TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
v.
The State of Texas, Appellee
NO. 35,891, HONORABLE ROBERT E. MAY, JUDGE PRESIDING
An investigation of child pornography on the internet led police to appellant. Officers executing a warrant to search appellant's residence seized, among other things, two home videotapes showing appellant engaging in sex acts with the children named in the three counts of the indictment. Nine excerpts from these videotapes were shown to the jury. Appellant argues in point of error one that the acts depicted were cumulative and, in light of his guilty plea, the probative value of this evidence was substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. The decision to admit evidence over a rule 403 objection is reviewed for an abuse of discretion. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g).
The entry of a guilty plea before a jury does not restrict the State's right to present evidence. See York v. State, 566 S.W.2d 936, 938 (Tex. Crim. App. 1978). Any evidence that would be admissible under a plea of not guilty is also admissible under a plea of guilty. See id. The purpose of offering evidence in such a case is to enable the jury to intelligently exercise its discretion in assessing punishment. See id.
In this cause, those portions of the videotapes showing appellant engaging in the acts alleged in the indictment were clearly admissible under the principles discussed in York. Evidence of other acts committed by the defendant against the same child victims was also admissible "for its bearing on relevant matters," including the defendant's state of mind. See Tex. Code Crim. Proc. Ann. art. 38.37, § 2 (West Supp. 2000); see also Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (West Supp. 2000) (evidence may be offered at punishment hearing "as to any matter the court deems relevant to sentencing"). The district court's conclusion that the evidence was neither unfairly prejudicial nor unnecessarily cumulative was within the zone of reasonable disagreement. See Montgomery, 810 S.W.2d at 391. Point of error one is overruled.
In point of error three, appellant contends that State's exhibit seventeen, a commercial pornographic videotape found in appellant's house during the search, should not have been admitted because its probative value was substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. Appellant did not make this objection in the trial court and therefore did not preserve this contention for review. See Tex. R. App. P. 33.1(a). Point of error three is overruled.
In point of error two, appellant alleges that the police seized over one hundred items, including "computer equipment, photographs, commercial videos, papers, intellectual property matters of First Amendment interests, and clothing," during the search of his residence. He argues that the seizure of these items was not authorized by the search warrant and that the district court erred by admitting this improperly seized evidence.
Only three items seized during the search were introduced in evidence. State's exhibits ten and eleven, the two videotapes discussed under point of error one, are not mentioned by appellant in this point of error and, in any event, he did not object to their admission on this ground. State's exhibit seventeen, the commercial pornographic videotape previously discussed, was not played for the jury. All the jury saw of this exhibit was its cover, with pictures of a man and a woman engaged in sex acts. In light of the evidence showing appellant engaging in sex acts with the complainants, and of other evidence showing that appellant posted fifty-eight pornographic pictures of the complainants on the internet, we are satisfied that any error in the admission of exhibit seventeen did not affect appellant's substantial rights. See Tex. R. App. P. 44.2(b). The only other evidence to which point of error two could possibly apply is State's exhibits six through nine, four photographs of appellant's computer equipment taken by the police during the search. Appellant stated that he had no objection when these exhibits were offered and introduced, waiving any error. Point of error two is overruled.
Appellant's last point of error complains that he did not receive effective assistance of counsel at trial. To prevail on this claim, appellant must show that counsel made such serious errors that he was not functioning effectively as counsel and that these errors prejudiced appellant's defense to such a degree that he was deprived of a fair trial. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 988 S.W.2d 770, 771-72 (Tex. Crim. App. 1999); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); and see Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985); O'Hara v. State, 837 S.W.2d 139, 143 (Tex. App.--Austin 1992, pet. ref'd). We must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).
Most of appellant's complaints about trial counsel's performance concern jury selection. After the court had ruled on all challenges for cause and the parties' peremptory strikes had been made, but before the jury was empaneled and sworn, counsel told the court that he had neglected to challenge for cause two of the twelve panelists selected for the jury. The court granted the challenges and the next two panelists on the list were added to the jury. Appellant now urges that counsel was ineffective because he did not challenge the two panelists at the proper time, and because he did not request two additional peremptory strikes when the first error was caught. It is obvious that the untimely challenges for cause did not prejudice appellant because the challenges were granted. Appellant cites no authority suggesting that he was entitled to two additional peremptory strikes under the circumstances shown.
