David Browne v. State
483 S.W.3d 183
| Tex. App. | 2015Background
- David Browne, operator at his wife's in-home daycare, was charged with 4 counts of aggravated sexual assault of a child and 2 counts of indecency with a child; jury acquitted two counts (oral contact) and convicted four counts (digital anal penetration and indecency by contact).
- Allegations involved repeated sexual contact with a child (“Anthony”) and testimony from another child at punishment phase.
- Browne gave a lengthy recorded police interview in which he initially denied anal contact but later admitted some inappropriate touching; he also wrote an apology letter and spoke to his wife in jail (recordings admitted).
- At trial Browne testified he was a caretaker who wiped the child after a bathroom accident and denied any anal penetration; the jury rejected that defense and credited the child’s testimony.
- Browne appealed raising four issues: (1) ineffective assistance for failing to request a medical-care jury instruction on aggravated sexual assault; (2) ineffective assistance for failing to object to alleged improper prosecutorial argument; (3) trial court error for not giving a stronger curative instruction when prosecution mentioned punishment during guilt/innocence phase; and (4) denial of mistrial after prosecutor’s allegedly improper closing remark.
Issues
| Issue | Browne's Argument | State's/Respondent's Argument | Held |
|---|---|---|---|
| 1. Failure to request medical-care instruction on aggravated sexual assault | Trial counsel was ineffective for not requesting the medical-care (confession-and-avoidance) jury charge when Browne claimed he was wiping the child | Browne’s testimony did not admit the type of penetration recognized in Cornet/Villa; record supports conviction and medical-care would not have changed result | Court: No ineffective assistance; counsel’s omission not shown unreasonable and, even if error, harmless given convictions on offenses not covered by the defense and jury disbelief of caretaking story |
| 2. Failure to object to prosecutorial argument (six statements) | Trial counsel was ineffective for not objecting to inflammatory and opinionated remarks (e.g., calling Browne a liar, selfish, sick, perverted) | Prosecutor’s comments were reasonable deductions from the evidence, responsive to Browne’s testimony, or proper pleas for law enforcement/deterrence | Court: No ineffective assistance; contested remarks were within permissible argument or supported by record |
| 3. Claim the court erred by not curing prosecutor’s mention of punishment during guilt/innocence | The State impermissibly urged punishment in guilt phase and the court’s curative instruction was vague/insufficient | The trial court instructed the jury to base decision only on evidence and not consider effect of judgment; the lone comment was a summation tied to evidence and was cured | Court: No reversible error; objection was sustained and a functional instruction to not consider punishment was given, curing any harm |
| 4. Denial of mistrial after prosecutor’s final remark at closing | Prosecutor used last-minute characterizations to prevent objection; denial of mistrial was error | Remarks were supported by the record; even if imperfect, they did not cause incurable prejudice requiring mistrial | Court: No abuse of discretion in denying mistrial; remarks were supported by evidence and not so prejudicial as to require mistrial |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective-assistance test)
- Cornet v. State (Cornet I), 359 S.W.3d 217 (Tex. Crim. App.) (discusses when digital/other contact can qualify as penetration and medical-care defense)
- Cornet v. State (Cornet II), 417 S.W.3d 446 (Tex. Crim. App.) (clarifies harmfulness/harmlessness of omitting medical-care instruction in multi-count prosecutions)
- Villa v. State, 417 S.W.3d 455 (Tex. Crim. App.) (medical-care defense as confession-and-avoidance; failure to request instruction can be reversible when defensive evidence admits all elements)
- Jackson v. State, 17 S.W.3d 664 (permissible categories of jury argument and limits on prosecutorial comment)