Opinion issued August 11, 2016




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-15-00220-CR
                              NO. 01-15-00221-CR
                              NO. 01-15-00222-CR
                            ———————————
                        GARY JAMES COX, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee


                  On Appeal from the 122nd District Court
                          Galveston County, Texas
        Trial Court Case Nos. 13-CR-0183, 13-CR-0184 & 14-CR-3651


                           CONCURRING OPINION

      I respectfully concur in the judgment only. Appellant Gary James Cox was

charged with aggravated sexual assault of a child under six years of age and with

attempted solicitation of a sexual performance from another child by requesting that
she send him a pornographic image of herself. He complains that the admission of

over 2,000 child pornography images in his possession as extraneous offense

evidence was “unfairly prejudicial” because of its “sheer volume”—even though

only some of the images were shown to the jury in a series of thumbnail sketches.

The majority, relying heavily on an extended analysis of the Court of Criminal

Appeals’ opinion in Pawlak v. State, 420 S.W.3d 807 (Tex. Crim. App. 2013) (called

by the majority Pawlak II)—a case decided on materially different facts in every

relevant regard—finds this to be a close case.

      In my view, this is not a close case. The majority opinion is incorrect and

misleading in suggesting that the more child pornography a defendant charged with

sex crimes against minors has in his possession, the more “irrational” and “unfairly

prejudicial” the effect of this evidence is to show his intent to engage in sexual

activity with children and to solicit pornographic images from children—no matter

what the crime with which he is charged, the facts of the case, the age of the victim,

or the defenses offered by the defendant. I find nothing irrational or unfairly

prejudicial about the introduction of 2,000 images of child pornography—only some

of which were shown to the jury in a series of HTML pages of thumbnail images—

in this case of aggravated sexual assault of a three-year-old child, which appellant

denied, and attempted solicitation of sexual performance from a thirteen-year-old,

which appellant claimed was just “a joke.”


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      Accordingly, I write separately to bring attention to the danger of future

courts’ reliance on the majority’s overbroad construction of Pawlak and its

misapplication of the burden of proof of admissibility of extraneous evidence of the

possession of child pornography. I would hold that, under the correct application of

the standard of proof, the evidence of appellant’s possession of child pornography

was clearly admissible in this case.

                Admissibility of Evidence of Child Pornography

      The majority correctly sets out the standard of review for the admissibility of

extraneous offense evidence in a child sexual assault case. However, its heavy

reliance on Pawlak leads it to elevate the standard of review of admissibility of

extraneous evidence of Cox’s other sex crimes far beyond that contemplated by

Texas law.

      Generally, all relevant evidence is admissible under the Texas Rules of

Evidence. TEX. R. EVID. 402; Pawlak, 420 S.W.3d at 809. However, relevant

evidence may be excluded under certain circumstances, such as that provided in Rule

of Evidence 403, governing the admissibility of evidence challenged as

impermissibly prejudicial. Rule 403 provides, “The court may exclude relevant

evidence if its probative value is substantially outweighed by a danger of one or

more of the following: unfair prejudice, confusing the issues, misleading the jury,

undue delay, or needlessly presenting cumulative evidence.” TEX. R. EVID. 403.


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“Evidence is unfairly prejudicial when it has an undue tendency to suggest that a

decision be made on an improper basis.” Pawlak, 420 S.W.3d at 809 (citing

Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990) (internal

citations omitted)).

      “Rule 403 favors admissibility of relevant evidence,” however, “and the

presumption is that relevant evidence will be more probative than prejudicial.”

Montgomery, 810 S.W.2d at 389. In determining whether evidence is admissible

under Rule 403, we consider, among other things, “(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.” Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012);

Montgomery, 810 S.W.2d at 389–90). “We review a trial court’s ruling under Rule

403 of the Texas Rules of Evidence for an abuse of discretion.” Pawlak, 420 S.W.3d

at 810. While evidence of an extraneous sexual offense will always carry emotional

weight and the danger of impressing the jury in an irrational and indelible way, our

rules of evidence require the exclusion of relevant evidence only if the danger of

unfair prejudice substantially outweighs the probative value. Wheeler v. State, 67

S.W.3d 879, 888–89 (Tex. Crim. App. 2002) (holding extraneous evidence of

offense of touching of nine-year-old girl was relevant and probative to rebut

defendant’s denial of crime where successful prosecution turned on credibility of


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complainant in swearing match between complainant and defendant). The trial

court’s ruling must be upheld as long as it is within the zone of reasonable

disagreement. Id. at 888.

