      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-10-00095-CR
                                      NO. 03-10-00096-CR
                                      NO. 03-10-00097-CR




                                   Adrian Navarro, Appellant

                                                 v.

                                  The State of Texas, Appellee



     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
            NOS. D-1-DC-09-300222, D-1-DC-09-300223 & D-1-DC-09-300379;
                HONORABLE FRED A. MOORE, JUDGE PRESIDING



                            MEMORANDUM OPINION


               In the first cause, a jury found appellant Adrian Navarro guilty of promotion of child

pornography and assessed his punishment at imprisonment for twenty years and a $10,000 fine. See

Tex. Penal Code Ann. § 43.26(e) (West 2003). In the other causes, the jury found appellant guilty

of aggravated sexual assault of a child under six and attempted aggravated sexual assault of a child

under six and assessed his punishment for each offense at imprisonment for ninety-nine years and

a $10,000 fine. See id. § 15.01(a) (West 2003), § 22.021(a)(1)(B)(ii), (f)(1) (West Supp. 2010). In

two points of error, appellant complains of prosecutorial misconduct and ineffective assistance by

his trial counsel. We overrule these contentions and affirm the judgments of conviction for

promotion of child pornography and aggravated sexual assault. We affirm the finding of guilt in the
attempted aggravated sexual assault case, but remand that cause for reassessment of punishment

within the proper statutory range.

               On January 22, 2009, Austin police officers went to appellant’s apartment to

investigate reports of stolen property being kept there. Appellant lived in the apartment with his

common law wife, his five-year-old stepdaughter, his two-year-old daughter, and an infant son.

During the initial search of the apartment, which was conducted with the wife’s written consent, the

officers found several photographs that appeared to be child pornography. The officers contacted

the child abuse unit, and Detective Joel Pridgeon of that unit arrived shortly thereafter. After

examining the photographs and confirming that they were child pornography, Pridgeon interviewed

appellant outside the apartment. Appellant told Pridgeon that he had received a computer, videos,

and photographs from a relative in San Angelo during a visit the previous week. According to

appellant, it was only after he returned to Austin that he realized that the material he had been given

included child pornography. Appellant told Pridgeon that he had been intending to throw away the

material. This interview was recorded, and it was admitted in evidence and played for the jury.

               Pridgeon seized the computer, a separate hard drive, the videos, and the photographs.

Appellant then went with Pridgeon to the police department to give a further statement. In this

statement, which was also recorded and shown to the jury, appellant repeated what he had said

earlier about how he came to possess the offensive materials. After making this statement, appellant

was allowed to leave.

               A police computer forensic examiner searched the contents of the computer and hard

drive seized at appellant’s apartment. The examiner found over six hundred digital images and



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nineteen videos depicting children engaged in sexual activity. One of these videos showed a man

with the word “Navarro” tattooed on his abdomen placing his erect penis in the mouth of a girl who

appeared to be younger than six and attempting to place his penis in the mouth of a child who

appeared to be one year old. Appellant’s wife was also in the video, and the background

surroundings appeared to be appellant’s apartment. After seeing these images, Pridgeon sought to

arrest appellant but learned that he had gone to Mexico with his family.

               Appellant was arrested in Mexico and returned to Austin on January 31, 2009.

Appellant gave a third recorded statement, also in evidence, in which he admitted being the tattooed

man in the video and identified the two children as his stepdaughter and daughter. He also admitted

making the video.

               The video in question was admitted in evidence and shown to the jury. The State also

introduced a number of the pornographic photographs that had been discovered during the initial

search of appellant’s apartment. Pridgeon testified that these images bore watermarks showing that

they had been downloaded from internet sites dedicated to child pornography.

               Appellant testified at the guilt-innocence stage. He claimed that the police did not

have consent to search the apartment, and he said that he had been coerced into making his

statements. He claimed that the pornographic materials had been “planted” on his computer by

another person.       During cross-examination, however, appellant admitted having made the

video of him placing his penis in his stepdaughter’s mouth and attempting to place his penis in his

daughter’s mouth. Appellant described his conduct as a “[v]ery ignorant mistake” and “a bad

parental decision.”



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               In his first point of error, appellant complains of what he contends were improper

statements made by the prosecutors during final arguments at the guilt and punishment stages of the

trial. Appellant concedes that no objections were made to the statements. See Threadgill v. State,

146 S.W.3d 654, 670 (Tex. Crim. App. 2004) (failure to object to jury argument forfeits right to

complain about argument on appeal); Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996)

(same). Appellant urges, however, that the statements were so inflammatory and prejudicial as to

deny him due process and due course of law. See U.S. Const. amend. XIV; Tex. Const. art. I, § 19.

