TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
---------------
NO. 03-01-00265-CR
---------------
Brian A. Hough, Appellant
v.
The State of Texas, Appellee
----------------------------------------------------------------
-
FROM THE DISTRICT COURT OF RUNNELS COUNTY, 119TH JUDICIAL DISTRICT
NO. 4880, HONORABLE BEN WOODWARD, JUDGE PRESIDING
----------------------------------------------------------------
-
A jury convicted Brian A. Hough of aggravated sexual assault of a child and assessed
punishment at life in prison. He contends that the district court abused his discretion by admitting evidence
of extraneous offenses and bad acts at both phases of trial, by not instructing the jury that it must find
beyond a reasonable doubt that he committed the extraneous offenses and acts before considering them in
assessing his punishment, and by excluding evidence favorable to him. We will affirm the judgment.
BACKGROUND
Hough lived in Ballinger and Stamford with his wife, Lisa, and her daughters, M.W. and
J.W. This case arises from M.W.=s accusations that Hough committed a series of escalating sexual offenses
that began in Ballinger and continued in Stamford. At the time of the Ballinger offense at issue here, Hough
was thirty-three years old and M.W. was thirteen.
Before trial, Hough requested notice of intent to introduce evidence of extraneous offenses
under Texas Rule of Evidence 404(b) and Texas Code of Criminal Procedure articles 37.03 and 38.37.
The State provided identical notices for both the guilt/innocence and punishment phases, notifying Hough
that it intended to introduce evidence through Lisa Hough and M.W. regarding an aggravated sexual assault
occurring between March 9, 1999 and June 13, 1999 in Jones County, TexasCthe county in which
Stamford is located.
At trial, the State offered not only M.W.=s testimony about events occurring in Stamford,
but several photographs and testimony from Tracy Stansberry, best man at the Houghs= wedding. At
guilt/innocence, the court admitted photos of M.W. in her underwear and nude and photos of Hough in a
suit with his penis exposed. At punishment, the court admitted photos of Hough nudeCalone, with Lisa
partially clothed, and with J.W. naked and sitting on himCas well as photos of J.W. alone and naked. The
State also elicited testimony in both phases of trial from Stansberry about photos that Hough e-mailed him
of M.W. nude and of M.W. and Hough having sex; copies of these photos were not offered because
Stansberry deleted them upon receiving them.
DISCUSSION
2
Hough=s four points of error all relate to the admission or exclusion of evidence. He
contends that the court erred by admitting evidence regarding extraneous offenses and bad acts at both
phases of trial. He contends that the court erred by failing to instruct the jury at the punishment phase that it
must believe the evidence of extraneous offenses and bad acts beyond a reasonable doubt before
considering them. Finally, he contends that the court abused his discretion by excluding evidence favorable
to him.
Errors at the guilt/innocence phase.
By his third point of error, Hough contends that the district court abused his discretion
during the guilt/innocence phase by overruling Hough=s objections to the introduction of photos of him and
M.W. and of Stansberry=s testimony regarding e-mail photos he received from Hough. We review a court=s
ruling on the admissibility of evidence for an abuse of discretion. Green v. State, 934 S.W.2d 92, 101-02
(Tex. Crim. App. 1996). We will not reverse such a ruling so long as it falls Awithin the >zone of reasonable
disagreement.=@ Id. at 102 (quoting Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990)
(op. on reh=g)). Moreover, error may not be predicated upon a ruling which admits or excludes evidence
unless a substantial right of the party is affected. See Tex. R. Evid. 103(a). Hough complains that the
admission of nude photographs of M.W. violated notice requirements. See Tex. Crim. Proc. Code Ann.
art. 38.37 (West Supp. 2002); Tex. R. Evid. 404(b). He also argues that the probative value of the
evidence is far outweighed by the danger of unfair prejudice or misleading the jury. See Tex. R. Evid. 403.
3
Hough is estopped from pursuing these complaints about the improper application of these
rules of procedure and evidence at the guilt/innocence phase because he admitted his guilt at the punishment
phase; though an admission of guilt at the punishment phase does not waive all errors committed at the
guilt/innocence phase, it bars assertion of errors that do not involve due process or fundamental rights. See
Leday v. State, 983 S.W.2d 713, 724-26 (Tex. Crim. App. 1998); see also Gutierrez v. State, 8
S.W.3d 739, 745 (Tex. App.CAustin 1999, no pet.). Hough does not complain that the admission of the
photos or Stansberry=s testimony was illegal or violated any fundamental rights, only the rules of evidence.
