John Steen v. The State of Texas

On February 12, 2013, Steen was charged by indictment with three offenses of

aggravated sexual assault of a child and one offense of indecency of a child. See id. §

22.021(a)(B) (West, Westlaw through 2015 R.S.); id. § 21.11.1 The State gave notice,

prior to trial, of its intent to use evidence of extraneous sexual assault offenses against

Steen.

Prior to a consolidated trial of the four cases, the trial court held a hearing on a

motion to suppress the evidence of extraneous offenses. During the hearing, the trial

court heard testimony from the State’s two witnesses, R.D. and R.M.,2 of prior instances

of sexual abuse by Steen. At the conclusion of the hearing, the trial court denied the

motion to suppress and found that the jury could make a finding Steen had committed the

extraneous offenses beyond a reasonable doubt.

During trial, the jury heard testimony from R.D. and R.M., as well as the

complaining witnesses in this case, H.H., M.D., and K.H. The jury found Steen not guilty

of the aggravated assault charge in which H.H. was the complaining witness, guilty of a

1 Steen’s four initial charges were indicted separately, but tried together during a consolidated trial. See TEX. PENAL CODE ANN. § 3.02 (West, Westlaw through 2015 R.S.). At the conclusion of the trial, the jury found Steen not guilty of one of the offenses of aggravated sexual assault of a child. See id. § 21.11 (West, Westlaw through 2015 R.S.). 2 Although the complaining witnesses’ identities were not concealed at trial, given the nature of the case, we will use only their initials.



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lesser included offense of indecency with a child in the aggravated sexual assault charges

in which M.D. and K.H. were the complaining witnesses, and guilty of indecency with a

child in which K.H. was the complaining witness.3 Steen was sentenced to twelve years

imprisonment in the Texas Department of Criminal Justice–Institutional Division on each

case. The trial court granted the State’s request for the cumulation of the sentences,

and ordered that each term run consecutive to the other. See TEX. CODE CRIM. PROC.

ANN. art. 42.08 (West, Westlaw through 2015 R.S.). This appeal followed.

II. NO EX POST FACTO VIOLATION TO ADMIT EXTRANEOUS OFFENSES UNDER ART. 38.37

By his first two issues, which we will address as one, Steen argues that the trial

court committed error by allowing the admission of extraneous offenses under Texas

Code of Criminal Procedure article 38.37, and that the admission of those offenses

constituted an ex post facto violation. See id. art. 38.37 (West, Westlaw through 2015

R.S.).

A. Standard of Review

We review a trial court’s ruling on the admissibility of evidence under an abuse of

discretion standard. Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011); Prible

v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). As long as the trial court’s ruling

is within the “zone of reasonable disagreement,” there is no abuse of discretion, and the

trial court’s ruling will be upheld.” Prible, 175 S.W.3d at 731.

3 M.D. was the complaining witness in appellate cause number 13-14-00547-CR (aggravated sexual assault). K.H. was the complaining witnesses in both 13-14-00548-CR (aggravated sexual assault) and 13-14-00549-CR (indecency with a child).



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In applying an abuse of discretion standard, we will not disturb the trial court’s

evidentiary ruling if it is correct under any applicable theory of law. De la Paz v. State,

279 S.W.3d 336, 344 (Tex. Crim. App. 2009). Error in the admission of evidence is a

non-constitutional error and subject to a harm analysis under Rule 44.2(b) of the Texas

Rules of Appellate Procedure. See TEX. R. APP. P. 44.2(b); Taylor v. State, 268 S.W.3d

571, 578–79 (Tex. Crim. App. 2008). Under that rule, we must disregard any error that

does not “affect substantial rights.” See TEX. R. APP. P. 44.2(b). “We have construed

this to mean that an error is only reversible when it has a substantial and injurious effect

or influence in determining the jury’s verdict.” Taylor, 268 S.W.3d at 592. “We should

not overturn the conviction if we have fair assurance from an examination of the record

as a whole that the error did not influence the jury, or had but a slight effect.” Id.

