In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-23-00067-CR
___________________________
KEITH ANTHONY HUBBARD, Appellant
V.
THE STATE OF TEXAS
On Appeal from 371st District Court
Tarrant County, Texas
Trial Court No. 1580228D
Before Sudderth, C.J.; Womack and Walker, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
Appellant Keith Anthony Hubbard appeals his convictions for continuous
sexual assault of a young child, indecency with a child by contact, and two counts of
indecency with a child by exposure. See Tex. Penal Code Ann. §§ 21.02(b),
21.11(a)(1)–(2). On appeal, Hubbard argues in two points that (1) the trial court’s
consideration of the presentence investigation report (PSI) at punishment violated his
rights under the Sixth Amendment’s Confrontation Clause, see U.S. Const. amend. VI,
and (2) the trial court abused its discretion by admitting over Hubbard’s Rule 403
objection a forensic examiner’s testimony concerning the names of certain
pornographic websites that had been visited from Hubbard’s cell phone, see Tex. R.
Evid. 403. We will affirm.
II. BACKGROUND
In October 2018, Arlington police officer Trenton Fite and his patrol partner
were dispatched to an Arlington residence in response to a 911 call reporting a
runaway child. Upon arrival, he spoke with Shaundreika Washington, who informed
him that her then-fifteen-year-old daughter J.R.1—Hubbard’s stepdaughter—had run
away from home. Washington indicated that she had been communicating with J.R.
via text throughout the day.
1
We use initials to refer to the victim. See Tex. R. App. P. 9.10(a)(3).
2
Officer Fite testified that the nature of his investigation changed when
Washington showed him a short video clip that J.R. had texted her. The video, which
J.R. had recorded on her cell phone, showed Hubbard masturbating in front of J.R.
while standing in a hallway.
After viewing the video, Officer Fite went to a nearby Chicken Express to meet
with J.R. She told him that she did not want to return home until her stepfather was
gone. She then “opened up” about Hubbard’s sexual abuse and showed Officer Fite
the same video that he had seen on Washington’s phone. Officer Fite learned that
J.R. had made previous outcries to her mother about Hubbard’s sexual abuse but that
the police had not been notified. Pursuant to police-department protocol, he notified
the Crimes Against Children Unit and Child Protective Services of J.R.’s allegations,
triggering an investigation.
Ultimately, Hubbard was indicted for fourteen offenses: continuous sexual
assault of a young child, three counts of aggravated sexual assault of a child, six counts
of indecency with a child by contact, and four counts of indecency with a child by
exposure. See Tex. Penal Code Ann. §§ 21.02(b), 21.11(a)(1)–(2), 22.021(a)(1)(B).
Hubbard pleaded not guilty, and a jury trial was held.2
At trial, the State called seven witnesses, including J.R., who described in detail
the many forms of sexual misconduct that Hubbard had committed against her. She
Although Hubbard’s guilt was decided by a jury, he elected to have the trial
2
court decide his punishment.
3
testified that the abuse began when she was six or seven years old and in the first
grade. Hubbard began by masturbating in front of her and later progressed to taking
her clothes off after she went to bed, touching her breasts, putting his mouth on her
vagina, touching her mouth with his penis, and rubbing his semen on her lips. The
abuse occurred “all the time . . . for many, many months over many grades.” During
J.R.’s testimony, the State introduced a number of exhibits detailing the dates and
forms of Hubbard’s sexual abuse, including the video that J.R. and her mother had
shown to Officer Fite.
The State also called Vy Phan, a digital forensic examiner for the Arlington
Police Department, to testify regarding certain data that he had extracted from
Hubbard’s cell phone. Specifically, Phan testified as to the domain names of certain
pornographic websites—all of which suggested that they contained content relating to
incest or the sexual exploitation of children—that had been visited from Hubbard’s
phone.3
The jury convicted Hubbard of continuous sexual assault of a child (Count
One), indecency with a child by contact (Count Nine), and two counts of indecency
with a child by exposure (Counts Eleven and Thirteen).4 Because Hubbard had
Phan extracted image files from Hubbard’s phone that had been downloaded
3
from each of the listed websites, but he did not describe the images, nor were they
shown to the jury.
