Opinion
No. 08-03-00140-CR
March 10, 2005. DO NOT PUBLISH.
Appeal from the 384th District Court of El Paso County, Texas, (Tc# 20020D02570).
Before Panel No. 2, BARAJAS, C.J., McCLURE, and CHEW, JJ.
OPINION
Appellant Hector Macias appeals his conviction of two counts of aggravated sexual assault of a child. The jury found Appellant guilty of the two counts and assessed punishment for both counts at 5 years' imprisonment in the Institutional Division, Texas Department of Criminal Justice. The trial court ordered the sentences for both counts to run concurrently. Appellant raises four issues on appeal, in which he asserts that: (1) the evidence was legally and factually insufficient; (2) he received ineffective assistance of counsel; (3) the trial court erred in excluding evidence of the victim's prior allegation of sexual abuse; and (4) the State committed prosecutorial misconduct. We affirm.
SUMMARY OF THE EVIDENCE
One evening in October 2001, Gloria Martinez allowed Appellant, her half-brother, to pick up her then six-year-old daughter, A.M., from her house and bring A.M. to his house so that A.M. could try on some clothes that Appellant's wife was going to give to A.M. Appellant returned A.M. to her home about two hours later, but A.M. had not been given any clothes. Appellant quickly left Ms. Martinez's house. A.M. did not say anything. Ms. Martinez began asking her questions about the clothes and whether they fit. At first, A.M. just looked at her and did not respond. A.M. then told her they did not fit. Ms. Martinez asked A.M. if she wanted to talk and she said no. On February 9, 2002, after her son Adrian's counseling session with Dr. Sixto Gomez at her home, Ms. Martinez asked Dr. Gomez for a ride to Appellant's house in order to pick up a VCR. Dr. Gomez drove while Ms. Martinez sat in the front passenger seat and her children sat in the back. When Ms. Martinez mentioned where they were going, she noticed that A.M. became panicked and abnormally nervous. Dr. Gomez also observed that A.M. was becoming very agitated, very nervous, afraid, and restless. A.M. repeatedly said she did not want to get out of the car. A.M. asked to talk to Dr. Gomez alone. Ms. Martinez and Adrian got out of the car and waited outside while A.M. talked to Dr. Gomez. Once they were alone, A.M. told Dr. Gomez that she was afraid to tell him what had happened because Appellant had said he would kill her mother with a knife if she told anyone. A.M. stated that Appellant had touched her "down there," pointing her finger to her genital area. Dr. Gomez asked if she meant her vagina, and she said "yes." A.M. told Dr. Gomez that Appellant took his clothes off, took her clothes off, and had a knife. A.M. stated that Appellant told her that if she said anything, he would kill her mother. A.M. told Dr. Gomez that Appellant licked her vagina and then made her lick his penis and told her to suck on it. While A.M. was talking to Dr. Gomez, her speech was very rapid and she seemed very afraid. Dr. Gomez told Ms. Martinez what A.M. had told him. Dr. Gomez informed Ms. Martinez that he had to report the outcry of sexual abuse to Child Protective Services ("CPS") and that they would notify the police. Cynthia Aguilar with CPS conducted the preliminary interview with A.M. When A.M. made an outcry of sexual abuse, the interview was stopped so that she could be videotaped in a full interview. CPS referred the case to the police on February 22, 2002. As part of the police investigation, A.M. was examined at Sierra Medical Center. A.M. was not tested for the presence of sperm or for sexually transmitted diseases. The results showed no physical trauma or scarring. Ms. Aguilar stated that CPS closed its case after determining that any risk factors that may have been present were under control, specifically noting that A.M. had been referred to victim's assistance, was receiving counseling, and the designated perpetrator no longer had access to the child. At trial, seven-year-old A.M. identified Appellant in the courtroom and stated that she remembered the day Appellant came to her house, picked her up, and took her to his house. A.M. recalled that no one else was at Appellant's house — just her and Appellant. A.M. stated that bad things happened to her at Appellant's house. A.M. was sitting on the sofa in Appellant's house. Using an anatomically correct doll, A.M. explained that Appellant put his penis in her mouth. Appellant also touched her vaginal area with his mouth, but not with his penis. At one point, Appellant got on top of A.M. and his penis touched her mouth. Appellant told her not to tell her mother and A.M. was afraid of him. A.M. testified that Appellant had tattoos on his arms, however, Detective Jeff Gordon testified that he observed no tattoos on Appellant's