B. Applicable Law

Texas Code of Criminal Procedure article 38.37 was initially enacted in 1995 and

amended in 2013 to include section 2(b), which provides that,

notwithstanding Rules 404 and 405, Texas Rules of Evidence, and subject to Section 2-a, evidence that the defendant has committed a separate offense described by Subsection (a)(1) or (2) [sexual based offenses] may be admitted in the trial of an alleged offense described by Subsection (a)(1) or (2) for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant.4

TEX. CODE. CRIM. PROC. ANN. art. 38.37, § 2(b); see Act of May 17, 2013, 83d Leg., R.S.,

4 As noted in Belcher v. State, the 2013 amendment to section 2(b) of article 38.37 has brought the rule in line with Federal Rule of Evidence 414, which allows evidence of a defendant’s other sex crimes against children to be admissible in order to show a propensity to commit the act of child sexual abuse alleged. 474 S.W.3d 840, 846–47 (Tex. App.—Tyler 2015, no pet. h.); see also Robisheaux v. State, No. 03-13-00329-CR, ___S.W.3d ___, 2016 WL 105886, at *3 (Tex. App.—Austin Jan. 7, 2016, no pet h.).



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ch. 387, § 2, 2013 Tex. Gen. Laws 1167, 1168. This particular amendment to article

38.37 became effective on September 1, 2013. See TEX. CODE. CRIM. PROC. ANN. art.

38.37, § 2(b). The enactment paragraph of article 38.37 states:

The change in law made by this Act applies to the admissibility of evidence in a criminal proceeding that commences on or after the effective date of this Act. The admissibility of evidence in a criminal proceeding that commences before the effective date of this Act is covered by the law in effect when the proceeding commenced, and the former law is continued in effect for that purpose.

Dominguez v. State, 467 S.W.3d 521, 525 (Tex. App.—San Antonio 2015, pet. ref’d)

(quoting Act of May 17, 2013, 83d Leg., R.S., ch. 387, § 2, 2013 Tex. Gen. Laws 1167,

1168).

C. Discussion

1. Trial Proceeding was not an Ex Post Facto violation

By his first issue, Steen argues allowing extraneous offenses to be admitted at trial

under article 38.37 in its current state constitutes a violation of ex post facto laws. See

TEX. CODE CRIM. PROC. ANN. art. 38.37, U.S. CONST. art. 1, § 10. To constitute an ex

post facto law:

a statute must (1) punish as a crime any act previously committed that was innocent when done; (2) aggravate a crime and make it greater than it was when committed; (3) inflict a greater punishment than the law annexed to the crime when committed; or (4) alter the legal rules of evidence such that less or different evidence is needed in order to convict the offender.

McCulloch v. State, 39 S.W.3d 678, 682–83 (Tex. App.—Beaumont 2001, pet. ref’d)

(emphasis added).

Steen was indicted in his four cases for sexual acts against children on February

13, 2013. Steen’s jury trial was held on August 27, 2014. Steen argues that the



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indictment is what constitutes the initiation of the criminal proceeding and that any

proceedings following the date of indictment should be determined to be all part of the

same proceeding. Thus, article 38.37 in its current state would not be applicable to his

case and the extraneous offenses introduced against him would not have been proper.

See TEX. CODE CRIM. PROC. ANN. art. 38.37. The State argues that each individual

hearing in a criminal matter constitutes a proceeding, and any proceedings that occurred

after September 1, 2013, can have article 38.37 evidence introduced in the proceeding

with proper notice. See id.

Texas case law is very clear on this issue. The Texas Court of Criminal Appeals

previously decided almost this exact scenario regarding the enactment of article 38.37 in

Howland v. State, 990 S.W.3d 274 (Tex. Crim. App. 1999). In Howland, the court

analyzed article 38.37’s language and reasoned that “the enactment paragraph’s

reference to ‘any criminal proceeding’ logically refers to ‘any’ of the many steps that might

occur within the process of a prosecution.”5 Id. at 277. The holding that “article 38.37

is applicable to any one of many isolated proceedings within a prosecution, so long as

the proceeding at issue occurred after September 1, 1995 [the enactment date at issue

in Howland]” is still good law. Although the two enactment paragraphs differ slightly in

their wording, we find the intention of the paragraphs to be the same and that the Howland

5 Article 38.37’s 1995 enactment paragraph stated:

Article 38.37, Code of Criminal Procedure, as added by this section, applies to any criminal proceeding that commences on or after the effective date of this Act, regardless of whether the offense that is the subject of the proceeding was committed before, on, or after the effective date of this Act.

Acts of June 5, 1995, 74th Leg., ch. 318 § 48(b).



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precedent controls the issue regarding the 2013 amendment, just as it did for the 1995

enactment paragraph. See id.

