Lloyd Morgans v. the State of Texas ( 2022 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-21-00320-CR
NO. 09-21-00322-CR
NO. 09-21-00323-CR
NO. 09-21-00324-CR
________________
LLOYD MORGANS, Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________________
On Appeal from the 221st District Court
Montgomery County, Texas
Trial Cause Nos. 19-02-01628-CR, 19-02-01630-CR, 19-02-01631-CR and
19-02-01632-CR
________________________________________________________________________
MEMORANDUM OPINION
Appellant pleaded “guilty” to four counts of possession or promotion of child
pornography. Tex. Penal Code Ann. § 43.26(a). He was sentenced to two
consecutive four-year prison terms and two concurrent ten-year terms of community
supervision. In a single appellate point, Appellant contends the trial court abused its
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discretion in excluding the recording of his interview with law enforcement
authorities. Finding no reversible error, we affirm the trial court’s judgments.
I. Background
Appellant admitted to possessing and viewing multiple pornographic images
of children, but during the trial, he attempted to reduce the gravity of his behavior
by disputing Detective Fruchtnicht’s characterization of the statement he gave to
authorities. We summarize the testimony relevant to Appellant’s issues below.
1. Detective Fruchtnicht’s Testimony
Detective Max Fruchtnicht, an employee of the Montgomery County Sheriff’s
Office, described his background and experience in law enforcement. When the trial
occurred, he was assigned to the Special Victims Unit, tasked with investigating
complaints of child abuse, sexual offenses against children, and claims alleging
similar crimes.
On the day of Appellant’s arrest, Fruchtnicht interviewed Appellant at the
Sheriff’s Office. Fruchtnicht recalled that although Appellant initially denied having
viewed child pornography on his computer, he admitted it after seeing a signed
search warrant and understanding that his electronic devices would be searched.
Early in Fruchtnicht’s testimony, Appellant objected, noting that the
recording, itself, was the best evidence of his interview. The trial court, however,
overruled the objection. When Fruchtnicht’s testimony continued, during which the
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Detective covered Appellant’s longtime addiction to child pornography, Appellant
neither renewed his objection, nor requested that the trial court grant him a running
objection. Later in the trial, Appellant attempted to introduce into evidence the
entirety of his interview without editing the recording to remove inadmissible
material or lengthy gaps in the recording of the interview. The trial court did not
admit the recording, and Appellant did not make an offer of proof or object.
2. Appellant’s Testimony
Appellant testified that he had been downloading child pornography for
approximately six or seven years, disputing Fruchtnicht’s testimony that Appellant
had been downloading child pornography for about twenty years. He further denied
masturbating while viewing these images as Fruchtnicht claimed he said during his
interview, explaining “[i]t wasn’t anything sexual.” In addition, Appellant denied
having told the investigating detectives that he collected child pornography, and also
denied stating that he preferred certain types of images, particularly those with a
“back story[.]”
3. Additional Testimony
The jury also heard testimony explaining how Appellant came to be
apprehended, and how computer forensics experts identified the pornographic
material on Appellant’s electronic devices. Appellant’s wife, children, and
children’s childhood friends testified that Appellant always gave the impression of
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being a normal father, and that they never thought Appellant had the potential to
abuse a child. For that reason, Appellant’s son asked the jury to sentence Appellant
to probation.
The jury also was shown the four specific images relevant to the indictment
on which Appellant’s conviction is based.
II. Standard of Review
We review a trial court’s decision admitting evidence in the punishment phase
of a trial under an abuse-of-discretion standard. Beham v. State, 559 S.W.3d 474,
478 (Tex. Crim. App. 2018); Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App.
2010). We will not disturb the trial court’s evidentiary rulings absent an abuse of
discretion. Beham, 559 S.W.3d at 478; McGee v. State, 233 S.W.3d 315, 318 (Tex.
Crim. App. 2007). A trial court abuses its discretion only if its decision lies outside
the “‘zone of reasonable disagreement.’” Beham, 559 S.W.3d at 478; Davis, 329
S.W.3d at 803. If a trial court’s evidentiary ruling is correct on any applicable theory
of law, we uphold that decision. De La Paz v. State, 279 S.W.3d 336, 344 (Tex.
Crim. App. 2009).
A trial court’s erroneous admission of evidence is non-constitutional error
subject to a harm analysis pursuant to Texas Rule of Appellate Procedure
44.2(b). See Tex. R. App. P. 44.2(b); see also Taylor v. State, 268 S.W.3d 571, 592
(Tex. Crim. App. 2008). Unless non-constitutional error affects the substantial rights
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of the defendant, we must disregard it. See Taylor, 268 S.W.3d at 592; see also Tex.
