In The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-16-00371-CR NO. 09-16-00372-CR NO. 09-16-00378-CR ____________________
ROBERT VAJDA, Appellant
V.
THE STATE OF TEXAS, Appellee
_______________________________________________________ ______________
On Appeal from the 435th District Court Montgomery County, Texas Trial Cause Nos. 15-12-13408-CR, 09-07-06767-CR (Count 4), 15-12-13407-CR ________________________________________________________ _____________
MEMORANDUM OPINION
In three cases that were tried together, a jury found Robert Vajda guilty in
each case of perpetrating aggravated sexual assaults against S.D.,1 a child. The
1 The opinion refers to the child identified in the indictment by using a pseudonym, “S.D.,” to protect the child’s privacy. See Tex. Const. art. I, § 30(a)(1) (granting victims of crime “the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process”). 1 convictions in the three cases were based on conduct that occurred on or about
January 15, 2007, February 10, 2006, and March 10, 2006. See Tex. Penal Code
Ann. § 22.021(a)(1)(B) (West Supp. 2016).2 In each of the cases, the jury also found
that Vajda should be required to serve a ninety-nine year prison sentence. In the
judgment, the trial court ordered Vajda to serve his sentences concurrently.
In his appeal from each conviction, Vajda seeks new trials. All of the appeals
raise the same two issues. In issue one, Vajda asserts the trial court erred by
admitting evidence of an extraneous crime, possession of child pornography, during
his trial. According to Vajda, the images of the children on an external hard drive
recovered from an office inside his home were more prejudicial than probative in
proving that he was guilty of the aggravated sexual assaults with which he was
charged, and the images were not sufficiently linked to him to allow the jury to
determine, beyond reasonable doubt, that he was the person who possessed them. In
issue two in all three appeals, Vajda argues that he received ineffective assistance of
counsel during the guilt-innocence and punishment phases of his trial. According to
2 We cite the current version of the Texas statutes throughout the opinion because any amendments to the sections that are cited are not relevant to the resolution of the issues Vajda raises in his appeal.
2 Vajda, his trial attorney was ineffective because he failed to object to opinions the
prosecutor offered about his character in both phases of his trial.
Based on the arguments presented in the appeal, we conclude the trial court
acted within its discretion when it chose to admit evidence showing that Vajda
possessed images of children engaged in sexual acts during the trial of his cases. We
further we conclude the trial court did not abuse its discretion when it concluded that
admitting the images would be more probative than prejudicial regarding whether
Vajda was guilty of sexually assaulting S.D. With respect to Vajda’s claims that he
received ineffective assistance of counsel, we hold the record in his trial was not
sufficiently developed to overcome the presumption that trial counsel rendered
reasonable professional assistance. Because Vajda’s issues are without merit, we
affirm the judgments from which he has appealed in all three of his cases.
Background
It is undisputed that S.D. is Vajda’s former stepdaughter.3 Based on the
allegations in Vajda’s indictment, S.D. was assaulted on various dates when she
would have been between nine and ten years old. At trial, S.D. testified that Vajda
began sexually assaulting her when she was seven or eight years old. The testimony
3 S.D.’s mother, Irene, and Vajda were divorced approximately eight months after the State began to investigate S.D.’s claim that Vajda had sexually assaulted her. 3 from the trial indicates that S.D. was twelve years old when she first told her friend
about the alleged sexual assaults perpetrated on her by her stepfather.
Shortly after S.D. first told someone about what Vajda had done to her, Child
Protective Services initiated an investigation into S.D.’s claims. During the CPS
investigation, Detective Billy Ballard collected several computers and devices used
to store electronic data from an office inside Vajda’s home. Subsequently, Jeffery
Chappell, a computer digital forensics agent employed by Homeland Security,
conducted a forensic examination on the external hard drive that the police took
during the investigation from Vajda’s home. When he examined the external hard
drive, Agent Chappell found a large number of image files that depicted children
engaged in sexual acts. Additionally, Agent Chappell examined a laptop computer
and a desktop computer that were also among the electronic devices taken from
Vajda’s home during the investigation into S.D.’s claims. According to Agent
Chappell, the laptop and desktop computers, at some point, had been connected to
the external hard drive and used to access its files.
Several months before Vajda’s trial, the State filed a motion asking that the
court admit the digital evidence that consisted of the pornographic images of
children that were on the external hard drive taken from Vajda’s home. On the
4 morning of the first day of Vajda’s trial, and outside the jury’s presence, the trial
court conducted a hearing on the State’s motion.
Each party called two witnesses during the hearing on the State’s motion.
