Opinion issued June 7, 2012
In The
Court of Appeals
For The
First District of Texas
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NOS. 01-10-00652-CR; 01-10-00653-CR; 01-10-00654-CR; 01-10-00655-CR; 01-10-00656-CR; 01-10-00657-CR; 01-10-00658-CR; 01-10-00659-CR; 01-10-00660-CR; 01-10-00661-CR; 01-10-00662-CR
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William Andrew Allen, Appellant
V.
The State of Texas, Appellee
On Appeal from the 155th District Court
Waller County, Texas
Trial Court Case Nos. 12,976; 12,977; 12,978; 12,979; 12,980; 12,981; 12,982; 12,983; 12,984; 12,985; 12,986
MEMORANDUM OPINION
Appellant William Andrew Allen was convicted by a jury on eight counts of indecency with a child,[1] one count of sexual assault of a child,[2] and two counts of aggravated sexual assault of a child.[3] Punishment was assessed at 40 years’ confinement on both counts of aggravated sexual assault, and 20 years’ confinement on each count of indecency with a child and sexual assault of a child. The trial court ordered the sentences to run concurrently.
Appellant timely appealed, seeking a new trial because the trial court allegedly erred by admitting certain evidence. We affirm.
BACKGROUND
In a consolidated trial, appellant’s three step-daughters each testified in detail about being sexually molested by appellant. The State also presented several other witnesses who were familiar with the complainants or involved in the sexual-abuse investigation, including a CPS investigator, a CPS case worker, the program director of the Children’s Advocacy Center, a forensic interviewer with the Children’s Advocacy Center, a clinical psychologist with the Children’s Crisis Care Center, an assistant principal from one of the complainant’s middle school, the complainants’ great aunt, a Sheriff’s Department Lieutenant specializing in crimes against children, a board certified Child Abuse Pediatrician, a Licensed Professional Counselor Intern, and an inmate who had spent time in jail with the appellant.
The appellant testified that he did not molest the complainants, and several people testified on his behalf, including the complainants’ mother, grandmother, and aunt. As no sufficiency-of-the-evidence challenge has been advanced, we need not chronicle all of this evidence in detail. Instead, we will focus on the evidence relevant to our analysis of the appellant’s evidentiary challenges.
ISSUES ON APPEAL
Appellant raises three issues on appeal:
(1) “Whether the court erred in allowing the admission of a pornographic video tape over objection under Rule 403 that the probative value, if any, was outweighed by the danger of unfair prejudice.”
(2) “The trial court erred in allowing the State’s witness, Assistant Principal, Rose Uherek to testify that the Defendant’s step child, a complainant in his case, often came to school with bad hygiene over objection that said evidence was not relevant.”
(3) “The trial court erred in allowing the State’s witness, Assistant Principal, Rose Uherek to testify that the defendant’s step child, a complainant in this case, often came to school with bad hygiene over objection that the probative value, if any, was outweighed by the danger of unfair prejudice.”
APPLICABLE LAW
A. Relevance
Evidence is “relevant” if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tex. R. Evid. 401. Relevancy is “predicated on a subjective relationship between the proffered evidence and a fact that is of consequence to the determination of the action.” Carter v. State, 851 S.W.2d 390, 391 (Tex. App.—Fort Worth 1993, pet. ref’d). Evidence that is not relevant is not admissible. Tex. R. Evid. 402. A court’s ruling on the relevance of evidence is reviewed for an abuse of discretion. Fox v. State, 115 S.W.3d 550, 558 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d).
B. Rule 403
Texas Rule of Evidence 403 provides: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” In other words, “[r]elevant evidence is generally admissible, but it is properly excluded under Rule 403 when its probative value is substantially outweighed by the danger of unfair prejudice.” Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). “In keeping with the presumption of admissibility of relevant evidence, trial courts should favor admission in close cases.” Id. (citing Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990)).
The term “‘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.” Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006). “‘Unfair prejudice’ refers to a tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Gigliobianco, 210 S.W.3d at 641(citing State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005)). “Evidence might be unfairly prejudicial if, for example, it arouses the jury’s hostility or sympathy for one side without regard to the logical probative force of the evidence.” Casey, 215 S.W.3d at 880.
