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

___________________________

No. 02

- 22

- 00100

- CR

______ __ ___________________

On Appeal from the 415th District Court Parker County, Texas Trial Court No. CR19

- 1067

Be fore Birdwell, Bassel, and Walker, JJ. M emorandum Opinion by Justice Bassel 

### C ALVIN 

### W ILSON 

### G RAVES 

### , Appellant

V



### .

T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION

I. I n troduction

A jury found Appellant C a l vin Wilson Graves gu i l ty of t he offen se of

continuous sexual abuse of a child. See Tex. Penal Code Ann. § 21.02(b)

. The jury

also assessed Appellant ’ s punishment at life in the Texas Department of Criminal

J u stice

– Institutional Division

. The trial court rende r ed judgment in acc ord ance with

the verdict

.

I n a single issu e, Appellant contends t h at the Stat e ’ s closing arg uments in the

guilt

–

innocence and punishment phas es of trial (1) imprope rly com me nted on his

choice not t o tes t i fy, (2) injected facts not included in the trial recor d, and

(3 ) “ infected the trial with unfairness to such a deg re e that it violated Appellant ’s

rights to due process under the Fourteent h Amendment. ” App ellant fa i led to

p res erve the first and th ird c om p laint s within his s ole issue because he failed to make

an objection on those bases in the trial court ; t he one objection that he did make does

n ot comp ort with the ar guments rais ed in his first and third co m plaint s

. Further

, the

complaints lack merit becaus e (1 ) the State ’ s argument did n o more than it was

entitled to do by commenting on pretrial sta tement s made by Appellant

, and

Appellant ’ s argu ment

— tha t doing so was a comment on his failure to tes ti fy

— ha s

neith er logical n or legal force ; (2) t he State ’ s a rgu m ent di d no t interject facts not

included in the record ; and (3) Appellant ’ s general Fourteenth Ame nd ment challenge3 cannot stand as a result of the failure of his specific challenge to the State ’ s clos ing

argu ments

. Accordingly , we affirm the t ria l court ’ s jud gment

.

II. Factua l Background

Appellant is married to Comp lainant ’ s great aunt. Dur in g a peri od in 2013,

Appellant an d his wife lived with Com plainant and her family. A ft er li ving in the

same duplex unit a s Complainant

, App ell a nt and his wife late r moved to a near by

duplex in the same housing co mp lex

. A ccording to Co mplainant , the abuse from

Ap pellant be gan whe n she was se ven o r eight years o ld and A ppellan t was i n h i s

fifties.

C omplai nan t testified that

, d uring the period th at Appellant lived in he r hom e

and in the near by unit, he commit ted a number of a ct s of sexual abuse against her

. 1

Ap pel lant does not challeng e t hat t he evidence wa s suffic ie nt to establish that he had

1 P enal Code S ection 21 .02(b) provide s that

[ a] person commits an offense i f:

( 1) during a period th at is 30 or mo re day s in dur ati on, the p erson commits two or mo re acts of sexual abuse, regardless of whet her the acts of sexual abuse a r e committe d against one or more

v

ictims; a nd

( 2) at the time of the commission of each of the acts of sexual abuse, the ac tor is 17 y ears o f ag e or ol der and t he vic tim is:

( A) a chi ld younger than 14 years of age, regardless of whether t he actor knows th e age of th e victim at the time of the offe nse [ .]

T ex. Pe nal Code Ann

. § 21.02 (b).4 com mitted continuous sexual abuse of a child ; t hus, it is unnecess ary fo r us to de tail

the acts of abu se about which Comp lainant testified

. Complainant testified that A ppellant described himself as a preacher and th at

God had told him that he and Complainant should be together. She also testified that

he repea t e d ly tol d her that she was unloved, that her brot h er was her m other ’ s
(Mother) favorite , and that Complainant would go to hell if she told anyone of

Appell ant ’s sexual acts with her. Complainant testified that she feared the

consequen ce s of revealing the abuse and that out of fear she did not o ut cry unti l 2019

when she tol d her bro ther and then Mother of the acts that Appellant had committ ed

against her

. Moth er reported the outcr y to the local polic e, and the local p olice

re quested the assistance of the Parker Co u nty Sheriff ’ s D epartment. The sherif f

’ s
department assigned on e of its crimes

- against

- chi ldren investigators to the case.

A f orensic inter view of Co mpl ainant was conducted a t a local c hild a dv ocacy

center, and the interview was observed remotely by the investigator

. After he had

observed the interview, the investigator a sked M ot her to call A ppellant and confront

him with a fabrica ted s tory that she h ad found a diary t hat had been w ritten b y
Complainant and t ha t det ailed the abuse allegedly co mmitted by Appellant

. Mother

called Appellant while the inv estigator list ened over the ph one ’ s speaker. The

investigator te rm ed the call a o ne

- party

- conse nt cal l

. A recording of t h e call

, which lasted approxim ately seven min utes , was

admit ted into evidence and played for the jury

. M other used the fabricated st ory that5 she had found a d iary t hat Complainant had written in

. During t he call

, Ap pellant

repeatedly d e n ied that he had to uched Complainant and denied th at the events that

Complainant h a d detailed in her interview had occur red. Appellant also den ied t hat

he was im pl y

ing that C omplainant had lie d

, cont ending instea d th at Complai nant was
fantasizing that th e e vents had occurred. At one point in the conversa tion, Appellant

suggested that Mother would not be able to go to H eaven if she persisted in her

alleg ations against him.

