### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00630- CR

David Brow ne, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F CO MAL CO UNTY, 207 TH JUDICI AL DISTRICT NO. CR2013 -46 6, H ONO RAB LE DIB WALDRIP , JUDGE P RESIDING

O P I N I O N

David Br owne was arr ested and char g ed with f o u r c o u n ts o f a g g r a v ated sexual assault of a child and two counts of indece ncy wi th a child by contac t. See Tex. Penal Code §§ 21.11(a) (listing elements for offe nse of indece ncy with child), 22.021(a) (1) ( setting out offe nse of ag g rava ted sexual assault). The offenses were alleg ed to have occur red at a day car e run by Br owne’ s wife in their home. The victim in this case , Anthony , attended the day car e fo r sever al y ear s. Although 1 Br owne worke d outside the home, he would come home for lunch once or twice a wee k. On some of those occ asions, Br owne’ s wife would r un err ands and le ave the children in B rowne ’s custody

. Prior to his arr est, Br owne ag ree d to be interviewe d by the police. During the leng thy interview, Br owne initially denied the acc usations but later admitted to having eng ag ed in some inappropria te ac tivity

with Anthony

. I n addition, B rowne also wrote a letter to Anthony g ener ally

Anthony was the pse udony

m used to ref

er to the vic tim during the tria l. 1apolog izi ng for his behavior

. After his arr est, Br owne had sever al conver sations with his wife while

he was in jail. During the trial, rec ordin gs o f Br owne’ s interview with the police, the letter that Br owne wr ote, and r ecor dings of his conversa tions with hi s wife we re a dmitted into evidence. The indictment in this case contained four char g es for ag g rava ted sexual assault and
two char g es for indece ncy with a child. I n the first two char g es for ag g rava ted s exual assault, t he indictment alleg ed that in Fe bruar y of 2010 and 2011 Browne “intentionally or knowing ly cause d the penetrat ion of the mouth of Anthony

. . ., a child y oung er than 6 y ear s of ag e, with the male sexual org an of” Br owne or “intentionally or knowing ly cause d the mouth of Anthony

. . . to contac t the male sexual org an of” Br owne. At the end of g uilt or innocenc e phase, the jury acquitted Br owne of these two c harg es.

Reg arding the next two ag g r a v a te d

- s e xu a l- a s s a

u lt c h a r g e s , th e in d ic tment alleg ed that in Fe bruar

y of 2010 and 2011 Br owne “did then an d there intentionally or knowing ly cause the penetr ation of the anus o f Anthony

. . . with the fing er or fing ers of” Br owne. For the indece ncy char g es, the indictment alleg ed that in Marc h of 2010 Br owne “d id then and there , with intent to

arouse or g ratify the sexual desire of any person, eng age i n sexual contac t with Anthony

. . . by touching the g enitals or part of the g enitals of

. . . Anthony

. . . with the hands or fing ers of” Br owne and “did then and there , with intent to arouse or gra tify the s exual desire of any person, eng ag e in sexual contac t with Anthony

. . . by causing

. . . Anthony

. . . t o t o u ch t h e gen itals or part of the g enitals of” Br owne. At the en d of the g uilt or innocenc e phase, the jury found Br owne g uilty of these four char g es. At the end of the punishment phase, the jury rec ommended that Br owne be sentenc ed to life imprisonment f

or eac h of the two ag g rava ted sexual a ssaults a

nd to 20 y ear s’ imprisonment 2for each of the t wo acts of i ndece ncy with a ch i l d

. S ee i d. §§ 21.11(d) (specify ing that offe nse of indece ncy with child is second- deg ree felony wher e defe ndant eng ag ed in sexual contac t with child

or cause d child to eng ag e in sexual contac t), 22.021(e) (spec ify ing that ag g rava ted sexual assault is first-deg ree felony

), (f ) (se tting minimum sentence a t 25 y ear s’ imprisonment if victim is y oung er than six y ear s old); see also id. §§ 1 2

. 3 2 (s et t i n g out punishment rang e for first-deg ree felony ), .33 (listing permissible punishment r ang e for se cond-de g ree felony ). The district c ourt enter ed its judgme nts of conviction in acc ordanc e with the jury ’s ver dicts.

I n four issues on appea l, Br owne contends that his trial counsel provided ineffe ctive assistance when his counsel did not reque st a medical- car e-de fense jury instruction for the ag g rava ted-sexual-assa

ult char g es and when his counsel failed to object to the State’s improper jury arg ument and that the district court er red by failing to cure improper state ments made by the State and by deny ing his motion for mistrial. We will aff irm the district court’s judgme nts of conviction.

DISCUSSIO N

Ineff ect ive Assistance of Counsel I n h is f ir s t tw o is s u e s o n a

p p e a l, B r o w

n e c o n te n d s th a t h is tr ia l c o u n s e l w a s in e f

f e c ti v e . To succe ed on an ineffe ctiveness claim, a defe ndant m u s t o v er come the strong presumption that his trial “counse l’s conduct falls within the wide rang e of rea sonable profe ssional assistance ” and must show that the attorney ’s “re prese ntation fell b el o w an objective standard of

rea sonablene ss . . . under preva iling profe ssional norms” and that “ther e is a rea sonable probability that, but for counsel’s unprofe ssional err ors, the result of the proce eding would have been differ ent.”

3Strickland v. W ashin g t o n , 4 6 6 U.S. 668, 688, 689, 694 (1984). Evaluations of eff ectivene ss are based on “the totality of the repr esenta tion,” Frangias v. State , 450 S.W .3d 125, 136 (Tex. Crim. App. 2013); see also Davis v. State , 413 S.W .3d 816, 837 (Tex. App.—Austin 20 1 3 , pet. ref ’d) ( p r o v id in g th a

t a s s e s s me n t s h o u ld c o n s id e r c u mu la ti v e e f f e c t o f c o u n s e l’ s d e f i c i e n c i e s ) , a

n d a l l e g a t i o n s of ineffe ctiven es s m ust be firmly established by the rec ord, Mallett v. State , 65 S.W .3d 59, 63 (Tex. Crim. App. 2001). Fur thermore , even though a defe ndant is not entitled to repr esenta tion that is err or-f ree , a single err or can rende r the repr esenta tion i n ef fe ct ive if it “wa s eg reg ious and had

a seriously deleter ious impact on the balanc e of the repr esenta tion.” Frangias , 450 S.W .3d at 136. For exam p l e, i n cer

tain circ umstances, the failure to reque st a jury instruction on a defe nsive theory can constitute ineffe ctive assistance of counsel. See Villa v. State , 417 S.W .3d 455, 463-64 (Tex. Crim. App. 2013).

I n g ener al, direc t appea ls d o n o t p rovide a useful vehicle for prese nting ineffe ctiveness claims beca use the rec ord for that ty

pe of claim is usually undevelope d. Goodspee d

v. S t ate , 187 S.W .3d 390, 392 (Tex. Crim. App. 2005); see also Mallett , 65 S.W .3d at 63 (stating that in majority of case s, rec ord in direc t ap p ea l i s undevelope d and “ca nnot adequately ref

lect the m otives behind t rial counsel’s ac t i ons”). “This i s true with reg ard to the questi on of deficient perf ormanc e . . . wher e counsel’s rea sons f or failing to do something do not appe ar in the r ecor d.” Goodspee d , 187 S.W .3d at 392 (stating that “c o u n s el ’s conduct is revie wed with g rea t defe renc e, without t h e d i s t o rt i ng eff ects of hindsight”)

. I n addition, befor e their repr esenta tion is deeme d ineffe ctive, trial attorney s should be aff orded the opport u n i t y to explain their actions. Id. I f that opportunity

has not bee n provided, as in this case , an appellate court should not determine that an

4attorney ’s perf ormanc e was ineffe ctive unless the co n duct at issue “wa s so outrag eous that no competent attorney would have eng ag ed in it.” See Garcia v. State , 57 S.W .3d 436, 440 (Tex. Crim. App. 2001). For ineffe ctiveness claims based on the asser tion that a trial attorney failed to make an objection, the d ef

en d an t must show that if an objection had been made, the trial court “would have committed err or” by not sustaining the objection. See Brow n v. S t a t e , 6 S.W .3d 571, 575 (Tex. App.—Ty ler 1999, pe t. ref’ d).

