Scott Alexander Melton v. the State of Texas ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00164-CR
___________________________
SCOTT ALEXANDER MELTON, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 396th District Court
Tarrant County, Texas
Trial Court No. 1554184D
Before Sudderth, C.J.; Birdwell and Womack, JJ.
Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION
Appellant Scott A. Melton appeals his convictions for four counts of
aggravated sexual assault of a child and one count of indecency with a child. See Tex.
Penal Code Ann. §§ 21.11(a)(1), 22.021(a)(2)(B). Melton contends (1) that the trial
court erred by permitting the State to present an improper jury argument in which it
urged the jurors to consider statements made by venire members during voir dire and
(2) that the jury argument was manifestly improper, harmful, and prejudicial. Because
we conclude that Melton forfeited his complaints for our review, we affirm.
I. Background
Melton’s three-year-old niece, S.M.,1 made an outcry against Melton in July
2018, and he was ultimately indicted on four counts of aggravated sexual assault and
one count of indecency with a child. Melton’s case went to a jury trial in August 2022.
During voir dire, the State questioned several venire members about their own
previous experiences with child sexual abuse and commented on how that abuse
affected the venire members. For example, the prosecutor had the following exchange
with one venireperson, who stated that they had been sexually assaulted as a small
child:
[STATE]: And I can tell from your demeanor that --
VENIREPERSON: -- I can’t be impartial.
To protect her identity, we refer to S.M. by her initials. See Tex. R. App. P. 9.8
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cmt.; McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).
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[STATE]: Right. And you have shared that with us. We do know.
Knowing that everything that happened to you, right, is that something -
- well, let me ask it this way.
Even knowing that nobody was prosecuted for that sexual abuse,
is that something that still affects you here today?
VENIREPERSON: Yes.
[STATE]: And I can tell it from your voice; all right?
VENIREPERSON: Yeah, I have to pay for therapy. I can’t afford
that [expletive].
[STATE]: Can I ask you how many years ago it happened?
VENIREPERSON: It was several years of trauma, so I can’t give
you an exact number.
Speaking to another venireperson who had worked with an anti-human trafficking
organization, the prosecutor asked, “Knowing that you’ve heard their stories and
probably seen the emotions on their faces as they talked about how this has affected
them, even into adulthood, can you, for the purposes of this trial, not think about that
to the extent that you make me prove my case . . . ?” The prosecutor also commented
on how past child sexual abuse had affected one venireperson’s marriage and how
another venireperson’s brother still experienced the trauma of child sexual abuse as an
adult.
At the close of the evidence in the guilt–innocence phase of trial, both sides
gave jury arguments. During the State’s closing argument, the prosecutor argued,
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I’m so glad that we’re finally here and we can finally bring some closure
to [S.M.’s] life. Because every single one of you was here on Monday
afternoon [during voir dire], and you got to hear the stories of so many
survivors of child[] sexual abuse.
[DEFENSE COUNSEL]: I’m going to object to that being
outside of the scope of evidence.
THE COURT: Overruled.
[STATE]: You got to hear those surviv[o]rs. When they talked
about how they were the same age as [S.M.], and you got to see their
visible emotions in court and how this --
[DEFENSE COUNSEL]: I object. This is improper argument to
talk about what happened in voir dire. That is not evidence.
[STATE]: It’s a plea for law enforcement, Judge.
THE COURT: Overruled.
[STATE]: You got to see their emotions how, as an adult, they are
still processing the trauma they experienced at [S.M.’s] age. And I don’t
know how [S.M.] will process it in 20 years, but science tells us it’s going
to be hard, and she is going to think that. She might not understand
now . . . . But she will in the future, and she’s going to think back on this
day.
While Melton’s counsel objected to the first two instances that the State’s argument
referenced statements made by venire members during voir dire—both of which the
trial court overruled—he did not object to the last instance, nor did he obtain a
running objection.
The jury found Melton guilty and assessed his punishment at 60 years’
confinement on each of the four counts of aggravated sexual assault and 20 years’
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confinement on the indecency with a child count. The trial court entered its judgment
on the verdict and ordered the sentences to run concurrently. This appeal followed.
II. Discussion
Melton contends that the State improperly argued that the jury should recall the
statements of their fellow venire members in voir dire; that the argument was
manifestly improper, harmful, and prejudicial; and that the trial court erred by
permitting the State to present its improper argument. In response, the State asserts
that Melton forfeited appellate review of his complaints because he objected to only
two of the three instances of the State’s referencing the venire members’ statements.
Alternatively, the State concedes that the argument was improper but asserts that, in
any event, the argument was harmless, as the “gist” of the State’s remarks was both a
matter of common knowledge and a reasonable inference that the jurors could draw
from S.M.’s testimony.
A. Permissible Jury Arguments
To be permissible, the State’s jury argument generally must fall within one of
the following four areas: (1) summation of the evidence; (2) reasonable deduction
from the evidence; (3) answer to opposing counsel’s argument; or (4) plea for law
enforcement. Freeman v. State, 340 S.W.3d 717, 727 (Tex. Crim. App. 2011). As
relevant here, statements made during voir dire are not evidence. Hyundai Motor Co. v.
