Sullivan, Joseph Edward

PD-0270-15
April 15, 2015
ORAL ARGUMENT REQUESTED
NO. PD-0270-15
IN THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
SITTING AT AUSTIN, TEXAS
JOSEPH SULLIVAN,
Petitioner,
VS.
THE STATE OF TEXAS
Respondent
On Petition for Discretionary Review
To the Court of Appeals Twelfth
Supreme Judicial District Cause
No. 12-13-00253-CR
PETITION SEEKING DISCRETIONARY REVIEW
James W. Huggler
State Bar No. 00795437
100 E. Ferguson, Suite 802
Tyler, Texas 75702
Telephone: 903-593-2400
Facsimile: 903-593-3830
jhugglerlaw@sbcglobal.net
ATTORNEY FOR PETITIONER
TABLE OF CONTENTS
DESCRIPTION PAGE
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . 2
GROUND FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
THE COURT OF APPEALS ERRED IN FINDING THAT
THE TRIAL COURT’S DECISION TO ADMIT EVIDENCE
WAS WITHING THE ZONE OF REASONABLE
DISAGREEMENT.
REASONS FOR GRANTING REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARGUMENTS AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
B. Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
APPENDIX A - Opinion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
i
INDEX OF AUTHORITIES
STATUTES
TEX. PENAL CODE ANN. §20.02 (West 2009). . . . . . . . . . . . . . . . . . . . . . . 2
CASES
Erazo v. State, 144 S.W.3d 487 (Tex. Crim. App. 2004). . . . . . . . . . . 4, 5
Jackson v. State, 314 S.W.3d 118 (Tex. App. – Houston [14th Court],
2010, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990). . . . . . 3, 4
Prytash v. State, 3 S.W.3d 522 (Tex. Crim. App. 1999). . . . . . . . . . . . . . 3
Santellan v. State, 939 S.W.2d 155 (Tex. Crim. App. 1997). . . . . . . . 4, 5
Sullivan v, State, No. 12-13-00253-CR, 2015 Tex. App.
LEXIS 1304 (Tex. App. – Tyler, Feb. 15, 2015). . . . . . . . . . . . . passim
RULES
TEX. R. APP. P. ANN. 9.4 (West 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . 10
TEX. R. APP. P. ANN. 66.3(a) (West 2013). . . . . . . . . . . . . . . . . . . . . . . . . 3
TEX. R. APP. P. ANN. 66.3( c) (West 2013). . . . . . . . . . . . . . . . . . . . . . . . . 3
ii
PD-0270-15
JOSEPH SULLIVAN, § IN THE COURT OF
PETITIONER §
§
VS. § CRIMINAL APPEALS
§
THE STATE OF TEXAS, §
APPELLEE § AUSTIN, TEXAS
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Now Comes JOSEPH SULLIVAN, Petitioner and Defendant in the
trial court, and respectfully submits this his Petition for Discretionary
Review complaining of the ruling and opinion by the Court of Appeals for
the Twelfth Supreme Judicial District, and would show the Court as
follows:
STATEMENT REGARDING ORAL ARGUMENT
In the event this Court grants this petition, Petitioner requests the
Court to grant oral argument herein so that all matters may be clarified
and any questions presented by the briefs of the parties may be addressed
in a proper manner.
1
STATEMENT OF THE CASE
Appellant was indicted in cause number 007-1018-12 and charged
with the offense of continuous sexual abuse of a child and received a life
sentence. TEX. PENAL CODE ANN. §21.02 (West 2009). A jury trial was
held on all issues. The Court of Appeals affirmed the trial court’s
judgment and sentence in an unpublished decision, and this petition
follows.
STATEMENT OF PROCEDURAL HISTORY
The Twelfth Court of Appeals issued an opinion in number 12-13-
00253-CR on February 11, 2015. No motion for rehearing was filed. On
March 11, 2015, a Motion to Extend Time to File Petition for
Discretionary Review was filed. That Motion was granted and the time
to file a petition for discretionary review was extended until April 13,
2015.
2
GROUND FOR REVIEW
THE COURT OF APPEALS ERRED IN FINDING THAT
THE TRIAL COURT’S DECISION TO ADMIT EVIDENCE
W AS W I T HI N T HE ZONE OF REAS O NAB L E
DISAGREEMENT.
REASONS FOR GRANTING REVIEW
The Court of Appeals’ decision conflicts with another court of appeals
decision on the same issue. TEX. R. APP. P. ANN. 66.3(a) (West 2014).
