                     NUMBERS             13-13-00384-CR
                                         13-13-00385-CR
                                         13-13-00386-CR

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


JUSTIN DALE BARTO,                                                     Appellant,

                                         v.

THE STATE OF TEXAS,                                                    Appellee.


                  On appeal from the 219th District Court
                        of Collin County, Texas.


                        MEMORANDUM OPINION

              Before Justices Rodriguez, Garza, and Perkes
               Memorandum Opinion by Justice Rodriguez

      A jury convicted appellant Justin Dale Barto of two counts of continuous sexual

abuse of a young child, a first-degree felony, see TEX. PENAL CODE ANN. § 21.02 (West
2011), and two counts of indecency with a child, a second-degree felony, see id. §

21.11(a)(1), (d) (West 2011), and sentenced him to life in prison for each continuous

sexual abuse of a child conviction and twenty years in prison for each indecency with a

child conviction.1 The trial court ordered the sentences to run concurrently. By two

issues, Barto contends that (1) the trial court abused its discretion when it admitted a CD

with six images of child pornography; and (2) his counsel provided ineffective assistance.

We affirm.2

                                              I. BACKGROUND3

        The complainants in this case are B.H., A.H., and S.A.B. a/k/a S.B. (S.B.).4 B.H.

and A.H. are sisters. Barto, a family friend, and S.B. lived with B.H. and A.H.’s family

intermittently during the time of the alleged abuse.5

        On May 15, 2012, Barto was indicted on one count of indecency with a child that

occurred on or about June 1, 2011 when Barto allegedly touched A.H.’s genital area with

his hand. A second count for which Barto was indicted occurred over a thirty-day period

or more between January 1, 2009 to December 31, 2009 when Barto allegedly

continuously sexually abused S.B. A third offense occurred over a thirty-day period or

more between September 15, 2007 to August 15, 2010 when Barto allegedly


        1 This case is before the Court on transfer from the Fifth Court of Appeals in Dallas pursuant to an
order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West 2005).

        2   Counsel briefed these appeals together, and we will address them in a single opinion.
        3 Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.
        4   To protect the identity of the children in our opinion we refer to them by their initials.

        5   Barto discovered that he was not S.B.’s biological father when she was two years old.
                                                         2
continuously sexually abused B.H.               The fourth count for which Barto was indicted,

indecency with a child, occurred on or about October 15, 2010 when Barto allegedly

touched B.H.’s breasts with his hands.

        At trial, B.H. testified that she was fifteen years old when she attempted suicide

because of sexual abuse by Barto. When she woke up in the hospital, B.H. told hospital

staff about Barto, and an investigation began. According to B.H., she was nine years old

when Barto started putting his hand on her vagina over her clothes and moving it “up and

down.” By the time she was eleven or twelve, he was reaching under her shorts and

underwear. B.H. estimated that Barto touched her vagina two or three times a week for

four or five years and that when she was twelve or thirteen Barto started putting his

fingers inside her vagina. When B.H. was thirteen, Barto would touch her breasts as

well. Sometimes B.H. could feel Barto’s penis when he pressed it against her or when

he would “lay on top of [her].” B.H. testified that Barto handcuffed her and “hog tied” her

with her hands and legs behind her back, then touched her after he untied her.

        Chris Meehan, a sergeant with the Collin County Sherriff’s Office, testified that he

watched B.H.’s forensic interview through closed-circuit television as part of his

investigation. 6    During the interview, B.H. reported that Barto put his fingers in her

vagina, touched her breasts, laid on top of her, and put her hands on his penis. B.H. also

described being handcuffed, having her hands and feet tied with shoelaces, and being

molested after Barto untied her.

        S.B. and A.H. also participated in forensic interviews and ultimately outcried about

       6 In addition to his duties with the Collin County Sherriff’s Officer, Sergeant Meehan testified that he

was “assigned to the United States Secret Service task force with their computer crimes division” and did
“computer forensic exams on cell phones, computers, pretty much any type of electronic device.”
                                                      3
abuse by Barto. Both girls were nine years old at the time of trial. A.H. testified that

Barto was often at home when she arrived from school. He watched movies on his

computer and sometimes wanted her to watch the computer with him. Barto showed

A.H. movies of “kids without clothes on.” A.H. said that Barto gave her a “hurtful touch”

on her “private.” According to A.H., Barto touched her “private” over her clothes with his

hand, and he did it more than once.

