NO. 07-09-00148-CR 

IN THE COURT OF APPEALS 

FOR THE SEVENTH DISTRICT OF TEXAS 

AT AMARILLO 

PANEL B 

MAY 19, 2010 

SCOTT A. WHEELER, 

 Appellant 

v. 

THE STATE OF TEXAS, 

 Appellee 

____________________________ 

FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY; 

NO. 2007-418,302; HONORABLE BRADLEY S. UNDERWOOD, PRESIDING 

Memorandum Opinion 

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. 

 Scott A. Wheeler appeals his conviction of sexual assault of a fourteen-year-old 

girl1

 by contending 1) the trial court erred in denying his motion to suppress because his 

confession was not voluntary, 2) the evidence was legally and factually insufficient to 

establish the location of the assault, and 3) he was harmed by the prosecutor’s closing 

argument. We disagree and affirm the judgment. 

 

 1

Appellant was charged with two counts of sexual assault. One count involved the penetration of 

the complainant’s vagina by appellant’s penis while the second count involved the contact of appellant’s 

penis with the complainant’s mouth. Appellant was acquitted of the second count. 
2 

Issue 1 – Voluntariness of Confession 

After taking a polygraph examination, appellant gave a written statement to 

police in which he admitted having consensual sexual relations with the complainant. 

Appellant seems to be arguing that his confession was involuntary, despite having been 

Mirandized at the time, because it was given while he was in custody. We overrule the 

issue. 

 Before us is one of those arguments where we can but only shake our collective 

heads and say “what?” We know of no authority holding that a confession is involuntary 

simply because it was made while the speaker (who had been Mirandized) was in 

custody. More importantly, appellant cites us to no such authority. And, to the extent 

that the tact undertaken by appellant is one that incorporates an implied request for us 

to write new law on the subject, we leave that to other governmental bodies, such as the 

legislature or our Court of Criminal Appeals. Thus, appellant’s first issue is overruled. 

 Issue 2 – Sufficiency of the Evidence 

Next, appellant argues that the evidence was legally and factually insufficient to 

establish that the offense occurred in Lubbock County as alleged in the indictment. We 

overrule the issue. 

 Appellant admitted, in his confession, that he had sex with the victim at his 

friend’s house. A sheriff’s deputy testified that the “friend” alluded to by appellant was 

Ricky Daniels. Other evidence, which appellant does not question, illustrates that Ricky 

Daniels lived in Lubbock County. Assuming arguendo that the legal and factual 

sufficiency analysis applicable here is that used when assessing whether the State 

established the elements of the offense, the foregoing is some evidence upon which a 
3 

rational jury could conclude beyond reasonable doubt that the crime occurred in 

Lubbock County. That the victim said she was assaulted at a locale other than Daniels’ 

residence simply created an issue of fact and credibility for the jury to decide. It could 

have legitimately doubted the accuracy of her comments about the location given that 

she was intoxicated (high on drugs) at the time and opted to believe appellant. And, its 

doing so would not be wrong or manifestly unjust. 

Issue 3 – Jury Argument 

 Finally, appellant complains of several instances of allegedly improper jury 

argument. They consist of the prosecutor supposedly vouching for the credibility of the 

complainant and striking at appellant over the shoulder of defense counsel. The issue 

is overruled. 

 Regarding two of the alleged instances of vouching for the credibility of the 

complainant, appellant objected to both and each objection was sustained. The trial 

court also instructed the jury to disregard the comments; however, it refused to grant a 

mistrial.2

 We presume that the jury followed the instruction to disregard. Brock v. State, 

275 S.W.3d 586, 591-92 (Tex. App.–Amarillo, 2008, pet. ref’d). Moreover, nothing in 

the record indicates that it did not. See Gamboa v. State, 296 S.W.3d 574, 580 (Tex. 

Crim. App. 2009). Parenthetically, we note that appellant was acquitted of one charge 

made against him by the complainant. 

 As for the third instance of purported vouching, the prosecutor argued: “[a]nd if 

[the complainant] was being consistent with her history today, she would have taken the 

 2

Appellant further complains that one of those statements (“she has told you the truth”) was 

apparently on a slide presentation. Appellant requested the State to make a copy of that statement for 

inclusion in the record although it does not appear in the record. We note that the trial court did not 

actually order the State to do so. Furthermore, as noted above, an instruction to disregard was given to 

the jury. 
4 

easy way out, but [the complainant] is a different person.” The trial court overruled 

appellant’s objection to that comment. We note that a prosecutor may permissibly 

summarize the evidence. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008), 

cert. denied, ___ U.S. ___, 129 S.Ct. 2075, 173 L.Ed.2d 1139 (2009). Although 

appellant argues that the prosecutor was personally assuring the jury that the 

complainant had changed, she herself testified at trial that she had lied in the past but 

she had changed for the sake of her young son because she did not want him to be a 

liar. Thus, the remark was arguably a summation of the testimony given by the 

complainant. Therefore, the trial court did not abuse its discretion in overruling the 

objection. See York v. State, 258 S.W.3d 712, 717 (Tex. App.–Waco 2008, pet. ref’d) 

(stating that abuse of discretion is the standard of review). 

 Appellant also refers to a remark he deems as an effort to strike at him over the 

shoulder of his counsel. The remark was: 

But the law does not just protect the good children, sometimes the 

troubled ones. The defendant has confessed to this offense. Have we 

come to a place in our society that if you’re willing to sling enough mud 

that you can get away with the crimes that you admit to? 

The objection was overruled. Appellant argues that the statement must refer to his 

defense counsel because he did not testify at trial. 

 Argument that strikes at a defendant over the shoulders of defense counsel is 

improper. Dinkins v. State, 894 S.W.2d 330, 357 (Tex. Crim. App. 1995). That is not 

the ilk of the comment at bar for several reasons. First, it does not refer to defense 

counsel personally as opposed to the nature of the defense presented by counsel. 

Second, argument made in response to argument of counsel is proper, Cole v. State, 

194 S.W.3d 538, 546 (Tex. App.–Houston [1st Dist.] 2006, pet. ref’d), and appellant’s 
5 

counsel repeatedly attempted to label the victim as a liar. We believe that the statement 

of the prosecutor can be legitimately viewed as a response to appellant’s accusations. 

Consequently, the trial court did not abuse its discretion in overruling the objection. See 

id. at 545-46 (holding that the statement that law enforcement officers know better than 

the defense attorney when fingerprint testing should be done was not objectionable 

when it was a response to closing argument that the police had not done their jobs by 

dusting for fingerprints). 

 Finally, we cannot forget appellant’s confession to committing the crime. That 

alone tends to vouch more for the credibility of the complainant than any utterance by 

the prosecutor. We further couple this with the fact that appellant was acquitted of one 

count and the overall nature of the appellate record and cannot but conclude that no 

harm resulted from the comments at issue, assuming arguendo that they were 

improper. 

 Having overruled all of appellant’s issues, the judgment is affirmed. 

 Brian Quinn 

 Chief Justice 

Do not publish.