Opinion issued July 16, 2013.




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas


                             NO. 01-12-00320-CR


             RAYMOND ARRENDONDO MORENO, Appellant
                                      V.

                     THE STATE OF TEXAS, Appellee


                   On Appeal from the 230th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1316184


                                OPINION

      A jury convicted Raymond Arrendondo Moreno of the first degree felony of

continuous sexual abuse of a child. See TEX. PENAL CODE ANN. § 21.02(b) (West

Supp. 2012). The trial court sentenced Moreno to life in prison. Moreno appeals,
asserting that the trial court erred by (1) denying his motion to suppress evidence

based on an illegal seizure and (2) admitting, over Moreno’s objection, explicit

photographs of the complainant found on Moreno’s cell phone.              Finding no

reversible error, we affirm.

                                    Background

      Deputy James Savell of the Harris County Sheriff’s Office stopped Moreno

for a traffic violation. Savell testified that he was driving on Interstate 10, when he

passed Moreno’s car. Savell noticed Moreno, a middle-aged Hispanic male, look

over at Savell, then lower his head and speak to his three passengers. Savell then

observed the people in the back seat reach down and look in Savell’s direction.

Savell positioned his car in front of Moreno’s and observed him through the rear-

view mirror. Savell saw Moreno fail to signal a lane change and twice fail to

maintain a single lane, and Savell pulled him over for these traffic violations.

      As Savell walked toward Moreno’s vehicle, he noticed the occupants

making furtive movements, bending and reaching, as if to conceal weapons or

narcotics from view.      Through the car windows, Savell could see several

pharmaceutical bags and medicine bottles with the labels removed. Based on his

training and experience, Savell suspected that Moreno and his passengers may

have been illegally dealing prescription drugs, and this caused him to shift his

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focus from Moreno’s traffic violations to the pill bottles.       Savell asked the

passenger in the front, a girl in her early teens who would become the complainant

in this case, for identification. She replied that she did not have identification.

Savell separated the complainant and the other passengers from Moreno while he

investigated. Savell spoke briefly with Moreno, but the complainant was the first

person he interviewed.

      The complainant told Savell that she was thirteen years old. She did not

know Moreno by name; when Savell asked what she called the driver of the car,

she replied, “Babe.” The complainant told Savell that she had known Moreno for

around a year and that he had had sexual intercourse with her at least twelve times.

      The complainant was taken to the Children’s Assessment Center for a

forensic interview.    She also underwent a sexual assault examination, which

showed abrasions to her vagina. The doctor who examined her testified at trial that

the abrasions were caused by a penis penetrating the complainant’s vagina.

      After the complainant’s forensic interview and exam, Savell obtained search

warrants for Moreno’s home and electronics. Officers found condoms with both

Moreno’s and the complainant’s DNA. They also found, on Moreno’s cell phone,

pictures of the complainant, including some in which she was on a bed nude, and

others of her genitalia.

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      At trial, the complainant testified that the first time that she had sexual

intercourse with Moreno was the night before her thirteenth birthday, November 6,

2010. She testified that she did not see Moreno again until after school ended in

2011. The complainant testified that in the summer of 2011, she stayed with

Moreno almost every week for a few days at a time, and that Moreno had sexual

intercourse with her between ten and fifteen times.      Although she could not

remember every date on which Moreno had sexual intercourse with her, the

complainant said that the sexual intercourse occurred on the days that Moreno

photographed her.    The complainant also testified that the last time they had

intercourse was the night before Moreno was arrested, August 9, 2011.

      The forensic analysis of Moreno’s cell phone revealed that the photographs

of the complainant were taken on several different dates. The first was taken on

November 6, 2010. The next images of the complainant, including photographs of

the complainant’s genitalia, were taken after the school year ended. A forensic

analyst testified that these photographs were taken on several different dates

between June 6, 2011 and July 30, 2011.

      The jury found Moreno guilty of continuous sexual abuse of a child, and the

trial court sentenced Moreno to life in prison. Moreno appealed.




                                          4
                                 Motion to Suppress

      In his first issue, Moreno contends the trial court erred by denying his

motion to suppress and admitting evidence obtained from the complainant and

during the execution of the search warrants, because the evidence was obtained as

a result of a traffic stop that violated the Equal Protection Clause of the Fourteenth

Amendment of the United States Constitution. See U.S. CONST. amend. XIV.