Our sister courts have adopted similar positions in regard to the 2013 amendment

to article 38.37. See Bezerra v. State, No. 07-15-00018-CR, ___ S.W.3d ___, 2016 WL

192747, at *2 (Tex. App.—Amarillo Jan. 14, 2016, no pet. h.) (holding “a trial is a

‘proceeding’ for purposes of applying a statute that applied to any proceeding

commencing on or after the effective date of a statute.”); Belcher v. State, 474 S.W.3d

840, 849 (Tex. App.—Tyler Sept. 2, 2015, no pet.) (“Based on the definition of ‘criminal

proceeding’ adopted by the court of criminal appeals in Howland, the trial court did not err

in admitting evidence made admissible by Article 38.37 during Appellant’s trial in 2014”).

The trial on the merits in Steen’s case commenced almost a year after the

amendments to article 38.37 went into effect. See TEX. CODE CRIM. PROC. ANN. art.

38.37. Therefore, the trial proceeding occurred after the 2013 amendments, the

admission of extraneous offense evidence under article 38.37 was not error, and no ex

post facto violation occurred. See id. We overrule Steen’s first issue.

2. No Abuse of Discretion to Allow Introduction of Extraneous Offenses By his second issue, Steen argues the trial court abused its discretion by admitting

evidence of extraneous offenses that constituted an ex post facto violation.

Article 38.37, section 2-a states:

Before evidence described by Section 2 may be introduced, the trial judge must:

(1) determine that the evidence likely to be admitted at trial will be adequate to support a finding by the jury that the defendant committed the separate offense beyond a reasonable doubt; and



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(2) conduct a hearing outside of the presence of the jury for that purpose.

See id. art. 38.37, § 2-a (West, Westlaw through 2015 R.S.).

Steen argues the trial court abused its discretion because it allowed the testimony

regarding extraneous offenses into evidence under article 38.37. Prior to the start of the

trial on the merits, the trial court conducted a hearing, outside the presence of the jury, to

determine if the testimony of R.D. and R.M. would support a finding that Steen committed

those two offenses beyond a reasonable doubt. See id. At the close of that hearing,

the trial court stated:

As to the testimony of the two witnesses we’ve had this morning, the Court has determined that the evidence is likely to—the evidence admitted—likely to be admitted at the trial is adequate to support a finding by the jury that the defendant committed the separate offense beyond a reasonable doubt. The actual determination on that matter is left to the jury’s consideration.

The trial court followed the proper procedure as laid out in article 38.37. See id.

art. 38.37. Once the trial court made its determination outside the presence of the jury

as to the admission of evidence, article 38.37 still requires the State to “satisfy its burden

of proof as to each element of the offense.” See Baez v. State, No. 04-14-00374-CR,

___S.W.3d___, 2015 WL 5964915, at *7 (Tex. App.—San Antonio Oct. 14, 2015, no pet.

h.). “Indeed the quantum of evidence remains the same both before and after the

enactment of article 38.37. No element is eliminated from the offense to be proved;

neither is the amount or measure of proof necessary for conviction reduced, altered, or

lessened.” Id. (quoting McCulloch, 39 S.W.3d at 684).

Other courts of appeal have handled this issue regarding extraneous offenses

admitted under the 2013 amendment to article 38.37. They have found the admission



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of extraneous offenses not to be an ex post facto violation because the State’s burden of

proof is not lessened or different evidence is not required to convict the defendant. See

Robisheaux v. State, No. 03-13-00329-CR, ___S.W.3d___, 2016 WL 105886, at *5 (Tex.

App.—Austin Jan. 7, 2016, no pet. h.) (determining that article 38.37 is not an ex post

facto law because extraneous offenses are not offered as substantive evidence of guilt

and the State is still required to fulfill the same burden of proof as to every element); Baez,

2015 WL 5964915, at *7 (“The State must still satisfy its burden of proof as to each

element of the offense. We do not agree that Section 2(b) alters the legal rules of

evidence to allow less or different testimony than the law required at the time of the

commission of the offence in order to convict the defendant.”).

