Gareth Reece Goode v. the State of Texas

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana

No. 06-24-00172-CR

GARETH REECE GOODE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 198th Judicial District Court
Bandera County, Texas
Trial Court No. CR-XX-XXXXXXX

Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Chief Justice Stevens
MEMORANDUM OPINION

A Bandera County jury convicted Gareth Reece Goode of two counts of indecency with a

child by contact and assessed a sentence of twenty years’ imprisonment for each count. See TEX.

PENAL CODE ANN. § 21.11. On appeal,1 Goode argues (1) that the trial court violated his due

process rights by denying his motion for continuance, (2) that the trial court erred by admitting

an audio recording between Goode and his ex-wife, (3) that his due process rights were violated

when the State misstated the charge as aggravated sexual assault during voir dire, (4) that the

trial court erred by instructing the jury that the State was not required to prove the exact date the

offenses occurred, (5) that his due process rights were violated when the State used an

incomplete picture of a gun to explain the burden of proof, and (6) that the trial court erred by

overruling objections to the State’s closing argument.2

We find that that trial court did not abuse its discretion either by denying Goode’s motion

for a continuance or by admitting the audio recording. We conclude that the State’s reference to

aggravated sexual assault in this consolidated trial was proper since Goode was also charged

with that offense. We also find that there was no jury-charge error, the trial court properly

overruled Goode’s objections to the State’s illustrations used to explain the burden of proof, and

Goode was unharmed by any alleged error preserved during jury argument. As a result, we

affirm the trial court’s judgment.

1
Originally appealed to the Fourth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (Supp.). We follow the
precedent of the Fourth Court of Appeals in deciding the issues presented. See TEX. R. APP. P. 41.3.
2
In his companion cause number 06-24-00173-CR, Goode appeals another conviction for sexual assault of a child.
2
I. The Trial Court Did Not Abuse Its Discretion by Overruling Goode’s Motion for
Continuance

In his first point of error on appeal, Goode argues that the trial court erred by denying his

motion to continue the case. Because Goode was required to file a sworn motion for

continuance, but failed to do so, we find no abuse of discretion in the trial court’s ruling.

A. Factual and Procedural Background

This case was originally set for trial on March 20, 2024. Two days before trial, Goode

filed a written motion for continuance to obtain court records relating to a juvenile that was

living in the victim’s house. According to Goode, the juvenile was adjudicated of delinquent

conduct for a sexual offense committed against a different young child. Goode explained that

the records might assist his defense. As a result, the trial court granted the motion for

continuance and pushed back the trial date.

At a July 17, 2024, hearing, Goode made an oral motion for continuance because the

juvenile’s records were sealed. To unseal them, Goode sought an order from the trial court so

the juvenile records could be submitted for in camera review and possible inspection from

counsel. After Goode explained that the records were necessary to the discovery of a defensive

theory that the juvenile could be an alternate perpetrator, the trial court granted the oral motion

for continuance, entered an order for discovery subpoenaing the juvenile’s records for in-camera

review, set a pretrial hearing date of September 18, 2024, and set the trial date for September 24.

At the September 18 hearing, the trial court did not rule on the oral motion for

continuance. Instead, it stated to counsel, “[I]f, on behalf of Mr. Goode, . . . you think you need

3
to file a verified motion for continuance, I will certainly take that up and consider that.” The trial

court noted that the trial was still set for September 24.

On September 20, Goode filed his written motion for continuance. The motion simply

stated that the discovery issues were not resolved until September 17 and that counsel had not

been able to obtain the juvenile’s records. Even so, the written motion was not sworn. At a

pretrial hearing, the trial court denied the motion for continuance. Goode argues that the trial

court erred by doing so because the ruling resulted in a violation of due process and prevented

his counsel from rendering effective assistance.

B. Standard of Review

“We review a trial court’s decision to deny a motion for continuance under an abuse of

discretion standard.” Hernandez v. State, 585 S.W.3d 537, 560 (Tex. App.—San Antonio 2019,

pet. ref’d) (citing Renteria v. State, 206 S.W.3d 689, 699 (Tex. Crim. App. 2006)). “To establish

an abuse of discretion, the appellant must show that the trial court erred in denying the motion

for continuance and that the denial actually and specifically prejudiced appellant’s defense.”

