Dane Edward Weatherford v. State ( 2018 )

Opinion issued August 7, 2018
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-16-01016-CR
———————————
DANE EDWARD WEATHERFORD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Case No. 1482268
MEMORANDUM OPINION
A jury found appellant, Dane Edward Weatherford, guilty of the offense of
sexual assault of a child and assessed his punishment at fifteen years’
confinement.1 In three issues, appellant argues that the trial court abused its
1
See TEX. PENAL CODE ANN. § 22.011 (West Supp. 2017).
discretion in: (1) admitting the complainant’s medical records; (2) admitting
certain testimony from appellant’s wife; and (3) failing to perform its gate-keeping
function during sentencing as to extraneous pornography allegations. We affirm.
Background
Appellant met his wife, Tobi, while they were both serving in the military.
After leaving the military, appellant taught an ROTC class at North Forest High
School, and Tobi worked at a local store. The couple had three children and had
discussed adopting another child.
The complainant, “Jane,” 2 was fourteen years old and in foster care when
she met appellant through the ROTC program where appellant worked. Tobi
testified that “probably within the first week that [Jane] was assigned to
[appellant’s] class, he came home and told [his teenage son, “Dan,”] that he found
the perfect girlfriend for him.” Tobi further testified that, a few weeks later,
appellant told her that he wanted to adopt Jane. Tobi “questioned it a little”
because she “didn’t think we were going to adopt a teenager.” However, appellant
told her that he had “already promised [Jane] that [he] was going to adopt her,” so
Tobi felt that she had “almost no choice.”
Tobi testified that, once she was able to spend time with Jane, she believed
that the girl was a “good fit” for the family, and the couple adopted Jane in October
2
We have changed the minors’ names in order to protect their identity.
2
2014. Meanwhile, Jane had a sexual relationship with Dan, her adoptive brother. In
the spring of 2015, Jane became pregnant by Dan and had an abortion.
Approximately a week before the abortion took place, Jane attempted suicide.
Tobi also testified regarding appellant’s behavior toward Jane. Tobi stated
that he paid more attention to Jane than he did to the other children. In August
2015, she related to Jane’s therapist her suspicions that something inappropriate
was happening between appellant and Jane. The therapist contacted Child
Protective Services, which investigated the claim. Tobi told the CPS investigator
that she had not witnessed any sexually inappropriate behavior, and CPS
eventually ruled out the concerns of sexually inappropriate conduct and closed its
investigation. Tobi then related to Jane’s therapist that she was not concerned for
Jane’s safety.
Jane testified that she was living in foster care when she met appellant
through the ROTC program and he asked her if she would like to be adopted. She
testified that she and appellant exchanged text messages frequently and that
appellant frequently bought her gifts. She also stated that appellant insisted on
tucking her in at night and would rub her back and stomach.
Regarding the events surrounding her suicide attempt, Jane testified that she
had tried to commit suicide because appellant “was forcing [her] into an abortion.”
She testified that appellant had first forced her to have sex with him before her
3
pregnancy and that he had raped her multiple times. She testified that she did not
tell anyone about the assaults because she did not think Tobi would believe her,
and she did not want to break up the family or cause them all to lose their home.
On September 19, 2015, appellant caught Jane leaving Dan’s room naked.
Appellant became angry, and Jane threatened to tell Tobi about appellant’s sexual
assaults. Appellant then became suicidal. Jane testified that when Tobi got home
that day, she told her about appellant’s having forced her to have sex.
Tobi testified that, on September 19, 2015, her youngest son called her,
asking that she come home immediately. Upon arriving home, she spoke with Jane,
and then found appellant in the shower holding a firearm. He was stating that “he
was a monster and that he deserved to die,” but he did not explain any further. Tobi
testified that appellant asked her to shoot him, then he “dry fired” the firearm at
himself. Appellant then left the shower and sat against the wall in the closet.
Tobi stated that, during her confrontation with appellant, their oldest
daughter came home, “found out what was going on and called [appellant’s] Aunt
Deborah.” When asked why they called Aunt Deborah, Tobi explained that
Deborah “has a master’s in psychology and she’s very caring.” The State’s
questioning continued:
[the State]: So—and what was the purpose for you-all calling her?
[Tobi]: When she had visited in May, I had originally disclosed
to her.
