Case Information

*1 PD-1318-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 10/6/2015 4:18:30 PM Accepted 10/7/2015 5:09:50 PM ABEL ACOSTA NO. 03-13-00202-CR CLERK IN THE COURT OF STEVEN DELEON § § CRIMINAL APPEALS OF

VS. § § THE STATE OF TEXAS

THE STATE OF TEXAS § MOTION FOR EXTENSION OF TIME TO FILE APPELLANT’S PETITION FOR DISCRETIONARY REVIEW TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

Now comes Kerrisa Chelkowski, attorney for Appellant, Steven DeLeon, files this Motion asking this Honorable Court to extend time filing Appellant’s Petition Discretionary Review in this cause. In support this Motion, Appellant shows the following:

I. This cause is appeal the 4215‘ Judicial District Court, Caldwell County, Texas, which Appellant convicted Continuous Sexual Abuse of a Young Child, No. 2012-166, styled The State Texas vs. Steven DeLeon. Punishment assessed years imprisonment.

II. Appellant's conviction affirmed Court of Appeals, Third Court of Appeals District Texas, San Antonio, Texas on May 29, 2015. Appellant filed a Motion for Rehearing such Motion denied on September 17, 2015. The current deadline for filing Appellant’s Petition for Discretionary Review decision is October 17, 2015. This is Appellant’s first request for extension of time. opinion Third Court Appeals is attached.

III. Appellant moves Court extend time for filing his Petition for Discretionary Review in this cause for period 30 days, November 17, 2015.

In support thereof, undersigned counsel shows Court following: Counsel for Appellant has brief due on October 13, 2015 to

1. United States Courts Appeal for Fifth Circuit in USA vs. Igcmacio F lores, Jr. in case number 15-50148. Counsel is set jury trial in State Texas vs. Jana Shilts, No.

2. Bexar County, Texas. Jury selection scheduled to begin October 13, 2015, trial will last more than three days. Counsel set july trial State Texas vs. Keith Coelho,

3. No. Bexar County, Texas. Jury selection is scheduled begin October 2015, will last more than three days.

IV. For foregoing reasons, Appellant needs additional time prepare Appellant's Petition for Discretionary Review.

V. WHEREFORE, PREMISES CONSIDERED, Counsel for Appellant prays Honorable Court grant extension time November for filing Appellant's Petition Discretionary Review.

Respectfully submitted, Law Office Kerrisa Chelkowski l0 South Alamo San Antonio, Texas 78210 (210) 228-9393 Telephone (210) 226-7540 Fax Email: kerrisa@defendtexas.com By: /s/ Kerrisa Chelkowski KERRISA CHELKOWSKI State Bar No. 24034373 Attorney Appellant: Steven DeLeon *4 CERTIFICATE OF SERVICE I, Kerrisa Chelkowski, do hereby certify that copy this Motion for Rehearing Appellant sent certified mail to the Caldwell County District Attorney’s Office E. San Antonio Street, P.O. Box Lockhart, 6"‘ Texas day October, 2015.

/s/ Kerrisa Chelkowski KERRISA CHELKOWSKI *5 CERTIFICATE OF COMPLIANCE Pursuant to Texas Rules Appellate Procedure (TRAP) 9.4(i)(3), undersigned certifies brief complies with type-volume limitations TRAP

9.4(i)(3)

l. EXCLUSIVE OF THE EXEMPTED PORTIONS IN TRAP 9.4(i)(3), THE BRIEF CONTAINS (select one): words, OR

A. lines text in monospaced typeface.

B.

2. THE BRIEF HAS BEEN PREPARED (select one):

A. proportionally spaced typeface using:

Software Name Version: Microsoft Office Word 2011 (Typeface Name Font Size): pt. Times New Roman, OR B. monospaced (nonproportianally spaced) typeface using: Typeface name number characters per inch: THE UNDERSIGNED UNDERSTANDS A MATERIAL 3. MISREPRESENTATION IN COMPLETING THIS CERTIFICATE, OR CIRCUMVENTION OF THE TYPE-VOLUIVIE LIMITS IN TRAP 9.4(i)(3), MAY RESULT IN THE COURT’S STRIKING THE BRIEF AND IMPOSING SANCTIONS AGAINST THE PERSON SIGNING THE BRIEF.