               To constitute a denial of due process—and to excuse a defendant’s failure to

object—it is not enough that a prosecutor’s remarks were undesirable or even universally

condemned. Jimenez v. State, 240 S.W.3d 384, 402 (Tex. App.—Austin 2007, pet. ref’d) (quoting

Darden v. Wainwright, 477 U.S. 168, 181 (1986)). Prosecutorial misconduct does not assume

constitutional dimension unless the evidence is so insubstantial that it is probable that no conviction

would have occurred but for the remarks. Id. (citing Guidroz v. Lynaugh, 852 F.2d 832, 838

(5th Cir. 1988)).

               The prosecutorial arguments at the guilt stage of which appellant complains were:


       • “When he took that stand yesterday, there was no remorse. . . . There was no
       apology to the victims.”


Appellant contends that this was an improper reference to his non-testimonial demeanor.


       • “Now, I’m never going to have enough evidence with the defense.”


Appellant contends that this statement struck at him over the shoulders of counsel.

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       • “Detective Pridgeon should be commended. In 12 years it’s the best investigation
       I’ve seen. Textbook.”


Appellant asserts that this was improper bolstering and injected the personal opinion of

the prosecutor.


       • “And then I remember your faces when the videos were played. The only dry eye
       in the house was his.”


Appellant urges that this constituted a comment on appellant’s failure to testify.


       • “If there’s ever a crime that’s as heinous as this, I don’t know.”


Appellant argues that this injected the prosecutor’s personal opinion.


       • “I want you to go back there and I want you to send him a message, two messages.
       The first one is: What you did Adrian was wrong and you’re guilty. And the second
       [is] we did it, we found you guilty, in a matter of minutes. . . . And I want you to do
       it in minutes because there is no doubt.”


Appellant contends that this argument asked the jury to render a verdict without reasoned and

thorough deliberation.

                  Appellant’s contention that the prosecutors indirectly commented on his failure to

testify fails for the simple reason that appellant did testify. Beyond this observation, we hold that

if the complained-of comments were improper, they did not rise to the level of a denial of due

process either individually or collectively. Appellant admitted his guilt in his testimony and in his



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statements to the police. Given appellant’s admissions and the other evidence of guilt, it is highly

improbable that, but for these remarks by the prosecutors, appellant would not have been convicted.

                The other prosecutorial arguments cited by appellant were made at the punishment

stage:


         • “There’s a video out there folks. There’s a video of a girl with her father’s penis
         in her mouth. She’ll never know when that surfaces.”


Appellant complains that this argument assumes a fact not in evidence, namely, that he had made

the video available to others.


         • “The years of therapy those kids are going [to] need, the waking up in the middle
         of the night when they’re 30 and 40, is that video out there? What if [appellant’s
         stepdaughter] has her own children? And they ask where’s Grandpa? Or if, God
         forbid, one of her kids sees the video.”


Appellant urges that this argument also assumes facts not in evidence and asks the jury to speculate

on the victims’ futures.


         • “What happens when [appellant’s stepdaughter] gets a telephone call says he might
         be out? How is she going to feel? Imagine that.”


Appellant contends that this argument improperly asks the jurors to put themselves in the

victim’s shoes.


         • “Make sure that when you return your verdict people in this community know
         enough and sentence him to the term he deserves, the same term he sentenced the
         victim in this case. Sentence him to life.”



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Appellant asserts that the prosecutor was improperly asserting that the community was demanding

a life sentence.

                   Pridgeon testified that child pornography is exchanged over the internet on “peer to

peer trading systems” in which “the computers will reach inside of each other and trade those

photos—trade those files directly.” The computer forensic examiner testified that the video of

appellant abusing his daughters was found in a digital file on the computer hard drive. It was a

reasonable deduction from this evidence for the prosecutor to assert that the video was “out there.”

The prosecutor’s last argument was a proper plea for law enforcement rather than an improper appeal

to community expectations.

                   If the remaining punishment arguments were improper, they did not, even when

considered together with the arguments at the guilt stage made earlier the same day, deny appellant

due process. Admittedly, the jurors assessed punishments at or near the maximums authorized by

the court’s charge for these offenses. But appellant was guilty of truly reprehensible conduct.

Appellant not only sexually assaulted his five-year-old stepdaughter and attempted to sexually

assault his two-year-old daughter, he made a video recording of these assaults and placed the

recording in a computer file which could easily be transmitted to any computer linked to the internet.

