Zachary Gidcumb v. State ( 2019 )

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.
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. You-
all 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.
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