Specifically, Moreno claims Savell stopped him because of his race, in violation of

the Equal Protection Clause. The State responds that Moreno did not preserve the

issue for review, because his argument on appeal does not comport with the ground

for suppression that he raised in the trial court.

      A motion to suppress is a specialized objection to the admissibility of

evidence. Simmons v. State, 288 S.W.3d 72, 76 (Tex. App.—Houston [1st Dist.]

2009, pet. ref’d) (citing Galitz v. State, 617 S.W.2d 949, 952 n.10 (Tex. Crim. App.

1981)); Obryant v. State, No. 01-08-00740-CR, 2009 WL 4724667, at *6 (Tex.

App.—Houston [1st Dist.] Dec. 10, 2009, pet. ref’d) (mem. op., not designated for

publication) (citing Galitz, 617 S.W.2d at 952 n.10). To preserve a complaint for

appellate review, a party must have presented to the trial court a timely request,

objection, or motion stating the specific grounds for the ruling desired. TEX. R.

APP. P. 33.1(a)(1)(A); Simmons, 288 S.W.3d at 77. On appeal, the appellant’s

                                            5
contention must comport with a specific objection made at trial. Simmons, 288

S.W.3d at 77 (citing Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002));

Obryant, 2009 WL 4724667, at *6 (citing Wilson, 71 S.W.3d at 349). Equal

protection claims are subject to this rule. Saldano v. State, 70 S.W.3d 873, 889

(Tex. Crim. App. 2002). The Court of Criminal Appeals has “consistently held

that the failure to object in a timely and specific manner during trial forfeits

complaints about the admissibility of evidence[,] . . . even though the error may

concern a constitutional right of the defendant.” Id. (footnotes omitted).

      Moreno’s argument on appeal does not comport with his objection in the

trial court. On appeal, Moreno contends that his equal protection rights were

violated because Savell initiated the traffic stop based on Moreno’s race, and,

therefore, any evidence obtained as a result of the illegal stop is inadmissible.

Moreno did not make the same argument in the trial court. In his motion to

suppress, Moreno argued that Savell’s detention became unreasonable because he

detained Moreno longer than was necessary to investigate a simple traffic

violation. Moreno’s motion to suppress stated:

             On August 10, 2011, law enforcement officers stopped the
      vehicle being driven by the Defendant for a traffic violation. Once the
      officers had stopped the Defendant’s vehicle and approached it,
      however, they did not issue a citation to the Defendant. Additionally,
      although the officers observed prescription pill bottles in the interior

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      of the car, there was nothing to suggest that the prescriptions weren’t
      valid.

             Nonetheless, the officers, based on a mere hunch that
      something may be amiss, ordered the occupants, including the
      defendant and the complainant, out of the car and began questioning
      them. These questions elicited responses and evidence that were the
      result of an unreasonable detention and which served to develop
      incriminating evidence against the Defendant. Such prolonged
      duration of the detention violated the Fourth and Fourteenth
      Amendments to the United States Constitution, article I, section 9 of
      the Texas Constitution and article 38.23 of the Texas Code of
      Criminal Procedure because there were no articulable facts to support
      a reasonable suspicion to justify the continued detention and
      investigation. St. George v. State, 237 S.W.3d 720 (Tex. Crim. App.
      2007).

The day after the motion to suppress hearing, immediately before trial began,

Moreno offered the following summary of his position on the motion to suppress:

      The short version, as I read [Davis v. State, 947 S.W.2d 240 (Tex.
      Crim. App. 1997),] it states what we said, what I argued yesterday,
      that a legal stop—and we did not argue with the stop itself, even
      though it was a pretext—a legal stop for traffic offenses, or any other
      stop can, after a certain period of time, become unreasonable. And
      that’s Davis v. State. The other is Florida, 463, U.S. 491, 1983 [sic].
      It said that there was no simple test for when and how long a
      temporary detention becomes unreasonable, but two of the factors
      were moving the suspect or the defendant and the length of time for
      the encounter. We ask those to be included in the record for whatever
      purposes.