       At trial, S.B. testified that Barto touched her “private parts” under her clothes with

both his hand and his penis. According to S.B., sometimes white “ooze” came out of his

“private” and got on her leg. Barto was “mean” to her, calling her “bitch” and “slut.”

Barto spanked S.B. for no reason. He sometimes had her watch movies on his computer

of “girls taking off their shirts” and being spanked. Sergeant Meehan explained that

during her forensic interview, S.B. said that Barto touched her and penetrated her vagina

with his finger.

       Sergeant Meehan testified that after the forensic interviews were conducted at the

Child Advocacy Center, he obtained an arrest warrant for Barto and a search warrant for

his apartment. From Barto’s apartment, the police seized a laptop computer, several

external hard drives, thumb drives, memory cards, and a cellular phone. Sergeant

Meehan testified that the electronics contained videos and pictures of B.H., A.H. and

S.B., as well as images of child pornography and several pornographic videos. Over

Barto’s objection, which included a 403 objection, the following exchange occurred

between the State and Sergeant Meehan regarding the images found on the electronics

seized from Barto’s apartment:


                                             4
      Q.     Okay. And then, Detective, throughout your investigation while you
             were doing the forensics, were there things throughout your
             investigation that the victims had mentioned and specific to the
             things that they had been shown that were of interest to you while
             looking at the forensics?

      A.     Yes.

      Q.     And did you find any images that were similar to what the victims
             described?

      A.     Yes.

      Q.     And what, specifically, are we talking about? Not the images just
             yet, but what specific things was it about those images?

      A.     That they had seen images or videos of children crying, of young
             children kissing, girls kissing, being handcuffed and tied up was
             some of the allegations that came out.

      Q.     Through your forensics did you find—where were they? Did you
             find any of those particular pictures?

      A.     Yes.

      At a hearing outside the presence of the jury, the State offered a CD with twenty

selected images of the child pornography found on the electronic devices seized by the

police from Barto’s apartment. Over Barto’s rule 403 objection at the hearing and again

at trial, the court admitted, as State’s exhibit 36, six of the twenty images offered,

including: (1) No. 2 (two young, nude girls kissing); No. 39 (two young girls kissing, one

nude and one partially clothed); No. 51 (a nude, young girl being handcuffed to a bed by

another nude, young girl); No. 69 (a nude, young girl looking at the camera and crying);

and, No. 147 (same as No. 69).

      A jury found Barto guilty of the four charged offenses and sentenced him to life in

prison for each continuous-sexual-abuse-of-a-young-child offense and twenty years in

                                            5
prison for each indecency-with-a-child offense, with the sentences to run concurrently.

This appeal followed.

                                 II. ADMISSION OF EVIDENCE

       By his first issue, Barto contends that the admission of the child pornography

images was substantially more prejudicial than probative. See TEX. R. EVID. 403. Barto

argues that the probative value of these images was “very small” and the tendency to

prejudice, “especially in a trial that was already emotionally volatile,” was significant. He

claims that the “photos accomplish[ed] nothing more than allow the jury to excite their

emotions against [him].”      Barto asserts that because the trial court admitted these

images, harmful error occurred.

A. Standard of Review

       We review the trial court’s decision regarding the admissibility of evidence for an

abuse of discretion. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). A

trial court abuses its discretion only if its decision is “so clearly wrong as to lie outside the

zone within which reasonable people might disagree.” Taylor v. State, 268 S.W.3d 571,

579 (Tex. Crim. App. 2008).

