          TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



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                                         NO. 03-01-00265-CR
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                                       Brian A. Hough, Appellant

                                                     v.

                                     The State of Texas, Appellee



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        FROM THE DISTRICT COURT OF RUNNELS COUNTY, 119TH JUDICIAL DISTRICT
               NO. 4880, HONORABLE BEN WOODWARD, JUDGE PRESIDING
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                A jury convicted Brian A. Hough of aggravated sexual assault of a child and assessed

punishment at life in prison. He contends that the district court abused his discretion by admitting evidence

of extraneous offenses and bad acts at both phases of trial, by not instructing the jury that it must find

beyond a reasonable doubt that he committed the extraneous offenses and acts before considering them in

assessing his punishment, and by excluding evidence favorable to him. We will affirm the judgment.


                                            BACKGROUND
                Hough lived in Ballinger and Stamford with his wife, Lisa, and her daughters, M.W. and

J.W. This case arises from M.W.=s accusations that Hough committed a series of escalating sexual offenses

that began in Ballinger and continued in Stamford. At the time of the Ballinger offense at issue here, Hough

was thirty-three years old and M.W. was thirteen.

                Before trial, Hough requested notice of intent to introduce evidence of extraneous offenses

under Texas Rule of Evidence 404(b) and Texas Code of Criminal Procedure articles 37.03 and 38.37.

The State provided identical notices for both the guilt/innocence and punishment phases, notifying Hough

that it intended to introduce evidence through Lisa Hough and M.W. regarding an aggravated sexual assault

occurring between March 9, 1999 and June 13, 1999 in Jones County, TexasCthe county in which

Stamford is located.

                At trial, the State offered not only M.W.=s testimony about events occurring in Stamford,

but several photographs and testimony from Tracy Stansberry, best man at the Houghs= wedding. At

guilt/innocence, the court admitted photos of M.W. in her underwear and nude and photos of Hough in a

suit with his penis exposed. At punishment, the court admitted photos of Hough nudeCalone, with Lisa

partially clothed, and with J.W. naked and sitting on himCas well as photos of J.W. alone and naked. The

State also elicited testimony in both phases of trial from Stansberry about photos that Hough e-mailed him

of M.W. nude and of M.W. and Hough having sex; copies of these photos were not offered because

Stansberry deleted them upon receiving them.


                                             DISCUSSION



                                                     2
                 Hough=s four points of error all relate to the admission or exclusion of evidence. He

contends that the court erred by admitting evidence regarding extraneous offenses and bad acts at both

phases of trial. He contends that the court erred by failing to instruct the jury at the punishment phase that it

must believe the evidence of extraneous offenses and bad acts beyond a reasonable doubt before

considering them. Finally, he contends that the court abused his discretion by excluding evidence favorable

to him.


Errors at the guilt/innocence phase.

                 By his third point of error, Hough contends that the district court abused his discretion

during the guilt/innocence phase by overruling Hough=s objections to the introduction of photos of him and

M.W. and of Stansberry=s testimony regarding e-mail photos he received from Hough. We review a court=s

ruling on the admissibility of evidence for an abuse of discretion. Green v. State, 934 S.W.2d 92, 101-02

(Tex. Crim. App. 1996). We will not reverse such a ruling so long as it falls Awithin the >zone of reasonable

disagreement.=@ Id. at 102 (quoting Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990)

(op. on reh=g)). Moreover, error may not be predicated upon a ruling which admits or excludes evidence

unless a substantial right of the party is affected. See Tex. R. Evid. 103(a). Hough complains that the

admission of nude photographs of M.W. violated notice requirements. See Tex. Crim. Proc. Code Ann.

art. 38.37 (West Supp. 2002); Tex. R. Evid. 404(b). He also argues that the probative value of the

evidence is far outweighed by the danger of unfair prejudice or misleading the jury. See Tex. R. Evid. 403.




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                Hough is estopped from pursuing these complaints about the improper application of these

rules of procedure and evidence at the guilt/innocence phase because he admitted his guilt at the punishment

phase; though an admission of guilt at the punishment phase does not waive all errors committed at the

guilt/innocence phase, it bars assertion of errors that do not involve due process or fundamental rights. See

Leday v. State, 983 S.W.2d 713, 724-26 (Tex. Crim. App. 1998); see also Gutierrez v. State, 8

S.W.3d 739, 745 (Tex. App.CAustin 1999, no pet.). Hough does not complain that the admission of the

photos or Stansberry=s testimony was illegal or violated any fundamental rights, only the rules of evidence.