body when he photographed him. Detective Gordon did observe scars on Appellant's upper arms. Appellant's wife also testified that Appellant did not have any tattoos. On cross-examination, A.M. agreed that she had talked to Ms. Aguilar and Dr. Gomez and that they had told her what to say. She also agreed that she had "been practicing a lot to say the right things." On redirect, however, A.M. testified that she was telling the truth in her testimony. In his testimony, Dr. Gomez explained his relationship to the Martinez family. Since May 2000, Dr. Gomez, a licensed therapist and clinical social worker, had been conducting counseling sessions at the Martinez home with Adrian, A.M.'s sibling. The initial referral was from the Life Management Center in order to work with Adrian on behavior modification, anger management, and self-esteem. Adrian has severe mental retardation, suffers from epileptic seizures, clubfoot, Attention Deficit Hyperactive Disorder, and is diagnosed with microcephalia. It was Dr. Gomez's understanding that Ms. Martinez suffers from depression, auditory hallucinations, and severe mood disorders. He knew that Ms. Martinez had complained that she had been abused as a child at age five, that a boyfriend of hers had placed a gun to her head, and that Ms. Martinez claimed to have had out-of-body experiences. Dr. Gomez believed she was taking mood-altering drugs. He agreed that Ms. Martinez was extremely domineering and overpowering of A.M. and her son. However, Dr. Gomez explained that this was expected in single-parent families and that this case fell within those parameters. Dr. Gomez agreed that the family was dysfunctional, but had never noted that A.M. had any tendency to fantasize or make up stories. Dr. Gomez agreed that children, including A.M., are prone to suggestion. On cross-examination, Ms. Martinez was questioned about her mental health status and family relationships. Ms. Martinez remembered attending psychiatric services in San Francisco, where she lived before moving to El Paso in 1999. However, she denied any personal involvement with Mental Health and Mental Retardation ("MHMR"), Life Management, the Kellogg Clinic in San Elizario, or Texas Tech psychiatric services. Ms. Martinez stated that she took psychiatric medication in San Francisco and used to take medication for depression and for paranoia. She admitted to taking medication currently, but denied that she was taking psychiatric medication or still felt paranoid. Ms. Martinez denied that she was still hearing voices in her head, but could not remember when it had stopped. Ms. Martinez admitted that she attended special education classes throughout her academic career and had limited reading and writing abilities. In her testimony, Ms. Martinez denied that she hated her mother, Isabel Morales. She claimed to have never told anyone that she hated her mother or had a bad relationship with her mother, but admitted that she was not close to her family since returning from California. Ms. Martinez denied ever telling Ms. Aguilar that there was somebody in the house waiting to rape her. She also explained that neither of her children is still involved in Big Brothers Big Sisters. Several family members testified on behalf of the defense. Appellant's aunt, Maria de Jesus Martinez-Rivera, testified that Ms. Martinez held a lot of hatred for the family and while Ms. Martinez and the children lived with her in 1999, Ms. Martinez said bad things against the family. According to the aunt, Ms. Martinez was revengeful towards her mother and was working on a way to get back at her mother for giving her away. The aunt also testified about Ms. Martinez's auditory hallucinations and sudden mood swings. Appellant's mother, Isabel Morales, testified that until April 2001, she had a good relationship with her daughter. During one visit with Ms. Martinez, Ms. Martinez flew into a rage and told her mother to get out of her life. Appellant's wife, Sylvia Macias, testified that the family had only one vehicle and that she was the primary driver. On weekdays, she would drop off Appellant at work, and in the evenings, he would get a ride home from a co-worker. She did admit, however, that they both have been known to borrow another car and that there have been times when Appellant used their car during the week. According to Ms. Macias, their daughter is normally home by the time Appellant arrives home in the evening, therefore after the workday, Appellant is either at home with her or their daughter.DISCUSSION SUFFICIENCY OF THE EVIDENCE