/s/ Kerrisa Chelkowski Signature Filing Party *6 TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-13-00202-CR

Steven DeLeon, Appellant v. State Texas, Appellee

FROM THE DISTRICT COURT OF CALDWELL COUNTY, 421ST JUDICIAL DISTRICT NO. 2012-166, HONORABLE TODD A. BLOMERTH, JUDGE PRESIDING MEMORANDUM OPINION

A jury found appellant Steven DeLeon guilty continuous sexual abuse young child and assessed punishment thirty-two years in prison. DeLeon contends insufficient evidence supports judgment and trial court abused its discretion and violated constitution by refusing allow him make defense and fully confront witnesses against him. He also contends abused its discretion by denying his motion mistrial when prosecutor commented on exercise his right remain silent imposing sentence without possibility parole. We will affirm judgment.

BACKGROUND taught physical education elementary school M.G. attended. He met M.G. mother, D.A., January M.G. started playing school’s fourth-grade basketball team. M.G. played basketball through summer of 201 l, spent time with D.A. ’s family. adults went one date never became romantically linked, though there was *7 testimony that D.A. wanted more than a friendship. DeLeon testified that he helped D.A. with her finances, helped her start a checking account, and counseled her her relationship with her son, D.G., who DeLeon also taught. DeLeon attended a parent-teacher conference regarding D.G.

in place of D.A., helped M.G. with homework, and stayed with children, sometimes overnight.

The children stayed DeLeon and brother overnight once. M.G. testified that it during such stays DeLeon assaulted her in summer of 201 l.

M.G. first repoited assault in May 2012 after her mother found a recording a March telephone conversation between M.G. and DeLeon. conversation began with a discussion M.G.’s grandfather’s surgery, but veered into sex—related topics. DeLeon deemed shift in topics inappropriate and said M.G. responsible shift, admitted participated in inappropriate discussions. In a discussion prompted M.G.’s query of why DeLeon seemed uncomfortable whenever female body parts were discussed, DeLeon said, “It’s kind like you like I remember like I would tell you: Well, am Ihurting you? Or you know everything okay? I just want to make sure you’re like comfortable.” testified this statement referred basketball practice during which had unknowingly hurt M.G. by inadvertently touching her breast she had been embarrassed explain her pain front of other players. conversation also spanned other topics ranging inappropriateness physical violence relationship M.G. getting whistled at store size DeLeon’s girlfriend’s vagina. D.A. made copy recording took it school officials, leading police investigation prosecution.

M.G. testified assaulted her four times summer of l—-three times home once at his. She testified one time he lay top her with *8 his clothes on. M.G. said that another time he touched outside her private parts his finger. She testified that DeLeon asked if she okay if was hurting her. She said that, after incident, she requested a different babysitter, but her mother still chose DeLeon. She testified that when she and her brother stayed overnight at DeLeon’ s house, DeLeon touched her private parts while her brother slept next them. In final incident, she testified that she and DeLeon were her mother’s room talking when DeLeon pulled his pants down and told her touch his penis. She said that she touched it briefly and that then grabbed her hand, put it onto his penis, and moved their hands up and down his penis while grunted. She testified that, after five minutes, something gooey came out his penis.

M.G. conceded at trial that she had related different versions these assaults at different times different audiences. M.G. told her mother that DeLeon assaulted her once, told child advocate about three instances, and testified four instances. At trial, she recanted her allegation child advocate that DeLeon had touched inside her vagina. She testified touching hurt had told the child advocate that it had hurt. At trial, she rejected her report that one incidents occurred during day, insisting that it occurred at night. M.G. told a child advocate that phone recorded March phone conversation without her knowledge, but she recanted assertion trial explained steps needed make recording. M.G. acknowledged she sometimes perceived as “overly dramatic.”

