                                  NO. 07-08-0304-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                 FEBRUARY 16, 2010
                              _______________________

                        MARK EDWARD BOLLES, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE
                             _______________________

             FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;

               NO. 19606-C; HONORABLE RICHARD DAMBOLD, JUDGE
                            ________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                               MEMORANDUM OPINION


      Appellant, Mark Edward Bolles, was convicted of two counts of possession of

child pornography1 and subsequently sentenced to six years in the Institutional Division

of the Texas Department of Criminal Justice (ID-TDCJ) on each count, with the

sentences to be served concurrently. By one issue, appellant contends that appellant

was denied due process and a fair trial when the trial court permitted the introduction of

other material during the guilt-innocence phase of the trial. We affirm.




      1
          See TEXAS PENAL CODE ANN. § 43.26(a) (Vernon 2003).
                               Factual and Procedural Background

       In November 2007, appellant was working for Joe Virden at Virden Perma-Built in

Amarillo, Texas. Appellant had been living at a shelter located in Amarillo. Joe Virden

offered to allow appellant to live in the attic of one of the buildings on the business site.

Additionally, Virden gave appellant access to a bathroom and a television within the

offices of Virden Perma-Built. The computer for the operation of the business was

located in the same office area as the television. On Sunday, January 6, 2008, Virden

came to the office to work on a special order. When Virden booted up the computer,

numerous hard core pornographic images appeared. Virden immediately suspected

appellant of misusing the office computer and went to the attic area where appellant

slept. Virden fired appellant on the spot and ordered him off the premises. To assist

appellant, Virden provided a number of commercial size trash bags for appellant’s

personal belongings. Appellant’s only means of transportation was a bicycle and he

could not carry all of the trash bags at one time.


       The next day, when Virden came to the office, he found appellant sleeping in the

attic. Again, appellant was ordered off of the property. Later the same day, Virden’s

daughter, Terri Harris, was checking the inventory of PVC pipe in a shed located on the

property. While checking the inventory in the shed, Harris saw a number of items that

did not appear to belong. Harris notified Virden, who came to the shed to investigate.

One item found in the shed was a white plastic trash bag. In an attempt to identify what

was in the bag and who it belonged to, Virden looked through the material and

discovered pornographic material.       Virden then notified the Amarillo Police, who

dispatched officers. The initial officer, Supina, viewed the material and requested that a


                                             2
detective specializing in crimes against children be dispatched. Cpl. Brian Wallace then

went to the Perma-Built site and looked through the material. Wallace testified that he

found photographs that he recognized as child pornography. After viewing a few of the

items, Wallace asked for permission to search the shed for additional evidence. During

this search, Wallace found the two pictures that were the basis of appellant’s

indictments. In addition to the pictures, a number of documents belonging to and in the

name of appellant were found. Additionally, there were computer generated pictures of

young girls engaged in various sexual acts, magazine advertisements of children with

the heads and faces cut out, adult pornography, and a spiral notebook with handwritten

sexually explicit stories about young females.


      The next day, January 8, 2008, police were called to an abandoned apartment

complex, Jackson Square Apartments. An alarm had gone off and the manager of the

property reported that appellant, who had been a tenant, was trespassing. Officers

found appellant in one of the abandoned apartments.        Appellant was arrested for

trespassing and taken to jail. On the way to jail, appellant engaged the transporting

officer in a conversation.   At this time, without apparent questioning by the officer,

appellant explained that he was trespassing because he had been kicked out at Virden

Perma-Built. He told the officer he had left some items of personal property in a white

trash bag on the Perma-Built property and hoped to be allowed to retrieve the property.

Appellant also advised the officer that he was addicted to pornography and liked the

subjects younger and younger. A search of the apartment where appellant was located

revealed more of the same type of material found in the pipe shed at Virden Perma-




                                            3
Built. Additionally, the police were able to lift two fingerprints from inside the apartment

that were identified as appellant’s.