4
The State waived Counts Seven, Ten, Twelve, and Fourteen at the close of
testimony during the guilt–innocence phase of trial. In addition, the trial court’s
4
elected to be sentenced by the trial court and had requested the preparation of a PSI,
the proceedings were continued pending a presentence investigation. Ultimately,
following a sentencing hearing, the trial court sentenced Hubbard to life on Count
One, to twenty years’ incarceration on Count Nine, and to ten years’ incarceration on
Counts Eleven and Thirteen.5 This appeal followed.
III. DISCUSSION
A. Hubbard Failed to Preserve His Meritless Confrontation-Clause Complaint
In his first point, Hubbard contends that the trial court violated his Sixth-
Amendment right to confront witnesses by considering the PSI at punishment. See
U.S. Const. amend. VI. He candidly admits that the Texas Court of Criminal Appeals
has held adversely to him on the merits of this complaint,6 and he also acknowledges
that he failed to preserve the complaint by objecting at trial. Indeed, far from
objecting, Hubbard specifically requested that the trial court consider the PSI during
sentencing. However, citing Ex parte Hathorn, 296 S.W.3d 570, 572 (Tex. Crim. App.
2009), and Ex parte Turner, 542 S.W.2d 187, 189 (Tex. Crim. App. 1976), he contends
charge instructed the jury not to consider Counts Two, Three, Four, Five, Six, or
Eight if it found Hubbard guilty of Count One. Thus, Counts One, Nine, Eleven,
and Thirteen were the only counts considered by the jury.
5
These sentences are to run concurrently.
6
See Stringer v. State, 309 S.W.3d 42, 48 (Tex. Crim. App. 2010) (“When the
sentence is determined by the judge, the information in a PSI is not subject to the
Confrontation Clause.”).
5
that he was not required to preserve his Confrontation-Clause complaint because “the
Court of Criminal Appeals has held that under circumstances where the law is well-
settled to the point where any objection in the trial court would be futile, the claim
will not be considered forfeited for later review.”
But Hathorn and Turner are both postconviction writ cases in which the Court
of Criminal Appeals held that, in that context, preservation at trial was not required to
argue for reversal of a conviction based on a higher-court change in the law that
occurred after the trial. Hathorn, 296 S.W.3d at 571–72; Turner, 542 S.W.2d at 189
(“The petitioner’s trial was on September 21, 1965, almost two years before the
decision in Washington v. Texas, supra. It would be unreasonable to expect the
petitioner to anticipate the future decision of the United States Supreme Court.”).
This case is not in a postconviction-writ posture, nor has Hubbard identified any
change in the law since trial of which he now seeks to take advantage. On direct
appeal, the Rules of Appellate Procedure and Court of Criminal Appeals case law
require Confrontation-Clause complaints to be preserved at trial. See Tex. R. App. P.
33.1(a)(1); Davis v. State, 313 S.W.3d 317, 347 (Tex. Crim. App. 2010). Because
Hubbard did not preserve this complaint at trial, we overrule his first point. See Davis,
313 S.W.3d at 347; Serrano v. State, 636 S.W.3d 717, 720–21 (Tex. App.—Fort Worth
2021, pet. ref’d); Sell v. State, 488 S.W.3d 397, 398–99 (Tex. App.—Fort Worth 2016,
pet. ref’d).
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B. Hubbard’s Rule 403 Complaint Lacks Merit
In his second point, Hubbard contends that the trial court abused its discretion
by overruling Hubbard’s Rule 403 objection to Phan’s testimony concerning the
names of four pornographic websites that had been visited from Hubbard’s cell
phone. We disagree.
