Full Opinion (html_with_citations)

Affirmed as Modified and Opinion filed December 21, 2018.




                                         In The

                       Fourteenth Court of Appeals

                                 NO. 14-18-00048-CR
                                 NO. 14-18-00049-CR

                       JOSHUA MARQUIS BELL, Appellant
                                           V.

                         THE STATE OF TEXAS, Appellee

                      On Appeal from the 177th District Court
                               Harris County, Texas
                     Trial Court Cause Nos. 1465758 &1440135

                                    OPINION

      Appellant was on deferred adjudication community supervision (probation) for
one count each of aggravated assault with a deadly weapon and aggravated promotion
of prostitution. In two issues, appellant challenges the trial court’s revocation of
probation. He contends that (1) the evidence was insufficient to support the trial court’s
finding that appellant violated the conditions of probation, and (2) the trial court erred
by considering the State’s closing argument about facts not in evidence. We affirm.
           I.     SUFFICIENCY OF EVIDENCE FOR PROBATION VIOLATION

      The State alleged that appellant violated conditions of his probation by failing to
pay fees and costs and by committing a new offense, i.e., family violence assault
against his girlfriend. In his first and second issues, appellant contends that the evidence
was insufficient to prove either allegation. Regarding the family violence assault, he
contends that (1) the State failed to prove that appellant intentionally, knowingly, or
recklessly caused bodily injury to the girlfriend; and (2) appellant’s use of force was
justified to remove the girlfriend from his home because she was a trespasser.

A.    Appellant’s Plea

      At the outset, the State contends in its brief that appellant pleaded “true” to the
allegations and that a plea of “true” is sufficient to support the trial court’s revocation
of probation. Appellant disputes this contention, and we agree with appellant.

      The record reflects that appellant initially pleaded “true” to the allegations in the
State’s motion to adjudicate before the State read aloud the allegations. After some
discussion with appellant, the court took a recess, and then the State read aloud the
allegations. To these allegations, appellant pleaded “not true.”

      The judgments in each case erroneously reflect that appellant pleaded “true” to
the allegations. Accordingly, we reform the judgments to reflect that appellant pleaded
“not true.” See Houston-Randle v. State,
499 S.W.3d 912
, 915–16 (Tex. App.—
Houston [14th Dist.] 2016, pet. ref’d). We now address the merits of appellant’s first
and second issues.

B.    Standard of Review

      To revoke probation, the State must prove a violation of a condition of probation
by a preponderance of the evidence. Hacker v. State,
389 S.W.3d 860
, 864–65 (Tex.
Crim. App. 2013). A preponderance of the evidence is met if the greater weight of the

                                             2
credible evidence creates a reasonable belief that the defendant has violated a condition
of probation.
Id. at 865
.

      We review the trial court’s ruling for an abuse of discretion.
Id.
 A trial court does
not abuse its discretion if the ruling is within the zone of reasonable disagreement.
Burch v. State,
541 S.W.3d 816, 820
 (Tex. Crim. App. 2017). A ruling is within this
zone if there are two reasonable views of the evidence.
Id.

      Evidence is sufficient to revoke probation if there is more than a scintilla of
evidence. Hacker,
389 S.W.3d at 865
. The trial court is the sole judge of the credibility
of witnesses and the weight to be given their testimony.
Id.
 To reverse a trial court’s
rejection of a justification defense, an appellate court would need to conclude that the
defense was “shown as a matter of law.” Roberts v. State,
363 S.W.2d 261, 262
 (Tex.
Crim. App. 1962).

C.    Legal Principles

      To prove that appellant committed a new offense in this case, the parties agree
that the State had to prove, among other things, that appellant caused bodily injury to
the girlfriend and did so at least recklessly. See Tex. Penal Code § 22.01(a)(1). A
“bodily injury” assault is a result-oriented offense. Landrian v. State,
268 S.W.3d 532, 536
 (Tex. Crim. App. 2008). A person acts recklessly with respect to the result of his
conduct when he is aware of but consciously disregards a substantial and unjustifiable
risk that the result will occur. Tex. Penal Code § 6.03(c).

