Opinion
No. 05-10-00216-CR
Opinion Filed August 24, 2011. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 422nd Judicial District Court, Kaufman County, Texas, Trial Court Cause No. 27569.
Before Justices BRIDGES, LANG-MIERS, and MURPHY.
OPINION
James Curtis Rockwell was charged in a two-count indictment for aggravated sexual assault of a child and indecency with a child by exposure. A jury acquitted appellant of the aggravated sexual assault charge but convicted him of indecency with a child by exposure. After the jury found the State's two enhancement allegations true, it assessed punishment at fifty years' confinement. On appeal, appellant brings eight points of error, complaining of the legal sufficiency of the evidence to convict him, the trial court's limitation on the scope of his cross-examination of the complaining witness, charge error, prosecutorial comments during closing argument, and the sufficiency of the evidence related to his previous convictions. For the following reasons, we affirm the trial court's judgment.
Sufficiency of the Evidence
In his first point of error, appellant challenges the sufficiency of the evidence to support his conviction for indecency with a child by exposure. In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 899-900 (Tex. Crim. App. 2010) (plurality op.). We defer to the fact finder's determinations of the witnesses' credibility and the weight to be given their testimony because the fact finder is the sole judge of those matters. Jackson, 443 U.S. at 326; Brooks, 323 S.W.3d at 900. At the time of the offense in question, the penal code provided, in relevant part:A person commits an offense if, with a child younger than 17 years and not the person's spouse, . . . the person . . . with the intent to arouse or gratify the sexual desire of any person . . . exposes the person's anus or any part of the person's genitals knowing the child is present.Act of May 23, 2001, 77th Leg., R.S., ch. 739, § 21.11(a)(2)(A), 2001 Tex. Gen. Laws 1463 (amended 2009) (current version at Tex. Penal Code Ann. § 21.11(a)(2)(A) (West 2011)). In his sufficiency challenge, appellant attacks only the evidence supporting the "exposure" element of the statute, contending that there was no evidence the complainant actually saw his penis or genitals. Relevant Background Complainant T.G. was twelve at the time of the offense. Appellant worked with T.G.'s mother and was spending the night with T.G.'s family as a guest. According to T.G., appellant was to sleep in T.G.'s bedroom while she slept on the couch located in the living room. At the time T.G began settling down on the couch to "crash" for the night, T.G.'s father and appellant were in the living room watching a football game on the television. Appellant's father later left the living room to sit on the back porch, and T.G. was left alone in the living room with appellant. Appellant was sitting on the floor at the opposite end of the couch from where T.G. was lying. T.G. testified that while she was trying to sleep, appellant started rubbing her leg with his hand and eventually started rubbing her vagina. T.G. testified appellant also tried to lie next to her on the couch, but that she kept moving around and changing positions so "he couldn't really touch on [her] anymore." T.G. said she was "terrified" and that she did not know what to think or do. At some point, appellant "grabbed [her] by the arm," pulled her to her feet, and pushed her through the kitchen into her bedroom. T.G. testified that appellant then removed her clothes and sexually assaulted her. When appellant stopped, T.G. put her clothes back on and made her way back to the living room; she grabbed her father's cane before she sat back on the couch. When appellant tried to sit next to her and rub her upper thigh, T.G. got off the couch, grabbed the family's "big stick," and sat down on the floor in front of the television. T.G. recounted that appellant then got down on the floor and "walk[ed] on his knees over to [her]" and started masturbating. T.G. testified she did not know if his genitals were out or "if it was just his penis" but that she knew he was masturbating. She specifically described how appellant "had it in his hand" and that "he was trying to get up in [her] face," telling her to "watch this, watch this." Although she testified she never saw his genitals, she also testified she saw his hand clenched and that she saw "something there." She was not "quite sure what it was" but she was "pretty sure it was his penis because that would be the only thing like that." T.G testified she saw something come out of his penis and fall on the carpet. Two weeks later, T.G. told her parents about the incident. T.G.'s parents immediately called the police. Officer Steven Johns with the criminal investigations division of the Terrell police department investigated the case. As