It is improbable that the jurors would have assessed lesser punishments if the prosecutors’ arguments

had not been made. Point of error one is overruled.

                   In point of error two, appellant contends that his trial counsel rendered ineffective

assistance. To prevail on this claim, appellant must show by a preponderance of the evidence that

counsel made such serious errors that she was not functioning effectively as counsel and that these



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errors prejudiced appellant’s defense to such a degree that he was deprived of a fair trial. Strickland

v. Washington, 466 U.S. 668, 687 (1984); Perez v. State, 310 S.W.3d 890, 892-93 (Tex. Crim. App.

2010). To satisfy the first, performance component of Strickland, appellant must overcome a strong

presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.

Strickland, 466 U.S. at 688; Perez, 310 S.W.3d at 893. Any allegation of defective representation

must be firmly founded in the record, and the record must affirmatively demonstrate the alleged

ineffectiveness. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). To satisfy the second,

prejudice component of Strickland, appellant must show that, but for counsel’s deficient

performance, the result of the trial would have been different. Strickland, 466 U.S. at 694; Perez,

310 S.W.3d at 893.

               Appellant’s principal complaint is that his trial attorney failed to object to the jury

arguments discussed above. Because appellant is raising this issue for the first time on appeal, we

have no evidence regarding trial counsel’s reason or reasons for not objecting. But even if we were

to assume that there was no justification for counsel’s failure to object, appellant has not shown by

a preponderance of the evidence that the result of the trial would have been different had appellant

successfully objected and obtained instructions to disregard. For the reasons we have already

discussed, it is improbable that the arguments were a but-for cause of either the conviction or

the punishments.

               Appellant cites several other instances of what he considers to be ineffective

assistance. Appellant asserts that counsel failed to obtain rulings on pretrial motions, but he does

not discuss the merits of these motions or explain how the failure to rule prejudiced the defense.



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Appellant complains that his attorney did not object to the video and photographic evidence, but he

does not state a basis for objection or attempt to show why the objection would have been proper.

Appellant complains that his attorney asked few questions of the State’s witnesses, but he does not

identify fruitful areas of questioning that were not explored by counsel. Appellant complains that

his attorney made short jury arguments, but he does not explain why we would be justified in

second-guessing counsel in this regard. Appellant asserts that his attorney allowed him to testify in

narrative form, but he does not suggest how this harmed him. Moreover, the record reflects that his

attorney advised appellant not to testify. Finally, appellant complains that his attorney asked the

jurors if they believed appellant’s testimony. This is a reference to counsel’s guilt stage argument

regarding the jury charges, each of which instructed the jurors that they were to consider appellant’s

statements to the police only if they found beyond a reasonable doubt that the statements had been

freely and voluntarily made without compulsion or persuasion. In her argument, counsel told the

jurors that if they believed that appellant’s statements were coerced, as he had testified, they should

not consider the statements as evidence. We find no impropriety in this argument.

               Appellant has not met his burden of persuasion as to either prong of Strickland. Point

of error two is overruled.

               A criminal attempt is one punishment category lower than the offense attempted.

Tex. Penal Code Ann. § 15.01(d) (West 2003). Aggravated sexual assault is a first degree felony.

Id. § 22.021(e) (West Supp. 2010). The minimum punishment for an aggravated sexual assault is

increased if the victim is a child younger than six, but the offense remains a first degree felony. Id.

§ 22.021 (f)(1). Thus, attempted aggravated sexual assault of a child under six is a second degree



                                                  9
felony. The trial court erroneously instructed the jury that the attempt offense was a first degree

felony, and the ninety-nine year prison term assessed by the jury and imposed in the judgment

exceeds that legally authorized for the offense. A sentence not authorized by law is void. Mizell

v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). Although there was no objection below and

this issue is not raised by appellant, an appellate court may take notice of a void sentence. Id. at 807.

                The judgments of conviction for promotion of child pornography and aggravated

sexual assault of a child under six are affirmed. The judgment of conviction for attempted

aggravated sexual assault of a child under six is affirmed as to the finding of guilt, but that portion

of the judgment imposing sentence is reversed, and the cause is remanded to the district court for

reassessment of punishment within the proper punishment range. See Tex. Code Crim. Proc. Ann.

art. 44.29(b) (West Supp. 2010).




                                                __________________________________________

                                                Jan P. Patterson, Justice

Before Justices Patterson, Puryear and Henson

Nos. 03-10-00095-CR and 03-10-00096-CR: Affirmed

No. 03-10-00097-CR: Affirmed in part, Reversed and Remanded in part

Filed: November 5, 2010

Do Not Publish




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