Paul Joseph Lair, Jr. v. State ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00068-CR
PAUL JOSEPH LAIR, JR. APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant Paul Joseph Lair, Jr. appeals his convictions for one count of
aggravated sexual assault of a child and one count of indecency with a child by
contact. In three issues, Lair argues that the trial court abused its discretion by
allowing the State‘s child forensic interviewer to testify as to ―why‖ a child might
make a ―rolling disclosure‖; that the trial court erred by allowing the State to
1
See Tex. R. App. P. 47.4.
introduce evidence of what he claims is an extraneous offense without proper
notice to him by the State; and that the trial court erred by denying his motion for
mistrial after the trial court sustained both his objections to comments made by
the State during closing arguments of the guilt/innocence phase of trial. We will
affirm.
II. BACKGROUND
After a divorce when Boy, born July 10, 2003,2 was roughly three years
old, working mother (Mom) needed childcare for Boy. Having children around
Boy‘s age, Mom‘s sister (Wife) and Wife‘s husband (Lair), offered to help for free.
It was decided that Boy would stay overnight with Lair and Wife frequently on
Friday nights because Mom worked Saturdays. It was not unusual for Lair to buy
candy and toys for the children, Boy‘s toys were often ―better than everyone
else‘s,‖ and Boy described Lair as his ―best friend.‖ Boy typically slept in the
room with Lair, but Lair‘s own children slept in their own rooms and Wife slept on
the couch. By Wife‘s account, she and Lair were more like ―roommates‖ than
husband and wife. By Mom‘s account, Lair and Boy had a father-and-son-like
relationship, Boy loved Lair, and Lair would request that Boy stay over.
Mom and Boy, then five years old, were riding from daycare on
November 25, 2008, when Mom told Boy that he was going to spend the night
with Wife and Lair. Boy protested, ―Okay, but [Lair] makes me do stuff.‖ When
2
―Boy,‖ ―Mom,‖ and ―Wife‖ are fictitious names used in an effort to protect
the identity of the child complainant. See Munoz v. State, 288 S.W.3d 55, 57, n.2
(Tex. App.—Houston [1st Dist.] 2009, no pet.).
2
Mom asked Boy what type of things, Boy responded that Lair ―makes me touch
his privates.‖ Boy explained that Lair would put his ―privates‖ in Boy‘s mouth and
―wiggle it around.‖ Boy described how Lair would ―pee in his mouth,‖ and that the
―pee‖ was ―sticky.‖ Boy said that this was his and Lair‘s ―secret‖ and that he was
not supposed to tell anyone. Mom inquired whether Lair ever touched Boy in a
similar manner, and Boy described that Lair would touch Boy‘s ―privates‖ and
―wiggle them around in his hand.‖ At one point, Mom became emotional, and
Boy responded that Lair ―only touched my front parts, he didn‘t touch my back
privates.‖ After discussing this outcry with other family members, Mom contacted
the police.
Stephanie Nick, a child forensic interviewer, interviewed Boy the next day.
Boy told Nick the same things that he had told Mom regarding Lair putting his
penis in Boy‘s mouth and ejaculating. But Boy also described that Lair had put
his penis in Boy‘s anus. According to Nick, Boy ―pointed to his front genital area
and said that, [Lair] would put that, and then pointed to his bottom.‖ Boy used
the term ―bottom hole‖ to explain where Lair had put his penis. By Nick‘s
account, Boy described these acts as ―gooey‖ but not painful. Boy also revealed
that he was familiar with Lair‘s tattoo of a Texas longhorn, which Lair had on his
front, lower hip. Pictures of Lair‘s tattoo were published to the jury. A video of
the forensic interview was played for the jury.
Rebecca Sullivan, a sexual assault examiner, examined Boy after the
forensic interview. Boy told Sullivan that Lair had put his penis in his mouth and
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bottom. Sullivan testified that Boy said that Lair had put his penis in Boy‘s anus
and that Boy said that it hurt, but there was no bleeding.