In Issue One, Appellant challenges the legal and factual sufficiency of the evidence, arguing that the State failed to met its burden of establishing that Appellant committed the alleged offenses beyond a reasonable doubt. Specifically, Appellant asserts that the State witnesses provided contradicted evidence and conflicting testimony. Appellant also argues that the evidence was insufficient due to the questionable nature of A.M.'s testimony and the influence that Ms. Martinez's family history and mental health condition had on the credibility of A.M.'s allegations.Standards of Review
In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); Burden v. State, 55 S.W.3d 608, 612 (Tex.Crim.App. 2001). We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). Instead, our duty is to determine whether both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict. See Adelman, 828 S.W.2d at 421-22. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843. In reviewing the factual sufficiency of the evidence, we must determine whether considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004); see also Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). There are two ways in which we may find the evidence to be factually insufficient. Zuniga, 144 S.W.3d at 484. Evidence is factually insufficient when the evidence supporting the verdict, considered alone, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also insufficient when contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt. See id. at 485. However, in our factual sufficiency review, we must give appropriate deference to the jury and should not intrude upon its role as the sole judge of the weight and credibility given to evidence presented at trial. See Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis, 922 S.W.2d at 133. Accordingly, we are authorized to set aside the jury's finding of facts only in instances where it is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Clewis, 922 S.W.2d at 135.Aggravated Sexual Assault
A person commits the offense of aggravated sexual assault of a child if he intentionally or knowingly causes the sexual organ of a child younger than fourteen years of age to contact or penetrate the mouth, anus, or sexual organ of the actor, or another person, or causes the penetration of the mouth of a child by the sexual organ of the actor. See TEX.PEN. CODE ANN. § 22.021(a)(1)(B)(ii)(iii) (2)(B) (Vernon Supp. 2004-05). Appellant was convicted of two counts of the charged offense. Viewing the evidence in the light most favorable to the jury, the evidence showed that on one evening in October 2001, Appellant took his seven-year-old niece A.M. to his house under the pretense of giving her some clothes. While they were alone in the house, Appellant touched A.M.'s sexual organ by licking her vagina and put his penis in A.M.'s mouth. A.M. also said that Appellant got on top of her and his penis touched her mouth. In A.M.'s testimony, she used anatomically correct dolls to explain what she called the "bad things" that happened to her in Appellant's house. Dr. Gomez, the outcry witness, testified that A.M. told him what had happened on February 9, 2002. Ms. Aguilar also testified that A.M. made an outcry of sexual abuse during her preliminary interview with CPS. Under our legal sufficiency standard of review, any inconsistencies in the evidence are resolved in favor of the verdict. See Matson, 819 S.W.2d at 843. From the testimony of A.M. and Dr. Gomez, any rational trier of fact could have found that Appellant committed the essential elements of two counts of the offense beyond a reasonable doubt. We conclude that the evidence was legally sufficient to sustain Appellant's conviction. Appellant also asserts in his first issue that the evidence was factually insufficient, pointing to evidence from which the jury could have inferred that Ms. Martinez's past history and mental health condition influenced her daughter and noting that, at the very least, such evidence significantly undermined the daughter's credibility. Viewing the evidence in a neutral light, we observe that at trial there was conflicting evidence concerning the strained nature of Ms. Martinez's relationship to her family, however, there was no evidence presented that Ms. Martinez ever told her daughter or that her daughter even knew about her past history. There was also no evidence that Ms. Martinez ever attempted to influence A.M. in making the allegation of sexual assault against Appellant. In our factual sufficiency review, we do not intrude upon the jury's role as the sole judge of the weight and credibility given to the evidence. See Johnson, 23 S.W.3d at 7. After considering all the evidence in a neutral light, we conclude that the evidence supporting the verdict is not too weak to support the finding of guilt beyond a reasonable doubt. Moreover, we conclude that the contrary evidence is not so strong that guilt could not be proven beyond a reasonable doubt. Having found that the evidence was both legally and factually sufficient to sustain Appellant's conviction, we overrule Issue One.PRIOR ALLEGATION