B. Applicable Law

       1. Rule 403

       Relevant evidence may be excluded under rule 403 "if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, or needless presentation of

cumulative evidence." TEX. R. EVID. 403. “The term ‘probative value’ refers to the


                                               6
inherent probative force of an item of evidence—that is, how strongly it serves to make

more or less probable the existence of a fact of consequence to the litigation—coupled

with the proponent's need for that item of evidence.” Casey v. State, 215 S.W.3d 870,

879 (Tex. Crim. App. 2007) (quoting Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex.

Crim. App. 2006)). “Virtually all evidence that a party offers will be prejudicial to the

opponent's case, or the party would not offer it.” Id. at 883. “Unfair prejudice” refers to

more than the fact that the evidence has an adverse or detrimental effect on the

defendant's case. Id. It is “an undue tendency to suggest a decision on an improper

basis, commonly an emotional one.” Id.

       2. Continuous Sexual Assault of a Young Child

       To establish continuous sexual abuse of a young child, the State must prove that

(1) a person (2) who is seventeen or older (3) has committed a series of two or more acts

of sexual abuse (4) during a period of thirty or more days, and (5) each time the victim was

younger than fourteen. TEX. PENAL CODE ANN. § 21.02(b). The underlying acts here

supporting the allegations of this offense involve either indecency with a child, if the actor

committed the offense in a manner other than by touching, or aggravated sexual assault

of a child. See id. § 21.11(a); id. § 22.021(a)(1) & (2)(B) (West 2011).

       3. Indecency with a Child

       Regarding indecency with a child by contact, the penal code provides, “A person

commits an offense if, with a child younger than 17 years of age, whether the child is of

the same or opposite sex, the person . . . engages in sexual contact with the child or

causes the child to engage in sexual contact.” Id. § 21.11(a)(1). The offense requires


                                              7
the specific intent to arouse or gratify the sexual desire of any person. Id. § 21.11(c).

Specific intent can be inferred from the defendant's conduct, his remarks, and all

surrounding circumstances. McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App.

1981); Couchman v. State, 3 S.W.3d 155, 163 (Tex. App.—Fort Worth 1999, pet. ref'd).

       4. Aggravated Sexual Assault of a Child

       The elements of aggravated sexual assault of a child applicable here are: a

person commits an offense if the person (1) intentionally or knowingly (2) causes the

penetration of the child’s sexual organ by any means or causes the sexual organ of the

child to contact the sexual organ of another person, including the actor, and (3) the child is

under the age of fourteen.        TEX. PENAL CODE ANN. §§ 22.021(a)(1)(B)(i) & (iii),

22.021(a)(2)(B).

C. Analysis

       1. Probative Value

       Under rule 403, we first examine the probative force of the evidence in question

and the State's need for the evidence. See Casey, 215 S.W.3d at 879; see also TEX. R.

EVID. 403. In this case, the photographs had probative value as evidence of Barto’s

intent. He was charged with two counts of continuous sexual abuse of a young child,

with indecency with a child as one of the underlying offenses. Barto was also charged

with two counts of indecency with a child. The intent to arouse or gratify one’s sexual

desire is an element of indecency with a child. See TEX. PENAL CODE ANN. § 21.11(c).

B.H. testified that, on one occasion, Barto handcuffed her to the bed and sometimes he

would “hog-tie” B.H. with her hands and legs behind her back. From Barto’s conduct and


                                              8
surrounding circumstances, specifically his possession of pornographic pictures that

included a young, handcuffed girl, the jury could have inferred Barto’s specific intent to

arouse himself or gratify a sexual desire when he handcuffed B.H. See McKenzie, 617

S.W.2d at 216; Couchman, 3 S.W.3d at 163. In addition, evidence that Barto possessed

pornographic pictures of young, nude girls in sexual situations, such as images of nude

girls crying and kissing, made it more likely that Barto’s contact with the three girls was to

arouse himself or to gratify his sexual desire rather than for any innocent purpose.

Because there was no forensic evidence of the offenses, the State’s need for this

evidence was strong.       It made more probable Barto’s intent, which is a fact of

consequence. See Casey, 215 S.W.3d at 879.