part of his investigation, Johns interviewed T.G. and her parents, and based on the information they provided, Johns went to T.G.'s house to recover possible evidence for testing. Johns testified T.G. told him how appellant "masturbated himself" while next to her on the floor and that she specifically "pointed out the area of the carpet where she believed [appellant] ejaculated." Johns removed that section of the carpet and sent it for forensic testing. The preliminary test results revealed the presence of semen on the carpet. Johns then contacted appellant to obtain a DNA sample from him. Johns told appellant he had recovered a section of carpet in T.G.'s house that allegedly contained appellant's DNA. Appellant agreed to provide a sample of his DNA for comparison testing and admitted to Johns that he had masturbated in the living room while watching a soft core pornographic movie. Johns received the DNA testing reports from the medical examiner's office and testified the reports verified that appellant was "the source of the sperm fraction of the stain from the carpet." Appellant denied sexually assaulting T.G. but admitted to committing a "despicable act" in the living room. Specifically, appellant testified he "was alone in the living room" and "was watching Cinemax TV, and [he] masturbated." He testified he was lying on the floor watching television the whole night and was never alone with T.G. in the living room. Appellant agreed that it would be reasonable to believe that anyone in the house could have walked in on him and that he knew that risk when he started masturbating. Although he emphasized he thought he was alone at the time and did not see T.G. or her parents, appellant admitted he "got caught" because somebody knew where the stain was on the carpet. Analysis Appellant argues the evidence is insufficient to sustain his conviction because there is no evidence T.G. saw his penis or genitals. He contends the State was required to prove he exposed himself and the "best and easiest way of proving exposure was to ask [T.G.] if she saw the genitals." Appellant maintains T.G.'s "straight forward answer" of "No" in response to questions about whether she saw appellant's genitals "only leads to the conclusion that appellant did not expose anything." Despite appellant's contentions, the statute does not require that T.G. actually see appellant's exposed genitals. See Breckenridge v. State, 40 S.W.3d 118, 124-25 (Tex. App.-San Antonio 2000, pet. ref'd); Wilson v. State, 9 S.W.3d 852, 856 (Tex. App.-Austin 2000, no pet.) ("section 21.11 does not require a showing that the victim saw the defendant's exposed genitals"); see also Miller v. State, 156 Tex. Crim. 389, 243 S.W.2d 175, 176 (1951) (definition of term "expose" not limited to meaning "exposed to sight"). Rather, as defined by the statute, "the offense is based on [appellant's] actions and intent, not the victim's comprehension." Wilson, 9 S.W.3d at 856; see also Ex Parte Amador, 326 S.W.3d 202, 209 (Tex. Crim. App. 2010) (Cochran, J., concurring) (noting indecency with a child by exposure is "circumstances of conduct" offense; the child "only needs to be 'present' during the offense"). T.G. testified that she knew appellant was masturbating. And although she testified she did not see his genitals or "know if [his genitals] were out or if it was just his penis," she also said appellant "had [his penis] in his hand," she saw his hand clenched and she "did see something there," and she saw some part of what she thought was his penis and that something eventually came out of "that." She further testified appellant was telling her to watch. Officer Johns testified that T.G. told him appellant masturbated in front of her and that she was able to point to the spot on the carpet where the semen landed. Importantly, appellant does not contest that he masturbated in the living room of the house where anyone could have seen him. But his testimony conflicts with T.G.'s testimony in that he testified he was alone in the living room and did not see T.G.; conversely, T.G. testified appellant kneeled on the floor next to her, masturbated, and told her to watch. Conflicts in testimony, however, are resolved by the jury, and we afford almost complete deference to its determinations. See Brooks, 323 S.W.3d at 900; Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075 (2009). In this case, the jury was entitled to resolve any conflicts in testimony against appellant and believe T.G.'s testimony that appellant knew she was present as he masturbated. Thus, after examining the evidence in the light most favorable to the verdict under the Jackson standard, we conclude that a rational trier of fact could have found beyond a reasonable doubt that appellant exposed himself knowing T.G. was present. See Jackson, 443 U.S. at 319. We overrule appellant's first point of error.
