EDGAR DECHERD BARNES,FROM A COUNTY COURT APPELLANT, v. OF THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-01133-CR
EDGAR DECHERD BARNES,FROM A COUNTY COURT
 
        APPELLANT,
 
v. OF
 
THE STATE OF TEXAS,
 
        APPELLEE. DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES HOWELL, ROWE, AND BURNETT
OPINION PER CURIAM
JUNE 23, 1989
        Edgar Decherd Barnes was convicted by a jury of the offense of promotion of obscenity. Punishment was assessed at 365 days confinement and a $2,000 fine. In his sole point of error, appellant claims that the trial court erred in overruling his objection to closing argument of the State at the punishment phase of the trial. We overrule his point and affirm the judgment of the trial court.
        Appellant complains of the following argument made by the State:
    He works in a place where he breaks the law everyday just by virtue of what he does for a living. He wants you to think that's fine and give him the minimum punishment for that. Your guilty verdict is going to be meaningless without a severe punishment, without telling him, "Listen, Edgar Deckerd [sic] Barnes, we don't want you doing this in our community anymore." It's not just going to be a message to him, it's going to be a message to other citizens in Dallas County whom you represent. We, as citizens of Dallas County, don't like people like Edgar Deckerd [sic] Barnes, like this defendant, selling smut and pornography and obscenity in adult bookstores in our community where anyone can walk in off the street and look at it and purchase it and take it home with them. The point of this law is not to get people to stop masturbating; who cares, so what? The point is people who sell it who make money from it like this defendant. You heard that officer's testimony about some of those magazines in that bookstore.
 
    [DEFENSE COUNSEL]: Objection. The law does not have anything to say about making money, the law was given to them by the Court's charge and you can give it away and it's still an offense. I'll object to it on that basis.
Appellant's objection was overruled by the trial court.
        The proper scope of jury argument is: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) response to argument of opposing counsel; and (4) pleas for law enforcement. Compton v. State, 607 S.W.2d 246, 253 (Tex. Crim. App. [Panel Op.] 1980), cert. denied, 450 U.S. 997 (1980); Alejandro v. State, 493 S.W.2d 230, 231-232 (Tex. Crim. App. 1973). Counsel must be given wide latitude in drawing inferences from the evidence so long as the inferences are reasonable, fair, legitimate, and offered in good faith. Vaughn v. State, 607 S.W.2d 914, 922-923 (Tex. Crim. App. 1980).
        Appellant claims in the present case that the argument of the prosecutor constituted an improper plea for law enforcement. We question whether he has preserved this claim on appeal. It is axiomatic that a complaint on appeal must comport with the objection made at trial. Euziere v. State, 648 S.W.2d 700, 703-704 (Tex. Crim. App. 1983); Hatfield v. State, 747 S.W.2d 1, 2 (Tex. App.-- Dallas 1985, no pet.). Appellant objected at trial that the State's argument misstated the law as provided in the Court's charge. We conclude that appellant's claim on appeal does not comport with the objection at trial; as a result, he has presented nothing for this Court to review.
        Even if we address the merits of appellant's claim in the interests of justice, we must disagree. The information in this cause charged appellant with promotion of obscenity by selling. See TEX. PENAL CODE ANN. § 43.23(a) (Vernon Supp. 1989). The term "promote", as a description of prohibited conduct concerning obscene devices, includes the term "sell". TEX. PENAL CODE ANN. § 43.21(a)(5) (Vernon Supp. 1989). The term "sell" means to transfer property to another for money. WEBSTER'S NEW INTERNATIONAL DICTIONARY 2061 (3rd ed. 1981). We conclude that the rationale behind the statute prohibiting promotion of obscene devices, i.e. the protection of the social interest in order and morality, includes the prohibition of the sale of obscene devices. See Yorko v. State, 690 S.W.2d 260, 266 (Tex. Crim. App. 1985). Further, the legislature's inclusion of the word "sell" in the range of prohibited conduct indicates its intent to punish those making money by selling obscene devices. Cf. Faulk v. State, 608 S.W.2d 625, 631 (Tex. Crim. App. 1980)(intent of legislature is to be determined from language of statute itself).
        The record reflects that appellant was recognized by the witnesses as an employee of the Paris Book Store, the adult bookstore where the transaction leading to appellant's prosecution took place. It is a reasonable deduction from the evidence that appellant made money due to his status as an employee of the adult bookstore. Kennedy v. State, 766 S.W.2d 336, 340 (Tex. App.--Dallas 1989, pet. ref'd). The record further reflects that at the punishment phase of trial, the complainant, a Dallas police officer, testified that the device he bought from appellant, a vibrating dildo, cost $17.95. In addition to the device he bought from appellant, the store contained, inter alia, magazines that ranged in price from $17.95 to $70.00. Since the testimony at trial shows that appellant was an employee of the adult bookstore and that he engaged in the sale of an obscene device to the complainant, and since the statute prohibits the sale of obscene devices, we conclude both that the statute was intended to punish people who sell obscene devices and make money from it, and that appellant is a person who sells obscene devices and, as an employee, makes money from it. Thus, we conclude that the State's argument was not improper. Appellant's point of error is overruled.
        The judgment of the trial court is affirmed.
                                                  PER CURIAM
DO NOT PUBLISH
TEX. R. APP. P. 90
 
88-01133.F
 
 
File Date[01-02-89]
File Name[881133F]