       Additionally, the photographs corroborated the children’s accounts that Barto had

shown them pornographic images. The complainants in this case were young—two

were nine years old at the time of trial and the third was sixteen.              Two of the

complainants were siblings. All three of the complainants knew each other and had lived

together. In prosecutions for sexual offenses, a successful conviction often depends on

whether the jury believes the complainant. See Wheeler v. State, 67 S.W.3d 879, 888

(Tex. Crim. App. 2002) (en banc); see also Watkins v. State, No. 02-12-00024-CR, 2013

WL 531062, at *4 (Tex. App.—Fort Worth Feb. 14, 2013, pet. ref’d) (per curiam) (mem.

op., not designated for publication) (concluding that where a child complainant has

described being shown pornographic images by the defendant, the images are

admissible to corroborate the child’s testimony). In their forensic interviews, according to

Sergeant Meehan, the children explained “that they had seen images or videos of


                                              9
children crying, or young children kissing, girls kissing.” Although Sergeant Meehan

acknowledged that the victims had not identified the photos admitted as the specific ones

they were shown, the admitted photos were nonetheless similar to the photos the girls

described. And when defense counsel asked the trial court for a specific finding as to

why those images were admitted, the court specifically found that the pictures of young

girls kissing and crying “reflect a description of what was testified to that was seen by one

or more of the girls” and that the picture of the young girl in handcuffs shows “similarity

between that and the description of what was done.” A.H. and S.B. also described

movies that Barto showed them on the computer of “kids without clothes on” or “girls

taking off their shirts.” S.B. also watched movies with Barto of girls being spanked. The

images described on these movies are also similar to some of the images on the admitted

photos. According to the complainants’ respective testimony, no child observed Barto’s

activities with another, and thus, the six images were significant corroboration of events

involved in the offenses and Barto’s intent. We conclude the probative force of the

evidence and the State’s need for it were strong. See Casey, 215 S.W.3d at 879.

       2. No Unfair Prejudice

       Having concluded that the challenged evidence has probative value, we examine

whether there was any unfair prejudice. See TEX. R. EVID. 403. In this case, Barto

claims that he was unduly prejudiced because “the tendency [of the evidence] to

prejudice, especially in a trial that was already emotionally volatile, was significant.” See

Casey, 215 S.W.3d at 879. We disagree.

       Although evidence of sexual misconduct toward children is always inherently


                                             10
inflammatory, see Wheeler, 67 S.W.3d at 889 (noting that “evidence of an extraneous

sexual offense will always carry emotional weight and the danger of impressing the jury in

an irrational and indelible way”); see also Pawlak v. State, No. PD-1616-12, 2013 WL

5220872, at *2 (Tex. Crim. App. Sept. 18, 2013) (not yet published), we cannot conclude

that the images prejudiced Barto. The images here were not particularly graphic or

gruesome. While undeniably pornographic, they did not display explicit sexual acts.

The children were near the same age as the complainants, and the acts portrayed were

much less disturbing than those already testified to by the complainants, including having

their vaginas penetrated by Barto. It is unlikely that the jury would be more inflamed by

the photos than by the children’s own testimony. Moreover, the trial court admitted only

six images out of the hundreds seized from Barto’s apartment. Cf. Pawlak, 2013 WL

5220872, at *2 (finding admission of 9,000 images of child pornography inflammatory “by

sheer volume”). We cannot conclude that the evidence had an adverse or detrimental

effect on the case such that the jury’s decision may have been made on an improper

emotional basis, as Barto argues. See Casey, 215 S.W.3d at 883.

       3. No Abuse of Discretion

       The trial court’s decision to admit the State’s exhibit 36 was not “so clearly wrong

as to lie outside the zone within which reasonable people might disagree.” See Taylor,

268 S.W.3d at 579. The complained-of evidence was probative because it tended to

show Barto's intent to arouse or gratify his sexual desire. It was also probative to

corroborate testimony regarding the girls’ accounts of what occurred. We conclude that

the trial court did not abuse its discretion by determining that the probative value of the


                                            11
evidence was not substantially outweighed by the danger of unfair prejudice and

admitting State’s exhibit 36. See TEX. R. EVID. 403; Cameron, 241 S.W.3d at 19. We

overrule Barto’s first issue.