4
[Appellant]: Your Honor, I’m going to object to the statement from
Ms. Weatherford to Aunt Deborah or anything Aunt
Deborah said to—
[Court]: Sustained as to the hearsay portion as to Aunt Deborah.
[the State]: What did you tell Aunt Deborah?
[Appellant]: Same objection, Judge.
[Court]: Overruled.
[Tobi]: I had told her about my concerns about [appellant’s]
behavior and his behavior towards [Jane] and things that
had been happening that I observed and told her my
concerns and that I was starting to think that maybe I was
crazy, and she told me I wasn’t at that time, which is
what eventually led me to talk to Denise, [Jane’s]
therapist.
Tobi then testified that appellant eventually left the home, and Tobi called
the police. Appellant was arrested when he returned to the home the next day.
Following appellant’s arrest, Tobi sought help for Jane, including taking her for a
sexual assault assessment.
The State offered Jane’s medical records from The Children’s Assessment
Center into evidence at the conclusion of its case-in-chief. Appellant’s counsel
stated that he objected to this evidence on multiple grounds: “Generally my
objection would be, No. 1, the doctor’s not here to give the full testimony. More
importantly there’s a lot of hearsay that’s not necessarily for medical diagnosis.”
The trial court decided to “conditionally admit” the records, stating, “then you-all
can go through it. If there are any redactions that you would like to agree to, I’ll
5
allow you to redact it this evening. Don’t publish it to the jury until the appropriate
redactions have been made.” The next day, the trial court set out on the record the
various redactions to the medical records agreed to by the parties, specifically
noting that it had sustained appellant’s objection regarding the physician’s notation
that “16-year-old girl gave clear history of gen-gen penetration chronic by
[appellant].” The remainder of the medical records—Jane’s sexual history,
including her abortion and the number of partners, her suicide attempt, her answers
to the physician’s questions about the nature of the assault for which she sought
treatment, the results of tests and a physical exam, and the physician’s
recommendations for Jane’s treatment—were admitted into evidence.
Appellant’s counsel stated that he had additional objections, stating, “I’ve
written ‘hearsay’ next to what I think is hearsay. I’ve written ‘relevance’ [next] to
what I think would be irrelevant. I would just ask that that be used to preserve the
record. Since we’re outside the presence of the jury, I will not make any further
objections.” The exhibit was marked with hearsay and relevance objections
covering a significant portion of the medical records. The trial court entered the
exhibit into the record but did not make any further rulings after appellant’s
counsel tendered the redactions.
The jury found appellant guilty, and the trial proceeded into the punishment
phase. At the start of the punishment phase, the State called Jane’s biological
6
mother to testify regarding Jane’s early life and the circumstances surrounding
Jane’s ending up in foster care. She also testified that, due to Jane’s experiences
early in her life, Jane was afraid of disrupting another family by complaining about
appellant’s conduct toward her. The State also reoffered all of its exhibits from the
guilt-innocence phase and rested.
Appellant’s counsel introduced testimony from some of appellant’s other
ROTC students and a fellow instructor, who testified that appellant was a good and
supportive mentor and had a good reputation among the other students. Appellant’s
counsel also introduced testimony regarding appellant’s military service. Finally,
appellant presented the testimony of a clinical psychologist who worked at the
Harris County Jail and testified that appellant voluntarily participated in and
successfully completed various therapy programs at the jail.
During a recess, outside the presence of the jury, the trial court and the
parties discussed the State’s intention to introduce rebuttal evidence during the
punishment phase. The trial court discussed with the parties the notices that the
State had provided to appellant. These included, in relevant part, a supplemental
notice that the State intended to use extraneous offense evidence “for impeachment
and/or punishment,” which described the extraneous evidence as including “[t]he
Defendant’s computer, laptop, [and] back up tapes” that “were found to contain . . .
videos and images of pornography,” including “images both real and animated [of]
7
pre-pubescent females engaging in sexual activity” and videos and images
“depicting incestual [sic] pornography.”