Detective Ballard and Agent Chappell testified at the request of the State, while Kit
Harrison and Eric Devlin testified at Vajda’s request. In his testimony, Detective
Ballard explained how, in January 2009, he obtained a laptop computer and an
external hard drive from Vajda’s home. He also explained how in late January 2009,
another detective involved in the investigation into S.D.’s claim recovered a desktop
computer from Vajda’s home. In the hearing, Agent Chappell explained how he
analyzed the digital information that he found on the two computers and the external
hard drive. According to Agent Chappell, the external hard drive contained over four
thousand images of child pornography. In addition to digital images, the external
hard drive had digital files on it that appeared to be files that belonged to Vajda based
either on the content of the file or the name of the folder the file was in. Agent
Chappell explained that the laptop and desktop contained signs showing that they
had been used in the past to read the files that were on the external hard drive.
According to Agent Chappell, the external hard drive has folders on it that in his
opinion “related to Mr. Vajda and Irene[.]” Irene was Vajda’s spouse when police
took the computers and external hard drive from Vajda’s home. While Agent
5 Chappell explained that he did not have actual knowledge about who originally
created the files and folders that were on the storage devices he examined, the
evidence he reviewed suggested that “Mr. Vajda created some of them[.]”
During the hearing on the State’s motion, Vajda called Dr. Harrison, a
psychologist, and Devlin, a digital forensic computer examiner. Dr. Harrison
testified that “you cannot predict simply on the basis of child pornography that
someone is actually going to offend against children[.]” Before Devlin testified in
the hearing, the State stipulated that Devlin was a qualified digital forensic computer
examiner. Devlin explained that he reviewed Agent Chappell’s reports outlining
what he found in his examination of the devices that the police removed from
Vajda’s home. Devlin agreed that images and videos of children under age 18
engaging in sexual conduct existed on the external hard drive. According to Devlin,
there is no way to know who actually created the files that Agent Chappell found on
the drive, but he conceded that circumstantial evidence could show who had been
responsible for placing the files there. Devlin explained that although child
pornography existed on the external hard drive, Agent Chappell’s examination, in
his opinion, failed to develop sufficient circumstantial evidence to allow the files on
the drive to be linked with any specific persons. Devlin testified that he thinks Agent
6 Chappell is a trustworthy person, and he stated that he has never known Agent
Chappell “to lie, mislead, [or] even embellish.”
At the conclusion of the hearing, Vajda argued there were other individuals in
Vajda’s home who could have accessed the computers in the home, and that the
forensic examination completed by Agent Chappell failed to offer sufficient support
to allow a jury to link Vajda to the pornographic images of the children that existed
on the external hard drive. Vajda also argued that the testimony about the
pornographic images was more prejudicial than probative in proving that Vajda was
guilty of sexually assaulting S.D.
The trial court overruled Vajda’s objections, and in the trial, a small number
of the files consisting of child pornography were admitted before the jury. At the
conclusion of the hearing, the trial court stated that the evidence relevant to the files
on the external hard drive was sufficient to allow the jury to find that Vajda had
possessed the images on the external hard drive. The trial court further explained
that the probative value the prohibited images had in proving Vajda’s guilt
outweighed any prejudice that might occur by admitting the images in the trial.
Ultimately, in the trial, the State chose to have the trial court admit only a very
limited number of the pornographic images that were on the external hard drive
removed from Vajda’s home. Vajda objected to the admission of the selected
7 images, claiming that the admission of the selected images was more prejudicial than
probative in proving that he was guilty of sexually assaulting S.D. He also argued
that the evidence the State introduced to tie him to the images did not sufficiently
link him to having possessed the images that the trial court admitted in his trial.
When the trial concluded, the jury found that Vajda sexually assaulted S.D. as
alleged in the indictments that led to the three convictions that are the subject of
these appeals.
Admission of Child Pornography
In issue one, Vajda complains the trial court erred when it admitted the
evidence in his trial designed to show that he was the person who possessed the child
pornography taken from his home. According to Vajda, all of the evidence about the
child pornography should have been excluded because the State failed to establish
that he was the person who possessed those images. Vajda further contends that the
testimony and evidence about the images was more prejudicial than probative in
proving that he sexually assaulted S.D.