      A person in possession of land is justified in using force “when and to the degree
the actor reasonably believes the force is immediately necessary to prevent or terminate
the other’s trespass on the land.” Id. § 9.41(a). A “reasonable belief” is one that would
be held by an ordinary and prudent person in the same circumstances as the actor. Id.
§ 1.07(a)(42). A person may not use more force than is necessary to eject or expel


                                            3
someone from the person’s home. Petty v. State,
70 S.W.2d 718, 719
 (Tex. Crim. App.
1934). Whether a belief was reasonable and justifiable and whether the defendant used
more force than necessary under the circumstances are questions for the factfinder to
decide. See Henley v. State,
493 S.W.3d 77
, 93–94 (Tex. Crim. App. 2016) (regarding
self-defense) (citing Hayes v. State,
728 S.W.2d 804, 808
 (Tex. Crim. App. 1987)); see
also Juarez v. State,
308 S.W.3d 398, 405
 (Tex. Crim. App. 2010) (noting that whether
conduct is excused by a necessity defense is a question for the factfinder).

D.    Evidence

      Two witnesses testified during the hearing: the girlfriend and appellant. The
girlfriend, who was pregnant with appellant’s child at the time of the altercation,
testified that she discovered appellant had been speaking “sexually” with the
girlfriend’s best friend. The girlfriend testified that she was upset with appellant, and
she told appellant that she would “fuck his life up.” She drove to appellant’s house and
knocked on the door. He let her inside, and they argued. She testified that she did not
“get physical” with him; she didn’t touch him. He wanted her to leave, but she refused
to leave right away. He was trying to get her out of the house when he grabbed her. He
“jumped” her and grabbed her by the neck. He had a strong grip on her neck, and she
felt like she couldn’t breathe. She testified that he asked her to leave numerous times
while grabbing her and that the purpose of him grabbing her was to get her out of the
house.

      The girlfriend was able to leave and call 911. When officers arrived, they took
photographs of her injuries. The photographs were admitted as exhibits and depict red
marks on her neck and on her wrist.

      The girlfriend testified that for some time after the incident, appellant would
constantly call her phone. He would use different phone numbers to call her, and she
had to block over thirty of them. He also hacked into her phone and her social network
                                           4
websites, called people who she knew, and told them untrue things—embarrassing,
personal things.

      Appellant testified that the girlfriend was upset when she came to his house. She
was ringing the doorbell, honking her car horn, and calling him. He let her inside, and
at first, he wanted to try to work things out. He testified that she broke his television
and threw a plate, and eventually she started swinging at him. He testified that he asked
her to leave multiple times, but she would not. He testified, nonetheless, that he did not
punch, slap, kick, or choke her.

      The girlfriend testified that she weighed 105 pounds and was five feet, three
inches tall. Appellant weighed 200 pounds and was six feet, once inch tall.

E.    Analysis

      Appellant does not dispute that he caused bodily injury to the girlfriend, but he
contends that there is insufficient evidence of his intent. As the sole judge of the weight
and credibility of the evidence, the trial court could have credited the girlfriend’s
testimony that appellant grabbed her by the neck and choked her. See Hacker,
389 S.W.3d at 865
. Proof of his culpable mental state can be inferred from his words and
conduct. See Bin Fang v. State,
544 S.W.3d 923, 928
 (Tex. App.—Houston [14th Dist.]
2018, no pet.). The trial court could have inferred that appellant acted at least recklessly
because a person would be aware that there is substantial and unjustifiable risk of
bodily injury by choking someone. Cf.
id.
 at 928–29 (holding that beating with a fist
was reasonably certain to cause bodily injury).