R. App. P. 44.2(b). A proper harm analysis must consider unchallenged evidence
that proves the same fact as the challenged evidence. Leday v. State, 983 S.W.2d
713, 717 (Tex. Crim. App. 1998) (improper admission of evidence is not reversible
if the same facts are shown by other evidence which is unchallenged). “[O]verruling
an objection to evidence will not result in reversal when other such evidence was
received without objection, either before or after the complained-of ruling.” Id. at
718.
III. Analysis
In order to complain on appeal of the trial court’s evidentiary rulings,
Appellant was required to lodge a timely and specific objection to the evidence in
question. See Tex. R. App. P. 33.1(a); Enlow v. State, 46 S.W.3d 340, 346 (Tex.
App.—Texarkana 2001, pet ref’d) (per curiam). Moreover, he needed to reurge his
objection each time the State presented the material he complains about on appeal
in the trial. See Hinton v. State, No. 09-19-00134-CR, 2021 WL 194916, at *5 (Tex.
App.—Beaumont Jan. 20, 2021, no pet.) (mem. op.). Although Appellant did object
when the State initially elicited Fruchtnicht’s testimony about Appellant’s interview,
Appellant did not object to Fruchtnicht’s remaining testimony, which concerned the
same or similar statements Fruchtnicht said Appellant made during his interview.
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For that reason, Appellant failed to preserve his complaint about the alleged
erroneous admission of Fruchtnicht’s testimony on the same subject. Id.During the trial, the Appellant also objected based on the best evidence rule.
See Tex. R. Evid. 1002. But “[a]n objection that evidence is not the ‘best evidence’
asserts that a copy or reproduction of a writing, recording, or photograph is
inadequate and should be replaced by the original” and that was not the gist of
Appellant’s objection, so the trial court was correct to overrule it. Menefee v. State,
928 S.W.2d 274, 278 (Tex. App.—Tyler 1996, no pet.); see also Sharp v. State, 707
S.W.2d 611, 618 (Tex. Crim. App. 1986) (noting that “[t]he best evidence rule does
not apply when the item in question is not admitted into evidence to prove its
contents.”)
When Appellant later attempted to introduce a recording of his interview into
evidence, he failed to properly preserve his appellate complaint by failing to make
an offer of proof of what is in the recording. See Tex. R. Evid. 103(a)(2). We
therefore have nothing to review and are unable to determine whether the trial court’s
ruling excluding the recording was erroneous or harmful. See Reyna v. State, 168
S.W.3d 173, 176-77 (Tex. Crim. App. 2005); Garrett v. State, No. 08-19-00024-CR,
2020 WL 4381609, at *4 (Tex. App.—El Paso July 31, 2020, pet. ref’d) (not
designated for publication).
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Even had Appellant properly preserved his complaint about the trial court’s
ruling excluding the recording of the interview, he has not shown the trial court
abused its discretion and he has not shown he was harmed. See Tex. R. App. P.
44.2(b); See Davis v. State, 203 S.W.3d 845, 848-49 (Tex. Crim. App. 2006); Thorpe
v. State, No. 03-18-00070-CR, 2019 WL 2237883, at *3 (Tex. App.—Austin May
24, 2019, no pet.) (mem. op., not designated for publication). An abuse of discretion
is shown when the trial court’s evidentiary ruling “falls outside the ‘zone of
reasonable disagreement[.]’” Ellis v. State, 517 S.W.3d 922, 928 (Tex. App.—Fort
Worth 2017, no pet.) (quoting Mai v. State, 189 S.W.3d 316, 320 (Tex. App.—Fort
Worth 2006, pet. ref’d)). In this case, there can be no realistic question of reasonable
disagreement, because the trial court’s ruling on Appellant’s “best evidence”
objection was correct. See Menefee, 928 S.W.2d at 278. Additionally, he has not
shown that the allegedly erroneous evidentiary ruling resulted in a longer sentence
than he would have received had the evidence been admitted. In the case before us,
we note that although the State requested the jury to impose a ten-year prison
sentence, the jury responded with two four-year terms and two terms of probation.
Even considering the trial court’s decision to impose consecutive prison sentences,
the total eight-year sentence is appreciably less than the maximum sentence sought.
We do not view this sentence as an indication of harm, particularly in light of
Appellant’s failure to present any argument regarding harm resulting from the
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court’s ruling. See Tex. R. App. P. 38.1(i); Cardenas v. State, 30 S.W.3d 384, 393-
94 (Tex. Crim. App. 2000) (noting that failing to address alleged harm results in
waiver due to inadequate briefing). Accordingly, we overrule Appellant’s sole point
of error.
IV. Conclusion
Because Appellant failed to preserve his complaint for appellate review, and
because he likewise failed to demonstrate either an abuse of discretion or harm from
the trial court’s evidentiary rulings, we affirm the judgments of the trial court.
AFFIRMED.
________________________________
CHARLES KREGER
Justice
Submitted on September 22, 2022
Opinion Delivered October 19, 2022
Do Not Publish
Before Golemon, C.J., Kreger and Horton, JJ.
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