                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-12-00127-CR



              JOSHUA GREEN, Appellant

                            V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 102nd District Court
                Bowie County, Texas
            Trial Court No. 12F0172-102




       Before Morriss, C.J., Carter and Moseley, JJ.
        Memorandum Opinion by Justice Moseley
                               MEMORANDUM OPINION
       Joshua Green was convicted by a jury of two counts of aggravated sexual assault of a

child younger than fourteen years of age and two counts of sexual assault of a child younger than

seventeen years of age. Green was sentenced to forty years’ imprisonment for each aggravated

sexual assault conviction and twenty years’ imprisonment for each sexual assault conviction and

was ordered to pay a $10,000.00 fine in each conviction. On appeal, Green argues that the trial

court erred in (1) “preclud[ing] evidence of the consensual nature of sexual conduct between the

alleged victim and the defendant that occurred after the alleged victim reached the age of

consent” and (2) by “permitting the introduction of photographs depicting [the victim] and her

brothers at [a] very young age.” We affirm the trial court’s judgment because we find that no

offer of proof was made regarding any consensual sexual activity between Green and the victim,

Sandra Davis (a pseudonym), and that no error occurred in admitting photographs depicting

Davis at an age when she was likely first molested by Green.

I.     Standard of Review

       A trial court’s decision to admit or exclude evidence is reviewed only for abuse of

discretion. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007); McDonald v. State,

179 S.W.3d 571, 576 (Tex. Crim. App. 2005); Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim.

App. 2002). A trial court does not abuse its discretion if the decision to exclude evidence is

within the “zone of reasonable disagreement.” Montgomery v. State, 810 S.W.2d 372, 391 (Tex.

Crim. App. 1990) (op. on reh’g); Marsh v. State, 343 S.W.3d 475, 478 (Tex. App.—Texarkana

2011, pet. ref’d). We may not substitute our own decision for that of the trial court. Moses v.


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State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). If the trial court’s decision on the exclusion

of evidence is supported by the record, there is no abuse of discretion, and the trial court will not

be reversed. Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002); Montgomery, 810

S.W.2d at 379.

II.     There Was no Offer of Proof Regarding Alleged Consensual Sexual Activity

        Green, Davis’ mother’s boyfriend, moved in with the Davis family when Davis was in

the second grade. Davis, who was twenty-two years of age at the time of trial, testified that she

was abused “[f]rom third grade till I was eighteen” and that the abuse occurred “[a]ll the time.

At least once a month.” Beginning from age eight or nine, Green began “touching and feeling,

fondling” Davis and engaged in “[d]ry humping” her. At about the sixth grade, the abuse

escalated. Davis testified that Green “actually put his hands in my privates,” penetrated her

vagina and anus with his fingers, and engaged in oral sex. Davis also testified that Green “would

get like a ziplock [sic] bag and put it over his penis and try to put it in me” and that this particular

abuse began during her “eighth grade summer.” She explained that the penetration occurred

several times.

        The abuse was discovered when Davis’ mother found Green “giving [Davis] oral sex.”

Davis was eighteen at this time. Thus, it was established that Davis engaged in sexual activity

with Green after the age of consent. On appeal, Green argues that the trial court erred in

excluding evidence by preventing him “from informing the jury that said activity was legal

and/or consensual.” Green argues that by introducing evidence of sexual activity after the age of




                                                   3
consent, the “State opened the door to the introduction of Appellant’s and [Davis’] consensual

sexual activities.”

         As a prerequisite to presenting a complaint for appellate review, the record must
         show that:

                 (1)    the complaint was made to the trial court by a timely request,
         objection, or motion that:

                         (A)    stated the grounds for the ruling that the complaining party
                  sought from the trial court with sufficient specificity to make the trial
                  court aware of the complaint, unless the specific grounds were apparent
                  from the context; and

                         (B)    complied with the requirements of the Texas Rules of Civil
                  or Criminal Evidence . . . ; and

                  (2)      the trial court:

                         (A)      ruled on the request, objection, or motion, either expressly
                  or implicitly; or

                        (B)     refused to rule on the request, objection, or motion, and the
                  complaining party objected to the refusal.

TEX. R. APP. P. 33.1(a).

         “In order to preserve error regarding a trial court’s decision to exclude evidence, the

complaining party must comply with Rule of Evidence 103 by making an ‘offer of proof’ which

sets forth the substance of the proffered evidence.” 1 Mays v. State, 285 S.W.3d 884, 889 (Tex.


1
 Green cites this portion of his cross-examination in an effort to show that the trial court ruled on the exclusion of
consensual sexual activity:

                  A        Of course, when I got caught, and what I did, what I did, grinding, oral sex, I did
         that.

                  Q        [Prosecutor] When did you -- how old was she when you did oral sex? . . .

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         ....

         A        She was about fifteen or sixteen. . . .

         ....

         Q        . . . How often -- well, what happened from the time you began your sexual
contact with her until you got walked in on by her mother? Tell me what happened. Were there
occasions where you penetrated her with your fingers or -- you said never with your penis?