Limitation of Cross-Examination
Appellant's second point of error stems from his cross-examination of T.G. Specifically, he contends the trial court erred by limiting the scope of his cross-examination of T.G. about "fabricating the events." He claims the trial court's error prevented him from presenting a defense and violated his right to confront his accuser. We review the trial court's decision to limit cross-examination under an abuse of discretion standard. Sansom v. State, 292 S.W.3d 112, 118 (Tex. App-Houston [14th Dist.] 2008, pet. ref'd) (citing Matchett v. State, 941 S.W.2d 922, 940 (Tex. Crim. App. 1996)). We will not disturb the trial court's ruling so long as it lies within the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g). Applicable Law Criminal defendants' constitutional rights to a meaningful opportunity to present a complete defense are grounded in the Fourteenth Amendment's Due Process Clause and the Sixth Amendment's Compulsory Process and Confrontation Clauses. Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009) (citing Crane v. Kentucky, 476 U.S. 683, 690 (1986)). A trial court's "clearly erroneous ruling" excluding evidence may rise to the level of a constitutional violation if the evidence excluded is relevant and reliable and "forms such a vital portion of the case that exclusion effectively precludes the defendant from presenting a defense." Wiley v. State, 74 S.W.3d 399, 405 (Tex. Crim. App. 2002) (quoting Potier v. State, 68 S.W.3d 657, 665 (Tex. Crim. App. 2002)). The Sixth Amendment guarantees a criminal defendant the right to confront the witnesses against him. U. S. Const. amend. VI; Pointer v. Texas, 380 U.S. 400, 406 (1965). Article I, section ten of the Texas Constitution also provides for the right to confront witnesses. Tex. Const. art. I, § 10. This right to confrontation includes the right to cross-examine one's accuser. Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996). Cross-examination allows the jury to assess the credibility of the witness and allows facts to be brought out tending to discredit the witness by showing that her testimony is untrue, prejudiced, or biased. Id.; see also Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim. App. 2009). The scope of appropriate cross-examination is necessarily broad and extends to any matter that could reflect on the witness's credibility. Carroll, 916 S.W.2d at 497; Virts v. State, 739 S.W.2d 25, 28 (Tex. Crim. App. 1997); see also Tex. R. Evid. 611(b). While a trial court may violate a defendant's right of confrontation by improperly limiting cross-examination, the scope of appropriate cross-examination is not unlimited. Carroll, 916 S.W.2d at 497-98; see also Hammer, 296 S.W.3d at 561 (trial court has "wide discretion in limiting the scope and extent of cross-examination"). For example, a trial court may limit the scope of cross-examination to prevent harassment, prejudice, confusion of the issues, harm to the witness, and repetitive or marginally relevant interrogation. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); Carroll, 916 S.W.2d at 498. "Notwithstanding the trial court's discretion in this area, jurors are entitled to have the benefit of the defense theory before them so that they can make an informed decision regarding the weight to accord the witness's testimony, even though they may ultimately reject the theory." Sansom, 292 S.W.3d at 119. Analysis Appellant claims his defensive theory at trial was that T.G. lied about the sexual allegations to cover up a bad report card. On cross-examination, T.G. admitted she hid her report card from her parents on the day it was issued, which was the day before she told her parents about the events involving appellant. The cross-examination continued as follows:[DEFENSE COUNSEL]: [W]hen your parents asked you where your report card was, you made up a story about the school computers being down?
[T.G.]: I'm not sure. I don't remember that much.
[DEFENSE COUNSEL]: Okay. So this is the day that you alleged or that you told your parents that you were raped?
[T.G.]: Yes.
. . .
[DEFENSE COUNSEL]: Do you recall telling the police officers that your grades were affected by the rape?
[T.G.]: Yes.
[DEFENSE COUNSEL]: So you were thinking about your report card when you were talking to the police officers?
[T.G.]: I was thinking sort of on the report card. They were kind of what was going bad afterwards.
[DEFENSE COUNSEL]: So — but you don't deny that you told your parents that the school computers were down, and that's why they hadn't got the report card?
[T.G.]: I'm not sure if I told them that or what.
[DEFENSE COUNSEL]: If you did, it would have been a lie?
[T.G.]: If I did, it would be a lie.
[DEFENSE COUNSEL]: Okay. So in making that up to tell your parents that lie, you would have added facts because the school computers weren't down, were they?
[T.G.]: No.
[DEFENSE COUNSEL]: So to make your story more believable, you added more facts to the story?The State objected to the last question on the grounds it was argumentative "because she said she [did not] remember what the story was." The trial court sustained the objection. Appellant asserts the effect of the trial court's ruling was to prevent him from presenting his defense, which, in his words, was an attempt "to expose [T.G.'s] fabrications by showing how [T.G.] attempted to do it." Contrary to appellant's assertion, the trial court allowed appellant to cross-examine T.G. fully on the subject matter of her lying about the events leading up to her reporting the allegations involving appellant. T.G. clearly admitted, and no one disputes, she lied to her parents about her report card and that whatever story she may have told her parents about why she did not have her report card, would have also been a lie. The lie T.G. told about her report card immediately preceded her telling her parents about the "rape." And even after the trial court sustained the objection to appellant's question about "add[ing] more facts" to her story, appellant elicited testimony from T.G. that she was "caught in a lie" that day and that she knew she was going to be in trouble for lying to her parents. The only question not allowed on this topic was whether T.G. added facts to her story to make it more believable. But T.G. had testified twice already that she did not remember what she told her parents about the report card. Further, appellant presented testimony from his fiancé, Jillian Acevedo, that on one occasion before these offenses occurred, she had witnessed T.G.'s mother coach T.G. to make up an allegation of sexual assault against a boy to deflect blame for an incident in which T.G. was accused of fighting. Appellant also testified to his version of the events that night and specifically denied sexually assaulting T.G. in her bedroom and that he was ever alone with T.G. in the living room. Based on our review of the record, the trial court did not limit appellant's cross-examination of T.G. regarding fabrication of the events in the manner he contends. Rather, it is evident from the record that appellant was able to present his version of the events to the jury despite the trial court's ruling. We therefore conclude the trial court did not abuse its discretion when it sustained the State's objection. We overrule appellant's second point of error.