When conducting the balancing test under Rule 403, the trial court determines whether the probative value of the evidence is substantially outweighed by one of the following countervailing considerations listed in the rule. See, e.g., Casey, 215 S.W.3d at 879. The trial court is given wide latitude in weighing the concerns of unfair prejudice under Rule 403. See Mozon v. State, 991 S.W.2d 841, 846–47 (Tex. Crim. App. 1999); Montgomery, 810 S.W.2d at 391–92. In reviewing the trial court’s balancing test determination under rule 403, we presume that the probative value of the evidence outweighs any prejudicial effect. Montgomery, 810 S.W.2d at 391. We reverse the trial court’s ruling “rarely and only after a clear abuse of discretion.” Mozon, 991 S.W.2d at 847 (quoting Montgomery, 810 S.W.2d at 392).
C. Harm Analysis
If the court determines on appeal that the trial court erred in the admission or exclusion of evidence, it then must determine whether such error mandates reversal. Fox, 115 S.W.3d at 563. In a case such as this one, when the appellant does not argue that any error was constitutional, the court assesses whether it is reversible error because it affected appellant’s substantial rights. Tex. R. App. P. 44.2(b) (“Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.”); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001) (“The appropriate standard of harm is to disregard an error unless a substantial right has been affected.”). Error affects a substantial right when it has a “substantial and injurious effect or influence in determining the jury’s verdict.” Johnson, 43 S.W.3d at 4. The Court of Criminal Appeals instructs us to look at the record as a whole in making this determination:
In assessing the likelihood that the jury’s decision was adversely affected by the error, the appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury’s consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case. The reviewing court might also consider the jury instruction given by the trial judge, the State's theory and any defensive theories, closing arguments and even voir dire, if material to appellant’s claim.
Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000).
PORNOGRAPHIC VIDEO TAPE
State’s Exhibit 6 was a picture of a VHS tape with the title “Adam and Eve, Red Light District with Girls.” Officer Brian Cantrell testified that the tape contained pornographic material and that he found it on a desk in appellant’s bedroom. He further testified that the tape was confiscated during a search of appellant’s house for evidence to corroborate the complainants’ outcry statements. On cross-examination, Office Cantrell clarified that the tape contained only adult pornography.
When Exhibit 6 was introduced, appellant’s counsel objected to both relevance and undue prejudice:
State’s Exhibit Number 6, Judge, I would object to it as not being relevant and probative value, if any, is outweighed by the danger of unfair prejudice.
The State responded that the tape corroborates one of the complainants’ statements:
Your Honor, Lieutenant Cantrell stated that when they were going to execute the search warrant that they were looking for things that corroborated what the outcry or the victim’s statements were, and this is one of the pictures that were found that were taken in the house that corroborates what the victim stated was inside the house.
Noting that it was for the jury “as to whether it corroborated or not,” the court overruled the appellant’s objection to the picture of the VHS tape.
In his first point of error, appellant argues that the probative value of the photograph of the pornographic tape was outweighed by the danger of unfair prejudice because the tape “carried strong character implications.” He points out that he is “alleged to have committed sexual assault on children,” but that the court admitted into evidence “a pornographic video of unrelated adults having sex,” which only involved “pornographic actors and did not involve either the defendant or any of the alleged victims.” This tape, he contends, “could easily ‘arouse[] the jury’s hostility or sympathy for one side without regard to the logical probative force of the evidence.” Gigliobianco, 210 S.W.3d at 640–41. He stresses that he had a right to be tried only on the crimes charged, not “extraneous acts” that might meet the jury’s disapproval.
The appellant acknowledges the State’s argument that the presence of a pornographic tape corroborated one complainant’s testimony that appellant forced her to watch pornography, but notes that “neither in the child’s testimony or in Officer Cantrell[’s] did he ever say that the child identified this particular tape as one she viewed.” Given this, and given that “all three child witnesses and the outcry witness testified” as to the complainants’ allegations, appellant argues “the state’s need for the evidence was outweighed by danger of unfair prejudice and the potential harm to the defendant of the pornographic tape.”
In response, the State emphasizes the considerable discretion afforded to trial courts in evidentiary decisions that “should not be reversed unless th[e] ruling falls outside of the ‘zone of reasonable disagreement,’ Salazar v. State, 38 S.W.3d 141, 153–54 (Tex. Crim. App. 2001), even if the trial court gives the wrong reason for [its] decision so long as the decision is correct on any theory of law applicable to the case.” Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002).