During trial, the State put on its two witnesses as to the extraneous offenses

alleged against Steen. The jury was instructed by the trial court in the jury charge that

in order to consider the extraneous offense testimony against Steen, they must find he

committed the two offenses alleged by R.D. and R.M. beyond a reasonable doubt. The

State was not held to a lesser burden of proof for the extraneous offenses than it was with

the offenses on trial. See Baez, 2015 WL 5964915, at *7. There was no violation of ex

post facto laws by the trial court in holding a proper hearing and admitting the evidence

of extraneous offenses. We overrule Steen’s second issue.

III. NO JURY INSTRUCTION ERROR

By his third issue, Steen alleges the trial court committed error by denying his

requested jury charge instruction.



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A. Standard of Review

In reviewing a challenge to a jury charge, we first must determine if the jury charge

contained error. Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015). The

failure to preserve jury-charge error is not a bar to appellate review, but rather it

establishes the degree of harm necessary for reversal. Warner v. State, 245 S.W.3d

458, 461 (Tex. Crim. App. 2008). If error is found, we then analyze the harm resulting

from the error. Id. If “an error is preserved with a timely objection. . .then the jury

charge error requires reversal if the appellant suffered some harm as a result of the error.”

Sanchez v. State, 376 S.W.3d 767, 774 (Tex. Crim. App. 2012) (citing Almanza v. State,

686 S.W.2d 157, 171 (Tex. Crim. App. 1985)). But if the “defendant never presents a

proposed jury instruction (or fails to object to the lack of one), any potential error in the

charge is reviewed only for ‘egregious harm’ under Almanza.” Oursbourn v. State, 259

S.W.3d 159, 174 (Tex. Crim. App. 2008).

B. Applicable Law

Article 38.08 of the Texas Code of Criminal Procedure states that: “Any

defendant in a criminal action shall be permitted to testify in his own behalf therein, but

the failure of any defendant to so testify shall not be taken as a circumstance against him,

nor shall the same be alluded to or commented on by counsel in the cause.” TEX. CODE

CRIM. PROC. ANN. art. 38.08 (West, Westlaw through 2015 R.S.).

“A trial court’s comment on a defendant’s failure to testify violates his constitutional

and statutory privileges against self-incrimination.” Burgess v. State, 448 S.W.3d 589,

597 (Tex. App.—Houston [14th Dist.] 2014, no pet.). The “allegedly offending language

must be viewed from the jury’s standpoint, and the implication that the comment referred



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to the defendant’s failure to testify must be clear.” Id. “It is insufficient that the language

might be construed as an implied or indirect allusion.” Id. “‘The test is whether the

language used was manifestly intended or was of such a character that the jury would

necessarily and naturally take it as a comment on the defendant’s failure to testify.’” Id.

(quoting Bustamante v. State, 48 S.W.3d 761, 764 (Tex. Crim. App. 2001)).

B. Discussion

During the jury charge conference, the following was stated:

Defense Counsel: On Page 4 of the charges in Cause No. 13-111, 13112, 13-113, on Page 3 in Cause No. 13-114, under Paragraph 8, the defense would request that the third sentence which reads: You will not consider the failure of the defendant to testify as a circumstance against him. We would request that that read instead you will not consider the fact that the defendant has not testified as a circumstance against him.

Trial Court: Is that an offer?

Defense Counsel: That’s an offer, your Honor.

Trial Court: It’s refused. Anything more.

Defense Counsel: No, your Honor.

The charge that was submitted to the jury stated the following:

8. In a criminal case, the law permits the defendant to testify on his own behalf. However, the same law provides that the defendant’s failure to testify may not be considered as a circumstance against him. You will not consider the failure of the defendant to testify as a circumstance against him. You will not, in your retirement to consider your verdict, allude to, comment on, or in any manner refer to the fact that the defendant has not testified.

Steen submitted alternate language for the trial court to consider, but the trial

court’s instructions to the jury were not erroneous. The wording used by the trial court



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tracks the language from article 38.08. See TEX. CODE CRIM. PROC. ANN. art. 38.08. As

a result, we do not find the language used by the trial court was “manifestly intended or

was of such a character that the jury would necessarily and naturally take it as a comment

on the defendant’s failure to testify.” See Burgess, 448 S.W.3d at 597. We do not find

error in the trial court’s ruling. It is clear from the entire paragraph regarding Steen’s

right to testify that the trial court wanted to ensure the jury was aware they could not hold

Steen’s decision not to testify against him. We overrule Steen’s third issue.

IV. NO IMPROPER JURY ARGUMENT

By his fourth issue, Steen alleges the State improperly struck at him over his

counsel’s shoulders during closing argument.

