Donn Deveral Martin A/K/A Don Deveral Martin v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NOS. 02-07-308-CR
02-07-309-CR
02-07-310-CR
02-07-311-CR
02-07-312-CR
02-07-313-CR
02-07-314-CR
02-07-315-CR
02-07-316-CR

DONN DEVERAL MARTIN APPELLANT
A/K/A DON DEVERAL MARTIN

V.

THE STATE OF TEXAS STATE
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FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION 1
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I. Introduction

In six issues, Appellant Donn Deveral Martin appeals his nine convictions.

We affirm.

1
… See Tex. R. App. P. 47.4.
 II. Factual and Procedural Background

Martin, a resident of Abilene, occasionally slept over at his daughter’s

house in Arlington. At times, Martin was alone behind closed doors with S.S.,

his five-year-old granddaughter. On the morning of March 6, 2006, S.S. told

her mother that Martin had come into her room the previous night and licked

her “butt.” 2 During the investigation, the police discovered hundreds of child

pornography images on Martin’s computer, including photographs of S.S.

Following the investigation, the State charged Martin, by multiple

indictments, with four counts of aggravated sexual assault of a child under

fourteen years of age, three counts of sexual performance by a child, and two

counts of indecency with a child. Martin pleaded not guilty, and the case

proceeded to trial. After hearing the evidence, the jury found Martin guilty as

charged on all counts and in a separate punishment hearing sentenced him to

life on each of the four counts, of aggravated sexual assault and to twenty

years on each of the remaining counts. This appeal followed.

III. Motion to Suppress

In his first issue, Martin contends that the trial court erred in denying his

motion to suppress evidence obtained from the illegal search of his computer.

He argues that his wife did not have authority to consent to the search; and

2
… The evidence showed that S.S. was referring to her genitals when she
said “butt.”
therefore, the warrantless search by the police was unreasonable. Additionally,

Martin argues that because his wife lacked authority to consent and because

his oral consent was invalid 3 the police lacked effective consent to search his

computer. However, since Martin’s wife did have authority to consent and she

did, in fact, consent, the validity of Martin’s consent is moot and therefore, will

not be addressed.

A. Standard of Review

We review a trial court’s ruling on a motion to suppress evidence under

a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.

1997). We must view the evidence in the light most favorable to the trial

court’s ruling. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007);

State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When the record

is silent on the reasons for the trial court’s ruling, or when there are no explicit

fact findings and neither party timely requested findings and conclusions from

the trial court, we imply the necessary fact findings that would support the trial

court’s ruling if the evidence, viewed in the light most favorable to the trial

court’s ruling, supports those findings. Id.; see Amador, 221 S.W.3d at 673;

Wiede, 214 S.W.3d at 25. We then review the trial court’s legal ruling de novo

3
… Martin claims that his oral consent is invalid because he was under the
influence of pain medication at the time of his consent.
unless the implied fact findings supported by the record are also dispositive of

the legal ruling. Kelly, 204 S.W.3d at 819.

We must uphold the trial court’s ruling if it is supported by the record and

is correct under any theory of law applicable to the case even if the trial court

gave the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740

(Tex. Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex.

Crim. App. 2003), cert. denied, 541 U.S. 974 (2004).

B. Applicable Law

The Fourth Amendment protects against unreasonable searches and

seizures by government officials. U.S. Const. amend. IV; Wiede, 214 S.W.3d

at 24. A warrantless search is unreasonable per se unless it fits into one of the

few specifically defined and well established exceptions. Minnesota v.

Dickerson, 508 U.S. 366, 372, 113 S. Ct. 2130, 2135 (1993); see Estrada v.

State, 154 S.W.3d 604, 608 n. 12 (Tex. Crim. App. 2005). One such

exception is a warrantless search conducted after a person has given consent.

Brimage v. State, 918 S.W.2d 466, 480 (Tex. Crim. App. 1994).

A less common variation of the standard consent case is that of third

party consent. The Fourth Amendment recognizes a valid warrantless search

if the officers secure the consent of a third party who possesses common

authority over the premises or effects sought to be inspected. United States
v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993 (1974). Whether common

authority exists, turns on evidence of “mutual use of the property by persons

generally having joint access or control for most purposes.” Id. at 171 n. 7;

Welch v. State, 93 S.W.3d 50, 52 (Tex. Crim. App. 2002). Furthermore, the

court of criminal appeals has emphasized that “the third party’s legal property

interest is not dispositive in determining whether he has the authority to

consent to a search.” Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App.