      Similarly, it was within the zone of reasonable disagreement for the trial court
to find that appellant exerted more force than necessary to remove the girlfriend from
his home during a heated argument. In particular, the trial court could have concluded
that appellant’s choking a former lover who was half his size was not reasonable and


                                             5
justifiable under the circumstances. See Henley, 493 S.W.3d at 93–94 (reasonableness
of justification defense is a question for the factfinder). And, the court could have
inferred that an ordinary and prudent person under the same circumstances as appellant
would not have reasonably believed choking the girlfriend was immediately necessary
to terminate the girlfriend’s trespass in appellant’s home. The trial court heard evidence
that the girlfriend was initially a guest in the home and that appellant harbored
animosity toward the girlfriend well after the altercation.

      In sum, there is more than a scintilla of evidence to support the trial court’s
finding that appellant committed a new offense by recklessly, and unjustifiably,
causing bodily injury to his girlfriend.

      Appellant’s first and second issues are overruled.

                              II.   IMPROPER ARGUMENT

      Appellant complains in his third issue that the trial court overruled an objection
to the State’s closing argument concerning facts not in evidence. The State contends
that appellant failed to preserve error for most of the statements that appellant
complains about on appeal, that the sole statement for which error was preserved was
a proper summation of the evidence, and that any error in allowing the State to make
the statement was harmless.

A.    Background

      Appellant pleaded guilty to the offenses of aggravated assault with a deadly
weapon and aggravated promotion of prostitution. In the assault case, appellant’s
judicial confession described appellant’s conduct as follows: “intentionally and
knowingly threaten [the complainant] with imminent bodily injury by using and
exhibiting a deadly weapon, namely, A FIREARM.” The district clerk’s file in the
assault case includes a complaint signed by a peace officer. In the complaint, the officer

                                            6
alleges that the complainant was searching for his missing daughter, and he tracked her
to appellant’s vehicle. When the complainant yelled for his daughter to come to him,
the daughter instead got into appellant’s vehicle. The complainant yelled for his
daughter to get out, but appellant got out of the vehicle. Appellant pointed a gun in the
complainant’s face and threatened to shoot.

      During the revocation hearing, the State cross-examined appellant about the
underlying offenses of aggravated assault and aggravated promotion of prostitution.
Appellant denied most of the State’s allegations.1 The State did not adduce other
evidence concerning the underlying offenses.

      The State began its closing argument as follows:

      MR. BATY:              Thank you, Your Honor. I want to begin talking
                             about the cases that Mr. Bell is on probation for.
                             He is on probation, Your Honor, for aggravated
                             assault with a deadly weapon where he put a gun to
                             a father’s head. The father was chasing his daughter
                             who was a runaway trafficked child. He—the father
                             confronted Mr. Bell. Mr. Bell—
      MR. GARDNER:           Judge, I’m going to object. He’s testifying to things
                             that are not in evidence.
      MR. BATY:              They are in evidence because they are in the original
                             case.
      THE COURT:             Overruled.
      MR. BATY:              Mr. Bell put a gun to his head and said, “Get the fuck
                             away from my car. I’m going to get—I’m taking
                             your girl. I’m leaving.”

      1
          For example:
      Q. So you didn’t put a gun to anybody’s head?
      A. No.
      ....
      Q. So you didn’t force [a runaway juvenile] to have oral sex with somebody else?
      A. No, sir.
                                               7
                            That juvenile gave an interview in that case stating
                            that Mr. Bell forced her to have oral sex with men for
                            money. Yet, Mr. Bell doesn’t take responsibility for
                            those actions. Had it been me, deferred would not
                            have been appropriate in that case right off the start.
                            However, here we are.
                            After that case Mr. Bell picks up an aggravated
                            promotion of prostitution where two prostitutes, who
                            are adults this time, show up to a hotel room with
                            undercover officers, agree to make sex tapes with
                            those undercover officers. Mr. Bell is downstairs in
                            the car waiting for payment, waiting to manage them,
                            communicating with the officers back and forth.
      On appeal, appellant complains about the State’s arguments concerning facts of
the offenses.