Rivera v. State, 708 S.W.3d 732, 737 (Tex. App.—San Antonio 2024, pet. ref’d) (quoting

Kinnett v. State, 623 S.W.3d 876, 906 (Tex. App.—Houston [1st Dist.] 2020, pet. ref’d) (internal

quotation marks omitted)).

C. Analysis

“A criminal action may be continued on the written motion of the State or of the

defendant, upon sufficient cause shown; which cause shall be fully set forth in the motion.” Cruz

v. State, 565 S.W.3d 379, 381 (Tex. App.—San Antonio 2018, no pet.) (quoting TEX. CODE

4
CRIM. PROC. ANN. art. 29.03) (citing Anderson v. State, 301 S.W.3d 276, 278–79 (Tex. Crim.

App. 2009), declined to follow on other grounds, Grado v. State, 445 S.W.3d 736, 741 (Tex.

Crim. App. 2014)). “[A]rticle 29.08 of the Code further provides that ‘[a]ll motions for

continuance must be sworn to by a person having personal knowledge of the facts relied on for

the continuance.’” Id. (second alteration in original) (quoting TEX. CODE CRIM. PROC. ANN. art.

29.08) (citing Anderson, 301 S.W.3d at 279).

Goode’s written September 20 motion for continuance was accompanied by a purported

unsworn declaration. “[A]n unsworn declaration may be used in lieu of a written sworn

declaration, verification, certification, oath, or affidavit required by statute or required by a rule,

order, or requirement adopted as provided by law.” TEX. CIV. PRAC. & REM. CODE ANN.

§ 132.001(a). However, the unsworn declaration must be “subscribed by the person making the

declaration as true under penalty of perjury.” TEX. CIV. PRAC. & REM. CODE ANN.

§ 132.001(c)(2). The purported unsworn declaration attached to Goode’s motion for continuance

was not subscribed as true under the penalty of perjury. See Bahm v. State, 219 S.W.3d 391,

394–95 (Tex. Crim. App. 2007).

Because a trial court does not abuse its discretion by denying an unsworn motion for

continuance, we overrule Goode’s first point of error. See Loftis v. State, 433 S.W.2d 704, 706

(Tex. Crim. App. 1968); Peacock v. State, 690 S.W.2d 613, 617 (Tex. App.—Tyler 1985, no

pet.); Cruz, 565 S.W.3d at 381.

5
II. The Trial Court Did Not Abuse Its Discretion by Admitting the Audio Recording

In his second point of error, Goode argues that the trial court erred by admitting an audio

recording of an argument between Goode and his ex-wife, which contained statements by Goode

“speaking in a crude way about a 12-year-old’s anatomy,” including that the victim had “big

boobs” and was a “porn star.” At trial, Goode objected to the recording on the grounds that it

was irrelevant and contained an extraneous offense. The trial court overruled the relevance

objection after finding that the recording was relevant to show Goode’s relationship with the

victim.

On appeal, Goode argues that the recording was irrelevant. He also argues that the

recording should have been excluded under Rule 403 of the Texas Rules of Evidence because its

probative value was substantially outweighed by the danger of unfair prejudice and because its

admission, which allegedly violated due process, required him to waive his right to remain silent

to rebut the evidence. See TEX. R. EVID. 403.

We first note that Goode’s arguments on appeal related to Rule 403, due process, and his

right to remain silent were never presented to the trial court. The State argues that these

complaints were not preserved for our review, and we agree.

“Preservation of error is a systemic requirement on appeal.” Moreno v. State, 619

S.W.3d 754, 757 (Tex. App.—San Antonio 2020, no pet.) (quoting Wilson v. State, 311 S.W.3d

452, 473 (Tex. Crim. App. 2010) (per curiam) (op. on reh’g)). “To preserve a claim of error, a

party must make a timely request, objection, or motion in the trial court, followed by either a

ruling or a refusal to rule by the trial court.” Id. (citing TEX. R. APP. P. 33.1(a); Landry v. State,

6
706 S.W.2d 105, 109 (Tex. Crim. App. 1985)).3 For this reason, “the point of error on appeal

must comport with the objection made at trial.” Navarro-DePaz v. State, 689 S.W.3d 19, 24

(Tex. App.—San Antonio 2024, pet. ref’d) (quoting Wilson v. State, 71 S.W.3d 346, 349 (Tex.