Medic al-Care Defe nse

I n his first issue on appea l, Br owne contends that his tri al co u n s el provided ineffe ctive assistance by faili n g to reque st a jury instruction for the medical- car e defe nse to ag g rava ted sexual assault

. That defe nse is codified in the Penal Code and provides that “[i] t is a defe nse to prosec ution

. . . that the conduc t consisted of medical car e for the child and did not include any contac t betwee n the anus or sexual org an of the child and the mouth, anus, or sexual org an of the actor or a third party .” See Tex. Penal Code §§ 22.011(d) (s ett ing out defe nse), .021(d) (explaining that medical- car e defe nse applies to ag g rava ted assault case s); Cornet v. State , 417 S.W .3d 446, 451 (Tex. Crim. App. 2013) (“ Cornet II ”) (stating that “the medical- car e defe nse does not neg ate criminal intent but rathe r ‘merely justifie s ’ wh at wo u l d otherwise be an unlawful
t o u ching of a child” (quoting Cornet v. State , 359 S.W .3d 217, 225 (Tex. Crim. App. 2012 ) (“ Cornet I

”)) ); see also Cornet I

, 359 S.W .3d at 221-22 (explaining that availability of defe nse does
not turn on “ac cused’ s familiarity with the scienc e of medicine” but upon nature of conduct)

. When discussing the defe nse, the court of c riminal appea ls has explained that the leg islature’s use of the phrase “medica l car e” was n o t i n t en d ed “to exclude inspections, whether conducte d by trained

5medical pe rsonnel, by a par ent, or by another adult acting in loc o pare ntis, whe n those inspections

ar e u n d er t aken for the medical benef it of the child.” Cornet I , 359 S.W .3d at 223; see also id. at 223-24 (conc luding that evidenc e prese nted at trial raised issue of whether inspection was medical

car e wher e defe ndant testified that he was examining child to see if there was any evidenc e of sexual
contac t and wher e def

endant ha d g ood rea son to believe that c hild had been a bused). “The medical- car e defe nse is one of confe ssion and avoidanc e.” Villa , 417 S.W .3d
at 462. “As such, a defe ndant claiming entitlem en t t o an instruction on the medical- car e defe nse must admit to eac h element of the offe nse, including both the act and the requisite mental state.” Id. “I f the defe nsive evidenc e does no more than attempt to n ega te an element of the offe nse, a defe ndant is not entitled to a defe nsive instruction on any defe nse that is subject to the doctrine of confe ssion and avoidanc e.” Id. “An instruction on a confe ssion and avoidanc e is appropr iate only ‘whe n the defe ndant’s defe nsive eviden ce essentially admits to ever y element of the offe nse including the culpable mental state, but interposes the justification to excuse the otherwise criminal conduct.’ ” Id. (quoting Shaw v. State , 243 S.W .3d 647, 659 (Tex. Crim. App. 2007)).

When arg uing that he was entitled to the instruction, Br owne ref ers t o various

case s ex p l aini ng the circ umstances in which an instruction should have been g iven for offe nses involving the penetr ation of a victim. Specifica lly , the court of criminal appea ls has explained “that penetr ation occur s when there is ‘tac tile contac t b e n e a th th e f o ld o f complainant’s external g enitalia,’ and that it is not inacc urate ‘to descr ibe [conduct] as a penetr ation, so long as [t he] contac t with [t he complainant’s] anatomy could rea s o n ably be reg arde d by ordinary Eng lish speake rs as more intrusive than contact with her outer vaginal lips .’” C o r n et I , 359 S.W .3d at 226 (quoting Vernon

6v . S

ta te , 8 4 1 S. W. 2 d 4 0 7 , 4 0 9 ( T e x. Cr im

. A p p . 1 9 9 2 ) )

. F u

r th e r , th e c o u

r t h a s r e a s o n e d “ th a

t ‘ p u s h in g aside and rea ching benea th a natu ra l fo ld of skin into an are a of the body not usually exposed to view, even in nakedne ss, is a signific ant intrusion bey o n d m er e ex terna l contac t[ ,]’ and there fore constitutes pe netra tion in the context of sexual a ssault.” Id. (quoting Vernon , 841 S.W .2d at 409).

I n light of this analy sis, Br owne contends that he was entitled t o t he medical- car e instruction beca

use the evidenc e established that some of the alleg ed conduct occur red when he was acting as a car etake r for Anthony

. Specifica lly , Br owne ref ers to portions of his testimony in which he descr ibed an interac tion with Anthony afte r Anthony had g one to the bathroom. I n that exchang e, Br owne testified a s follows:
[Browne ]: I assumed that he was doing his business. And he called me in and -- and said, David, David,

. . . I need y ou to wipe me. I need y ou to wipe me. So I went into the restroom and he is sitt ing on the toilet.

. . . [Defense Attorney ]: And what ha ppened ne x t?

. . . [Browne ]: And I said, y ou know, let me wipe y ou, so -- it’s a fairly small bathroom. So I had to stand kind of in front of the toilet. And I had him lean forwa rd so I could wipe him from behind. And I started to - - and I saw that he had quite a bit of dr ied fec es on his rea

r end.

. . . [Defense Attorney ]: And what ha ppened ne x t? [Browne]: So I -- I tried to wipe his rea r end and -- to be thoroug h beca use of the dried fec es. I couldn’t g et that with toilet paper , so I left him in the bathroom. I went o u t and around to wher e my wife has a chang ing station wher e she’s g o t t h e we t wipes.

7So I pulled a couple of wet wipes out. I went back into the bathroom

to continue to wipe him. .

. . I told him to le an forwa rd ag ain. I wiped his rea

r end. And I was wiping his rea r end an d I h ad t o clea

n with the moist cloth. He was complaining that it hurt. I said, well, I ’ve g ot to g et this off or it’s g oing to g ive y ou diaper rash a nd y ou don’t want that. [Defense Attorney ]: And y ou’re talking a bout wiping his bottom at this ti me? [Browne ]: Right, ar ound his anus.

Acc ording ly , Br owne asser ts that when he was wip ing Anthony , he was providing medi ca l ca re . Moreove r, althoug h he rec og nizes that he expressly denied during trial that he penetr ated Anthony ’s anus, Br owne asser ts that under the rea soning by the court of criminal appea ls, the act of wiping Anthony could be considere d penetr ation beca use it is more intrusive than external
contac t. I n addition, Br owne notes that althoug h Anthony testified that Br owne “pushed [Browne ’s f in g e r ] u p my b o tt o m, ” A n th o n y c o u ld h a v e b e e n r e f

e r r in g to th e in c id e n t d e s c r ib e d a b o v e . A s f

u r th e r support for his arg ument, Br owne highlig hts that the medical- car e defe nse i s av ail able when the conduct did not include any contac t “ betwee n the anus or sexual org an of the child and the mouth,

a n u s , o r s e xu a l o r g a

n ” o f th e a c c u s e d , s e e T e x. Pe n a l Co d e § 2 2

. 0 1 1 ( d ) , th a t th e r e w e r e n o a ll e g a

ti o n s reg arding any contac t betwee n Anthony ’s anus or sexual org an and Br owne’ s anus or sexual org an, and that the jury

acquitted B rowne of the c ounts involvi ng any contac t with Anthony ’s mouth. As a preliminary matter, we note that it is not entirely clea r that the prior prec edent by the court of criminal appea ls applies to the fac ts of this case . For example, in Co rnet I , the defe ndant did not deny touching the victim’s anus and sexual org an, testified that he was examining the victim to see if she had been the victim of sexual a buse, and admitted to the following conduct in a written statement and in his testimony : c ontacting the victim’s labia and anus with his fing ers, 8sprea ding he r labia “ to see if her hy men was still intact,” and “open[ing ]” the victim’s “buttocks.” 359 S.W .3d at 219, 227. I n addition, the defe ndant stated that he “re membere d [hi s] fing ers g etting wet.” Id. At trial, the appellant t es t i fi ed t h at h e had “spre ad her chee ks” in order to asce rtain whether or not she had been sexually abused. Id. Acc ording ly , a plurality of the court deter mined the following :

that the[ ] statements, taken toge ther, constitute evidenc e sufficie nt to establish confe ssion in the context of confe ssion and avoidanc e—that is, we think it would be rea sonable for

a fac t-finder to inf

er from the appellant’ s defe nsive evidenc e that he admitted to penetr ation

. . .[; ]t hat his fing ers wer e wet beca use he “re ache d beneath the natura l f

old of skin” of [t he victim] ’s labia and enter ed “an are a of the body not usually exposed to view, even in nakedne ss”; that in order to make the hy men visible, the appe llant would have to make some contac t with the child’s g enitals that could “re asonably be reg arde d

. . . as more intrusive than contact with her outer vag inal lips”; and that the appellant crosse d the leg al line demar cating penetr ation when he, as he te stified at trial, “spr ead he r che eks.”

Id. at 227 (quoting Vernon , 841 S.W .2d at 409).