Th e next step taken by the invest igator was an in

- person i nterv i ew of App ellant

in h is home. A recording of the interview, which lasted more than an hour, was also

introduced into evidence and p layed f o r the jury. During t he interview, Appell an t

described himself as a former police offi cer, a cou nselor

, a nd a minister

. Early in the

in terview, h e stated t hat based on his experi ence i n these roles, seve n out of ten

alle gations o f sexual abuse are “ bogus. ” In App el la nt ’ s words

, “ [A] ny bit ch can say
anything ab o ut any guy. ” He stated that he was around children all the time and had

taken training in t he church that he was involved with about “flag warnings” for abuse

and how to ha ndle abuse and rep or t it. He had received th is training after he had

a sked to be able to volunteer in a church’s V acation B ible S chool

. H e s tate d that

while on disability

, he had obt a ined a human services degree an d p l anned to work in

t he court system, including counseling juveniles.

D uring th e interview, A p pellant re peatedly den ied that he had initi ated any

sexual con tact with Complainant and denied tha t the se xual co ntact described by6 Com plainan t had occurred

. He claimed that Complainant was troub l ed and had a

strained relationship with M other tha t had resulted in some part from M other ’ s drug

probl ems. I n Appella nt ’ s vi ew , Complainant had a “ uniqu e , unu sual l iking ” for him

. He thought that if a girl her age had an i nfatu ation with a man his age, then something

was wrong with the child. H e detai led condu ct by Complain ant a t the age of eight or

nine t hat included asking if they could live to get h er in a foreign c ountry, grabbing hi s
penis
, and l yi ng in front of him naked and exposing h er genitals

. He also clai med that

Complainant had t old him that she ha d watched po rnographic mo vies while M other

was asleep

. He recounted that Complainant had t o ld hi m of prior i ncid ents of sexual

abuse tha t she had experienced and th at , in her words at eight or nin e years of age

,

she had engage d in some of every ty pe of sexual be havior , except sexual intercou r s e.
Appellant reported n one of Complainant’s all e ged conduct or stat em ents to M other

or to law en for cement and e xcused the failure t o do so because of M othe r ’ s drug

problem and th e fact t ha t Complainant was blood relation to his wife and not himself

.

N o t unexpected ly, in ar guing it s case, the State referred to the recordings of the

one

- party

- con sent call and the i nte r v

iew dur ing its closing argument in b oth th e guilt

– innocence and pun ishment phases of trial. W e wi ll set forth the p ortions of the

cl osing argumen t s that Appellant q uoted i n his brief and h ighli ght the same port io ns

of the quote d material that he d id

. First, Appellant quote d from the open in g port ion

of the State ’ s closing argum en t durin g the guilt

–

innocence phase :7 In opening statement [ ,] I mentioned that you ’ re going to hear from [Appellant ’ s] o wn mouth. You he a rd in h is i nterview , and I characterize it as h im trying to groom [the P arker Co unty Sheriff ’ s Department investigator]
, and I h ope

. . . that stuck out to you

. So what [Appell ant is] doing in every turn in the investigation is trying to find

comm on grou nd for [ the investigator]

. So he starts it off as , well, in m y minis try and co un seling, ei ght out of ten of these people are inn oce nt in jail. He says, I used to be a co p just like you. It doesn ’ t work. So I used to be a counselor, no a the rapist, I ’ m a mi nist er. I ’ m one of 15 people in the Unit ed States who ’ s taken online human s ervices class e s, whateve r he was talking about. He ’ s tr ying to get [the investigator] on his sid e, o n his team. And he said a few things in his interviews. With [Mother] on the one

- party [

- ] consent call, it ’ s striking tha t h e said

to [ M other] , y ou can ’ t pro ve it; she c an ’ t prove it. Yes, we can, and

we did. In his interview with [the investigator] , [Appellant said , “ S] he came onto me. She came onto me. It ’ s not my fault. Yeah,

t here was co ntact. It was her. [ ” ] This (indicating). This is who he w as tal king abo ut when he said she came onto me

. Her ( indicating). A little girl grabb ing his junk sitting naked on the ottoman. Lies.