                             III. INEFFECTIVE ASSISTANCE OF COUNSEL

       By his second issue, Barto contends that his trial counsel failed to provide

reasonably effective assistance because: (1) he made “no genuine effort to defeat the

essential elements of the crimes” with which Barto was charged; and (2) he failed to

present any evidence on Barto’s behalf.7 Barto claims that a review of the entire record

fails to reveal “anything even resembling strategy.” He asserts that instead “the record

reveals the undeniable conclusion that trial counsel exerted no effort whatsoever in

defending Barto” and “engaged in no meaningful defense” on his behalf.

A. Standard of Review and Applicable Law

       We review ineffective assistance of counsel claims under the two-pronged test

articulated in Strickland v. Washington. 466 U.S. 668, 687 (1984); see Hernandez v.

State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (en banc) (adopting Strickland as

applicable standard under Texas Constitution). The first prong requires a showing that

counsel's performance was deficient—that counsel made errors so serious that counsel

was not functioning as the counsel guaranteed by the Sixth Amendment. Strickland, 466

U.S. at 687. The second prong of the Strickland test requires a showing that counsel's

deficient performance prejudiced the defense—that counsel's errors were so serious as

to deprive the defendant of a fair trial. Id. There is no reason for a court to approach an

ineffective-assistance inquiry in the same order or even to address both components or

       7   Two attorneys represented Barto at trial. For ease of discussion we will refer to them as one.
                                                    12
prongs of the inquiry if the defendant makes an insufficient showing on one. Id. at 697;

see Cox v. State, 389 S.W.3d 817, 819 (Tex. Crim. App. 2012) (concluding that a

reviewing court need not consider both prongs of the Strickland test and can dispose of

an ineffectiveness claim if the defendant fails to demonstrate sufficient prejudice).

       Relevant to our analysis in this case, under the first prong, “[d]eficient performance

means that ‘counsel made errors so serious that counsel was not functioning as the

counsel guaranteed the defendant by the Sixth Amendment.’” Ex parte Napper, 322

S.W.3d 202, 246 (Tex. Crim. App. 2010) (quoting Strickland, 466 U.S. at 687). Our

review presumes that counsel’s actions fell within the wide range of professional

competence and could be considered sound trial strategy or the product of a tactical

decision. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011); see Strickland,

466 U.S. at 689; Jaynes v. State, 216 S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006,

no pet.).    We must consider the totality of counsel’s representation and the

circumstances of each case. Lopez, 343 S.W.3d at 143. On a silent record, this Court

can find ineffective assistance of counsel only if the challenged conduct was so

outrageous that no competent attorney would have engaged in it. Mata v. State, 226

S.W.3d 425, 428–29 (Tex. Crim. App. 2007); Goodspeed v. State, 187 S.W.3d 390, 392

0(Tex. Crim. App. 2005).

A. Analysis

       In support of his argument under the first prong of Strickland, Barto generally

asserts, “No reasonable trial strategy could support trial counsel’s overwhelming failure to

present Barto with a reasonable defense at trial.” More specifically, Barto complains that


                                             13
hearsay and leading questions were “rampant.” Yet he does not identify an example of

either. And there are many strategic reasons why an attorney may choose not to object

to hearsay, including exposing inconsistencies or concluding that an objection would be

futile because the State could prove up an exception to the hearsay rule. See Lopez,

343 S.W.3d at 143. Similarly, there may be strategic reasons for not objecting to leading

questions. See, e.g., Bryant v. State, 282 S.W.3d 156, 169 (Tex. App.—Texarkana

2009, pet. ref’d) (explaining that “Bryant's trial counsel might have reasonably chosen to

not object so as not to bring any additional attention to Mussett's damaging testimony”).

Barto also complains that counsel did not “meaningfully challenge” the credibility of the

State’s witnesses. However, the record does not suggest that there were grounds upon

which to attack witness credibility or that there was any impeaching or exculpatory

evidence that counsel did not present.

