dissenting and concurring.
This is a simple case. An element of the indecency with a child count that the State must prove is whether by touching the genitals of a minor, Thrift did so “... with the intent to arouse or gratify the sexual desire of ...” Thrift. As an element of the indicted offense, it had to be proven beyond a reasonable doubt by the State. The trial court admitted four photographs of naked boys found in a book in Thrift’s room. The trial court gave a limiting instruction about using the photographs only for the purpose of proving this element of the offense and no other.
I take issue with certain aspects of the majority’s decision to reverse the trial court’s judgment on this count. But I will limit my comments because we have been down this road before, albeit with a different result. Graff v. State, 65 S.W.3d 730 (Tex.App.-Waco 2001, pet. ref'd).
While the majority lists the relevant criteria for review of a trial court’s ruling on a 403 objection, it only mentions one in the discussion: that a limiting instruction would not have been effective. Because the court gave a limiting instruction, the majority apparently means the limiting instruction given was not effective. But that is not my main concern. I am concerned that there is no discussion as to why the “graphic images where of a nature” that would make a limiting instruction ineffective. And I wonder why there is no discussion of any of the other criteria. I understand that it takes the demonstration of only one criteria to conclude that the trial court abused its discretion. But without an analysis of the effect of the limiting instruction on this criteria, would a discussion of the other criteria lead to a conclusion that a limiting instruction was effective as to all of them? Maybe, maybe not. But without any discussion of the other criteria and no discussion as to why a limiting instruction is not effective, I cannot agree to hold that the trial court abused its discretion; i.e., that the trial court was outside the zone of reasonable disagreement. Graff, 65 S.W.3d at 739.
Indirect proof of Thrift’s intent in touching the minor is clearly admissible.1 The element of intent had to be proven to obtain a conviction. Showing to the jury pictures of other naked boys that were found hidden in a book in Thrift’s bedroom would tend to show that Thrift was aroused or gratified by young males and *481that was his intent by touching the minor. The relevance of the evidence is not the issue. And the majority does not take issue with the relevance of the evidence. Rather, the majority contends that the probative value of the photographs to establish this element of the State’s case was substantially outweighed by the danger of unfair prejudice. Actually, the majority does not tell us if the photographs were inadmissible because of the danger of unfair prejudice, confusion of the issues, or the tendency of the evidence to mislead the jury, though the objection was only that the photographs were unfairly prejudicial.
But again, the majority does not tell us what is unfairly prejudicial about the photographs, assuming that this is the reason for the exclusion of the photographs. They rely on what they have decided is the relatively low need for the evidence of intent, to reduce only one side of the equation — the probative value of the photographs. The majority states that the issue of intent was not in controversy because Thrift’s defense was that . the incident never occurred.”
The State takes a different view of the balancing test, as do I, because the element of intent was controverted. When a defendant contends an event did not occur, that denial puts every element of the offense in issue, as it is with any not-guilty plea. See Old Chief v. U.S., 519 U.S. 172, 199-200, 117 S.Ct. 644, 659, 136 L.Ed.2d 574 (1997); Tex.Code CRiM. PROC. Ann. art. 27.17 (Vernon 1989). Thus, the State certainly was justified in feeling compelled to prove every element of the offense that the legislature requires be proven before Thrift could be convicted.
But the majority has decided the evidence was not needed: unnecessary piling-on. It wants to circumscribe what evidence the State may use, thus limiting its ability to prove its case. They are deciding for the State, after the trial, how much of the relevant evidence is needed to prove an element of the offense. The majority states: “Under this evidence, Thrift’s intent to gratify himself by touching JB was not in controversy — why else would he have touched JB’s penis and performed oral sex on him?”
Of course the element was in controversy because Thrift pled not-guilty. And if intent to gratify was always to be inferred from the conduct alone, there would be no need for the separate element of intent to arouse or gratify the sexual desires of the defendant. Did Thrift share with the State what his defense would be? Would it really matter? Should a defendant be allowed to take a defensive position and thereby limit what evidence the State could use to obtain a conviction? We were not there. We rely upon the jury. The jury was given a very specific instruction about the use of this evidence. The majority believes they could not follow that instruction.
While the majority seems comfortable with its conclusion of why Thrift was touching JB, I am not. As long as we are going to speculate, maybe Thrift simply wanted to gratify JB, not himself; maybe he was paid to gratify JB; maybe he was going to receive alcohol or drugs in return for gratifying JB. The truth is, we do not know. The photographs were intended to assist the jury in deciding why an 18 year old male would touch the penis of a 14 year old male. The jury was properly instructed about how to use the evidence.
But this rhetorical question asked by the majority — “why else would he have touched JB’s penis and performed oral sex on him?” — also shows that their harm analysis is flawed. We have just recently set out the harm analysis to be used for Rule 403 error. Graff, 65 S.W.3d at 741-*482742. Why the majority completely disregards our precedent, I do not know. The evidence of Thrift’s guilt, while controverted, was substantial. The State did not place much emphasis on the photographs. And other extraneous evidence, four prior misdemeanor convictions which reflected poorly on Thrift’s character, was admitted without objection. Under the proper analysis, the error, if any, was harmless.