The Court of Appeal’s decision conflicts with an applicable decision
of the Court of Criminal Appeals on an important question of state law.
TEX. R. APP. PROC. ANN. 66.3( c)(West 2014).
ARGUMENTS AND AUTHORITIES
A. Standard of Review
A court’s decision to admit evidence is reviewed for an abuse of
discretion. Prytash v. State, 3 S.W.3d 522, 527 (Tex. Crim. App. 1999);
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). As
long as the trial court’s ruling was at least within the zone of reasonable
3
disagreement, the appellate courts will not intercede. Montgomery, 810
S.W.2d at 391.
B. Analysis
Rule 403 favors admissibility of relevant evidence, and the
presumption is that relevant evidence will be more probative than
prejudicial. Montgomery, 810 S.W.2d at 389. Both a trial and appellate
court are required to analyze and balance (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). Specifically regarding photographs, the courts are
to consider (1) the number of exhibits offered; (2) the gruesomeness; (3)
the detail; (4) the size; (5) whether they are black and white or color; (6)
whether they are close up shots; (7 whether the body is naked or clothed;
(8) the availability of other means of proof; (9) and other circumstances
unique to the case. Santellan v. State, 939 S.W.2d 155, 172 (Tex. Crim.
App. 1997).
However, both Erazo and Santellan involved prosecutions for
4
murder and the pictures in those matters were related directly to the
offense charged. In this case, the photographs offered and admitted did
not purport to show the defendant or the complaining witness. The
photographs offered were offered solely to impress the jury that this
defendant was a sexual predator. These photographs were not related to
the offense conduct, did not depict anything similar to what the
complainant described, and were not prosecuted as offenses in and of
themselves. While they may have been distasteful, they were not illegal.
Just as prosecutors have learned that evidence of membership in an
organized criminal street gang leads to convictions, possession of possible
child pornography can also lead juries to disregard evidence and convict.
Jackson v. State, 314 S.W.3d 118 (Tex. App. – Houston [14th Court], 2010,
no pet.). While the photographs admitted did contain lascivious
depictions, there was no causal link to establish that Sullivan was aroused
by these photographs. Sullivan at *8.
In this case, the appellate court described the cross-examination of
the complainant as well-structured and effective. Sullivan at *9-10. The
Court of Appeals erred in determining that it was “keenly important”
“particularly important” for the State to offer these photographs to
5
establish that Sullivan received sexual gratification from them
contemporaneously with the alleged abuse. Sullivan at *10. Despite the
well-structured attack on the complainant’s credibility, the Court of
Appeals erred in then stating that these photographs were not likely to
impress the jury in some irrational way, and that possession of
“pornographic” material was less heinous than the acts testified to by the
complainant. This decision reached by the Court of Appeals conflicts with
opinions from this Court and other appellate courts and should be
reversed.
CONCLUSION
Under all circumstances, the Court of Appeals erred in affirming the
trial court’s decision. This court should grant discretionary review and,
upon such review, reverse the Court of Appeals and remand the case to
the Court of Appeals.
6
PRAYER
WHEREFORE, Petitioner prays the Court to grant discretionary
review and, upon such review, to reverse the judgment of the Court of
Appeals; and for such other and further relief to which he may show
himself justly entitled.
Respectfully submitted,
/s/ James Huggler
James W. Huggler
State Bar No. 00795437
100 E. Ferguson, Suite 805
Tyler, Texas 75702
Telephone: 903-593-2400
Facsimile: 903-593-3830
ATTORNEY FOR PETITIONER
7
8
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Petition
has been forwarded to the District Attorney, Smith County, Texas, and on
the State Prosecuting Attorney by regular mail or through the State of
Texas Electronic Filing System on this the 11th day of April, 2015 at the
addresses listed below
/s/ James Huggler
James W. Huggler
Michael West
Smith County District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702
Lisa McMinn
State Prosecuting Attorney
PO Box 12405
Austin, Texas 78711
CERTIFICATE OF COMPLIANCE
I certify that this Brief complies with Tex. R. App. P. 9.4, specifically
using 14 point Century font and contains 2,332 words as counted by
Corel WordPerfect version x6.
/s/ James Huggler
9
James W. Huggler, Jr.
10
NO. PD-0270-15
IN THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS SITTING AT
AUSTIN, TEXAS
*********************************************************
JOSEPH SULLIVAN,
Petitioner
VS.
