Gary Harrington v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NOS. 2-08-423-CR
2-08-424-CR
GARY HARRINGTON APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION 1
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I. Introduction and Background
Appellant Gary Harrington entered an open plea of guilty to five counts
of possession of child pornography. During the punishment phase, the trial
court heard uncontested evidence that Appellant possessed more than 2,000
images of child pornography; a video of an adult man raping a two- or three-
year-old girl; a video of Appellant’s fourteen-year-old niece, H.H., wearing only
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 See Tex. R. App. P. 47.4.
a thong; and a homemade magazine of child pornography images. The trial
court also heard conflicting evidence of two unadjudicated extraneous
offenses—assertions that Harrington had molested H.H. and his daughter, A.S.
The trial court assessed punishment at ten years’ confinement on each count
and ordered that the sentences be served consecutively. In two issues,
Appellant argues the trial court erred by (1) admitting and considering evidence
that he molested H.H. because the unadjudicated extraneous offense was not
proven beyond a reasonable doubt and (2) excluding defense evidence to
contradict the unadjudicated extraneous offense.
II. Discussion
We review a trial court’s decision to admit or exclude evidence for an
abuse of discretion. Hayden v. State, 296 S.W.3d 549, 554 (Tex. Crim. App.
2009); Paschall v. State, 285 S.W.3d 166, 172 (Tex. App.—Fort Worth 2009,
pet. ref’d). Evidence as to any matter may be offered during the punishment
phase of a trial if the trial court deems it relevant to sentencing. Tex. Code
Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon 2009). Evidence is relevant
during the punishment phase of trial if it will assist the factfinder in determining
the appropriate sentence for the particular defendant in the circumstances
presented. Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999).
Thus, we will not disturb the trial court’s admissibility ruling on appeal unless it
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falls outside the zone of reasonable disagreement. Hayden, 296 S.W.3d at 553.
We will also uphold the ruling on any theory applicable to the case. Id.
A. Evidence Of Unadjudicated Extraneous Offenses
During the State’s case-in-chief of the punishment phase, Appellant’s
daughter, A.S., testified that Appellant molested her multiple times when she
was between the ages of eight and twelve. During cross-examination,
Appellant’s attorney introduced A.S.’s affidavit into evidence without objection.
After A.S. denied comparing stories of being molested with her cousin, H.H.,
Appellant’s attorney asked A.S. to read the following excerpt from her affidavit:
“Even after [H.H.] coming [sic] clean that her accusations were false, I still kept
a watchful eye on my father around my kids.” The State later presented
evidence that (1) the information in A.S.’s affidavit that H.H. recanted her story
that Appellant molested her came from Appellant and A.S.’s mother; 2 (2) the
video of H.H. “goes to a closeup of [H.H.’s] breast area or genital area”
numerous times; and (3) H.H. told Detective Angela Lundy that Appellant had
molested her.3
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 H.H. did not testify at trial, and neither party asked A.S.’s mother
about H.H.’s allegation or recantation.
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 On cross-examination, Detective Lundy stated she was not aware
H.H. had recanted her statement.
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B. Admission and Consideration of Unadjudicated Extraneous Offense
In his second issue, Appellant asserts the trial court erred by admitting and
considering evidence that Appellant molested H.H. when the unadjudicated
extraneous offense was not proven beyond a reasonable doubt. “When
evidence of extraneous offenses has been offered, regardless of the respective
phase of a trial, the law requires that it be proved beyond a reasonable doubt
that the defendant committed the said extraneous offense, or is at least
criminally responsible for its commission.” Mitchell v. State, 931 S.W.2d 950,
954 (Tex. Crim. App. 1996).
To preserve error, a party must continue to object each time the
objectionable evidence is offered. Martinez v. State, 98 S.W.3d 189, 193 (Tex.
Crim. App. 2003) (citing Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim.
App. 1991)); Fuentes v. State, 991 S.W.2d 267, 273 (Tex. Crim. App.), cert.
denied, 528 U.S. 1026 (1999). A trial court's erroneous admission of evidence
will not require reversal when other such evidence was received without
objection, either before or after the complained-of ruling. Leday v. State, 983
S.W.2d 713, 718 (Tex. Crim. App. 1998). This rule applies whether the other
evidence was introduced by the defendant or the State. Id. Here, the record
reveals Appellant introduced the unadjudicated extraneous offense of
Appellant’s molestation of H.H. by admitting A.S.’s affidavit into evidence
during cross-examination. In addition, Appellant did not object during the
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State’s presentation of evidence that (1) the basis for A.S.’s statement about
H.H. was that A.S.’s mother and Appellant told A.S. that H.H. recanted her
molestation allegation; (2) Appellant made the video of H.H.; (3) the video
frequently included inappropriate close-up footage of H.H.; and (4) H.H. told
Detective Lundy that Appellant molested her. Thus, Appellant failed to preserve
his complaint that the trial court erred by admitting evidence that Appellant
molested H.H.