Simi larly , in Villa v. State , the defe ndant g ave a statement to the police in w hich he admitted “that while app l y i n g m ed i cation to [t he victim] ’s diaper rash, he had ‘put [hi s] middle fing er in her vag ina’ and moved it ‘bac k and forth probably twice.” 417 S.W .3d at 459. During trial, the defe ndant stated that what he meant to say to the polic e was that he “‘ne ver put my fing er in her. Yes, I put it on her, but I didn’t put my fing er in her at all.’” Id. Howeve r, the defe ndant also admitted during trial that he “‘a ctually touched the [vi ctim’s] g enitals.’” Id. The court of criminal appea ls conclude d that althoug h the defe ndant denied penetr ating the victim’s vag ina at t ri al , he “testified that he put Desitin on the red are a outside the vag ina” and that he “touche d the [vi ctim’s] g enitals.” Id. at 462. Fur

ther, the court noted that the victim’s mother and the nurse who examined

9the victim both testified that there was “re dness on [t he victim’s] labia minora that extended into her

vag inal cana l.” Id. Acc ording ly , the court deter mined that a rea sonable jury could have deter mined that the defe ndant admitted to “conta ct with the complaina n t’s labia minora and” there fore “a ‘pene tration’ of her sexual org an” and that the defe ndant “admitted to all elements of the offe nse in his trial testimony and prese nted evidenc e at trial that proper ly raised the medical- car e defe nse.” Id.

I n the prese nt case , there is no testimony from Br owne that constituted an admission of the ty pe of penetr ative behavior descr ibed in Villa or Cornet I

. On the contra

ry , Br owne expressly denied dur ing tr ial penetr ating Anthony ’s anus in any manner . I n fac t, he testified that his “fing er

was never i n [ An t hony ’s] rea r end.” Simi larly , during his interview with the police, which was

re co rded and admitted as an exhibi t, Br owne repe atedly denied throug hout the entire discuss i o n that he ever had any contac t w ith Anthony ’s anus even though he admitted to improperly touching Anthony ’s p en i s . Moreove r, althoug h Br owne testified that he thoroug hly tried to wipe fec es off

o f Anthony and that he wiped “ar ound” Anthony ’s anus, nothing in his testimony indicated that he mad e any attempt to sprea d Anthony ’s anus or alluded to contac t that amounted to any thing

more than external contac t with Anthony ’s anus. S ee Pryor v. State , 719 S.W .2d 628, 630 (Tex. App.—Dallas 1986, pe t. ref’ d) (disting uishing a nus from buttocks). I n light of Br owne’ s testimony and of the distinction betwee n this case and the case s in which the court of crim i nal appeals has determined t hat an instruction should have been given,

we cannot conclude that Br owne has overc ome the presumption that his attorney ’s co n d uct fell within the wide ra

ng e of pr ofessional a

nd rea sonable assistance; has not shown that his attorney ’s conduct, unde r pre vailing pr ofessional norms, fell below an objective standard of reasona bleness;

10and has not demonstrated that the alleg ed err or was so eg reg ious that no competent attorney would

have c ommitt ed it.

Even assuming that Br owne’ s testimony at trial could be construed as an admission of penetr ation as has been define d by the court of criminal appea ls and that Br owne’ s attorney should have reque sted an instruction for the medical- car e defe nse, we would still be unable to conclude that the failure to reque st a medical- defe nse instruction under the fac ts of this case constituted ineffe ctive assistance of counsel. Rece ntly , the court of criminal appea ls explained that “the wrong ful omission of a medical- car e-de fense jury instruction is g ener ally considere d harmful

. . . beca use its omission leave s the jury without a vehicle by which to acquit a defe ndant who has admitted to all the elements of the offe nse.” Cornet II , 417 S.W .3d at 451. When explaining that statement, the court clar ified that omissions have been held to be harmful “whe n there is a s ingle offe nse tried befor e a jury ” beca use “it is impossibl e to deter mine how a jury would have weig hed the cre dibilit y of the evidenc e

on a defe nsive issue, and, there fore , appellate courts have reve rsed convictions in order to permit the jury to de cide whether it be lieves the defe nsive evidenc e.” Id. Howeve r, the c ourt conc luded that “the omission of the medical- car e-de fense char g e” can be harmless depending on the circ umstances of a c ase. See id. at 453.

I n Cornet II

, the defe ndant was char g ed with and convicted of t h e offe nses of ag g rava ted sexual assault “by digital penetr ation” and “ag g rava ted sexual assault of the complainant

. . . by contac ting her anus with his mouth,” id. at 451, and the medical- car e defe nse would not have been a defe nse to the char g e involving the defe ndant’s mouth, id. at 4 5 2 ; s ee T ex . Penal Code § 22.011(d). I n light of that, the court rea soned that it was “inconc eivable that the jury would have

11found appellant g uilty of causing the anus of the complainant to contac t his mouth, a claim entirely

denied by appellant, had it believed his claim that he was providing medical car e to the complainant during the same event. I t is clea r that the jury believed the complainant and disbelieved appellant’ s claims.” Cornet II

, 417 S.W .3d at 452; compare id. , with Villa , 417 S.W .3d at 463-64 (finding that trial attorney p ro v i ded ineffe ctive assistance by failing to reque st medical- car e instruction wher e defe nse counsel elicited testimony from defe ndant that could rea sonably be construed as confe ssion of all elements, wher e defe ndant was char g ed with ag g rava ted sexual assault of child and indece ncy with child, wher e jury only convicted defe ndant of ag g rava ted sexual-assault claim, and wher e court of criminal appea ls explained that acquittal for indece ncy char g e indicated that jury may have been persua ded by medical- car e evidence beca use i t found t hat defendant not g uilty o f offense that has intent to arouse or g ratify as element but fo u n d d ef endant g uilty of offe nse that did not have that element) . Moreove r, the c ourt deter mined that its revie w of the evidence supporte d the idea “ that the jury ’s finding that appellant orally contac ted the complainant’s anus indicates that it disbelieved the medica l-ca

re e vidence .” Cornet II

, 417 S.W .3d at 453. When rea ching its deter

mination that the omission was harmless, the court also noted that the focus of t he defenda nt’s closing arg uments was “on the S tate’s purported fai l u re to prove that appellant penetr ated the complainant’s sexual org an by his f inge r or that he made or al contac t with her anus,” that the defe ndant “cha lleng ed the cre dibilit y of the complainant an d t h e outcry witness,” and that the defe ndant “did not mention the medical- car e defe nse expressly or implicitl y .” Id. at 454. Fur

thermore , the court noted that th e S t ate specific ally urg ed the jury to reje ct the defe ndant’s claim that the contac t at issue was for the victim’s medical car e. Id. Simi larly , the court

12noted that the def endant’ s defe nsive theory during trial was f ocused on the asser

tion that the State failed to prove that he penetr ated the victim’s sexual org an rathe r than on medical car e, that neither the defe nse nor the State asked about medical car e during voir dire, that t h e d ef en dant’s opening
statement was premised on the State’s failure to prove the alleg ations, and that the defe ndant arg ued in his opening state ment that he made a mistake a nd behave d inappropria tely

. Id. at 454-55. Although the issue in Cornet II fo cu s ed o n wh ether there was an err or in the jury

c h a r g e r a th e r th a n a n ineffe ctive-a ssistance-of -counse l claim, we believe that th e s im il a r it ie s b e tw e e n this c ase and Cornet II as we ll the analy sis from that case compel a de termination that there is not

a rea sonable probability that the results of the trial would have been differ ent but for Br owne’ s failure to reque st an instruction on the medical- car e defe nse. As in Cornet II , Br owne was char g ed wi t h and convicted of multipl e sexual offe nses, some for which the medical- car e defe n s e co u l d apply and some for which that defe nse is not applicable

. Specifica lly , as set out above, Br owne was convicted of two char g es of ag g rava ted sexual as s ault by penetr ating Anthony ’s anus, which are subject to the defe nse if war rante d, and with two char g es of indece ncy with a child by contac t, which

are not subject to the defe nse. See Tex. P enal Code §§ 21.11, 22.021( d).

During the trial, a copy of the rec ording of Br owne’ s interview wa s p l ay ed for the jury

. I n that interview, Brow ne admitt ed that his wife would sometimes leave him alone with the children in the day car e, but he explained that he was never asked to chang e diaper s. I nitially and for

sever al hours, Br owne d en ied t ouching Anthony ’s anus and penis, but then Browne admitted that “mistakes wer e made,” that he had remorse , that he did touch Anthony ’s penis afte r Anthony asked Br owne to fee l how hard his ere ction was, and that he squeezed Anthony ’s penis. Howeve r, Br owne

13claimed that the improper contac t only happene d once and continued to deny throug hout the

interview having any contac t with Anthony ’s buttocks or anus. I n the apolog y letter that he wrote, Br owne stated that his behavior was “ver y wrong and should never have happene d” and that he was the adult and should have known better

.