2002).

C. Applicable Facts

In March, 2006, while investigating an outcry of sexual assault allegedly

committed by Martin against S.S., Detective Mike Weber of the Arlington police

department went to Martin’s home in Abilene and spoke with Martin’s wife

Beverly. Beverly discussed her and Martin’s family history with Detective

Weber. At some point, Detective Weber asked whether there were any

computers in the house. Beverly showed Detective Weber a computer located

in the downstairs hallway and Detective Weber asked if he could take it with

him. Beverly hesitated and said that she would need to call Martin, who was

in the hospital recovering from surgery, to ask his permission. She called

Martin and informed him that the police were at the house and were asking to

take his computer. Martin replied, “Well, Bev, if that will clear this up, give it
to them.” Beverly then signed a written consent form and turned the computer

over to Detective Weber.

D. Analysis

Before trial, Martin filed a motion to suppress the evidence obtained from

his computer on the grounds that the evidence had been illegally obtained.

Specifically, he argued that the search of his computer was unreasonable

because the police lacked valid consent to search.

During the suppression hearing, Beverly testified that the title to the

house she and Martin lived in was solely in her name, that she could go into

any area of the house, and that she had authority to use Martin’s computer.

However, Martin argues that because Beverly never used the computer without

his help and because it belonged solely to him, she did not have authority to

consent to the search. We disagree.

The authority to consent is not determined by ownership or actual use but

by joint access or control. See Matlock, 415 U.S. 164. Here, Beverly shared

equal access with Martin. Martin’s computer was located in an open area of

the house and not behind locked doors; the computer did not have password

protection except for internet purposes; and there was no evidence in the

record, nor did Martin direct us to any, that Beverly was prohibited from using

his computer.
 Therefore, it does not matter that Beverly never used Martin’s computer

without his help.4 The fact remains that she had access to and authority to use

his computer. Martin also argues that Beverly acknowledged her lack of

authority to consent when she told the police she needed to call Martin to get

his permission. Again, we disagree.

The fact that Beverly called Martin to get his permission in no way

diminishes her authority to consent. See Welch, 93 S.W.3d 50 (holding that

third party consent—at least a third party that has mutual access—is valid even

when the owner is present and does not consent to the search). Here, we’ve

already established that Beverly had mutual access to Martin’s computer;

therefore, Beverly’s authority to consent is not contingent on Martin granting

permission. Id. In fact, Beverly only asked to call Martin because she was

worried about the integrity of his research, and not because she lacked

authority.5 Therefore, Beverly provided valid and effective consent when she

signed the written consent form.

4
… At trial, Beverly testified that the reason she did not use Martin’s
computer without Martin being there was because she was not very good with
computers.
5
… When asked if the reason she did not give consent right away was
because the computer belonged to Martin, Beverly replied, “No. Well, the
reason I didn’t want to do that was because of all of his research on the
computer. Maybe I’ve watched too many shows, but I didn’t want to mess up
years and years of research.”
 Because the record supports a finding that Beverly had joint access to

Martin’s computer, and because Martin’s arguments show, at most, a lack of

equal, but not joint, access over his computer, we conclude that Martin failed

to demonstrate that the trial court erred in denying his motion to suppress.

Accordingly, we overrule Martin’s first issue.

IV. Factual Sufficiency

In his second issue, Martin argues that the evidence, when viewed in a

neutral light, is factually insufficient to support his nine convictions. In the

alternative, Martin asserts that even if the evidence is factually sufficient to

support the conviction for the March 5, 2006, count of aggravated sexual

assault of a child under the age of fourteen, it is insufficient to support the

remaining eight convictions, arguing that the State failed to identify him as the

man in the photographs. We disagree.

A. Standard of Review

When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.

Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas v.

State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then ask whether

the evidence supporting the conviction, although legally sufficient, is

nevertheless so weak that the jury’s determination is clearly wrong and
manifestly unjust or whether conflicting evidence so greatly outweighs the

evidence supporting the conviction that the jury’s determination is manifestly

unjust. Watson, 204 S.W.3d at 414–15, 417; Johnson v. State, 23 S.W.3d

1, 11 (Tex. Crim. App. 2000). To reverse under the second ground, we must

determine, with some objective basis in the record, that the great weight and

preponderance of all the evidence, though legally sufficient, contradicts the

verdict. Watson, 204 S.W.3d at 417.

