                    PD-0270-15
                                                        April 15, 2015

                 ORAL ARGUMENT REQUESTED



                             NO. PD-0270-15

              IN THE COURT OF CRIMINAL APPEALS
                    OF THE STATE OF TEXAS
                   SITTING AT AUSTIN, TEXAS


                        JOSEPH SULLIVAN,
                                  Petitioner,

                                  VS.

                      THE STATE OF TEXAS
                                 Respondent


                 On Petition for Discretionary Review
                   To the Court of Appeals Twelfth
                  Supreme Judicial District Cause
                         No. 12-13-00253-CR


         PETITION SEEKING DISCRETIONARY REVIEW


James W. Huggler
State Bar No. 00795437
100 E. Ferguson, Suite 802
Tyler, Texas 75702
Telephone: 903-593-2400
Facsimile: 903-593-3830
jhugglerlaw@sbcglobal.net

ATTORNEY FOR PETITIONER
                                   TABLE OF CONTENTS

DESCRIPTION                                                                                        PAGE

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . 2

GROUND FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
   THE COURT OF APPEALS ERRED IN FINDING THAT
   THE TRIAL COURT’S DECISION TO ADMIT EVIDENCE
   WAS WITHING THE ZONE OF REASONABLE
   DISAGREEMENT.

REASONS FOR GRANTING REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . 3

ARGUMENTS AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

    A. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
    B. Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

APPENDIX A - Opinion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9


                                                     i
                                 INDEX OF AUTHORITIES

STATUTES
TEX. PENAL CODE ANN. §20.02 (West 2009). . . . . . . . . . . . . . . . . . . . . . . 2

CASES
Erazo v. State, 144 S.W.3d 487 (Tex. Crim. App. 2004). . . . . . . . . . . 4, 5
Jackson v. State, 314 S.W.3d 118 (Tex. App. – Houston [14th Court],
2010, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990). . . . . . 3, 4
Prytash v. State, 3 S.W.3d 522 (Tex. Crim. App. 1999). . . . . . . . . . . . . . 3
Santellan v. State, 939 S.W.2d 155 (Tex. Crim. App. 1997). . . . . . . . 4, 5
Sullivan v, State, No. 12-13-00253-CR, 2015 Tex. App.
    LEXIS 1304 (Tex. App. – Tyler, Feb. 15, 2015). . . . . . . . . . . . . passim

RULES
TEX. R. APP. P. ANN. 9.4 (West 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . 10
TEX. R. APP. P. ANN. 66.3(a) (West 2013). . . . . . . . . . . . . . . . . . . . . . . . . 3
TEX. R. APP. P. ANN. 66.3( c) (West 2013). . . . . . . . . . . . . . . . . . . . . . . . . 3




                                                     ii
                               PD-0270-15

JOSEPH SULLIVAN,                    §        IN THE COURT OF
PETITIONER                          §
                                    §
VS.                                 §        CRIMINAL APPEALS
                                    §
THE STATE OF TEXAS,                 §
APPELLEE                            §        AUSTIN, TEXAS


TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      Now Comes JOSEPH SULLIVAN, Petitioner and Defendant in the

trial court, and respectfully submits this his Petition for Discretionary

Review complaining of the ruling and opinion by the Court of Appeals for

the Twelfth Supreme Judicial District, and would show the Court as

follows:



           STATEMENT REGARDING ORAL ARGUMENT

      In the event this Court grants this petition, Petitioner requests the

Court to grant oral argument herein so that all matters may be clarified

and any questions presented by the briefs of the parties may be addressed

in a proper manner.




                                    1
                      STATEMENT OF THE CASE

        Appellant was indicted in cause number 007-1018-12 and charged

with the offense of continuous sexual abuse of a child and received a life

sentence. TEX. PENAL CODE ANN. §21.02 (West 2009). A jury trial was

held on all issues.    The Court of Appeals affirmed the trial court’s

judgment and sentence in an unpublished decision, and this petition

follows.



               STATEMENT OF PROCEDURAL HISTORY

        The Twelfth Court of Appeals issued an opinion in number 12-13-

00253-CR on February 11, 2015. No motion for rehearing was filed. On

March 11, 2015, a Motion to Extend Time to File Petition for

Discretionary Review was filed. That Motion was granted and the time

to file a petition for discretionary review was extended until April 13,

2015.




                                    2
                        GROUND FOR REVIEW

     THE COURT OF APPEALS ERRED IN FINDING THAT
     THE TRIAL COURT’S DECISION TO ADMIT EVIDENCE
     W AS W I T HI N T HE ZONE OF REAS O NAB L E
     DISAGREEMENT.




