Background
Robert Allen Berman pleaded guilty to two counts of possession of child pornography, both third-degree felonies, and elected to have the trial court determine punishment. At the sentencing hearing, an Internet Crimes Against Children investigator testified that a forensic examination of Berman’s computer uncovered approximately 3,500 images and five videos of child sexual abuse, primarily involving infants and toddlers. She characterized the material as among the worst she had investigated.
The investigator also testified that a significant sentence could deter similar conduct and protect children by incapacitating offenders. During closing argument, the State discussed legislative changes enacted after Berman’s offenses that increased penalties and reduced parole eligibility for child-pornography offenses, while acknowledging that Berman had to be sentenced under the law in effect when he committed his crimes. The trial court imposed prison terms of ten years and five years, to run consecutively.
Although three additional charges were dismissed in exchange for Berman’s pleas, the trial court expressly permitted him to appeal the sentencing portion of the cases. The court of appeals therefore rejected the State’s contention that the charge bargain deprived it of jurisdiction.
The Court’s Holding
The Ninth Court of Appeals held that Berman failed to preserve his challenge to the investigator’s testimony about the deterrent effect of a substantial sentence. He did not object to the first such question, and his objections to the later questioning were based on relevance and hearsay—not on the qualification grounds he advanced on appeal under Texas Rules of Evidence 701 and 702. Because the appellate complaint did not comport with the trial objections, the court overruled the issue.
The court likewise held that Berman waived his challenge to the prosecutor’s closing argument about post-offense legislative changes. Berman made no contemporaneous objection to those comments, which prevented appellate review even though he framed the argument partly as a due-process claim.
Having overruled both issues on preservation grounds, the court affirmed the trial court’s judgments without deciding whether the challenged testimony or argument was substantively improper.
Key Takeaways
- An evidentiary objection must be timely and must identify the same ground later asserted on appeal.
- Relevance and hearsay objections do not preserve a claim that a witness lacked qualifications to offer lay or expert opinion testimony.
- A defendant generally must object contemporaneously to allegedly improper sentencing argument, including an argument framed on appeal as a constitutional violation.
Why It Matters
The decision underscores that error preservation rules apply rigorously during nonjury sentencing proceedings. Counsel must object when challenged testimony or argument is presented and state the precise legal basis for the objection; a different objection—or no objection—will ordinarily foreclose appellate review.
The opinion also illustrates that permission to appeal can preserve appellate jurisdiction following a charge bargain, even when the defendant pleads guilty and receives punishment within the contemplated range. That permission, however, does not excuse the separate requirement that alleged sentencing errors be preserved in the trial court.