First, we will address whether the trial court acted within its discretion by
admitting the evidence showing that pornographic images were discovered on an
external hard drive taken from his home. In reviewing complaints about a trial
court’s decision to admit or to exclude evidence, we apply the usual abuse of
8 discretion standard. See Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011)
(stating that “[e]vidence of extraneous offenses is not admissible at the guilt phase
of a trial to prove that a defendant committed the charged offense in conformity with
a bad character”); compare Tex. Code Crim. Proc. Ann. art. 38.37 (West Supp. 2016)
(generally, allowing evidence of other crimes, wrongs or acts if committed by a
defendant charged with committing aggravated sexual assault or other sexually
related crimes against a child where the evidence bears on the defendant’s character
or shows the act he committed and for which the defendant is on trial was an act
committed in conformity with the defendant’s character), with Tex. R. Evid. 404(b)
(“Evidence of a crime, wrong, or other act is not admissible to prove a person’s
character in order to show that on a particular occasion the person acted in
accordance with the character.”). Under an abuse of discretion standard, an appellate
court will not overturn the trial court’s evidentiary ruling if its ruling falls within the
“zone of reasonable disagreement.” Devoe, 354 S.W.3d at 469.
Vajda relies heavily on Rule 404(b) of the Texas Rules of Evidence, a rule
which generally prohibits the introduction of character conformity evidence in a
trial, to support the arguments that he presents in issue one. In response, the State
argues that notwithstanding the general prohibition on character evidence that is
provided in Rule 404, article 38.37 of the Code of Criminal Procedure allows such
9 evidence to be admitted in cases where a defendant is being tried for sexually
assaulting a child. See Tex. Code Crim. Proc. Ann. art. 38.37 § 2(a)(1)(D); id. § 2(b).
Nonetheless, even under article 38.37, the State must still establish that the evidence
of the alleged extraneous offense is sufficient to allow a jury to reasonably find,
beyond reasonable doubt, that the defendant committed the uncharged crime. Id. §
2-a. According to Vajda, the State failed to present sufficient evidence to allow the
jury to conclude that the external hard drive and the images on it were ever in his
possession. He concludes by stating that “[t]here was not one piece of evidence put
forth by the State to show that [he] was the one in fact who possessed the child
pornography.”
In our opinion, the evidence linking Vajda to the external drive and the images
on it allowed the jury to reasonably conclude that he possessed the drive and the
pornographic images of children that are on it. Under Texas law, a person commits
the offense of possessing child pornography if:
the person knowingly or intentionally possesses, or knowingly or intentionally accesses with intent to view, visual material that visually depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct, [] and the person knows that the material depicts the child as described [above].
Tex. Penal Code Ann. § 43.26(a)(1), (2) (West Supp. 2016). Under the Penal Code,
possession is defined as “actual care, custody, control, or management.” Id. §
10 1.07(a)(39) (West Supp. 2016). A person acts knowingly or with knowledge of the
nature of his conduct or circumstances “when he is aware of the nature of his conduct
or that the circumstances exist.” Id. § 6.03(b) (West 2011).
In his appeal, Vajda does not argue that the external hard drive does not
contain image files depicting children engaged in sexual conduct. Instead, he argues
the evidence does not show that he was the person who downloaded the files and put
them on the drive. According to Vajda, the fact that other individuals were living
with him in the home and could access the external hard drive prevented the jury
from concluding that he placed the images on the drive. However, creating or
copying the image files to the external hard drive is not the only way the jury could
have linked Vajda to having actual care, custody, control, or management of the
child pornography that was found on the drive. The testimony before the court
reflects that Vajda purchased the external hard drive, so that is one of the
circumstances that supports the jury’s conclusion that the images on the drive were
in his care, custody, or control. Additionally, the external hard drive was found in
the office of Vajda’s home, the evidence showed that Vajda had access to the office,
and the forensic examination performed on the drive revealed the drive contains text
files that the testimony established were files that probably belonged to Vajda given
the content of the files. For instance, the text files on the external hard drive included
11 a copy of Vajda’s resume, and a folder designated with the name “Rob,” a shortened
form for Robert, Vajda’s first name. The nickname on the folder, “Rob,” is not a
nickname that the evidence shows as being consistent with the names of any of the
others who were living in Vajda’s home. The jury also heard very damaging
testimony from Irene about Vajda’s reaction when she told him that the police had
taken the external hard drive from their house. According to Irene, Vajda told her
that she “should have burned it.” Given Irene’s testimony about Vajda’s statement,
the jury could reasonably infer that Vajda knew the external hard drive contained
illegal pornographic images because he had accessed them. See Wilson v. United
States, 162 U.S. 613, 621 (1896) (“The destruction, suppression, or fabrication of
evidence undoubtedly gives rise to a presumption of guilt, to be dealt with by the
jury.”); Martin v. State, 151 S.W.3d 236, 244 n.6 (Tex. App.—Texarkana 2004, pet.
ref’d) (“It is a well-established principle that destruction of evidence is probative of
guilt.”). Finally, the evidence before the court indicated that the images on the
external hard drive could be accessed and that they had not been deleted. See Wise
v. State, 364 S.W.3d 900, 904 (Tex. Crim. App. 2012) (discussing present possession
approach to evaluating possession of files on a computer’s hard drive). The presence
of the undeleted files on the external hard drive containing child pornography was
circumstantial evidence that allowed the jury to infer that the images on the external
12 hard drive had been deliberately saved and were not there by accident. See Krause
v. State, 243 S.W.3d 95, 112 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d).