Crim. App. 2002)). Because Goode failed to preserve any point of error relating to Rule 403,

due process, or his right to remain silent, “this court will not address [the] merits” of these

unpreserved claims. Moreno, 619 S.W.3d at 757 (citing Wilson, 311 S.W.3d at 473).

Accordingly, the only issue preserved for our review under this point of error is whether

the trial court properly concluded that the audio recording was relevant. “[W]e review a trial

court’s decision to admit or exclude evidence for an abuse of discretion.” Dorch v. State, 596

S.W.3d 871, 892 (Tex. App.—San Antonio 2019, pet. ref’d) (citing Tillman v. State, 354 S.W.3d

425, 435 (Tex. Crim. App. 2011)).

“Relevant evidence is evidence having any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less probable than it

would be without the evidence.” Proo v. State, 587 S.W.3d 789, 814 (Tex. App.—San Antonio

2019, pet. ref’d) (quoting Henley v. State, 493 S.W.3d 77, 83 (Tex. Crim. App. 2016) (citing

TEX. R. EVID. 401, 402)). “To be ‘material,’ the evidence must relate to a fact of consequence,

which includes both an elemental fact or an evidentiary fact from which an elemental fact can be

inferred.” Id. (quoting Henley, 493 S.W.3d at 84). “To be ‘probative,’ the evidence must tend to

make the existence of the fact of consequence more or less probable than it would be absent the

3
The trial court did not rule on any extraneous-offense objection, and Goode does not argue on appeal that the
recording contained any extraneous-offense evidence. “When a trial court refuses (or omits) to rule on an objection,
to preserve a claim of error, a party must object to the trial court’s refusal to rule.” Moreno, 619 S.W.3d at 757–58
(citing TEX. R. APP. P. 33.1(a)).
7
evidence.” Id. (quoting Henley, 493 S.W.3d at 83–84). The threshold for relevance under Rule

401 is low. Wells v. State, 611 S.W.3d 396, 409 (Tex. Crim. App. 2020) (citing Ex parte Smith,

309 S.W.3d 53, 56 (Tex. Crim. App. 2010)).

The recording shows that Goode viewed a twelve-year-old, young child as having “big

boobs” and referred to her as a “porn star.” Because that evidence related to the issue of mens

rea, we cannot say that the trial court abused its discretion by finding that the recording (1) made

it more probable that Goode viewed children in a sexual manner or that it (2) was probative for

the purpose of showing that he touched the child victim in this case with intent to gratify his

sexual desire. Accordingly, we find no abuse of discretion in the trial court’s evidentiary ruling,

and we overrule Goode’s second point of error.

III. The State’s Reference to Aggravated Sexual Assault Was Proper

In his companion case, which was consolidated for trial with this case, the State’s

indictment charged Goode with aggravated sexual assault of a child by causing his tongue to

penetrate the child’s victim’s vagina. See TEX. PENAL CODE ANN. § 22.021. Although the

indictment referenced “AGGRAVATED SEXUAL ASSAULT OF A CHILD” and listed Section

22.021(a)(2)(B) as the statute of offense, it stated that the child was younger than seventeen,

instead of fourteen. Compare TEX. PENAL CODE ANN. § 22.011 (Supp.), with § 22.021. Goode

did not file any motion asking for a correction of defect in form or substance to the indictment.

See TEX. CODE CRIM. PROC. ANN. art. 1.14(b). Even so, he noted before trial that “one of the

cases is an aggravated case,” but “the indictment . . . says for a child under 17. Aggravated is

under 14.” The trial court noted, “[A]s it stands now, the charge in the indictment alleges and

8
the title is aggravated sexual assault of a child, so if the State proves up those elements, then I

presume we will let the jury charge speak for itself.” Goode informed the trial court that he was

raising the issue but did not ask that the State’s voir dire be limited in any way.

Accordingly, the State informed the jury during voir dire that “[t]he cases that you have

been summoned on to hear today are criminal in nature. These cases involve the charges of

indecency with a child and aggravated sexual assault of a child.” There was no objection to that

statement. However, when the State introduced a slide showing the elements of aggravated

sexual assault of a child, including that the “victim is younger than 14 years of age at the time of

the offense,” Goode objected to the slide because the State’s indictment had alleged that the child

was younger than seventeen. The State clarified that it would prove that the child victim was

younger than fourteen and, as a result, the trial court overruled the objection to the slide.