After the video of Br owne’ s interview was play ed for the jury , Anthony ’s mother was called to the stand and testified that afte r she and Anthony left the Br ownes’ home, Anthony stated that Br owne would wa

ke him up from nap time a nd play with his “private pa

rts” and tha t Brow ne woul d “p u t his fing ers in [Anthony ’s] butt.” When Anthony ’s mother finished her testimony , Anthony was called to the stand. I n his te stimony , Anthony g ener ally explained tha t B rowne used his hands and mouth to touch Anthony ’s privates and that Br owne pushed his fing er into Anthony ’s bottom. Fur

ther, Anthony rela ted t hat Browne inserted his fi n g er every day that Anthony went to the day car e and that Br owne sucked on Anthony ’s “fr ont part.” I n addition, Anthony testified that Br owne tried to make him touch Br owne’ s privates with his mouth a nd hands. When a sked about wh et h er he ever had bathroom acc idents at the day car e, Anthony admitted that he did but denied

ever having one whe n Br own’s wife was not there

.

After Anthony testified and afte r the State rested its c ase, Br owne was called to the stand. I n his testimony , Br owne denied ever t ouching Anthony in a sex ual m anner and ex plained that all of the alleg ations reg arding penetr ation and reg arding indece nt contac t co u l d only have ref err ed to a single incident that Anthony misint er p re t ed

. Specifica lly , Br owne testified that, as discussed ear lier, he wiped Anthony afte r Anthony went to the bathroom. Br owne also rec alled that afte r he finished clea

ning Anthony , he touched Anthony ’s penis. When descr ibing this i n cident,

14Br owne explained that when Anthony asked him to come into the bathroom , Anthony had an

ere ction, was making “a big deal out of it,” and asked Br owne to t o u ch i t

. I n addition, Br owne

rec alled that afte r he wiped Anthony , Anthony said that he had to pee and that the following

occur red:
[B]ecause of the ere ction, he started peeing out all over the floor and on the cabine t and almost on me. So I pulled him up. I turned him a round towards the toilet a nd he is just spray ing a ll over the toilet. And at that point I rea ched around and held his penis down pointing it into the toilet so that he wouldn’t spra

y all over the floor and the toilet.

When discussing Anthony ’s behavi o r, Br owne stated that Anthony “wa s all g igg ly about that,
t houg ht that was just fun and g ames.” Next, Br owne testified that afte r he finished clea ning the bathroom, he rea liz ed that he “nee ded to use the restroom” and that when he started urinating , Anthony “bar g e[d] in the room and [ran] around” Br owne, rea ched for Br owne’ s penis, and “made very brief contac t with [Browne ’s] penis.” I n addition, Br owne rela ted that he scolded Anthony and told him “that’s off limits.”

Given that the jury convicted Br owne of four offe nses, the jury clea rly believed and

cre dited Anthony ’s testimony , the testimony of his mother, and the admis sions that Browne made
to t h e p o l ice and disbelieved Br owne’ s testimony that there was nothing sexual that occur red and that Anthony miscons t ru ed Br o wne’s attempts to clea n Anthony and help Anthony g o to the
restroom. See Cornet II

, 417 S.W .3d at 452. Moreove r, t hroug h his testimony , Br owne was able
to communicate his asser

tion that all of the alleg ed offe nses, including the two char g es of ag g rava ted sexual assault involving penetr ation of Anthony ’s anus and the two char g es of indece ncy with a child
15for which Br owne was convicted, stemmed from that single incident. The medical- car e defe nse

would not have been available for the indece ncy char g es, and it seems highly unlikely that the jury

w o u ld have found Br owne g uilty of improperly eng ag ing in sexual contac t with Anthony and caus in g Anthony to eng ag e in sexual contac t “with intent to arouse or g ratify the sexual desi re o f any person,” see Tex. Penal Code § 21.01 (def ining “sexual contac t” as “touching of the anus, brea st, or any part of the g enitals o f an o t her person with intent to arouse or g ratify the sexual desire of any person” ), .11(a) (spec ify ing that person is g uilty of offe nse if he eng ag es in sexual contac t with child

or cause s child to eng ag e in sexual contac t), which Br owne completely denied, had it believed Br owne’ s claim that he was simply try ing to clea n Anthony and to help him g o to the restroom, see Cornet II , 417 S.W .3d at 452. I n addition, d u ri n g voir dire, Br owne made no asser tion reg arding his role as a

car etake r and no asser

tion that the conduct at issue stemmed from his g iving medical ca re t o A n th o n y . D u r in g tr ia l, B r o w n e d id a s s e r t in h is o p e n in g a

n d in h is c lo s in g a

r g u me n ts th a t th e to u c h in g at is s u e wa s d o n e i n his role as a car etake r for Anthony and while he was attempting to help Anthony

. Specifica lly , in his closing arg ument, Br owne asser ted that “[i] f there ’s dried fec es on y our kid’s butt,” y ou have to “push a littl e bit harde r” or “rub a littl e bit ha rder ” to he lp y our child. Howeve r, Br owne expressly and repe atedly denied ever penetr ating Anthony ’s anus. Moreove r, the p ri m ary focus of Br owne’ s arg uments during his opening and closing statements and of his questioning of

witnesses foc used on the de fensive the ories that the police compelled him to admit to be haviors that wer e not tr ue, that Anthony was encour ag ed to ma ke cla ims that wer e not tr ue or misconstrued the e vents, and that the State ha d not proved its case bey ond a re asonable doubt.

16When the State cross-e x am i n ed Br owne, the State pointed out the inconsistencies

betwee n his testimony and the statements that he made to the police during the interview, questioned why Br owne did not rela te the story about helping Anthony use the restroom during the interview, and asked why he did not tell his wife the story about helping Anthony use the restroom afte r he had been arr ested when she talked to him while he was in jail and i n s t ea d admitted to her that he had eng ag ed in inappropria te contact. Simi larly , during the State’s closing , the State urg ed the jury to disreg ard B rowne ’s ver sion of the events beca use Br owne chang ed his story sever al times and did
not mention helping Anthony g o to the restroom until day s afte r his arr est and day s afte r admitting to improperly

touching Anthony

during his interview with the police. The jury ’s deci s i o n t o co nvict Br owne of two char g es of indece ncy with a child, “off ense[s] to which the medical- car e defe n se is inapplicable,” “strong ly indicate[s] that the jury considere d and reje cted [Browne ]’s claim that his co n tact with” Anthony was for rea sons rela ted
to medical ca re b eca

use it shows that the jury “cle arly

. . . did not believe” Br owne’ s testimony that he touched Anthony only as a car etake r and t h at he did not penetr ate Anthony ’s anus, touch Anthony ’s sexual org an, or have Anthony touch his sexual org an. See Cornet II , 417 S.W .3d at 454-55. “B eca

use the totality of the rec ord reve als the jury ’s implicit reje ction of” Br owne’ s version of events, we cannot c onclude that there is a rea sonable probability that, but f or the alleg ed failure to reque st the medical-c are defe nse, the re sult of the trial would have been dif fer ent. Cf. id. For all of these r easons, we overr ule B rowne ’s first issue on appe al.

17Failure to Object I n his second issue on appea l, Br owne contends that his trial counsel was ineffe ctive for failing to object to six improper arg uments made by the State. As a preliminary matter we note t h at Browne’ s ineffe ctiveness claims are premised on his trial attorney ’s alleg ed failure s to ac t , and the rec ord befor e this Court is not sufficie ntly develope d to evalua te whether th o s e alleg ed failure s wer e part of a rea sonable trial strateg y b ec au s e his trial attorney has not “bee n g iven an opportunity to respond to” the claims. See Goodspee d , 187 S.W .3d at 392, 394; see also G arza v . State , 213 S.W .3d 338, 348 (Tex. Crim. App. 2007) (over ruling issue asser

ting that trial counsel

was ineffe ctive for failing to make hear say objection beca use rec ord was not sufficie ntly develope d and beca use attorney ’s “conduc t could have been part of a rea sonable trial strateg y ”); Cueva v. State , 339 S.W .3d 839, 892 (Tex. App.—Corpus Christi 2011, pet. ref ’d) (stating that defe nse attorney had strateg ic re as o n s for not objecting to State’s arg ument during its closing ); McPhe rson v. State , N o . 0 3

- 0 3

- 0 0 1 4 4

- C R , 2 0 0 4 T e x. A p p . L E X I S 7 8 7 , a

t * 2 0 ( T e x. A

p p . — A u s ti n Ja n . 2 9 , 2 0 0 4 , p e t. r e f

’ d ) (mem. op., not desig nated for publication) (explaining tha t “ permitting an improper comment to pass without objection would not nece ssarily rende r the entire repr esenta tion ineffe ctive”) ; Lee v. State , 874 S.W .2d 220, 225 (Tex. App.—Houston [1st Dist.] 1994, p et

. ref ’d) (conc luding that defe nse attorney ’s “fa ilure to object to the prosec utor’s comments was rea sonable strateg y ”). I n any event, we do not believe that the six comments exceede d the scope of per missibl e jury

arg ument. When prese nting this issue, Br owne notes that the cate g ories of proper jury arg ument

are as follo ws: “(1) summation of the evidenc e prese nted at trial, (2) rea sonable deduction draw n f r o m th a t e v id e n c e , ( 3 ) a

n s w e r to th e o p p o s in g c o u

n s e l’ s a r g u me n t, o r ( 4 ) a p le a f

o r la w e n f o r c e me n t. ”

18See Jack

son v. State , 1 7 S

. W.3d 664, 673 (Tex. Crim. App. 2000). I n light of those cate g ories, Br owne contends that the following statements made by the State in its closing arg ument during the g uilt or innocence phase w ere improper:

• At the end of

the day this man is a liar;

• What he did was he touc hed his penis to g ratify his sex ual desire s beca

use that’s the kind of g uy

he is; and

• Ultimately at the end of the day he is the most se lfish ty

pe of human being y ou’ll ever

see.

