her mout h on his penis. Eventually, appellant began putting his penis in G.A.’s vagina, and this happe ned “over fifty times.” This testimony alone was sufficient to support appellant’s conviction. See T EX

. C ODE C RIM

. P ROC

. A

NN . art 38.07 (West Supp. 2014). The prosecutor’s st atements came after defense counsel had

characterized G.A. as someone who “heard voices ” and was therefore not credible. Prior to either side presenting argument , the trial court gave the jury the following instruction: Once the charge is read to you, you will hear argument s from the lawyers. The purpose of the argument is to try to guide you to the conclusi on that the person–6– giving the argument believes is appropriate under the evidence. But I want to remind you that the arguments themselves do not constitute evidence. Evidence is what you heard from the witness stand from witnesses who were sworn in and questioned, or evidence is whatever was introduced into evidence by way of photographs or reports. So again, you will base your verdict on the law that I give you and the evidence as it was developed dur ing the trial, and the argument is to try to guide you to the conclusion the arguer believes is appropriate. In its charge to the jury, the trial court once ag ain instructed the jury that they were “the exclusive judges of the fact s proved, of the credibili ty of the witnesses and the weight to be given to the testimony . . . .” After ex amining the record as a whole, we have a fair assurance that the error did not influence the jury, or had but a slight effect. See Mosley , 983 S.W.2d at 259. We overrule appellant’s sole issue. We affirm the trial court’s judgment.

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131578F.U05 /David L. Bridges/ DAVID L. BRIDGES JUSTICE–7– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JOSE MIGUEL GARCIA, Appellant

No. 05-13-01578-CR V.
THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 2, Dallas County, Texas Trial Court Cause No. F-12-35086-I. Opinion delivered by Justice Bridges. Justices Lang-Miers and Myers participating.
Based on the Court’s opinion of this da te, the judgment of the trial court is AFFIRMED

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Judgment entered May 29, 2015.