In his third point of error on appeal, Goode makes no argument related to the State’s use

of the slide or his overruled objection to the slide. Instead, he merely argues that “[t]he State

misstated the law and indicted charges to the jury as higher and more serious charge than that

which was actually indicted in voir dire and thereby inflamed the hearts and minds of the jury.”

We find this point meritless since there was no misstatement of law. The record shows that,

despite the defect in the indictment, the State indicted Goode with one count of aggravated

sexual assault of a child. Moreover, the State informed the veniremembers of the aggravated

charge without objection. As a result, we overrule Goode’s third point of error.4

4
Goode also argues that the “misstatement distorted the . . . voir dire so much that Appellant was denied due course
of law and effective representation of counsel as guaranteed by Article I, §§ 19 and 10 of the Texas Constitution and
the Fourteenth Amendment of the United States Constitution.” Those issues were not raised below and are
unpreserved. See TEX. R. APP. P. 33.1.
9
IV. There Was No Jury-Charge Error

In his fourth point of error, Goode argues there was error in the trial court’s charge,

which contained an instruction “that the State [wa]s not required to prove the exact dates that the

alleged offenses allegedly occurred.” The charge informed the jury, “It is sufficient if the State

proves that each offense was committed before January 10, 2023, the date the indictments were

filed.” Goode argues that the trial court commented on the weight of the evidence by including

those instructions. We disagree.

“‘We review claims of jury charge error under the two-pronged test set out in Almanza v.

State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g),’ superseded on other grounds

as stated in Rodriguez v. State, 758 S.W.2d 787, 788 (Tex. Crim. App. 1988).” Moreno, 619

S.W.3d at 759 (quoting Kuhn v. State, 393 S.W.3d 519, 524 (Tex. App.—Austin 2013, pet.

ref’d)). “Our first duty in analyzing a jury-charge issue is to decide whether error exists.” Id.

(quoting Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005)). “If error exists, we then

evaluate the harm caused by the error.” Id. (quoting Swearingen v. State, 270 S.W.3d 804, 808

(Tex. App.—Austin 2008, pet. ref’d)).

As the San Antonio Court of Appeals has written,

It is a longstanding rule that the State is not required to prove that an
offense was committed on the date alleged in the indictment (whether or not the
words ‘on or about’ are used) but may prove that the offense was committed on
any date prior to the return of the indictment and within the period of limitations.

Id. (quoting Martin v. State, 335 S.W.3d 867, 873 (Tex. App.—Austin 2011, pet. ref’d) (citing

Klein v. State, 273 S.W.3d 297, 303 n.5 (Tex. Crim. App. 2008)); see Sledge v. State, 953

S.W.2d 253, 255–56 (Tex. Crim. App. 1997). As a result, Goode admits that the jury instruction
10
is “technically correct.” See Moreno, 619 S.W.3d at 759; see also Thibodeaux v. State, No. 09-

09-00174-CR, 2010 WL 3518744, at *6 (Tex. App.—Beaumont Sept. 8, 2010, no pet.) (mem.

op., not designated for publication) (finding that an “on or about” instruction was proper and did

not constitute a comment on the weight of the evidence); Nava v. State, No. 08-08-00197-CR,

2010 WL 2410395, at *3 (Tex. App.—El Paso June 16, 2010, pet. ref’d) (not designated for

publication).

Even so, Goode argues that the instruction amounted to a comment on the weight of the

evidence. “Article 36.14 of the Texas Code of Criminal Procedure requires that a trial court

provide a jury charge ‘distinctly setting forth the law applicable to the case’ and must not express

‘any opinion as to the weight of the evidence.”’ Wilson v. State, 419 S.W.3d 582, 595 (Tex.

App.—San Antonio 2013, no pet.) (quoting TEX. CODE CRIM. PROC. ANN. art. 36.14).