DeLeon argued allegations assault were unfounded. He denied he touched M.G.’s sexual organ she touched his. He denied being unclothed around children denied sleeping bed with them. testified relationship D.A. family changed fall ^[1] she began dating man whom described *9 as extremely jealous. D.A. changed M.G.’s phone number—M.G. linked the change D.A.’s new boyfriend, D.A. testified it was because DeLeon yelled at M.G. the phone after she did not invite him her holiday band concert in December 2011. M.G. testified that she surreptitiously stored his number in her new phone under the name “William.” DeLeon testified that he decided communicate with the family beginning December 1. In February l DA. contacted him after sent a flyer students school (including D.G.) regarding event Austin.

DeLeon testified that D.A. called tell him that M.G. (who was now attending a different school sixth graders) wanted attend.

DeLeon testified that D.A. used inappropriate language around children when talking about topics including her ex—husbands and ex—boyfriends. He testified that M.G. picked up language from her mother. He acknowledged that fell into similar patterns around family, including during recorded March l9 telephone conversation.

DeLeon’s brother, who has lived DeLeon almost fifteen years, testified he never heard DeLeon express a sexual interest children. DeLeon’s brother testified that they watched television together night that M.G. said DeLeon assaulted her brothers’ home. He testified that slept couch that night. DeLeon’s brother also testified that home l ,30O square feet, bedroom doors had been removed remodel, and interior bedrooms was visible living room.

A student, parent student, two fellow teachers testified DeLeon. The student testified she liked him, found him truthful, never had any problems him. The parent testified she daughter loved loved kids, truthful, and mentor. One fellow teacher described him as truthful, while another testified she not *10 like him because he was not prompt. She testified that she told DeLeon she thought he acted too familiar all girls on team and that he should not be alone with any of girls because it looked inappropriate, said that she see him pay any extra attention M.G. teacher testified that she found M.G. be truthful.

At punishment phase, DeLeon’s friends, colleagues, and family testified in support DeLeon. They described him as good teacher and good person who was supportive and appropriate children. A psychologist evaluated DeLeon and testified that test results showed no sexual deviancy, that is quite conservative in his sexual practices, that he showed no sexual interest children, and that scored Very low on a scale potential recidivism.

DISCUSSION DeLeon raises four issues on appeal. He contends that the court improperly limited

his ability confront witnesses put on defense. He argues that evidence insufficient to prove all required elements. He contends trial court erred by denying his motion for mistrial based prosecution’s comment failure to testify. DeLeon also asserts sentence unconstitutional because it disproportionate cruel unusual.

DeLeon harmed any error exclusion of evidence.

DeLeon contends trial court abused its discretion violated his right to confront witnesses it prevented him cross-examining D.A. problems she had with Child Protective Services, particular D.A.’s report she had abused her son. also contends improperly refused allow him question D.A. regarding anger after ignored her romantic advances toward him. He contends this evidence

would have shown D.A.’s report of alleged abuse a tactic to divert attention from her abuse children.

The Constitution guarantees defendants a meaningful opportunity to present a

complete defense. Crane v. Kentucky, 476 U.S. 683, 690 (1986); see also U.S. Const. amends. VI (compulsory process confrontation witnesses) & XIV (due process). There is, however, no absolute constitutional right to present favorable evidence. Potier v. State, 68 S.W.3d 657, 659 (Tex. Crim. App. 2002) (citing United States v. Sc/zefler, 523 U.S. 303, 316 (1998)). The right to present relevant evidence is subject to reasonable restrictions through evidentiary rules that are arbitrary or disproportionate to rule’s purpose. Id.; see also Davis v. State, 313 S.W.3d 317, 329 n.26 (Tex. Crim. App. 2010). The improper exclusion evidence may establish a constitutional violation (1) when a state evidentiary rule categorically arbitrarily prohibits defendant from offering relevant evidence is vital to his defense; (2) a trial precludes the defendant presenting defense by erroneously excluding relevant evidence is vital portion ofthe case. Ray v. State, l78 S.W.3d 835 (Tex. Crim. App. 2005). exclusion of evidence unconstitutional only where it infringes on weighty interest accused. Potier, 68 660 (citing Schejfer, 523 U.S. at 308). Erroneous evidentiary rulings rarely rise level denying fundamental constitutional rights present meaningfiil defense. Id. 663. courts’ exercise discretion guided competing interests. Courts should