Appellant then quote d a portio n of the State ’ s rebuttal argument in the gu ilt

–

inno cence ph ase . T h is q uo te include s the sole objection that Appellant mad e to the

State ’ s argument :

This

-- let ’ s go thro ugh it. Cop, sla sh, counselor, slash, minister, slash, I ’ m disa bled, but I got this online de gree in human counseling, and I ’ m g oing to work in the courts w it h juveniles

-- o kay, that ’ s not dist urbing

-- but I haven ’ t got my degree yet because I haven ’ t p aid them that mon ey, but I can ’ t work, but I ’ m about to go back to wo rk, but I ’ m probably goin g to be dead by my birthday, whi ch was thre e years ago. These ar e the things yo u ’ re talking about

-- that you ’ re h earing h im tell you. Does it make any sense to you? Because su rely it doesn ’ t make any sense to me. But this is the w orld we live in when we deal with [Appellant]

. How m any ti mes did you hear him say, I ’ m not calling her a liar? I ’ m not c alling her a lia r. I ’ m not calling her a liar. Okay. I do n ’ t know what the hang

- up with that word is, because, so help me God, if I ’ m a ccused of molest ing a ch ild, I will be yelling a t you as l ong as y ou would list en to me. I don ’ t know wh at that crazy per son said; she ’ s lying; I d id not do it; she8 is a liar. So I don ’ t know w hat his hang

- up is with that word, but I don ’ t have a problem s aying it. Thi s abomin ation of a fake Christia n man is a li ar

. He l ies. Tha t ’ s what he does. He lies, he

ma nipulates whoev er i t is that he needs to control, to accomplish hi s own goals. He lied about [Complainant] grabbing at his junk. He lied about that ridiculous ottoman story. He has lied and manipulated this whole sit uati on
. Everything t hat cam e out of his mouth to [the i nvestigator] w as either self [

- ] p romotion o r a l ie. That ’ s the fact of the matter. Don ’ t you find it weird that the night of the phone call with [Mo ther] or the conversatio n with [the investigator] , nobo dy told him [that ] this [had] ha ppened w hen she ’ s ei ght or nine? Don ’ t you thi nk it ’ s weird [that] he automatically kn ew what th ey were talking about? He ’ s been in her life her whole life, re ally, to hear them tell it.

Th eir whole life, they ’ ve been ar ou nd. It could h ave been when she

-- she c ould hav e said when she was in kindergarten on e time you fond led her on the bus , or she c ould have made up the story, but, automatically, he goes to, oh, she was eight or nine at the time. Oh, yeah, it was

-- the d iary was when s he was eight or nine. Reall y?

[A pp ellant ’ s counsel] : [] Judge, I ’ m going to obje ct; that ’ s a missta tement a s the fact s presented to th e jury. In the one

- party [

- ] consent cal l betwee n [Mother] and [Appellan t]
, [ Mo ther] mentioned

-- [ ]

[S ta te ’ s counsel] : [] Judge, I appreciate him

-- [ ]

Distric t Court: [] Over ruled. []

[State’s counsel] : [] Thank you. []

F inall y, Ap pell ant quote d a portio n o f the S tate ’ s closing argument during the

punish m ent phase :

I don ’ t know if you want to st ar t a t the top and s tart kicking stuff off for mitigati on, but w hen you ’ re thinking about whether y ou want to g ive mitigation to h im, whether y ou want t o mi ni mize the sentence, I want you to remember his wor ds: All the child ren he ’ s worked around; all the m inis tries he ’ s don e; how he seeks out [V] acation9 [B] i ble [S] chool; ho w he ’ s g oing to work in the court system so he can work with juven iles. This is a man wh o, by his own words, that he has sought out opp ortuniti es to be a lone and ha ve access to childre n in a truste d posit ion. Because what do you do when y ou get that and yo u ’ re a p edophile or you ’ re sexually inclined to wards eight

- year - ol d [] [kids] ? You put y ourself i n a position of trust so that you hav e access , the pare nts think you ’ re gr eat, how har d

-- how bad can he be? He ’ s an old man; he ’ s so cute; oh, my gosh, he volunteers all the time. T hat should scare you to death as a parent, a grandp arent, an unc le, a cou sin , a brother that people like thi s are

ru nning arou nd in our community

.

I II

. Analysis

A. Appellant forfeited most of his conten tions of e rro r by f ailing to

o bject t o the State ’ s closing argume nt s
. Appellant predicates the l io n ’ s shar e of his appellate issue o n the contention

tha t the State im p ermi ssibly referred to hi s failure to testify by referencing the

statements that he made in the one

- par ty

- consen t cal l and his interview

. T he portions

of the record that Appella nt himsel f q u otes reflect that he made no objection th at the

Stat e wa s making su ch an impermissible ref er ence. H e also ar g ues that the S t ate ’ s
imp roper arg um ent w as of such a magnitude that it d eprived him of his due

- p roc ess
rights under the Fourteenth Amend ment t o t h e United States Constitution , but aga in,

he made no obje ction on th is ground

. Appellant ’ s o nly objection was tha t one limit ed

p ortion of the St ate ’ s argument misstated the evidence

. Thi s objection d oes no t
comport with the complaints that he raises on appeal , nor did it present his appella te
complaints to the trial c o urt in order to give that c ourt an opportuni ty to rule on10 them

. T h u s , A p p ellan t ’ s prima ry is sue fail s initially b eca use he has forfeited his

complaint s on appeal.

