Javier Carbajal v. State ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00141-CR
___________________________
JAVIER CARBAJAL, Appellant
V.
The State of Texas
On Appeal from the 371st District Court
Tarrant County, Texas
Trial Court No. 1496658D
Before Sudderth, C.J.; Gabriel and Kerr, JJ.
Memorandum Opinion by Chief Justice Sudderth
MEMORANDUM OPINION
Thirty-six year old Appellant Javier Carbajal took advantage of his coaching
position of a club basketball team and sexually assaulted basketball player Abby,1 who
was only 15 at the time. He pleaded guilty to four counts of sexual assault of a child
under the age of 17 and a jury assessed concurrent 10-year sentences for each of the
four counts. Carbajal now argues that we should reverse his convictions because (1)
the trial court failed to admonish Carbajal of sex-offender-registration requirements
and (2) the trial court erred by overruling Carbajal’s objection to the State’s improper
jury argument. His first argument is statutorily precluded, and although the State’s
improper jury argument was erroneously permitted, the error was harmless. We
therefore overrule Carbajal’s two issues and affirm the trial court’s judgment.
Brief Facts
Abby reluctantly testified to her relationship with Carbajal. Carbajal began by
grooming Abby. He called her “supermodel,” drove her to and from practices, and
texted her that “if [she] was born in another time, he would be with [her].” Shortly
after Abby’s 15th birthday, she and Carbajal began to have sex. Oftentimes, Carbajal
would lie to Abby’s mother about practice times so that he had more opportunities to
have sex with Abby. The pair had at least two sexual encounters before Abby’s
mother became suspicious—once in the back seat of Carbajal’s truck and another at
1
We refer to the complainant by an alias to protect her privacy. See McClendon v.
State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).
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Carbajal’s house while his own two children were home. Once Abby’s mother found
out about the relationship, she withdrew Abby from the basketball team and moved
Abby and Abby’s two younger siblings to another town and to new schools. When
Abby’s Mother confronted Carbajal, he promised he would stay out of Abby’s life.
But Carbajal lied. He quickly resumed his sexual relationship with Abby and also left
his wife and moved to an apartment. Abby described at least three more sexual
encounters during this time with Carbajal, including another in his truck, one in his
apartment, and one in a motel. When Abby’s mother eventually found out Carbajal
and Abby had continued their relationship, she reported it to the police.
Carbajal was charged with four counts of sexual assault of a child under the age
of 17. See Tex. Penal Code Ann. § 22.011(a)(2) (West Supp. 2018). He pleaded guilty
and asked for a jury to assess his punishment.
Discussion
I. Plea admonishment
Carbajal argues that his convictions should be reversed because the trial court
failed to admonish him of sex-offender-registration requirements when it accepted his
guilty pleas. But in so arguing, Carbajal relies upon caselaw that has been statutorily
overruled.
Article 26.13 lists the admonishments that a trial court is required to give
before accepting a guilty plea and includes a requirement that a defendant convicted
of a sex offense must be informed of sex-offender-registration requirements. Tex.
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Code Crim. Proc. Ann. art. 26.13(a)(5) (West Supp. 2018). Previously, the failure to
issue a sex-offender-registration admonishment was subject to nonconstitutional-error
analysis and could warrant a reversal of the defendant’s conviction. Anderson v. State,
182 S.W.3d 914, 919–921 (Tex. Crim. App. 2006). But the legislature has since
amended article 26.13 to expressly provide that the failure to issue a sex-offender-
registration admonishment “is not a ground for the defendant to set aside the
conviction, sentence, or plea.” See Act of June 18, 2005, 79th Leg., R.S., ch. 1008, §
1.03, 2005 Tex. Gen. Laws 3419, 3419 (codified at Tex. Code Crim. Proc. Ann. art.
26.13(h)).
Thus, even if the trial court erred by failing to warn Carbajal of sex-offender-
registration requirements, such failure cannot constitute grounds for reversal. Id.; see
also, e.g., Morin v. State, 340 S.W.3d 816, 817–18 (Tex. App.—San Antonio 2011, pet.
ref’d) (holding failure to warn of sex-offender-registration requirements cannot
constitute reversible error). We therefore overrule Carbajal’s first issue.
II. Improper jury argument
Carbajal argues in his second issue that the trial court erred by overruling his
objection to the State’s statement during final argument that the Tarrant County
community “demand[ed]” that the jury send Carbajal to prison:
[Prosecutor]: Send him to prison because that’s what he deserves.
The community demands it because Tarrant County - -
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[Defense counsel]: Judge, I’m going to object to that as improper.
The community does not demand it in this case. They have not heard
the evidence in this case. That’s an improper plea for law enforcement.
[Prosecutor]: Plea for law enforcement is absolutely proper.
THE COURT: I’ll allow it.
[Prosecutor]: The people of Tarrant County demand it because,
in Tarrant County, we don’t tolerate this kind of behavior.