permit great latitude accused show any fact would tend establish ill—feeling, bias, motive animus upon the part any witness testifying against him. Koehler v. State, S.W.2d 6, (Tex. Crim. App. 1984). On other hand, judge retains wide latitude impose reasonable limits cross-examination show bias based concerns about, among other things, *12 harassment, prejudice, confusion issues, the witness’ s safety, or interrogation that is repetitive only marginally relevant. Irby v. State, (Tex. Crim. App. 2010). parties entered an agreed order in limine concerning mention prior contact between any witnesses Child Protective Services. During cross—examination D.A., notified that intended to ask questions regarding CPS involvement with D.A.’s family, which prompted following exchange:

[Defense counsel]: . . . . There is direct relations to this discipline going that ties to a very important defensive theory this discipline made the child scared her mother.

THE COURT: You haven’t shown anything yet, Counsel, so I am not going to let anything like in, unless you show something has some bearing case. [Defense counsel]: Well, then—okay, later time then. Okay. So that’s fine. During DeLeon’s testimony, State objected when mentioned the children had been “retumed CPS custody,” the court cautioned witness blurt out CPS references.

Later, agreed question after conversation with D.A. felt compelled do something—specifically, “as educator, it my obligation Contact CPS let them know—” which time State again objected invoked motion limine. following exchange occurred bench conference:

[Defense counsel]: This is different, Judge. This goes her motive filing case. This talking about something happened past. This is talking directly what motive would be case started. [Prosecutor]: So wouldn’t appropriate person be—have gone into that been her? [Defense counsel]: This my case. You can recall her.

[Prosecutor]: This witness can’t testify about her motive.

[Defense counsel]: He can testify about what happened, not her motive. I can argue it, based the evidence.

THE COURT: I’m sustaining the objection at this time. You can call the appropriate person to do it.

DeLeon not recall D.A. for further interrogation, after the close evidence, attorney made the following offer proof:

We attempted to ask questions before the jury concerning whether [D.A.] had informed my client, Steven DeLeon, child abuse that she had inflicted upon her son, [D.G.]. And that would have given her a direct motive to go into the place with a recording [of the phone conversation between M.G. DeLeon]. It happened shortly before the recording was—excuse me—shortly before the recording was discovered. And would have prompted to go to the authorities that and given her motive. And we were not allowed ask those questions.

It not entirely clear DeLeon preserved this issue for appellate review. To preserve error in admission of evidence, party generally must make a complaint to trial court sufficient specificity trial court aware complaint, court must rule request. Tex. R. App. P. 33.1(a). In order defendant perfect complaint he allowed inquire regarding witness party’s bias, must establish what subject matter desired examine witness about cross—examination. Koelzler, 9. has shown totally forbidden from making inquiries. trial court stopped him asking D.A. CPS until he “show[ed] something has some bearing on case.” When State objected defense counsel’s attempt ask aboutD.A.’s motive contacting law enforcement, sustained objection “at time,” adding this *14 directive to counsel: “You can call the appropriate person to do it.” DeLeon did not recall D.A. or any other witness on subject.

Even if DeLeon’s offer of proof is sufficient preserve the issue regarding CPS’s investigation into a report of abuse, DeLeon has not demonstrated trial court erred. There is no showing evidence relating D.A.’s abuse of D.G. had any relevance any element of whether DeLeon sexually assaulted M.G. It can therefore be excluded absent some other theory of admissibility. See Tex. R. Evid. 402. Whether D.A. abused her son is not admissible impeachment evidence her character for truthfulness is not evidence of conviction for a crime. See Tex. R. Evid. 608(a), 609. It is specific instance of conduct which “may not be inquired into cross—examination witness nor proved by extrinsic evidence.” See id. 608(b). Also, the relevance bias or motivation D.A. reporting recording phone conversation between MG. is not plainly apparent. Ifl as DeLeon argues, D.A. wanted to distract CPS from report she abused her son, it not clear that she would serve purpose by reporting daughter sexually abused by man D.A. repeatedly selected as babysitter despite her daughter’s request she not do so. Further, because there no challenge validity recorded phone conversation, D.A.’s motive bias supplying it law enforcement is best marginally relevant contested issues case. See Irby, (trial court can limit marginally relevant interrogation). content conversation matters much more. On record presented, did not err excluding evidence D.A.’s involvement with CPS not prevent presenting defense.