Simi larly , Br owne highlig hts that during its closing in the pun i s h m en t p h as e, the State made the following purportedly

improper state ments:

• There oug ht to not ever ever ever be any chanc e of him g etting out of prison and not just beca

use of

. . . Br owne, but for any other sick, perve rted soul like this who might think about touching some littl e kids. May be, just may

be they see w hat happe ns with him and they think twice about it, may be;

• [One of the jury panelists who was excused for cause ] commented that [Browne ] oug ht to be hung

. He had it rig ht. He h ad n ’t s een any of the evidenc e, but he had siz ed this up pretty g ood. And if the law allowed it I ’d ask y ou to do it, so -- it ought to happe n to him;

• Be cause of his sick desires, y ou have these children out here , God knows how many . We know two for sure at least.

When discussing the eff

ect of those statements, Br owne contends that they wer e i n fl ammatory and that since there was no instruction to disreg ard those statements, the j u ry gav e Br owne the ma x imum punis hment for a ll of the offe nses that he wa s convicted of

.

19Reg arding the first fo u r statements, Br owne contends that those comments wer e

improper because the S tate shoul d not “inject personal opini on about t he defenda nt’s char act er in jury arg ument” and should “not use pejora tive terms to ref

er to the defe ndant.” See Holland v. State , No. 14-07-00762-CR, 2009 Tex. App. L EXI S 10, at * 5 (Tex. App.—Houston [14t h Dist.] J an. 6, 2 0 09, no pet.) (mem. op., not desig nated for publication) (explaining that “[i] t is improper for a prosec utor to inject persona l opinion beca use jurors may infer that the prosec utor’s opinio n was based on outside information not available to the jury ” but that “a prosec utor may arg ue her opinion

conce rning issues in the case so long as the opinion is based on the evidenc e in the rec ord and does
not co n s t i t u t e unsworn testimony ”). I n addition, Br owne contends that the statement reg arding Br owne satisfy ing his sexual desire was also improper beca use “the r e was no evidenc e prese nted that

. . . Br owne was g ratify

ing his sexual desi re s ” and because prosec utors should not arg ue facts not in evidence

. By taking the stand and testify ing, Br owne’ s cre dibilit y was “in question, and the prosec ution ha [d] the rig ht to attack his testimony

. . . so long as the opinions of counsel are based upon the fac ts and infere nces provided by the evidenc e.” See Bradley v. State , 359 S.W .3d 912, 919 (Tex. App.—Houston [14t h Dist.] 2012, pet. ref ’d). The conflicts between Br o wne’ s testimony and Anthony ’s t estimony wer e sufficient to support the i nfer ence that Br owne was ly ing. See id. ; cf. Adams v. State , 813 S.W .2d 698, 699-700 (Tex. App.—Houston [1st Dist.] 1991, pet

. ref’d) (dete rmining that prosec utor’s statement during punishment phase that defe ndant was “a liar” was “a

rea sonable deduction from the evidenc e” when defe n d a n t’ s te s ti mo ny w a s c o n tr a

r y to p olice office r’s testimony ). I n addition, portions of Br owne’ s testimony wer e inconsistent with the statements that he made during his interview with the police. 20Reg arding the statement asser ting that Br owne touched Anthony to g ratify Br owne’ s sexual desires, evidenc e was prese nted duri n g trial that Br owne touched Anthony in a sexual

manner on sever al occa sions, that Br owne made Anthony touch Br owne’ s penis, that Br owne

encour ag ed Anthony to touch another child in a sexual manner , and that Br owne threa tened to hurt Anthony if Anthony did not touch the other child. This te stimony would support an infere nce that Br owne eng ag ed in the behavior at issue in order to g ratify his sexual desires. See DeLeon v. State , 77 S.W .3d 300, 312 (Tex. App.—Austin 2001 , p et

. ref’d) (explaining that intent may be inferr ed from ac ts, words, and conduct of defe ndant as we ll as circumstanc es in which de fenda nt’s actions

occur red) ; see also Abbott v. State , 196 S.W .3d 334, 341 (Tex. App.—Waco 2006, pet. ref ’d) (stating that jury could have inferr ed intent to g ratify sexual desire from defe ndant’s act of touching child’s g enitals).

When the State called Br owne “the most selfish ty pe of human being ,” the State also descr ibed Br owne’ s behavior as support for that asser tion. Primarily , the State asser ted that it wa s selfish of Br owne “as a g rown man” to take “adva ntag e of a four- y ear -old child for his own sexual satisfac tion.” The word “selfish” is define d as “conc erne d excessively or exclusively with oneself: seeking or conce ntrating on one’s own advanta g e, pleasure , or well-be ing without reg ard to others.” See W ebster’s Thi rd New Int’l Dictionar y 2060 (2002). Given the vulnera bility and innocence of y oung children and the near universal instinctual conce rn for protec ting the welfa re of children, evidenc e establishing that someone would take advantag e of a y oung child to satisfy his own sexual desires without conce rn for any detrimental im pact on the child would seem to support t he State’s deduc tion.

21Simi larly , when the State asser ted during the punishment phase that Br owne should be sent to pris o n fo r life for his actions and to discourag e “any other sick, perve rted soul like” Br owne from eng ag ing in the kinds of cr i m i n al ac tivity that Br owne did, the State was making a permissible rec ommendation “that the jury assess sever e punishm ent

. . . based on the evidenc e” sug g esting that Br owne committed multipl e sexual offe nses ag ainst Anthony and another child that testified during the punishment phase, see Holland , 2009 Tex. App. L EXI S 10, at *5 (explaining that St a te ma y r e c o mm e n d

th a t j u r y im p o s e s e v e r e p u

n is h me n t, in c lu d in g

li f e im p r is o n me n t, “ w h e n

it is b a s e d o n th e e v id e n c e ” ) , a n d ma k in g a p le a f

o r la w e n f o r c e me n t, s e e B o r

ja n v . S ta te , 7 8 7 S. W. 2 d 5 3 , 55 (Tex. Crim. App. 1990) (explaining that “[a] proper plea for law enfor ceme n t m ay take many forms, one of which is to arg ue the rela tionship betwee n the jury ’s verdic t an d t h e deter renc e of crime in g ener al”) ; Bautista v. State , 363 S.W .3d 259, 265 (Tex. App.—San Antonio 2012, no pet.) (stating that “[a] proper plea for l aw enforc ement m ay b e s t ated in sever al way s—as an arg ument about the impact of the jury ’s verdic t on the community , or the rela tionship betwee n the jury ’s verdic t and deter

renc e of c rime in g ener al”) . Moreove r, the e vidence supporting a n infere nce tha t Br owne touched Anthony to g ratify Br owne’ s sexual desires would also support the Stat e’ s char ac t er i z at i on of Br owne as a “sick, perve rted” person. The term “sick” has been define d as “spiritually or morally unsound or corr upt,” and th e t erm “per

verte d” is define d as “having or showi ng sexual desires that are considere d not normal or acc eptable.” See W ebster’s Third New Int’l Dictionary 1688, 2110 (2002).