       Although appellant was initially indicted on three counts of child pornography, the

State abandoned the second count and proceeded to trial on the other two counts.

Each of the remaining counts alleged a specific picture that consists of a child younger

than 18 years of age engaging in sexual conduct, either sexual intercourse or deviant

sexual intercourse.    During the voir dire phase of the trial, appellant’s trial counsel

questioned the prospective jurors about the necessity of the State proving that the

picture was of a child younger than 18 years. Additionally, appellant’s trial counsel

discussed the difficulty the jurors might have in making a determination of the age of a

person as reflected in a black and white picture.        During opening arguments, the

defensive theory became even clearer. Trial counsel asserted that the jury would not

see one piece of evidence produced by the State proving that the person depicted in the

pictures was actually a child. Further, appellant’s trial counsel asserted that the State

could produce no one who would say who the children were or their age.


       During the State’s case in chief, along with the two photos that appellant was

indicted for, a number of non-pornographic photos of children, some with the heads cut

out, photos of adult pornography, computer generated pictures depicting children in

various sexual acts, termed “child erotica” and “child anime,” and hand written sexually

explicit stories involving young girls were offered into evidence. Appellant’s trial counsel

objected to the introduction of these additional materials under Rules 403 and 404 of




                                             4
the Texas Rules of Evidence. See Tex. R. Evid. 403 & 404.2 The trial court overruled

the objections.


       After the evidence was presented, the trial court prepared its charge to the jury.

The Court’s Charge contained a paragraph admonishing the jury that,


       In reference to evidence, if any, that the defendant has previously
       participated in other crimes, wrongs or acts, other than that which is
       charged in the indictment in this case, you are instructed that you cannot
       consider such other crimes, wrongs, or acts, if any, for any purpose unless
       you find and believe beyond a reasonable doubt that the defendant
       participated in or committed such other crimes, wrongs, or acts, if any, and
       even then you may only consider the same for purposes of determining
       motive, opportunity, intent, preparation, plan, knowledge, identity, or
       absence of mistake or accident, if it does, and for not other purposes.


       During closing arguments, the State referenced the disputed evidence when

addressing the issue of proof that the pictures were of children and appellant’s

knowledge that they were of children. Appellant argued that the State had failed to

carry its burden of proof regarding whether or not the pictures for which appellant was

indicted were in fact those of children under 18 years of age.       Ultimately, the jury

convicted appellant of possession of child pornography and, after hearing the evidence

on punishment, the court sentenced appellant to six years confinement in the ID-TDCJ,

with the sentences to run concurrently.


       Appellant frames his single issue in terms of a denial of due process and a fair

trial by the admission of the extraneous matters by the trial court. We disagree with

appellant and will affirm the judgment of the trial court.



       2
         Further reference to the Texas Rules of Evidence will be by reference to “Rule
___” or “rule ___.”
                                           5
                                        Analysis

Standard of Review


      Appellant is complaining of the trial court’s action in allowing certain evidence to

come before the jury. At trial, appellant’s objection was based upon Rule 404(b) and

Rule 403 of the Texas Rules of Evidence. See TEX. R. EVID. 404(b), 403. Accordingly,

we treat appellant’s issue as an evidentiary issue and not a constitutional issue. See

George v. State, 959 S.W.2d 378, 382 (Tex.App.--Beaumont 1998, pet. ref’d); Martin v.

State, 176 S.W.3d 887, 897 (Tex.App.--Fort Worth 2005, no pet.).


