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?
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?
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