Because the truth-discovering purpose of the trial was vindicated by Hough=s confession of guilt without any
infringement on his fundamental rights, he cannot complain of these procedural missteps in the
guilt/innocence phase of trial. See Leday, 983 S.W.2d at 724-25; Guerrero, 8 S.W.3d at 745. We
overrule point three as it relates to the guilt/innocence phase of trial. Because evidence admitted at
guilt/innocence may also affect the jury=s deliberations on punishment, we will consider below whether the
court erred by admitting this evidence and whether any errors were harmful. See Reyes v. State, 994
S.W.2d 151, 153 (Tex. Crim. App. 1999).
The same reasoning also disposes of point of error four. Hough contends that the district
court erred by excluding evidence that, while he was in jail, M.W. or Lisa sent him a photo of M.W. sitting
on a couch in what appear to be shorts and a tank top. Hough offered the photo at guilt/innocence and
argues on appeal that the court should have admitted the evidence to impeach M.W. by showing her
motive, bias, attitude, and feelings. He contends that the evidence would have blunted the State=s case that
his relationship with M.W. was based on fear and coercion. The evidence was excluded after the district
4
court sustained the State=s objection to the evidence on grounds of relevance and hearsay. Hough has not
shown that the district court=s exclusion of this evidence at guilt/innocence infringed upon a fundamental
right. It does not bear on any of the elements of the offense. Indeed, he concedes in his appellate brief that
the evidence Aprobably would not have affected the verdict on guilt or innocence . . . [but it] may have been
beneficial in the punishment phase.@ There is no indication in the record, however, that Hough offered the
evidence at the punishment phase. His admission of the offense estops him from complaining about the
exclusion of this evidence at the guilt/innocence phase, and his failure to offer the evidence at punishment
precludes him from complaining that the district court excluded it then. See Leday, 983 S.W.2d at 724-25;
Tex. R. App. P. 33.1(a)(1)(A). We overrule point four.
Errors at the punishment phase.
At the punishment phase, the State may introduce evidence of any matter the court deems
relevant to sentencing, including any extraneous bad acts. Tex. Code Crim. Proc. Ann. art. 37.07, ' 3(a)
(West Supp. 2002).1 Before considering errors Hough alleges occurred at the punishment phase, we will
1
The statute reads in relevant part:
evidence may be offered by the state and the defendant as to any matter the court
deems relevant to sentencing, including but not limited to the prior criminal
record of the defendant, his general reputation, his character, an opinion
regarding his character, the circumstances of the offense for which he is being
tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any
other evidence of an extraneous crime or bad act that is shown beyond a
reasonable doubt by evidence to have been committed by the defendant or for
which he could be held criminally responsible, regardless of whether he has
previously been charged with or finally convicted of the crime or act.
5
consider the punishment-phase implications of Hough=s complaints under point three regarding the district
court=s admission of evidence at the guilt/innocence phase.
Hough waived some of his complaints regarding evidence introduced at guilt/innocence by
not making timely, sufficient objections. See Tex. R. App. P. 33.1(a)(1)(A). He did not object during trial
that the State=s notice of intent to introduce evidence of extraneous offenses at guilt/innocence was
insufficient. Nor did he object to the photos of himself in a suit with his penis exposed. His objection to the
extraneous offenses Aon the basis of Rule 404(b)@ does not specify which aspect of the rule was violated
and therefore did not preserve error. See Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991)
(objection must be specific to preserve error); Phelps v. State, 999 S.W.2d 512, 518 (Tex.
App.CEastland 1999, pet. ref=d).
Tex. Code Crim. Proc. Ann. art. 37.07, ' 3(a) (West Supp. 2002).