Here, the State argues, one of the complainants testified that appellant made her watch pornographic movies with him and would make her try to engage in the same sexual acts portrayed in the movie. While she did not testify to the movie introduced being one of the movies she watched with appellant, the State contends that because there was testimony that appellant watched pornographic videos with one of his step-daughters before sexually assaulting her, admitting the picture of pornographic video found in appellant’s room had some relevance to the issues for the jury to decide.
Finally, according to the State, given the other evidence related to appellant’s viewing of pornographic materials, “[a]ny prejudicial effect, if there is any shown at all, did not affect the defendant’s right to a fair trial and not have an injurious effect or influence on the jury’s verdict.” The State also notes that appellant “received a limiting instruction in the charge to the jury.”[4]
The jury was not shown the contents of the video tape at issue. It was shown a picture of the tape showing the title “Adam and Eve, Red Light District with Girls,” and Office Cantrell testified that it contained adult pornography. Thus, the issue is not whether anything particular on the tape was unduly prejudicial but, rather, whether the fact that appellant possessed adult pornography would “arouse[] the jury’s hostility or sympathy for one side without regard to the logical probative force of the evidence.” Gigliobianco, 210 S.W.3d at 640–41. We conclude, viewing the record as a whole, that the trial court did not commit reversible error by admitting the picture of the pornographic video tape.
It is well settled that “Rule 403 requires an admissible photograph to possess ‘some probative value and that its probative value not be substantially outweighed by its inflammatory nature.’” Krause v. State, 243 S.W.3d 95, 105 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (quoting Santellan v. State, 939 S.W.2d 155, 172 (Tex. Crim. App. 1997)). To make this determination, we “consider these general rule 403 factors: (1) the probative value of the evidence; (2) the potential to impress the jury in some irrational, yet indelible, way; (3) the time needed to develop the evidence; and (4) the proponent’s need for the evidence.” Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004).
Probative Value
Here one complainant testified that, on more than one occasion, appellant made her watch “a sexual movie,” in which “there would be guys and girls trying to have sex with each other.”[5] She testified that she “would try not to” watch the movie, because of its sexual nature. At least once, appellant told her he wanted to try having sex with her in a way portrayed in the film, and she told him that she did not want to, but he made her.
Officer Cantrell, a Waller County Sheriff’s Lieutenant in the crimes-against-persons division, testified that pornography is often used to groom child victims of sexual crimes:
My experience, grooming basically is employed by sexual predators, to simplify it, what sexual predators will do is they will introduce children to maybe certain photographs of that, that are pornographic, not necessarily child pornography, but in the case of child pornography, what they will do is they will gauge their reaction to this child pornography, they often use it as a way to warm the child. Grooming is also referred to as warming the child, and this is what these images are used for.
Given the complainant’s testimony about the appellant’s use of pornography in his bedroom immediately before sexually assaulting her and Office Cantrell’s testimony about the use of pornography in grooming child sexual assault victims, the picture of a VHS tape containing pornography found in appellant’s bedroom had some probative value in corroborating at least one of the complainant’s versions of events.
Prejudicial Effect
“‘Unfair prejudice’ refers to a tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Casey, 215 S.W.3d at 879. But, as the Court of Criminal Appeals has explained, the fact that evidence is detrimental does not render it unfairly prejudicial.
Unfair prejudice does not arise from the mere fact that evidence injures a party’s case. Virtually all evidence that a party offers will be prejudicial to the opponent’s case, or the party would not offer it. Cohn v. State, 849 S.W.2d 817, 820 (Tex. Crim. App. 1993). Evidence is unfairly prejudicial only when it tends to have some adverse effect upon a defendant beyond tending to prove the fact or issue that justifies its admission into evidence. United States v. Figueroa, 618 F.2d 934 (2d Cir. 1980). The prejudicial effect may be created by the tendency of the evidence to prove some adverse fact not properly in issue or unfairly to excite emotions against the defendant. See id.
Casey, 215 S.W.3d at 883.
The admission of legally possessed “sex toys and other sexually oriented materials” has been found to constitute reversible error under Rule 403 in an indecency-with-a-child case in which “nothing in the record . . . would connect the sex toys to the State’s allegations of indecency with a child.” Warr v. State, ___ S.W.3d ___, No. 06-08-00089-CR, 2009 WL 996028, at *4–5 (Tex. App.—Texarkana April 15, 2009, no pet.) (erroneous admission of items, used by State to argue that because of defendant’s “predilection towards sex, things sexual, it’s not a stretch to see then the extension of that onto the area that we’ve seen with the [child complainant]” was not harmless).