       Barto also contends that counsel did not “meaningfully challenge” the State’s case

and did not present “a reasonable defense at trial.” Yet he identifies no specific errors

that counsel allegedly committed. Instead, our review of the record shows that Barto’s

trial counsel filed a number of pretrial motions, including a motion for production of Child

Protective Services records and a motion to appoint a forensic computer expert. His

strategy, apparent from voir dire through closing argument, was to challenge the

credibility of the children.    Counsel also contested the admission of the child

pornography and other photos seized from Barto’s apartment, obtaining a hearing outside

the jury’s presence and arguing numerous theories regarding why the evidence should

not be admitted. In addition, counsel questioned Sergeant Meehan in front of the jury to


                                            14
emphasize that there was no way to prove who placed the pornographic images on the

hard drives. And while cross-examination of most witnesses was not extensive, counsel

developed a clear theme used in closing argument regarding the complainants’ inability to

remember certain details. Finally, we note counsel clarified that Barto’s possession of

various weapons was not illegal and was, in fact, common for a private security guard,

such as Barto.

      Barto’s complaints are simply too vague and generalized for us to determine that

there was no strategic reason for counsel’s actions.      With no record of counsel’s

reasoning, we cannot determine that Barto’s counsel was deficient in his representation.

See Strickland, 466 U.S. at 687; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App.

1994) (holding that a reviewing court cannot determine that trial counsel was ineffective

where there was no record of his reasoning). So presuming that counsel’s actions fell

within the wide range of professional competence and could be considered sound trial

strategy or the product of a tactical decision, as we must, see Lopez, 343 S.W.3d at 142,

we cannot conclude that counsel made errors so serious that he was not functioning as

the counsel guaranteed Barto by the Sixth Amendment. See Ex parte Napper, 322

S.W.3d at 246.       Considering the totality of counsel’s representation and the

circumstances of this case, see Lopez, 343 S.W.3d at 143, we conclude that Barto has

not established, on the record before us, that his counsel’s performance was deficient.

See Strickland, 466 U.S. at 687. And on this silent record we cannot conclude that

counsel's challenged conduct was so outrageous that no competent attorney would have

engaged in it. See Mata, 226 S.W.3d at 428–29; Goodspeed, 187 S.W.3d at 392.


                                           15
Barto failed to satisfy the first prong—the deficient-performance prong—of Strickland.

See Strickland, 466 U.S. at 687. Having so concluded, we need not address the second

prong—the prejudice prong.8 See id. at 697; Cox, 389 S.W.3d at 819; see also TEX. R.

APP. P. 47.1. We overrule Barto’s second issue.

                                           IV. CONCLUSION

        We affirm the judgment of the trial court.



                                                                           NELDA V. RODRIGUEZ
                                                                           Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the 6th
day of March, 2014.




         8 Although Barto's attempt at a direct appeal has been unsuccessful, he is not without a potential

remedy. Challenges requiring development of a record to substantiate a claim, such as ineffective
assistance of counsel, may be raised in an application for writ of habeas corpus. See TEX. CODE CRIM.
PROC. ANN. art. 11.07 (West, Westlaw through 2013 Legis. Sess.); Cooper v. State, 45 S.W.3d 77, 82 (Tex.
Crim. App. 2001) (en banc); Ex parte Torres, 943 S.W.2d 469, 476 (Tex. Crim. App. 1997) (en banc). An
application for writ of habeas corpus relief would “provide an opportunity to conduct a dedicated hearing to
consider the facts, circumstances, and rationale behind counsel's actions at . . . trial.” Thompson v. State,
9 S.W.3d 808, 814–15 (Tex. Crim. App. 1999); see Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App.
2011) (“This Court has repeatedly stated that claims of ineffective assistance of counsel are generally not
successful on direct appeal and are more appropriately urged in a hearing on an application for a writ of
habeas corpus.”); see also Ex parte Santana, 227 S.W.3d 700, 704–05 (Tex. Crim. App. 2007).
                                                    16