It is foundational that a party wi shing to complain on appeal mu st preserve the

com plaint b y objecting in the trial c ou rt

. Tex. R. App. P

. 33.1(a). An adequate

objection must be sp e cific enough to make it ap paren t what the o bjection is ( unless

the ground s are apparent from the c ontext )

. Id. On e of t he Court of C riminal

App eals ’ s late st opini o ns on the topic noted tha t

[t] o preserve error on these kinds of claims, a d efendant must mak e a timely objection sta ting the grou nds for his d esir ed ruling with sufficient specificity to make t he trial court aware of the c laim, unless the sp e cifi c ground s were a pparent from the c on text. See Tex. R. App . P. 33.1(a)(1)(A). Magic wo rds ar e not req uired, but the defendant must at least “let the tria l ju dge know what he wants [and] why he thinks hi mself entitled to it,” and he m ust “do so cl early eno ugh for t he judge to unde rstand hi m at a time when the tri al court is in a proper posit ion to do somet hing about it.” Lanksto n v. State , 827 S.W.2d 907, 9 09 ( Tex. Crim. App. 1992).

Hall v. State

, No. A P

- 77 ,062 , 2021 WL 5 823345, at *1 5 (Tex . Crim. App. De c. 8,

20 2 1)
, cert. denied , 143 S. Ct. 581 (2023)

. Further, t o preserve a com plaint for appel late

r eview, a “point of error on appeal must comp ort with the objection m ade at trial.”

Yazdchi v. State , 428 S.W.3d 831, 844 (Tex. Crim. App. 2014) : see also Di xon v. S t ate , 2

S.W.3d 263, 2 73 (T ex. Crim. App. 19 99) (op. on r eh ’ g) (noting that, to prese rve error
for appellat e review, the point of error on app eal must comport with the object i on at
trial)

.11 W e recently detailed that i f an a ppellant wi shes to complain t hat th e State ’ s

argument imp ermi ssibly referred t o a fa ilure to te stify , t he appellant mus t object to the

argum ent on that basis or else forfeit t h at compl aint on appeal :
A compl a int about a prosecutor ’ s comment on th e defendant ’ s failu re to testify, lik e most o t her complaints, is fo r fei ted by a failure to comply wi th the r equirements for error preservation under T exas Rule of Appellate Procedure 33 .1. Tex. R. App. P [.] 3 3.1; Hop p er v. State , 483 S.W.3d 235, 236

– 37 (T ex. App.

— Fort Worth 2016 , pet. ref ’ d) ; see al s o Mendez v. State , 13 8 S. W.3d 334, 342 (Te x. Crim. App . 2004) (stating th at most ty pes of complaints are forfeited by the failure to presen t a timel y, specific obj ection, r equest, or motion to the trial court f or a ruling). [Appellant] di d not ob je ct to t he prosecutor ’ s argument a n d, accordingly, assuming that th e prosec utor ’ s stat ement was a comment on [ap pellant ’ s] failure to testify, he f orfeited any error arising from t he prose cutor ’ s argument. See Garcia v. State

, 887 S.W.2d 862, 877 (Tex . C ri m. App

. 1994), abrogated in part on ot h er grounds by Hammock v. State

, 46 S.W.3 d 889 (Tex. Crim. App. 2001); Ho pper , 483 S.W.3d at 237.

Cruzado v . State

, No s . 0 2

- 19

- 00049

- CR, 02

- 19

- 00050

- CR, 2020 WL 11737 00, at *3

(Tex. App.

— Fort Worth Mar. 12, 2020, pe t. ref ’ d

) (me m. op. , not designate d for

publication)

.

O u r court is not alone in its holding th at a c l aim of erro r t hat the State

com mented o n the defendant’ s fail ur e to testify must be preserved by ob jection o r

else forfeited

. T he Fourteenth Court of App eals has held similarly :
Appellant relies on

. . . comments from the State ’ s closing that “we don ’ t know why someth ing happened” a nd “I want to know why, too” as

exa mples of fundamental error affect ing appellant ’ s right not to testify. The [C] ourt of [C] r iminal [ A

] p peals, however, has h el d that a challeng e to improper jur y argument is a forfeitable right that mu st be preserv ed by ob jecti on in the trial court. Se e Co ckrell v. State , 933 S.W.2d 7 3, 8 9 (Tex. Crim. App. 1996) (“However, a defendant ’ s ‘right’ not to b e

s u bjecte d to incurable e rro neous jury argu ments is one of those rights12 that is forfeited by a fai lu re to insist u pon it. ”). Likewise, our court has obs erv ed that, while comments about a d efendant ’ s decision not to testify “are a constitutional v iolation

, a d efenda nt waives her r ight to complain on appeal if she fails to make a timely, specific objecti o n to those comm ents.” Gri ffin v. State , 181 S.W.3d 81 8, 823 (Tex. App.

— Houston [14th D is t.] 2005, pet. ref ’ d) (citing McLendon v. State , 167 S.W.3 d 503, 5 1 0 (T e x. App

. — Houston [14t h Dis t.] 2005, pet. ref ’ d)). Acco rdingly, we disagree that a comment durin g closing argumen t ab out

a ppellant ’ s choice not to test i fy constitutes fundamental erro r that may be raised for the first time on appeal.