Jury Charge Errors
Appellant's third through sixth points of error involve errors in the court's charge. When reviewing claims of jury-charge error, we first determine whether an error actually exists in the charge. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003)). If error exists and appellant objected to the error at trial, reversal is required if the error "is calculated to injure the rights of [the] defendant," which means there must be "some harm" to appellant from the error. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984), superseded on other grounds by rule as stated in Rodriguez v. State, 758 S.W.2d 787 (Tex. Crim. App. 1988). In the absence of an objection, we will not reverse for jury-charge error unless the record shows "egregious harm." See Ngo, 175 S.W.3d at 743-44. Article 38.07 Instruction In points of error three and four, appellant contends the trial court erred in charging the jury on the corroboration language contained in article 38.07 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.07(a), (b) (West 2005) (providing conviction under Chapter 21, section 22.011 or section 22.021 of penal code supportable on uncorroborated testimony of victim of sexual offense). He claims the court's instruction amounted to the trial court making an improper comment on the weight of the evidence (Point of Error Three) and served to lessen the State's burden of proof (Point of Error Four). The State responds that we should reject appellant's points of error because the jury charge for the conviction that appellant appeals did not contain the complain-of language. We agree with the State. In this case, the jury was presented with two separate charges-one charge for each count alleged in the indictment. The charge related to aggravated sexual assault of a child included the article 38.07 language. But in the charge for the offense of indecency with a child by exposure, the trial court included no such instruction. The jury acquitted appellant of the aggravated sexual assault count but convicted him of indecency with a child by exposure. On appeal, we generally presume the jury followed the trial court's instructions in the manner presented. Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005) (citing Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998)); Williams v. State, 937 S.W.2d 479, 490 (Tex. Crim. App. 1996) (jury presumed to follow court's instructions as given). And we will not reverse in the absence of evidence that the jury was actually confused by the charge or failed to follow the trial court's instructions. See Williams, 937 S.W.2d at 490. Appellant has provided no such evidence or argument. The record is devoid of anything to suggest the jury erroneously applied the article 38.07 instruction in reaching its verdict on the indecency with a child by exposure count or that it did not otherwise do what it was instructed to do with respect to that count. Nothing exists in this record to rebut the presumption the jury followed the trial court's instructions. See Colburn, 966 S.W.2d at 520. Accordingly, we overrule points of error three and four. Instruction on "Reasonable Doubt" In his fifth point of error, appellant complains the trial court erred by instructing the jury that "[i]t is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution's proof exclude all 'reasonable doubt' concerning defendant's guilt." At trial, appellant objected to this instruction and argued, as he does on appeal, that the trial court's instruction was in essence, an impermissible attempt by the trial court to define "reasonable doubt" by instructing the jury on what reasonable doubt is not. This Court, however, has already concluded the objected-to language does not define reasonable doubt. See O'Canas v. State, 140 S.W.3d 695, 702 (Tex. App.-Dallas 2003, pet. ref'd). Specifically, in O'Canas, we concluded such language "simply states the legally correct proposition that the prosecution's burden is to establish proof beyond a reasonable doubt and not all possible doubt. It does not attempt to aid jurors in determining whether their doubts are reasonable." Id. And as the State notes in its brief, the court of criminal appeals has since held that a trial court does not abuse its discretion by including this same instruction in the jury charge. See Woods v. State, 152 S.W.3d 105, 115 (Tex. Crim. App. 2004). Following this precedent as we must, we conclude the trial court's instruction here does not attempt to define reasonable doubt and therefore, the trial court did not err by including such an instruction in the jury charge. See MobileVision Imaging Servs., L.L.C. v. LifeCare Hosps. of N. Tex., L.P., 260 S.W.3d 561, 566 (Tex. App.-Dallas 2008, not pet.) (we adhere to holdings from this Court); Patterson v. State, 654 S.W.2d 825, 827 (Tex. App.