Opinion
No. 11-16-00028-CR
01-31-2018
PATRICK KARL JENNINGS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 441st District Court Midland County, Texas
Trial Court Cause No. CR43564
MEMORANDUM OPINION
The jury convicted Patrick Karl Jennings of continuous sexual abuse of children and assessed his punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of forty-seven years. See TEX. PENAL CODE ANN. § 21.02 (West Supp. 2017). The jury also assessed a fine of $10,000. Appellant challenges his conviction and punishment in six issues. In addition to challenging the sufficiency of the evidence supporting his conviction, Appellant challenges various evidentiary rulings made by the trial court. He also contends that the prosecutor made improper closing arguments at the conclusion of both the guilt/innocence phase and the punishment phase. We affirm.
Background Facts
Appellant was indicted for continuous sexual abuse of young children for sexually abusing four children younger than fourteen years old from January 1, 2010, through September 24, 2010. The four children were J.S., T.J., TR.J., and D.J. The indictment alleged that Appellant committed indecency by contact with all four children by touching their genitals. See id. §§ 21.02(b), (c)(2), & 21.11(a)(1). The indictment further alleged that Appellant caused T.J. and TR. J. to touch Appellant's genitals.
"T.J." and "TR.J." are twin sisters. Their first names are spelled the same with one exception—"TR.J." has an "R" in her first name that "T.J." does not have. Their middle names also begin with the same letter. Accordingly, we are identifying the twins as "T.J." and "TR.J." to distinguish between them.
T.J. was fourteen at the time of trial. She testified that in 2010 when she was nine, her mother was incarcerated. T.J. and her siblings lived in the same house with her aunt and her aunt's children. Appellant, an adult relative, also stayed at the house during this period. T.J. testified that Appellant would "touch" her on occasion during this period with his hands and "his number one," the term that T.J. used to identify Appellant's penis. T.J. testified that Appellant touched her "number one," the term that she used for the area of her body from which she urinated, with his "number one" and his hands on multiple occasions. T.J. stated that Appellant touched her both over her clothing and underneath it. T.J. also testified that, on at least one occasion, "[s]ome white stuff" came out of Appellant's "number one" when he touched her with it. She also testified that, on one occasion, Appellant tried to make her suck his "number one." T.J. also testified that Appellant tried to make her touch his "number one" with her hand but that she refused to do so. Additionally, T.J. testified that she saw Appellant touch TR.J. on one occasion. T.J. observed Appellant on top of TR.J. but could not see exactly what he was doing.
In 2010, T.J. told the aunt that she was living with about what Appellant was doing to her, but nothing happened. T.J. did not report Appellant's conduct again until she told a church youth leader, Abbey Phillips. T.J. testified that she told Phillips when Phillips had talked about being molested herself. Phillips informed T.J. that she would have to report Appellant's conduct to the authorities. As a result of Phillips's report, the police and CPS began an investigation of Appellant that eventually led to the filing of criminal charges against Appellant.
T.J. denied that anyone told her what to say about what Appellant had done to her. T.J. testified that sometimes she did not disclose all of the things that Appellant did to her when discussing it with officials because she was embarrassed and she had just met the people to whom she was talking. For example, she did not tell some of the interviewers that Appellant had touched her "number one" with his "number one" or that "white stuff" had come out of his "number one."
TR.J. (T.J.'s twin sister) was also fourteen at the time of trial. She testified that in 2010, while her mother was incarcerated, Appellant would touch her with his hand on her "private part," the term that she used for the area of her body from which she urinated. TR.J. testified that Appellant touched her in this manner on multiple occasions both over and underneath her clothing. She also testified about an occasion when Appellant forced her to touch his "private area" with her hand. TR.J. also stated that white, slimy stuff came out of Appellant's private area. She did not tell some of the interviewers about seeing the white stuff coming out because she was scared and embarrassed to talk about it. TR.J. also observed Appellant touching T.J. inappropriately.