THE STATE OF TEXAS,
Respondent
*********************************************************
On Petition for Discretionary Review
To the Court of Appeals Twelfth
Supreme Judicial District Cause
No. 12-13-00253-CR
*********************************************************
APPENDIX
*********************************************************
11
JOSEPH EDWARD SULLIVAN, APPELLANT v. THE STATE OF TEXAS, APPELLEE
NO. 12-13-00253-CR
COURT OF APPEALS OF TEXAS, TWELFTH DISTRICT, TYLER
2015 Tex. App. LEXIS 1304
February 11, 2015, Opinion Delivered
NOTICE: PLEASE CONSULT THE TEXAS RULES nurse examiner. Each testified that no DNA linking
OF APPELLATE PROCEDURE FOR CITATION OF Appellant to the crime was present in [*2] the samples
UNPUBLISHED OPINIONS. collected. The State further sought to introduce, over
Appellant's objection, nine pictures recovered from
PRIOR HISTORY: [*1] Appeal from the 7th District Appellant's laptop depicting young girls. The trial court
Court of Smith County, Texas. (Tr.Ct.No. 007-1018-12). overruled Appellant's objection and permitted the State to
publish the pictures to the jury. Thereafter, the State rested.
Appellant rested without calling any witnesses.
COUNSEL: For Appellant: Austin R. Jackson.
1 Appellant has not raised an issue challenging the
For State: Michael J. West. sufficiency of the evidence.
Ultimately, the jury found Appellant "guilty" as
JUDGES: Panel consisted of Worthen, C.J., Hoyle, J., and
charged. Following a bench trial on punishment, the trial
Neeley, J. court sentenced Appellant to imprisonment for life. This
appeal followed.
OPINION BY: BRIAN HOYLE
ADMISSIBILITY OF EVIDENCE - RELEVANCE AND UNDUE
OPINION PREJUDICE
MEMORANDUM OPINION In his sole issue, Appellant argues that the trial court
abused its discretion in admitting nine photographs seized
Joseph Edward Sullivan appeals his conviction for from Appellant's laptop. Specifically, Appellant argues the
continuous sexual abuse of a child under fourteen, for admission of this evidence violates Texas Rules of Evidence
which he was sentenced to imprisonment for life. In one 401, 402, and 403.
issue, Appellant argues that the trial court erred in
admitting irrelevant and unduly prejudicial photographic Standard of Review and Governing Law
evidence offered by the State during the guilt-innocence
phase of trial. We affirm. We review the trial court's decision to admit evidence
for abuse of discretion. See Prystash v. State, 3 S.W.3d
BACKGROUND 522, 527 (Tex. Crim. App. 1999); Montgomery v. State,
810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g).
Appellant was charged by indictment with continuous
"That is to say, as long as the trial court's ruling was at least
sexual abuse of his girlfriend's young daughter, K.J.
within the zone of reasonable disagreement, the appellate
Appellant pleaded "not guilty." The matter proceeded to a
court will not intercede." Montgomery, 810 S.W.2d at 391.
jury trial.
Furthermore, [*3] if the trial court's evidentiary ruling is
At trial, K.J. testified regarding multiple instances of correct on any theory of law applicable to that ruling, it will
Appellant's sexually abusing her.1 Moreover, a video not be disturbed, even if the trial judge gave the wrong
recording of her interview with Jackie Mendez, a forensic reason for a correct ruling. See De La Paz v. State, 279
examiner with the Child Advocacy Center in Tyler, Texas, S.W.3d 336, 344 (Tex. Crim. App. 2009).
was played for the jury. Additionally, the State elicited
"Relevant evidence" means evidence having any
testimony from multiple forensic scientists concerning the
tendency to make the existence of any fact that is of
biological samples collected from K.J. by the sexual assault
consequence to the determination of the action more
12
probable or less probable than it would be without the S.W.3d 320, 322 (Tex. App.--Fort Worth 2007, pet. ref'd).
evidence. TEX. R. EVID. 401. Evidence that is not relevant
is inadmissible. See TEX. R. EVID. 402. With respect to the The Photographs and K.J.'s Trial Testimony
relevance of photographic evidence, the court of criminal
In the instant case, the State sought to admit nine of
appeals further instructs as follows:
approximately two thousand photographs recovered from
Appellant's laptop. Each of these pictures depicts one or
A photograph should add something that
more young girls. In five of the pictures, the girls are nude
is relevant, legitimate, and logical to the
or partially nude. In three of the remaining four pictures,
testimony that accompanies it and that
the girls depicted are wearing only undergarments, and in
assists the jury in its decision-making
the fourth picture, the girl is wearing an ill-fitting and
duties. Sometimes this will, incidentally,
revealing bathing suit. Appellant objected to the
include elements that are emotional and
admissibility of these photographs, arguing that they were
prejudicial. Our case law is clear on this
not relevant and were "more prejudicial than probative."