-Dallas 1983, pet. ref'd). We overrule appellant's fifth point of error. Instruction on "Intentionally or Knowingly" In his sixth point of error, appellant complains the trial court improperly charged the jury on the definitions of "intentionally" and "knowingly" because "[t]hese culpable mental states were not requirements of the offense" of which appellant was convicted. Appellant also takes issue with the use of the terms in the definition of the offense and application portions of the court's charge. In the application paragraphs, the trial court instructed the jury to find appellant guilty if it believed beyond a reasonable doubt that appellant "did then and there, with intent to arouse or gratify the sexual desire of the defendant, intentionally or knowingly expose the defendant's genitals knowing that [T.G.], a child younger than 17 years and not the defendant's spouse, was present." The trial court also instructed the jury on the lesser included offense of indecent exposure, charging the jury to find appellant guilty of the lesser offense if the jury determined appellant was reckless about whether T.G. was present. Just before the application paragraphs, the court provided the statutory definitions of "intentionally," "knowingly," and "recklessly" as those terms related to the nature of appellant's conduct. See Tex. Penal Code Ann. § 6.03(a)-(c) (West 2011). Appellant objected only to the inclusion of the definition for "knowingly," arguing "[t]he law for indecency with a child by exposure requires only that he could have acted intentionally. Knowing is not an included mensa [sic] rea so we would also . . . object to . . . the definition of knowingly as the jury would not need that definition." Assuming without deciding that it was error to include the definitions of "intentionally" and "knowingly" in the charge, we conclude appellant has not shown he was harmed. As an initial matter, we note that because penal code section 21.11(a)(2)(A) does not require the person "intentionally or knowingly expose the [person's] genitals" as stated in the court's charge, the inclusion of this language most likely implied that the State had to prove more than what was necessary for conviction. See Caballero v. State, 927 S.W.2d 128, 131 (Tex. App.-El Paso 1996, pet. ref'd); see also Tex. Penal Code Ann. § 21.11(a)(2)(A) (requiring person expose his genitals with "intent to arouse or gratify the sexual desire of any person" and knowing a child younger than 17 years is present). With respect to the definition of "intentionally," appellant did not object to the inclusion of this definition in the court's charge. Therefore, appellant must show "egregious harm" as a result of this jury-charge error. See Ngo, 175 S.W.3d at 743-44. Appellant asserts he was harmed by the court's error because the evidence at trial revealed a fact question "concerning [his] intent in his actions of masturbating." Yet appellant testified that he masturbated that night in the living room of T.G.'s home; Johns testified appellant admitted the same to him and confirmed the semen stain on the carpet was from appellant. T.G. also testified appellant masturbated in front of her and ejaculated on the carpet. This evidence is plainly sufficient to establish the requisite intent "in his actions of masturbating." Cf. McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. [Panel Op.] 1981) (requisite specific intent to arouse or gratify sexual desire of defendant can be inferred from defendant's conduct, his remarks, and all surrounding circumstances). Moreover, appellant admitted at the charge conference that the law for indecency with a child by exposure requires "that he could have acted intentionally." Appellant has not demonstrated that any error in the jury charge in defining "intentionally" caused him egregious harm. Appellant also urges he was harmed by the court's erroneous inclusion of the definition of "knowingly" because there was a question of fact concerning his "knowledge of the presence of the alleged complaining witness." Because appellant objected to this error at trial, we will reverse if there is "some harm" to appellant from this error. Almanza, 686 S.W.2d at 171. Resolution of this issue, however, became a credibility assessment by the jury. As previously noted, T.G. testified that while she was sitting on the floor in front of the television, appellant crawled over to her, kneeled down next to her, masturbated, and told her to watch. Yet, appellant testified he was alone in the living room and did not see T.G. at the time. The jury is the sole judge of the credibility of the witnesses and could choose to believe T.G.'s testimony that appellant knew she was present when he masturbated and disbelieve appellant's testimony that he was alone. Johns also testified appellant's semen was found on the carpet exactly where T.G. said it would be. Thus, considering the jury charge, the state of the evidence, including the contested issue and weight of the probative evidence, we conclude appellant has failed to show that including the definition of "knowingly" in the court's charge altered the jury's assessment of this issue. We overrule appellant's sixth point of error.Prosecutorial Comments During Closing
Appellant complains in his seventh point of error about five comments made by the prosecutor during closing argument. Applicable Law and Legal Standards The purpose of closing argument is to assimilate the evidence and assist the fact finder in drawing proper conclusions and inferences from the evidence. Gaddis v. State, 753 S.W.2d 396, 400 (Tex. Crim. App. 1988). Proper areas of jury argument are: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answers to opposing counsel's argument; and (4) plea for law enforcement. See Brown, 270 S.W.3d at 570. Error ordinarily occurs only when the trial court makes a mistake. Hawkins v. State, 135 S.W.3d 72, 76 (Tex. Crim. App. 2004). Even when jury argument falls outside the bounds of proper argument, we will not reverse unless the error is harmful. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). If the claimed error involves overruling an objection or denial of a request for mistrial at the guilt phase where constitutional rights are not implicated, we balance the three factors prescribed in Mosley: (1) the severity of the misconduct, (2) curative measures, and (3) the certainty of the conviction assessed absent the misconduct. Hawkins, 135 S.W.3d at 77. An instruction to disregard an improper statement generally will cure any error committed. See id. at 85; Shannon v. State, 942 S.W.2d 591, 597 (Tex. Crim. App. 1996). "Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required." Hawkins, 135 S.W.3d at 77 (citing Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003)). A mistrial is required only when the improper conduct is "so prejudicial that expenditure of further time and expense would be wasteful and futile." Id. (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). We review the denial of a motion for mistrial under an abuse of discretion standard. Id.; Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). We will find the trial court abused its discretion when its decision falls outside the zone of reasonable disagreement. Wead, 129 S.W.3d at 129. Analysis In reviewing appellant's complaints, we address each of the five areas of argument separately. 1. "This morning I went and dropped off my nine year old daughter at school." The first statement appellant challenges was the prosecutor's statement that "[t]his morning I went and dropped off my nine year old daughter at school. And last night-"; at that point counsel objected that the argument was outside the record. The trial court overruled the objection, and the prosecutor continued her argument on that point without objection. The complete statement by the prosecutor related to discussing algebra and history with her children and the "doubt" that any one of the jurors, when dropping off their kids "when they were 9, 10, 11, 12, 13 years old[,] were giving them any lessons on what to do when a man is on top of you and about to put his penis inside of you." On appeal, appellant claims the comment and following story were outside the record and the comment was made to rehabilitate the complaining witness. He argues that because credibility of the complaining witness was critical to the State's case, the third prong of Mosley-the certainty of the conviction assessed absent the misconduct-was violated. See Mosley, 983 S.W.2d at 259. Appellant implicitly assumes in his argument that the comment was misconduct and it was severe. See id. The State responds that the argument was in response to defense counsel's question of why the twelve-year-old complainant did not cry out for help when appellant attacked her while her parents were outside the house. Specifically, the prosecutor had just argued the evidence, stating: "I think the best answer probably came from [T.G.'s counselor] herself is that most parents don't train their children how to deal with rape." The State contends (1) the prosecutor's argument was a summation of the testimony and an attempt to draw reasonable inferences from it, (2) to the extent the prosecutor's statements were personalized, the fact the prosecutor's daughters studied math and history and she drove them to school should be considered common knowledge and permissible argument, and (3) such information was irrelevant to appellant's guilt and was illustrative that children are ill-prepared to deal with sexually assaultive behavior. The only objection lodged by appellant at trial was to the first statement that the prosecutor dropped off her daughter at school. The stated objection was that the comment was outside the record. Whether the prosecutor dropped off her daughter at school was irrelevant to appellant's guilt or to the complainant's credibility. The complete statement made without objection included the prosecutor's discussion of algebra and history with her children and the "doubt" that the jurors, when dropping off their kids at school at the same age, were giving them lessons on how to react to sexual assault. The argument was tied to the counselor's testimony that "most parents don't train their children how to deal with rape." On this record and without analyzing whether the statement was within the bounds of proper jury argument, we conclude the prosecutor's statement she dropped off her daughter at school was not "extreme or manifestly improper." See Brown, 270 S.W.3d at 570 (summarizing that error of injecting facts outside the record is not reversible unless the argument is extreme or manifestly improper in light of the record). 2. Objection to gender of defense counsel Appellant also complains that the prosecutor personally attacked opposing counsel in her closing arguments. Specifically, appellant asserts comments "directed to the gender of the defense counsel" constituted "striking at the defendant over the shoulders of counsel" in violation of Mosley. The State responds that appellant was mistaken that the State commented on defense counsel's gender; it claims the prosecutor was emphasizing the physical size of appellant, who was similar in size to his attorneys and an adult male, compared to the smaller stature of the complainant. The State argues the prosecutor's statements were a reasonable deduction from the evidence admitted at trial, including appellant's own testimony that a child in complainant's situation would feel vulnerable and that he was larger and stronger than complainant. Finally, the State argues the size and gender of the parties were obvious. The argument and exchange with the court were as follows:[PROSECUTOR]: And now [defense counsel] want to hold her for a standard for something that the law says she was not emotionally able to deal with. He wants to hold her to a higher standard as an adult for something that she was not physically able to deal with. And quite frankly, it's easy for them to make that argument. They're both men. When they were up here doing the analysis, you got to see [counsel] —
[DEFENSE COUNSEL]: Objection, your Honor.