      Texas Rule of Evidence 404(b) prohibits the admission of evidence of extraneous

offenses committed by the defendant for the purpose of proving that, on the occasion in

question, the defendant acted in conformity with the character demonstrated by the

other bad acts.      See Rule 404(b), Santellan v. State, 939 S.W.2d 155, 168

(Tex.Crim.App. 1997).     The rule also provides exceptions to this principle when

evidence is admitted to show proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident. Rule 404(b). If the opponent of

extraneous offense evidence objects on the grounds that the evidence violates Rule

404(b), the proponent must satisfy the trial court that the extraneous offense evidence

has relevance apart from its character conformity value. See id.; Montgomery v. State,

810 S.W.2d 372, 387 (Tex.Crim.App.1990) (op. on reh'g). If the trial court determines

the evidence has no relevance apart from supporting the conclusion that the defendant

acted in conformity with his character, it is absolutely inadmissible. See Santellan, 939

S.W.2d at 169. On the other hand, extraneous offense evidence is admissible if the

proponent persuades the trial court that the extraneous offense evidence tends to

                                           6
establish some elemental or evidentiary fact or that it rebuts a defensive theory. See id.

at 168-69; Montgomery, 810 S.W.2d at 387-388.          The trial court’s determination of

whether other bad act evidence has relevance apart from character conformity is

reviewed for an abuse of discretion.       See Guzman v. State, 955 S.W.2d 85, 89

(Tex.Crim.App. 1997) (the standard of review on a trial court’s evidentiary ruling is an

abuse of discretion standard); Montgomery, 810 S.W.2d at 394. As long as the trial

court's ruling was within the zone of reasonable disagreement, there is no abuse of

discretion and the trial court's ruling will be upheld. Santellan, 939 S.W.2d at 169.

Once the trial judge has ruled on whether the evidence is relevant beyond its character

conformity value, he has ruled on the full extent of the opponent's Rule 404(b) objection.

Id.


       The opponent must then make a further objection based on Rule 403, in order for

the trial judge to weigh the probative and prejudicial value of the evidence. Id. To

exclude extraneous offense evidence under Rule 403, the opponent must specifically

request a Rule 403 ruling.   See Montgomery, 810 S.W.2d at 388.


       In the case before the court, appellant’s trial counsel did further object to the

admission of the evidence under Rule 403. As in the Rule 404(b) arena, we will again

apply an abuse of discretion standard in analyzing the trial court’s decision to admit this

evidence over a Rule 403 objection.        See Montgomery, 810 S.W.2d at 391.            In

conducting the balancing test regarding admissibility, the 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 tendency of the evidence to suggest decision on

an improper basis, 4) any tendency of the evidence to confuse or distract the jury from

                                            7
the main issue, 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 repeat evidence already admitted.       See   Casey v. State, 215 S.W.3d 870, 880

(Tex.Crim.App. 2007).


Rule 404(b)


      Initially appellant contends that the photographs and written materials admitted

by the court were inadmissible under Rule 404(b) because they only demonstrated

character conformity. Rule 404(b); Santellan, 939 S.W.2d at 169. However, the record

reveals that during voir dire, opening statements, questioning of witnesses and closing

arguments, appellant’s trial counsel consistently pounded on one theme. That theme

was that, there was no evidence produced, or that could be produced, concerning the

age of the person depicted in State’s exhibits 9 and 10.        One of the reasons that

extraneous offense material may be admitted is to rebut a defensive theory put forth by

the defendant. Id. The extraneous pictures and stories were almost totally pictures of

young children or stories about young children. This supports the State’s theory that

appellant knew exactly what he had in his possession and the extraneous pictures and

stories are admissible for that reason. Id. Additionally, the State was required to prove

that appellant possessed the offending pictures intentionally or knowingly. See TEX.

PENAL CODE ANN. § 43.26(a) (Vernon 2003).3 A person acts intentionally when it is

conscious objective or desire to engage in the conduct or cause the result. § 6.03(a). A

person acts knowingly when he is aware of the nature of his conduct or that the

      3
          Further reference to the Texas Penal Code will be by reference to “§ ___.”
                                            8
circumstances exist, or when he is aware that his conduct is reasonably certain to

cause the result. § 6.03(b). Normally, the culpable mental state required by a penal

statute is proven by circumstantial evidence. See Krause v. State, 243 S.W.3d 95, 111

(Tex.App.--Houston [1st Dist.] 2007, pet. ref’d). If appellant is, via his argument at the

trial court, claiming a lack of intent to possess or lack of knowledge that the materials

possessed were child pornography, then these are avenues for the admission of the

extraneous materials. See Johnson v. State, 932 S.W.2d 296, 302 (Tex.App.--Austin

1996, pet. ref’d). The possession of similar type of material, the pictures of children, the

child “erotica” or “anime,” and the handwritten stories about children, are circumstances

the jury was entitled to consider as circumstantial evidence to show intent. Therefore,

we rule that the extraneous pictures were admissible as exceptions under Rule 404(b).