By the time of his trial testimony, February 8, 2012, Boy was eight years
old. Boy testified that he and Lair had a ―secret‖ and that Lair would take him to
buy candy ―if I would do this thing for him.‖ Boy described how he would sleep in
the bed with Lair when he would stay overnight, and how the other children and
Wife would sleep elsewhere. Boy stated that Lair put ―his wiener‖ in Boy‘s mouth
and that Lair would ―pee in [Boy‘s] mouth, and [Boy] would have to go to the
restroom and spit it out.‖ Boy described Lair‘s ―pee‖ as ―green.‖ Boy further
testified that Lair ―would put his wiener in [Boy‘s] butt.‖ Boy also stated that Lair
would put Boy‘s penis in Lair‘s mouth.
A jury found Lair guilty of one count of aggravated sexual assault of a
child, by causing Boy‘s mouth to contact Lair‘s penis, and one count of indecency
with a child, for engaging in sexual contact by touching Boy‘s genitals. The jury
was unable to reach a verdict on a count of sexual assault alleging that Lair
caused Boy‘s anus to contact Lair‘s penis; thus, a mistrial was declared on that
count. After a punishment hearing, the jury sentenced Lair to life imprisonment
and a $10,000 fine for the aggravated-sexual-assault-of-a-child count and twenty
years‘ confinement and a $10,000 fine for the indecency-with-a-child count. This
appeal followed.
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III. DISCUSSION
A. Testimony of a “Rolling Disclosure.”
In his first issue, Lair asserts that the trial court erred by allowing Nick, the
child forensic interviewer who interviewed Boy, to express her opinion as to why
a child might make a so-called ―rolling disclosure.‖ Lair does not challenge Nick‘s
qualifications to testify to what a rolling disclosure is or that one might have
occurred in this case; rather, Lair argues that Nick is not qualified to express her
opinion regarding ―why‖ a child might make one. Lair claims that the answer to
why a child makes a rolling disclosure is a topic reserved to ―people in the field of
child psychology. Nick had no training in that field.‖ The State argues that the
trial court properly admitted Nick‘s testimony and that Lair offers no support for
his position that ―only a psychologist could testify about the reasons why a child
might give a rolling disclosure.‖ We agree with the State.
1. Applicable Law and Standard of Review
Rule of evidence 702 allows a witness qualified by knowledge, skill,
experience, training, or education to testify on scientific, technical, or other
specialized subjects if the testimony would assist the trier of fact in understanding
or determining a fact issue. See Tex. R. Evid. 702. Before admitting expert
testimony under Rule 702, the trial court must be satisfied that three
requirements are met: (1) the witness qualifies as an expert by reason of her
knowledge, skill, experience, training, or education; (2) the subject matter of the
testimony is an appropriate one for expert testimony; and (3) admitting the expert
5
testimony will actually assist the factfinder in deciding the case. Davis v. State,
329 S.W.3d 798, 813 (Tex. Crim. App. 2010), cert. denied, ––– U.S. –––, 132
S. Ct. 128 (2011). These requirements are commonly referred to as
(1) qualification, (2) reliability, and (3) relevance. Id. (citing Vela v. State, 209
S.W.3d 128, 131 (Tex. Crim. App. 2006)). Each of these requirements raises
distinct questions and issues, and an objection based on one requirement does
not preserve error as to another. Shaw v. State, 329 S.W.3d 645, 655–56 (Tex.
App.—Houston [14th Dist.] 2010, pet. ref‘d). At trial, and now on appeal, Lair
challenges Nick‘s qualification only.
The court of criminal appeals has held that:
Qualification is a two-step inquiry. A witness must first
have a sufficient background in a particular field, and a
trial judge must then determine whether that
background goes to the matter on which the witness is
to give an opinion. The proponent must establish that
the expert has knowledge, skill, experience, training, or
education regarding the specific issue before the court
that would qualify the expert to give an opinion on that
particular subject.
Davis, 329 S.W.3d at 813 (citations omitted); see Vela, 209 S.W.3d at 131–32.