In Issue Three, Appellant contends the trial court erred in excluding testimony of a prior allegation by A.M. of sexual assault by her brother Adrian. Appellant also asserts that he was denied the right to effective cross-examination and effective assistance of counsel by the trial court's refusal to admit evidence of the prior allegation. Before trial began, Appellant's counsel told the trial court that he intended to present evidence that CPS was involved with the family because Ms. Martinez or A.M. had made a prior allegation that Adrian sexually abused A.M. The State argued that the allegation was reported to CPS after the alleged incident with Appellant. In addition, the allegation was made by an anonymous source on the CPS intake record that said there were some aunts concerned about the situation. The trial court decided to take up the issue of the relevancy of the evidence during trial outside the jury's presence. In the voir dire examination of CPS worker Cynthia Aguilar, she testified that prior to the allegation involving Appellant, there was one allegation in the CPS file of which the substance was that Adrian had been emotionally abused. That allegation was "ruled out." Ms. Aguilar was the CPS worker involved in investigating the second allegation in the CPS file, that is, the allegation made by A.M. against Appellant. Ms. Aguilar testified that a third allegation in the file, the one stating that Adrian had allegedly molested A.M., was not part of the file when she was involved with the case, therefore the allegation must have been received after she closed the case as to the second allegation. In reviewing the CPS records, Ms. Aguilar stated that the intake record for the third allegation was dated July 2002, that the information was anonymously reported, and that it had been "ruled out." In further voir dire, Ms. Aguilar was questioned about a letter she had written which was addressed to Claudia Tarango, dated April 13, 2002. She agreed that it was fair to assume that Ms. Tarango had referred a case over to her. Ms. Aguilar also agreed that the address for Big Brothers Big Sisters was the same as the address listed in the letter. In addition, according to notes in the file, another intake worker at Big Brothers Big Sisters told CPS that A.M. told him Adrian touched her private parts. At the end of the voir dire examination, the trial court did not permit Appellant to introduce evidence concerning the allegation of sexual abuse made against Adrian.Standard of Review and Applicable Law
The Sixth Amendment of the U.S. Constitution guarantees the right of an accused in a criminal proceeding to be confronted with the witnesses against him. Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986); Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974). Within this right, as applied to the states through the Fourteenth Amendment, is a defendant's right of cross-examination. Davis, 415 U.S. at 315-16, 94 S.Ct. at 1110; Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1067-68, 13 L.Ed.2d 923 (1965). A defendant's right of cross-examination includes the right to impeach the witness with relevant evidence that might reflect bias, interest, or prejudice. Virts v. State, 739 S.W.2d 25, 29 (Tex.Crim.App. 1987). However, the trial court retains broad discretion to impose reasonable limits on cross-examination to prevent harassment, prejudice, confusion of the issues, witness safety, and introduction of cumulative or collateral evidence. See Lagrone v. State, 942 S.W.2d 602, 613 (Tex.Crim.App.) cert. denied, 522 U.S. 917, 118 S.Ct. 305, 139 L.Ed.2d 235 (1997); Carroll v. State, 916 S.W.2d 494, 496-97 (Tex.Crim.App. 1996). We review the trial court's decision to restrict cross-examination of a witness under an abuse of discretion standard. Cantu v. State, 939 S.W.2d 627, 635 (Tex.Crim.App.), cert. denied, 522 U.S. 994, 118 S.Ct. 557, 139 L.Ed.2d 399 (1997). Rule 608(b) provides that:Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of a crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor provided by extrinsic evidence.TEX.R.EVID. 608(b). In Lopez v. State, 18 S.W.3d 220 (Tex.Crim.App. 2000), the Court of Criminal Appeals rejected a per se exception to Rule 608(b) for sexual offenses, but acknowledged that this rule may on occasion conflict with an accused's right of confrontation. See Lopez, 18 S.W.3d at 225. Courts must examine each case on an individual basis to determine whether the Confrontation Clause demands the admissibility of certain evidence. Id. In making this determination, the trial court should balance the probative value of the evidence sought to be introduced against the risk its admission may entail. Id. at 222.
