            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                      NO. PD-1616-12



                               PAUL PAWLAK, Appellant

                                              v.

                                 THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
             FROM THE THIRTEENTH COURT OF APPEALS
                         NUECES COUNTY


       H ERVEY, J., delivered the opinion of the unanimous Court.

                                       OPINION

       Appellant, Paul Pawlak, was charged with, and convicted of, various counts of

prohibited sexual activities including sexual assault, sexual assault of a child, and

attempted sexual assault. He asks this Court to reverse the judgment of the court of

appeals, which held that the trial court properly admitted thousands of digital

pornographic images at Appellant’s trial, including images of child and homosexual
                                                                                          Pawlak–2

pornography. Pawlak v. State, No. 13-10-00535-CR, 2012 WL 3612493, at *1 (Tex.

App.—Corpus Christi Aug. 23, 2012) (mem. op.) (not designated for publication). We

hold that the trial court abused its discretion when it improperly admitted thousands of

extraneous-offense pornographic images over Appellant’s objection under Rule 403 of

the Texas Rules of Evidence. We reverse the judgment of the court of appeals and remand

this cause for a harm analysis in the first instance. See Fuller v. State, 363 S.W.3d 583,

589 (Tex. Crim. App. 2012).

                                    P ROCEDURAL H ISTORY

       Appellant was charged with five counts of sexual assault of a child, one count of

sexual assault,1 and two counts of attempted sexual assault. He was convicted by a jury of

three counts of sexual assault of a child, one count of sexual assault, and one count of

attempted sexual assault. T EX. P ENAL C ODE §§ 15.01 (attempted sexual assault),

22.011(a)(1) (sexual assault), (a)(2) (sexual assault of a child). He was sentenced to 55

years’ imprisonment.

       Appellant appealed his convictions to the Corpus Christi Court of Appeals, and the

court affirmed the judgment of the trial court in an unpublished opinion. Pawlak, 2012

WL 3612493, at *1. We granted Appellant’s petition for discretionary review to


       1
         The indictment styled this count as sexual assault of a child and cited the sexual-assault
of-a-child punishment range; however, the language of Count 5 does not allege that the victim
was a child. Despite that, the State treated the victim from Count 5 as if he were a child for
purposes of its theory of the crime, and the child testified that he was 15 years old at the time.
                                                                                       Pawlak–3

determine whether (1) the court of appeals erred when it held that Appellant opened the

door to the admission of extrinsic evidence of an extraneous offense, and (2) whether the

court of appeals erred when it held that the trial court did not abuse its discretion in

admitting thousands of extraneous pornographic images over Appellant’s objection under

Rule 403 of the Texas Rules of Evidence.2

                                     C OURT OF A PPEALS

       On appeal, Appellant argued that the trial court erred by admitting extrinsic

evidence of extraneous-offense evidence (i.e., voluminous pornographic images) at the

guilt stage of his trial, and that, notwithstanding the images’ admissibility as extraneous-

offense evidence, the images should have been excluded under Rule 403 of the Texas

Rules of Evidence. Pawlak, 2012 WL 3612493, at *1, *5. The court held that the trial

court did not abuse its discretion when it ruled that the “door had been opened” to the

admission of the pornographic images under Rule 404(b) of the Texas Rules of Evidence.

The court of appeals also held that the images were properly admitted under Rule 403 of

the Texas Rules of Evidence based on our opinion in Davis v. State, 313 S.W.3d 317, 331

(Tex. Crim. App. 2010), in which we delineated factors used to weigh whether autopsy

photographs in a capital-murder case should be admitted to prove that the defendant


       2
        The exact grounds granted for review in this case are: “(1) The Court of Appeals erred
when it held Petitioner opened the door to extrinsic evidence of an extraneous offense[,]” and
“(2) The Court of Appeals erred when it held the trial court did not abuse its discretion in
admitting thousands of extraneous photographic images over Petitioner’s 403 objection.”
                                                                                   Pawlak–4

committed capital murder. The court of appeals here reasoned that, even though the

images were graphic, the State did not spend an excessive amount of time discussing

them, and the pictures were no more harmful to Appellant than the testimony elicited

from the victims. Pawlak, 2012 WL 3612493, at *5.