Banks v. State

, N o . 14

- 19

- 002 38

- CR
, 2021 W L 970436 , at * 5 (T ex. App.

— Houston

[ 14 th Dist. ] Mar

. 16, 2021, no pet.) (me m . op. , not desi gnate d fo r publication ).

Further, as t he Court of C riminal Appeals ha s recently held, a complaint that a

statement in closing a rgu ment vi o l ates the Fourteenth A mend m ent must al s o be

prese rved by ob jec tion

. Hall

, 2021 WL 5823345, at *15 ; s ee also Banda v. Sta te , 890

S.W.2d 42, 61 (Tex. Crim. A pp. 1994) ( holding that an object ion is r equired to

preserve a claim that a pr osecutor ’ s clo sing ar g u ment violated the Eight h and

Fourteenth Amendments when h e “ mi sstated the law, argued matters out sid e the

record, and re peat edly attempted to inflame the j ury during closing arguments ” ). The

one case tha t Appell ant cites to support his Fourteenth A mendm e n t argument, and

which hol ds that an objec tion is not neces sary , appears to no longer be good law. S ee

M iller v. State

, 741 S.W. 2d 382, 391 (Tex

. Crim. App

. 1987). 2

2 The Fourte enth Court of Appeals cha rte d the demis e of M ille r ’ s pre servatio n holdi ng as follows :

A p pellant cit es Miller v. State for the stand ard of revie w for this issue. See

. . . 741 S.W.2d [at] 3 9 1

. . . . Thi s is n ot the c orrect standard of review.13 In his brief, Appellant d oes not make any argument that his on e objection

directed at an a l le ged misstatement of the evidence is specific enough to p reserve his

c omplaint s on appeal or that h is obje ction comport s with t hose complaint s

. Indeed

,

h e say s nothing about preservation of his complaint at all other th an an oblique

reference “ t hat vi ol a tion of [A] rt icle 38.08 i s not automatically reversible er ror. ” 3 The

obj ection made did not even hint that App ell ant was contend ing that the S tate had

To preserve a complaint of i mproper ju ry argument for a ppell ate re view,

a p arty must have presente d to the tr ial c ourt a timely and s pecific objection th at stated the spec i fic grounds for the desired rulin g. See T ex

. R. A pp

. P. 33.1(a)(1); Cockrel l

. . . , 933 S.W.2d [at] 89

. . . . The Mill er case reli es on Romo v. St ate and r elated cases. See id. ; Romo v . St at

e , 631 S.W.2d 504 (Tex. Crim. App. [ [Panel Op.] ] 1982). I n Cockrell v. State , the Court of Criminal Appeals overruled Montoya v. S tate and Rom o v. State and any other cases allowing an except ion to n ormal er ror

- pr eserv a tion rules for improper and incurable jury argum ent. S ee Cockrell

, 933 S.W.2d at 89, overru l i ng Montoya v. State , 744 S.W.2d 1 5 (Tex. C rim. App. 1987) [,] and Romo

. . . , 631 S.W.2d 5 04

. . . . F or appellant t o compla in on a ppeal abou t erron e ous jury argument

— including errone ous argumen t that w as

so prejudicial t hat an instructio n to disregard could not have cured it

— appel lant must show that he objected at trial to this ar gument and that he pursue d his objectio n to an ad vers e ruling. See Cock rel l , 933 S.W.2d at 89; Garcia

. . . , 887 S. W.2d [at] 877

. . . (holdi n g that no error was preserved whe n appella nt did no t object to State ’ s alleged comment duri ng clo sing argument on appellan t ’ s failure to testify), abrogated i n part

on other g rounds b y H ammock

. . . , 46 S.W.3d [at] 892

– 93

. . . ; Campos v. State , 946 S. W.2d 414, 416

– 18 (Tex. App

. — Houston [14th Dist.] 1997, no pet.) [(op . on r e h ’ g)]

.

Y

barra v. State , No

. 14

- 02

- 00438

- CR, 2003 WL 22097 8 02, at *4 (Tex. Ap p.

— Housto n [14th Di st.] Se pt. 11, 200 3, pet. ref ’ d) (mem. op., not designated f or publicatio n ).

3 See ge n erally Tex. Code C rim. Proc. A n n. art. 38. 08 ( “ Any defendant in a criminal action shall be permitted to testify in his own behalf the r ein, but the failure of
any defendant to so testify sha ll not be taken as a circums tance again st him, nor shall the same b e alluded to or c o mmented on by c ounsel in the cause. ” ).14 comment ed on his failure to testify or that its ar gument wa s so extreme that it viol ated

princi ples of d ue process

. Thus, Appellant bases th e primary compl aints in his appeal

on arguments that he h as forfeited

.

B. Th e State did not improperly refer to Appellan t ’ s failure to testify by referring to his pretri al statements

.