A. Standard of Review

We review a trial court’s ruling on an objection to improper jury argument for an

abuse of discretion. Rodriguez v. State, 446 S.W.3d 520, 536 (Tex. App.—San Antonio

2014, no pet.). “Such argument does not result in reversal ‘unless, in light of the record

as a whole, the argument is extreme or manifestly improper, violative of a mandatory

statute, or injects new facts harmful to the accused into the trial proceeding.” Id. (citing

Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000)). “The remarks must

have been a willful and calculated effort on the part of the State to deprive appellant of a

fair and impartial trial.” Id.

B. Applicable Law

The “purpose of closing argument is to facilitate the jury’s proper analysis of the

evidence presented at trial so that it may arrive at a just and reasonable conclusion based

on the admitted evidence alone.” Fant-Caughman v. State, 61 S.W.3d 25, 28 (Tex.



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App—Amarillo 2001, pet. ref’d). Jury argument must fall within one of four general

areas: “(1) summation of the evidence; (2) reasonable deduction from the evidence; (3)

answer to opposing counsel’s argument; or (4) plea for law enforcement.” Id. (citing

Cantu v. State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997)). In order to determine if

the State’s argument falls into one of the four permissible areas, we must consider the

argument in the context where it appears and in light of the entire record. See Gaddis

v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988).

“If any argument does not fall into one of the four categories of proper argument,

it is rather a plea for abandonment of objectivity.” Brandley v. State, 691 S.W.2d 699,

712 (Tex. Crim. App. 1985) (en banc). In evaluating the argument, we look to the factors

established by the court of criminal appeals in Mosley v. State, which are: “(1) severity

of the misconduct (the magnitude of the prejudicial effect of the prosecutor’s remarks);

(2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction

by the judge); and (3) the certainty of conviction absent the misconduct (the strength of

the evidence supporting the conviction).” Franklin v. State, 459 S.W.3d 670, 682 (Tex.

App.—Texarkana 2015, pet. ref’d) (citing Mosley v. State, 983 S.W.2d 249, 259 (Tex.

Crim. App. 1998)).

C. Discussion

The statements made by the prosecutor were in response to Steen’s closing

argument. Previously Steen’s counsel had argued:

But I want to start off with something that I think is most important, is the truest thing that we have had here. Actually, we have this everyday in our lives. I believe that as we go through life, everyday of our lives we go through truth, lies, and damn lies.



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A lie is did you, Johnny, take the cookie from the jar? No, Mama. No harm. Did you touch that girl? No, sir, I did not. Well, I don’t believe you. That kind of lie in my mind and I guess in everyone’s mind is a damn lie because it causes great harm to an individual.

Steen’s counsel continued throughout his closing to go over the details given by the

complaining witnesses and extraneous offense witnesses. “Defense counsel is allowed

wide latitude in drawing inferences from the evidence, but such inferences must be

‘reasonable, fair, legitimate, and offered in good faith.’” Brown v. State, 270 S.W.3d 564,

572 (Tex. Crim. App. 2008) (quoting Gaddis, 753 S.W.2d at 398). The argument made

by Steen’s counsel was permissible because he was drawing inferences from the

evidence presented.

The State is also permitted to respond to the arguments of defense counsel, but

“it is fair to say that a prosecutor runs a risk of improperly striking at a defendant over the

shoulder of counsel when the argument is made in terms of defense counsel personally

and when the argument explicitly impugns defense counsel’s character.” Id. In the

rebuttal of closing arguments, the prosecutor responded to defense counsel’s closing

argument with: “What is all this stuff? Truth, lies, damn lies. This defendant—this

attorney is saying people are damn liars.” Steen’s counsel objected and the trial court

overruled the objection. The State continued with its argument and did not repeatedly

mention Steen’s counsel’s remarks.

Here, we find the State was responding to opposing counsel’s argument, which is

a permissible area of closing argument. See Fant-Caughman, 61 S.W.3d at 28.

Although the prosecutor did reference Steen’s counsel, he was referring to the comments

made by counsel, not at counsel directly, which is a proper area of argument. See id.

In looking at the State’s comments in light of the entire closing argument, as well as the

record as a whole, we do not find them to be improper.

The State is allowed to make proper deductions and to respond to arguments made by defense counsel as in this case. We overrule Steen’s fourth issue.



We affirm the trial court’s judgments.