Because the truth-discovering purpose of the trial was vindicated by Hough=s confession of guilt without any

infringement on his fundamental rights, he cannot complain of these procedural missteps in the

guilt/innocence phase of trial. See Leday, 983 S.W.2d at 724-25; Guerrero, 8 S.W.3d at 745. We

overrule point three as it relates to the guilt/innocence phase of trial. Because evidence admitted at

guilt/innocence may also affect the jury=s deliberations on punishment, we will consider below whether the

court erred by admitting this evidence and whether any errors were harmful. See Reyes v. State, 994

S.W.2d 151, 153 (Tex. Crim. App. 1999).

                The same reasoning also disposes of point of error four. Hough contends that the district

court erred by excluding evidence that, while he was in jail, M.W. or Lisa sent him a photo of M.W. sitting

on a couch in what appear to be shorts and a tank top. Hough offered the photo at guilt/innocence and

argues on appeal that the court should have admitted the evidence to impeach M.W. by showing her

motive, bias, attitude, and feelings. He contends that the evidence would have blunted the State=s case that

his relationship with M.W. was based on fear and coercion. The evidence was excluded after the district


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court sustained the State=s objection to the evidence on grounds of relevance and hearsay. Hough has not

shown that the district court=s exclusion of this evidence at guilt/innocence infringed upon a fundamental

right. It does not bear on any of the elements of the offense. Indeed, he concedes in his appellate brief that

the evidence Aprobably would not have affected the verdict on guilt or innocence . . . [but it] may have been

beneficial in the punishment phase.@ There is no indication in the record, however, that Hough offered the

evidence at the punishment phase. His admission of the offense estops him from complaining about the

exclusion of this evidence at the guilt/innocence phase, and his failure to offer the evidence at punishment

precludes him from complaining that the district court excluded it then. See Leday, 983 S.W.2d at 724-25;

Tex. R. App. P. 33.1(a)(1)(A). We overrule point four.


Errors at the punishment phase.

                At the punishment phase, the State may introduce evidence of any matter the court deems

relevant to sentencing, including any extraneous bad acts. Tex. Code Crim. Proc. Ann. art. 37.07, ' 3(a)

(West Supp. 2002).1 Before considering errors Hough alleges occurred at the punishment phase, we will


          1
                The statute reads in relevant part:

          evidence may be offered by the state and the defendant as to any matter the court
          deems relevant to sentencing, including but not limited to the prior criminal
          record of the defendant, his general reputation, his character, an opinion
          regarding his character, the circumstances of the offense for which he is being
          tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any
          other evidence of an extraneous crime or bad act that is shown beyond a
          reasonable doubt by evidence to have been committed by the defendant or for
          which he could be held criminally responsible, regardless of whether he has
          previously been charged with or finally convicted of the crime or act.


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consider the punishment-phase implications of Hough=s complaints under point three regarding the district

court=s admission of evidence at the guilt/innocence phase.

                 Hough waived some of his complaints regarding evidence introduced at guilt/innocence by

not making timely, sufficient objections. See Tex. R. App. P. 33.1(a)(1)(A). He did not object during trial

that the State=s notice of intent to introduce evidence of extraneous offenses at guilt/innocence was

insufficient. Nor did he object to the photos of himself in a suit with his penis exposed. His objection to the

extraneous offenses Aon the basis of Rule 404(b)@ does not specify which aspect of the rule was violated

and therefore did not preserve error. See Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991)

(objection must be specific to preserve error); Phelps v. State, 999 S.W.2d 512, 518 (Tex.

App.CEastland 1999, pet. ref=d).




Tex. Code Crim. Proc. Ann. art. 37.07, ' 3(a) (West Supp. 2002).