Prior Allegation
Appellant contends the trial court erred in excluding evidence of the victim's prior allegation of sexual abuse by her brother Adrian. Appellant argues on appeal that the evidence should have been admitted to show that A.M. has falsely accused others of sexual assault. He asserts that the evidence in his bill of exceptions contained "concrete evidence that said accusations were considered false by the investigating agency." Appellant also argues that "there is written documentation that the agency did not feel further investigation was needed or justified. . . ." We find that the record does not support Appellant's contention that he offered conclusive proof that the other allegation was false. Ms. Aguilar testified that the third allegation in the CPS files involved A.M.'s brother. This allegation was received subsequent to her investigation of the allegation against Appellant. Ms. Aguilar believed that following an investigation, the allegation was ruled out and the case was closed. As part of his bill of exceptions, Appellant introduced a CPS intake report, which indicates that after telling her mother about the sexual abuse by Appellant, A.M. had also told the caller that "'SB [her brother] used to touch her private parts, but not any longer since she is telling her MO [mother] now.'" The report states that no details were known regarding the sexual abuse by A.M.'s sibling. The report also states that "[i]t is unknown if it was an isolated incident." In its conclusions, the report noted that the alleged sexual abuse by A.M.'s brother was "[a]t an unknown time" and that the brother "is still in the home, but is at such a low level of functioning, that it is possible that he did not realize what he was doing at the time." According to the report, the case was upgraded to a "P1" because the brother was still in the home. Ms. Aguilar's testimony provides the only evidence concerning the final disposition of the CPS investigation into the allegation. In her testimony, Ms. Aguilar failed to provide the agency's reasoning for ruling out the allegation involving A.M.'s brother or for closing the investigation. Ms. Aguilar's testimony that the case was "closed" and the allegation was "ruled out" does not necessarily establish the invalidity of the allegation, since the intake report also noted that A.M. was currently seeing a counselor and that her mother was now being very protective of her. As in Lopez, the disposition may indicate a lack of evidence to prove the allegation at that time, or an administrative decision to close the case despite the allegation's validity. See Lopez, 18 S.W.3d at 225-26. Without proof that the allegation involving A.M.'s brother was false, this evidence had little, if any probative value, but the risk of undue prejudice and jury confusion in admitting such evidence was high. Therefore, we conclude the trial court did not err in refusing to admit evidence of the allegation of sexual abuse of A.M. by her brother which was contained in the CPS files. Issue Three is overruled.PROSECUTORIAL MISCONDUCT
In Issue Four, Appellant complains that the State committed prosecutorial misconduct in this case by eliciting testimony from Detective Joe Zimmerly about a statement Appellant may have given to police in violation of the motion in limine and by commenting during the State's closing argument on Appellant's right not to testify. We examine claims of prosecutorial misconduct on a case-by-case basis. Stahl v. State, 749 S.W.2d 826, 830 (Tex.Crim.App. 1988); Perkins v. State, 902 S.W.2d 88, 96 (Tex.App.-El Paso 1995, no pet.). Prosecutorial misconduct has been found where: (1) the prosecutor's actions deliberately violated an express court order; (2) where the prosecutor's misconduct was so blatant as to border on being contumacious; and (3) where the prosecutor asked a question which was clearly calculated to inflame the minds of the jury and was of such a character so as to suggest the impossibility of withdrawing the impression produced. See Stahl, 749 S.W.2d at 831; Huffman v. State, 746 S.W.2d 212, 218 (Tex.Crim.App. 1988); Perkins, 902 S.W.2d at 96. To preserve error for prosecutorial misconduct, the appellant must (1) make a timely and specific objection, (2) request an instruction to disregard the matter improperly placed before the jury, and (3) move for mistrial. See TEX.R.APP.P. 33.1; Cook v. State, 858 S.W.2d 467, 473 (Tex.Crim.App. 1993); Perkins, 902 S.W.2d at 96.Examination of Detective Zimmerly
During direct examination, the prosecutor questioned Detective Zimmerly about the steps he took in proceeding with his investigation of the case. Detective Zimmerly explained that after determining he had probable cause to arrest Appellant, he obtained an affidavit and arrest warrant and filed the warrant in the department's warrants office. Since Appellant was living outside his jurisdiction, Detective Zimmerly contacted the El Paso County Sheriff's Office to assist in the arrest. Detective Zimmerly testified that Appellant was arrested and the charge was for aggravated sexual assault. The prosecutor then asked the detective if he had any further involvement in the case after Appellant was arrested. Detective Zimmerly replied, "Yes. I went to the jail and met with him in an attempt to get a written