B.    Preservation of Error

      The State contends that appellant only preserved error regarding the sentence
immediately preceding the objection: “He—the father confronted Mr. Bell.” We do not
agree with such a narrow view of the objection, but we agree with the State that
appellant failed to preserve error for any improper arguments the State made after the
trial court overruled appellant’s objection.

      As a prerequisite to presenting a complaint for appellate review, the record must
show that the complaint was made to the trial court by a timely request, objection, or
motion. Tex. R. App. P. 33.1(a)(1); Lackey v. State,
364 S.W.3d 837, 843
 (Tex. Crim.
App. 2012). To preserve error regarding an improper argument, a party must object
each time an allegedly improper argument is made. Johnson v. State,
416 S.W.3d 602
,
616–17 (Tex. App.—Houston [14th Dist.] 2013, no pet.); see also Cockrell v. State,
933 S.W.2d 73, 89
 (Tex. Crim. App. 1996). A party must keep making futile objections
or risk waiver. See Leday v. State,
983 S.W.2d 713, 718
 (Tex. Crim. App. 1998)
(concerning admission of evidence). An objection must be sufficiently clear to give the
                                               8
trial court and opposing counsel an opportunity to address it, and if necessary, correct
the purported error. Thomas v. State,
505 S.W.3d 916, 924
 (Tex. Crim. App. 2016).

      To be timely, an objection must be lodged as soon as the party knows or should
know that the error has occurred. Lackey,
364 S.W.3d at 843
. In a bench trial, strict
timeliness of a complaint “may not be quite ‘as crucial’” because a judge, in the
capacity as legal arbiter, is presumed to be able to disregard those matters the judge
deems to be inappropriate for the judge to consider in the separate role as fact-finder.
Id.
 (quoting Garza v. State,
126 S.W.3d 79, 83
 (Tex. Crim. App. 2004)); see also Quick
v. State,
557 S.W.3d 775
, 787–88 (Tex. App.—Houston [14th Dist.] 2018, pet. filed)
(noting that courts have been more lenient and flexible regarding error preservation in
a bench trial because the timing of an objection does not matter if the trial court still
has an opportunity to make a ruling on the objection, but a complaint about closing
argument not made until a motion for new trial was untimely).

      Appellant’s objection was timely and specific enough to preserve error for all of
the arguments made before the objection. At the time of appellant’s objection, the trial
court still had the opportunity to address it, and if necessary, correct the error. See
Thomas,
505 S.W.3d at 924
; Quick,
557 S.W.3d at 788
; see also Coggeshall v. State,
961 S.W.2d 639
, 641–42 (Tex. App.—Fort Worth 1998, pet. ref’d) (objection
preserved error regarding reference to fact not in evidence although the objection was
“not as specific or timely as it could have been” when appellant objected two sentences
after the objectionable content). Thus, appellant made a timely objection to the
following arguments by the State: (1) appellant “put a gun to the father’s head”; (2) the
father had been “chasing his daughter who was a runaway trafficked child”; and (3) the
father confronted appellant. Appellant preserved error for these statements.

      However, after the trial court overruled appellant’s objection, the State made
new factual assertions. Appellant did not object to the following statements, which he

                                           9
now complains about on appeal: (1) appellant said, “Get the fuck away from my car.
I’m going to get—I’m taking your girl. I’m leaving.”; (2) the “juvenile gave an
interview” stating that appellant “forced her to have oral sex with men for money”; (3)
appellant’s aggravated promotion of prostitution charge involved two adults who
agreed to make “sex tapes” with undercover officers; and (4) appellant was “downstairs
in the car waiting for payment, waiting to manage them, communicating with the
officers back and forth.” These new factual assertions were not the same statements
that the State had made before the objection. Cf. Graham v. State,
710 S.W.2d 588
,
591–92 (Tex. Crim. App. 1986) (error preserved for the admission of testimony when
the trial court had “just overruled [the appellant’s] objection” to the same question).
Accordingly, appellant was required to lodge another objection to preserve error, but
he failed to do so. See Johnson, 416 S.W.3d at 616–17.