In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not

enough that this court “harbor a subjective level of reasonable doubt to

overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly

wrong or manifestly unjust simply because we would have decided differently

than the jury or because we disagree with the jury’s resolution of a conflict in

the evidence. Id. We may not simply substitute our judgment for the jury’s.

Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim.

App. 1997). Unless the record clearly reveals that a different result is

appropriate, we must defer to the jury’s determination of the weight to be given

contradictory testimonial evidence because resolution of the conflict “often

turns on an evaluation of credibility and demeanor, and those jurors were in

attendance when the testimony was delivered.” Johnson, 23 S.W.3d at 8.
Thus, we must give due deference to the jury’s determinations, “particularly

those determinations concerning the weight and credibility of the evidence.”

Id. at 9.

B. Applicable Law

An opinion addressing factual sufficiency must include a discussion of the

most important and relevant evidence that supports the appellant’s complaint

on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). As

a fact finder, the jury is entitled to draw reasonable inferences from

circumstantial evidence to ultimate facts. Villani v. State, 116 S.W.3d 297,

303 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d). Thus, identity of a

perpetrator can be proved by direct or circumstantial evidence; eyewitness

identification is not necessary. Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim.

App. 1986); Couchman v. State, 3 S.W.3d 155, 162 (Tex. App.—Fort Worth

1999, pet. ref’d).

C. Analysis

Out of Martin’s nine convictions, only one arose from S.S.’s outcry. The

remaining eight convictions were the result of photographs found on Martin’s

computer. Because Martin’s factual insufficiency argument is separated into

(1) the conviction that arose from S.S.’s outcry and (2) the convictions that

arose from the photographs, we will tailor our analysis to his arguments.
 1. Conviction Arising From S.S.’s Outcry

Martin claims that the evidence is factually insufficient to support the

aggravated sexual assault conviction resulting from S.S.’s outcry because

S.S.’s testimony about the events that occurred were unclear and lacked

credibility.

S.S. was six years old at the time of trial. She testified that she could

not remember exactly what had happened to her when she was five years old

but, upon further questioning, she testified that she did remember telling her

mother that something bad had happened when her “granddaddy” had been in

the room with her. On cross, in response to the defense attorney’s questions,

S.S. testified that Ariel, King Triton, and Flounder, from the movie The Little

Mermaid, were real. On redirect, however, S.S. indicated that she had only

seen Disney characters in a movie and that a cartoon character, unlike her

family, had never visited her in her home or engaged in any real–life activities

with her. However, S.S.’s testimony was not the only evidence put before the

jury.

S.S.’s mother, testified that on March 5, 2006, her father Martin had

spent the night at her house. The following morning, her five-year-old

daughter, S.S., told her that Martin had “licked [her] butt . . . and [she] didn’t

like it.” Martin acknowledged sleeping over at his daughter’s house on the
night of the alleged incident but denied doing anything inappropriate to his

granddaughter.

The State introduced evidence that during the subsequent sexual assault

exam at the hospital, S.S. repeated the same allegation to the doctor. The

doctor collected S.S.’s underwear as evidence and a forensic biologist for the

Tarrant County Medical Examiner’s Office examined them. The forensic

biologist testified that DNA comprised of matter consistent with female vaginal

secretions combined with saliva had been identified and that Martin could not

be excluded as a contributor. Martin testified that a “tummy-blowing” game

could have resulted in the saliva on S.S.’s underwear.

The State also introduced into evidence the child pornography found on

Martin’s computer. Martin responded by introducing evidence that his son-in-

law worked as a computer consultant and that, although highly unlikely, it was

possible for someone to remotely hack into a computer and download

photographs onto it. Martin’s defensive theory was that the allegations against

him had been contrived by his daughter and her husband because of an

argument over a house they were purchasing from him. To support this theory,

Martin introduced into evidence, by way of various persons’ testimony, that he

owned the house that his daughter and her family lived in and that he had had

a falling out with her over selling the house. The State responded by
introducing into evidence two prior occasions where Martin had been involved

in misconduct with a child.

After examining all the evidence in a neutral light, we find that Martin’s

conclusion that the evidence is factually insufficient readily conflicts with the

standard of review for factual sufficiency. Martin argues the credibility of

S.S.’s testimony in isolation in order to arrive at his conclusion; however, the

factual sufficiency standard requires that we view all the evidence in a neutral

light. See Watson, 204 S.W.3d at 414. Therefore, after examining all of the

evidence in a neutral light, favoring neither party, we hold that the evidence

supporting Martin’s conviction for the March 5, 2006, aggravated sexual

assault charge is not so weak that the jury’s determination is clearly wrong or

manifestly unjust.