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                Hough argues that the photos of M.W. nude were not relevant to the indicted offense, that

any probative value was greatly outweighed by the risk of unfair prejudice or confusion of issues. The

district court overruled the objection, but instructed the jurors that they could consider the extraneous acts

only if they believed beyond a reasonable doubt that the acts occurred, that they could consider that

evidence only as it illustrated the parties= relationship or their states of mind, and that evidence of extraneous

acts was not evidence that the indicted offense occurred. See Tex. Code Crim. Proc. Ann. art. 38.37, ' 2

(West Supp. 2002).2 In a case on charges of aggravated sexual assault of a child and indecency with a

child, the Fourteenth Court of Appeals held that evidence of 520 other sexual assaults by the same assailant

on the same victim were relevant to show the parties= relationship and states of mind. Hinojosa v. State,

995 S.W.2d 955, 957 (Tex. App.CHouston [14th Dist.] 1999, no pet.). The court also held that the

relevance of this evidence was not greatly outweighed by the risk of unfair prejudice. Id. at 958; see also

Poole v. State, 974 S.W.2d 892, 898 (Tex. App.CAustin 1998, pet. ref=d) (relevance of 750 sexual

assaults not greatly outweighed by risk of unfair prejudice). Pictures of M.W. partially clothed and naked


        2
            The statute provides:

            Notwithstanding Rules 404 and 405, Texas Rules of Criminal Evidence, evidence
            of other crimes, wrongs, or acts committed by the defendant against the child who
            is the victim of the alleged offense shall be admitted for its bearing on relevant
            matters, including:

            (1) the state of mind of the defendant and the child; and

            (2) the previous and subsequent relationship between the defendant and the child.

Tex. Code Crim. Proc. Ann. art. 38.37, ' 2 (West Supp. 2002).


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have some relevance at guilt/innocence regarding the parties= relationship; they are even more relevant to his

character at punishment. Their prejudicial effect is small when compared to the offense of sexual assault,

and minuscule compared to the hundreds of extraneous sexual assaults found not to be unfairly prejudicial

by the courts in Hinojosa and Poole. Hinojosa, 995 S.W.2d at 958; Poole, 974 S.W.2d at 898. We

find no abuse of discretion in their admission regarding punishment.

                Hough also objected to Stansberry=s testimony on grounds that it concerned extraneous

offenses. The district court overruled the objection at guilt/innocence, but gave a limiting instruction similar

to that given regarding the photos of M.W. Stansberry=s testimony about photos of M.W. and Hough

having sex and oral sex was relevant to the states of mind of the assailant and victim. The testimony added

little new information. No photos were introduced, so the testimony was even less prejudicial than the

photos in evidence. We find no abuse of discretion in the admission of this testimony. We overrule point of

error three as it relates to the punishment phase.

                By point of error one, appellant contends that the district court abused his discretion by

failing to sustain his timely objection to the introduction during the punishment phase of evidence of

extraneous offenses, bad acts, and inflammatory photographs of appellant and J.W., who was five at the

time of the photographs. Hough also complains that the State did not provide the necessary notice of its

intent to introduce evidence at the punishment phase regarding extraneous offenses. See Tex. Code Crim.

Proc. Ann. art. 37.07, ' 3(g) (West Supp. 2002).




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               Hough waived some of these complaints by failing to object, but preserved others.

Regarding the photos of J.W. alone naked, he objected Afor the reason that the testimony of the witness

indicates that these matters are extraneous, they are photographs of a person other than [M.W.]. They are

photographs which by her testimony were taken in Stamford, Texas, at a time removed from the time of the

alleged offense in this case . . . .@ With regard to photos of Hough naked alone and with Lisa, Hough=s

attorney stated, AThe same objection, Your Honor. These are extraneous and any probative value is

substantially outweighed by the risk of unfair prejudice to the Defendant.@ With respect to the photo of

J.W. and Hough, he objected to the authentication, the excessive risk of unfair prejudice, and that A[i]t is a

matter that does not relate to [M.W.] or this subject matter of the charges against him in Runnels County,

Texas. And it is exceedingly inflammatory and prejudicial.@ Hough contends that these objection informed

the court that he was complaining that the notice of intent to offer evidence regarding sexual assaults of

M.W. occurring in Jones County. We disagree, finding that Hough=s objections in each instance related to

the extraneous nature of the photos and their prejudicial effect rather than lack of notice. We conclude that

Hough cannot complain on appeal of a lack of notice of intent to introduce this evidence. See Tex. R. App.

P. 33(a)(1)(A). Hough=s objections preserved his right to complain that the district court erroneously

concluded that the risk of unfair prejudice from the evidence did not substantially outweigh its probative

value. See id.; Tex. R. Evid. 403.

               The photos of appellant nude and the photo of him nude with his wife topless were neither

particularly relevant nor prejudicial. They may have had some relevance to his character, and there is




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nothing extraordinarily inflammatory or prejudicial about consenting spouses taking photos of each other in

stages of undress for private use.