Harm from any wrongful exclusion this evidence is also apparent. The recording made retaliation D.A.’s admission abuse. conversation occurred on *15 March 19, 2012, and D.A. made abuse admission to DeLeon “shortlybefore” she discovered recording M.G.’s phone on May 2012. DeLeon does not dispute that he made recorded statement, and although M.G. may have introduced topic DeLeon’ s discomfort with discussion female body parts, he initiated discussion unspecified events MG. he wanted to ensure that she was comfortable and that he was not hurting her. court’s failure to allow DeLeon delve into D.A.’s potential motivations disclosing this recording to law enforcement affect the jury’s consideration substance phone call.

Further diminishing any harm, DeLeon was able challenge D.A.’s and M.G.’s credibility in other ways. DeLeon testified and flatly denied that assaults occurred. He presented evidence that D.A. was biased against him because she was angered rejection her romantic overtures. He queried M.G. who said that D.A. had a “crush” DeLeon and that did not like her mother that way. DeLeon’ s brother testified that D.A. was obsessed with DeLeon and that his brother did not return her affection. He testified that D.A. would show up the brothers’ house unannounced while they were out would wash their dishes and feed their dog. himself testified D.A. wanted marry him but that, while was interested helping her children, he interested marriage her. All testimony called into question D.A.’s credibility because she testified she went on date decided they were better off as friends. Further, although D.A. asserted she did not telephone DeLeon, confronted her with records showing calls went from her phone his. He confronted M.G. different stories abuse she told different questioners. He highlighted fact she reported one, then three, then four incidents, noted inconsistencies between versions as whether the contact hurt, where brother incident, whether the assault occurred during day night.

Further, DeLeon’s brother contradicted details of M.G.’s story about the assault the brothers’ house. court’s failure to allow him to obtain the testimony wanted D.A.’s alleged abuse of son did prevent him confronting witnesses challenging their credibility.

We conclude beyond a reasonable doubt any erroneous exclusion of evidence discussed above contribute to DeLeon’s conviction or punishment. See Tex. R. App. P. 44.2(a). evidence is sufficient support the conviction.

In reviewing the sufficiency of the evidence support a conviction, we determine whether a rational trier of fact could have found the essential elements of the crime were proven beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). In making this determination, we consider all evidence the trier of fact permitted consider, regardless of whether it rightly or wrongly admitted. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Allen v. State, 249 S.W.3d 688-89 (Tex. App.—Austin 2008, no pet.).

We view evidence in the light most favorable the verdict. Clayton, 235 778. The jury, as trier fact, is sole judge of credibility of witnesses the weight be given their testimony. Id. Therefore, we presume jury resolved any conflicting inferences and issues credibility favor judgment. Id.

A person commits continuous sexual abuse child if, while person is years age or older victim child younger than fourteen years, person commits two or more acts sexual abuse period more days duration. Tex. Penal Code § 21.02(b).

Acts sexual abuse include indecency child if person committed offense a manner other than touching child’s breast, id. § 21.11(a)(1), sexual assault, id. § 22.011, and aggravated sexual assault, id. § 22.011.

M.G. ’s testimony sufficient support conviction. It is undisputed DeLeon and M.G. were, respectively, thirty-nine and twelve years old summer 2011. M.G. testified around June , DeLeon touched her vagina. She testified they were lying on floor, he asked her remove her shorts, and he moved his fingers her vagina. She testified that, after he touched her for about five minutes, he kissed her neck really hard and left a mark. She said he asked if she okay if he was hurting her. This testimony supports a finding that DeLeon committed indecency with a child by contact. See id. § 21.1 l(a)(1). M.G. testified that, about a month later—longer than thirty days, she said—when she and her brother were staying overnight DeLeon’s house, DeLeon touched her vagina. She testified that, wl1ile they were lying his bed, asked her remove her shorts and underwear, and he moved his finger around and inside her vagina about five minutes. He again asked her if hurting her. This testimony supports a finding indecency a child by contact, sexual assault a child, and aggravated sexual assault a child. See id. §§ 21.l1(a)(l), 22.011(a)(2), 22.021(a)(1)(B)(i). M.G. testified about three weeks later she and were talking her mom’s bedroom, pulled down his pajama pants and told M.G. touch his penis. She quickly, he grabbed hand, put hand over hers, moved their hands together up down his penis about five minutes.