2. Convictions Arising From Photographs

Additionally, Martin argues that the State failed to identify him as the man

in the photographs found on his computer; therefore, the evidence is factually

insufficient to support the eight convictions that arose as a result of the

photographs. To support his argument, Martin claims that he did not take the

pictures, that he did not commit any of the alleged offenses, and that he was

out of the country on the dates that the alleged offenses occurred. The jury,

however, received the following direct and circumstantial evidence.
 Detective Mike Weaver of the Arlington police department testified that

a search of Martin’s computer turned up hundreds of child pornography

photographs. Martin testified that he did not know the photographs were on

his computer and that the computer was not password protected. Detective

Weaver also testified that he had identified the dates the photographs were

taken and the type of camera used to take them, a Sony Cybershot DSC-P32.

Martin responded that he was either in Abilene or out of the country on the

dates the photographs were taken. However, the State introduced evidence

that Martin’s passport revealed that he was unaccounted for during the times

he claimed to be out of the country. The State also entered into evidence a

Sony Cybershot DSC-P32 camera retrieved by the police from Martin’s home.

Martin responded that the camera belonged to his wife; however, his wife

testified that Martin was the primary user of the camera.

Some of the photographs discovered on Martin’s computer showed the

image of an adult male, whose face is unseen, performing sexual acts with S.S.

In a few of the photographs, the man’s shirt, hands, and sex organ can be

seen. Martin’s daughter and wife both testified that the man’s shirt in the

photograph looked like one owned by Martin. Martin denied owning the shirt

and the police were unable to find the shirt at Martin’s house. However,

Martin’s wife testified that she might have packed the shirt in Martin’s bag for
his stay at the hospital. Furthermore, Martin’s daughter testified that the hand

shown in one of the photographs belonged to Martin. 6 Finally, Detective Weber

testified that the male’s sex organ in the photograph was circumcised, that he

photographed Martin’s sex organ, and that Martin was circumcised. Martin

testified that he had not been circumcised. However, Martin’s wife testified

that Martin had told her that he had had a partial circumcision.

After examining all the evidence in a neutral light, we cannot say that the

evidence in this case is so weak that the verdicts are clearly wrong and

manifestly unjust or that the conflicting evidence so greatly outweighs the

evidence supporting the verdict that the jury’s determination is manifestly

unjust. See Johnson, 23 S.W.3d at 9. A decision is not manifestly unjust

merely because the jury resolved conflicting views of the evidence in favor of

the State. Cain, 958 S.W.2d at 410. Deferring, as we must, to the jury’s

resolution of contradictory testimony and evaluation of credibility and

demeanor, we conclude that the evidence, when viewed in a neutral light, is

factually sufficient to support the jury’s finding that Martin was the unidentified

man in the photographs; and therefore, the evidence is factually sufficient to

support the eight convictions that arose from the photographs. See Johnson,

6
… Martin’s daughter based her identification of his hand on a scar and
freckle shown in the photograph that matched a scar and freckle on her father’s
hand.
23 S.W.3d at 9.

Having found that the evidence is factually sufficient to support all nine

of Martin’s convictions, we overrule Martin’s second issue.

V. Competency of a Child Witness

In his third and fourth issues, Martin contends that the trial court erred

in allowing six-year-old S.S. to testify.

A. Standard of Review

A trial court’s determination of whether a child witness is competent to

testify and its ruling on the issue will not be disturbed on appeal absent an

abuse of discretion. Broussard v. State, 910 S.W.2d 952, 960 (Tex. Crim.

App. 1995), cert. denied, 519 U.S. 826 (1996). We review the child’s

responses to qualification questions as well as the child’s entire testimony to

determine whether the trial court’s ruling constituted an abuse of discretion.

De Los Santos v. State, 219 S.W.3d 71, 80–81 (Tex. App.—San Antonio

2006, no pet.).

B. Applicable Law

Rule 601 of the Rules of Evidence, creates a presumption that a person

is competent to testify. Tex. R. Evid. 601. The trial court has no duty to

conduct a preliminary examination on its own motion. McGinn v. State, 961

S.W.2d 161, 165 (Tex. Crim. App. 1998). Once the competency of a child
witness is challenged, the trial court must assure itself that the child has (1) the

ability to intelligently observe the events in question at the time of the

occurrence, (2) the capacity to recollect the events, and (3) the capacity to

narrate the events. Torres v. State, 33 S.W.3d 252, 255 (Tex. Crim. App.