J.S. is the cousin of T.J. and TR.J. She was also fourteen at the time of trial and nine in 2010. J.S. testified that Appellant came into the twins' room where she was sleeping and touched her "no-no square," which she indicated was the area between her legs. He touched her "no-no square" with his hands both over and underneath her clothing on multiple occasions. J.S. also testified that he touched her butt with his "middle part" or "wiener." J.S. also indicated that she did not fully report the things that Appellant had done to her to interviewers because she did not trust very many people at the time.
D.J. is the older brother of T.J. and TR.J. He was fifteen at the time of trial and ten in 2010. He testified about a single incident occurring in 2010 when Appellant lay on D.J.'s bed and touched D.J.'s penis over his clothing. D.J. did not tell anyone about this incident until much later.
Sufficiency of the Evidence and Due Process
In his first issue, Appellant challenges the sufficiency of the evidence supporting his conviction. He contends that the evidence was legally and factually insufficient to support his conviction. We review a challenge to the sufficiency of the evidence, whether denominated as a legal or as a factual sufficiency claim, under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288-89 (Tex. App.—Eastland 2010, pet. ref'd). Under the Jackson standard, we review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
When conducting a sufficiency review, we consider all the evidence admitted at trial, including pieces of evidence that may have been improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder's role as the sole judge of the witnesses' credibility and the weight their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the factfinder's duty to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at 778. When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the verdict and defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
Section 21.02(b) provides that a person commits an offense if, during a period that is thirty or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims, and at the time of commission of each act, the actor is seventeen years old or older and the victim is younger than fourteen years old. See PENAL § 21.02(b). As relevant to this case, the statute's definition of an act of sexual abuse includes indecency with a child under Section 21.11(a)(1). See id. § 21.02(c)(2). Section 21.11(a)(1) provides that a person commits an offense by engaging in sexual contact with a child or causing a child to engage in sexual contact. See id. § 21.11(a)(1). As relevant to this case, sexual contact includes touching any part of the genitals of a child or touching any part of the body of a child with any part of the genitals of the actor with the intent to arouse or gratify the sexual desire of any person. See id. § 1.11(c).
Section 21.02(c)(2) excludes touching the breast of child as a predicate offense for continuous sexual abuse of a young child or children. This exception is not applicable to this case.
Appellant does not assert that there is an omission of evidence of any of the elements of the charged offense. Instead, he contends that the evidence supporting his conviction is insufficient because it was conflicting and unreliable. Appellant bases this contention on the fact that the victims gave differing accounts about Appellant's conduct to the various investigators and adults that visited with them.
We disagree with Appellant's assessment of the evidence. The uncorroborated testimony of a child victim is alone sufficient to support a conviction for a sexual offense. See TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2017) (providing that if victim is age seventeen or younger, requirement that victim inform another person of alleged offense within one year does not apply); Chapman v. State, 349 S.W.3d 241, 245 (Tex. App.—Eastland 2011, pet. ref'd). Furthermore, corroboration of the victim's testimony by medical or physical evidence is not required. Gonzalez Soto v. State, 267 S.W.3d 327, 332 (Tex. App. —Corpus Christi 2008, no pet.); see Cantu v. State, 366 S.W.3d 771, 775-76 (Tex. App.—Amarillo 2012, no pet.); Lee v. State, 176 S.W.3d 452, 458 (Tex. App.—Houston [1st Dist.] 2004), aff'd, 206 S.W.3d 620 (Tex. Crim. App. 2006).
Viewing the evidence in the light most favorable to the jury's verdict, we conclude that a rational trier of fact could have found that Appellant committed continuous sexual abuse of young children as alleged in the indictment. J.S., T.J., TR.J., and D.J testified to occurrences of sexual contact committed by Appellant during the period of time alleged in the indictment. The fact that their report of Appellant's conduct was delayed is of little consequence because the applicable statute specifies that a person that is under seventeen years of age is not required to make an outcry within any particular period of time.