Appellant’s issue is overruled.


Rule 403


       However, this does not end the inquiry. We must now consider whether or not

the evidence although relevant and, therefore, admissible, should have been disallowed

due to the probative value of the evidence being substantially outweighed by the danger

of unfair prejudice. Rule 403. There is a presumption that evidence which is deemed to

be relevant is admissible. See Casey, 215 S.W.3d at 879. Further, “‘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.   Unfair

prejudice refers not to the fact that the evidence injures a party’s case or position, as

virtually all evidence offered by one party will prejudice the opponent’s case or position.

                                             9
Id. at 883. Evidence is unfairly prejudicial when it tends to have some adverse effect

upon the defendant beyond tending to prove the fact or issue that justifies its admission

into evidence. Id.


       In analyzing the current case, the first matter is the inherent probative force of the

evidence. Id. at 879. The various pictures of children, the child “erotica” and “anime,”

and the handwritten stories were highly probative of the fact that appellant had a

fascination or preoccupation with children. Appellant’s defensive theory was the lack of

proof of the very issue these items tended to prove. Therefore, the probative force of

the evidence in question is significant. Next, the proponent’s need for the evidence

must be examined. Id. at 888. As pointed out previously, appellant’s trial position was

that the State could offer no proof that the pictures actually portrayed children.

Therefore, appellant’s knowledge of, and preoccupation with, pictures of children, both

those that might be termed pornographic and otherwise, was critical to proving the

State’s case. This consideration would heavily favor admission of the evidence. From

the aspect of the subject matter of the trial, the evidence in question did not distract the

jury from their main inquiry, nor, did the evidence create a situation where the jury would

give undue credence to this evidence. Id. This is because the evidence appellant

complains of was much less graphic and disturbing than the pictures for which he was

indicted. These factors favor admission of the evidence. Although the evidence in

question took some time to introduce, especially when compared to introduction of the

two photos charged in the indictment, the time did not seem to be inordinate. In the

worst case situation, the time factor should be considered neutral.       Whereas the trial

judge did not announce the results of his balancing test, he is not required to do so.


                                             10
See Williams v. State, 958 S.W.2d 186, 195 (Tex.Crim.App. 1997). When a judge rules

to admit evidence in face of a Rule 403 objection, he is presumed to have made the

required balancing test. Id.


       There were some pictures that contained adult pornographic material. These

pictures were seized at the same time as the pornographic pictures of children, child

anime or erotica, and the handwritten stories.       The State contends that the adult

pornographic material must be considered same transaction contextual evidence. See

Delgado v. State, 235 S.W.3d 244, 253 (Tex.Crim.App. 2007). We need not address

the adult pornography because, taking all of the information as a whole, the introduction

of the evidence was harmless beyond a reasonable doubt. This is so because the trial

court’s error, if any, in admitting the evidence made no contribution to the guilty verdict

or punishment in this case.         See Pondexter v. State, 942 S.W.2d 577, 585

(Tex.Crim.App. 1996).


       Based upon our review of the record and analysis of the evidence in question, we

cannot say that the trial court abused its discretion when it admitted the contested

items. Accordingly, appellant’s issue regarding the Rule 403 objection is overruled.


                                        Conclusion


       Having overruled appellant’s issue, the trial court’s judgment is affirmed.




                                                 Mackey K. Hancock
                                                      Justice

Do not publish.

                                            11