2000) (quoting Watson v. State, 596 S.W.2d 867, 870 (Tex. Crim. App.

1980)). Inconsistencies or conflicts in a child’s testimony do not automatically

render the child incompetent to testify but, instead, affect the weight to be

given to the child’s testimony. See Upton v. State, 894 S.W.2d 426, 429

(Tex. App.—Amarillo 1995, pet. ref’d).

However, to preserve a complaint for our review, a party must have

presented to the trial court a timely request, objection, or motion that states the

specific grounds for the desired ruling if they are not apparent from the context

of the request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Mosley v.

State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert.

denied, 526 U.S. 1070 (1999). An objection must be made as soon as the

basis for the objection becomes apparent. Tex. R. Evid. 103(a)(1); Lagrone v.

State, 942 S.W.2d 602, 618 (Tex. Crim. App.), cert. denied, 522 U.S. 917

(1997); Polk v. State, 729 S.W.2d 749, 753 (Tex. Crim. App. 1987). Further,

the trial court must have ruled on the request, objection, or motion, either

expressly or implicitly, or the complaining party must have objected to the trial
court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Mendez v. State, 138

S.W.3d 334, 341 (Tex. Crim. App. 2004).

C. Analysis

Here, Martin complains that the trial court erred in finding S.S. competent

to testify and further erred in having overruled his motion to strike S.S.’s

testimony. However, Martin failed to timely preserve his complaint.

In a hearing held outside the presence of the jury, the trial court probed

S.S.’s ability to distinguish the truth from a lie by asking, “[I]f I said, how do

you like my white robe, would that be telling you the truth or would I be telling

you a lie?” S.S. correctly answered that it was a lie. Also, when asked by the

State, “[W]e know that you’re not supposed to tell lies, don’t we?”, S.S. replied

“yes.”

After asking her a series of questions, the trial court found S.S.

competent to testify. During the court’s questioning of S.S., Martin did not

object, nor did he object when the trial court made its finding of competency.

Furthermore, Martin did not make any objections when S.S. testified in the

presence of the jury. In fact, Martin’s only objection came after the witness

had been passed and the jury had left for the day. That was too late. See Tex.

R. Evid. 103(a)(1); Lagrone, 942 S.W.2d at 618 (holding that the objection was

untimely because appellant did not object until the prosecutor’s question had
been asked and answered, and the prosecutor had passed the witness); Polk,

729 S.W.2d at 753 (holding that for an objection to be timely, it must be

lodged “at the earliest opportunity,” or “as soon as the ground for objection

becomes apparent”).

Because Martin failed to object at his earliest opportunity, he has

preserved nothing for appellate review on this point; therefore, we overrule

Martin’s third and fourth issues.

VI. Double Jeopardy

In his fifth issue, Martin complains that his nine convictions constitute

multiple punishments for the same offense; therefore, his right to be free from

double jeopardy was violated.

A. Standard of Review

The Double Jeopardy Clause of the United States Constitution provides

that no person shall be subjected to twice having life or limb in jeopardy for the

same offense. U.S. Const. amend. V. Generally, this clause protects against

multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161,

165, 97 S. Ct. 2221, 2225 (1977); Ex parte Herron, 790 S.W.2d 623, 624

(Tex. Crim. App. 1990) (op. on reh’g).

To determine whether offenses are the same, we must examine the

elements of the applicable statutes to determine whether each statute “requires
proof of an additional fact which the other does not.” Blockburger v. United

States, 284 U.S. 299, 304, 52 S. Ct. 180, 182 (1932); see United States v.

Dixon, 509 U.S. 688, 696, 113 S. Ct. 2849, 2856 (1993); Parrish v. State,

869 S.W.2d 352, 353–55 (Tex. Crim. App. 1994). However, in multiple

punishment cases, the court of criminal appeals has recognized that Blockburger

is not the exclusive test and that theses cases require a two-step analysis. The

first step is to examine the proof necessary to establish the statutory elements

of each offense as alleged in the indictment. Vineyard v. State, 958 S.W.2d

834, 836 (Tex. Crim. App. 1998). The second step requires an analysis of the

legislative intent, i.e., whether it was the legislature’s intent to impose multiple

punishments or only one. Ex parte Ervin, 991 S.W.2d 804, 814 (Tex. Crim.

App. 1999).