Vasquez, 189 S.W.3d 743, 753 (Tex. 2006); Montez v. State, No. 02-16-00175-CR, 2017
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WL 2807395, at *6 (Tex. App.—Fort Worth June 29, 2017, no pet.) (mem. op., not
designated for publication).
B. Standard of Review
Improper jury argument is reviewed under a nonconstitutional harm analysis.
See Tex. R. App. P. 44.2(b). Even if a jury argument exceeds the permissible bounds,
we will not reverse a trial court’s erroneously overruling a defense objection unless the
error affected the defendant’s substantial rights. Id.; Martinez v. State, 17 S.W.3d 677,
692–93 (Tex. Crim. App. 2000). A substantial right is affected when the error had a
substantial and injurious effect or influence in determining the jury’s verdict. King v.
State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328
U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)). In determining whether substantial rights
were affected, we consider (1) the severity of the misconduct (that is, the prejudicial
effect of the prosecutor’s remarks), (2) curative measures, and (3) the certainty of
conviction absent the misconduct. Freeman, 340 S.W.3d at 728.
C. Preservation of Error
We must first address whether Melton has preserved his complaint. To
preserve a complaint for our review, a party must have presented to the trial court a
timely request, objection, or motion sufficiently stating the specific grounds, if not
apparent from the context, for the desired ruling. Tex. R. App. P. 33.1(a)(1);
Montelongo v. State, 623 S.W.3d 819, 822 (Tex. Crim. App. 2021). Further, the party
must obtain an express or implicit adverse trial-court ruling or object to the trial
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court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Dixon v. State, 595 S.W.3d 216, 223
(Tex. Crim. App. 2020). These preservation requirements apply to complaints of
improper jury argument. See Hernandez v. State, 538 S.W.3d 619, 622 (Tex. Crim. App.
2018) (“The right to a trial untainted by improper jury argument is forfeitable.”);
Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. App. 2004) (holding that because
appellant did not object to complained-of jury argument, he “failed to preserve
error”). Indeed, erroneous jury argument, even if “incurably improper,” is forfeited
unless the complaining party objects at the time of the argument and pursues the
objection to an adverse ruling. Hernandez, 538 S.W.3d at 623.
While Melton objected to the first two instances of the State’s argument
improperly referencing the child-sexual-abuse statements made by venire members
during voir dire, he did not object to the third instance of the improper argument, nor
did he obtain a running objection. “[L]ike all complaints that are subject to
preservation, a defendant must object each time an improper argument is made, or he
forfeits his complaint, regardless of how egregious the argument.” Morris v. State, No.
02-16-00171-CR, 2017 WL 2590569, at *5 (Tex. App.—Fort Worth June 15, 2017,
pet. ref’d) (mem. op., not designated for publication) (citing Valdez v. State, 2 S.W.3d
518, 521–22 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d)); see also Hopper v.
State, 483 S.W.3d 235, 236–37 (Tex. App.—Fort Worth 2016, pet. ref’d) (“[Appellant]
did not object to the second argument and, therefore, forfeited any errors arising from
this argument by the prosecutor.”); Polk v. State, No. 02-13-00556-CR, 2015 WL
71883014, at *11 (Tex. App.—Fort Worth Apr. 23, 2015, pet. ref’d) (mem. op., not
designated for publication) (“To the extent that appellant complains on appeal about
the State’s repeated argument . . . , we [] conclude that appellant forfeited the
complaint by failing to object to each occasion . . . that the State made that
argument.”).
Because Melton did not object when the State made the same “incurably
improper” argument for the third time or obtain a running objection, he has failed to
preserve his complaint for our review. See Hernandez, 538 S.W.3d at 621 (holding that
the right not to be subjected to improper jury argument is forfeitable and that even
inflammatory language outside the record “does not dispense with error preservation
requirements”); Williams v. State, No. 02-17-00165-CR, 2018 WL 359916, at *2 (Tex.
App.—Fort Worth Jan. 11, 2018, pet. ref’d) (mem. op., not designated for
publication) (“[T]he preservation requirements apply even when the State’s argument
is egregious.”). We overrule Melton’s complaints on appeal. 2
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We note that we disagree with the State’s contention that, because it is both a
matter of public knowledge and a reasonable inference from the trial testimony that
the effects of child sexual abuse follow a victim into adulthood, the complained-of
argument was harmless. The misconduct—urging the jury to consider the emotional
pain of their fellow venire members as a result of their personal experiences with child
sexual abuse—was essentially a call for justice on behalf of the venire members. We
therefore cannot say that the State’s argument did not affect Melton’s substantial
rights and would otherwise find the argument incurably egregious. See Freeman, 340
S.W.3d at 728; cf. Montez, 2017 WL 2807395, at *6–7 (holding jury argument
referencing comments by venireperson during voir dire did not affect defendant’s
substantial rights when the complained-of comments consisted of evidence otherwise
introduced at trial, or duplicative).
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III. Conclusion
We hold that Melton forfeited his complaints for our review. Accordingly, we
affirm the trial court’s judgment.
/s/ Wade Birdwell
Wade Birdwell
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: August 3, 2023
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