In our opinion, Vajda’s arguments ignore substantial and probative
circumstantial evidence that allowed the jury to conclude that he possessed the
prohibited image files on the external hard drive that police took from his home.
Under Texas law, circumstantial evidence may be as probative as direct evidence in
proving a defendant’s guilt. See Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App.
2016). Despite Vajda’s argument that direct evidence was required, the State was
not required to introduce direct testimony to prove that Vajda exercised care,
custody, or control over the prohibited images. And, the State was also not required
to disprove Vajda’s theory that someone else might have initially placed the
prohibited images on the external hard drive. See Wise, 364 S.W.3d at 903. Viewing
the evidence as a whole, and viewing the inferences raised by the evidence before
the jury in the proper light, we conclude the jury could have reasonably found,
beyond reasonable doubt, that Vajda knowingly exercised care, custody, control, or
management of the prohibited image files that were found on his external hard drive.
Wise, 364 S.W.3d at 906-08; Krause, 243 S.W.3d at 111-12.
Vajda also argues that even if the prohibited images were admissible under
article 38.37, they should have been excluded because their prejudicial value
13 outweighed their probative value in proving that he sexually assaulted S.D.
Generally, relevant evidence is presumed to be admissible, and it is also presumed
that relevant evidence will be more probative than prejudicial. See Tex. R. Evid. 403;
Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006). For instance, Rule
403 requires that relevant evidence be excluded only if there is a “clear disparity
between the degree of prejudice of the offered evidence and its probative value.”
Conner v. State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001); see Tex. R. Evid. 403.
Moreover, unfair prejudice does not mean simply that the evidence the trial court
admitted in the case caused some type of injury to the defendant’s case. Rogers v.
State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999). “Rather[,] it refers to ‘an undue
tendency to suggest decision on an improper basis, commonly, though not
necessarily, an emotional one.’” Id. (quoting Cohn v. State, 849 S.W.2d 817, 820
(Tex. Crim. App. 1993)).
In performing a Rule 403 analysis, trial courts are required to engage in a
balancing test by considering:
(1) the inherent probative force of the proffered item of evidence along with (2) the proponent’s need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence
14 will consume an inordinate amount of time or merely repeat evidence already admitted.
Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006); see Tex. R.
Evid. 403. In proving that Vajda sexually assaulted S.D., the State relied heavily on
S.D.’s testimony describing the sexual acts that she claimed occurred that involved
Vajda. Noting in the trial that S.D. first complained about the alleged assaults in
2009, years after the assaults allegedly occurred, Vajda argued that S.D. was not a
reliable witness. Given the delayed outcry, and evidence that Vajda introduced from
an expert who testified that the act of possession of child pornography has not been
shown to cause sexual assaults, Vajda argues that even if he possessed the images,
the evidence did not have much probative value in proving he was guilty of
committing the alleged sexual assaults. According to Vajda, no correlation exists
between individuals who sexually abuse children and individuals who possess child
pornography. However, his argument is inconsistent with the evidence that was
introduced during the trial. Vajda’s expert, Dr. Harrison, testified that 55 percent of
individuals “who abuse children are found to be in possession of child pornography.”
It was undisputed in the trial that S.D. was a child when the sexual assaults
allegedly occurred. In our opinion, possessing pornographic images of children is
circumstantial evidence showing that a person has a prurient interest in children.
Under article 38.37, Vajda’s prurient interest in children is a matter that concerns his 15 character; as such, the trial court had the discretion to find that evidence relevant to
a prurient interest in children was admissible to prove that he was the type of person
who would commit other acts consistent with the abnormal sexual interest that Vajda
has in children. See Tex. Code Crim. Proc. Ann. art. 38.37, § 2(b). The State was not
required to show that possessing pornographic images is a factor in causing sexual
assaults for the evidence concerning the prohibited images to be admitted. The
evidence showing that Vajda possessed child pornography was admissible as
character evidence, one of the circumstances proven in the trial to show that Vajda
had the capacity to sexually assault a child. While Dr. Harrison’s testimony that the
possession of child pornography had not yet been shown to cause a person to
sexually assault a child, the evidence still had probative value in proving that Vajda
has an abnormal sexual interest in children. Because Vajda was accused of sexually
assaulting a child, the relevance of the evidence that he was found to possess child
pornography did not depend on the exceptions in Rule 404 of the Texas Rules of
Evidence. The evidence was admissible under article 38.37 of the Code of Criminal
Procedure, a provision that allows such evidence even if the same evidence is
inadmissible under Rule 404. Compare Tex. Code Crim. Proc. Ann. art. 38.37, §
2(b), with Tex. R. Evid. 404(b)(2).