She said made grunting noises, then something clear and gooey came out top his penis. This testimony sufficient support finding indecency child contact. See id.

§ 21.1 1(a)(1). child testified second incident occurred more than thirty days after the first, third incident occurred about three weeks after second. Even if testimony second incident occurred “about mom ” after the first were insufficient to show requisite period, the third incident occurred month three weeks after first—a *18 combination sufficient to support a finding two incidents sexual abuse a child occurring over a period at least thirty days. See id. § 2l.02(b)(1).

DeLeon challenges M.G.’s credibility, pointing inconsistencies her statements at various times and contrary testimony by others. He notes her failure to make an outcry before her mother confronted her with recorded telephone conversation with DeLeon. He points out that she reported one incident, then three, then four, and that her reports varied with regard to how touched her, whether his touch hurt, what time offenses occurred, and where her brother *19 Arc/zie v. State, 340 S.W.3d 734, 738 (Tex. Crim. App. 2011). A defendant’s Fifth Amendment privilege against self—incrimination continues during the punishment phase trial. See Mitchell v. United States, 526 U.S. 314, 325-27 (1999); Carroll v. State, 42 S.W.3d 129, 131-32 (Tex. Crim.

App. 2001).

We can reverse trial court’s denial motion mistrial only abuse discretion. Archie v. State, 22] S.W.3d 695, 699 (Tex. Crim. App. 2007). To determine whether the court’s instruction cured the prejudicial effect the improper comment, we balance three factors: (1) the severity the misconduct’s prejudicial effect, (2) any curative measures, (3) the likelihood the same punishment being assessed absent the misconduct. Hawkins v. State, 135 S.W.3d 72, 75 (Tex. Crim. App. 2004). Mistrial the appropriate remedy objectionable events are so emotionally inflammatory curative instructions are not likely to prevent the juiy being unfairly prejudiced against the defendant. Archie, 340 S.W.3d at 739.

Only extreme circumstances where prejudice incurable will mistrial be required. Hawkins, 135 S.W.3d at 77. Where a comment leads to two plausible inferences—one which is permissible—we do not presume jury would necessarily choose improper inference. See Henson v. State, 683 702, 704-05 (Tex. Crim. App. 1984). A comment defendant’s failure show remorse is generally proper if defendant testifies at the guilt stage and presents some defense, does testify punishment phase. Randolph v. State, S.W.3d (Tex. Crim. App. 2011). prosecutor may during punishment phase comment on any testimony given defendant guilt/innocence phase and, if defendant expressly impliedly denies criminal responsibility during testimony, prosecutor may comment on denial. Id. 895. A statement punishment argument defendant failed express *20 remorse might be taken as a comment on his failure to testify, but any harm violation can be cured instruction to disregard the comment. Moore v. State, 405-06 (Tex. Crim. App. l999). contends the should have granted his motion for mistrial after

the State commented his exercise his right remain silent during the sentencing phase of trial. DeLeontestif1ed during the guilt/innocence phase denied committing the offense did not take stand punishment phase. controversy centers the following exchange during State’s punishment argument:

[Prosecutor]: . . . . And it’s scary way he conducted himself, the absolute denial what he showed, then complete support family behind him. I do believe years, as punishment, appropriate this case. Ibelieve a sentence of 60 years would be appropriate. [M.G.] going have live this for rest life.

And if Defendant had taken stand, admitted what had done, and begged for forgiveness, I believe minimum sentence would be appropriate. But that’s not what we have here.

[Defense counsel]: Your honor, could we approach bench?