         A        Never with my penis.

        Q        All right. And did you ever -- what else was going on? Was it just a lot of
hugging and rubbing?

         A       Yes, sir. And like I say, you know, I’m the fault of that because when it
happened, sometimes it would just be me. I guess for me, doing what I had did, it triggered her,
and then she would come to me, and then --.

                  [Prosecutor]: Your Honor, I object. For the second time, this is not proper
testimony for guilt/innocence. It’s mitigating, maybe.

                  THE COURT: Sustained. Ladies and gentlemen, I sustained the objection.
Disregard any of the testimony -- that response from the Defendant in this case as it relates to that
subject.

       Q       . . . Okay. I forgot where we were now, but finish your testimony. Do you
remember what you were saying?

          A        I was saying -- you asked me when was the times and where did it occur. I can’t
tell you exact dates. All I know is that it happened, not all the time, but sometimes. And some of
the times I’d bring it on, and then some other times she would bring it on.

                  [Prosecutor]: Your Honor, I -- may we approach?

                  THE COURT: Ladies and gentlemen, I’m going to have -- if you’ll go back to
the jury room, please.

                  (Jury recessed.)

                  THE COURT: This is outside the presence of the jury. Objections?

                   [Prosecutor]: Judge, it is my understanding, and I think it’s fairly elementary,
that if it’s a minor and the victim is somebody below the age of seventeen, there is no discussion
permitted about who initiated -- about the victim initiating. I think there are rare circumstances
where that could be mitigating evidence. That is punishment evidence for the jury. A minor
cannot consent, ever, under these circumstances. Now, you know, there’s Romeo and Juliet, but a
minor cannot consent, so any testimony of it is just disparaging the victim, and it’s frankly not
admissible. And this is like the third time that this Defendant has tried to say he had a relationship
                                                  5
Crim. App. 2009) (quoting TEX. R. EVID. 103(a)(2)). “‘Error may not be predicated upon a

ruling which . . . excludes evidence unless a substantial right of the party is affected, and . . . the

substance of the evidence was made known to the court by offer, or was apparent from the

context within which questions were asked.’” Id. (quoting TEX. R. EVID. 103(a)(2)). “‘The


         with the child and that she started it. She’s a child. A child can’t start a relationship with an adult.
         And I just object, and it just continues to come in and come in and come in.

                           [Defense Counsel]: Your Honor, we’re not trying to legally blame her for
         anything or to excuse ourselves for anything. What the man said was what the physical facts
         were, and he said sometimes she comes onto him and sometimes he started it. The fact is, it’s a
         fact. It’s not anything other than just what the facts are. And we’re not trying to argue legal
         blame or excuse or anything else. He said that he takes full responsibility for what happened and
         she’s under age and he should’ve stopped her. He should’ve done something about it but he
         didn’t.

                              [Prosecutor]: Judge, if there are any conceivable set of circumstances in which
         that is relevant, it would be in punishment.

                           THE COURT: Anything else?

                           [Defense Counsel]: No, sir.

                            THE COURT: The Court is going to sustain the objection. Mr. Green, you are
         not to mention again to this jury during this phase, and of course, the Court will consider it during
         the punishment phase if we get there, about her approaching you or trying to initiate sex. Again,
         that’s what the statutes are there for, to protect the innocence of the victim in this case. Consent
         cannot be -- a juvenile person under the age of seventeen, and particularly under the age of
         fourteen certainly is not in a position to consent, and the testimony concerning her coming onto
         you is indicative of her consenting to the activity. So the Court would find that to be improper and
         would instruct you not to go into that testimony in front of the jury. Do you understand?

                           [Green]: Yes, sir.

                           THE COURT: All right, very good. Bring the jury back in.

                           (Jury seated.)

                           THE COURT: You may be seated. Ladies and gentlemen, I have sustained the
         State’s objection. I’m also going to instruct you, as I previously did, you are to disregard the
         answer provided by Mr. Green as it relates to the actions of the juvenile in this case. You may
         continue.

It appears that the trial court’s ruling was based on the idea that Green was attempting to testify about Davis’ alleged
consent prior to the age at which she was legally able to give consent.
                                                            6
primary purpose of an offer of proof is to enable an appellate court to determine whether the

exclusion was erroneous and harmful. A secondary purpose is to permit the trial judge to

reconsider his ruling in light of the actual evidence.’” Id. at 890 (quoting 1 Steven Goode et al.,

Texas Practice–Guide to the Texas Rules of Evidence: Civil and Criminal § 103.3 (1993)).

       Green’s arguments are based on the incorrect assumption that any activity occurring after

the age of consent is consensual. Green argues that “[a]s [Davis] was eighteen years old . . .

