             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
      ___________________________

           No. 02-18-00141-CR
      ___________________________

       JAVIER CARBAJAL, Appellant

                     V.

             The State of Texas


   On Appeal from the 371st District Court
          Tarrant County, Texas
        Trial Court No. 1496658D


  Before Sudderth, C.J.; Gabriel and Kerr, JJ.
Memorandum Opinion by Chief Justice Sudderth
                           MEMORANDUM OPINION

      Thirty-six year old Appellant Javier Carbajal took advantage of his coaching

position of a club basketball team and sexually assaulted basketball player Abby,1 who

was only 15 at the time. He pleaded guilty to four counts of sexual assault of a child

under the age of 17 and a jury assessed concurrent 10-year sentences for each of the

four counts. Carbajal now argues that we should reverse his convictions because (1)

the trial court failed to admonish Carbajal of sex-offender-registration requirements

and (2) the trial court erred by overruling Carbajal’s objection to the State’s improper

jury argument. His first argument is statutorily precluded, and although the State’s

improper jury argument was erroneously permitted, the error was harmless. We

therefore overrule Carbajal’s two issues and affirm the trial court’s judgment.

                                      Brief Facts

      Abby reluctantly testified to her relationship with Carbajal. Carbajal began by

grooming Abby. He called her “supermodel,” drove her to and from practices, and

texted her that “if [she] was born in another time, he would be with [her].” Shortly

after Abby’s 15th birthday, she and Carbajal began to have sex. Oftentimes, Carbajal

would lie to Abby’s mother about practice times so that he had more opportunities to

have sex with Abby. The pair had at least two sexual encounters before Abby’s

mother became suspicious—once in the back seat of Carbajal’s truck and another at

      1
        We refer to the complainant by an alias to protect her privacy. See McClendon v.
State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).


                                           2
Carbajal’s house while his own two children were home. Once Abby’s mother found

out about the relationship, she withdrew Abby from the basketball team and moved

Abby and Abby’s two younger siblings to another town and to new schools. When

Abby’s Mother confronted Carbajal, he promised he would stay out of Abby’s life.

But Carbajal lied. He quickly resumed his sexual relationship with Abby and also left

his wife and moved to an apartment. Abby described at least three more sexual

encounters during this time with Carbajal, including another in his truck, one in his

apartment, and one in a motel. When Abby’s mother eventually found out Carbajal

and Abby had continued their relationship, she reported it to the police.

      Carbajal was charged with four counts of sexual assault of a child under the age

of 17. See Tex. Penal Code Ann. § 22.011(a)(2) (West Supp. 2018). He pleaded guilty

and asked for a jury to assess his punishment.

                                     Discussion

I. Plea admonishment

      Carbajal argues that his convictions should be reversed because the trial court

failed to admonish him of sex-offender-registration requirements when it accepted his

guilty pleas. But in so arguing, Carbajal relies upon caselaw that has been statutorily

overruled.

      Article 26.13 lists the admonishments that a trial court is required to give

before accepting a guilty plea and includes a requirement that a defendant convicted

of a sex offense must be informed of sex-offender-registration requirements. Tex.

                                           3
Code Crim. Proc. Ann. art. 26.13(a)(5) (West Supp. 2018). Previously, the failure to

issue a sex-offender-registration admonishment was subject to nonconstitutional-error

analysis and could warrant a reversal of the defendant’s conviction. Anderson v. State,

182 S.W.3d 914, 919–921 (Tex. Crim. App. 2006). But the legislature has since

amended article 26.13 to expressly provide that the failure to issue a sex-offender-

registration admonishment “is not a ground for the defendant to set aside the

conviction, sentence, or plea.” See Act of June 18, 2005, 79th Leg., R.S., ch. 1008, §

1.03, 2005 Tex. Gen. Laws 3419, 3419 (codified at Tex. Code Crim. Proc. Ann. art.

26.13(h)).

      Thus, even if the trial court erred by failing to warn Carbajal of sex-offender-

registration requirements, such failure cannot constitute grounds for reversal. Id.; see

also, e.g., Morin v. State, 340 S.W.3d 816, 817–18 (Tex. App.—San Antonio 2011, pet.

ref’d) (holding failure to warn of sex-offender-registration requirements cannot

constitute reversible error). We therefore overrule Carbajal’s first issue.

II. Improper jury argument

      Carbajal argues in his second issue that the trial court erred by overruling his

objection to the State’s statement during final argument that the Tarrant County

community “demand[ed]” that the jury send Carbajal to prison:

            [Prosecutor]: Send him to prison because that’s what he deserves.
      The community demands it because Tarrant County - -




                                            4
              [Defense counsel]: Judge, I’m going to object to that as improper.
       The community does not demand it in this case. They have not heard
       the evidence in this case. That’s an improper plea for law enforcement.
              [Prosecutor]: Plea for law enforcement is absolutely proper.
              THE COURT: I’ll allow it.
              [Prosecutor]: The people of Tarrant County demand it because,
       in Tarrant County, we don’t tolerate this kind of behavior.
       To be permissible, the State’s jury argument must fall within one of the

following four general areas: (1) summation of the evidence; (2) reasonable deduction

from the evidence; (3) answer to opposing counsel’s argument; or (4) plea for law

enforcement. Freeman v. State, 340 S.W.3d 717, 727 (Tex. Crim. App. 2011), cert.

denied, 565 U.S. 1161 (2012); Felder v. State, 848 S.W.2d 85, 94–95 (Tex. Crim. App.