               The photos of the five- or six-year-old J.W. are both more prejudicial and probative. In

Nenno v. State, a case in which the defendant murdered a seven-year-old girl after sexually assaulting her,

the court of criminal appeals found no error in the admission of evidence of an encounter with another young

girl in which the defendant pulled her broken bicycle into his garage, fixed the chain, then patted her Aon her

>butt=@ making her Afeel mad and sad.@ See Nenno v. State, 970 S.W.2d 549, 564 (Tex. Crim. App.

1998). The court rejected Nenno=s Rule 403-based objection, holding that Athe >inflammatory= nature of

the evidence is that it tended to show that appellant was a child molester. Showing appellant to be a child

molester was a perfectly legitimate purpose, and hence, while the evidence was >prejudicial,= it was not

unfairly so.@ Id.; see also Tex. R. Evid. 403. Here, the State likely introduced the photos of J.W. to imply

that Hough=s sexual interest in young girls extended beyond M.W.3 The problem for Hough is that the

probative nature of the photos of J.W. correlates directly to their prejudicial value. If the jury finds the

photos illustrate a penchant for child molestation, then the photos are prejudicial, but in a way that is

deemed fair at the punishment phase; if the jury finds the photos inoffensive and not indicative of

a character flaw, then the photos are not unfairly prejudicial. Either way, the risk of unfair prejudice does

not substantially outweigh the probative value. See Tex. R. Evid. 403.



          3
            There is no direct testimony that Hough took the pictures of J.W. Lisa, through
whom the photos were offered, testified only that he took photos and that she did not take these
photos.


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               The photo of J.W. and Hough nude is the most potentially inflammatory and prejudicial. In

it, Hough is naked, reclining on a bed with his knees bent and his legs spread. J.W. is sitting on or above his

lower abdomen or groin with her arms stretched out to her sides, holding onto Hough=s hands. Although his

scrotum and the base of his penis are clearly visible underneath her and between her legs, the rest of his

penis is hidden by J.W.=s right thigh. Hough asserted at trial that his penis was Anot even close@ to being

inside J.W.=s sexual organ, but the copy of the photo in the appellate record is much less definitive. It

doubtless was extremely prejudicial to his defense, but we cannot conclude that it was not also probative of

his character. See Nenno, 970 S.W.2d at 564. Nor can we can conclude that the district court abused his

discretion by concluding that the risk of unfair prejudice did not substantially outweigh its probative value

concerning his character. We overrule point of error one.




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               By point of error two, Hough contends that the district court erred by failing to instruct the

jury at the punishment phase that, before considering the extraneous offenses and bad acts as part of its

deliberations, it must find beyond a reasonable doubt that the defendant committed the offenses or acts.

Hough concedes that he neither requested such an instruction nor objected to its absence from the

punishment charge. The State concedes that the district court nevertheless was required to give the

instruction and erred by failing to do so. See Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App.

2000). Because Hough did not object to the absence of the instruction at trial, we will reverse only if the

error is so egregious and created such harm as to deny him a fair and impartial trial. See Almanza v. State,

686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh=g). We assay the degree of harm Ain light of the

entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence,

the argument of counsel and any other relevant information revealed by the record of the trial as a whole.@

Id.




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                We conclude that the absence of an instruction did not cause egregious harm because of the

weight of the evidence that Hough committed the extraneous offenses and bad acts. On cross-examination

at punishment, Hough admitted to having sex with M.W. on numerous occasions. He also admitted to

photographing M.W. topless, having sex with him, and performing oral sex on him; he admitted e-mailing

those photos to Stansberry. He admitted being photographed with J.W. while both were naked. He

admitted to asking Lisa and M.W. to lie for him or not testify against him in court. These admissions

confirm beyond a reasonable doubt that he committed the bad acts that Lisa and Stansberry collectively

asserted in their testimony at punishment that he committed. The failure to instruct the jury on the standard

of proof neither compelled him to admit these actions nor caused the jury to consider actions he did not

commit when determining punishment. We find no harm, much less egregious harm, from the district court=s

failure to give this instruction. Taking into account the rest of the trial does not alter this result. We overrule

point two.


                                               CONCLUSION

                Having overruled all four points of error, we affirm the judgment.




                                                     Lee Yeakel, Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel



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Affirmed

Filed: May 23, 2002

Do Not Publish




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