       In addition, Rule of Evidence 404 provides, “Evidence of a crime, wrong, or

other act is not admissible to prove a person’s character in order to show that on a

particular occasion the person acted in accordance with the character,” but such

“evidence may be admissible for another purpose, such as proving motive . . . [or]

intent.” TEX. R. EVID. 404(b) (emphasis added).

       One of the essential elements of each of the crimes with which Cox was

charged is criminal intent. See TEX. PENAL CODE ANN. § 22.021 (Vernon Supp.

2015) (criminal intent in aggravated sexual assault); id. § 43.25 (criminal intent in

sexual performance by child); Alexander v. State, 906 S.W.2d 107, 110 (Tex. App.—

Dallas 1995, no pet.) (intent is element of attempted sexual performance of a child).

Intent to commit a crime must be proven beyond a reasonable doubt. See Alexander,

906 S.W.2d at 109. “Intent is most often proven through the circumstantial evidence

surrounding the crime, rather than through direct evidence.” Christensen v. State,

240 S.W.3d 25, 32 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d); see Hart v.

State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002) (“Direct evidence of the requisite

intent is not required. . . .”).




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      The majority concludes that, at least with respect to Cox’s solicitation of the

thirteen-year-old to send him a nude photograph of herself, “the strongest evidence

of intent was [Cox’s] possession of child pornography.”               Slip Op. at 20.

Nevertheless, after a long digression into Pawlak, it determines that, “[b]ased on

Pawlak II, we must conclude that the exhibit of 2,000 pornographic images and

videos had a significant potential to irrationally impress the jury,” regardless of the

relevance of this evidence to the crimes to be proved or to the form in which the

evidence were presented to the jury—namely as thumbnail-sized images of some of

the evidence that were not taken into the jury room. Slip Op. at 17 (emphasis added).

Thus, the majority weakly concludes that Cox’s “possession of child pornography

constitutes some proof that [he] intended to solicit more child pornography.” Slip

Op. at 12.

      I believe, by contrast to the majority, that this evidence was highly probative

of an essential element of both Cox’s intent to solicit the sexual performance of the

thirteen-year-old and his intent to induce the sexual conduct of the three-year-old, in

that appellant denied the assault of the three-year-old complainant and called the

attempted solicitation of a sexual performance from the thirteen-year-old a joke.

Thus, by finding that appellant’s possession of child pornography as presented to the

jury “had a significant potential to irrationally impress the jury,” the majority greatly




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overstates the weight of this evidence vis a vis the other elements in the proof of his

claim.

         I agree with the majority that the other two factors generally considered in

determining the admissibility of evidence challenged as more prejudicial than

probative under Rule 403 of the Texas Rules of Evidence—the time needed to

develop the evidence, and the proponent’s need for the evidence—both support the

admissibility of the evidence of Cox’s possession of child pornography.              See

Hernandez v. State, 390 S.W.3d at 324; Slip Op. at 17–18. I could not say that the

evidence of Cox’s possession of a large amount of child pornography as introduced

in this case was irrationally prejudicial. See Wheeler, 67 S.W.3d at 889 (holding that

exclusion of relevant evidence of extraneous sexual offense is require only if danger

of unfair prejudice substantially outweighs probative evidence) (emphasis added).

         Here, the evidence that Cox possessed large quantities of child pornography

was highly probative of the essential element of intent in Cox’s crimes against both

children; only some of the images were displayed to the jury; none of the images

were displayed in their full size; none of the videos were played; and the exhibit was

not provided to the jury during its deliberations. Rather, Cox was charged with

aggravated sexual assault of a three-year-old child, and his possession of

pornography was relevant to rebut multiple defensive theories, including the theory

that the alleged assault simply did not occur, the theory that the three-year-old child’s


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outcry was delayed because it was a result of the investigation into lewd texts Cox

sent to her thirteen-year-old sister, and the theory that Cox had a healthy relationship

with both of the victims. Cox’s possession of child pornography was also probative

of his alleged attempted solicitation of a sexual performance of the thirteen-year-old

complainant—specifically regarding his solicitation of her to send him sexually

explicit photographs of herself to “make it fair,” since he had sent nude photographs

of himself to her, and his characterization of this solicitation as “a joke.”

      Pawlak, on which the majority relies as controlling authority, instead of

Wheeler, was wholly unlike this case. In Pawlak, the defendant was tried on five

counts of sexual assault against five different teenaged boys under completely

different facts from those of this case. Pawlak challenged the admission of 9,900

“barely relevant” pornographic images of homosexual behavior, including child

pornography, that were admitted into evidence and were taken into the jury room.