“Generally, ‘a correct statement of the law by the trial court . . . is not reversible’ as a comment

on the weight of the evidence.” Aschbacher v. State, 61 S.W.3d 532, 538 (Tex. App.—

San Antonio 2001, pet. ref’d) (quoting Powers v. State, 737 S.W.2d 53, 54 (Tex. App.—

San Antonio 1987, pet. ref’d)). Only “[a] charge that ‘assumes the truth of a controverted issue’

is an improper comment on the weight of the evidence.” Wilson, 419 S.W.3d at 595 (quoting

Whaley v. State, 717 S.W.2d 26, 32 (Tex. Crim. App. 1986)). Here, the trial court’s instructions

related to the date of the offense did not assume the truth of any controverted issue or lessen the

State’s burden of proof. As a result, it did not constitute a comment on the weight of the

evidence.

11
Because we find no error in the trial court’s jury charge, we overrule Goode’s fourth

point of error.

V. The Trial Court Properly Overruled Goode’s Objection to the State’s Illustrations

At voir dire, when explaining its burden of proof, the State correctly noted that it had to

prove each element beyond a reasonable doubt but could not provide a definition of that term.

The State then used a common analogy used to show that it did not need to prove the offenses

beyond all doubt; it showed a slide of a puzzle with missing puzzle pieces, which the viewer

could tell depicted a gun despite the missing pieces. See Robinson v. State, 685 S.W.3d 217, 220

(Tex. App.—Fort Worth 2024, no pet.); Brown v. State, 482 S.W.3d 157, 161–62 (Tex. App.—

Texarkana 2015, no pet.). Goode objected to the slide on the ground that “you cannot give a

definition.” When the State argued that it was not giving a definition, the court asked Goode for

an explanation for his objection. Goode replied,

[W]hat they are about to do is they are going to say, “I can’t give you a definition,
but what I can say is tell you what it’s not.”

By telling somebody what it’s not, then you are giving a definition, plus
the fact that they’re about to put a picture up there and they are going to go
through the -- we have all seen it where they put pieces. You can’t tell what it is.
Then you add more pieces and you can’t tell what it is. Then you add a few more
pieces, then finally you can, even though it’s not a full picture.

That’s still giving a type of a definition.

After receiving the explanation, the trial court overruled Goode’s objection.

On appeal, Goode argues that his due process rights were violated by the illustration and

that the use of a puzzle analogy was improper where the State “did not undertake to quantify the

number or percentage of missing pieces.” Goode also appears to raise an issue of prosecutorial
12
misconduct. The State argues that Goode’s trial objection does not comport with his argument

on appeal. Because “the point of error on appeal must comport with the objection made at trial,”

we restrict our review to Goode’s objection at trial that the illustration provided a definition of

the burden of proof. See Navarro-DePaz, 689 S.W.3d at 24 (quoting Wilson, 71 S.W.3d at 349).

Here, Goode does not explain in his brief why the trial court erred by overruling his

objection. The record shows that the trial court had difficulty in understanding the basis for

Goode’s objection. Goode clarified that the basis for his objection to the slide was that the State

provided a definition of the term “beyond a reasonable doubt.” The trial court could have

determined that the illustration merely showed that the State was not required to prove its case

beyond all doubt and/or that the illustration did not provide a definition for the term “beyond a

reasonable doubt.” See Brown, 482 S.W.3d at 161; see also Silva v. State, Nos. 14-23-00324-CR

& 14-23-00325-CR, 2024 WL 3507508, at *2 (Tex. App.—Houston [14th Dist.] July 23, 2024,

no pet.) (mem. op., not designated for publication). As a result, we overrule Goode’s fifth point

of error.

VI. Goode Was Unharmed by Any Alleged Error Preserved During Jury Argument

Goode raises several issues about the State’s closing arguments. He complains that the

State improperly demeaned him, implied that he was lying, bolstered witness testimony, and said

in its closing argument that “[t]he real Gareth Goode is an alcoholic, he is a narcissist, and he

survives on gaslighting people.” Here, the State argues, and the record shows, that Goode did

not object at trial to those portions of the State’s closing argument. Since he did not preserve

13
those appellate complaints, we overrule them. See TEX. R. APP. P. 33.1(a); Cantu v. State, 678

S.W.3d 331, 356 (Tex. App.—San Antonio 2023, no pet.).