The focus is on the ―fit‖ between the subject matter at issue and the expert‘s
familiarity with it, and not on a comparison of the expert‘s title or specialty with
that of the defendant or competing expert. Vela, 209 S.W.3d at 133. Just as the
subject matter of an expert‘s testimony should be tailored to the facts of a case,
the expert‘s background must be tailored to the specific area of expertise in
which the expert desires to testify. Id.
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―Because the spectrum of education, skill, and training is so wide, a trial
court has great discretion in determining whether a witness possesses
appropriate qualifications as an expert on a specific topic in a particular case.‖
Davis, 329 S.W.3d at 813 (citing Vela, 209 S.W.3d at 136). When a trial judge
determines that a witness is or is not qualified to testify as an expert, ―appellate
courts rarely disturb the trial court‘s determination.‖ Vela, 209 S.W.3d at 136
(quoting Rodgers v. State, 205 S.W.3d 525, 528 n.9 (Tex. Crim. App. 2006)).
2. Nick is Qualified to Testify Why Rolling Disclosures Occur
In this case, Nick explained that a rolling disclosure was the prolonged
outcry by a child ―where a child will give some information to one person [about
an alleged abuse], and then when they‘re asked by a second person, they may
give additional information than they gave to the first person.‖ Over Lair‘s
objection, Nick also averred that ―[s]ome of the reasons‖ a child might disclose
abuse in this manner ―may be that [the child is] afraid that they‘re going to get in
trouble, so they stop. It may be based on the reaction of the person that they‘re
telling, or they may fear what will happen if they do tell all of the information.‖
Nick explained that based upon her experience, rolling disclosures were
commonplace in children‘s outcries about sexual abuse. And Nick testified to her
particular background regarding rolling disclosures.
Nick received her bachelor‘s degree in social work from the University of
Texas at Arlington. She is a licensed social worker. Prior to working as a child
forensic interviewer, she worked for roughly five years as an investigator for Child
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Protective Services. At the time she interviewed Boy, Nick was a child forensic
interviewer for The Alliance for Children, which houses a multidisciplinary team
for investigations involving child abuse and neglect. She has conducted
approximately 1,000 forensic interviews of children. According to Nick, she
obtained her knowledge of rolling disclosures through training, seminars, and
education that she attended as a child forensic interviewer. She testified that
rolling disclosures were discussed at ―every‖ seminar she has attended, and she
also explained that she was ―taught‖ about the subject at ―the Finding Words
training‖ seminar—a week-long seminar for forensic interviewers. Nick stated
that the concept of rolling disclosures is widely accepted in the field of forensic
interviewing and that she has testified on the topic before in Texas courts.
Lair does not dispute Nick‘s familiarity with the subject of rolling
disclosures, and at trial Lair stated that he did not object to Nick explaining what
one was. Instead, Lair focuses on Nick‘s ―title or specialty,‖ assailing only her
lack of a degree in child psychology to explain his position that Nick could not
testify as to why a child might outcry through a rolling disclosure. See Vela, 209
S.W.3d at 133 (reasoning that a trial court conducts an insufficient inquiry into an
expert‘s qualification when it considers the expert‘s ―title‖ alone). But Lair has not
presented anything to support his bare assertion that rolling disclosures as a
subject are the sole province of child psychologists and that licensed and trained
forensic interviewers or social workers are per se unqualified to testify regarding
this topic. See Morris v. State, 361 S.W.3d 649, 666 (Tex. Crim. App. 2011)
8
(discussing ―grooming‖ testimony and explaining that such ―evidence has been
received by courts from numerous types of experts—which include psychiatrists,
psychologists, therapists, []social workers[, and] law enforcement.‖). We
conclude that the State established that Nick has the knowledge, skill,
experience, training, and education regarding rolling disclosures that would
qualify her to give an opinion on that particular subject. See Davis, 329 S.W.3d
at 813. Therefore, we hold that the trial court did not abuse its discretion by
determining that Nick possessed a sufficient background in the particular subject
of rolling disclosures, and that her background went to the matter of what a
rolling disclosure is and why one might occur. See Id. We overrule Lair‘s first
issue.