I have no trouble in reviewing this case, especially in view of the limiting instruction, and holding that the trial court did not abuse its discretion — the trial court was not outside the bounds of reasonable disagreement — by admitting the photographs into evidence. I would overrule this issue and affirm the trial court’s judgment in its entirety. Because the majority does not, I respectfully dissent from that portion of this Court’s judgment which reverses Thrift’s conviction for indecency with a child.
I concur in affirming the judgment of conviction on sexual assault of a child.
OPINION DENYING REHEARING
We affirmed Jeffery Thrift’s conviction for sexual assault and reversed the conviction for indecency with a child due to the admission of improper evidence. Thrift and the State have filed motions for rehearing.
Citing U.S. v. Pelullo, 14 F.3d 881, 897-900 (3rd Cir.1994), Thrift says that the “spillover effect” of the improperly admitted evidence tainted both convictions, not just the indecency conviction.
The State says that we erred in holding that the evidence should have been excluded under Rule 403.
In Pelullo, the jury had convicted the defendant of forty-nine counts of wire fraud. The Third Circuit reversed all forty-nine counts because the trial court had improperly admitted evidence of a prior conviction on one of them. Id. The court noted that generally invalidation of the conviction on one count will not lead to automatic reversal on other counts. Id. at 897. It noted, however, the possibility of a “spillover effect” from the tainted count that could be sufficiently prejudicial to call for reversal of all counts. Id. at 897-98. The factors it considered are: (1) whether the charges are intertwined with each other; (2) whether the evidence for each count was sufficiently distinct to support the verdict on other separate counts; (3) whether substantially all the evidence introduced to support the invalid conviction would have been admissible to prove other counts, and whether the elimination of the invalid count would have significantly changed the strategy of the trial; and (4) whether the charges, the language used by the prosecution, and the evidence introduced at trial are of the sort that would arouse a jury. Id. at 898-99.
We have found but a single Texas case that discussed the “spillover effect.” Ex parte Mills, 795 S.W.2d 203, 204 (Tex.Crim.App.1990). In Mills, a habeas corpus proceeding, the Court of Criminal Appeals asked whether Mills, who had been convicted on two counts of “theft by receiving” and assessed 65 years on each count, was entitled to a new trial on the offense upheld on appeal while the other" was reversed and an acquittal ordered for legally insufficient evidence. Id. Mills argued, “there is no way of knowing if the finder of fact would have assessed the same punishment had Applicant been found guilty of only one of the counts.” Id. at 203. The Court asked, “does the spillover effect of the improper conviction require a new punishment hearing on the surviving conviction?” Id., at 204. Finding that Mills had not demonstrated that the jury’s consideration of the invalid count had contrib*483uted to the sentence on the valid count, the Court denied relief. Id. at 205.
In assessing harm under Rule 44.2(b), we are mindful that “it is the duty of the reviewing court to assess harm from the context of the error,” not the duty of the parties to show harm or lack thereof. Johnson v. State, 43 S.W.3d 1, 4 (Tex.Crim.App.2001). We accept the proposition that a “spillover effect” could occur and taint another count when evidence was improperly admitted on one count.
Thrift was charged in two counts with sexual assault of J.B. and indecency with a child, namely J.B. The events occurred in a short time-frame at a single location. The counts were tried together and the main witnesses who testified about the acts were J.B., Thrift, and M.B., who testified about the indecency charge. The potential for harm on both counts flowing from the improperly admitted evidence is sufficient to merit an inquiry under the factors outlined above.
Were the charges intertwined with each other? Yes, the two acts occurred at the same location within a short period of time. Was the evidence for each count sufficiently distinct to support the verdict on the other counts? Yes, although closely related in time, the victim testified about two distinct acts that constituted the separate offenses. Would substantially all the evidence introduced to support the invalid conviction have been admissible to prove other counts, and would the elimination of the invalid count have significantly changed the strategy of the trial? Yes, substantially all the evidence would have been admissible on the sexual assault count; no, the strategy of the trial would not have changed significantly. And finally, were the charges, the language used by the prosecution, and the evidence introduced at trial of the sort that would arouse a jury? Yes, but the nature of the sexual assault itself was sufficient to arouse the jury.
As we noted in our original opinion, the court charged the jury that it could only consider the evidence we found to be improperly admitted as evidence of intent on the indecency count, “and for no other purpose.”
Considering all of the foregoing, we conclude that there was no spillover effect that would require reversal of the conviction for sexual assault. Thrift’s motion for rehearing is denied.
Believing that our original determination of the issue involving the photographs is correct, we overrule the State’s motion for rehearing.
. As an aside, I note that the limiting instruction may have been unduly restrictive in limiting the photographs only to show intent. The photographs may also have been admissible to show motive, preparation, plan, or other 404(b) criteria. But then, I must also note that the majority has trouble following the instruction. The instruction expressly limited use of the testimony to intent to gratify in connection with the touching of J.B.’s genitals, not the oral sexual assault on him.