C.    Facts Outside the Record

      References to facts that are neither in evidence nor inferable from the evidence
are generally designed to arouse the passion and prejudice of the fact-finder. Freeman
v. State,
340 S.W.3d 717, 728
 (Tex. Crim. App. 2011). Thus, the State may not use
closing arguments to present evidence that is outside the record.
Id.

      During a hearing to revoke community supervision, a trial court may take
judicial notice of evidence heard in a prior criminal trial of the probationer. Bradley v.
State,
564 S.W.2d 727, 729
 (Tex. Crim. App. 1978). The court need not take judicial
notice of documents in the court’s file, such as the judgment and order of community
supervision. See Cobb v. State,
851 S.W.2d 871
, 874–75 (Tex. Crim. App. 1993).
Formal proof of documents in the court’s file is not required during a community
supervision revocation hearing, so long as the documents appear in the record. See id.;
see also, e.g., In re A.W.B., No. 14-11-00926-CV,
2012 WL 1048640
, at *2–3 (Tex.
App.—Houston [14th Dist.] Mar. 27, 2012, no pet.) (mem. op.) (noting that an

                                           10
appellate court may presume that the trial court took judicial notice of the record
without any request being made and without any announcement that it has done so; the
trial court is presumed to judicially know what has previously taken place in the case
tried before it; and the parties are not required to prove facts that the trial court
judicially knows). Moreover, an appellate court has discretion to take judicial notice of
adjudicative facts when necessary to avoid an unjust judgment. Watkins v. State,
245 S.W.3d 444
, 455–56 (Tex. Crim. App. 2008).

       In this case, we take notice of appellant’s judicial confession, which shows that
appellant used a firearm to commit the aggravated assault and that the assault was
committed by threat. Thus, the State’s reference during closing argument to appellant
brandishing a gun and making a threat against the complainant was not outside the
record.

       However, the State contends further that the remainder of its argument was not
outside the record because the peace officer’s allegations in the complaint, found in the
district clerk’s file, supplied evidence in support of the State’s argument. The State
cites no authority to support considering the complaint as evidence. Appellant responds
that the complaint is hearsay and that considering it would violate his right to
confrontation and cross-examination. These arguments raise a slew of troublesome
issues that are not fully briefed by the parties. For example, whether a court may
judicially notice the substance of a complaint as evidence,2 whether the Confrontation


       2
          See Resendez v. State,
256 S.W.3d 315, 324
 (Tex. App.—Houston [14th Dist.] 2007)
(“Assertions made by an individual, even under oath, are generally not the type of facts capable of
accurate and ready determination by a source whose accuracy cannot reasonably be questioned.”),
rev’d on other grounds,
306 S.W.3d 308
 (Tex. Crim. App. 2009); Jackson v. State,
139 S.W.3d 7, 21
(Tex. App.—Fort Worth 2004, pet. ref’d) (holding that “while a court may judicially notice the
existence of the affidavit in its file, the court may not take judicial notice of the truth of the factual
contents contained in such an affidavit because those facts are not the kinds of facts that a court may
judicially notice”).

                                                   11
Clause applies to a deferred adjudication probation revocation proceeding and the
sentencing aspect of that hearing,3 and whether appellant waived his rights by signing
plea paperwork that contained some waiver language4—not to mention preservation,
complicated by the fact that the State did not ask the trial court to take notice of the
complaint so appellant had no opportunity to object.

       As noted above, the record includes appellant’s confession that he used a firearm
to make a threat, so any argument based on these facts would not be outside the record.
However, we assume without deciding that the following of the State’s arguments were
outside the record: (1) appellant put the gun to the complainant’s head; (2) the
complainant was a father who was “chasing his daughter who was a runaway trafficked
child”; and (3) the complainant confronted appellant. Thus, we assume that the trial
court erred by overruling appellant’s objection to these facts outside the evidence.