16 A decision by a trial court to admit or to exclude evidence amounts to an abuse
of discretion only when the court makes a ruling that falls outside the zone of
reasonable disagreement. Henley v. State, 493 S.W.3d 77, 83 (Tex. Crim. App.
2016). In our opinion, the trial court’s ruling to admit the evidence regarding Vajda’s
possessing child pornography is one that clearly fell within the zone of reasonable
disagreement. Vajda’s arguments that the trial court erred by admitting the evidence
are overruled. See Tex. Code Crim. Proc. Ann. art. 38.37, § 2(b). We overrule
Vajda’s first issue.
Ineffective Assistance of Counsel
In his second issue, Vajda contends he received ineffective assistance of
counsel based on his trial attorney’s repeated failure to object when the prosecutor
engaged in acts that Vajda has characterized in his brief as prosecutorial misconduct.
Vajda notes the misconduct first occurred while the prosecutor was cross-examining
him in the guilt-innocence phase of the trial. According to Vajda, the prosecutor
attacked him on a personal level by insinuating that he “was the devil” and by
opining that he “was vile and evil.” Vajda argues the misconduct continued into the
punishment phase of his trial when the prosecutor, in final argument, asked the jury
to consider how many times Vajda abused S.D. According to Vajda, this argument
17 was improper because it allowed the jury to reach an “emotional verdict” and asked
“the jury to put themselves in the victim’s shoes.”
To establish a claim of ineffective assistance of counsel, the defendant must
first establish that his attorney made errors so serious that the defendant’s attorney
failed to function as “counsel” as guaranteed by the Sixth Amendment. Strickland v.
Washington, 466 U.S. 668, 687 (1984). Second, the defendant must “show that the
deficient performance prejudiced the defense.” Id. “This requires showing that
counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.” Id.
Generally, to prove a claim of ineffective assistance, the defendant must
overcome the “strong presumption that counsel’s conduct fell within the wide range
of reasonable professional assistance.” Thompson v. State, 9 S.W.3d 808, 813 (Tex.
Crim. App. 1999) (citing Strickland, 466 U.S. at 690). In Vajda’s case, Vajda never
filed any motions claiming that he received ineffective assistance of counsel while
his case was before the trial court. Consequently, the record in Vajda’s direct appeal
was not sufficiently developed to allow us to determine whether his trial counsel
violated the standards established in Strickland. Menefield v. State, 363 S.W.3d 591,
592-93 (Tex. Crim. App. 2012).
18 While Vajda filed a motion for new trial, his motion did not claim that he
received ineffective assistance of counsel. Additionally, nothing in the record shows
that the trial court conducted an evidentiary hearing on Vajda’s motion for new trial.
Therefore, it does not appear that Vajda’s trial attorneys ever had the opportunity to
respond to Vajda’s complaints about how his case was handled. Generally, when the
attorneys who represented the defendant did not have an opportunity to explain their
actions in providing the defendant with a defense, appellate courts presume that the
actions of the attorney related to matters of choices presented between reasonable
trial strategies. See Strickland, 466 U.S. at 689; Michel v. Louisiana, 350 U.S. 91,
101 (1955); Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). Here, the
record before us in the appeal does not affirmatively establish that Vajda received
ineffective assistance of counsel under the Strickland standards. See Goodspeed v.
State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Rylander v. State, 101 S.W.3d
107, 111 (Tex. Crim. App. 2003). We overrule Vajda’s second issue without
prejudice to his right to raise his claims alleging ineffective assistance of counsel in
a post-conviction writ. See Goodspeed, 187 S.W.3d at 392; Robinson v. State, 16
S.W.3d 808, 813 n.7 (Tex. Crim. App. 2000).
19 Having overruled Vajda’s issues, we affirm the trial court’s judgments in Trial
Cause Numbers 15-12-13408-CR, 09-07-06767-CR (Count 4), and 15-12-13407-
CR.
AFFIRMED.
_________________________ HOLLIS HORTON Justice
Submitted on August 7, 2017 Opinion Delivered December 6, 2017 Do Not Publish
Before McKeithen, C.J., Kreger and Horton, JJ.