point: If there are elements of a photograph
The trial court overruled Appellant's objections.
that are genuinely helpful to the jury in
making its decision, the photograph is Earlier in the trial, K.J., who was twelve years old at
inadmissible only if the emotional and that time, testified that when she was nine years old,
prejudicial aspects substantially outweigh Appellant sexually abused her on multiple occasions.
the helpful aspects. Specifically, she stated that Appellant would put his hand
on her genitals under her underwear and, subsequently,
would put his finger in her vagina. K.J. specified that this
Erazo v. State, 144 S.W.3d 487, 491-92 (Tex. Crim. App. happened approximately twenty-five times, usually on a
2004). weekly basis. K.J. also described another incident when
Appellant placed [*6] an object she described as "hard and
Under Rule 403 of the Texas Rules of Evidence, even
rubbery [feeling], like a [hard] bottle nipple . . . close to
relevant "evidence may be excluded if its [*4] probative
[her] bottom." K.J. elaborated, stating that her back was
value is substantially outweighed by the danger of unfair
toward Appellant, who was rubbing this object on her
prejudice . . . ." TEX. R. EVID. 403. "Rule 403 favors
bottom and who once put the object in her bottom, while he
admissibility of relevant evidence, and the presumption is
breathed heavily and rubbed her stomach under her shirt
that relevant evidence will be more probative than
with his hands.
prejudicial." Montgomery, 810 S.W.2d at 389. Rule 403
requires both trial and reviewing courts to analyze and On cross examination, K.J. testified that she told
balance (1) the probative value of the evidence (2) the Mendez that she "gets really mad sometimes." She further
potential to impress the jury in some irrational, yet testified that she did not like having to sleep in the dining
indelible, way, (3) the time needed to develop the evidence, room and was mad because Appellant's son had his own
and (4) the proponent's need for the evidence. See Erazo, room. K.J. further recounted an incident with a boy at her
114 S.W.3d at 489. In making this determination, we school, whom she accused of touching her bottom. Based
consider factors including (1) the number of exhibits on K.J.'s testimony about feeling something similar to a
offered, (2) their gruesomeness, (3) their detail, (4) their bottle nipple on her bottom, the State questioned her about
size, (5) whether they are black and white or color, (6) her familiarity with condoms and whether she had seen one
whether they are close up shots, (7) whether the body is in her mother and Appellant's bathroom on one occasion.
naked or clothed, (8) the availability of other means of The State further questioned K.J. about whether Appellant's
proof, and (9) other circumstances unique to the individual son had, on numerous occasions, jokingly pretended to
case. Santellan v. State, 939 S.W.2d 155, 172 (Tex. Crim. "drop a condom" in front of her.
App. 1997).
On redirect examination, K.J. stated that she had not
Moreover, under Rule 404(b), evidence of other fabricated her allegations against Appellant for the purpose
crimes, wrongs, or bad acts is inadmissible if it is offered to of creating an opportunity to have [*7] her own bedroom.
prove the character of a person in order to show action in
During his closing argument, Appellant began by
conformity therewith. See TEX. R. EVID. 404(b). But it may
stating, "The bottom line in this case is the credibility of the
be admissible for other purposes, such as proof of motive,
witnesses, primarily, [K.J.]. She was the only witness that
opportunity, intent, [*5] absence of mistake or accident, or
means anything in the case." Appellant then proceeded to
to rebut a defensive theory. Id.; Sarabia v. State, 227
point out inconsistencies in K.J.'s testimony and suggest to
13
the jury that she fabricated the story because, among other also id. § 21.01(2) (West 2011) (under Section
reasons, she was mad about having to sleep in the dining 21.11, "sexual contact" includes touching by person
room. Appellant elaborated, suggesting that K.J. observed of any part of child's genitals and requires act be
the consequences that befell the boy at her school after she committed with intent to arouse or gratify sexual
reported to the teacher that he had touched her rear end. desire of actor).