The following discussion occurred between the trial court and appellant’s
counsel:
[counsel]: Whenever we get to the pornography portion, I have
asked the analyst if he has—I was given a disk at some
point, thousands of pages, it has many images. I believe
the ones they have back there are temporary internet files
from 2011 to 2012. Much of it was from when
[appellant] was deployed. So, I would ask for a
gatekeeping function on those because the images aren’t
good to see whether not, No. 1, they’re overly
prejudicial, if they’re relevant. Is there any way to prove
that these are [appellant’s] or someone else[’s] in the
house, there [were] teenagers in the house?
[Court]: With regards to—you’re asking me to—you’re asking me
to determine, like, the questions you just asked me, the
credibility of the evidence, and that is not my function as
a gatekeeper. Now that being said, I will give the jury a
limiting instruction regarding extraneous offenses that
are admitted at the punishment phase of a trial so that
they can perform their function and determine the
credibility of that evidence before they make a decision
as to whether or not to consider it.
[counsel]: I guess my only concern is it’s my understanding . . . that
we’re supposed to have some sort of a gatekeeping
function to make sure it’s possible the jury can believe
whatever the bad act is beyond a reasonable doubt. And
that’s simply what I’m asking for before we ring this bell,
I’d ask that you at least look into that. When were the
pictures? How do we know that they’re [appellant’s], this
type of thing? . . . He was in a submarine.
[Court]: Did they have internet access?
8
[counsel]: Not to this computer. It’s our understanding this is a
home computer. At the time it was in the den in San
Diego, if it’s indeed the pictures we think they are. That’s
our concern.
[Court]: You’ll have an opportunity to cross-examine those
witnesses. Are both sides ready for the jury?
The State then presented its rebuttal evidence to the jury, starting with the
testimony of appellant’s oldest biological daughter. She testified regarding the
nature of her relationship with her father—that she loved him, but they were not
very close and had had problems over the years—and the hardship his assault of
Jane had caused in their family. A former ROTC student of appellant’s testified
that she, like Jane, had been in foster care, that appellant had expressed an interest
in adopting her, and that he had touched her breast while she was visiting his
home. She testified that she was never adopted by appellant’s family and now has a
child of her own.
Tobi testified again, this time referencing the fact that appellant had
admitted to watching pornography. She stated:
[Tobi]: It was probably a couple of weeks [after] the comment he
made about porn that he’d been watching [that] was in
the back of my mind, it just kept coming back up. And I
did something I don’t normally do. I looked at his
computer, and I looked at his browser history.
[counsel]: Your Honor, I would renew my previous objections to
this.
[Court]: All right. Overruled.
9
Tobi identified the desktop CPU and laptop entered into evidence by the
State as belonging to appellant, and she testified that she had turned the laptop and
CPU from the desktop over to the detectives after appellant’s arrest. She testified
that when she searched his computer herself, she “found multiple searches for
incest porn on his search history.” Tobi testified that she asked appellant “how he
could possibly be looking at things like that. And he told me it was—none of it was
real. It was just things that he happened to be watching, and the reason he was
watching those particular videos was that those were the only ones that had
attractive females in it.” Tobi also clarified that, when she confronted appellant
about the pornography, he did not try to blame the searches for the images on
anyone else in the house, and he admitted that he had looked for those images.
Tobi also testified regarding appellant’s access to the computers. He was deployed
during some of the relevant time, but he also had duties that allowed him to be
home more. She also stated that he used his laptop “on the go.”
Finally, the State called a computer forensic examiner for the Federal
Bureau of Investigation, and the following bench conference occurred between
appellant’s counsel and the trial court:
[counsel]: Two quick issues, my request to have a voir dire outside
the presence of the jury is denied at this time?
[Court]: Based on your earlier—
[counsel]: Yes, ma’am. Just wanting to make sure.
10
[Court]: Yes.
The expert testified regarding documents recovered from appellant’s desktop
computer that contained pornographic images. When the State offered these
images into evidence, appellant’s counsel stated, “In addition to the objections I
made earlier, I just have an unduly prejudicial objection and not relevant at this
time.” The trial court overruled the objections and admitted the exhibits.
On cross-examination, appellant’s attorney questioned the forensic computer
examiner regarding the images that he had flagged in his search of appellant’s
computer. The forensic examiner agreed that all of the images had come from
temporary internet files, which were created automatically while the user browsed
the internet. Thus, the images were not necessarily “stand-alone image[s] on a web
page,” but could be “one of a series in a banner” or on “the side or anywhere on
that web page.” The forensic examiner also stated that the flagged images that
were admitted into evidence were dated from either May 23, 2011, or May 25,
2011. The examiner testified that he could not determine who had accessed the
web pages.