Appellant points out that one of the two jurors added after the untimely challenges were granted was a former police officer who ultimately served as jury foreman. In an affidavit admitted in evidence at the new trial hearing, trial counsel stated that he did not attempt to strike this panelist because he "told me point blank during voir dire that he could be fair despite his law enforcement experience. Striking him would have necessitated accepting another juror who believed strongly in retribution as the primary purpose of the criminal law." The failure to challenge this panelist was clearly a matter of considered trial strategy that, on this record, we are in no position to second-guess. See Delrio v. State, 840 S.W.2d 443, 447 (Tex. Crim. App. 1992).
Appellant also complains that trial counsel neglected to challenge a panelist who was not a resident of Brazoria County, thereby waiving any complaint that this disqualified person served on the trial jury. See Mayo v. State, 4 S.W.3d 9, 12 (Tex. Crim. App. 1999). In his affidavit, trial counsel acknowledged that he did not notice that the panelist's juror information card indicated a Wharton County residence. Appellant made no effort at the new trial hearing to demonstrate that this juror was otherwise objectionable or that her presence on the jury prejudiced him in any way.
Finally, appellant complains of trial counsel's failure to object to the introduction of State's exhibits six through nine, the photographs of his computer equipment. This complaint was not made in appellant's motion for new trial or mentioned at the new trial hearing. Given the state of the record, appellant has not overcome the presumption that counsel's failure to object was a reasonable one. See Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). Further, it cannot be said on this record that the failure to object to the introduction of the photographs affected the outcome of the trial. Point of error four is overruled.
The judgment of conviction is affirmed.
Marilyn Aboussie, Chief Justice
Before Chief Justice Aboussie, Justices Kidd and B. A. Smith
Affirmed
Filed: August 31, 2000
Do Not Publish
of counsel at trial. To prevail on this claim, appellant must show that counsel made such serious errors that he was not functioning effectively as counsel and that these errors prejudiced appellant's defense to such a degree that he was deprived of a fair trial. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 988 S.W.2d 770, 771-72 (Tex. Crim. App. 1999); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); and see Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985); O'Hara v. State, 837 S.W.2d 139, 143 (Tex. App.--Austin 1992, pet. ref'd). We must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).
Most of appellant's complaints about trial counsel's performance concern jury selection. After the court had ruled on all challenges for cause and the parties' peremptory strikes had been made, but before the jury was empaneled and sworn, counsel told the court that he had neglected to challenge for cause two of the twelve panelists selected for the jury. The court granted the challenges and the next two panelists on the list were added to the jury. Appellant now urges that counsel was ineffective because he did not challenge the two panelists at the proper time, and because he did not request two additional peremptory strikes when the first error was caught. It is obvious that the untimely challenges for cause did not prejudice appellant because the challenges were granted. Appellant cites no authority suggesting that he was entitled to two additional peremptory strikes under the circumstances shown.
Appellant points out that one of the two jurors added after the untimely challenges were granted was a former police officer who ultimately served as jury foreman. In an affidavit admitted in evidence at the new trial hearing, trial counsel stated that he did not attempt to strike this panelist because he "told me point blank during voir dire that he could be fair despite his law enforcement experience. Striking him would have necessitated accepting another juror who believed strongly in retribution as the primary purpose of the criminal law." The failure to challenge this panelist was clearly a matter of considered trial strategy that, on this record, we are in no position to second-guess. See Delrio v. State, 840 S.W.2d 443, 447 (Tex. Crim. App. 1992).
Appellant also complains that trial counsel neglected to challenge a panelist who was not a resident of Brazoria County, thereby waiving any complaint that this disqualified person served on the trial jury. See Mayo v. State, 4 S.W.3d 9, 12 (Tex. Crim. App. 1999). In his affidavit, trial counsel acknowledged that he did not notice that the panelist's juror information card indicated a Wharton County residence. Appellant made no effort at the new trial hearing to demonstrate that this juror was otherwise objectionable or that her presence on the jury prejudiced him in any way.
Finally, appellant complains of trial counsel's failure to object to the introduction of State's exhibits six through nine, the photographs of his computer equipment. This complaint was not made in appellant's motion for new trial or mentioned at the new tri