      Moreno never made an equal protection argument and never claimed Savell

made the traffic stop based on Moreno’s race. Because an equal protection claim

must be raised by a timely and specific objection before the trial court and Moreno
                                        7
did not object or otherwise raise the equal protection issue in conjunction with his

motion to suppress, we hold that his complaint is not preserved for review. See

Saldano, 70 S.W.3d at 889–90 (holding appellant waived complaint that admission

of expert testimony concerning recidivism and race violated his equal protection

rights when he failed to object below); see also Obryant, 2009 WL 4724667, at *6

(holding appellant’s argument on appeal that traffic stop based on his race violated

his equal protection rights was not preserved because appellant did not raise equal

protection issue in his motion to suppress).

      We overrule Moreno’s first issue.

                             Admission of Photographs

      Moreno contends in his second issue that the trial court erred by admitting

nude photographs of the complainant recovered from his cell phone, over his Rule

403 objection, because the evidence was unfairly prejudicial and duplicative of

evidence already admitted.

A.    Standard of Review

      We review a trial court’s decision to admit evidence for an abuse of

discretion. Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006);

Wolfberg v. State, 73 S.W.3d 441, 443 (Tex. App.—Houston [1st Dist.] 2002, pet.

ref’d). A trial court abuses its discretion only if its decision is “so clearly wrong as

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to lie outside the zone within which reasonable people might disagree.” Taylor v.

State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008). “When a trial court further

decides not to exclude the evidence, finding that the probative value of the

evidence is not outweighed by the danger of unfair prejudice, this decision too

shall be given deference.” Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App.

2003).

B.    Texas Rule of Evidence 403

         “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.” TEX. R. EVID. 403. “Unfair prejudice”

refers to more than the fact that the evidence has an adverse or detrimental effect

on the defendant’s case. Casey v. State, 215 S.W.3d 870, 883 (Tex. Crim. App.

2007).    “Virtually all evidence that a party offers will be prejudicial to the

opponent’s case, or the party would not offer it.” Id. Rather, unfair prejudice

refers to “an undue tendency to suggest a decision on an improper basis,

commonly an emotional one.” Id. When undertaking a Rule 403 analysis, “a trial

court must balance (1) the inherent probative force of the proffered item of

evidence along with (2) the proponent’s need for that evidence against (3) any

                                         9
tendency of the evidence to suggest decision on an improper basis, (4) any

tendency of the evidence to confuse or distract the jury from the main issues,

(5) any tendency of the evidence to be given undue weight by a jury that has not

been equipped to evaluate the probative force of the evidence, and (6) the

likelihood that presentation of the evidence will consume an inordinate amount of

time or merely repeat evidence already admitted.” Gigliobianco v. State, 210

S.W.3d 637, 641–42 (Tex. Crim. App. 2006).

C.    Law Applicable to Continuous Sexual Assault of a Child

      To establish continuous sexual abuse of a child, the State must prove that,

“during a period that is 30 or more days in duration,” the defendant “commit[ted]

two or more acts of sexual abuse . . . at the time of the commission of each of the

acts of sexual abuse, the [defendant was] 17 years of age or older and the victim

[was] a child younger than 14 years of age.” TEX. PENAL CODE ANN. § 21.02(b);

Smith v. State, 340 S.W.3d 41, 47 (Tex. App. —Houston [1st Dist.] 2011, no pet.).

An “act of sexual abuse” includes, as relevant here, aggravated sexual assault of a

child under section 22.021(a)(2)(B) of the Texas Penal Code. TEX. PENAL CODE

ANN. § 21.02(c)(4); see Smith, 340 S.W.3d at 47.

      A person commits aggravated sexual assault of a child if he intentionally or

knowingly causes his sexual organ to contact or penetrate the sexual organ of a

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child younger than fourteen years of age. TEX. PENAL CODE ANN.

§ 22.021(a)(1)(B)(i), 22.021(a)(2)(B). Although the exact dates of the abuse need

not be proven, the offense of continuous sexual abuse of a child does require proof

that one act of sexual abuse occur on at least the 29th day after the day of another

act of sexual abuse. Smith, 340 S.W.3d at 48 (citing TEX. PENAL CODE ANN.

§ 21.02(d) (“The jury must agree unanimously that the defendant, during a period

that is 30 or more days in duration, committed two or more acts of sexual

abuse.”)).

D.    Analysis

      Under the first two factors of Rule 403 balancing test, we examine the

probative value of the evidence in question and the State’s need for the evidence.