To the extent that there were any inconsistences or discrepancies in the children's testimony, it was the jury's exclusive role to resolve those inconsistences. We presume that the factfinder resolved the conflicts in favor of the verdict, and we defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778. In that regard, the State adduced testimony that the children were scared and embarrassed and thereby reluctant to fully disclose all of the details of Appellant's conduct when interviewed initially. Thus, after considering the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found the elements of continuous sexual abuse of young children beyond a reasonable doubt. We overrule Appellant's first issue.
Appellant asserts in his second issue that his due process rights were violated because his conviction was based upon insufficient evidence. The Due Process Clause of the Fourteenth Amendment guarantees that no person may be convicted of a criminal offense and denied his liberty unless his criminal responsibility for the offense is proved beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970); Alvarado v. State, 912 S.W.2d 199, 206-07 (Tex. Crim. App. 1995); see U.S. CONST. amend. XIV. In addressing his first issue, we have determined that the evidence was sufficient to support Appellant's conviction. Therefore, Appellant was not denied due process of law as alleged in his second issue. We overrule Appellant's second issue.
Motion for Mistrial
In his third issue, Appellant asserts that the trial court erred in denying his motion for mistrial when one of the child victims testified that Appellant had "been locked up." The testimony occurred when the prosecutor asked T.J. if she was scared of Appellant. When T.J. answered that she was scared of Appellant because she felt like he would come after her, the prosecutor asked her why she felt that way. T.J. responded, "Because we're in court right now and he's, like -- he's been locked up." Appellant's trial counsel objected that the testimony violated Appellant's motion in limine, and he requested a mistrial. The trial court instructed the jury to disregard the child's answer. However, the trial court denied Appellant's motion for mistrial.
A mistrial is a device used to halt trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile. Young v. State, 283 S.W.3d 854, 878 (Tex. Crim. App. 2009); Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). We review the denial of a motion for mistrial for an abuse of discretion. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). A trial court does not abuse its discretion unless its decision falls outside the zone of reasonable disagreement. Id. "Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required." Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). The determination of whether an error necessitates a mistrial must be made by examining the facts of each case. Ladd, 3 S.W.3d at 567.
A mention that a defendant has been incarcerated can potentially invalidate his right to the presumption of innocence. See Randle v. State, 826 S.W.2d 943, 946 (Tex. Crim. App. 1992). However, a witness's reference to a defendant's criminal history or previous incarceration, standing alone, generally is cured by a prompt jury instruction to disregard. See Ladd, 3 S.W.3d at 571; Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992). We conclude that the trial court did not abuse its discretion in denying the motion for mistrial. The statement by the child witness did not appear to be calculated to inflame the minds of the jury or of such a damning character as to make it impossible to remove the harmful impression from the jurors' minds with the instruction to disregard. We overrule Appellant's third issue.
Expert Testimony
Appellant asserts in his fourth issue that the trial court erred in allowing Michael Margolis, a child forensic interviewer, to testify as an expert. The trial court's ruling on the admissibility of expert testimony is reviewed for an abuse of discretion. Russeau v. State, 291 S.W.3d 426, 438 (Tex. Crim. App. 2009). The admissibility of expert testimony is governed by Texas Rule of Evidence 702, which provides that "[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue." TEX. R. EVID. 702. Before the trial court admits expert testimony under Rule 702, it must be satisfied that the witness qualifies as an expert by reason of his knowledge, skill, experience, training, or education. Davis v. State, 329 S.W.3d 798, 813 (Tex. Crim. App. 2010).
The question of whether a witness is qualified to testify as an expert is a two-part inquiry. Id. A witness must first have a sufficient background in the particular field, and the trial court must then determine whether that background "goes to the matter on which the witness is to give an opinion." Id. The proponent of the expert testimony must establish that the witness has knowledge, skill, experience, training, or education regarding the specific issue, and "[t]he focus is on the fit between the subject matter at issue and the expert's familiarity with it." Id. Courts should consider whether the field of expertise is complex because the degree of education, training, or experience a witness should have before qualifying as an expert is directly related to the complexity of the field about which the expert proposes to testify. Rodgers v. State, 205 S.W.3d 525, 528 (Tex. Crim. App. 2006). "If the expert evidence is close to the jury's common understanding, the witness's qualifications are less important than when the evidence is well outside the jury's own experience." Id. "Because the spectrum of education, skill, and training is so wide, a trial court has great discretion in determining whether a witness possesses appropriate qualifications as an expert on a specific topic in a particular case." Davis, 329 S.W.3d at 813; Rodgers, 205 S.W.3d at 527-28.