[PROSECUTOR]: You got to see [appellant] —
[DEFENSE COUNSEL]: To comment on the gender of myself and [other defense counsel] is again improper. It's arguing that we have somehow been — that that somehow affects the guilt or innocence of [appellant].
THE COURT: Overruled.
[PROSECUTOR]: You got to see the stature of [counsel], and you got to see the stature of [appellant]. They're a little bit close to the same height. He's a bigger man. He's a bigger person.
When it comes to daylight savings times all of you had to walk out through this parking lot in a strange area where you've never been before. I'm sure as it's dark, and you're leaving the courthouse, you had some anxiety. Probably not as much as a small child who is alone in a room with a man of that stature. They can make that argument because they're not intimidated by his size. They're not intimidated by the fact that it's a man.
[DEFENSE COUNSEL]: Objection, your Honor, We're not making the argument on behalf of [complainant]. The fact of our size is irrelevant, so I ask for a running objection as to the improper argument. I ask for a running objection as to commenting on either myself or [counsel's] gender or size.
THE COURT: I believe that comment referred directly to the size of the defendant.
[PROSECUTOR]: The victim, to the victim — and I'm trying to do an analogy that the perspectives are different, and I think that's a proper argument.
THE COURT: The objection is overruled. . . .We note first that appellant complains on appeal only as to reference to gender, not size. Appellant also again appears to presume misconduct, stating only "that the comments violate the Mosley criterion, cite above." Yet, there is no proper cite and no reference to any Mosley criterion. Considering the discussion with the trial court that the reference to defense counsel being male was to compare the vulnerability of the complainant, the argument could constitute a summary of the evidence and reasonable inferences. Additionally, appellant has offered no analysis as to what violation allegedly occurred. Mosley involved the three-prong analysis, with the first prong being the severity of the misconduct and the last prong being the certainty of the conviction absent the "misconduct." Not only has appellant failed to provide sufficient argument for his contentions, see Tex. R. App. P. 38.1(i), but he has failed to show the statements were "extreme or manifestly improper." See Brown, 270 S.W.3d at 570. 3. "Every case is wrought with that [things that should have been done]." Appellant next complains that the prosecutor injected her personal beliefs into the case about "every case is wrought with that [things that should have been done]." Citing Garcia v. State, 246 S.W.3d 121 (Tex. App.-San Antonio 2007, pet. ref'd), appellant argues it was improper for the prosecutor to inject personal beliefs about the evidence. The State responds that the complaint is incorrect; the reference was to defense counsel's extensive cross-examination of police and DPS lab witnesses about delays in the investigation, failure to obtain a rape exam of the complainant, failure to obtain the complainant's DNA sample for testing of the carpet sample, and failure to test the mattress for DNA. The State argues the reference was to matters in the record as well as an invitation to the jury to apply common knowledge that any job could be done differently or better and was therefore not improper. The State also contends any error was harmless and could not have affected the conviction. The statement and objection were as follows:
[PROSECUTOR]: There's a lot of smoke and mirrors that have gone on through this trial, and a lot of things that have been said about what could have, should have, and every case is wrought with that. Maybe Terrell P.D. should have something more with this case.