420 S.W.3d at 808–10. The State argued that the inflammatory images were

probative to rebut Pawlak’s allegations that he was not sexually interested in men or

boys. Id. at 810. The Court of Criminal Appeals held that while the extraneous

offense child pornography evidence “may have been permissible rebuttal evidence,

it did not show that an assault or attempted assault was more likely to have occurred”

between Pawlak and his teenaged victims. Id. Thus, it was irrelevant to proof of the

offense with which the defendant was charged.


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      Moreover, “the State had five complainants who all testified that Appellant

had assaulted them.” Id. at 811. The court found the testimony of the complainants

to be “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, which was the ultimate issue the State had to prove at

Appellant’s trial.” Id. The court specifically contrasted the facts in Pawlak with

those in Wheeler, stating, “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.” Id.

(quoting Wheeler, 67 S.W.3d at 889).

      The Court of Criminal Appeals observed that “possession of pornography was

not an issue at trial” in Pawlak, and “the extraneous-offense evidence was only

marginally probative as a possible rebuttal of [Pawlak’s] theory that he was not

sexually interested in young men,” whereas there was highly probative testimony

from each of the teenage victims, and there were striking similarities among their

stories. Thus, the Court of Criminal Appeals concluded that, “[u]nder these facts the

sheer volume of extraneous-offense evidence was unfairly prejudicial and invited

the jury to convict [Pawlak] of sexually assaulting or attempting to sexually assault

the victims because [he] possessed 9,900 images that include homosexual child


                                           9
pornography”—all 9,900 images of which were introduced into evidence and taken

into the jury room. Id. The court held that the trial court had abused its discretion in

admitting the extraneous-offense pornographic images referring to the crime of

possession of child pornography. Id.

      The situation here is clearly distinguishable from that in Pawlak, and the

majority should have focused its analysis on the admissibility of the extraneous

offense evidence as provided for under the relevant rules of evidence and factually

similar case law. It should not have relied on an almost completely inapposite case,

leaving the misleading impression that the admissibility of the evidence of Cox’s

possession of pornography was barely relevant, irrational, and highly prejudicial, as

in Pawlak.

      This is not a case in which this appellate Court need have concerned itself

with “discern[ing] a method” for drawing a line between inflammatory evidence

necessary to carry the State’s burden of proof and evidence that is not necessary and

“has a significantly larger inflammatory effect.” Slip Op. at 22. Nor is it a case in

which the appellate court should have had to labor to discern whether the “sheer

volume” of admissible, highly probative, and necessary evidence upon which the

prosecution did not dwell was, by its “sheer volume” inadmissible, regardless of its

great relevance, highly probative value, and the way it was used at trial. To call this

a “close case” on this ground—as the majority does, Slip Op. at 24—is to misapply


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the burden of proof by decreeing that the volume of such highly probative evidence

makes the evidence, by that very fact, “unfairly” or “irrationally” prejudicial.

      The standard in assessing “the potential of the evidence to impress the jury in

some irrational, but nevertheless indelible way” is “the potential prejudice of sheer

volume, barely relevant evidence, and overly emotional evidence.” Salazar v. State,

90 S.W.3d 330, 336 (Tex. Crim. App. 2002) (emphasis added) (assessing prejudicial

effect of victim impact or victim character evidence). Here, the “sheer volume” of

evidence of Cox’s possession of pornography was not irrationally related to his

intent to commit the crimes with which he was charged, it was not “barely relevant,”

and its presentation was not “overly emotional.” Thus, in assessing the admissibility

of that evidence, and the correctness of the trial court’s ruling, I cannot conclude—

as the majority does—that this Court need rely solely on the fact that “[t]rial judges

deserve the greatest deference when they have explicitly weighed and balanced [the]

four factors [that determine admissibility of evidence as more probative than

prejudicial under Rule 403], and articulated their rationale for admitting or excluding

the evidence.” Id. at 337.

      I agree only with the majority‘s conclusion that, “[g]iven the probative value

of the evidence, the limited emphasis placed on the evidence, the strength of the

State’s need for the evidence, and the careful thought of the trial court in determining

its admissibility, . . . the trial court did not abuse its discretion by admitting the


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evidence” of Cox’s possession of child pornography. See Slip Op. at 24. I would

overrule Appellant’s sole issue.

                                    Conclusion

      I respectfully concur in the judgment.




                                               Evelyn V. Keyes
                                               Justice

Panel consists of Chief Justice Radack and Justices Keyes and Higley.

Justice Keyes, concurring in the judgment.

Publish. See TEX. R. APP. P. 47.2(b).




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