B. Extraneous Offense Evidence and the State’s Notice
In his second issue, Lair argues that the trial court erred by allowing the
State to elicit testimony from Wife, during the guilt/innocence phase of trial, in
which she described entering the back bedroom where Lair and Boy often slept
and discovering both Lair and Boy on the bed in their underwear only; Boy was
near Lair‘s thighs facing Lair; Boy acted surprised; Lair rolled over onto his
stomach; and, after a short exchange, Lair told her to ―get out.‖ Lair argues that
this was extraneous-offense evidence and that the State failed to formally notify
him of its intent to introduce this evidence despite his request for such
notification.
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The State responds that this was same-transaction contextual evidence
and that it was not required to formally notify Lair of its intent to introduce this
testimony. Alternatively, the State argues that Lair was not harmed by the
introduction of this evidence. We will assume without deciding that the State was
required to notify Lair of its intention to introduce this testimony, but we conclude
that Lair has failed to demonstrate how his defense was harmed by the State‘s
alleged failure to provide reasonable notice of its intent to introduce this
evidence.
1. Applicable Law and Standard of Review
Texas Rules of Evidence Rule 404(b) states:
Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to
show action in conformity therewith. It may, however,
be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident,
provided that upon timely request by the accused in a
criminal case, reasonable notice is given in advance of
trial of intent to introduce in the State‘s case-in-chief
such evidence other than that arising in the same
transaction.
Tex. R. Evid. 404(b). The court of criminal appeals has held that a trial court errs
by admitting objected-to extraneous offense evidence when the State failed to
comply with Rule 404(b)‘s notice provisions. Hernandez v. State, 176 S.W.3d
821, 822 (Tex. Crim. App. 2005). This is so because ―Rule 404(b) literally
conditions the admissibility of other-crimes evidence on the State‘s compliance
with the notice provision of Rule 404(b).‖ Id. at 824. And because the notice
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requirement of Rule 404(b) is a rule of evidence admissibility, the trial court‘s
error of admitting extraneous offense evidence despite the State‘s failure to
properly notify the defendant is subject to a Texas Rules of Appellate Procedure
Rule 44.2(b) harm analysis. See id. at 825; see also Tex. R. App. P. 44.2(b).
Even so, the harm analysis that a reviewing court is to conduct when the
error is that the trial court erroneously admitted evidence despite the State‘s
failure to comply with Rule 404(b)‘s notice provisions is unique. Hernandez, 176
S.W.3d at 825. In Hernandez, the court clarified that rather than conduct ―the
usual harm analysis applied to the improper admission of evidence,‖ a reviewing
court‘s harm analysis begotten by the State‘s non-compliance with the notice
requirements of 404(b) revolves around the question of whether a defendant was
unable to prepare his defense in a particular case. Id. That is, we consider how
the lack of notice harmed the defendant‘s ability to prepare a defense to the
wrongfully admitted evidence and not whether the admitted evidence injured the
jury‘s verdict. Id.; Padilla v. State, 254 S.W.3d 585, 593 (Tex. App.—Eastland
2008, pet. ref‘d).
Factors that reviewing courts have considered in analyzing this specific
type of harm include: whether the defendant was surprised by the evidence,
Hernandez, 176 S.W.3d at 822–23; whether the admission of the evidence was
the result of prosecutorial bad faith, Roethel v. State, 80 S.W.3d 276, 282 (Tex.
App.—Austin 2002, no pet.); whether the defendant was unable to prepare cross-
examination or present mitigating evidence, McDonald v. State, 179 S.W.3d 571,
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578 (Tex. Crim. App. 2005); whether the defendant moved for a continuance so
that he might defend against the evidence, Webb v. State, 36 S.W.3d 164, 183
(Tex. App.—Houston [14th Dist.] 2000, pet. ref‘d) (en banc); and whether the
defendant has demonstrated how his defensive strategy might have been
different had the State explicitly notified him of its intention to introduce the
evidence. Hernandez, 176 S.W.3d at 823.
