Robert Allen Berman v. the State of Texas

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-25-00099-CR

NO. 09-25-00100-CR

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ROBERT ALLEN BERMAN, Appellant V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 435th District Court Montgomery County, Texas

Trial Cause Nos. 23-02-02981 and 23-02-02985

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MEMORANDUM OPINION

Robert Allen Berman challenges his sentence following a guilty plea to two counts of possession of child pornography. See Tex. Penal Code Ann. § 43.26(d). In two issues, Berman challenges the investigator’s testimony regarding the effects of imposing a substantial sentence and the State’s closing statement that included comments about recent changes that increased the punishment range for possession

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of child pornography. Having determined that Berman failed to object to the admission of the evidence and the State’s statements, we affirm the trial court’s judgments.

Background

On August 2, 2022, a grand jury indicted Berman on two counts of possession of child pornography, a third-degree felony. See id. On November 5, 2024, Berman pleaded guilty to both charges in an open plea and elected to go to the trial court for punishment.

On March 7, 2025, Berman’s sentencing hearing began, and the State called one witness, Diane Peterson, an Internet Crimes Against Children (“ICAC”) investigator with the Montgomery County Precinct 5 Constable’s Office. Peterson testified that she had been an ICAC investigator for seven years and received specialized training in basic cyber investigations, human trafficking, vice, and forensics. Before her time in the Constable’s Office, she worked for the Harris County Sheriff’s Office for twenty-five years and estimated that she had been involved in over 100 child pornography investigations.

Peterson testified that this investigation began after Berman brought a computer to a computer repair facility. The technician observed the images and contacted law enforcement. The initial investigator retired and referred the case to Peterson. Peterson stated a forensic examination revealed approximately 3500

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images and five videos of child sexual abuse on the computer. The images and videos were admitted as evidence. Peterson described the images including the maturity of the children, with the vast majority being infants and toddlers, and the abuse photographed. Peterson testified that on a scale of one to ten with ten being the most egregious abuse, the images on Berman’s computer were a nine. She explained that the only images that could be worse would involve videos of infant death due to sexual abuse. She stated that this is one of the worst cases that she investigated.

Peterson testified that she knew that the Texas Legislature recently reclassified and enhanced child pornography offenses. Peterson stated that the forensic review of the computer indicated that Berman obtained the images between 2020 and 2022 and all the images depicted tortuous bondage of very young, prepubescent children.

Peterson testified that Berman was interviewed by Homeland Security investigators and claimed to be part of a coalition working to take down child pornography from the internet. She stated that law enforcement could not verify Berman’s claims, and she did not believe it was true. Peterson stated that based on her review of the offense report that she prepared and all the facts of the case, she does not believe Berman to be an honorable person.

Peterson explained that a child is violently and horrifically raped every time an image is created and that every time the image is viewed, the child is revictimized.

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She stated that people who want to see the images will seek out more images, and the result is another child being raped and victimized so that production can continue.

Peterson testified that it is important to impose significant sentences in child pornography cases to deter others from committing similar crimes, and she hopes a “significant sentence” in this case would send a message to others who might engage in similar conduct. She explained that while incarcerated, defendants are incapacitated from committing more child sex crimes, and the children in the community are protected.

On cross-examination, Peterson testified that nothing indicated Berman took the photographs or videos found on his computer. Peterson also confirmed that his devices did not contain any firsthand communication with juveniles for sex.

After closing arguments, the trial court sentenced Berman to ten years’

imprisonment on one charge and five years’ imprisonment on the second charge with the sentences to run consecutively. This appeal followed. On appeal, Berman challenges the admission of Peterson’s testimony regarding the imposition of a substantial sentence and the State’s discussion of the legal changes that enhanced child pornography offenses.

The State argues that Berman lacks the right to appeal and this Court should dismiss the appeal. According to the State, this is a charge bargain case that capped

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Berman’s punishment and ultimately constituted a plea agreement for purposes of Rule 25.2. See Tex. R. App. P. 25.2. The State contends that because Berman’s sentence did not exceed his agreement and his appeal does not pertain to rulings on pretrial motions, he is barred from appealing his sentence absent the trial court’s permission.

The record reflects that Berman was charged with five counts of possession of child pornography, but in exchange for his guilty plea, three charges were dismissed. Berman then elected for the trial court to assess punishment. When a defendant pleads guilty and elects to have the trial court assess punishment and the punishment does not exceed the prosecutor’s recommended punishment that the defendant agreed to, he must have the trial court’s permission to appeal. See Tex. Code Crim. Proc. Ann. art. 44.02; see also Tex. R. App. P. 25.2.

Here, the record at the punishment hearing indicates that the trial court recognized the charge bargain but granted Berman permission to appeal the sentencing portion of his conviction. See Tex. Code Crim. Proc. Ann. art. 44.02; Tex. R. App. P. 25.2. We therefore reject the State’s argument and determine this Court has jurisdiction over the appeal. See Tex. Code Crim. Proc. Ann. art. 44.02; Tex. R. App. P. 25.2.