statement from him, or interview with him." Appellant objected on grounds that the prosecutor violated the court's order on the motion in limine and moved for mistrial. The trial court denied the motion for mistrial, but granted Appellant's request for a curative instruction and instructed the jury not to take into consideration for any purpose whatsoever the officer's statement about going to the jail to interview Appellant and attempting to get a statement from him. Reviewing the prosecutor's question in context of the line of questioning, we cannot find that the prosecutor deliberately violated an express court order or instruction. The question was clearly not intended to elicit additional information about statements made by Appellant which were the subject of the motion in limine. Moreover, there is no evidence that the prosecutor's question was clearly calculated to inflame the minds of the jury or that it was of such a character so as to suggest the impossibility of withdrawing the impression produced. Ordinarily, a prompt instruction to disregard will cure error associated with an improper question and answer. Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App. 2000). We conclude that the instruction to disregard given to the jury was sufficient to cure any harm from the detective's statement. We overrule this portion of Appellant's complaint in Issue Four.Comment on Appellant's Right Not to Testify
Appellant also contends that prosecutorial misconduct occurred during the State's closing argument in the guilt-innocence phase of trial when the prosecutor commented on the reasons why a defendant would decide not to testify. Specifically, Appellant complains about the following exchange:The State: The evidence comes from the witnesses on the stand, okay? Comes from A.M. and from Sixto Gomez. And sure, there are some other witnesses that may come up, police officers, CPS, whatever, but remember this case is about A.M. and what she went through. And what she's continued, from the preliminary interview to the forensic interview, to testify before you today, she has continued to say that this man did these things to me.
And remember defense counsel says, Well, you know, we may not want somebody to testify because they're uneducated as opposed to a seasoned attorney. Is that —
Defense: Your Honor, I'm going to object. She's getting into the defense's right not to testify and that's improper.
The State: I'm answering his argument, Judge. And I'm not going to say anything about —
Defense: I would request an instruction.
The Court: I didn't hear that but I'll sustain the objection.
The State: Thank you, Judge.
Just that there are risks when you put up a seasoned attorney —
Defense: Your Honor, I'm going to again have to object. She's getting into him not testifying.
The State: That's what you argued.
The Court: Well, just move along.
Defense: She's inferring. It's not our burden.
The Court: All right.
The State: Our — is that any different for the child witness in this case? I mean, does she have more education than —
Defense: Your Honor, again, she's inferring to my client's right not to testify due to self-incrimination.
The State: No, no, no.
The Court: Hold on. Hold on. Don't make any reference in violation of the Court's instructions, Ms. Compton.
The State: No, Your Honor. And I'm talking about A.M. and her testimony on cross.
Defense: Your Honor, she's doing it simply by application, by testifying the child would have done, why not him. It's an inferred —
The Court: She will not get into the area in violation of the Court's charge. Go ahead, Ms. Compton.The record shows that although Appellant timely objected to the alleged comment on his decision not to testify, which the trial court sustained, he did not obtain a ruling on his request for a curative instruction and did not move for mistrial. Appellant has not properly preserved his complaint for appellate review. See TEX.R.APP.P. 33.1; Cook, 858 S.W.2d at 473. Even assuming that Appellant's complaint had been properly preserved, the prosecutor's comment was not an improper comment on Appellant's failure to testify. Prosecutorial comments on a defendant's failure to testify violate both the state and federal constitutions and Article 38.08 of the Texas Code of Criminal Procedure. See Bustamante v. State, 48 S.W.3d 761, 765 (Tex.Crim.App. 2001); TEX. CODE CRIM.PROC.ANN. art. 38.08 (Vernon 1979). The language of an alleged comment must be manifestly intended or of such character that the jury would naturally and necessarily consider it to be a comment on the failure of the accused to testify. Bustamante, 48 S.W.3d at 765. The comment must be viewed from the jury's standpoint and the implication that the comment referred to the defendant's failure to testify must be clear. Id. It is not sufficient that the language might be construed as an implied or indirect allusion to the accused's right to remain silent. Id. The comment at issue made no clear reference to Appellant's failure to testify. In fact, Appellant's counsel argued that the reference was to be inferred from the prosecutor's comment. We find that the language of the comment was insufficient to establish improper jury argument as the basis for Appellant's prosecutorial misconduct claim. Issue Four is overruled in its entirety.