2. Lair’s Defense was not Harmed by Wife’s Testimony
Here, ―it strains credulity to think that [Lair] was not on notice that the State
intended to use‖ the complained-of testimony. Id. at 826. Not only was Lair not
surprised by the testimony, he objected to the precise nature and content of
Wife‘s testimony3 after she was sworn in but before she was ever called and
questioned.
In a hearing that followed his objection, Lair admitted to the trial court that
he first learned of the content and nature of Wife‘s testimony through the State‘s
open file policy, which included Wife‘s witness statement, before he filed his
requests for notice of the State‘s intentions to admit extraneous-offense
3
On the second day of trial and prior to the jury being seated, Lair objected:
―Yes, Judge. The State is intending to call [Wife] to the stand. That‘s the witness
that you just swore in. Obviously, I don't know all the topics that the State
intends to cover with [Wife], but I am aware of an extraneous offense that the
witness might be asked about, and I can only ask the prosecutor if they intend to
go into the time that [Wife] alleges that she walked into the room -- to the
bedroom, and my client, [] Lair, was in the bed with [Boy], the alleged victim, and
they were both in their underwear.‖ From there, the trial court conducted a
hearing that consumed more than twenty pages of the record—ultimately ruling
the testimony admissible and seating the jury.
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evidence. Lair also agreed with the State‘s contention that he had discussed the
topic of Wife‘s testimony with the prosecutor ―on multiple occasions.‖ Wife was
listed as a ―potential witness‖ on all three of the State‘s filed witness lists.
Furthermore, Lair had interviewed Wife multiple times over a three-year period
leading up to trial. The record belies any notion that Lair was surprised by the
evidence. See id. at 823. Additionally, Lair was prepared to and did cross-
examine Wife about the incident in question and attempted to mitigate her
testimony. See McDonald, 179 S.W.3d at 578–79. Lair elicited testimony that
both Lair and Boy appeared to be watching television in the room when she
walked in, that Wife saw nothing illegal transpire between Lair and Boy, and that
Wife did not call the police or report the incident to Child Protective Services.
On appeal, Lair makes no argument that the lack of notice prejudiced his
ability to prepare or present a defense to this evidence.4 See Hernandez, 176
S.W.3d at 822–23. And although at trial Lair claimed during the 404(b) hearing
that he would have conducted his voir dire differently or modified his opening
statements to defend against this evidence had he received formal notice from
the State, we conclude, as other courts have, that when the evidence is known
4
In his briefing to this court, Lair cites traditional harm analysis rules
regarding the improper admission of substantively inadmissible evidence and
argues that we ―should not conclude that this evidence had no bearing on the
verdict.‖ See Solomon v. State, 49 S.W.3d 356, 364 (Tex. Crim. App. 2001).
But the harm analysis conducted in cases where the State fails to comply with
Rule 404(b)‘s notice provision concerning ―substantively admissible Rule 404(b)
evidence‖ is governed by the harm standard articulated in Hernandez. 176
S.W.3d at 825.
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well before trial, these types of claims are not a demonstration of how a
defensive strategy was affected by the lack of formal notice and do not
demonstrate harm. See Hernandez, 176 S.W.3d at 823 (―Surely, having been
given the complete tape recordings [months before his 404(b) notice request],
appellant‘s counsel listened to them and thus was in a position to develop
evidence to mitigate their impact.‖); see also Hopson v. State, No. 09-06-00088-
CR, 2007 WL 1793873, at *2 (Tex. App.—Beaumont, June 20, 2007, no pet.)
(mem. op; not designated for publication) (overruling appellant‘s argument that
had he received formal notice of the State‘s intent to introduce the complained-of
evidence, he ―could have questioned the jury about the matter during jury
selection‖ when reference to the complained-of extraneous offense was in a
recorded statement produced in discovery well before trial.).