Even so, Goode did preserve four objections to the State’s closing argument. “Generally,

the bounds of proper closing argument are left to the sound discretion of the trial court.” Milton

v. State, 572 S.W.3d 234, 240 (Tex. Crim. App. 2019); see also Garcia v. State, No. 04-22-

00057-CR, 2023 WL 8440526, at *7 (Tex. App.—San Antonio Dec. 6, 2023, no pet.) (mem. op.,

not designated for publication) (“We review a trial court’s rulings on objections during closing

argument for an abuse of discretion.”). “[P]roper jury argument generally falls within one of

four areas: (1) summation of the evidence, (2) reasonable deduction from the evidence, (3)

answer to an argument of opposing counsel, and (4) plea for law enforcement.” Milton, 572

S.W.3d at 239. Also, “[t]o constitute reversible error, the argument must be manifestly improper

or inject new, harmful facts into the case.” Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim.

App. 2000). We address each of Goode’s four objections.

Goode first objected when the prosecutor said that he remembered his first time fishing,

including “the white house, the astro turf on the ground, [his] dad cleaning catfish the old school

way.” Goode objected on the ground that the information was “not in fact or evidence,” but the

trial court overruled the objection. The prosecutor then explained that, while he remembered the

event, he did not remember the date. That argument was meant to explain why a child might not

remember the date of indecent conduct but could remember other details of the event. It is true

that a jury must be “encourag[ed] . . . to decide the case on the evidence in front of it rather than

. . . reach[ing] a decision based upon information outside the record.” Milton, 572 S.W.3d at

14
240. “This is because improper references to information outside the record are generally

designed to arouse the passion and prejudice of the jury, and, as such, are inappropriate.” Id.

Here, however, the trial court could have properly concluded that the State was answering an

argument of opposing counsel by explaining why the child victims could not specify particular

dates of inappropriate conduct by Goode. The trial court could have also decided that, while

facts about the prosecutor’s first time fishing were outside of the record, the argument was not

manifestly improper and would not arouse passion or prejudice from the jury. As a result, the

trial court did not abuse its discretion by overruling Goode’s objection to that argument.

Next, the jury heard at trial that the child victims involved in this case, E.S. and B.S., and

the victim in Goode’s companion case, E.S., were both born in Pampa, Texas, and did not move

to San Antonio until after Goode suggested the move.5 When the State argued during closing

argument that Goode “isolate[d] the children from their fathers . . . [by] bring[ing] them from

Pampa,” the trial court overruled Goode’s objection that the State was arguing outside of the

evidence because that was an inference made from the evidence. Because reasonable deduction

from the evidence is within the permitted bounds of jury argument, and Goode does not explain

why the State’s argument was unreasonable, we cannot say that the trial court abused its

discretion by overruling Goode’s objection. See id. at 239.

Third, Goode had testified that he was aware of the allegation occurring when there was

an overnight guest, A.H., and the child victim, E.S., was sleeping on the couch beside the guest.

According to Goode, he had checked on the children and had approached them near the couch,

5
We use initials for anyone who was a minor at the time of the offenses. See TEX. R. APP. P. 9.10.
15
but only to find the remote to watch the Spurs game. Goode said that he was looking under E.S.

to find the remote, A.H. had woken up, and A.H. had reported that Goode was a molester.

Goode denied the allegations. During Goode’s cross-examination, the State established that

there was no Spurs game on the date of the alleged incident, to which Goode replied, “Maybe I

wanted to watch something else. It was a long time ago.”

During his closing argument, Goode discussed the incident and said, “We hear[d] varying

stories about how this came out,” noted, “We are not sure of dates,” and implied that the

allegation was fabricated when it was “blurt[ed] out” during E.S.’s “argument with her mother

. . . to one up her so mom w[ould] stop.” To rebut that argument the State noted, “[Goode]

testified in direct, being cool, calm, and collected, ‘I was looking for the remote so I could watch

the Spurs game that night,’ watch the Spurs game that night. First time I heard of that, so we

looked it up.” The State then pointed to its cross-examination when saying, “I confronted him. I

said, ‘Would it be a surprise to you if there were no Spurs game -- there was no Spurs game that

Friday night that’” A.H. was there. Goode objected “because dates were not confirmed,” but the

trial court overruled the objection. We find that the State’s comments were a fair summation of

Goode’s testimony and constituted a responsive argument to Goode’s closing argument. As a

result, the trial court did not err by concluding that the State’s argument fell within proper

bounds.