Even if we were to re view the merit s of Ap pellant ’ s i ssue that the Sta te
impermiss ibly c omme nted on his failure to testify, we w ould conclude th at there is no

erro r

. Appell ant tr ies to argue that e rror occurr ed when the State commented on

evid ence that was ad mi tted in the for m of the recording s of the one

- p art y

- consent call

an d the int erview but ra ise s no complaint to the admissio n of those pie ce s of

evidence. Thus , he argues tha t the Sta te ’ s comment on what he had said during those

interactions was error, even though he makes n o argument that an error occ u rr ed

when th e j ury hear d his words in the first p lace

. What we cannot und e rstand is how a

comment on words that Appellant had al rea dy uttered created the type of error th at
he allege s o ccurred

— drawing the jury ’ s atten tion to hi s failure to t e stify at t ria l

. T he

State did not comment on wha t Appellant had not said by his failure to testify but on

what he had s aid during the one

- party

- c onse nt call and the interv ie w.

It is axi omat ic tha t both the United States and Texas C onstituti ons protect a

c riminal de fen dant fr o m b e ing comp elled to give eviden ce a gai nst himself. U.S.

Const . am end. V; Tex. Const . art. I, § 10. T h e Code of Criminal P roc ed ure prohibits

coun sel from allu ding to or commenting on th e failure of a defendant to testi fy. Tex.15 Code Crim. Proc. A nn. ar t . 38.08. T o make such a comment is b o th a constitutional

and a stat utory violation. Randolph v. State , 353 S.W.3d 887, 891 (Tex. Crim. App.

2011)

.

B ut the Cour t of Cri minal Appeals hol ds that for an arg ument to const itu te a

comment o n the failure to tes tify, the com ment mus t be a clear referenc e t o the

defendant’s exerci se of that right

. I d

. The foll owing t est de termi nes whether an

argument cross es th e line in to an impermi ssible commen t on the exercise o f the right

not to testify :

I n assessing wh et her th e defenda nt ’ s Fifth A m endment ri ght has be en violated, courts must view the State ’ s argument f rom the jury ’ s standpoint and resol ve any ambig uities in the language in favor of it being a permissible argu ment

. Thus, the implication th a t the State

r e ferre d t o the def endant ’ s fa il ure to te stify must be a clear and necessary

one. I f the language migh t reasonably be construed as merely an implie d or indirec t allusion, there is no violation

. As the Fifth Circ uit has stated, “We cannot fin d that the pr o secuto r m anifestly intended t o comment o n the defen dan ts ’ failure to testif y, if some other explanatio n for his remark is equally plausib le.” Th e test, then, i s whether the langua ge used

wa s manifestly intended or w as of such a character tha t the jury w ou ld

nec ess arily and naturally ta ke it as a comment o n t he defendant ’ s failur e to testify. In applying this standard, the context in which the co mment was made m ust be analyzed to d etermine whether the language us ed w as of such c haracter.

Id

. (footnotes om itted)

.

And c ounte rbalance d ag a inst t h e prin cip le that the State cannot c omm ent o n a

defendant’s re fusal to testify is the gene ral ru le that prescri bes the type s of proper

argument , which fall “ into four dist inct categories : (1) su mmary of the evidence;

(2) rea s onable deducti ons f ro m the evi dence; (3) res ponse to opposing coun sel ’ s16 argumen t; or (4) a p lea for law enforcement. ” Lumsden v. State , 564 S.W.3d 8 58, 900

(Tex. App

. — Fort Worth 2018

, pet. ref ’ d

) ( cit ing Br own v. State , 270 S.W. 3 d 5 6 4, 570

(Tex. Crim . App. 2008) )

.

I t would appe ar logical that when a d e fendant ’ s s tatements are in evidence, it is

fair game f o r the State to comment on those statem ents and not ru n afoul of the

pr ohibi tion of comment ing on the defendant’s f ailure t o testify

. Th e Co urt of

Crim inal Appeals has confirm ed this principle : “ [W] he n a defend ant makes a

statement [ tha t] is admitted into evidence, the Sta te ’ s reference to th e stateme nt and

com pariso n bet ween the statement and the ot her evidence coll ected is not a comment

on the defendant ’ s failure to testify or his right to remain silen t. ” Gar cia v. State , 126

S.W.3d 9 21, 924 (Tex. Crim. App. 2004)

. To dispose of Appellant ’ s contention that the State commented on his failure

to te sti fy , w e quote Ap pellant ’ s entire argum ent , in which he attempts t o apply t he

relevant legal principles to the fac t s of this appeal :
The gov erni n g legal stand ard in this appe al, under Montoya , is “if the prosecutor ’ s remark called to the jury ’ s attention th e a bse nce of evi dence th a t could only be s upplied by the testimon y of the ac cused, the comment is improper an d th e conviction is subject to bei n g reversed. ”

. . . 744 S.W.2d at 35. While it only takes one, here is a proposed list of remarks by the prose cut o rs (all set fo rth in f u ll above) tha t ca lled to the jury’s atte ntion the a bsence o f an explanation about dialog ue in the recordings that on l y Appellant c ould have supplied had he testified:

• Trying to groom [the investigator

. ]

• Trying to get [the investigator] on his side

, o n his team [.]17 • Told [M other] she can’t p r ove it [.]

