Background
Robert Allen Berman pleaded guilty to two counts of possession of child pornography under an agreement in which three other charges were dismissed. He entered an open plea and elected to have the trial court assess punishment. A forensic examination of a computer Berman had taken to a repair facility revealed approximately 3,500 images and five videos depicting child sexual abuse, predominantly involving infants and toddlers.
At sentencing, an Internet Crimes Against Children investigator testified about the severity of the material and stated that a significant sentence could deter similar conduct and protect children by incapacitating offenders. The trial court imposed a ten-year sentence on one count and a five-year sentence on the other, to run consecutively. Berman appealed the investigator’s sentencing-related opinion and the prosecutor’s closing remarks about legislative changes that later increased penalties for child-pornography offenses.
The Court’s Holding
The Ninth Court of Appeals first rejected the State’s contention that it lacked jurisdiction. Although Berman’s plea involved a charge bargain, the trial court expressly granted him permission to appeal the sentencing portion of his convictions.
The court nevertheless held that Berman failed to preserve either appellate complaint. He did not object to the investigator’s first deterrence statement, and his relevance and hearsay objections to her later testimony did not match his appellate argument that she lacked qualifications under Texas Rules of Evidence 701 and 702. He likewise made no objection during closing argument when the prosecutor discussed post-offense legislative changes. The court overruled both issues and affirmed the trial court’s judgments.
Key Takeaways
- A trial court’s express permission to appeal may permit review of sentencing issues following a plea bargain.
- An appellate evidentiary argument must match the specific objection made in the trial court.
- Failure to object to a prosecutor’s closing argument generally waives the complaint, including a constitutional challenge.
Why It Matters
The decision underscores that preservation rules apply strictly during sentencing proceedings. Counsel must object promptly and identify the same legal ground later asserted on appeal; a different trial objection will not preserve a challenge to a witness’s qualifications.
The opinion also distinguishes appellate jurisdiction from entitlement to relief. Although the trial court’s permission allowed Berman to pursue his sentencing appeal, that permission did not excuse his failure to preserve the underlying complaints.