1. Standard of Review
We review a trial court’s decision to admit or exclude evidence under an abuse
of discretion standard. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003);
Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990). We will not reverse a
trial court’s decision to admit or exclude evidence unless the record shows a clear
abuse of discretion. Zuliani, 97 S.W.3d at 595. An abuse of discretion occurs only
when the trial court’s decision was so clearly wrong as to lie outside that zone within
which reasonable persons might disagree. Id. If the trial court’s evidentiary ruling is
correct on any applicable theory of law, we will not disturb it even if the trial court
gave the wrong reason for its correct ruling. De la Paz v. State, 279 S.W.3d 336, 344
(Tex. Crim. App. 2009); Qualls v. State, 547 S.W.3d 663, 675 (Tex. App.—Fort Worth
2018, pet. ref’d).
2. Rule 403
Even if evidence is relevant, it can still be excluded under Rule 403 if the
danger of unfair prejudice substantially outweighs the evidence’s probative value.
McNeil v. State, 398 S.W.3d 747, 756 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d);
7
see also Tex. R. Evid. 403. “Rule 403 favors the admission of relevant evidence and
carries a presumption that relevant evidence is more probative than prejudicial.” James
v. State, 623 S.W.3d 533, 546–47 (Tex. App.—Fort Worth 2021, no pet.) (first citing
Montgomery, 810 S.W.2d at 389; and then citing Emich v. State, No. 02-18-00059-CR,
2019 WL 311153, at *7 (Tex. App.—Fort Worth Jan. 24, 2019, no pet.) (mem. op.,
not designated for publication)). Because of this presumption, it is the burden of the
party opposing the admission of the evidence to show that the evidence’s probative
value is substantially outweighed by one or more of the dangers listed in Rule 403—
including unfair prejudice. James, 623 S.W.3d at 547; Wells v. State, 558 S.W.3d 661,
669 (Tex. App.—Fort Worth 2017, pet. ref’d); Sanders v. State, 255 S.W.3d 754, 760
(Tex. App.—Fort Worth 2008, pet. ref’d).
To determine whether evidence is admissible in the face of a Rule 403
objection, the trial court must conduct a balancing test. Montgomery, 810 S.W.2d at
389; see Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). The
Texas Court of Criminal Appeals has instructed that when undertaking a Rule 403
analysis, courts must balance (1) the inherent probative force of the proffered item of
evidence and (2) the proponent’s need for that evidence against (3) any tendency of
the evidence to suggest a decision on an improper basis, (4) any tendency of the
evidence to confuse or distract the jury from the main issues, (5) any tendency that a
jury that has not been equipped to evaluate the probative force of the evidence would
give it undue weight, and (6) the likelihood that presentation of the evidence will
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consume an inordinate amount of time or merely repeat evidence already admitted.
Gigliobianco, 210 S.W.3d at 641–42.
3. Application
Hubbard contends that Phan’s testimony concerning the names of the four
pornographic websites visited from Hubbard’s phone had minimal probative value
because this evidence was “utterly irrelevant to any fact of consequence.”7 However,
evidence of a defendant’s use of pornography is admissible when—as here—there is a
clear nexus between the pornography and the offense. See, e.g., Sarabia v. State,
227 S.W.3d 320, 324 (Tex. App.—Fort Worth 2007, pet. ref’d) (concluding that
photographs found in defendant’s computer depicting sexual acts involving underage
boys were admissible as evidence of intent to arouse or gratify sexual desire in
prosecution for aggravated sexual assault of a preteen boy); Darby v. State, 922 S.W.2d
614, 620 (Tex. App.—Fort Worth 1996, pet. ref’d) (holding that there was no error in
the trial court’s admission of a magazine depicting sexually explicit photographs of
young female posing with teddy bear when defendant was accused of fondling
underage victim while taking her picture posed with a teddy bear). Evidence that
Hubbard visited pornographic websites with domain names suggesting that they
contained content relating to incest or the sexual exploitation of children is highly
We note that this contention is in direct conflict with the position taken by
7
Hubbard’s trial counsel, who conceded on the record that the names of the
pornographic websites were “probably relevant.”
