Bobby Bryan Browning v. State of Texas ( 2008 )

Opinion filed September 11, 2008

Opinion filed September 11, 2008

                                                                        In The

    Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-07-00211-CR

                                                    __________

                              BOBBY BRYAN BROWNING, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                        On Appeal from the 252nd District Court

                                                       Jefferson County, Texas

                                                    Trial Court Cause No. 90474

                                             M E M O R A N D U M   O P I N I O N

The jury convicted Bobby Bryan Browning of aggravated sexual assault and assessed his punishment at forty-five years confinement.  We affirm.

The indictment alleged that, on or about September 1, 2003, appellant intentionally and knowingly penetrated J.K.=s female sexual organ with his finger.  At the time of the alleged offense, appellant was twenty-eight years old, and J.K. was thirteen years old. Appellant does not challenge the sufficiency of the evidence to support his conviction.  In his sole appellate issue, appellant contends that the trial court erred in overruling his objections to allegedly improper jury argument during the guilt/innocence phase of the trial.  Specifically, appellant complains that the prosecutor improperly characterized him as a pedophile.  The prosecutor stated that, A[i]f the [appellant] is whom we claim he is, a pedophile, he will do this again.@  Appellant=s counsel objected to the prosecutor=s statement on the grounds that it was not Aan inference of the evidence@ and that it was Anothing but prejudice.@  The trial court overruled the objections.  The prosecutor made additional remarks about pedophiles, and appellant=s counsel objected to the prosecutor=s Acontinued use@ of the word Apedophile.@  The trial court overruled the objection and permitted appellant=s counsel to make a running objection to the prosecutor=s use of the word Apedophile.@

On appeal, appellant contends Athat the State=s remarks were improper in that multiple parties were not alleged and nothing was introduced into evidence concerning [appellant=s] reputation for being or not being a pedophile.@ In essence, appellant argues that the prosecutor=s remarks were improper because the State did not introduce evidence showing appellant=s conduct toward any children other than J.K.  To be proper, the State=s jury argument must fall into one of the following four categories: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; or (4) plea for law enforcement.  Felder v. State, 848 S.W.2d 85, 94-95 (Tex. Crim App. 1992); Esquivel v. State, 180 S.W.3d 689, 692 (Tex. App.CEastland 2005, no pet.).  Counsel is allowed wide latitude in drawing inferences from the record that are reasonable, fair, legitimate, and offered in good faith.  Shannon v. State, 942 S.W.2d 591, 597 (Tex. Crim. App. 1996).

APedophile@ is defined as Aone affected with pedophilia.@  Merriam-Webster=s Collegiate Dictionary 913 (11th ed. 2003).  APedophilia@ is defined as Asexual perversion in which children are the preferred sexual object.@ Id.  At the time of the conduct alleged in the indictment, appellant was twenty-eight years old, and J.K. was thirteen years old.  The State presented extensive evidence that, for several months, appellant groomed J.K. to engage in sexual conduct with him.  J.K. testified that appellant penetrated her vagina with his finger.  Appellant admitted to his friend, Britten Hartford, that he had Afingered@ J.K.  The prosecutor made a reasonable deduction from this evidence that appellant was a pedophile.

The prosecutor made the Apedophile@ remarks after appellant=s counsel made his jury argument.  Appellant=s counsel advanced a theory that J.K. made up the story that appellant sexually assaulted her to get back at him for saying that their relationship was over. The prosecutor=s remarks were a proper answer to this argument by appellant=s counsel.

The trial court did not abuse its discretion in overruling appellant=s objections to the State=s jury argument.  We overrule appellant=s issue.

We affirm the judgment of the trial court.

TERRY McCALL

JUSTICE

September 11, 2008

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.