NO. 07-10-0367-CR
NO. 07-10-0368-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JUNE 13, 2011
CARLOS ENRIQUE VIGIL,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_____________________________
FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;
NOS. 57173-C & 57174-C; HONORABLE ANA ESTEVEZ, PRESIDING
Memorandum Opinion
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Carlos Enrique Vigil (appellant) appeals his convictions for aggravated sexual assault of a child and sexual assault of a child, both offenses enhanced. Before us is appointed counsel’s motion to withdraw, together with an Anders1 brief, wherein he certified that, after diligently searching the record, he concluded that the appeal was without merit. Along with his brief, appellate counsel filed a copy of a letter sent to appellant informing him of counsel’s belief that there was no reversible error and of appellant’s right to file a response pro se. By letter dated May 4, 2011, this court also notified appellant of his right to tender his own response and set June 3, 2011, as the deadline to do so. To date, no response has been filed.
In compliance with the principles enunciated in Anders, appellate counsel discussed two potential areas for appeal. They included 1) the sufficiency of the evidence, and 2) the cumulation of sentences. However, counsel then proceeded to explain why none of the issues required reversal on appeal.
In addition, we conducted our own review of the record to assess the accuracy of appellate counsel’s conclusions and to uncover any reversible error pursuant to Stafford v. State, 813 S.W.2d 508 (Tex. Crim. App. 1991). After doing so, we concur with those conclusions.
Accordingly, the motion to withdraw is granted, and the judgments are affirmed.
Brian Quinn
Chief Justice
Do not publish.
ence is relevant beyond its character conformity value, he has ruled on the full extent of the opponent's Rule 404(b) objection. Id.
The opponent must then make a further objection based on Rule 403, in order for the trial judge to weigh the probative and prejudicial value of the evidence. Id. To exclude extraneous offense evidence under Rule 403, the opponent must specifically request a Rule 403 ruling. See Montgomery, 810 S.W.2d at 388.
In the case before the court, appellant’s trial counsel did further object to the admission of the evidence under Rule 403. As in the Rule 404(b) arena, we will again apply an abuse of discretion standard in analyzing the trial court’s decision to admit this evidence over a Rule 403 objection. See Montgomery, 810 S.W.2d at 391. In conducting the balancing test regarding admissibility, the 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 issue, 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 repeat evidence already admitted. See Casey v. State, 215 S.W.3d 870, 880 (Tex.Crim.App. 2007).
Rule 404(b)
Initially appellant contends that the photographs and written materials admitted by the court were inadmissible under Rule 404(b) because they only demonstrated character conformity. Rule 404(b); Santellan, 939 S.W.2d at 169. However, the record reveals that during voir dire, opening statements, questioning of witnesses and closing arguments, appellant’s trial counsel consistently pounded on one theme. That theme was that, there was no evidence produced, or that could be produced, concerning the age of the person depicted in State’s exhibits 9 and 10. One of the reasons that extraneous offense material may be admitted is to rebut a defensive theory put forth by the defendant. Id. The extraneous pictures and stories were almost totally pictures of young children or stories about young children. This supports the State’s theory that appellant knew exactly what he had in his possession and the extraneous pictures and stories are admissible for that reason. Id. Additionally, the State was required to prove that appellant possessed the offending pictures intentionally or knowingly. See Tex. Penal Code Ann. § 43.26(a) (Vernon 2003).[3] A person acts intentionally when it is conscious objective or desire to engage in the conduct or cause the result. § 6.03(a). A person acts knowingly when he is aware of the nature of his conduct or that the circumstances exist, or when he is aware that his conduct is reasonably certain to cause the result. § 6.03(b). Normally, the culpable mental state required by a penal statute is proven by circumstantial evidence. See Krause v. State, 243 S.W.3d 95, 111 (Tex.App.--Houston [1st Dist.] 2007, pet. ref’d). If appellant is, via his argument at the trial court, claiming a lack of intent to possess or lack of knowledge that the materials possessed were child pornography, then these are avenues for the admission of the extraneous materials. See Johnson v. State, 932 S.W.2d 296, 302 (Tex.App.--Austin 1996, pet. ref’d). The possession of similar type of material, the pictures of children, the child “erotica” or “anime,” and the handwritten stories about children, are circumstances the jury was entitled to consider as circumstantial evidence to show intent. Therefore, we rule that the extraneous pictures were admissible as exceptions under Rule 404(b). Appellant’s issue is overruled.