(Bench Conference)

DEFENSE MOTION FOR MISTRIAL [Defense counsel]: I am going ask mistrial. He testify punishment. He just said jury, if got up on stand phase told you— [Prosecutorl]: Iwas specifically referring guilt/innocence.

[Defense counsel]: He didn’t say that. He said, if got up here asked for forgiveness—this—I’m asking mistrial, Judge.

COURT’S RULING The Court: Well, you’re not going get one. I am going to instruct the jury to disregard that.

[Defense counsel]: That’s unbelievable.

(Open Court.)

The Court: Ladies gentlemen, the last comment by the prosecutor improper, you will not consider for any purpose whatsoever. court then expressly denied the motion mistrial. As the trial court found, the argument improper. prosecutor’s comment violated DeLeon’s right not testify. See Randolph, 353 S.W.3d 89l. Even if the statement did not take the stand admit what had done referred to DeLeon’s testimony at guilt/innocence which denied wrongdoing, the statement did beg for forgiveness is equivalent the failure to express remorse found be an improper comment by the criminal appeals. See Swallow v. State, S.W.2d (Tex. Crim. App. 1992), overruled part by Randolph, 353 at 894-95 (distinguishing between prosecutorial argument defendant did accept responsibility—a proper summation defendant’s guilt/innocence testimony denying committing crime—from argument defendant not express remorse—an improper comment failure to testify at punishment).

We conclude, however, court’ s prompt, thorough, proper instruction jury entirely disregard prosecutor’s argument cured harm. received a sentence thirty—two years—seven years above minimum twenty-five years permitted offense continuous sexual abuse child, but well below maximum life sentence permitted.

See Tex. Penal Code § 2l.O2(h). Considering sexual abuse child found jury *22 was committed by elementary school teacher——one entrusted with the safety and well—being of children—we are confident that the jury not inflamed by the improper comment and very likely would have assessed same punishment absent the misconduct. Hawkins, 135 S.W.3d at 77. The court abuse its discretion by denying motion for mistrial. sentence did not violate constitution. contends his punishment violates constitutional prohibitions against cruel unusual punishment because it does have a possibility of parole. See Tex. Penal Code *23 of age is sentenced a sixty—year prison term without the possibility of parole. Glover v. State, 406 S.W.3d 343, 346-50 (Tex. App.—Amarillo 2013, pet. ref d). The Amarillo court found a national consensus in favor of the constitutionality of the sentencing range for this offense, primarily based on the request a judge on the Court of Criminal Appeals that the legislature enact tougher punishment those who commit continuous sexual assaults of children. See id. at 348 (citing Dixon v. State, S.W.3d 737 (Tex. Crim. App. 2006) (Cochran, J., concurring)). The Amarillo court wrote that—despite court holdings that murder more serious offense than child sexual assault—the nature of the offense, its repetitive nature, the vulnerability of child victims combined make the moral culpability the offenders weigh in favor of the no—parole punishment being constitutional. Glover, at 348-49. The Amarillo court opined that the severity imprisonment for sixty years (in that case) without possibility parole weighed against constitutionality statute. Id. at 349. Finally, Amarillo court opined that mere fact sentencing range this offense greater than that child murder does necessarily render sentencing range unconstitutional. Id. That court reasoned those convicted crime are already recidivists opined they are more likely reoffend than murderers who, aside from serial killers, tend not reoffend. Id. 349—50. held prison term without parole served penological goals retribution, deterrence, incapacitation. Id. has presented no evidence argument requires rejection Glover

opinion. sentence imposed case—thirty—two years prison—is substantially less than the sixty—year prison term imposed similarly aged defendant case found to be constitutional. See id. 345. We are persuaded mere fact that child sexual abuser might be sentenced longer prison term than a child murderer necessarily renders sentencing *24 structure unconstitutional. Assuming criminal behavior is affected by punishment ranges enshrined law, we are somewhat concerned “incentive” inherent sentencing structure mandates minimum sentence person who improperly sexually touches a child twice that five times longer than five-year minimum sentence available person who murders same child, we are persuaded our concern sufficient render statutes DeLeon’ s sentence unconstitutional.