                                        D ISCUSSION

       After reviewing Appellant’s grounds for discretionary review, we sustain

Appellant’s second ground. Because we grant Appellant relief on his second ground for

review, we do not reach the first question we granted for review.

       Generally all relevant evidence is admissible under the Texas Rules of Evidence.

See T EX. R. E VID. 402. However, there are exceptions to the general rule, including when

a trial judge excludes otherwise relevant evidence on one of the grounds stated in Rule

403. See id. at 403. Rule 403 states, “Although relevant, evidence may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice, confusion

of the issues, or misleading the jury, or by considerations of undue delay, or needless

presentation of cumulative evidence.” Id. Evidence is unfairly prejudicial when it has “an

undue tendency to suggest that a decision be made on an improper basis.” Montgomery v.

State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990) (op. on reh’g). We have held that

sexually related bad acts and misconduct involving children are inherently inflammatory.

Id. at 397. We have also held that it is possible for the admission of character evidence,
                                                                                        Pawlak–5

though not necessarily cumulative, to cross the line from prejudicial to unfairly

prejudicial based on the sheer volume of character evidence admitted. See Mosley v.

State, 983 S.W.2d 249, 263 (Tex. Crim. App. 1998); see also Salazar v. State, 90 S.W.3d

330, 336 (Tex. Crim. App. 2002).

       We review a trial court’s ruling under Rule 403 of the Texas Rules of Evidence for

an abuse of discretion. See Montgomery, 810 S.W.2d at 391. That is, the ruling of the trial

court must be upheld if it is within the zone of reasonable disagreement. Wheeler v. State,

67 S.W.3d 879, 888 (Tex. Crim. App. 2002).

       The extraneous-offense evidence in this case consisted of two disks (admitted as

State’s exhibits 19 and 20) taken from Appellant’s home, which were given to Kenneth

Patterson, a computer-forensics expert with the Corpus Christi Police Department, as part

of his separate investigation. He testified that “one CD contained approximately 900

images, and the [other disc] had [a] little over 9,000 images on it.”3 Patterson classified


       3
           During Patterson’s direct examination, the following exchange took place:

       Q. And approximately how many images were recovered from this defendant’s
       home?

       A. There were -- total images on all systems there were probably 700,000 total
       images. The images can be part of system images, part of work images,
       pornographic images, all grouped into there. So I had to go through roughly
       700,000 images total to look at all this.
                The one CD contained approximately 900 images, and the gold Tiva has
       little over 9,000 images on it.

                                                ***
                                                                                         Pawlak–6

the majority of the images as “gay porn,” but he also acknowledged on cross-examination

that many of the images were “child porn images floating around the Internet . . . .” At

least two images were published to the jury, but all of the images were admitted into

evidence. The record shows that the jury sent out six notes while it deliberated, and the

second note requested “all of the evidence in the case.” In response, the judge stated, “So

-- we will send in the evidence then.” T EX. C ODE C RIM. P ROC. art. 36.25 (stating that

“[t]here shall be furnished to the jury upon its request any exhibits admitted as evidence

in the case”).

       Here, the State needed to show that Appellant sexually assaulted, or attempted to

sexually assault, five complainants. The admitted digital images referred to a crime for

which Appellant was not on trial—possession of child pornography. However,

notwithstanding the differences between assault and possession, the State argued that the

digital images were probative to rebut allegations by Appellant that he was not sexually

interested in men or boys. We agree that Appellant’s possession of male pornographic




       Q. Thank you very much, sir. And you say there was a total of 9,000 pornographic
       images on this particular disk?

       A. That is correct.

       Q. And on the other disk that has been tendered and exhibited -- portions of it
       exhibited for the jury, approximately how many?