Margolis was a forensic interviewer at the Midland Rape Crisis and Children's Advocacy Center. Margolis testified that he has a bachelor's degree in criminal justice from the University of North Texas and has received training as a forensic interviewer through the Children's Advocacy Center of Texas. At the time that he testified at trial, Margolis had interviewed 517 children based upon allegations of sexual abuse, physical abuse, and neglect. The State tendered Margolis as an expert "in the common psychological and behavior characteristics of child sexual abuse victims." Appellant objected to Margolis testifying as an expert because he did not have a degree in psychology and did not have a doctoral degree "in anything." Appellant also argued that Margolis was not qualified as an expert because he had not written any books or identified the training that he had received. The State relied upon the over 500 child interviews that Margolis had conducted—the majority of which were alleged victims of child sexual abuse.
The trial court overruled Appellant's objection to Margolis's qualifications. Margolis subsequently testified about some of the reasons why a child sexual assault victim might delay making an outcry. He also testified that child victims will sometime make a "tentative disclosure" wherein they only disclose little bits of information about the actual abuse in an effort to say just enough to make the abuse stop. Margolis also explained that children are hesitant to talk to strangers about a sexual experience. Margolis then testified about the forensic interviews he conducted with T.J., TR.J., and D.J. He did not believe that any of the children had fabricated the abuse that Appellant committed against them or that the children had been coached.
As noted previously, Margolis had conducted over 500 forensic interviews of children by the time that he testified at trial. The trial court reasonably could have concluded that, as a result of his experience and training, Margolis had a sufficient background in the field of forensic interviewing such that he could provide expert testimony concerning the common psychological and behavioral characteristics of child sexual abuse victims. Accordingly, we conclude that the trial court did not abuse its discretion in permitting Margolis to testify as an expert. We overrule Appellant's fourth issue.
Appellant argues on appeal that Margolis had "scant" training and experience at the time that he interviewed the child victims. Appellant makes this contention based on information he obtained from Margolis on cross-examination. The cross-examination occurred after the trial court had already ruled that Margolis could testify as an expert and after Margolis had provided the expert testimony that Appellant appears to be challenging on appeal.
CPS Records
In his fifth issue, Appellant asserts that the trial court should have allowed information contained in "hundreds of pages" of CPS records into evidence. He contends that the CPS records contained "false, unfounded, retracted, and fictitious reports" made by the victims. Appellant asserts that this information was necessary to establish the victim's "lack of credibility" and their "propensity to lie, fabricate, and later recant." Appellant asserts that this evidence was admissible under Rules 404 and 405(b) of the Texas Rules of Evidence. See TEX. R. EVID. 404, 405(b). He additionally asserts that the evidence should have been admitted under the Confrontation Clause of the Sixth Amendment of the United States Constitution, which guarantees an accused the right to confront witnesses against him. We disagree.
Appellant did not offer the actual pages of CPS records in a bill of review. However, Appellant presented the information contained in the records to the trial court in proceedings conducted outside of the record.
We review a trial court's ruling on admissibility of evidence for an abuse of discretion. Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim. App. 2010). We will uphold the trial court's decision unless it lies outside the zone of reasonable disagreement. Salazar v. State, 38 S.W.3d 141, 153-54 (Tex. Crim. App. 2001). We will uphold an evidentiary ruling on appeal if it is correct on any theory of law that finds support in the record. Gonzalez v. State, 195 S.W.3d 114, 126 (Tex. Crim. App. 2006); Dering v. State, 465 S.W.3d 668, 670-71 (Tex. App.—Eastland 2015, no pet.).