9
probative of his intent to arouse or gratify his sexual desire by sexually abusing his
stepdaughter J.R.
Hubbard has failed to show that the evidence’s high probative value was
substantially outweighed by any of the dangers listed in Rule 403. See James,
623 S.W.3d at 547; Wells, 558 S.W.3d at 669; Sanders, 255 S.W.3d at 760. No images
were presented to the jury—only the website addresses. Given that the State
presented other more substantial and graphic evidence, including J.R.’s testimony
detailing Hubbard’s years-long sexual abuse and the video J.R. recorded of Hubbard
masturbating in front of her, we are unpersuaded that hearing the names of the
pornographic websites had a strong effect on the jury, much less caused it to decide
the case on an improper basis. See Foster v. State, No. 05-14-01186-CR, 2015 WL
8039901, at *4 (Tex. App.—Dallas Dec. 7, 2015, no pet.) (mem. op., not designated
for publication); see also Gigliobianco, 210 S.W.3d at 641 (clarifying that unfair prejudice
“refers to a tendency to suggest [a] decision on an improper basis, commonly, though
not necessarily, an emotional one”). Further, because the evidence was not scientific
or technical in nature, there was little risk of jury confusion. See Gigliobianco,
210 S.W.3d at 641 (providing scientific evidence as an example of the type of evidence
that “might mislead a jury that is not properly equipped to judge” its “probative
force”). Moreover, the presentation of the evidence consumed relatively little time,8
8
To support his argument that “the State consumed an inordinate amount of
the trial court’s time” to present the website names, Hubbard points to the fact that
10
and the State only mentioned the list of the websites once during final argument. See
Foster, 2015 WL 8039901, at *4 (holding that appellant had failed to show that a report
reflecting that he had “searched for and observed child pornography” was unfairly
prejudicial under Rule 403 in part because “the topic [had not been] heavily developed
during the trial”).
Thus, we cannot conclude that any tendency of Phan’s testimony about the
pornographic websites to confuse or distract the jury from the main issues in the case
substantially outweighed its probative value, see Gigliobianco, 210 S.W.3d at 642, much
less that the trial court’s decision to admit this evidence was outside the zone of
reasonable disagreement, see Zuliani, 97 S.W.3d at 595. Further, because we conclude
that the evidence was not unduly prejudicial, we also agree with the State that any
error in admitting it was harmless. See Tex. R. App. P. 44.2(b); Foster, 2015 WL
8039901, at *4.
the presentation of this evidence made up “a substantial portion of [Phan’s] trial
testimony.” However, Hubbard fails to point out that Phan’s entire testimony only
lasted approximately thirty minutes. Thus, even taking into account the roughly ten-
to fifteen-minute hearing that the trial court held outside the jury’s presence to
consider the admissibility of Phan’s testimony, the presentation of the website names
consumed no more than forty to forty-five minutes of a trial in which the guilt–
innocence phase spanned three calendar days and included eight total witnesses. This
amount of time is far from “inordinate.” Cf. Ibenyenwa v. State, 367 S.W.3d 420, 426
(Tex. App.—Fort Worth 2012, pet. ref’d) (holding that the trial court had not abused
its discretion by overruling appellant’s Rule 403 objection to the admission of a
recorded interview of the child complainant in his trial for sex-related offenses in part
because the recording “was only about forty minutes long” and thus “there was little
danger of it[’s] taking an undue amount of time from the remainder of the trial”).
11
We overrule Hubbard’s second point.
IV. CONCLUSION
Having overruled both of Hubbard’s points, we affirm the trial court’s
judgments.
/s/ Dana Womack
Dana Womack
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: November 9, 2023
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