6
Hough argues that the photos of M.W. nude were not relevant to the indicted offense, that
any probative value was greatly outweighed by the risk of unfair prejudice or confusion of issues. The
district court overruled the objection, but instructed the jurors that they could consider the extraneous acts
only if they believed beyond a reasonable doubt that the acts occurred, that they could consider that
evidence only as it illustrated the parties= relationship or their states of mind, and that evidence of extraneous
acts was not evidence that the indicted offense occurred. See Tex. Code Crim. Proc. Ann. art. 38.37, ' 2
(West Supp. 2002).2 In a case on charges of aggravated sexual assault of a child and indecency with a
child, the Fourteenth Court of Appeals held that evidence of 520 other sexual assaults by the same assailant
on the same victim were relevant to show the parties= relationship and states of mind. Hinojosa v. State,
995 S.W.2d 955, 957 (Tex. App.CHouston [14th Dist.] 1999, no pet.). The court also held that the
relevance of this evidence was not greatly outweighed by the risk of unfair prejudice. Id. at 958; see also
Poole v. State, 974 S.W.2d 892, 898 (Tex. App.CAustin 1998, pet. ref=d) (relevance of 750 sexual
assaults not greatly outweighed by risk of unfair prejudice). Pictures of M.W. partially clothed and naked
2
The statute provides:
Notwithstanding Rules 404 and 405, Texas Rules of Criminal Evidence, evidence
of other crimes, wrongs, or acts committed by the defendant against the child who
is the victim of the alleged offense shall be admitted for its bearing on relevant
matters, including:
(1) the state of mind of the defendant and the child; and
(2) the previous and subsequent relationship between the defendant and the child.
Tex. Code Crim. Proc. Ann. art. 38.37, ' 2 (West Supp. 2002).
7
have some relevance at guilt/innocence regarding the parties= relationship; they are even more relevant to his
character at punishment. Their prejudicial effect is small when compared to the offense of sexual assault,
and minuscule compared to the hundreds of extraneous sexual assaults found not to be unfairly prejudicial
by the courts in Hinojosa and Poole. Hinojosa, 995 S.W.2d at 958; Poole, 974 S.W.2d at 898. We
find no abuse of discretion in their admission regarding punishment.
Hough also objected to Stansberry=s testimony on grounds that it concerned extraneous
offenses. The district court overruled the objection at guilt/innocence, but gave a limiting instruction similar
to that given regarding the photos of M.W. Stansberry=s testimony about photos of M.W. and Hough
having sex and oral sex was relevant to the states of mind of the assailant and victim. The testimony added
little new information. No photos were introduced, so the testimony was even less prejudicial than the
photos in evidence. We find no abuse of discretion in the admission of this testimony. We overrule point of
error three as it relates to the punishment phase.
By point of error one, appellant contends that the district court abused his discretion by
failing to sustain his timely objection to the introduction during the punishment phase of evidence of
extraneous offenses, bad acts, and inflammatory photographs of appellant and J.W., who was five at the
time of the photographs. Hough also complains that the State did not provide the necessary notice of its
intent to introduce evidence at the punishment phase regarding extraneous offenses. See Tex. Code Crim.
Proc. Ann. art. 37.07, ' 3(g) (West Supp. 2002).
8
Hough waived some of these complaints by failing to object, but preserved others.
Regarding the photos of J.W. alone naked, he objected Afor the reason that the testimony of the witness
indicates that these matters are extraneous, they are photographs of a person other than [M.W.]. They are
photographs which by her testimony were taken in Stamford, Texas, at a time removed from the time of the
alleged offense in this case . . . .@ With regard to photos of Hough naked alone and with Lisa, Hough=s
attorney stated, AThe same objection, Your Honor. These are extraneous and any probative value is
substantially outweighed by the risk of unfair prejudice to the Defendant.@ With respect to the photo of
J.W. and Hough, he objected to the authentication, the excessive risk of unfair prejudice, and that A[i]t is a
matter that does not relate to [M.W.] or this subject matter of the charges against him in Runnels County,
Texas. And it is exceedingly inflammatory and prejudicial.@ Hough contends that these objection informed
the court that he was complaining that the notice of intent to offer evidence regarding sexual assaults of
M.W. occurring in Jones County. We disagree, finding that Hough=s objections in each instance related to
the extraneous nature of the photos and their prejudicial effect rather than lack of notice. We conclude that
Hough cannot complain on appeal of a lack of notice of intent to introduce this evidence. See Tex. R. App.
P. 33(a)(1)(A). Hough=s objections preserved his right to complain that the district court erroneously
concluded that the risk of unfair prejudice from the evidence did not substantially outweigh its probative
value. See id.; Tex. R. Evid. 403.
The photos of appellant nude and the photo of him nude with his wife topless were neither
particularly relevant nor prejudicial. They may have had some relevance to his character, and there is
9
nothing extraordinarily inflammatory or prejudicial about consenting spouses taking photos of each other in
stages of undress for private use.