1992), cert. denied, 510 U.S. 829 (1993).

       The trial court erred by overruling Carbajal’s objection to the State’s expression

of what the community demanded or expected.2             A plea to convict or assess

punishment because of public clamor or perceived community expectations is not a

plea for law enforcement. Indeed, the court of criminal appeals has been clear that

“jury argument by a prosecuting attorney that is designed to induce the jury to convict

the defendant or assess him a particular punishment because ‘the people’ desire such

is improper jury argument.” Cortez v. State, 683 S.W.2d 419, 420–21 (Tex. Crim. App.

1984) (collecting cases in which the court has disapproved of arguments that invoked

       On appeal, the State does not attempt to defend the prosecutor’s statements as
       2

proper jury argument.


                                            5
community expectations or demands). The prosecutor’s statement, “The people of

Tarrant County demand [a prison sentence] because, in Tarrant County, we don’t

tolerate this kind of behavior,” is clearly violative of that precedent, and it does not

fall within any of the other four generally permissible areas of argument. See id.

       Nevertheless, we will not reverse the trial court’s judgment based on the

erroneously overruled objection unless the error affected the defendant’s substantial

rights. See Tex. R. App. P. 44.2(b); Martinez v. State, 17 S.W.3d 677, 692–93 (Tex.

Crim. App. 2000); Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on

reh’g), cert. denied, 526 U.S. 1070 (1999). In determining whether Carbajal’s substantial

rights were affected, we consider (1) the severity of the misconduct (that is, the

prejudicial effect of the prosecutor’s remarks), (2) curative measures, and (3) the

certainty of the punishment absent the misconduct. Martinez, 17 S.W.3d at 692–93;

Mosley, 983 S.W.2d at 259. Because the trial court overruled Carbajal’s objection, no

curative measures were taken; we will therefore consider only the first and third

factors.

       The prosecutor’s misconduct does not rise to such a level of severity as to

weigh in favor of reversal. Her statement was isolated, made at the close of the State’s

initial closing argument, and was not repeated. Such a brief and isolated remark is

generally considered harmless. See Maxwell v. State, No. 02-11-00038-CR, 2012 WL

2849279, at *4 (Tex. App.—Fort Worth July 12, 2012, pet. ref’d) (mem. op., not

designated for publication) (commenting upon the lack of authority reversing a

                                            6
conviction “solely for one brief, isolated remark”). Carbajal’s counsel countered the

State’s assertion of the community’s demands by pointing out in his closing argument

that the community had not heard any of the evidence in the case. And when the

State returned for its rebuttal argument, it urged the jurors, “Be proud of your

verdicts, ladies and gentlemen. Be proud of it. Do you want the paper to say Tarrant

County jury probates basketball coach who slept with player, or do you want it to say

Tarrant County jury sent that man to prison?”        This is a proper plea for law

enforcement. See Cortez, 683 S.W.2d at 421 (explaining that is not improper to urge

the jury to be the voice of the community, but is improper to ask the jury to lend its

ear to the community).

      Nor can we say that the prosecutor’s improper argument undermined the

certainty of the punishment issued, four 10-year sentences for sexual assault of a

minor. Carbajal faced a maximum sentence of 20 years’ confinement for each charge.

Tex. Penal Code Ann. § 12.33 (West 2011). A sentence of 10 years or more made him

ineligible for community supervision. Tex. Code Crim. Proc. Ann. art. 42A.053(c)(1)

(West 2018). We can reasonably conclude based on the jury’s verdict that the jury did

not believe that Carbajal was a suitable candidate for community supervision, and the

evidence supports this conclusion despite the State’s impermissible invocation of the

community’s demand for a prison sentence.

      Carbajal, a basketball coach of high-school-aged girls, preyed upon one of his

players, groomed her, and had sex with her repeatedly, even at his house with his own

                                          7
children at home. He lied to Abby’s mother—who as a working mother could not

attend every single basketball practice and had trusted Carbajal to assist Abby as a

basketball player—in order to have more time to have sex with Abby. After it

appeared that he would elude prosecution for his crimes the first time Abby’s mother

discovered his relationship with her daughter, Carbajal broke his promise to Abby’s

mother when he lied by assuring her that he would end his relationship with Abby.

Carbajal’s predatory behavior, his lies, and his deception affected Abby’s entire

family—Abby’s mother testified that her family would “never be the same again ever.

No matter what happens today, could not change.”

         Considering the evidence and arguments as a whole, we cannot say that the trial

court’s error affected Carbajal’s substantial rights. We therefore overrule his second

issue.

                                       Conclusion

         Having overruled Carbajal’s two issues, we affirm the trial court’s judgment.



                                                        /s/ Bonnie Sudderth
                                                        Bonnie Sudderth
                                                        Chief Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: January 10, 2019




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