Rule 403
However, this does not end the inquiry. We must now consider whether or not the evidence although relevant and, therefore, admissible, should have been disallowed due to the probative value of the evidence being substantially outweighed by the danger of unfair prejudice. Rule 403. There is a presumption that evidence which is deemed to be relevant is admissible. See Casey, 215 S.W.3d at 879. Further, “‘probative value’ refers to the inherent probative force of an item of evidence-that is, how strongly it serves to make more or less probable the existence of a fact of consequence to the litigation-coupled with the proponent’s need for that item of evidence.” Id. Unfair prejudice refers not to the fact that the evidence injures a party’s case or position, as virtually all evidence offered by one party will prejudice the opponent’s case or position. Id. at 883. Evidence is unfairly prejudicial when it tends to have some adverse effect upon the defendant beyond tending to prove the fact or issue that justifies its admission into evidence. Id.
In analyzing the current case, the first matter is the inherent probative force of the evidence. Id. at 879. The various pictures of children, the child “erotica” and “anime,” and the handwritten stories were highly probative of the fact that appellant had a fascination or preoccupation with children. Appellant’s defensive theory was the lack of proof of the very issue these items tended to prove. Therefore, the probative force of the evidence in question is significant. Next, the proponent’s need for the evidence must be examined. Id. at 888. As pointed out previously, appellant’s trial position was that the State could offer no proof that the pictures actually portrayed children. Therefore, appellant’s knowledge of, and preoccupation with, pictures of children, both those that might be termed pornographic and otherwise, was critical to proving the State’s case. This consideration would heavily favor admission of the evidence. From the aspect of the subject matter of the trial, the evidence in question did not distract the jury from their main inquiry, nor, did the evidence create a situation where the jury would give undue credence to this evidence. Id. This is because the evidence appellant complains of was much less graphic and disturbing than the pictures for which he was indicted. These factors favor admission of the evidence. Although the evidence in question took some time to introduce, especially when compared to introduction of the two photos charged in the indictment, the time did not seem to be inordinate. In the worst case situation, the time factor should be considered neutral. Whereas the trial judge did not announce the results of his balancing test, he is not required to do so. See Williams v. State, 958 S.W.2d 186, 195 (Tex.Crim.App. 1997). When a judge rules to admit evidence in face of a Rule 403 objection, he is presumed to have made the required balancing test. Id.
There were some pictures that contained adult pornographic material. These pictures were seized at the same time as the pornographic pictures of children, child anime or erotica, and the handwritten stories. The State contends that the adult pornographic material must be considered same transaction contextual evidence. See Delgado v. State, 235 S.W.3d 244, 253 (Tex.Crim.App. 2007). We need not address the adult pornography because, taking all of the information as a whole, the introduction of the evidence was harmless beyond a reasonable doubt. This is so because the trial court’s error, if any, in admitting the evidence made no contribution to the guilty verdict or punishment in this case. See Pondexter v. State, 942 S.W.2d 577, 585 (Tex.Crim.App. 1996).
Based upon our review of the record and analysis of the evidence in question, we cannot say that the trial court abused its discretion when it admitted the contested items. Accordingly, appellant’s issue regarding the Rule 403 objection is overruled.
Conclusion
Having overruled appellant’s issue, the trial court’s judgment is affirmed.
Mackey K. Hancock Justice
Do not publish.
[1] See Texas Penal Code Ann. § 43.26(a) (Vernon 2003).
[2] Further reference to the Texas Rules of Evidence will be by reference to “Rule ___” or “rule ___.”
[3] Further reference to the Texas Penal Code will be by reference to “§ ___.”