Generally, the right to present evidence and to cross-examine witnesses under the Sixth Amendment does not conflict with the corresponding rights under state evidentiary rules. Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim. App. 2009); see Miller v. State, 36 S.W.3d 503, 507 (Tex. Crim. App. 2001) ("A defendant has a fundamental right to present evidence of a defense as long as the evidence is relevant and is not excluded by an established evidentiary rule."). In Hammer, the Texas Court of Criminal Appeals addressed the admission of evidence of prior false accusations in "sexual assaultive cases." 296 S.W.3d at 564. "[T]here is an important distinction between an attack on the general credibility of a witness and a more particular attack on credibility that reveals 'possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand.'" Id. at 562 (quoting Davis v. Alaska, 415 U.S. 308, 316 (1974)). A defendant does not have "an absolute constitutional right to impeach the general credibility of a witness in any fashion that he chooses." Id. However, the exposure of a witness's motivation in testifying is proper to show the witness's possible motives, bias, and prejudice. Id. at 562-63.
Rule 608(b) provides that "a party may not inquire into or offer extrinsic evidence to prove specific instances of the witness's conduct in order to attack or support the witness's character for truthfulness." TEX. R. EVID. 608(b). Unlike some jurisdictions, Texas has not created a per se exception to Rule 608(b)'s general prohibition against impeachment with specific instances of conduct to admit evidence of a sex-offense complainant's prior false allegations of abuse or molestation. Hammer, 296 S.W.3d at 564 (citing Lopez v. State, 18 S.W.3d 220, 225 (Tex. Crim. App. 2000)). Thus, evidence of prior false allegations is not admissible if offered to attack the victim's credibility in general. Id. at 565. "If, however, the cross-examiner offers evidence of a prior false accusation . . . for some purpose other than a propensity attack upon the witness's general character for truthfulness, it may well be admissible under our state evidentiary rules." Id. Nonetheless, "[w]ithout proof that the prior allegation was false or that the two accusations were similar, the evidence fails to have any probative value in impeaching [the complainant's] credibility." Lopez, 18 S.W.3d at 226.
The record does not reflect that Appellant had any purpose for offering the allegedly prior false allegations other than to attack the credibility of the victims in general. Appellant asserted at trial that the children had made false allegations over the years and that he needed to be able to cross-examine them about those allegations in order to "establish the fact that they're proven fabricators." As noted in Hammer, this is not a proper purpose for admitting prior false allegations. The proffered testimony was not offered to show the victims' bias or motive but rather was offered to attack the victims' credibility in general by showing that they had made other allegations of abuse that were purportedly false. "A sexual assault complainant is not a volunteer for an exercise in character assassination." Hammer, 296 S.W.3d at 564. Furthermore, the proffered testimony did not show that the prior allegations of abuse were actually false or that they were made under similar circumstances as the allegations in this case. For example, Appellant wanted to offer evidence that the child victims had allegedly made false accusations that their mothers had physically abused them. As noted by the trial court, in many of the matters investigated by CPS, the initial reports to CPS were not made by the victims themselves but rather by other individuals including other children. Accordingly, we conclude that the trial court did not abuse its discretion in denying admission of evidence of the previous allegations of abuse. See TEX. R. EVID. 608(b); Hammer, 296 S.W.3d at 564-66; Lopez, 18 S.W.3d at 226.
Appellant additionally sought to admit evidence through CPS records that D.J. had committed acts of a sexual nature with other children away from the home and that he had been sexually abused by another family member. Appellant also wanted to show that one of the female victims had allegedly been a victim of sexual abuse by another family member. Evidence regarding the sexual history or promiscuity of a sexual assault victim is generally inadmissible. See TEX. R. EVID. 412(a). Rule 412 provides some exceptions to this general rule, including showing motive or bias. See TEX. R. EVID. 412(b)(2)(C). However, the motive or bias contemplated by the rule is motive or bias toward the defendant. Hammer, 296 S.W.3d at 556. The record does not reflect that Appellant sought to offer this evidence to show bias toward him but rather to attack the victims' credibility in general. Accordingly, the trial court did not abuse its discretion in not allowing evidence of the victims' sexual history. We overrule Appellant's fifth issue.