B. Applicable Law

A person commits aggravated sexual assault of a child under the age of

fourteen, if the person intentionally or knowingly: (1) causes the penetration of

the anus or sexual organ of a child by any means or (2) causes the anus of a

child to contact the mouth, anus, or sexual organ of another person, including

the actor. Tex. Penal Code Ann. § 21.02(a)(1)(B)(i),(iv) (Vernon Supp. 2008).

A person commits the offense of indecency with a child younger the

seventeen years, if the person: (1) engages in sexual contact with the child or
causes the child to engage in sexual contact or (2) with intent to arouse or

gratify the sexual desire of any person (A) exposes the person’s anus or any

part of the person’s genitals, knowing the child is present or (B) causes the

child to expose the child’s anus or any part of the child’s genitals. Tex. Penal

Code Ann. § 21.11(a)(1), (2) (Vernon 2003). Sexual contact means any

touching of any part of the body of a child, including touching through clothing,

with the anus, breast, or any part of the genitals of a person. Id. at (c)(2).

Courts have held indecency with a child to be a lesser included offense

of aggravated sexual assault in certain circumstances—namely, when the State

uses one act to prove both offenses. See, e.g., Ochoa v. State, 982 S.W.2d

904, 908 (Tex. Crim. App. 1998); Beltran v. State, 30 S.W.3d 532, 534 (Tex.

App.—San Antonio 2000, no pet.). However, when evidence supporting an

indecency charge is not the same as that supporting the prosecution for

aggravated sexual assault, the former will not be deemed to be a lesser included

offense of the latter, and both may be prosecuted without violating the double

jeopardy clause. See, e.g., Bottenfield v. State, 77 S.W.3d 349, 358 (Tex.

App.—Fort Worth 2002, pet. ref’d), cert. denied, 539 U.S. 916 (2003)

(evidence showed appellant touched victim’s “winkie” twice, thus supporting

convictions for both aggravated sexual assault and indecency).

C. Analysis
 Martin asserts that the trial court deprived him of his constitutional

protections against double jeopardy by allowing the State to prosecute and

punish him twice for the same offense. Specifically, Martin argues that the

State did not conclusively establish when the photographs found on his

computer were taken and, as a result, Martin received multiple punishments for

the same offense. In the alternative, Martin argues that, if the dates were

conclusively established, then the two photographs taken on December 16,

2004, constitute one offense; and therefore, the convictions he received for the

December 16, 2004, photographs—indecency with a child and aggravated

sexual assault—constitute multiple punishments. We disagree.

The following is a list of Martin’s convictions arising from the

photographs found on his computer:7

2-07-309-CR – 05/28/2005 Indecency with a Child (Fondling):
Photo of a child laying between an
adult male’s legs reaching up behind
herself and grasping the adult male’s
sex organ.
2-07-310-CR – 12/16/2004 Indecency with a Child (Fondling):
Photo of a child’s hands grasping the
end of an adult male’s sex organ.
2-07-311-CR – 05/28/2005 Aggravated Sexual Assault of a Child

7
… Detective Weaver testified that although some of the pictures did not
show the face of S.S., other pictures taken around the same time and at the
same location did. The jury could have reasonably inferred that the young
female in the photographs was S.S. Furthermore, we have already held that
there was sufficient evidence to support the jury’s determination that Martin is
the male in the photographs.
 (under 14): Photo of an adult male’s
sex organ touching the vagina of a
young female.
2-07-312-CR – 04/18/2005 Aggravated Sexual Assault of a Child
(under 14): Photo of an adult male’s
sex organ touching the vagina of a
young female.
2-07-313-CR –12/16/2004 Aggravated Sexual Assault of a Child
(under age 14): Photo showing the
mouth of a child being penetrated by
an adult male’s sex organ.
2-07-314-CR –12/16/2004 Sexual Performance by a Child:
Digital File of a young female ex–
posing her genitals.
2-07-315-CR –01/08/2005 Sexual Performance by a Child:
Digital File of a young female
touching the outside of her vaginal
area and spreading the vaginal area
to some degree.
2-07-316-CR –12/11/2004 Sexual Performance by a Child:
Digital File of a young female pulling
back her panties and exposing her
vaginal area.

At trial, the jury heard testimony by Detective Mike Weaver, a certified

forensic computer examiner with the Arlington police department. Detective

Weaver testified extensively on the methods he used to determine the dates

that the photographs were taken. On cross, Martin asked Detective Weaver

whether it was possible to manipulate the date and time on the image.

