Bryant v. State

340 S.W.3d 1, 2010 WL 3212126
CourtCourt of Appeals of Texas
DecidedApril 6, 2011
Docket01-09-00200-CR
StatusPublished
Cited by49 cases

This text of 340 S.W.3d 1 (Bryant v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bryant v. State, 340 S.W.3d 1, 2010 WL 3212126 (Tex. Ct. App. 2011).

Opinion

OPINION

MICHAEL MASSENGALE, Justice.

A jury convicted appellant Charles Edward Bryant of aggravated sexual assault of a child and assessed punishment at 18 years’ imprisonment. See Tex. Penal Code Ann. § 22.021 (Vernon Supp. 2009). 1 Bryant brings four issues on appeal. In his first three issues, he challenges the trial court’s admission of testimony from a investigator about (1) the concept of sexual predators “grooming” their victims, (2) his belief at the time he prepared an affidavit to support a warrant for Bryant’s arrest that an offense had occurred, and (3) the fact that Bryant never returned his phone calls. In his fourth issue, Bryant argues that the trial court erred by failing to grant a mistrial after the State improperly suggested in closing argument that Bryant may have committed prior offenses.

We affirm.

BACKGROUND

Telephone Relationship

The complainant, K.G., was 13 years old when she spent a summer with her 19-year-old cousin, C.J., and their grandmother. C.J. had a relationship with Bryant’s cousin, and C.J. sometimes spoke to Bryant on the telephone. Without having met him in person, K.G. began speaking to Bryant on the telephone as well.

Initially, K.G. told Bryant that she was 16 years old, and, although he was actually 28 years old, he told her that he was 20. *5 Over the course of approximately 50 daily telephone calls, which were usually initiated by C.J. or KG., Bryant discussed ■with KG. “ordinary things about life in general.” KG. said they never discussed sex. At trial she testified that she told Bryant that she was only 13 years old, and that “[h]e didn’t say it would make a difference in anything.” Over the course of the telephone conversations, Bryant did not ask where K.G. lived or attempt to see her until the night of the offense.

The Assault

One night around 1:00 a.m., Bryant told KG. that his cousin wanted to see C.J., and he asked if they could come over. KG. agreed, and Bryant and his cousin arrived approximately an hour later. When they arrived, a dog began barking, and KG.’s grandmother awoke. C.J. took the two men to the garage, where they hid for approximately 30 minutes until the grandmother went back to sleep.

At trial, KG. said that Bryant “pulled” her into the garage, where he kissed and fondled her, while their cousins were together inside the house. She testified that Bryant contacted her “private area” with his mouth and penetrated it with his tongue while they were in the garage and later when they were inside the house and their cousins were in the garage. K.G. testified that although she felt uneasy about the sexual contact, she did not say “no.” She said that at one point Bryant asked her if she wanted him to stop, and she declined. However, KG. also testified that she never intended to engage in sexual contact with Bryant.

A few days later, while watching a sex scene in a movie, C.J. told her grandmother that she had sex in the house a few days earlier. The girls’ grandmother questioned them about the incident and sent KG. home to her parents. K.G. was interviewed at the Children’s Advocacy Center, where she said that it hurt when Bryant penetrated her with his tongue. Bryant was later charged with aggravated sexual assault of a child.

The Investigator’s Testimony

A Tyler Police Department investigator investigated the assault. The investigator testified that he was a certified police officer assigned to the Crimes Against Children Unit of the Major Crimes Department. He testified that he had been conducting police investigations for two years and four months and that he had received “lots of specialized training ... hundreds of hours of everything from child abuse to child sex crimes to neglect. Anything to do with a child being under 17 years old, I typically deal with that.” He testified that he had seen interviews of approximately 100 children in the two years preceding trial. The investigator testified without objection that, under Texas law, a 13-year-old cannot consent to sex. The State questioned him, over Bryant’s objections, about how an adult might “groom” a child prior to a sexual assault.

Bryant’s trial counsel cross-examined the investigator about discrepancies between the investigator’s affidavit and statements by KG. in her interview and her trial testimony. On redirect, the State asked a series of questions about the affidavit. When the State asked for the investigator’s conclusion about whether an assault had occurred, Bryant objected, and the trial court overruled the objection. The investigator then testified, “Yes, I did come to the conclusion that a sexual assault had occurred.”

Alibi Evidence

Bryant, however, attempted to paint a different picture by offering alibi witnesses. Bryant’s roommate testified that she and a coworker borrowed Bryant’s car *6 on the night in question. Both women testified that on the night they borrowed his car, Bryant was babysitting their five children who ranged in age from infancy to 13 years old. Both recalled that night because Bryant’s car was not working properly and they had to push it into a parking space. The roommate’s coworker specifically remembered that it was a Tuesday night and testified that she did not work the following night. On cross-examination, the State confronted her with a calendar, which showed that the night in question was a Wednesday, not a Tuesday, undermining Bryant’s alibi. Yet another coworker who testified she saw the women struggling with the malfunctioning car also testified that these events occurred on a Tuesday night.

The State cross-examined the roommate and her coworker about why they did not come forward with the alleged babysitting alibi information before trial, and both women said they did not know or they did not know whom to contact. In rebuttal, the State recalled the police investigator, who testified that he spoke to the roommate, that she told him his phone number at the Children’s Advocacy Center appeared on her caller ID, and that neither Bryant nor the roommate returned his call. Bryant’s attorney objected to the question about whether Bryant ever called the investigator, arguing that the question violated Bryant’s Fifth Amendment rights, and the trial court overruled the objection.

Closing Argument

In closing argument, the prosecutor repeatedly referred to Bryant as a “predator,” without objection by defense counsel. The prosecutor also argued without objection that if K.G. and her cousin had “not given in to these two guys, they could have been hurt.” He said, “[Tjhese guys ... were going to do it whether they allowed them to do it or not.” The prosecutor also suggested that Bryant may have committed a previous assault.

The jury found Bryant guilty of aggravated sexual assault of a child, and he appeals from that conviction.

EXPERT OPINION TESTIMONY ABOUT “GROOMING”

In his first issue, Bryant argues that the trial court erred by admitting the investigator’s testimony regarding grooming of a prospective child victim of sexual assault.

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Cite This Page — Counsel Stack

Bluebook (online)
340 S.W.3d 1, 2010 WL 3212126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bryant-v-state-texapp-2011.