Turning to the rema ining statements made by the State in its closing arg ument during the punishment phase, Br owne asser ts that the statement indicating that Anthony may not have

22been the only victim and that there wer e at least t wo v i cti ms wer e improper beca use they went bey ond crimes alleg ed in indictment and wer e not supported by the evidenc e. Cf. Ex parte Coleman , 350 S.W .3d 155, 160 (Tex. App.—San Antonio 2011, no pet.) (re cog nizi ng that “[i] t is well-settled” th a t p r o s e c u to r ma

y not ref er to e v id e n c e o u ts id e r e c o r d d u r in g a r g u me n t)

. D u

r in g th e p u

n is h me n t p h a s e , a s me n ti o n e d a

b o v e , a n o th e r v ic ti m te s ti f

ie d r e g a r d in g s e xu a l o f

f e n s e s th a t B r o w n e c o mm it

te d ag ainst her while she was at the d ay ca re. I n particula r, T.L

. testified that Br owne remove d her clothing a nd touched he r “bottom” e very day that she wa s at the day car e. Acc ording ly , befor e the State made the comments, testimony was introduced establishing that Br o wn e had victimiz ed Anthony and T.L

. an d that Br owne asked Anthony to sexually touch another child at the day car e. Moreove r, the evidenc e prese nted d u ri ng trial established that sever al children attended the day car e in the y ear s that it was open, and in the video rec ording of Br owne’ s interview with the police, t h e o ff

i ce rs discussed another potential victim from the day car e that was the subject of another investiga tion. Fur thermore , when asser

ting that the comments about the other v i ctims was i n ap p ropriate , Br owne relies on Melton v. State , but that case conce rned a situation in which t h e State attempted to convince a jury to convic t a defe ndant based on statements reg arding offe nses that

wer e not alleg ed in the indictment and that wer e “totally outside the rec ord.” See 713 S.W .2d 107, 1 1 4 ( T e x. Cr im

. A

p p . 1 9 8 6 )

. I

n th is c a s e , th e c o mm e n ts w e r e ma d e a f te r B r o w n e h a d b e e n c o n v ic te d

a n d r e f e r r e d to o f f e n s e s th a t w it n e s s e s te s ti f

ie d a b o u t. S e e T e x. Co d e Cr im

. Pr o c . a r t. 3 7

. 0 7 , § 3 ( a ) ( 1 ) (allowing State and defe ndant to offe r evidenc e during punishment phase perta ining “to any matter the court deems rele vant to sentenc ing,” including “evide nce of an extraneous crime or bad act that

23is shown bey ond a rea sonable doubt by evidenc e to have been committed by the defe ndant”) ;

cf. Cedillo v. State , 901 S.W .2d 624, 627 (Tex. App.—San Antonio 1995, no pet.) (explaining that differ ent policies g overn rele vancy deter minations duri n g p unishment phase)

. For these rea sons, we be lieve that the c omments did not ex cee d the scope of per missibl e jury

arg ument. Finally , Br owne points to the comments in which the State rec al l ed t hat a prior panelist indicated that individuals who sexually assault children should be g iven the death pe nalty and in which the State also asser ted that if the law allowed for the death penal t y i n t his ty pe of

case , it would ask the jury to impose that sentenc e on Br owne. Br owne urg es that t he comment

conce rning a jury panelist’s prior statem en t was improper beca use it was an arg ument based on something that was not in evidenc e in the case and that ref ere nce to an excluded panelist’s comments is “eg reg iously

improper.” As s u p p o rt for his arg ument that the comments wer e improper, Br owne relies o n A d a m s v . S ta te , 8 6 9 S

. W

. 2 d 6 7 4 ( T e x. A p p . — B e a u mo n t 1 9 9 4 , p e t. r e f

’ d )

. H o w e v e r , w e f

in d B r o w n e ’ s relianc e on Adams to be misplaced. I n Adams , two jury panelists wer e succe ssfully challeng ed for

cause afte r st ating that they knew some of t he witnesses t h at would be called i n that case and that they would g ive a lot of cre dit to their testimonies. Id. at 676-77. During the State’s closing in the g uilt or innocenc e phase, the State mentioned that the excluded panelists descr ibed the witnesses as

cre dible and indicated that they would believe those witnesses. Id. at 676. On appea l, the revie wing court determined that thos e comments did not fall within any of the c ateg ories of pe rmissible jury arg ument and wer e improper beca use the comments “sug g ested that a disputed fac tual matter—the truthfulness of the testimony of the State’s witnesses—wa s proved by the prec onceive d opinions of people in the sa me position as the members of the jury .” Id. at 677. 24I n this case, the State’ s ref ere nce to a comment by an ex cused jury panelist did not sug g est that resolution of any disputed fac tual m at t er was proven by the panelist’s prec onceive d opinion; on the contrary , the S tate reca lled the panelist’s persona l belief that people who sexually victimiz e children should be g iven the death penalty

. Moreove r, the statement was made in a more g lobal call for law enforce ment and for the i mpositi on of t he max imum sentenc e possi b l e in light of the seriousness of the crimes at issue. I n particula r, the State mentioned the excluded panelist’s belief, discussed how the law used to allow for the death penalty for case s in which defe ndants wer e convicted of sexually

assaulting children, me ntioned how the Supreme Court prohibited the dea th penalty in these case s under “evolving standards of dece ncy ,” descr ibed the offe nses at issue, asked the jury to consider the impact those crimes will have on Anthony , and reque sted the jury to impose the maxi mum punishment possible for the four offe nses. Although the comments by the State may not have been advisable, we cannot conclude that they exceede d the scope of permissible arg ument.

For the rea sons previously g iven, we conclude that the six statements ref err ed to by Br owne did not e x cee d the scope of permissible jury arg ument. Acc ording ly , we cannot conclude that Br owne’ s trial attorney was ineffe ctive fo r h aving failed to object to those statements. See R ic h a r d s v . S ta te , 9 1 2 S. W. 2 d 3 7 4 , 3 7 9 ( T e x. A p p . — H o u s to n [1 4 th D is t. ] 1 9 9 5 , p e t. r e f ’ d ) ( e xp la in in g that “an attorney ’s fa ilure to object to prope r ar g ument cannot be ineffe ctive assistanc e”)

.

Having deter

mined that Br owne has not shown that his trial att orney provided ineffe ctive assistance of counsel, we need not further addre ss the matter, but we do emphasize that ineffe ctiveness challeng es are considere d in light of “the totality of the repr esenta tion” provided by the attorney

. See Thompson v. State , 9 S.W .3d 808, 813 (Tex. Crim. App. 1999). Moreove r, we note

25that befor e trial Bro wn e’ s attorney moved to suppress the video rec ording of Br owne’ s interview

with the pol ice a

nd that during voir dire Browne ’s attorney eff ectively questioned t he prospective panelists reg arding any biases that they might have and moved to exclude sever al panelists for cause . During the trial, Br owne’ s attorney urg ed the district court to invoke the rule, succe ssfully objected
to testimony from Officer David S chroe der as hear say , objected to the admis sion of t he recording of Br owne’ s conver sation with the police in which he admitted to touching Anthony , objected to the admission of recording s of Browne that were m ade while he was talking to his wife while he was in jail, objected to questions posed by the State during Br o wn e’ s testimony , and broug ht to the district c ourt’s attention when a witness was in the courtroom in violation of the rule. I n addition, Br owne’ s attorney informed the district co u rt that Br owne wanted to testify and asked the di strict
court to admonish him. When making her closing arg ument, Br owne’ s attorney emphasized the high burden on the State, discussed the condit ions of Br owne’ s interview with the police and how he voluntarily chose to talk with the police, noted t h e l en gt h of time betwee n when the offe nses

wer e alleg ed to have occur red and when the outcry stat em en t wa s m ade, asser ted that Anthony testified that the alleg ed conduct involving o ra l contac t did not happen, and discussed Br owne’ s testimony stating that the events occur red whe n h e was acting as a car etake r by helping Anthony g o to the restroom.

Fur thermore , as we observe d in t h e first issue, Br owne’ s attorney pursued sever al defe nsive strateg ies during the first phase of the trial, including urg ing that the police com p el l ed Br owne to admi t t o co n d u ct that did not happen and that Anthony was persua ded to make false

acc usations or misconstrued events that occur red. Reg arding the theory that Br owne was compelled

26to confe ss to things that wer e not true, Br owne’ s attorney asser ted in her opening statement that the police are trained to “interr og ate someone to g et them to take the most innocent of ca re t ak ing ges t u re s and turn it into something dirty .” Simi larly , Br owne’ s attorney extensively questio n ed

one of the office rs prese nt during the in t er ro gat i o n, Offic er Schroede r, about his interrog ation techniques and training and about some of the techniques that he used on Br owne. Moreove r, during Offic er Schr oeder ’s testimony , Br owne’ s attorney emphasized that Br owne repe atedly denied that any thing happene d during the first two hours of the interrog ation. After Br owne decide d to testify , his attorney

questioned him a

bout w hy he admitted to imprope r conduc t during his interview with the police, and Br owne rela ted that he was exhausted during the interview, that the police frig htened him by “making accu s at i o n s” t hat were not true, that he admitt ed to having done thi ng s that wer e not true beca

use the police told him that it would “be better for” him, that he did not fee l like he was fre e to le ave the interview, that he only wrote the letter apolog izi ng to A nthony beca use the police said that writing a letter might help “with t he DA or . . . people that wer e ac cu sing” him, and that he mostly wrote what Offic er Shroeder sug g ested should be in the letter. I n addition, during her closing , Br owne’ s attorney emphasized the leng th and conditions of Br owne’ s interview with the police and e mphasized how he did not fee l free to leave the interview.