The photos of the five- or six-year-old J.W. are both more prejudicial and probative. In
Nenno v. State, a case in which the defendant murdered a seven-year-old girl after sexually assaulting her,
the court of criminal appeals found no error in the admission of evidence of an encounter with another young
girl in which the defendant pulled her broken bicycle into his garage, fixed the chain, then patted her Aon her
>butt=@ making her Afeel mad and sad.@ See Nenno v. State, 970 S.W.2d 549, 564 (Tex. Crim. App.
1998). The court rejected Nenno=s Rule 403-based objection, holding that Athe >inflammatory= nature of
the evidence is that it tended to show that appellant was a child molester. Showing appellant to be a child
molester was a perfectly legitimate purpose, and hence, while the evidence was >prejudicial,= it was not
unfairly so.@ Id.; see also Tex. R. Evid. 403. Here, the State likely introduced the photos of J.W. to imply
that Hough=s sexual interest in young girls extended beyond M.W.3 The problem for Hough is that the
probative nature of the photos of J.W. correlates directly to their prejudicial value. If the jury finds the
photos illustrate a penchant for child molestation, then the photos are prejudicial, but in a way that is
deemed fair at the punishment phase; if the jury finds the photos inoffensive and not indicative of
a character flaw, then the photos are not unfairly prejudicial. Either way, the risk of unfair prejudice does
not substantially outweigh the probative value. See Tex. R. Evid. 403.
3
There is no direct testimony that Hough took the pictures of J.W. Lisa, through
whom the photos were offered, testified only that he took photos and that she did not take these
photos.
10
The photo of J.W. and Hough nude is the most potentially inflammatory and prejudicial. In
it, Hough is naked, reclining on a bed with his knees bent and his legs spread. J.W. is sitting on or above his
lower abdomen or groin with her arms stretched out to her sides, holding onto Hough=s hands. Although his
scrotum and the base of his penis are clearly visible underneath her and between her legs, the rest of his
penis is hidden by J.W.=s right thigh. Hough asserted at trial that his penis was Anot even close@ to being
inside J.W.=s sexual organ, but the copy of the photo in the appellate record is much less definitive. It
doubtless was extremely prejudicial to his defense, but we cannot conclude that it was not also probative of
his character. See Nenno, 970 S.W.2d at 564. Nor can we can conclude that the district court abused his
discretion by concluding that the risk of unfair prejudice did not substantially outweigh its probative value
concerning his character. We overrule point of error one.
11
By point of error two, Hough contends that the district court erred by failing to instruct the
jury at the punishment phase that, before considering the extraneous offenses and bad acts as part of its
deliberations, it must find beyond a reasonable doubt that the defendant committed the offenses or acts.
Hough concedes that he neither requested such an instruction nor objected to its absence from the
punishment charge. The State concedes that the district court nevertheless was required to give the
instruction and erred by failing to do so. See Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App.
2000). Because Hough did not object to the absence of the instruction at trial, we will reverse only if the
error is so egregious and created such harm as to deny him a fair and impartial trial. See Almanza v. State,
686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh=g). We assay the degree of harm Ain light of the
entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence,
the argument of counsel and any other relevant information revealed by the record of the trial as a whole.@
Id.
12
We conclude that the absence of an instruction did not cause egregious harm because of the
weight of the evidence that Hough committed the extraneous offenses and bad acts. On cross-examination
at punishment, Hough admitted to having sex with M.W. on numerous occasions. He also admitted to
photographing M.W. topless, having sex with him, and performing oral sex on him; he admitted e-mailing
those photos to Stansberry. He admitted being photographed with J.W. while both were naked. He
admitted to asking Lisa and M.W. to lie for him or not testify against him in court. These admissions
confirm beyond a reasonable doubt that he committed the bad acts that Lisa and Stansberry collectively
asserted in their testimony at punishment that he committed. The failure to instruct the jury on the standard
of proof neither compelled him to admit these actions nor caused the jury to consider actions he did not
commit when determining punishment. We find no harm, much less egregious harm, from the district court=s
failure to give this instruction. Taking into account the rest of the trial does not alter this result. We overrule
point two.
CONCLUSION
Having overruled all four points of error, we affirm the judgment.
Lee Yeakel, Justice
Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel
13
Affirmed
Filed: May 23, 2002
Do Not Publish
14