Balancing and Harm
Appellant complains that the trial court admitted the pornographic video tape without “performing any type of balancing test as required under Rule 403.” But “[w]hen, as in this case, the record is silent as to the trial court’s balancing of these factors, we presume the trial court conducted the balancing test.” Bargas v. State, 252 S.W.3d 876, 893 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
While the tape contained only adult pornography, its probative value was in the corroboration of the complainant’s testimony, especially here where the defendant called the complainants’ credibility into question. Moreover, when there is unobjected-to testimony about the subject-matter of an exhibit, that can undercut an appellant’s argument as to the unfair prejudicial effect of the exhibit. E.g., Kolanowski v. State, Nos. 02-10-00163-CR; 02-10-00146-CR, 2011 WL 1797310, at *4 (Tex. App.—Fort Worth April 21 2011, no pet.) (mem. op.; not designated for publication). In addition to the admission of the picture of the pornographic tape, Officer Cantrell provided unobjected-to testimony about similar materials found on appellant’s computer.
There were several photographs of adult pornography. There were several photographs of naked men, naked women, several photographs of adults being two to three at a time engaging in sexual intercourse.
“Evidence is unfairly prejudicial only when it tends to have some adverse effect upon a defendant beyond tending to prove the fact or issue that justifies its admission into evidence.” Casey, 215 S.W.3d at 883. Given the probative value of the pornographic tape, coupled with the non-graphic nature of the photograph of the tape, the relatively short amount of time the State focused on the evidence, and the other unobjected-to testimony about similar materials in appellant’s bedroom, we conclude that the trial court did not abuse its discretion in concluding that the probative value of the tape was not outweighed by unfair prejudice. We overrule appellant’s first point of error.
HYGIENE TESTIMONY
During the State’s direct examination, Rose Uherek, a middle-school assistant principal, was asked about “other issues [one of the complainants] might have, like hygiene, for instance.” In response to appellant’s objection to relevance, the following exchange took place between the State and the court:
[The State]: Your Honor, we are going to be having some testimony later from someone about specific characteristics of sexual abuse, and —
[The Court]: All right. If you believe you can connect it later, I will permit the testimony. Overruled.
Appellant then lodged a Rule 403 objection, arguing that the probative value, if any, was outweighed by the danger of unfair prejudice. The court overruled that objection and permitted the testimony.
A. We did have some issues. I am assuming I can answer? We did have some issues with [her] urinating on herself.
[The State]: Yes, ma’am.
Q. And other hygiene issues?
A. Yes. When she came to us at the middle school, she would come to us with a body odor that was very offensive, that we actually allowed her to go in the nurse’s office and shower. Then we would, we had extra clothes there for her, and we would actually take the clothes, her clothes down to the locker room and wash them and then allow her to put them back on, but we let her shower quite frequently in the nurse’s office at the school.
Q When you say quite frequently, how often would you say that was?
A. Couple, three times a week. And we did have a conference with the mother, and that did improve after that.
Fiona Remko, the Program Director of Fort Bend County’s Children’s Advocacy Center, revisited this topic later, testifying about “specific characteristics that are commonly amount children who have experienced sexual abuse.”
They may have trouble with hygiene issues. They may actually add a lot of weight on, or on the flip side of it, they could actually lose a lot of weight and a lot of that is just trying to change their body and how they look so they may appear to be less attractive to somebody.
Maria Peters, a therapist extensively trained in sexual-abuse cases that sees each of the complainants weekly, likewise testified to hygiene issues by the same complainant as a symptom or characteristic of a child who has been sexually abused.
In his second point of error, appellant argues that Uherek’s testimony about one of the complainant’s bad hygiene was not relevant. In his third point of error, he argues that the probative value, if any, of this testimony was outweighed by unfair prejudice.
A. Relevance
Appellant characterizes the testimony about his step-daughter’s bad hygiene as extraneous evidence that “would go to the character of the accused as a bad parent.” He complains that when Uherik testified, “the state offered only a loose promise to connect [it] later, i.e., to make it relevant later.” Appellant argues that this is improper, as the State should be required to demonstrate relevance at the time the appellant objects to lack of relevance rather than promise to demonstrate relevance later. Accordingly, appellant argues, “this evidence should have been excluded where as here the state offered objectionable testimony without showing it was then relevant [so] the court erred in admitting it.”
