Darby v. State (922 S.W.2d 614, 1996)

OPINION

HOLMAN, Justice.

David Obie Darby pled not guilty to the offense of indecency with a child by sexual contact, but pled “true” to two enhancement paragraphs of the indictment. A jury found him guilty of the offense, and the court assessed punishment of thirty years’ imprisonment in the Institutional Division of the Texas Department of Criminal Justice. Darby’s appeal protests that the prosecutor’s closing argument impermissibly commented on his failure to testify; that a sexually explicit magazine in evidence should have been ruled inadmissible; that the trial court erred by overruling his motion for new trial without a hearing; and that he had ineffective assistance from trial counsel. We affirm.

The female complainant was thirteen years of age, living with her unemployed mother, at the time of the charged offense. The mother, D.L., had sought work as a babysitter by placing the following classified ad in a newspaper:

Infant care, $250 a week, call details, south Arlington, [telephone number].

In response to the ad, Darby telephoned, told D.L. his name was