Appellant proffered that, as a result, K.J. believed she could
gain some sort of advantage by placing Appellant in a Weighing Probative Value Against Danger of Unfair
similar predicament by telling her teacher that he had Prejudice
touched her inappropriately. Appellant further emphasized
We next consider whether the probative value of these
to the jury that the State had admitted having no physical
photographs is substantially outweighed by the danger of
evidence and, ultimately, asked the jury to conclude that
unfair prejudice to Appellant.
there was reasonable doubt that Appellant did what K.J.
said he did. Applying the Rule 403 balancing factors to this case,
we first consider how compellingly the photographs served
Relevance to make a fact of consequence more or less probable.
Sarabia, 227 S.W.3d at 324. As set forth previously, this
The photographs admitted in the instant case share a
photographic evidence was necessary to prove the requisite
common theme--lascivious depictions of young girls.2 The
intent element under Sections 21.02 and 21.11. Moreover,
indictment alleged that Appellant committed the offense of
at trial, Appellant fervently challenged K.J.'s credibility.
continuous [*8] sexual abuse by, among other ways,
Because there were no other eyewitnesses and no biological
intentionally or knowingly engaging in sexual contact with
evidence linking Appellant to the crime, the evidence in
K.J. by touching her genitals with the intent to arouse or
question [*10] was particularly important to the State's
gratify his sexual desire.3 K.J. testified that Appellant put
need to rebut Appellant's well-structured attack on its key
his hand in her pants underneath her underwear on
witness. Appellant declined to call any witnesses. Thus, his
numerous occasions. The photographs, which were
attack on K.J.'s credibility was a critical component to his
recovered from Appellant's computer, tended to prove that
defense. As a result, it was keenly important that the State
Appellant was aroused by lascivious depictions of young
seek to bolster K.J.'s testimony. Because K.J. admitted that
girls. This tends to support the conclusion that Appellant,
she was mad about having to sleep in the dining room and
on numerous occasions, engaged in the aforementioned
that she accused a boy at her school of making unwanted
sexual contact with the intent to arouse or gratify a similar
contact with her rear end, the jury could have reasonably
sexual desire. See, e.g., Pallm v. State, No. 12-10-00329-
concluded that she fabricated her allegations to gain some
CR, 2011 Tex. App. LEXIS 9402, 2011 WL 6043025, at *2
sort of advantage by getting Appellant into trouble. These
(Tex. App.--Tyler Nov. 30, 2011, pet. ref'd) (mem. op., not
photographs possessed by Appellant contemporaneously
designated for publication). They further served to bolster
with the events in question tended to show that K.J.'s
K.J.'s testimony, the veracity of which Appellant attacked.
testimony was truthful since it demonstrated that Appellant
Id.
received sexual gratification from viewing these
photographs. See, e.g., Pallm, 2011 Tex. App. LEXIS 9402,
2 Among these pictures was a photograph of a
2011 WL 6043025, at *2. We conclude that the probative
prelude to a sexual encounter between a girl and an
value of the photographic evidence is high and the State's
older nude male with an erect penis. Another
need for the evidence was significant.
photograph depicts two girls. One is on her knees,
leaning forward on her elbows, and facing away As for the exhibits, they are nine color images
from the camera, while the other girl is kneeling, apparently downloaded from the internet. Eight of the nine
facing the camera, and has both of her hands placed photographs are 4? x 6,? while the remaining photograph is
on the first girl's genitals. 3 1/2? x 5.? None of the [*11] pictures are particularly
3 See TEX. [*9] PENAL CODE ANN. § 21.02(c)(2) sharp in detail. Most of the photographs could be described
(West Supp. 2014) ("act of sexual abuse" includes as blurry to moderately pixilated. Finally, one photograph
indecency with a child under Section 21.11(a)(1), if appears to have been taken with some sort of night vision
actor committed offense in a manner other than by filter, and its subject is barely discernible.
touching breast of child); id. § 21.11(a) (West
But despite the poor quality of the photographs, we
2011) (person commits indecency with child if,
cannot discount the possibility that they may have
with a child younger than seventeen years of age,
potentially impressed the jury in some irrational way. And
person engages in sexual contact with child); see
14
while the notion of a person receiving any sort of
gratification from these sorts of pictures is repugnant, its In response, Appellant's attorney also made several
potential to irrationally impress the jury in the instant case references to the photographs, explaining to the jurors that
was diminished given the totality of the evidence before the the purpose of the State's offering [*13] the photographs
jury. See, e.g., Gomez v. State, No. 12-13-00050-CR, 2015 was to "get a reaction out of" them and cause them to not
Tex. App. LEXIS 486, 2015 WL 303095, at *4 (Tex. App.-- care about the evidence, or lack thereof. Appellant further
Tyler 2015, no pet. h.) (not yet released for publication); reminded the jury that it was not obligated to convict
Pallm, 2011 Tex. App. LEXIS 9402, 2011 WL 6043025, at Appellant based on his possessing these photographs.