• “ [Complainant] came onto me” in int ervie w with [the investiga tor

. ]

• These are the things you’r e hearing hi m t ell yo u

— does it make any sense to you, because surely it doesn’t make any sense to me [.]

• How many times did yo u hea r him say, I’m n ot calling her a l iar? I don’t kn ow what the ha ng

- up with that word is, be cause, so help

m e God, I will be y elling at you a s long as you l isten to me that

. . . she’s lying, I did not do it, she is a liar [.]

• E verything that cam e out of h is mouth to [the investigato r] was either self [

- ] promotion o r a l ie [.]

• Don’t you think it’s we ird he automatically kn ew what they were talking abo ut?

• She could ha ve made up the story, but automatically, he goes

to

. . . oh yeah, the diary wh en she was ei ght or n ine

. Really?

• This is a ma n who, by his own words,

. . . has sought out oppor tunit ies to be alone and hav e acce ss to children [.]

• Bec ause what do you do w hen you get that and you [ ’ r e ] a pedophile or you’ re sex ua lly inclined towards eight

- year

- old [] [kids] ? Y ou pu t y our self in a position o f trust so that y ou have

a ccess [.]

We reject Appellant’s argu ment t ha t the stat emen ts that he quote d constitute

an impermissible comment on his refusal to testify for t he fol lo win g reasons :

• Appellant fails to explain why th e S tate ’ s argumen t does not fall w ith in the

rule that “ t he S tate ’ s ref erence to the [ defendant ’s ] statement and

c omp arison between the statem ent and the other evidence colle cted is not a

comment on the defen da nt ’ s failure to testify or his ri ght to rema in sile nt

. ”18 Garcia
, 126 S.W.3d at 92 4

. Other than the n arrow argument to which

Appellant lodged an objection, he does n o t even co ntend tha t the

arguments misstate the evidence

.

• Appellan t d oes not refere nce or a tt e mpt to apply the rule fr om Ra ndol ph that

w e must resolve any ambiguities in t he language of an argument in fav or of

it bei ng a permissibl e argument , that the i mplication t hat the defendant has

failed to testify must be a c lear a nd necessary on e from t he a r gument , and

that indirect all usio n to a failure to testify d oes not satisfy t he test t o make

an argumen t improper. See 353 S.W.3d at 891

. A t t he end of the d ay , the

test is whether the language u sed was ma nifestly intend ed or was of such a

cha racter t ha t the jury would necessarily a nd n aturall y take it as a comme nt

on the defenda nt ’ s failure to testify. Id

. H er e , th e State ’ s closing arg ume nt

referenced what the jury had heard

— not what it had n ot heard. Appellant

never explain s how those r efe rences w ou l d promp t the jury to concl ude tha t

the S tate had necessarily comment ed on his failure to tes tify in f ur ther

explanation of his stateme nts

.

• Appellant ap pears t o argu e tha t any time there was a refe re nce to a

stat ement that he ha d made , his right to ref us e t o testify wa s infringed

bec a use the ref erence might prompt a des ire on h is pa rt to e xplain the

stateme nts

. He offer s no coherent ration ale fo r such a rule. Nor does19 Appellan t explain the limit s of this rule or ho w i t is consistent wi th a

prose cutor’ s ab i lity to refer to a defendan t ’s prior st atement and compare

that s tatement to other evidence in the cas e. For example

, would Appellant

c ondemn th e State ’ s me n tioning a confession ? After all, t he admission o f a

confession might prom pt a desire t o expl ai n t hat could require the

defend ant to test ify

. Nor does Appellant e xplain why h is argument would

not cre ate a Cat ch

- 22 for the prosecut ion a ny time it h ad a sta tement from

the defendant : if a defendant ’ s statement w ere intro duced into evidence

an d he d id n o t challenge the admission of the statem ent on appeal

, the n

under Appellant ’ s theory, the State could n ot b ase an argument on what th e

de f endant had said in th e sta tement t hat was admitted into evidence o r the

S tate would risk be ing accused of re ferrin g to the defendant’s refusal to

t estify

. A g ain , t hat rul e would b e di rectly contr ary to the principle th at the

State can refer to a d ef endan t ’ s prior statement an d compare it with other

evidence in the c ase. See Garcia , 126 S.W.3d at 924

. 4

4 A s a justice of our court noted when analyzing a n argumen t sim ilar to the one made by Appellant in th is case:

A nd, as the [Cou rt of Cr iminal Appeals] has fur ther instru ct ed, any ambiguities in th e language used mus t be resolved i n favor of it being a pe rmissible argument. Randolph

. . . , 353 S.W.3d [at] 891

. . . . Given tha t the prosecutor deliberatel y confined her ar gument i n h er second statement to th e c ontext of [ appellant ’ s] failure to pro v ide a complete

sto ry during his c onversatio n w ith law enforcement, there was no right

again st

- self

- incrim ination objec tion to be pres e rved.20 Her e, A ppella nt d o es not contend th a t the Stat e did any th ing in its closing

argumen t s ot her th a n r efer to a nd d raw deduc tions f rom his prior st atements

. Th ose

argument s were w ith in the bound s of proper ar gument and d o not constitute a

comment o n Appellant ’ s exer cise o f hi s right not to testify

.