                 REASONS FOR GRANTING REVIEW

     The Court of Appeals’ decision conflicts with another court of appeals

decision on the same issue. TEX. R. APP. P. ANN. 66.3(a) (West 2014).

     The Court of Appeal’s decision conflicts with an applicable decision

of the Court of Criminal Appeals on an important question of state law.

TEX. R. APP. PROC. ANN. 66.3( c)(West 2014).




                  ARGUMENTS AND AUTHORITIES

                         A. Standard of Review

     A court’s decision to admit evidence is reviewed for an abuse of

discretion. Prytash v. State, 3 S.W.3d 522, 527 (Tex. Crim. App. 1999);

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). As

long as the trial court’s ruling was at least within the zone of reasonable
                                     3
disagreement, the appellate courts will not intercede. Montgomery, 810

S.W.2d at 391.



                               B. Analysis

     Rule 403 favors admissibility of relevant evidence, and the

presumption is that relevant evidence will be more probative than

prejudicial. Montgomery, 810 S.W.2d at 389. Both a trial and appellate

court are required to analyze and balance (1) the probative value of the

evidence; (2) the potential to impress the jury in some irrational, yet

indelible, way; (3) the time needed to develop the evidence ; and (4) the

proponent’s need for the evidence. Erazo v. State 144 S.W.3d 487, 489

(Tex. Crim. App. 2004). Specifically regarding photographs, the courts are

to consider (1) the number of exhibits offered; (2) the gruesomeness; (3)

the detail; (4) the size; (5) whether they are black and white or color; (6)

whether they are close up shots; (7 whether the body is naked or clothed;

(8) the availability of other means of proof; (9) and other circumstances

unique to the case. Santellan v. State, 939 S.W.2d 155, 172 (Tex. Crim.

App. 1997).

     However, both Erazo and Santellan involved prosecutions for
                                     4
murder and the pictures in those matters were related directly to the

offense charged. In this case, the photographs offered and admitted did

not purport to show the defendant or the complaining witness.           The

photographs offered were offered solely to impress the jury that this

defendant was a sexual predator. These photographs were not related to

the offense conduct, did not depict anything similar to what the

complainant described, and were not prosecuted as offenses in and of

themselves. While they may have been distasteful, they were not illegal.

     Just as prosecutors have learned that evidence of membership in an

organized criminal street gang leads to convictions, possession of possible

child pornography can also lead juries to disregard evidence and convict.

Jackson v. State, 314 S.W.3d 118 (Tex. App. – Houston [14th Court], 2010,

no pet.).   While the photographs admitted did contain lascivious

depictions, there was no causal link to establish that Sullivan was aroused

by these photographs. Sullivan at *8.

     In this case, the appellate court described the cross-examination of

the complainant as well-structured and effective. Sullivan at *9-10. The

Court of Appeals erred in determining that it was “keenly important”

“particularly important” for the State to offer these photographs to
                                    5
establish that Sullivan received sexual gratification from them

contemporaneously with the alleged abuse. Sullivan at *10. Despite the

well-structured attack on the complainant’s credibility, the Court of

Appeals erred in then stating that these photographs were not likely to

impress the jury in some irrational way, and that possession of

“pornographic” material was less heinous than the acts testified to by the

complainant. This decision reached by the Court of Appeals conflicts with

opinions from this Court and other appellate courts and should be

reversed.



                            CONCLUSION

     Under all circumstances, the Court of Appeals erred in affirming the

trial court’s decision. This court should grant discretionary review and,

upon such review, reverse the Court of Appeals and remand the case to

the Court of Appeals.




                                   6
                             PRAYER

     WHEREFORE, Petitioner prays the Court to grant discretionary

review and, upon such review, to reverse the judgment of the Court of

Appeals; and for such other and further relief to which he may show

himself justly entitled.



                                 Respectfully submitted,




                                  /s/ James Huggler

                                 James W. Huggler

                                  State Bar No. 00795437

                                 100 E. Ferguson, Suite 805

                                 Tyler, Texas 75702

                                 Telephone: 903-593-2400

                                 Facsimile: 903-593-3830

                                 ATTORNEY FOR PETITIONER




                                 7
8
                      CERTIFICATE OF SERVICE



     I hereby certify that a true and correct copy of the foregoing Petition

has been forwarded to the District Attorney, Smith County, Texas, and on

the State Prosecuting Attorney by regular mail or through the State of

Texas Electronic Filing System on this the 11th day of April, 2015 at the

addresses listed below



                                      /s/ James Huggler
                                     James W. Huggler


Michael West
Smith County District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702

Lisa McMinn
State Prosecuting Attorney
PO Box 12405
Austin, Texas 78711


                    CERTIFICATE OF COMPLIANCE
I certify that this Brief complies with Tex. R. App. P. 9.4, specifically
using 14 point Century font and contains 2,332 words as counted by
Corel WordPerfect version x6.