CONCLUSION Finding has presented no reversible error, we affirm judgment. Jeff Rose, Chief Justice Before Chief Justice Rose, Justices Pernbeiton and Bourland

Affirmed

Filed: May 2015

Do Not Publish

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN JUDGMENT RENDERED MAY 2015 NO. 03-13-00202—CR

Steven DeLeon, Appellant v. State Texas, Appellee

APPEAL FROM 421ST DISTRICT COURT OF CALDWELL COUNTY BEFORE CHIEF JUSTICE ROSE, JUSTICES PEMBERTON AND BOURLAND AFFIRMED -- OPINION BY CHIEF JUSTICE ROSE This appeal judgment entered court. Having reviewed record and parties’ arguments, the Court holds there no reversible error in the trial court’s judgment. Therefore, Court affirms the trial court’s judgment. appellant shall pay all costs relating appeal, both this Court below.

COURT OF APPEALS THIRD DISTRICT OF TEXAS PO. BOX I2547, AUSTIN, TEXAS 78711-2547 www,lxcourIs.g0v/3rdcoa.aspx (512) 463-1733 JEFFREY D. KYLE, CLERK JEFF L. ROSE. CHIEF JUSTICE DAVID PURYEAR, JUSTICE BOB PEMBERTON. JUSTICE MELISSA GOODWIN, JUSTICE SCOTT K. FIELD, JUSTICE CINDY OLSON BOURLAND, JUSTICE September 2015 Ms. Kerrisa J. Chelkowski

Ms. Kathryn T. Alsobrook Law Office Kerrisa Chelkowski Assistant Criminal District Attorney South Alamo Caldwell County, Texas ‘- San Antonio, TX 78210

P. O. Box 869 * DELIVERED VIA E-MAIL * Lockhait, TX 78644 * DELIVERED VIA E-MAIL *

RE: Court Appeals Number: O3-13-00202~CR

Trial Court Case Number: I 2-1 66

Style: Steven DeLe0n

v. State of Texas

Dear Counsel:

Appellant's motion rehearing overruled Court date noted above. Very truly yours, JEFFREY D. KYLE, CLERK C QT‘ - BY: e,/(4%?/kn Liz Talerico, Deputy Clerk was during these events. He notes she admitted liking to use sexual language, initiating the sexual theme into telephone conversation, and being overly dramatic. also points his brotl1er’s testimony did not share bed she stayed at their home and bedrooms at house have no doors. The jury, however, could have either rejected testimony found offense simply occurred short period during which DeLeon’s brother not monitoring him. jury faced credibility choice selected M.G. The record such we can intrude the jury’s role override its choice credit M.G.’s testimony. See Clayton, 235 S.W.3d 778; Jones v. State, 944 S.W.2d 648 (Tex. Crim. App. 1996). We find evidence sufficient to support conviction. abuse its discretion denying DeLeon’s motion mistrial State’s argument punishment phase. Permissible jury argument includes summation of the evidence, reasonable deduction evidence, answer argument opposing counsel, plea law enforcement. Allridge v. State, 146, (Tex. Crim. App. 1988). Commenting accused’s failure testify violates state federal constitutional privileges against self—incrimination.

§ 21.02(h); see also Tex. Gov’t Code § 508.l45(a). He notes his minimum possible sentence twenty-five years in prison, while someone who murders a child could get as few as five years in prison a possibility parole. See Tex. Penal Code § 12.32; Tex. Gov’t Code § 508.l45(t). He contends that, because a child murderer sentenced to thirty-two years in prison would be eligible parole would not, his sentence is disproportionate his crime. He contends that, assessing whether categorical denial parole persons guilty continuous child sexual abuse is cruel unusual, we should examine four factors: (1) whether there is national consensus against imposing particular punishment issue; (2) moral culpability offenders issue light their crimes characteristics; (3) severity punishment; and (4) whether punishment serves legitimate penological goals. Meadoux v. State, 189, (Tex. Crim. App. 2010). He contends murder is worse crime than sexual abuse Texas’s sentencing parameters are inconsistent hierarchy. He contends sentence severe because will be incarcerated until late sixties. State leans conclusion Amarillo punishment structure continuous sexual abuse child is constitutional, even person forty years