Jury Argument
In his sixth issue, Appellant asserts that the prosecutor made improper closing argument in three instances. Permissible jury argument falls into one of four areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) an answer to the argument of opposing counsel; or (4) a plea for law enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008); Cannady v. State, 11 S.W.3d 205, 213 (Tex. Crim. App. 2000). Even when an argument exceeds the permissible bounds of these approved areas, it is not reversible unless the argument is extreme or manifestly improper, violates a mandatory statute, or injects into the trial new facts harmful to the accused. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). "The remarks must have been a willful and calculated effort on the part of the State to deprive Appellant of a fair and impartial trial." Id. (citing Cantu v. State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997)). We must "review the argument in the context of the entire argument and not in isolation." Sennett v. State, 406 S.W.3d 661, 670 (Tex. App.—Eastland 2013, no pet.).
The first and second allegations of improper jury argument occurred during closing argument at the conclusion of the guilt/innocence phase. The first instance occurred when the prosecutor argued that a nine-year-old child seeing an adult male ejaculate for the first time would have an unrealistic view of the amount. The prosecutor made this argument in response to defense counsel's preceding argument that one of the children's description of the amount was outrageous. Appellant objected to the prosecutor's argument on the basis that there was no evidence that this was the first time any of the children saw anyone ejaculate. The prosecutor asserted that there was evidence of this fact and that it was a reasonable inference from the evidence. We agree. TR.J. testified on redirect that she had not previously seen someone ejaculate. Accordingly, this argument was not improper because it was a reasonable summation of the evidence, and the trial court did not err in permitting it.
The second instance occurred when the prosecutor argued, "[P]eople need motives to lie. There has to be a reason for the lie. They have to get something out of it. Did you hear any evidence on that?" In making this argument, the prosecutor was suggesting to the jury that there was no evidence that the victims had a reason to lie about the allegations they had made against Appellant. Appellant objected to the argument on the basis that it was a comment on his failure to testify. We disagree with Appellant's contention.
In determining whether the State's comment constituted an impermissible reference to an accused's failure to testify, the language must be viewed from the jury's standpoint and the implication must be clear. Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001). The test is whether the language used was "manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant's failure to testify." Id.; see Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007). Paramount to the analysis is the context in which the comment is made. Id. In this instance, the prosecutor's argument can reasonably be construed as simply a comment on the absence of evidence of any reason for the victims to lie about the allegations rather than faulting Appellant for failing to testify. Accordingly, the trial court did not err in overruling Appellant's objection to the prosecutor's argument.
The third instance that Appellant challenges occurred when the prosecutor made the following argument:
What do you do with someone who has done something to these kids that by its very nature a reasonable person can infer will haunt them for the rest of their lives?Appellant objected to this argument on the basis that there was no expert testimony concerning the extent of the emotional injury that the victims would suffer. After the trial court overruled Appellant's objection, the prosecutor argued that the jury should sentence Appellant to life in prison.
Make no mistake about it, ladies and gentlemen. [Appellant] has sentenced each one of those kids to a lifetime of dealing with the emotional and psychological repercussions of his actions.
Appellant asserts on appeal that the prosecutor's argument was unduly prejudicial and exceeded the permissible bounds of acceptable closing argument. We disagree. The argument that Appellant's actions would have long-term effects on the child victims is a reasonable deduction from the evidence. See Brown, 270 S.W.3d at 570. Furthermore, the prosecutor's argument asking the jury to consider the impact of Appellant's conduct on the victims in seeking a maximum sentence is a permissible plea for law enforcement. See Browne v. State, 483 S.W.3d 183, 198-99 (Tex. App.—Austin 2015, no pet.) (The State is permitted to request the jury to consider the impact of a crime on the victim in recommending a severe punishment.). We overrule Appellant's sixth issue.
This Court's Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
JUSTICE January 31, 2018 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Willson, J.,
Bailey, J., and Wright, S.C.J.
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.