Furthermore, Lair makes no claims of, and there is no evidence in the
record of, prosecutorial bad faith; rather, the State has consistently maintained
that it considered the complained-of testimony as same-transaction contextual
evidence and did not think it was required to notify Lair, and Lair did not dispute
at trial the State‘s claim that it had discussed this specific testimony with Lair ―on
multiple occasions‖ prior to trial. See Roethel, 80 S.W.3d at 282. Finally, Lair did
not move for a continuance so that he might defend against the evidence. To the
contrary, and as discussed above, the record indicates that he was well-prepared
to cross-examine Wife about the incident and that he lodged a very precise
objection to her testimony regarding the incident before the State ever
14
questioned her on direct examination. See Webb, 36 S.W.3d at 183. We hold
that Lair has failed to demonstrate how his defensive strategy might have been
different had the State explicitly notified him of its intention to introduce the
complained-of evidence; thus, Lair was not harmed by its admission. See
Hernandez, 176 S.W.3d at 823. We overrule Lair‘s second issue.
C. Lair’s Motions for Mistrial
In his third issue, Lair argues that the trial court abused its discretion by
denying his motions for a mistrial after he twice, in almost rapid succession,
objected to the State‘s closing argument and the trial court sustained his
objections. After both objections, Lair asked the trial court to instruct the jury to
disregard the State‘s argument, which the trial court did. Lair also moved for a
mistrial after both instructions, and the trial court denied the motions for mistrial.
Lair argues that the State‘s closing arguments asking the jury, ―Do you want
[Lair] to baby-sit your child?‖ followed shortly by ―Why wouldn‘t you want your kid
to be around [Lair]?‖ improperly asked the jury to place themselves in the shoes
of the complainant and his family. Lair argues that the State‘s statements
―affected the substantive rights of [Lair]‖ and that this court should ―reverse his
conviction.‖
The State argues that the arguments in question were not improper, and in
the alternative, the State argues that the trial court did not abuse its discretion by
overruling Lair‘s motions for mistrial because it promptly sustained Lair‘s
objections and instructed the jury to disregard the statements. We will assume
15
without deciding that the statements made by the State were improper, but we
conclude that the trial court did not abuse its discretion by overruling Lair‘s
motions for mistrial.
1. Standard of Review and Applicable Law
Almost any improper argument may be cured by an instruction to
disregard. Dinkins v. State, 894 S.W.2d 330, 357 (Tex. Crim. App.), cert. denied,
516 U.S. 832 (1995). And when the trial court sustains an objection and instructs
the jury to disregard but denies a motion for mistrial, the issue is whether the trial
court abused its discretion by denying the mistrial. Hawkins v. State, 135 S.W.3d
72, 76–77 (Tex. Crim. App. 2004). A mistrial is the trial court‘s remedy for
improper conduct that is so prejudicial that expenditure of further time and
expense would be wasteful and futile. Hawkins, 135 S.W.3d at 77.
The question of whether a mistrial should have been granted when a
curative instruction has been given involves most, if not all, of the same
considerations that attend a harm analysis. Id. Therefore, in cases in which
constitutional rights are not implicated, courts employ a three-factored analysis
which seeks to evaluate the effect of the harm on the outcome of the trial. See
id.; Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998); Tucker v.
State, 15 S.W.3d 229, 237–38 (Tex. App.—Houston [14th Dist.] 2000, pet. ref‘d).
The factors to be considered in determining whether the trial court abused its
discretion by denying a mistrial include: (1) the severity of the misconduct
(magnitude of the prejudicial effect); (2) measures adopted to cure the
16
misconduct (efficacy of any cautionary instruction by the judge); and (3) the
certainty of conviction absent the misconduct. See Hawkins, 135 S.W.3d at 77
(applying the three-factor test to improper arguments during the punishment
phase); Mosley, 983 S.W.2d at 259; Tucker, 15 S.W.3d at 237–38 (analyzing the
three factors to determine if improper argument during guilt/innocence phase
constituted reversal). We do not conclude that any constitutional rights were
impinged upon by the prosecutor‘s remarks in this case, and Lair does not
contend that constitutional rights are implicated. See Tucker, 15 S.W.3d at 237
(holding the trial court‘s erroneous ruling regarding improper comments made
during jury argument involved non-constitutional error); Ortiz v. State, 999
S.W.2d 600, 605–06 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (holding
that trial court‘s error in overruling the appellant‘s repeated objections to
arguments outside the record constituted non-constitutional error). We will
therefore utilize the Mosley factors to determine if a mistrial should have been
granted.