The jury assessed appellant’s punishment at fifteen years’ confinement. This
appeal followed.
11
Admission of Evidence During Guilt-Innocence Phase
In his first two issues, appellant argues that the trial court erred in admitting
Jane’s medical records and Tobi’s testimony that she had expressed her concerns
about appellant and Jane to appellant’s aunt.
A. Standard of Review
We review a trial court’s ruling on the admission or exclusion of evidence
for an abuse of discretion. Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App.
2016). An abuse of discretion occurs when the trial court acts “arbitrarily or
unreasonably” or “without reference to any guiding rules and principles.” State v.
Hill, 499 S.W.3d 853, 865 (Tex. Crim. App. 2016) (quoting Montgomery v. State,
810 S.W.2d 372, 380 (Tex. Crim. App. 1990)). We will not reverse a trial court’s
ruling unless it is so clearly wrong that it “falls outside the zone of reasonable
disagreement.” Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016); see
Henley, 493 S.W.3d at 83. We will uphold a trial court’s evidentiary ruling if it is
correct on any theory of law applicable to the case. Henley, 493 S.W.3d at 93.
B. Admission of Jane’s Medical Records
In his first issue, appellant argues that the trial court erred in admitting
Jane’s medical records. He argues that the records were not properly authenticated,
12
but appellant did not raise a complaint regarding the authentication of these
documents at trial.3
To preserve error, a party must timely object and state the grounds for the
objection with enough specificity to make the trial judge aware of the complaint,
unless the specific grounds were apparent from the context. TEX. R. APP. P.
33.1(a)(1)(A); see Thomas v. State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016);
Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014). The objection must
be sufficiently clear to give the judge and opposing counsel an opportunity to
address and, if necessary, correct the purported error. Thomas, 505 S.W.3d at 924;
Ford v. State, 305 S.W.3d 530, 533 (Tex. Crim. App. 2009); see Smith v. State,
499 S.W.3d 1, 7–8 (Tex. Crim. App. 2016) (“There are two main purposes behind
requiring a timely and specific objection. First, the judge needs to be sufficiently
informed of the basis of the objection and at a time when he has the chance to rule
on the issue at hand. Second, opposing counsel must have the chance to remove the
objection or provide other testimony.”). If a trial objection does not comport with
arguments on appeal, error has not been preserved. Thomas, 505 S.W.3d at 924.
3
Appellant states in his brief:
The State did file written notice with the district clerk under Rule 902(10)
of its intent to use business records with an accompanying affidavit as to
the Complainant’s records from the Children’s Assessment Center (CAC).
. . . However, this self-authenticating business records affidavit was not
introduced at trial, and cannot be found in the Clerk’s or Reporter’s records
in this case.
13
Appellant argues on appeal that Jane’s “CAC medical records were hearsay
and they were unauthenticated at trial, thus the trial court abused its discretion by
admitting the record.” However, at trial, appellant objected only on the basis of
impermissible hearsay contained within the medical records and relevance. He did
not assert at trial that the medical records were not authenticated, and thus he did
not preserve this complaint for consideration on appeal. See id. (holding that trial
objection must comport with arguments on appeal to preserve error).
Appellant initially objected at trial on multiple grounds, including that “the
doctor’s not here to give the full testimony” and “there’s a lot of hearsay that’s not
necessarily for medical diagnosis.” The trial court conditionally admitted the
medical records, asking the parties to make redactions and then reassert any
remaining objections. After the redacted document was presented to the trial court,
appellant stated that he continued to object, submitting an annotated copy of Jane’s
medical records and stating, “I’ve written ‘hearsay’ next to what I think is
hearsay.”