Detective Weaver’s reply was, “Is it possible, yes. Unlikely, no. It’s not likely

in this case in my opinion.”

Deferring, as we must, to the jury’s resolution of contradictory testimony
and evaluation of credibility and demeanor, we conclude that the evidence

supports the jury’s reliance on the dates established by Detective Weaver’s

testimony. Consequently, because the photographs, with a few exceptions,

were taken on different dates, Martin’s convictions do not violate the double

jeopardy clause. However, since there were multiple punishments for

photographs taken on December 16, 2004, we must address Martin’s argument

that the State punished him twice for the same act.

In separate indictments, the State charged Martin with aggravated sexual

assault of a child under the age of fourteen and indecency with a child. The

charges stemmed from two photographs found on Martin’s computer; both

taken on December 16, 2004. The photographs clearly show two separate and

distinct acts; (1) contact between S.S.’s hands and Martin’s sex organ and (2)

contact between S.S.’s mouth and Martin’s sex organ. See, e.g., Murray v.

State, 24 S.W.3d 881, 889 (Tex. App.—Waco 2000, pet. ref’d) (holding that

defendant may be convicted of both indecency with a child and aggravated

sexual assault when evidence indicates that defendant penetrated victim’s

female sexual organ with his fingers and touched her genitals with his tongue).

Because the evidence supporting Martin’s indecency charge is not the same as

that supporting the evidence for his aggravated sexual assault charge, the

former will not be deemed to be a lesser included offense of the latter, and both
may be prosecuted without violating the double jeopardy clause. Accordingly,

we overrule Martin’s fifth issue.

VII. Extraneous Offenses

In his sixth and final issue, Martin contends that the trial court abused its

discretion in admitting evidence of extraneous offenses.

A. Standard of Review

A trial court’s ruling on the admissibility of evidence is reviewed under an

abuse of discretion standard. Moses v. State, 105 S.W.3d 622, 627 (Tex.

Crim. App. 2003). If the trial court’s ruling was within the zone of reasonable

disagreement, there is no abuse of discretion. Id. Further, a trial court’s

decision regarding admissibility of evidence will be sustained if correct on any

theory of law applicable to the case, even when the court’s underlying reason

for the decision is wrong. Romero v. State, 800 S.W.2d 539, 543–44 (Tex.

Crim. App. 1990) (citing Spann v. State, 448 S.W.2d 128 (Tex. Crim. App.

1969)).

B. Applicable Law

Pursuant to rule 404(b), evidence of extraneous offenses is not admissible

during the guilt-innocence phase of a trial to prove a defendant acted in

conformity with his bad character. Tex. R. Evid. 404(b). However, extraneous

offense evidence may be “admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence

of mistake or accident” when it has relevance beyond character conformity.

Id.; Moses, 105 S.W.3d at 626.

Rebuttal of a defensive theory is also one of the permissible purposes for

which evidence may be admitted under rule 404(b). Moses, 105 S.W.3d at

626. The court of criminal appeals has held that extraneous offense evidence

is admissible under rule 404(b) to rebut a defensive theory raised in an opening

statement. Ransom v. State, 920 S.W.2d 288, 301 (Tex. Crim. App. 1994)

(op. on reh’g). In sexual assault cases, extraneous offense evidence may be

admitted under rule 404(b) to rebut defensive theories of retaliation or that the

defendant is an innocent victim of a “frame-up.” Wheeler v. State, 67 S.W.3d

879, 887 n. 22 (Tex. Crim. App. 2002) (involving the defensive theory of

conspiracy or frame-up motivated by greed or money); Moses, 105 S.W.3d at

627 (involving a retaliation defensive theory); Dennis v. State, 178 S.W.3d

172, 178 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (involving frame-up

defensive theory motivated by anger or revenge).

Even if relevant evidence is offered and admissible under rule 404(b), a

trial court should nevertheless exclude it if its probative value is substantially

outweighed by the danger of unfair prejudice. Tex. R. Evid. 403; Moses, 105

S.W.3d at 626. The trial court must conduct a rule 403 balancing test to make
this determination. See Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim.

App. 1999); Bargas v. State, 252 S.W.3d 876, 890–91 (Tex. App.—Houston

[14th Dist.] 2008, no pet. h.). When undertaking a rule 403 analysis, a trial

court must balance (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 will consume an inordinate amount

of time or merely repeat evidence already admitted. Gigliobianco v. State, 210

S.W.3d 637, 642 (Tex. Crim. App. 2006).