Moreover, when the record does not indicate otherwise, we presume that
the trial court determined the unadjudicated extraneous offense was proven
beyond a reasonable doubt and that the court did not consider any improper
evidence in arriving at the sentence. See Williams v. State, 958 S.W.2d 844,
845 (Tex. App.—Houston [14th Dist.] 1997, pet. ref’d) (holding “there is no
indication that the trial court considered any improper evidence in arriving at the
sentence“ when the trial judge did not say if he determined whether the
extraneous offenses were proven beyond a reasonable doubt or if he considered
them in assessing appellant’s punishment). Here, the trial court did not say if
it determined that Appellant’s alleged molestation of H.H. was proven beyond
a reasonable doubt or if it considered the unadjudicated extraneous offense in
assessing Appellant’s punishment. Thus, as in Williams, there is no indication
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the trial court admitted or considered any improper evidence in assessing
Appellant’s punishment. 4 See id.
Even assuming the trial court erred by admitting or considering evidence
that Appellant molested H.H., 5 the admission was harmless. See Tex. R. App.
P. 44.2(b) (providing that a nonconstitutional error “that does not affect
substantial rights must be disregarded”). Here, the undisputed evidence subject
to the court’s consideration in assessing punishment was that Appellant
possessed (1) more than 2,000 images of child pornography; (2) a video of an
adult man raping a two- or three-year-old girl; (3) a video of H.H. wearing only
a thong, and (4) a homemade magazine of child pornography images. In
addition, the evidence enabled the trial court to find beyond a reasonable doubt
that Appellant molested A.S. on numerous occasions when she was between
eight and twelve years of age. Without considering Appellant’s alleged
molestation of H.H., the evidence allowed the trial court to appropriately
sentence Appellant to serve ten years’ confinement consecutively for each of
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 Appellant also alleges the State presented evidence of H.H.’s
molestation allegations without a good-faith basis to believe that it could prove
the bad act. See Rayme v. State, 178 S.W.3d 21, 27 (Tex. App.—Houston [1st
Dist.] 2005, pet. ref’d). However, we find nothing in the record to support this
allegation.
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 The State emphasized A.S.’s testimony about being molested, stating
“[Y]ou don’t even have to consider whether or not there was any sort of molest
[sic] on [H.H.].”
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the five counts of possession of child pornography. See Rogers, 991 S.W.2d
at 265. We overrule Appellant’s second issue.
C. Exclusion of Hearsay Evidence
In his first issue, Appellant asserts the trial court abused its discretion by
excluding evidence Appellant contends would have shown Appellant did not
molest H.H. Specifically, Appellant contends that the court abused its discretion
by excluding testimony that H.H. was molested by Appellant’s brother, not by
Appellant.
During his case-in-chief, Appellant called Gayle Ardman, a clinical social
worker who counseled H.H. During a voir dire examination by the State,
Ardman testified that she never counseled Appellant and that her testimony
concerned statements H.H. made to her. The State objected to Ardman’s
testimony as hearsay, the trial court sustained the State’s hearsay objection, and
Appellant made a bill of exceptions. During closing argument, Appellant again
requested that the trial court admit Ardman’s testimony, claiming the State
opened the door to Ardman’s testimony during closing argument by stating:
“And you know what, you don’t even have to consider whether or not there
was any sort of molest [sic] on H.H.[,] [Appellant] videotaped her.” The trial
court denied Appellant’s request.
Hearsay is a statement, other than one made by the declarant while
testifying at trial, offered in evidence to prove the truth of the matter asserted.
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Tex. R. Evid. 801(d). Hearsay is not admissible evidence unless it falls within
an exception provided by statute or the rules of evidence. Tex. R. Evid. 802.
After an objection to hearsay evidence, the proponent of the evidence must
establish that an exception applies to make the evidence admissible. Taylor v.
State, 268 S.W.3d 571, 578–79 (Tex. Crim. App. 2008). One exception to this
burden is found in Rule 803(4), which excludes from hearsay a statement made
for the purpose of medical diagnosis or treatment. Tex. R. Evid. 803(4). In
Taylor, the court held that this exception may be applicable to statements made
by a child-declarant to a mental-health professional regarding non-physical
ailments. Taylor, 268 S.W.3d at 588. However, not every statement made in
the course of mental-health treatment will be admissible simply because such
statements are likely to be truthful:
[I]t is incumbent on the proponent of the hearsay exception to make
the record reflect both (1) that truth-telling was a vital component
of the particular course of therapy or treatment involved, and (2)
that it is readily apparent that the child-declarant was aware that
this was the case. Otherwise, the justification for admitting the out-
of-court statement over a valid hearsay objection is simply too
tenuous.
Id. at 590–91.
Here, Appellant did not establish that truth-telling was a vital component
of Ardman’s treatment of H.H. or that H.H. was aware that being truthful was
essential to her therapy. Instead, Ardman stated that H.H. is “prone to
exaggeration, lies, and grandiose statements”—raising doubt about H.H.’s
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understanding of the importance of telling the truth during her sessions with
Ardman. Appellant therefore failed to carry his burden of establishing that a
hearsay exception applied to make Ardman’s testimony admissible into evidence.
See id. at 578–79. Thus, we hold the trial court did not abuse its discretion by
sustaining the State’s hearsay objection and excluding Ardman’s testimony. We
overrule Appellant’s first issue.
III. Conclusion
Having overruled Appellant’s two issues, we affirm the trial court’s
judgments.
ANNE GARDNER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DAUPHINOT, J. concurs without opinion.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 25, 2010
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