Appellant does not present any argument on appeal comporting with his
trial objection that certain statements contained in the medical records were
impermissible hearsay. See id. On appeal, appellant argues generally that the
statements in Jane’s medical records were hearsay, but he does not provide a clear
and concise argument, with citation to proper legal authority and the record,
14
identifying which statements, if any, constituted “hearsay that [was] not
necessarily for medical diagnosis.” Moreover, we observe that many statements in
the medical records—such as the information regarding Jane’s sexual history, her
medical and mental health history, and the specific facts relevant to the assault for
which she was seeking treatment—were pertinent to her medical treatment and,
thus, were admissible under Rule of Evidence 803(4). See TEX. R. EVID. 803(4)
(providing hearsay exception for statements made for purpose of medical diagnosis
or treatment and describing medical history, or past or present symptoms, pain or
sensations, or inception or general character of cause or external source thereof,
insofar as reasonably pertinent to diagnosis or treatment); Bargas v. State, 252
S.W.3d 876, 896 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (“Because
treatment of child abuse includes removing a child from an abusive setting, the
identity of the abuser is pertinent to the medical treatment of the child. Hearsay
statements by a suspected child victim of abuse regarding causation, source of
abuse, or describing abusive acts are admissible under Rule 803(4) as being
pertinent to the medical treatment of a victim.”).
Thus, to the extent that we can consider appellant’s general assertion on
appeal that these records contain impermissible hearsay as an attempt to reassert
his hearsay objections from trial, he has not adequately briefed this complaint or
15
demonstrated any error on the part of the trial court.4 See Mims v. State, 238
S.W.3d 867, 874 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (holding that
complaint on appeal was waived where defendant failed to specifically identify
statement he claimed was hearsay); see also TEX. R. APP. P. 38.1(i) (providing that
appellant’s brief must contain clear and concise argument for contentions made
and appropriate citations to record).
We overrule appellant’s first issue.
C. Admission of Tobi’s Testimony
In his second issue, appellant argues that the trial court erred in admitting the
following testimony by his wife, Tobi, over his objection on hearsay grounds:
I had told [appellant’s Aunt Deborah] about my concerns about
[appellant’s] behavior and his behavior towards [Jane] and things that
had been happening that I observed and told her my concerns and that
I was starting to think that maybe I was crazy, and she told me I
wasn’t at that time, which is what eventually led me to talk to Denise,
[Jane’s] therapist.
Appellant argues that this testimony constitutes improper hearsay in that it
relates a previous out-of-court statement made by Tobi. Hearsay is an out-of-court
statement offered for the truth of the matter asserted. TEX. R. EVID. 801(d); see also
Coronado v. State, 351 S.W.3d 315, 326 (Tex. Crim. App. 2011) (“Both the
4
We also observe that appellant never obtained a ruling from the trial court after
submitting the redacted copies of the medical records. See TEX. R. APP. P. 33.1(a)
(providing that party complaining of error on appeal must generally demonstrate
that it objected to error and that trial court ruled, or refused to rule, on objection).
16
federal and Texas hearsay rules apply to prior out-of-court statements made by a
testifying witness.”). The State argues, however, that Tobi’s testimony about her
prior conversation with appellant’s aunt did not constitute hearsay because Tobi’s
statements were not out-of-court statements offered for the truth of the matter
asserted, and we agree.
In the complained-of testimony, Tobi was testifying to the fact that she had
expressed her concerns about appellant’s conduct toward Jane to another person,
but she did not relate the specific content of her previous statements to appellant’s
aunt. In context, this testimony was offered to explain why Tobi’s oldest daughter
made a phone call to the aunt after the confrontation on September 19, 2015, and to
explain why the family did not immediately call the police. The purpose of this
testimony was not to relate previous factual assertions about appellant’s conduct,
but to explain the events surrounding the day of the confrontation and to put Tobi’s
testimony into its proper context. The trial court could have reasonably concluded
that Tobi’s testimony was not relating an out-of-court statement offered for the
truth of the matter asserted, and thus it did not abuse its discretion in admitting the
testimony. See TEX. R. EVID. 801(d); Johnson v. State, 425 S.W.3d 344, 346 (Tex.
App.––Houston [1st Dist.] 2011, pet. ref’d) (“An extrajudicial statement or writing
that is offered for the purpose of showing what was said, rather than for proving
the truth of the matter stated therein, does not constitute hearsay.”).
17
We overrule appellant’s second issue.