In response, the State argues that the relevance of Uherek’s testimony was established through the testimony of both Fiona Remko and Maria Peters demonstrating that bad hygiene is characteristic of a child sexual-assault victim. The State also contends that the “trial court has the discretion to grant leeway in the admission of relevant evidence, allowing the sponsoring party the opportunity to establish relevance through later testimony.” Thus, the State argues, there was no clear abuse of discretion by the trial court. We agree.
Appellant does not argue that the State failed to later demonstrate the relevance of Uherek’s testimony with testimony from Remko and Peters. Instead, he argues that the relevance objection to Uherek’s testimony should have been sustained when made because the State should be required to establish relevance at the time that evidence objected to. Appellant cites no authority for this proposition and, in fact, numerous cases recognize that the potentially irrelevant evidence can be admitted upon the condition that relevance will eventually be linked. E.g., Fischer v. State, 268 S.W.3d 552, 558 (Tex. Crim. App. 2008); Powell v. State, 898 S.W.2d 821, 829 (Tex. Crim. App. 1994); Davis v. State, 268 S.W.3d 683, 715 (Tex. App.—Fort Worth 2008, pet. ref’d). “If sufficient ‘connecting’ evidence does not appear by the close of the proponent’s evidence, the opposing party must renew his original objection by a motion to strike the conditionally admitted evidence.” Williams v. State, 82 S.W.3d 557, 563 (Tex. App.—San Antonio 2002, pet. ref’d). Because the trial court did not err admitting Uherek’s testimony upon the State’s representation that its relevance would be demonstrated through later testimony, and because appellant has not argued here or in the trial court that the relevance of that testimony was not demonstrated with later evidence, appellant has failed to demonstrate that the trial court abused its discretion in admitting this testimony. We overrule the appellant’s second point of error.
B. Rule 403
Appellant asserts that the testimony about his step-daughter’s hygiene “served to convey to the jury that the defendant was a bad parent and such testimony about hygiene could easily ‘arouse the jury’s hostility or sympathy for one side without regard to the probative force of the evidence.’” He insists that such evidence was directed at his character, and that the trial court admitted it without “performing any type of balancing test required under Rule 403.”
We have already held that this testimony had probative value in corroborating one of the complainants’ testimony and in showing circumstances consistent with sexual abuse. “[W]e presume the trial court conducted the balancing test” required by Rule 403 and concluded that this probative value was not outweighed by unfair prejudice to the defendant. Bargas v. State, 252 S.W.3d 876, 893 (Tex. App.—Houston [14th Dist.] 2008, no pet.). On this record, where the only articulated potential prejudice is the implication that appellant was “a bad parent,” appellant has not demonstrated that this evidence suggested the jury reach a verdict on an improper basis. Gigliobianco, 210 S.W.3d at 641. We thus cannot conclude that the trial court abused its discretion by overruling the appellant’s Rule 403 objection. We overrule appellant’s third point of error.
CONCLUSION
We affirm the trial court’s judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Jennings and Keyes.
Do not publish. Tex. R. App. P. 47.2(b).
[1] trial court and appellate court cause numbers 12976/01-10-00652-CR; 12977/01-10-00653-CR; 12978/01-10-00654-CR; 12979/01-10-00655-CR; 12980/01-10-00656; 12981/01-10-00657-CR; 12985/01-10-00661-CR; 12986/01-10-00662-CR
[2] trial court and appellate court cause numbers 12982/01-10-00658-CR
[3] trial court and appellate court cause numbers 12983/01-10-00659-CR; 12984/01-10-00660-CR
[4] This is presumably a reference to the extraneous-offense instruction included in the Court’s charge:
You are instructed that if there is any testimony before you in this case regarding the defendant’s having committed offenses other than the offense alleged against him in the indictment in this case, you cannot consider said testimony for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offenses, if any were committed, and even then you may only consider the same with regard to the purpose for which such evidence was offered and for no other purpose.
[5] The trial court admitted this testimony over appellant’s objections that it was irrelevant and that the probative value was outweighed by the danger of unfair prejudice.