[DEFENSE COUNSEL]: Objection, your Honor. The testimony every case is fraught with that is evidence outside of the record, and it would be testimony by the prosecutor.The trial court overruled the objection, and the prosecutor went on to argue, "But the important thing is is that they found the semen where [complainant] said they would find it, and that is absolutely uncontested." Without citing any specific criterion, appellant argues the "comments rise to the level of harm addressed in Mosely, cite above." Again, there is no cite. Appellant also references Garcia, without a specific citation or argument. The court in Garcia explained, in response to an objection that the prosecutor interjected her personal opinion, a prosecutor "may not convey to the jury during argument that she possesses specialized knowledge or expertise about a contested factual issue in the case." Garcia, 246 S.W.3d at 145 (citing Jackson v. State, 17 S.W.3d 664, 675 (Tex. Crim. App. 2000)). We conclude the comment did not convey to the jury that the prosecutor possessed specialized knowledge about a "contested factual issue in the case." Id. The statement was not of a fact, but rather opinion. Additionally, appellant has not suggested or shown that the statement was extreme and manifestly improper. See Brown, 270 S.W.3d at 570. 4. "Can the record reflect that we did not request that instruction." Appellant also argues the trial court erred in not granting a "motion for mistrial concerning statements made during the prosecutor's closing argument about the court's charge of including a lesser included offense." The exchange that occurred, was as follows:
[PROSECUTOR]: The Judge has also instructed you that if you don't believe that, that you are to consider the lesser included offense of indecent exposure; and that is the theory that defense could would like you to consider. Because if you believe beyond a reasonable doubt that on October 30th, 2005 —
[DEFENSE COUNSEL]: Objection your Honor. It's not defense counsel's charge. It's the court's charge.
THE COURT: Sustained.
[PROSECUTOR]: Can the record reflect that we did not request that instruction, your Honor.
[DEFENSE COUNSEL]: Objection, your Honor. It's the court's charge. It doesn't matter who requested it. It's the court's who charged the jury.
THE COURT: It is the court's charge. I'll sustain the objection.
[DEFENSE COUNSEL]: And we'd ask that the jury be instructed it is irrelevant who requested it, but that it is the court's charge is the only point in issue.
THE COURT: I will instruct the jury that this is the charge of the court, and you should be governed thereby.
[DEFENSE COUNSEL]: And at this time we move for a mistrial, your Honor.The trial court denied the motion for mistrial. Citing Archie v. State, 221 S.W.3d 695 (Tex. Crim. App. 2007), appellant states that "all three prongs mentioned in Archie were met." He offers no analysis of the factors he claims were met. In response, the State argues that the reference to letting "the record reflect that [the State] did not request the instruction" was brief, the Court's instruction was clear, and the effect was minimal since the jury would naturally infer that a charge that benefits appellant was probably popular with appellant and not the State; the State urged such inference was especially natural since the defense argued to the jury that if appellant was guilty, he was merely reckless and should be convicted of the lesser offense. We presume the jury followed the trial court's instruction, which was clear that the charge is the "court's charge." See Colburn, 966 S.W.2d at 520. In light of appellant's lack of analysis as to how the statement could have affected his conviction and, finding none, we conclude this is not one of those "extreme circumstances, where the prejudice is incurable," and a mistrial was required. Hawkins, 135 S.W.3d at 77. 5. Objection to reference to indecent exposure as misdemeanor offense In his final complaint under point of error seven, appellant argues the trial court erred when it allowed the State to advise the jury during final arguments that the lesser included offense of indecent exposure was a misdemeanor. He argues a similar situation occurred in McClure v. State, 544 S.W.2d 390 (Tex. Crim. App. 1976), and the court reversed the conviction. The statement in question and appellant's objection were as follows:
[PROSECUTOR]: He wants you to consider the lesser included misdemeanor offense of indecent exposure —
[DEFENSE COUNSEL]: Objection. Objection, your Honor.
[PROSECUTOR]: — And that is not appropriate.
[DEFENSE COUNSEL]: It would be naming the offense as a misdemeanor offense at the guilt/innocence phase is improper.The trial court overruled the objection, and the prosecutor continued by arguing that the appellant wanted the jury to consider "indecent exposure" because what he did was reckless. The State responds to appellant's point of error, claiming appellant's authorities do not support his claim that the argument was error or harmful. We agree. In McClure, the prosecutor continued to argue over repeated objections that the defense wanted a lesser included offense because of the punishment. Id. at 393. The court concluded "the harm was not in informing the jury of the range of punishment, but in arguing that appellant should not be convicted of manslaughter because it carried a lesser punishment, but should be convicted of murder because of the greater penalty." Id. Punishment was not mentioned in the present case. Rather, the reference was to "indecent exposure" being a misdemeanor offense. Appellant has not shown error and, even assuming error, he has not shown the statement was extreme and manifestly improper. See Brown, 270 S.W.3d at 570. Having resolved all of appellant's challenges as to jury argument against him, we overrule his seventh point of error.