Performance of Gatekeeping Function During Punishment Phase
In his third issue, appellant complains that the trial court refused to perform
its gatekeeper function when it allowed the State to present evidence during the
punishment phase of “extraneous pornography allegations,” including that
appellant had viewed pornography in the past and that there was evidence of
pornography viewing on a computer taken from appellant’s home. Appellant
specifically contends that “[t]he trial court refused to make an initial determination
or perform its gatekeeping function as to this extraneous evidence,” which
included testimony regarding his viewing of pornography and images found on a
computer of “incest pornography” depicting males engaging in sexually explicit
conduct with younger women or girls. He further argues that the trial court failed
to make a finding that the jury could rationally find beyond a reasonable doubt that
appellant was “criminally responsible for the extraneous misconduct, or even that
the extraneous acts were attributable to the appellant beyond a reasonable doubt.”
A. Standard of Review
The Code of Criminal Procedure provides that
evidence may be offered by the state . . . as to any matter the court
deems relevant to sentencing, including . . . evidence of an extraneous
crime or bad act that is shown beyond a reasonable doubt by evidence
to have been committed by the defendant or for which he could be
held criminally responsible, regardless of whether he has previously
been charged with or finally convicted of the crime or act.
18
TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (West 2011); Thompson v. State,
425 S.W.3d 480, 490 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). The
authority of the trial court to admit evidence of extraneous bad acts or misconduct
during the punishment phase is not unconditional. Thompson, 425 S.W.3d at 490
(quoting Smith v. State, 227 S.W.3d 753, 759–60 (Tex. Crim. App. 2007)). “Unless
the extraneous misconduct evidence is such that the sentencing entity (either judge
or jury) can rationally find the defendant criminally responsible for the extraneous
misconduct, the trial court is not permitted to admit it at a punishment hearing.” Id.
Thus, here, when the State offered evidence of appellant’s extraneous bad act of
possession of incest pornography, it was required to present evidence such that the
jury could determine beyond a reasonable doubt that appellant had engaged in the
extraneous bad act. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1);
Thompson, 425 S.W.3d at 490.
The trial court must act as a gatekeeper to determine whether the evidence is
admissible, while the jury “is to determine whether or not the State has proved the
extraneous offenses beyond a reasonable doubt.” Mitchell v. State, 931 S.W.2d
950, 953–54 (Tex. Crim. App. 1996) (plurality op.); see Palomo v. State, 352
S.W.3d 87, 91–92 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) (holding that
trial court decides threshold issue of admissibility and fact finder decides whether
extraneous offense was proved beyond reasonable doubt). We review a trial court’s
19
decision to admit evidence of an extraneous offense or bad act during the
punishment phase under an abuse-of-discretion standard. Thompson, 425 S.W.3d
at 490 (citing Lamb v. State, 186 S.W.3d 136, 141 (Tex. App.—Houston [1st Dist.]
2005, no pet.)).
B. Facts
When appellant first objected in anticipation of the State’s introduction of
evidence regarding his viewing of pornography and asked the trial court to perform
its “gatekeeping function,” he stated that he had concerns regarding whether the
images on the computer could actually be attributed to him. Thus, appellant asked
the trial court to perform its “gatekeeping function” to determine whether the
evidence was such that the jury could find him criminally responsible for the
pornography in question beyond a reasonable doubt.
The record demonstrates that the trial court had before it the State’s pretrial
notices regarding the devices and specific images it wanted to admit, and the trial
court replied:
[T]he questions you just asked me [go to] the credibility of the
evidence and that is not my function as a gatekeeper. Now that being
said, I will give the jury a limiting instruction regarding extraneous
offenses that are admitted at the punishment phase of a trial so that
they can perform their function and determine the credibility of that
evidence before they make a decision as to whether or not to consider
it.
20
The trial court discussed the evidence briefly with the attorneys, asked whether
appellant had access to the internet during the relevant time, and ultimately
concluded that appellant’s counsel would be able to cross-examine the witnesses.
The trial court did not conduct a hearing or otherwise explore Tobi’s anticipated
testimony on the issue of appellant’s pornography viewing or her testimony
attributing the pornographic images taken from the computer to appellant’s use of
that device.
Subsequently, Tobi testified regarding her personal knowledge of appellant’s
viewing of pornography. Appellant again objected to this testimony, stating that he
wished to “renew my previous objections to this,” referring to his concerns that the
images found on the computer could not be attributed to him. The trial court
overruled the objection again.