       3
         See Stringer v. State,
309 S.W.3d 42
, 47–48 (Tex. Crim. App. 2010) (noting federal authority
holding that the Confrontation Clause did not apply to sentencing hearings before a judge; holding
that the Clause did not apply to presentence investigation reports in sentencing hearings before a
judge, but reasoning that a “probation officer who prepares the report is neutral and the report is
written in anticipation of consideration by the trial judge for sentencing, not for prosecution”
(emphasis added)); Dixon v. State,
244 S.W.3d 472
, 482–83 (Tex. App.—Houston [14th Dist.] 2007,
pet. ref’d) (holding that Confrontation Clause applies to punishment phase of a trial). Compare
Trevino v. State,
218 S.W.3d 234, 239
 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (holding that
Confrontation Clause did not apply to a regular probation revocation hearing because the Clause does
not apply after a conviction), with Cantu v. State,
339 S.W.3d 688
, 690–91 (Tex. App.—Fort Worth
2011, no pet.) (avoiding the question of whether Confrontation Clause applies to deferred
adjudication probation revocation proceedings; noting that deferred adjudication means, unlike
ordinary probation revocation proceedings, there has been no conviction, so it is unclear whether the
Trevino rationale applies).
       4
          See Stringer v. State,
241 S.W.3d 52
, 57–59 (Tex. Crim. App. 2007) (holding that the
defendant did not waive his Confrontation Clause right by pleading guilty under the particular facts
of the case; whether he waived the right at the punishment stage was “controlled by the text of the
written waiver” contained in the guilt-stage plea paperwork).

                                                 12
D.     Harm Analysis

       The harm analysis for improper arguments during a bench trial is not well-
defined. For many years in Texas, appellate courts presumed that a trial court presiding
at a bench trial would disregard inadmissible evidence and improper argument. See,
e.g., Atkins v. State,
423 S.W.2d 579, 580
 (Tex. Crim. App. 1968). This presumption
was a type of harmless error test, developed from civil cases before the promulgation
of former Rule 81(b)(2) of the Texas Rules of Appellate Procedure concerning harm in
criminal cases. See Gipson v. State,
844 S.W.2d 738
, 740–41 (Tex. Crim. App. 1992).5
Based on the text of former Rule 81(b)(2), the Court of Criminal Appeals expressly
disavowed the presumption as applicable to inadmissible evidence. Gipson, 844
S.W.2d at 740–41. Instead, former Rule 81(b)(2) created a presumption that error was
harmful and reversible. See Ovalle v. State,
13 S.W.3d 774
, 784 n.34 (Tex. Crim. App.
2000).

       Since Gipson, former Rule 81(b)(2) was amended so the presumption of harm
only applies to constitutional error.
Id.
 In Ovalle, the Court of Criminal Appeals
declined to resolve, in light of the amended rule, the question of whether the former
presumption (that a trial court will disregard inadmissible evidence) would still apply
to non-constitutional error. See
id.

       This court, however, has criticized the “absurdity” of the former presumption,
concluding that it “strained credulity because there was no principled basis upon which
to presume the trial court that ruled the evidence admissible would not consider it
because it was, in fact, inadmissible.” Young v. State,
994 S.W.2d 387, 389
 (Tex.
App.—Houston [14th Dist.] 1999, no pet.). “Indeed, the presumption should have been


       5
         Former Rule 81(b)(2) is substantially similar to the current standard for evaluating harm
from constitutional errors. Compare Gipson,
844 S.W.2d at 740
 (quoting former Rule 81(b)(2)), with
Tex. R. App. 44.2(a).

                                               13
the exact opposite: Why would a trial court admit evidence, over objection, if the trial
court did not intend to consider it?”
Id.