       A. 900 and a few change.
                                                                                        Pawlak–7

pictures, including male child pornography, might rebut Appellant’s claims that he was

not interested in men. We note, however, that there was no allegation that Appellant took

the pictures or that he in any way participated in coercing children to be involved in

producing child pornography, much less that he assaulted them. Thus, while the

extraneous-offense evidence may have been permissible rebuttal evidence, it did not show

that an assault or attempted assault was more likely to have occurred. See Wheeler, 67

S.W.3d 879, 888 (Tex. Crim. App. 2002); Montgomery, 810 S.W.2d at 390.

       With respect to the State’s need for the extraneous-offense evidence, the State had

five complainants who all testified that Appellant had sexually assaulted them. Unlike in

Wheeler, in which one little girl was “pitted against six defense witnesses whose

testimony asserted or implied the events did not occur[,]” here the State had multiple

victims testifying about specific incidents of inappropriate sexual behavior, and the

similarities in their stories were striking. See Wheeler, 67 S.W.3d at 889. It is the

corroboration of key aspects of the State’s theory of the crime by multiple complainants

that factually distinguishes this case from Wheeler. Here, the State’s need for the

extraneous-offense evidence in this case was not as great as in a “he-said she-said” case

with a single victim. See id. Moreover, the testimony of the complainants was much more

probative of the charged offenses than the extraneous-offense evidence because the

testimony of the five complainants all alleged that Appellant sexually assaulted them,
                                                                                     Pawlak–8

which was the ultimate issue the State had to prove at Appellant’s trial. In contrast,

possession of pornography was not an issue at trial, and as was previously discussed, the

extraneous-offense evidence was only marginally probative as a possible rebuttal of

Appellant’s theory that he was not sexually interested in young men.

       When we examine the potential to impress the jury in some irrational but

unforgettable way, we cannot ignore our statements that sexually related bad acts and

misconduct involving children are inherently inflammatory. See Wheeler, 67 S.W.3d at

889; Montgomery, 810 S.W.2d at 397. However, the plain language of Rule 403 does not

allow a trial court to exclude otherwise relevant evidence when that evidence is merely

prejudicial. See T EX. R. E VID. 403. Indeed, all evidence against a defendant is, by its very

nature, designed to be prejudicial. See Wheeler, 67 S.W.3d at 889 (Keller, P.J.,

concurring) (explaining that the fact that proffered evidence is prejudicial is insufficient

to exclude it under Rule 403 of the Texas Rules of Evidence because only unfair

prejudice is addressed by Rule 403). Nevertheless, as we stated in Mosley, admissible

prejudicial evidence can become unfairly prejudicial by its sheer volume. See Mosley, 983

S.W.2d at 263; Salazar, 90 S.W.3d at 336.

       Under these facts, the sheer volume of extraneous-offense evidence was unfairly

prejudicial and invited the jury to convict Appellant of sexually assaulting or attempting

to sexually assault the victims because Appellant possessed 9,900 images that included
                                                                                   Pawlak–9
homosexual child pornography. The facts of this case do not require us to determine the

exact point at which the admission of voluminous amounts of extraneous-offense

character evidence crosses the threshold to unfairly prejudicial. Even if we were to decide

that at least some of the extraneous-offense digital images of pornography were

admissible, the trial court abused its discretion when it admitted all 9,900 images of

pornography without regard to the amount of evidence, kind of evidence, or its source,

and over Appellant’s Rule 403 objection. Mosley, 983 S.W.3d at 263.

                                       C ONCLUSION

       The trial judge abused his discretion when he admitted all 9,900 images of

pornography in the form of extraneous-offense evidence, including homosexual child

pornography. The judgment of the court of appeals is vacated, and this cause is remanded

to the court of appeals for a harm analysis.

                                                         Hervey, J.

Delivered: September 18, 2013

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