To be permissible, the State’s jury argument must fall within one of the
following four general areas: (1) summation of the evidence; (2) reasonable deduction
from the evidence; (3) answer to opposing counsel’s argument; or (4) plea for law
enforcement. Freeman v. State, 340 S.W.3d 717, 727 (Tex. Crim. App. 2011), cert.
denied, 565 U.S. 1161 (2012); Felder v. State, 848 S.W.2d 85, 94–95 (Tex. Crim. App.
1992), cert. denied, 510 U.S. 829 (1993).
The trial court erred by overruling Carbajal’s objection to the State’s expression
of what the community demanded or expected.2 A plea to convict or assess
punishment because of public clamor or perceived community expectations is not a
plea for law enforcement. Indeed, the court of criminal appeals has been clear that
“jury argument by a prosecuting attorney that is designed to induce the jury to convict
the defendant or assess him a particular punishment because ‘the people’ desire such
is improper jury argument.” Cortez v. State, 683 S.W.2d 419, 420–21 (Tex. Crim. App.
1984) (collecting cases in which the court has disapproved of arguments that invoked
On appeal, the State does not attempt to defend the prosecutor’s statements as
2
proper jury argument.
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community expectations or demands). The prosecutor’s statement, “The people of
Tarrant County demand [a prison sentence] because, in Tarrant County, we don’t
tolerate this kind of behavior,” is clearly violative of that precedent, and it does not
fall within any of the other four generally permissible areas of argument. See id.
Nevertheless, we will not reverse the trial court’s judgment based on the
erroneously overruled objection unless the error affected the defendant’s substantial
rights. See Tex. R. App. P. 44.2(b); Martinez v. State, 17 S.W.3d 677, 692–93 (Tex.
Crim. App. 2000); Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on
reh’g), cert. denied, 526 U.S. 1070 (1999). In determining whether Carbajal’s substantial
rights were affected, we consider (1) the severity of the misconduct (that is, the
prejudicial effect of the prosecutor’s remarks), (2) curative measures, and (3) the
certainty of the punishment absent the misconduct. Martinez, 17 S.W.3d at 692–93;
Mosley, 983 S.W.2d at 259. Because the trial court overruled Carbajal’s objection, no
curative measures were taken; we will therefore consider only the first and third
factors.
The prosecutor’s misconduct does not rise to such a level of severity as to
weigh in favor of reversal. Her statement was isolated, made at the close of the State’s
initial closing argument, and was not repeated. Such a brief and isolated remark is
generally considered harmless. See Maxwell v. State, No. 02-11-00038-CR, 2012 WL
2849279, at *4 (Tex. App.—Fort Worth July 12, 2012, pet. ref’d) (mem. op., not
designated for publication) (commenting upon the lack of authority reversing a
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conviction “solely for one brief, isolated remark”). Carbajal’s counsel countered the
State’s assertion of the community’s demands by pointing out in his closing argument
that the community had not heard any of the evidence in the case. And when the
State returned for its rebuttal argument, it urged the jurors, “Be proud of your
verdicts, ladies and gentlemen. Be proud of it. Do you want the paper to say Tarrant
County jury probates basketball coach who slept with player, or do you want it to say
Tarrant County jury sent that man to prison?” This is a proper plea for law
enforcement. See Cortez, 683 S.W.2d at 421 (explaining that is not improper to urge
the jury to be the voice of the community, but is improper to ask the jury to lend its
ear to the community).
Nor can we say that the prosecutor’s improper argument undermined the
certainty of the punishment issued, four 10-year sentences for sexual assault of a
minor. Carbajal faced a maximum sentence of 20 years’ confinement for each charge.
Tex. Penal Code Ann. § 12.33 (West 2011). A sentence of 10 years or more made him
ineligible for community supervision. Tex. Code Crim. Proc. Ann. art. 42A.053(c)(1)
(West 2018). We can reasonably conclude based on the jury’s verdict that the jury did
not believe that Carbajal was a suitable candidate for community supervision, and the
evidence supports this conclusion despite the State’s impermissible invocation of the
community’s demand for a prison sentence.
Carbajal, a basketball coach of high-school-aged girls, preyed upon one of his
players, groomed her, and had sex with her repeatedly, even at his house with his own
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children at home. He lied to Abby’s mother—who as a working mother could not
attend every single basketball practice and had trusted Carbajal to assist Abby as a
basketball player—in order to have more time to have sex with Abby. After it
appeared that he would elude prosecution for his crimes the first time Abby’s mother
discovered his relationship with her daughter, Carbajal broke his promise to Abby’s
mother when he lied by assuring her that he would end his relationship with Abby.
Carbajal’s predatory behavior, his lies, and his deception affected Abby’s entire
family—Abby’s mother testified that her family would “never be the same again ever.
No matter what happens today, could not change.”
Considering the evidence and arguments as a whole, we cannot say that the trial
court’s error affected Carbajal’s substantial rights. We therefore overrule his second
issue.
Conclusion
Having overruled Carbajal’s two issues, we affirm the trial court’s judgment.
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: January 10, 2019
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