      Gipson and Young concerned the applicability of the former presumption to
inadmissible evidence—not necessarily improper argument. But the presumptions are
cut from the same cloth. See Atkins,
423 S.W.2d at 580
. Thus, we will apply Gipson
and Young to improper arguments in a bench trial since Gipson has not been overturned
or modified by the Court of Criminal Appeals. The rationale in Young is equally
applicable to an improper argument: Why would a trial court allow the State to make
improper arguments, over objection, if the trial court did not intend to consider those
arguments?

      Accordingly, we look to Rule 44.2(b) and apply the harmless error standards for
non-constitutional error. See Martinez v. State,
17 S.W.3d 677, 692
 (Tex. Crim. App.
2000). Under the rule, an error that does not affect substantial rights must be
disregarded. Tex. R. App. 44.2(b); Martinez,
17 S.W.3d at 692
. A substantial right is
affected if the error had a substantial and injurious effect or influence in determining
the verdict. King v. State,
953 S.W.2d 266, 271
 (Tex. Crim. App. 1997). When the error
involves improper argument, we balance the following factors: (1) severity of the
misconduct (prejudicial effect); (2) curative measures; and (3) certainty of conviction
or punishment absent the misconduct. Martinez, 17 S.W.3d at 692–93; see Hawkins v.
State,
135 S.W.3d 72, 77
 (Tex. Crim. App. 2004).

      Regarding the severity of the misconduct, we consider the prejudicial effect on
the trial court’s decision to revoke probation and on the punishment assessed. As a
result of the State’s improper argument, the trial court learned that the complainant in
the assault case was the father of a “runaway trafficked child,” that the father
confronted appellant, and that appellant put a gun to the father’s head. The trial court
would have already known that the weapon was a gun, since appellant’s plea paperwork

                                            14
described the weapon as a firearm. And the trial court would have already known that
the assault involved a threat. The additional facts that the complainant confronted
appellant and that appellant put a gun to the complainant’s head would not be surprising
to trial court. See Martinez,
17 S.W.3d at 693
 (mild degree of misconduct in part
because jurors would not have been surprised to hear that the victims’ families were
upset with the defendant and wanted retribution). At this point in the State’s argument,
the trial court would not have known that appellant was involved with child trafficking
or any other underlying facts. Thus, the trial court did not know that appellant had been
accused of trafficking the child—only that the child had been a “runaway trafficked”
child.

         In assessing harm, we cannot consider the unpreserved error in the State’s
argument, i.e., that appellant forced the minor to have oral sex for money, which later
served to link appellant to trafficking the child. See Watts v. State,
371 S.W.3d 448
,
461 n.1 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Moreover, because appellant
did not object to the State’s argument concerning oral sex, the earlier reference to the
“runaway trafficked child” was less likely to be impactful on the trial court’s decision
to adjudicate or in assessing an appropriate sentence. See Smith v. State,
842 S.W.2d 401, 406
 (Tex. App.—Fort Worth 1992, pet. ref’d) (any error from overruling improper
argument was “cured” because the State made the same argument elsewhere during
closing argument); cf. Mosley v. State,
983 S.W.2d 249, 258
 (Tex. Crim. App. 1998)
(noting that error in the admission of evidence can be rendered harmless by the
admission of other similar evidence). Accordingly, the misconduct was not severe in
light of the entire case. This factor does not favor a finding of harm. See Martinez,
17 S.W.3d at 693
.

         No curative measures were taken. The State’s argument was not particularly
lengthy overall, so the objected-to evidence took up a moderate amount of the State’s

                                           15
argument. This factor favors a finding of harm. See Watts,
371 S.W.3d at 460
; see also
Martinez,
17 S.W.3d at 693
; cf. Tucker v. State, No. 07-10-00421-CR,
2011 WL 3652762
, at *3 (Tex. App.—Amarillo Aug. 19, 2011, pet. ref’d) (mem. op., not
designated for publication) (declining to presume that trial court disregarded improper
argument, consistent with Gipson, but reasoning that the remedial measures of the trial
court ameliorated any harm because the trial court sustained the objection, considered
the prosecutor’s statement withdrawn, and afforded it no consideration).