([on] the night of Appellant’s arrest), the consensual nature of the sexual activity that night can

be inferred.” We disagree. Engaging in sexual activity with a person without their consent is a

crime, regardless of that person’s age. See TEX. PENAL CODE ANN. § 22.011(a) (West 2011),

§ 22.021(a) (West Supp. 2012). Green fails to point to a place in the record, by offer of proof or

otherwise, establishing that Davis consented to sexual activity after age eighteen. Thus, evidence

supporting Green’s position was never submitted to the court for consideration of its

admissibility. We conclude Green has failed to preserve error on this point.

       Further, Davis testified that she engaged in the activity after adulthood because “it was

happening for so long, it was just a routine,” and clarified that “[t]here was never enjoyment on

my side.” She added that she “never approached him to make him do that.” From the early

stages of Davis’ abuse, she was threatened by Green that if she told her mother, “he’d just kill

everybody in my family.” The evidence shows that Green was also the provider for the family,

and Davis believed that if Green “wasn’t there that we wasn’t going to be able to make it without

him.” Davis’ mother testified that when Green was caught engaging in sexual activity with




                                                7
Davis, the expression on Davis’ face “was empty, like nothing was there.” The only evidence on

the issue of consent when Davis was eighteen is unfavorable to Green.

       Green’s first point of error is overruled.

III.   Trial Court Did Not Abuse its Discretion in Admitting Photographs of Victim

       Davis’ brothers, who were younger than her, were not called to testify at trial. When the

State sought to admit photographs of Davis at a young age, one which included her brothers,

Green’s counsel lodged an objection to their relevance.         The State responded that the

photographs were relevant because

       when these children were in the third grade, their frame of reference for recall of
       events, which we’ve discussed here in court, primarily by the Defense, is that of a
       third grader. Even though they may be eighteen to twenty-two years old, they’re
       going back into the ability of a third grader to remember.

Although Green’s counsel argued that “[t]he pictures don’t add anything or subtract anything

from that argument,” the trial court admitted the photographs. After publishing the pictures, the

State elicited testimony from Davis’ mother that her sons, who were “maybe about six and

maybe eight in that picture,” could not be expected to understand any impropriety occurring

between Davis and Green.

       The trial court found that the photographs, depicting a young Davis, would assist the jury

in determining her ability to recall specific dates and events, or that the photograph which

included Davis’ brothers provided the jury with a visual explanation of why the brothers would

have been incapable of understanding the wrong occurring. The specific ground for admission

of the photographs is perplexing, and we are not persuaded by it. If, however, the evidence was

admissible on any grounds, we will affirm its admission. Kipp v. State, 876 S.W.2d 330, 337
                                                    8
(Tex. Crim. App. 1994); Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Barnum

v. State, 7 S.W.3d 782, 789 n.3 (Tex. App.—Amarillo 2000, pet. ref’d).

        On appeal, Green argues that the photographs were irrelevant and were admitted for the

sole purpose of inflaming the jury. 2 Davis was eight or nine years old and was in the third grade

when the abuse began.          She experienced difficulty in establishing specific dates on which

Green’s abuse occurred and in describing the details of specific events. Although Davis’ specific

age in the photographs was not clarified, Green argues that Davis was either ten or twelve years

old based on her mother’s description of the age of the children. 3 Therefore, the photographs

were taken after a time when Davis was suffering sexual abuse by Green.

        “Generally, a photograph is admissible if verbal testimony as to matters depicted in the

photographs is also admissible.” Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007).

“In other words, if verbal testimony is relevant, photographs of the same are also relevant.” Id.

The State argues that “[b]ecause the age of the victim at the time the assaults occurred is

admissible, a photograph depicting the victim at that age is also admissible.” We agree.

        We also find that the photographs constituted background contextual evidence, which is

admissible because it is helpful to the jury. This type of evidence “‘fill[s] in the background of

the narrative and give[s] it interest, color, and lifelikeness.’” Mayes v. State, 816 S.W.2d 79, 87
2
 To the extent the brief raises issues relating to Rule 403, we find that those arguments were not preserved by
relevance objection lodged below. See Guevara v. State, 97 S.W.3d 579, 583 (Tex. Crim. App. 2003) (argument on
appeal must comport with objection at trial).
3
 Green argues that although Davis was either ten or twelve years of age when the photographs were taken, the
photograph was not relevant because Davis testified “that she was in the sixth grade when the touching began.
Therefore, any testimony regarding [Davis’] appearance prior to December 1, 2001 [the earliest date contained in
the State’s indictment] would have been inadmissible.” Green’s argument demonstrates a misunderstanding of the
testimony, and suggests improperly that testimony by Davis of Green’s abuse prior to December 1, 2001, would be
inadmissible.
                                                       9
(Tex. Crim. App. 1991) (quoting McCormick, Evidence § 185 (3rd ed. 1984)). In the absence of

further objection, the photographs were also admissible to provide the jury with a visual image of

Davis at an age when she was subjected to Green’s molestation. Therefore, there was no error in

the admission of the photographs.

       We overrule Green’s last point of error.

IV.    Conclusion

       We affirm the trial court’s judgment.



                                               Bailey C. Moseley
                                               Justice

Date Submitted:       August 26, 2013
Date Decided:         August 28, 2013

Do Not Publish




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