When the State called the forensic computer examiner, appellant’s counsel
asked again “to have a voir dire outside the presence of the jury” based on his
earlier arguments, which the trial court denied. Appellant also objected when the
images themselves were offered into evidence, stating, “In addition to the
objections I made earlier, I just have an unduly prejudicial objection and not
relevant at this time.” The trial court, again, overruled the objections and admitted
the exhibits.
21
C. Threshold Determination of Admissibility and Harm Analysis
Appellant argues that the trial court erred in not holding a hearing prior to
admitting pornography evidence, making a brief reference to Rule of Evidence
104. In relevant part, Rule 104(c) provides that a trial court “must conduct a
hearing on a preliminary question so that the jury cannot hear it if: (1) the hearing
involves the admissibility of a confession in a criminal case; (2) a defendant in a
criminal case is a witness and so requests; or (3) justice so requires.” TEX. R. EVID.
104(c). However, appellant provided no argument or citation to authority
indicating that any of these grounds applied in this case. Thus, to the extent that
appellant is attempting to argue that the trial court was required to hold a separate
evidentiary hearing outside the presence of the jury under the provisions of this
Rule, we conclude that the argument is waived. See TEX. R. APP. P. 33.1(a), 38.1(i)
Appellant also argues that the trial court erred in not making a proper
threshold determination regarding the admissibility of the pornography evidence
prior to Tobi’s testimony. However, even if we assume, without deciding, that the
trial court failed to make a proper threshold determination regarding the
admissibility of this evidence prior to Tobi’s testimony, the record indicates that
appellant was not harmed by the trial court’s permitting testimony and evidence on
this topic. Under Texas law, any non-constitutional error, defect, irregularity, or
variance that does not affect substantial rights must be disregarded. See TEX. R.
22
APP. P. 44.2(b). Moreover, the Court of Criminal Appeals has held, in the context
of a trial court’s failure to hold a required gatekeeper hearing on admissibility of
scientific evidence, that the failure to hold a hearing is harmless if the evidence
was, in fact, reliable. Jackson v. State, 17 S.W.3d 664, 672 (Tex. Crim. App.
2000).
The record contained evidence from which the jury could have concluded
beyond a reasonable doubt that appellant possessed and viewed pornography. At
the gatekeeping stage before receiving Tobi’s testimony, the trial court had before
it information that appellant had had access to the internet during the relevant time,
and the trial court determined that appellant’s counsel would be able to cross-
examine the witnesses. Subsequently, Tobi testified that appellant made a
comment indicating that he had viewed pornography, so she looked on his
computer and searched his browser history. When she confronted him about his
searching for incest pornography, he did not deny that he had done so but stated
that “none of it was real” and that “he was watching those particular videos
[because they] were the only ones that had attractive females in [them].” Tobi also
identified the computer examined by the forensic examiner and found to contain
pornographic images. Tobi testified that the computer belonged to appellant, that
he had used the laptop “on the go,” and that appellant had had at least periodic
access to the computer during the relevant time.
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We conclude that the evidence of the extraneous pornography allegations
was reliable and was such that the jury reasonably could have concluded that
appellant had searched for and viewed the pornography as asserted. See Wise v.
State, 364 S.W.3d 900, 907 (Tex. Crim. App. 2012) (holding that “[t]he jury could
have reasonably inferred from appellant’s possession of temporary internet files
referring to ‘young porn’ and ‘teen sex’ that appellant knowingly and intentionally
had possession of the other child pornography in the free space of his computer”);
Wilson v. State, 419 S.W.3d 582, 590 (Tex. App.—San Antonio 2013, no pet.)
(holding that evidence was sufficient to sustain conviction for possession of child
pornography when images were found under defendant’s profile and he admitted
that he had viewed images). Appellant’s counsel was permitted to cross-examine
the witnesses regarding the exact nature of the evidence, and the trial court agreed
to give the jury a limiting instruction regarding its ability to consider the
pornography evidence.
We conclude that any error in the trial court’s failing to make a preliminary
gatekeeping determination on the admissibility of the extraneous pornography
evidence did not affect any substantial right of appellant’s. See TEX. R. APP. P.
44.2(b). Accordingly, appellant was not harmed by the trial court’s ruling
admitting this evidence. See TEX. R. APP. P. 44.2(b); Jackson, 17 S.W.3d at 672.
We overrule appellant’s third issue.
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Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Brown, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
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