      The third factor focuses on the strength of the evidence to determine the certainty
of the conviction or punishment. See Watts,
371 S.W.3d at 460
; see also Hawkins,
135 S.W.3d at 85
. In Watts, for example, this court reversed a conviction on one count
because the evidence of guilt was “less than conclusive” and “not in any way certain,”
but affirmed the conviction on another count because the evidence of guilt was
overwhelming. See 371 S.W.3d at 460–62.

      Regarding the trial court’s decision to revoke probation and adjudicate
appellant’s guilt, the evidence strongly showed that appellant committed an offense
against the State by assaulting his girlfriend. The third factor, therefore, does not favor
a finding of harm regarding the revocation of probation. With the first and third factors
not favoring a finding of harm, we do not find that appellant was harmed regarding the
decision to revoke probation.

      However, the third factor presents a closer question on the issue of punishment.
“The sentencing process consists of weighing mitigating and aggravating factors, and
making adjustments in the severity of the sentence consistent with this calculus.”
Milburn v. State,
15 S.W.3d 267, 270
(Tex. App.—Houston [14th Dist.] 2000, pet.
ref’d). The decision of what punishment to assess is a “normative process, not
intrinsically factbound.” Barrow v. State,
207 S.W.3d 377, 381
 (Tex. Crim. App. 2006)
(quotation omitted). The fact-finder’s discretion to impose a punishment within the

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prescribed range is essentially unfettered.
Id.
 But, the punishment must be based on the
fact-finder’s informed normative judgment.
Id.

      Here, the only available information regarding the offenses for which the trial
court sentenced appellant was appellant’s judicial confessions, which did not convey
aggravating or mitigating facts about the offenses beyond the statutory elements. The
parties did not adduce significant evidence concerning punishment, and the State’s
improper argument provided an additional aggravating fact in favor of punishment: that
the complainant was a father searching for his “trafficked” daughter. And, the trial
court adjudicated guilt and assessed punishment in a single proclamation without
holding a separate punishment hearing, though the trial court did not prevent appellant
from adducing punishment evidence. See Issa v. State,
826 S.W.2d 159, 161
 (Tex.
Crim. App. 1992) (holding that trial court erred by adjudicating guilt and assessing
punishment in one proclamation without affording the defendant an opportunity to
present punishment phase evidence; reasoning that a trial court must “conduct a second
phase to determine punishment,” and a defendant is “entitled to a punishment hearing
after the adjudication of guilt, and the trial judge must allow the accused the
opportunity to present evidence”).

      The State contends that any error was harmless, however, because “the
prosecutor made even more inflammatory arguments without objection by the
appellant, such as that the appellant forced the daughter to have oral sex with men for
money.” We agree with the State that this improper argument based on facts outside
the record was particularly inflammatory, yet appellant did not object to it. Thus, any
impropriety of the State’s earlier argument—referring to the complainant as the father
of a runaway trafficked child—was cured by the later reference to appellant forcing a
child to perform oral sex on men for money. See Smith,
842 S.W.2d at 406
.



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      In sum, appellant was not harmed by the improper argument to which he
objected. Thus, appellant’s third issue is overruled.

                                  III.    CONCLUSION

      Because trial court’s judgments erroneously reflect that appellant pleaded “true”
to the allegations in the State’s motion to adjudicate, we reform the trial court’s
judgments to add the word “not” before the word “true” under the heading “plea to the
motion to adjudicate.” We affirm the trial court’s judgments as modified.




                                         /s/        Ken Wise
                                                    Justice


Panel consists of Justices Donovan, Wise, and Jewell.
Publish — Tex. R. App. P. 47.2(b).




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