C. Analysis

Martin contends that the trial court abused its discretion by permitting the

State to question him regarding a statutory rape charge filed against him in

1983.8 He also argues that the trial court abused its discretion by allowing the

testimony of Amanda Rogers.9 Martin complains that the evidence was too

8
… The statutory rape charge was later dropped when Martin pleaded
guilty to a lesser charge of contributing to the delinquency of a minor.
9
… Rogers testified that in 1992, when she was around the age of nine
or ten, Martin, while staying the night at her parent’s house, had kissed her,
had inserted his finger into her vagina, and had touched her inappropriately on
remote to be probative; or alternatively, that the probative value, if any, was

substantially outweighed by its prejudicial effect. The State however, argues

that it sought to admit the evidence of the extraneous offenses to rebut

Martin’s defensive theory that his daughter and son-in-law had “orchestrated

this event.” In his opening statement, Martin stated:

Keep an open mind until you’ve listened to all the evidence in this
case, because there’s a lot that hasn’t been said. What you’re
going to find out is that in 2001 [S.S.] and her parents moved into
the house that was owned by [Martin] . . . They moved in and
they decided that they wanted that house. Well, they were never
able to get the money together to buy the house. What they did
do, the house was damaged in 2002 by hail and rain . . . and there
was substantial funds that were never given to [Martin]. [The
funds] were put in [S.S.’s parents’] account and kept and some of
the repairs were paid for. . . . They never came through.

Subsequent to that time[,] the two of them kept asking [Martin],
“Why don’t you just give us the house? . . . And he said, “No, we
had a deal that you were going to buy the house from me.”

And what has happened is [S.S.’s father], who is a computer
expert, you’ll find worked on this computer that [Martin] had
bought in 2005 at his house okay? These photos that are on this
computer will give you a string of dates of when supposedly the
photos were taken and when they were placed on the computer.
You’ll find out that all those dates and times can be manipulated by
an expert that knows how to manipulate them.

It is clear from his opening statement, that Martin raised a “frame-up”

defensive theory. Therefore, under Moses, we hold that the trial court did not

abuse its discretion in determining that the statutory rape charge and Rogers’

other parts of her body.
testimony were relevant rebuttal evidence to show the jury that S.S.’s parents

were not motivated by greed or money in making the allegations against Martin.

See Moses, 105 S.W.3d at 627. However, as previously noted, even if

relevant evidence is offered and admissible under rule 404(b), we must

nevertheless exclude it if its probative value is substantially outweighed by the

danger of unfair prejudice. Tex. R. Evid. 403; Moses, 105 S.W.3d at 626.

Accordingly, we must conduct a 403 balancing test to determine whether the

probative value is outweighed by undue prejudice. See Mozon, 991 S.W.2d at

847; Bargas, 252 S.W.3d at 891–92.

The first of the three factors—the strength of the evidence to make a fact

of consequence more or less probable—weighs strongly in favor of

admissibility. This is so, primarily because the evidence of the statutory rape

charge and the testimony by Rogers were probative to rebut the defensive

theory that S.S.’s parents had framed Martin in order to get the house.

Therefore, the admission of this evidence makes it less likely that S.S.’s

allegations concerning the charged offenses were the result of a frame-up.

As to the second and third factors, although the evidence had the

potential to impress the jury in an indelible way, any unfair prejudice is

outweighed by the probative value of the evidence. See Bargas, 252 S.W.3d

at 893–94. Furthermore, the State did not elicit detailed accounts of the
offenses, but only asked a few questions in order to show similarities to the

charged offenses.

Finally, other than the details and circumstances of the charged offenses,

the State had no other evidence to rebut Martin’s defensive theory. Therefore,

the State displayed a need for the evidence to counter Martin’s defensive

theory that S.S.’s parents were trying to frame him. 10

In balancing the above factors, we find that the trial court’s decision to

admit the extraneous offense evidence was within the zone of reasonable

disagreement. As such, we hold that the trial court did not abuse its discretion

under rule 403 in admitting the extraneous offense evidence; and accordingly,

we overrule Martin’s sixth and final issue.

10
… Martin elicited testimony from L.S. to support his theory that L.S., as
a computer expert, had the ability to tamper with his computer.
 VIII. Conclusion

Having overruled all six of Martin’s issues, we affirm the trial court’s

judgment.

BOB MCCOY
JUSTICE

PANEL: LIVINGSTON, DAUPHINOT, and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: November 6, 2008