Affirmed and Majority and Concurring Opinions filed August 20, 2019.




                                      In the

                    Fourteenth Court of Appeals

                              NO. 14-18-00201-CR

                     ROBERTO GUTIERREZ, Appellant
                                        v.
                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 177th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1497729

                           CONCURRING OPINION

      I concur in this court’s judgment affirming appellant’s conviction and
sentence.

      A rational jury could have convicted appellant based solely on complainant’s
testimony. We do not know if this jury would have convicted appellant based solely
on complainant’s testimony. Appellant’s trial counsel waived a Texas Rule of
Evidence 403 objection to the thumbnails of photos on appellant’s cell phone that
were described at trial as “disgusting.” While appellate review of the admission of
the individual “highly pixilated” photographs is required, as a practical matter it can
do appellant no good. The jury was informed of what was on the thumbnails.

      I cannot conclude that appellant’s conviction was unaffected by the admission
of the thumbnails. Perhaps if a timely rule 403 objection had been made and the trial
court granted the objection in whole or in part, things might have been different.

      But the evidence that was admitted did convince the jury of appellant’s guilt.

      Agreeing we must affirm, I concur.




                                        /s/       Charles A. Spain
                                                  Justice


Panel consists of Justices Wise, Zimmerer, and Spain. (Spain, J., concurring.)
Publish—TEX. R. APP. P. 47.2(b).




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