*3. Indeed, Appellant's possession of this pornographic
Having considered and balanced the aforementioned
material was likely to be construed as less heinous by the
factors, we conclude that each factor weighs in favor of the
jury than the detailed evidence it heard concerning
trial court's finding that the probative value of the
Appellant's repeatedly rubbing nine-year-old K.J.'s genitals,
photographs is not substantially outweighed by the danger
inserting his finger into her vagina, and penetrating her
of unfair prejudice. Therefore, we hold that the trial court
anus with a foreign object. Cf. Gomez, 2015 Tex. App.
did not abuse its discretion in admitting these photographs.
LEXIS 486, 2015 WL 303095, at *4; Pallm, 2011 Tex. App.
Appellant's sole issue is overruled.
LEXIS 9402, 2011 WL 6043025, at *3.
Moreover, the State did not spend an excessive amount DISPOSITION
of time developing this evidence. All argument concerning
Having overruled Appellant's sole issue, we affirm the
the admissibility of these photographs [*12] was conducted
trial court's judgment.
outside of the jury's presence. The State proved up the
photographs with only three questions. Once the BRIAN HOYLE
photographs were offered into evidence and published to
Justice
the jury, the State concluded its examination and rested.
Further still, while the State made references to these Opinion delivered February 11, 2015.
photographs in its jury argument, it did so while drawing a Panel consisted of Worthen, C.J., Hoyle, J., and Neeley,
clear line to the intent element. Specifically, the prosecuting J.
attorney argued to the jury as follows:
(DO NOT PUBLISH)
One of the other elements we have to
JUDGMENT
prove is that the defendant acted with intent
to arouse or gratify his sexual desires. I THIS CAUSE came to be heard on the appellate
think his acts speak for themselves, but I record and briefs filed herein, and the same being
also think other items do. I didn't like considered, it is the opinion of this court that there was no
looking at these [photographs]. I had to error in the judgment.
look at them for trial. You didn't want to
look at them. But you had to look at them It is therefore ORDERED, ADJUDGED and
because you're the jury in this case. Do you DECREED that the judgment of the court below be in all
think anybody else in this room likes things affirmed, for which execution may issue, and that
looking at them? That man right there. this decision be certified [*14] to the court below for
Ladies and gentlemen, we have proved our observance.
case beyond a reasonable doubt. I ask you Brian Hoyle, Justice.
today to fight for her, to right a wrong in
her life with a guilty.
15
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Location Court Of Criminal Appeals
Date Filed 04/13/2015 03:39:05 PM
Case Number PD­0270­15
Case Description
Assigned to Judge
Attorney James Huggler
Firm Name Law Office of James Huggler
Filed By James Huggler
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Total Service Tax Fees $0.00
Total Provider Service Fees $3.00
Total Provider Tax Fees $0.25
Grand Total $3.34
Payment
Account Name Amie
Transaction Amount $3.34
Transaction Response
Transaction ID 8000323
Order # 004867925­0
Petition for Discretionary Review
Filing Type EFileAndServe
Filing Code Petition for Discretionary Review
Filing Description Petition for Discretionary Review
Reference Number PDR
Comments
Status Rejected
Fees
Court Fee $0.00
Service Fee $0.00
https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=d9c63dbb­5823­44e9­950b­3bd097eb1016 1/2
4/15/2015 Envelope Details
Rejection Information
Rejection
Time Rejection Comment
Reason
04/15/2015 The petition for discretionary review does not contain the identity of Judge,
Other 04:47:14 Parties and Counsel [Rule 68.4(a)]. You have ten days to tender a corrected
PM petition for discretionary review.
Documents
Lead Document PDR.pdf [Original]
eService Details
Date/Time
Name/Email Firm Service Type Status Served
Opened
Smith County
Michael West 04/13/2015
District Attorney's EServe Sent Yes
MWest@smith­county.com 05:13:18 PM
Office
Lisa McMinn State Prosecuting 04/13/2015
EServe Sent Yes
information@spa.texas.gov Attorney 04:26:08 PM
Lisa C. McMinn State Prosecuting 04/14/2015
EServe Sent Yes
lisa.mcminn@spa.texas.gov Attorney's Office 08:30:29 AM
https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=d9c63dbb­5823­44e9­950b­3bd097eb1016 2/2