Gigliobianco, 210 S.W.3d at 641. “Probative value refers to the inherent probative

force of an item of evidence—that is, how strongly it serves to make more or less

probable the existence of a fact of consequence to the litigation—coupled with the

proponent’s need for that item of evidence.” Id. The photographs have probative

value because they, together with the complainant’s testimony that Moreno had

intercourse with her on the dates he photographed her, establish the dates on which

Moreno had sexual intercourse with the complainant. See TEX. PENAL CODE ANN.

§ 21.02(d); Smith, 340 S.W.3d at 48. The State’s need for this evidence was great.

                                        11
The complainant could not recall the precise dates on which Moreno had

intercourse with her, but she testified that Moreno had sex with her on the days he

photographed her. Thus, the photographs establish that the acts of sexual abuse

occurred during a period that was thirty or more days in duration, a necessary

element of the crime charged. 1 Additionally, in prosecutions for sexual offenses, a

successful conviction often depends on whether the jury believes the complainant.

See Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002). Therefore,

photographic evidence corroborating the complainant’s testimony was highly

probative and necessary to the State’s case. These factors weigh strongly in favor

of admissibility.

      Under the third factor, we examine the unfair prejudice, that is, the tendency

of the evidence to suggest decision on an improper basis. Gigliobianco, 210

S.W.3d at 641. Evidence might have this tendency if “it arouses the jury’s hostility

or sympathy for one side without regard to the logical probative force of the

evidence.” Id. The photographs likely did arouse the jury’s hostility for Moreno

because they were disturbing, graphic images and evidence of the separate offense

of possession of child pornography. See Wheeler, 67 S.W.3d at 889 (noting that


1
      The testimony of the forensic analyst demonstrated that the photographs were
      taken on the following dates: November 6, 2010; June 11, 18, 25, and 26, 2011;
      and July 9 and 30, 2011.
                                        12
“evidence of an extraneous sexual offense will always carry emotional weight and

the danger of impressing the jury in an irrational and indelible way”). Thus, this

factor weighs against admissibility.

      In considering the fourth factor, we examine the tendency of the evidence to

confuse or distract the jury from the main issue. Gigliobianco, 210 S.W.3d at 641.

“Evidence that consumes an inordinate amount of time to present or answer, for

example, might tend to confuse or distract the jury from the main issues.” Casey,

215 S.W.3d at 880. Here, the testimony about the photographs was not lengthy

and did not distract the jury’s attention from the main issue.        Rather, the

photographs related directly to an element of the offense. See Manning v. State,

114 S.W.3d 922, 928 (Tex. Crim. App. 2003) (holding that evidence of cocaine in

defendant’s blood could not distract jury from indicted offense of manslaughter

because it was “proof of the indicted offense”). This factor weighs in favor of

admissibility.

      Under the fifth factor, we weigh any tendency of the evidence to be given

undue weight by a jury that has not been properly equipped to evaluate the

probative force of the evidence. Gigliobianco, 210 S.W.3d at 641. Here, although

the forensic examiner’s testimony about recovering the photographs from

Moreno’s cell phone was somewhat technical in nature, the photographs

                                       13
themselves were not technical or scientific in nature. The photographs and the

dates on which they were taken were matters “comprehensible by laypeople.”

Gaytan v. State, 331 S.W.3d 218, 228 (Tex. App.—Austin 2011, pet. ref’d). Thus,

nothing suggests that the jury was not equipped to evaluate the probative force of

the photographs. This factor weighs in favor of admissibility.

      Finally, under the sixth factor, we consider the time required to develop the

evidence. Gigliobianco, 210 S.W.3d at 641. As mentioned above, the testimony

of the forensic examiner was not lengthy.           Thus, the presentation of the

photographs did not “consume an inordinate amount of time.” Id. at 641–42. This

factor weighs in favor of admissibility.

      Balancing all of the factors, we conclude that the trial court did not abuse its

discretion in determining the testimony was not substantially more prejudicial than

probative under Rule 403. See Garreans v. State, No. 05-06-00934-CR, 2008 WL

311002, at *7–8 (Tex. App.—Dallas Feb. 5, 2008, no pet.) (op., not designated for

publication) (holding trial court did not abuse discretion in admitting images from

appellant’s computer depicting child pornography and incest website where

appellant denied sexual abuse).

      We overrule Moreno’s second issue.




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                                    Conclusion

      We affirm the trial court’s judgment.




                                              Rebeca Huddle
                                              Justice

Panel consists of Justices Keyes, Sharp, and Huddle.

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




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