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Standard of Review

We review the trial court’s admission of evidence under an abuse-of-

discretion standard. See Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). An appellate court reviewing a trial court’s ruling on the admission or exclusion of evidence must do so in the light of the arguments, information, and evidence available to the trial court at the time it rules. Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003). We uphold the trial court’s ruling if it is within the zone of reasonable disagreement. See Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002).

Analysis

Berman argues that Peterson’s testimony regarding the imposition of a substantial sentence did not meet the requirements for permissible opinion testimony under Texas Rules of Evidence 701 or 702 because Peterson lacked the proper qualifications to form these opinions. He contends that although the State questioned Peterson based on her training and experience, the State failed to demonstrate how her training and experience qualified her to evaluate the deterrent effects of a specific punishment. He asserts that Peterson was also not qualified to offer this opinion as a lay witness because it was not based on personal knowledge or perception of any underlying facts.

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To preserve error, Rule 33.1 of the Texas Rules of Appellate Procedure requires that a party must complain or object in the trial court “with sufficient specificity to make the trial court aware of the complaint.” Tex. R. App. P. 33.1(a)(1)(A). An appellant’s point of error on appeal must comport with his objection at trial. See Guevara v. State, 97 S.W.3d 579, 583 (Tex. Crim. App. 2003) (holding that appellant failed to preserve error regarding the evidence admitted because his objection at trial did not comport with the complaint raised on appeal). Generally, a party’s failure to timely and specifically object at the trial court waives error. See Tex. R. App. P. 33.1; Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. App. 2000) (explaining that generally counsel must object to a trial judge’s comments to preserve error).

The record shows that the State questioned Peterson twice using the phrase “substantial sentence.” First, the State asked Peterson what message she believed “a substantial sentence in this case would send to others who might engage in similar conduct[.]” Without objection, Peterson responded that she hoped a “significant sentence” would send a message to not commit this type of crime.

Next, the State asked Peterson if based on her interactions with child pornography offenders over the last nine years, she had an opinion as to the effect that a substantial sentence in this case would have on other offenders. Berman initially objected as leading but withdrew his objection if Peterson’s answer was yes

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or no. Peterson responded “yes,” and when asked her opinion, Berman objected again based on relevance and hearsay. The State responded that general deterrence is highly relevant and the trial court stated that Peterson would be allowed to answer because he had a follow-up question. Peterson responded that a strong sentence would deter others from committing the same crime.

The record demonstrates that Berman failed to object to the State’s first question about a substantial sentence, and although he objected to the second question on Peterson’s opinion of the effect of a substantial sentence, Berman objected as to relevance and hearsay, not that Peterson lacked the qualifications to testify as to her opinion. The Texas Rules of Appellate Procedure require that an appellant timely complain or object to the trial court and that the trial court rule on the objection. Tex. R. App. P. 33.1(a). This did not occur as to the State’s first question. Although Berman objected to the second question regarding Peterson’s opinion of the effect of a substantial sentence, Berman’s complaint on appeal does not comport with his objection at trial. See Guevara, 97 S.W.3d at 583.

Berman has failed to preserve his complaints about the admission of Peterson’s testimony for our review. See Tex. R. App. P. 33.1(a)(1)(A); Guevara, 97 S.W.3d at 583. We overrule issue one.

In his second issue, Berman challenges the State’s comments in closing arguments. Berman argues that the State’s discussion of post-offense changes to the

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criminal law was unfairly prejudicial and violated his due process rights. Berman asserts that the post-offense changes had no relevancy at his sentencing hearing and a similar comment was sustained by the court during Peterson’s testimony.

The record reveals that during its closing statement, the State commented that Texas recognized the egregiousness of child pornography offenses and increased the penalties and decreased the parole eligibility for those offenses months after Berman committed his crimes. The State recognized that Berman was being sentenced under the guidelines that existed at the time he committed these crimes but stated that Texas’s public policy should be persuasive, not mandatory, in understanding the legislature’s desire to penalize these offenses more harshly.

Berman did not object at trial to the State’s comments during closing statements and therefore waived his complaint on appeal. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (holding that defendant’s failure to object to improper jury argument waived the argument); see also Tex. R. App. P. 33.1(a)(1)(A). Because Berman failed to make his complaint to the trial court by a timely request, objection, or motion, he has failed to preserve his complaint for our review. See Tex. R. App. P. 33.1(a)(1)(A); Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990) (even constitutional errors may be waived by failure to object at trial).

We overrule issue two.

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Conclusion

Having considered and overruled both of Berman’s issues, we affirm the trial court’s judgments.

AFFIRMED.

W. SCOTT GOLEMON

Chief Justice

Submitted on August 17, 2026 Opinion Delivered August 19, 2026 Do Not Publish

Before Golemon, C.J., Johnson and Chambers, JJ.