Reg arding the theory that Anthony misconstrued the bathroom incident, Br owne’ s attorney asked Offic er Schroede r if children might misint erpr et something that a car etake r does. Simi larly , when cross-e x amining Anthony ’s mother, Br owne’ s attorney attempted to undermine the

cre dibilit y

of the outcr

y by imply ing tha t Anthony might not reme mber the events clearly beca use the statement Anthony made conce rned events occur ring when Anthony was supposed to be taking

27a nap. During her cross-e x amination of Anthony , Br owne’ s attorney questioned Anthony about how

often he talked about the incidents with his mother and about who el s e he talked to about those
events. When a

nswering those questions, Anthony said that his mother talked about it “ like ever y month” or “eve ry wee k” and that he talked about the incidents with his dad, his uncle, and his g randmother

. Finally , in her closing arg ument, Br owne’ s attorney challeng ed the acc urac y of Anthony ’s memory , emphasized how various members of Anthony ’s family repe atedly talked with Anthony about the alleg ed incidents and might have confuse d him, and urg ed that the act of wiping

a “child’s behind” if taken out of context and if talked about by sever al people y ear s later could lead a child to believe that something ina ppropriate had happe ned. During the punishment phase, Br owne’ s attorney emphasized in her opening
statement Br owne’ s remorse and later questioned T.L

. reg arding her rec ollection of th e events framing her claim that Br owne assaulted her. When making her closing arg ument, Br o wn e’s attorney highlig hted that Br owne was 56 at the time of conviction and asked the jury to consider in their assessment how old he would be when he was rele ased. Finally , Br owne’ s attorney mentioned that Br owne expressed conce rn during his interview for how his a ctions had aff ecte d Anthony and An thony ’s family

. I n summation, “the totality of the repr esenta tion” provided by Br owne’s t ri al attorney establishes that the re prese ntation was not ineff ective. See id. For all of these r easons, we overr ule B rowne ’s sec ond issue on appea l.

Instruction to Cure

I n his third issue on appea l, Br owne contends that the district court “er red by failing
to expli citly direc t the jury to not consid er punishment when it was raised by the prosec utor in
28his argume nt” during the g uilt or innocenc e phase. During its closing , the State summarized the

evidenc e prese nted at trial demonstrating Br owne’ s criminal conduct. I n particula r, t h e S t ate discussed how Anthony told his mother that Br owne “put hi s fi n ger s i n my butt. He touched my p ri vates. He made me touch him, those things.” I mmediately afte r providing this sum m ar y , t h e State explained that “at the end of the day , if that’s all this case consisted of, that’s more than enoug h
to be bey ond a rea sonable doubt to send this man to prison for the rest of his life beca use he’s a child molester of the worst kind.”

As a preliminary matter, it does not appea r that Br owne prese rved this complaint for appea l. Although Br owne objected to the arg ument made by the State and asked for an instruction
to disreg ard the co m m en t s , he did not move for a mistrial afte r the instruction to disreg ard was g iven. The court of cr i m i n al appea ls has explained that the pref err ed proce dure for prese rving a

co m p l ai n t rega

rding alleg edly improper jury arg ument is for the party to object, to reque st an instruction to disreg ard, and to move for a mistrial if the instruction is insufficient. See Cruz v. State , 225 S

. W

. 3 d 546, 548 (Tex. Crim. App. 2007). Although the court explained that following the sequenc e in or der “is not e ssential to pr eser ve complaints for appellate revie w,” the court clar ified that “[t] he only essential require m en t to ensure prese rvation is a timely , specific reque st that is ref used by the trial court.” Id. ; see a l s o i d

. (explaining that if harm cause d by statements is incura ble, motion for mistrial is sufficie nt to prese rve err or without having to reque st instruction to disreg ard)

. I n this case , the district court implicitl y sustained Br owne’ s objection and then g ave an instruction to disreg ard as reque sted by Br owne, and Br owne made no indication that the instruction was insuffic ient.

29On appea l, Br owne acknow ledg es that the district court g ave an instruc tion to the jury

reg arding the statement above in response to his o b j ection, but he contends that the instruction was “ too vag ue to prope rly cure the er

ror.” We disag ree . The dist rict court instructed as follows: “L adies and g entlemen, y ou are to base y our decision only upon the evidenc e. You are specific ally prohibited from considering the eff ect of y our judgme nt at this time.” Although the instruction may not have used the word “disreg ard,” the direc tive was functionally equivalent beca use it direc ted the jury that it c ould not consider the amount of punishment that Br owne mig ht r ece ive (i.e. the eff ect

o f a j udg ment) if he was found g uilty

. I n any event, Br owne did not object to the instru ct i o n provided by

the district court. Assuming for the s ake of arg ument that the Br owne prese rved for revie w his complaint reg arding the S tate’s discussion of puni shment duri ng the guilt or i nnocenc e phase, we note that most of the case s relied on by Br owne and b y t h e S t ate as support for their arg uments pertinent to this issue are proce durally distinguishable. Specifica lly , thos e case s seem to involve situations in which there was a lesser- included offe nse and a g rea ter offe nse and in which there was

conce rn that providing information reg arding the level of the offe nses or the permissible punishment rang e for those nested offe nses might encour age “t he jury to convict on the basis of the amount of punishment, rathe r than the fac ts supporting g uilt.” See Bruton v. State , 92 1 S

. W

. 2 d 5 3 1 , 536 (Tex. App.—For

t Worth 1996, pet. ref

’d); see also Hart v. State , 5 8 1 S.W .2d 675, 678-79 (Tex. C ri m. App. 1979) (finding no err or wher e State mentioned that lesser- included offe nse wa s misdemeanor but arg ued for jury to deter m i n e that defe ndant was g uilty “on the fac ts”); McClure

v. State , 544 S.W .2d 390, 393 (Tex. Crim. App. 1976) (explaining that harm was not that jury was

30informed of punishment rang e and was inst ead arg um en t that defe ndant “should not be convicted

of manslaug hter beca

use it car ried a lesser punishment, but should be convicted of murder beca use of the g rea ter penalty ” and “wa s a plea to the jury to consider the amount of punishment, rath er than the fac ts”); Villarreal v. State , No. 05-12-00022- CR, 2013 Tex. App. L EXI S 7142, at *18 (Tex. App.—Dallas J une 11, 2013, no pet.) (not desig nated for publication) (conc luding tha t “State’s arg umen t p ermissibly urg ed the jury to convict Villarre al of the more serious third-deg ree felony char g ed in the indictment instead of the lesser- included offe nse and was responsive to e vidence in the rec ord”) ; Mendoza v. State , No. 05-11-01069- CR, 2012 Tex. App. L EXI S 10005, at *16 (Tex. App.—Dallas Dec

. 4, 2012, no pet.) (not desig nated for publication) (dete rmini n g that State’s arg ument did not urg e jury to convict of g rea ter offe n s e ra t h er t han lesser one “bec ause of the differ ence in punishment”); Freem an v. State , 985 S.W .2d 588, 589 (Tex. App.—B eaumont 1999, p et

. re f’d) (dec iding that reve rsible error ex isted wher e S tate informed jury during its closing that jury instruction would have char g e for lesser offe nse of indece ncy with child and ag g rava ted sexual assault and e x plained diffe rent punishment ra ng es for those offe nses). I n this case , there wer e no lesser- included offe nses, and the State only men tioned the available puni shment for ag g rava ted s exual assault of a child. Acc ording ly , the S t at e was not attempting to encour ag e the jury to convict Br owne of a g rea ter offe nse based on the punish m en t rang e rathe r than on the evidenc e. On the contra ry , the State’s arg ument occur red afte r summarizing the evidenc e prese nted during the trial and asser ted that the evidenc e was sufficie nt to convict Br owne of ag g rava ted sexual assault of a ch i l d

. See Jack son , 17 S.W .3d at 673 (explaining that summation of evidenc e is proper jury arg ument); Barnes v. State , No. 01-01-01086- CR, 2002 Tex.