2. Analysis
With respect to the first factor, we do not find the State‘s alleged improper
arguments severe enough to warrant a mistrial or a reversal of Lair‘s convictions.
See Brandley v. State, 691 S.W.2d 699, 712 (Tex. Crim. App. 1985) (holding that
the prosecutor asking the jurors during the punishment phase of the trial to place
themselves in the shoes of the child victim‘s father was harmless error); Bible v.
State, No. 10-10-00070-CR, 2011 WL 1902021, at *9 (Tex. App.—Waco May 11,
17
2011, pet. ref‘d) (holding that even though the trial court erroneously overruled
defendant‘s objection to the State‘s improper plea to the jury to place themselves
in the shoes of the victim, made during the guilt/innocence phase, such error
―was not great‖); see also Geuder v. State, 76 S.W.3d 133, 138 (Tex. App.—
Houston [14th Dist.] 2002), overruled on other grounds by, 115 S.W.3d 11 (Tex.
Crim. App. 2003) (concluding that a mistrial was not necessary despite the
statement ―who knows how many other people [defendant] has stolen from in
other counties‖ by the prosecutor during the guilt/innocence phase).
Second, we conclude the curative measure employed by the trial court in
this case to disregard the prosecutor‘s statements sufficient to effectively cure
any alleged harm. Lair does not point to anything in the record leading us to
conclude that the jury did not or could not obey the trial court‘s instructions, and
we are to presume that the jury followed the instructions. See Gamboa v. State,
296 S.W.3d 574, 580 (Tex. Crim. App. 2009) (reasoning that a reviewing court
generally considers instructions given to the jury to be sufficient to remedy most
improprieties that occur during a trial and presumes that a jury will follow the trial
court‘s instructions).
Last, we conclude that Lair‘s conviction was fairly certain, regardless of the
prosecutor‘s alleged improper remarks. Boy testified that on more than one
occasion at night while in Lair‘s bed, both his and Lair‘s clothes ―were off‖ and
that Lair would put his penis in Boy‘s mouth and then ―pee‖ in Boy‘s mouth. Boy
also testified that Lair would put Boy‘s penis in Lair‘s mouth. This testimony was
18
consistent with the testimony by Mother and the forensic interviewer, who both
also testified that Boy had described the ―pee‖ to them as ―sticky‖ or ―gooey.‖
The jury also heard testimony from Boy and Mother that Lair would buy Boy
―special‖ gifts. Specifically, Boy testified that Lair had told him that these acts
were their ―secret‖ and that if Boy would perform these acts, Lair ―would go take
[Boy] to get candy.‖ The jury also heard testimony that Boy would sleep alone
with Lair, that Wife would sleep on the couch, that Lair and Wife did not have a
normal marital relationship, and that Boy would often shower with Lair.
Accordingly, we hold that the trial court did not abuse its discretion by
finding that the prosecutor‘s alleged improper comments to the jury were not so
prejudicial that expenditures of further time and expense would be wasteful,
futile, and demanding of a mistrial. See Newby v. State, 252 S.W.3d 431, 437–
38 (Tex. App.—Houston [14th Dist.] 2008, pet. ref‗d) (holding that prosecutor‘s
statement to jury, ―If you think that [defendant] is not guilty, I want each of you to
be able to walk out of this courtroom, right by [victim], and say [to victim], I don‘t
believe a word you said, because that‘s what you have to do,‖ did not warrant
mistrial, in prosecution for sexual assault of a child, and that trial court‘s curative
measure of ―[j]ury is instructed to disregard‖ was sufficient). We overrule Lair‘s
third issue.
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IV. CONCLUSION
Having overruled all three of Lair‘s issues, we affirm the trial court‘s
judgments.
BILL MEIER
JUSTICE
PANEL: DAUPHINOT, WALKER, and MEIER, JJ.
WALKER, J., concurs without opinion.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: August 8, 2013
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