C. T he State di d not misstate the evidenc e in it s clo s i ng argument

.

A s note d ab ove , Ap pellant made one objection to the State ’ s closi n g

argument

— tha t the prosecutor had mi ssta t ed the evidence when she had stat ed that it

wa s “ wei rd ” t h at Appellant knew that Com plain an t wa s eight or nine when she

clai med that t h e abuse had occurre d

. O ther t han quoting the porti on of t he argument

where the objection wa s made, Appellant doe s not expla in how the State ’ s objected

- to

statement wa s a mi ss ta t em ent of the evide nce

. 5 Th e State cha rts why the argument

was a re asonable d eduction f ro m the evidenc e as follo ws:
During the recorded phone call

, [Mo ther] asked i f [Complainant ] would just make the allegations up, write it in a diary [,] and no t tell a ny o ne. In response, [Appella nt] asked [ Mother] why [Complainant] would st ate th at she was going to run away from home and why she would a sk him how she could live on h er own and i f she could make out with his son. [Mother] , in turn, states that [ C o mpla in an t ] did not ask about maki ng out and th at [Complainant] was eight years old. [ Appellant] then says, “O k, she w as eight, nine years old. So tha t’s whenever s he wrote all that crap, I guess.”

M orris v. State , No. 02

- 16

- 00171

- CR, 2 017 W L 2 590 569, at * 7 (Tex. App.

— Fort W or th June 1 5, 2017, pet. ref ’ d) (mem. o p., not designated for publicatio n ) (Sudder th

, J. , c oncurring).

5 We review the trial cour t ’ s ruling on an improper

- j ury

- argument obj e ction und er an abuse

- of

- disc retion stand a rd. Lu msden

, 5 64 S.W.3d at 900.21 But [Mother] did not say the diary was written whe n [Comp la in a nt ] was eight or nine, nor d id she sa y the sexual a buse took place at that ti me. Instead, [M other] t old [Appellant ] that [Complain ant had ] told someone that sh e was going to run away when she was eight and that she got mad [] at her momma when s he was e ig ht. [Appella nt] responded by s aying that [Complainant ] [had] wr [itten ] the di ary when

s he was eig ht or ni ne, even thoug h no mention of bein g nine years old had b een made and e ven though no one had stated that the abuse took place when [Complaina nt] was ei ght o r nine. [ 6 ] [ Record refere n ces omitte d.]

A s we have noted, the St ate may argue r easona ble deductions f ro m the record

.

L

umsden , 564 S.W.3d at 900

. We agree that the St ate was arguing what it contended

6 We set forth t he verb atim exchange in the re c ording of the one

- p ar ty

- consent

c all

, though we note that th e parties talked over each othe r at various points during the conversation :
[ M other: ] And she would ju st put thi s in he r diary and make it up for no

reason

. N ot tell an ybody

. N othing. It’s j u st some fantasy writ ten in her he ad

. [ A ppellant : ] I don ’ t know

. Why did she tell [ some one ] she was gonna ru n away from home ? W hy did she as k me how she could li ve her own ?

[ M other: ] Be caus e kids are little. Bec ause she go t mad at

m o mma.
[ A ppellan t: ] Why did she ask me if she could make out with my

son

. . . ? I don’t kno w why k ids d o what they do

. [ M other: ] S h e did never [sic] said that. S he was ei ght years old

. [ A pp ellant: ] O k, she was eight

, n ine ye ars o ld.

[ M other: ] She was a child.
[Appellant:] So t hat’s whenever she wrote all t hat crap I guess. [ Emphasis added

. ]22 was a reason able deducti on f rom th e e v idence a nd that the trial c ourt did no t e rr by

overruling the objection.

D. T he S t ate ’ s ar gumen t did not constitut e a du e - process viola tio n
. Appellant argu es tha t the State ’ s closing argument s were so improper that he

was deprived of a fair tri al

. T he p r edicate to that argument i s that the State ’ s closing

argum ent s were improper

. W e have concluded th at they were not. Thus , the

predica te f or Appellant’s du e

- proce ss c omplaint does n ot exist.

We overrule Appellant ’ s sole issue

.

I V

. Conclusi on
Having hel d that A pp ell ant has fai led to pres erve error on the primary

complaints that he raises
, that th e S tate di d not improperly comment o n Appella nt’s

failure t o testify or misstate the evidence i n its closing argument , and that no due

process violation occurred

, we af fir m t he trial co urt’s judgm ent.
/s/ Dabney Bassel

D a bney Bassel Justic e

D o N ot P ublish Tex. R. A pp. P. 47

. 2(b)

De livered : March 23, 2023