31App. L EXI S 7602, at *3-4 (Tex. App.—Houston [1st Dist.] Oct. 24, 2002, no pet.) (not desig nated

for publication) (noting that not ever y ref ere nce to punishment during g uilt or innocenc e is improper and concluding that trial court did not err by overr uling objection to isolated statement “[i] f y a’l l convict him, he can be locked up” during closing beca use statement was “re sponsive to evidenc e”) ;

see also Denison v. State , 651 S.W .2d 754, 761 (Tex. Crim. App. 1983) (empha siz ing that challeng e to jury arg ument is considere d “in the context in which it appea rs”)

. Moreove r, d u ri n g v o i r dire, both the State and Br owne informed the potential jury members about the punishment rang e for the ag g rava ted-sexual-assa

ult charg es. Even as s u m i n g t h at t h e comment made by the State constituted improper jury arg ument, we note that immediately afte r the State made the statement at issue, the district court g ave the instruction to the jury reg arding the State’s comment. Ge nera lly speaking , “[a]n instruction to disreg ard” is sufficie nt to cure err or stemming from improper jury arg ument. Bautista , 363 S.W .3d
at 2 6 5 ; B r u ton , 921 S.W .2d at 535; see also Bruton , 921 S.W .2d at 535 (assuming for sake of arg ument that statement explaining that crime was second- deg ree felony and that punishment rang e

was two to twenty y ear s was improper jury arg ument). When the trial court provides an instruction
to disreg ard, the err or is reve rsible only when the statements are “so manifestly improper as t o inflame a nd prejudice the minds of the jury .” Bruton , 921 S.W .2d at 536. Nothing in the rec ord of this case sug g ests that the State’s ref ere nce to a possible punishment w as not cure d when the district c ourt g ave its instruction to disreg ard. The State only mentioned puni s h m en t once and did not ref er to punishment afte r the district court g ave its i n s truction to disreg ard. Compare Taylor v. State , No. 03-96-00396- CR, 1997 Tex. App. L EXI S

32300, at *3 (Tex. App.—Austin J an. 23, 1997, no pet.) (not desig nated for publication) (dete rmining

that any prejudicia l eff

ect stem m i n g from si ng le refer ence that lesser offense is misdemeanor and

car ried lower pun ishment was cure d by trial court’s instruction), and Bruton , 921 S.W .2d at 536 (conc luding that single ref ere nce to punishment rang e “wa s not of such a damning char acte r that it

w o u ld b e im

p o s s ib le to r e mo v e th e h a

r mf u l im p r e s s io n f r o m th e mi n d s o f th e ju

r o r s ” ) , wi th M

c Cl u r e , 544 S.W .2d at 393 (finding reve rsible err or wher e State repe atedly ref err ed to possible punishment “over objections from de fense counsel a nd instructions by

the cour t”). For all of these r easons, we overr ule B rowne ’s third issue on appe al.

Motion for Mistrial

I n his final issue on appea l, Br owne contends that the district court err ed by deny ing his moti on for a

mistrial. At the end of the State’ s closing a rg ument during the g uilt or innoc ence phase, the State asser

ted that Br owne “is a sick and sorry individual and he’s g uilty of six counts of child molesting” and reque sted the jury “to find him g uilty of eac h of them.” Be fore the State reque sted the jury to find Br owne g uilty , Br owne interrupted the State by say ing “Judge” but did not say any other words befor e the State finished i ts statement and clos ed

. After the S tate closed, the dis t ri ct co u rt re l eased the jury to allow it to beg in its delibera tions. Once the jury left the room, Br owne moved for a mistrial ba sed on the comments set out above. After considering the reque st, the district court denied the reque st for a mistrial. On appea l, Br owne contends that the State made the comments at the end of its closing in an attempt to preve nt him from objecting to the comments and from obtaining a ruling from the district court. Acc ording ly , Br owne contends that the district
court should have g rante d his reque st for a mistrial. I n response , the State asser ts that Br owne failed
33to prese rve any complaint reg arding those comments by failing to object when the statements wer e

made and by failing to reque st an instruction to disreg ard befor e reque sting a mistrial afte r the jury left the courtroom. See Dev oe v. State , 354 S.W .3d 457, 472 (Tex. Crim. App. 2011) (dete rmining that defe ndant prese rved nothing for revie w reg arding State’s conduct during trial b eca use defe ndant failed to “objec t at the ear liest opportunity ” and inste ad waited until jury had retire d to beg in delibera ting)

.

Be fore ruling on the motio n , the district court noted that the alleg edly improper
comments wer e made at t h e en d of the State’s closing and that Br owne was “pre cluded from making the objection” beca use the State “turne d around and sat down.” I n light of the district court’s char acte rization and of the record before this Court, we will assume for the s ake of arg ument that Br owne’ s complaint was pre serve d for a ppeal. Appellate courts revie w a trial court’s denial of a motion for mistrial under an abuseof- discretion standard of revie w. Archie v. State , 221 S.W .3d 695, 699 (Tex. Crim. App. 2007). Under that standard, a trial court’s ruling will only be deeme d an abuse of discretion if it is so clea rly

wr o n g as t o lie outside the zone of rea sonable disag ree ment, Lopez v. State , 86 S.W .3d 228, 23 0 (Tex

. C ri m . App. 2002), or is arbitra ry or unrea sonable, State v. Mec hler , 153 S.W .3d 435, 439 (Tex. Crim. App. 2005). A m istrial will only be required under extreme cir cumstance s where the prejudice is incura

ble. Archie , 221 S.W .3d at 699; see also Hawkins v. State , 13 5 S.W .3d 72, 77 (Tex. Crim. App. 2004) (explaining that mistrial may be used as “re medy for improper conduct that is ‘so p re judicial that expenditure of further time and expense would be wastef ul and futile’” (quoting Ladd v. State , 3 S.W .3d 547, 567 (Tex. Crim. App. 1999))).

34Although it is g ener ally inappropria te f o r th e St a te to u s e derog atory char acte rizations of a defe ndant, revie wing courts consistently overr ule claims asser

ting that the State used improper char acte rizations when those char acte rizations are supp o rt ed by the rec ord. See, e.g. , Barnard v. State , 730 S.W .2d 703, 718 (Tex. Crim. App. 1987) (conc luding that State’s d e s cription of defe ndant

as “mea n perso n ” wa s re asonable deduction from evidenc e); McKay v. State , 707 S.W .2d 23, 36 (Tex. Crim. App. 1985) (dete rmining that t h er e wa s n o err or stemming from prosec utor’s evalua tion of defe ndant as “mora l vacuum” and as having no hear t or conscie nce) ; W

illiams v. State , No. 02-03-00313- CR, 2005 T ex . Ap p . L EXI S 1870, at *12, *14-15 (Tex. App.—For t Worth Mar. 10, 2005, pet. ref

’d) (mem. op., not desig nated for publication) (explaining that statement that defe ndant was “plain bad” was proper ly supported by evidenc e of brutal assault); Resende z v. State , No. 14-99-01374- CR, 2001 Tex. App. L EXI S 4614, at *2-4 (Tex. App.—Houston [14t h Dist.] J uly 12, 2001, pet. ref

’d) (not desig nated for publication) (conc luding that char acte rization of defe ndant as “monster” was supported by repe ated sexual assaults of y oung rel a ti v e ); Ahmed v. State , No. 05-97-00874- CR, 1999 Tex. App. L EXI S 6519, at *29-30 (Tex. App.—Dallas Aug

. 30, 1999, p et

. ref’d) (not desig nated for publication) (dete rmining that char acte rization of defe ndant as “sociopa th” was supported by fac ts of crime, b ad re p u tation, and school suspensions); Belton v. State , 900 S. W

. 2 d 886, 898 (Tex. App.—El Paso 1995, pet. ref ’d) (conc luding that ref

ere nce to defe ndant as “ animal” wa s rea sonable de duction from evide nce)

.

I n this case , the State re ferred to Br owne as “a sick and sorry individual.” One definition for “sick,” as mentioned ear lier, explains that the term means “spiritually or morally unsound or corr

upt,” and “sorr

y ” is define d as “inspiri n g s o rr o w, pity , scorn, or ridicule.” See

35W

ebster’s Third New Int’l Dictionary 2110, 2175 (2002). As summarized above, the evidenc e prese nted during the trial demonstrated that Br owne sexually assaulted and inappropria tely touched Anthony and another child on multipl e occa sions at the day car e run by his wife. I n fac t, both victims testified that the incidents occur red often. Fur

thermore , Anthony testified that Br owne encour ag ed him to molest one of the ot her children at the day car e and threa tened to hurt him if he d id not. I n light of the evidenc e prese nted at trial, we must conclude that the statements made by the State wer e supported by the rec ord and, there fore , cannot conclude that the district c ourt abused its discr etion by deny ing B rowne ’s motion for mistrial.

For these re asons, we ove rrule B rowne ’s final issue on a ppeal.

CONCLUSION Having overr

uled all four of Br owne’ s issues on appea l, we aff irm the district court’s judgme nts of conviction.

__________________________________________ David Pury ear , J ustice Be fore J ustices Pury ear , Goodwin, and B ourland Affir med Filed: De cembe r 31, 2015 Publis h

36