As for the last objection, Goode had testified that B.S. had received a tablet for Christmas

and had used Goode’s Amazon account to activate it. He had further stated that her tablet had

“several nude pictures of her and a very big collection of men’s private parts, so she was

16
exchanging nude pictures with grown men and she was 12 or 11.” In Goode’s closing argument,

he argued that he was trying to help B.S., who posted nude photos using his Amazon account.

The State made the following argument:

No police report ever made about child porn being on somebody’s
Amazon account. If it is on somebody’s account, there better be a report made,
because that is a serious crime, possession of child pornography, but there might
be a reason why that wasn’t reported, because on the other side of that Kick
messaging portal, maybe, just maybe [Goode] didn’t want police to find out who
requested those nude pictures from [B.S.].

Goode objected on the ground that the State was “asking them to infer,” and the trial court

overruled the objection after saying, “[R]easonable inferences from the evidence is permissible

in closing arguments.” The State argues, “The prosecutor reasonably deduced that, since

Appellant controlled the Amazon account and did not take the expected step of informing the

police that someone had requested nude pictures from a twelve-year-old girl, it was Appellant

who used his account to request those pictures.” Because there was no evidence to support the

theory that Goode was requesting the nude photos, any such inference was unreasonable and

speculative.

Even so, “[a]ny error resulting from improper jury argument is subject to a harm

analysis.” Orcasitas v. State, 511 S.W.3d 213, 219 (Tex. App.—San Antonio 2015, no pet.)

(citing Freeman v. State, 340 S.W.3d 717, 728 (Tex. Crim. App. 2011)). “When jury argument

falls outside the areas of proper argument, we must determine if the related error warrants

reversal.” Id. “When the error is non-constitutional, we must determine if the appellant’s

substantial rights were affected.” Id. at 220 (citing Freeman, 340 S.W.3d at 728). “To

determine if an appellant’s substantial rights were affected, we balance the severity of the
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misconduct, any curative measures, and the certainty of conviction absent the misconduct.” Id.

(citing Freeman, 340 S.W.3d at 728).

Here, we find that the misconduct was not severe. Because the State’s statement

involved a tangential issue unrelated to the question of whether Goode committed indecency

with a child, we find that the statement had little prejudicial effect. Next, curative measures were

taken by the trial court in its charge, which redirected jurors to the issues of whether Goode

committed the acts charged by the indictments, contained the proper burden of proof, and

reiterated that the jury was to carefully and impartially consider the evidence in the case. The

trial court further instructed the jury that it “should not consider . . . information [it] may have

about any fact . . . which [was] not shown by the evidence” and clarified, “A fact is established

by direct evidence when proven by witnesses who saw the act done or heard the words spoken or

by documentary evidence. A fact is established by circumstantial evidence when it may be fairly

and reasonably inferred from other facts proven.”

Last, Goode’s conviction was certain absent the improper jury argument. Goode’s

victims testified at trial in detail about the acts comprising the State’s indictments. B.S. testified

that she was laying in bed when Goode came to her, slipped his hand “slightly under” her

clothing, and touched her breasts when she was a child. B.S. said that Goode had also come to

her bed while she was sleeping, removed her covers, and touched her vagina and breasts while

she was a child. E.S. testified that she was asleep in her bed when Goode kneeled next to the

bed, pushed her shirt up and her pants down, and put his hands on her private areas and nipples,

and then licked “all the same places he would put his hands.” E.S. specified that Goode placed

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his tongue inside of her vagina and that she was nine at that time. E.S. said she was abused over

the course of years and that there were “less than 30” instances of abuse. Although not a named

victim, A.H. testified that she was sleeping on the couch when she was a child and woke up with

Goode’s hand in her pants. A.H. said Goode’s hand was underneath her underwear, that his hand

touched her vagina, and that his fingers penetrated her vagina. After considering the relevant

factors, we find that Goode’s substantial rights were not affected by the improper closing

argument.

We overrule Goode’s last point of error.

VII. Conclusion

We affirm the trial court’s judgment.

Scott E. Stevens
Chief Justice

Date Submitted: June 10, 2025
Date Decided: July 2, 2025

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