/s/ James Huggler
                                     9
James W. Huggler, Jr.




                        10
                     NO. PD-0270-15

        IN THE COURT OF CRIMINAL APPEALS

         OF THE STATE OF TEXAS SITTING AT

                    AUSTIN, TEXAS

*********************************************************

                  JOSEPH SULLIVAN,

                                         Petitioner

                           VS.

                 THE STATE OF TEXAS,

                                         Respondent

*********************************************************

           On Petition for Discretionary Review
             To the Court of Appeals Twelfth
            Supreme Judicial District Cause
                   No. 12-13-00253-CR

*********************************************************
                       APPENDIX
*********************************************************




                           11
           JOSEPH EDWARD SULLIVAN, APPELLANT v. THE STATE OF TEXAS, APPELLEE

                                                 NO. 12-13-00253-CR

                      COURT OF APPEALS OF TEXAS, TWELFTH DISTRICT, TYLER

                                              2015 Tex. App. LEXIS 1304


                                        February 11, 2015, Opinion Delivered

NOTICE: PLEASE CONSULT THE TEXAS RULES                          nurse examiner. Each testified that no DNA linking
OF APPELLATE PROCEDURE FOR CITATION OF                          Appellant to the crime was present in [*2] the samples
UNPUBLISHED OPINIONS.                                           collected. The State further sought to introduce, over
                                                                Appellant's objection, nine pictures recovered from
PRIOR HISTORY:         [*1] Appeal from the 7th District        Appellant's laptop depicting young girls. The trial court
Court of Smith County, Texas. (Tr.Ct.No. 007-1018-12).          overruled Appellant's objection and permitted the State to
                                                                publish the pictures to the jury. Thereafter, the State rested.
                                                                Appellant rested without calling any witnesses.
COUNSEL: For Appellant: Austin R. Jackson.
                                                                        1 Appellant has not raised an issue challenging the
For State: Michael J. West.                                             sufficiency of the evidence.
                                                                    Ultimately, the jury found Appellant "guilty" as
JUDGES: Panel consisted of Worthen, C.J., Hoyle, J., and
                                                                charged. Following a bench trial on punishment, the trial
Neeley, J.                                                      court sentenced Appellant to imprisonment for life. This
                                                                appeal followed.
OPINION BY: BRIAN HOYLE
                                                                ADMISSIBILITY OF EVIDENCE - RELEVANCE AND UNDUE
OPINION                                                         PREJUDICE
MEMORANDUM OPINION                                                  In his sole issue, Appellant argues that the trial court
                                                                abused its discretion in admitting nine photographs seized
     Joseph Edward Sullivan appeals his conviction for          from Appellant's laptop. Specifically, Appellant argues the
continuous sexual abuse of a child under fourteen, for          admission of this evidence violates Texas Rules of Evidence
which he was sentenced to imprisonment for life. In one         401, 402, and 403.
issue, Appellant argues that the trial court erred in
admitting irrelevant and unduly prejudicial photographic        Standard of Review and Governing Law
evidence offered by the State during the guilt-innocence
phase of trial. We affirm.                                           We review the trial court's decision to admit evidence
                                                                for abuse of discretion. See Prystash v. State, 3 S.W.3d
BACKGROUND                                                      522, 527 (Tex. Crim. App. 1999); Montgomery v. State,
                                                                810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g).
     Appellant was charged by indictment with continuous
                                                                "That is to say, as long as the trial court's ruling was at least
sexual abuse of his girlfriend's young daughter, K.J.
                                                                within the zone of reasonable disagreement, the appellate
Appellant pleaded "not guilty." The matter proceeded to a
                                                                court will not intercede." Montgomery, 810 S.W.2d at 391.
jury trial.
                                                                Furthermore, [*3] if the trial court's evidentiary ruling is
     At trial, K.J. testified regarding multiple instances of   correct on any theory of law applicable to that ruling, it will
Appellant's sexually abusing her.1 Moreover, a video            not be disturbed, even if the trial judge gave the wrong
recording of her interview with Jackie Mendez, a forensic       reason for a correct ruling. See De La Paz v. State, 279
examiner with the Child Advocacy Center in Tyler, Texas,        S.W.3d 336, 344 (Tex. Crim. App. 2009).
was played for the jury. Additionally, the State elicited
                                                                    "Relevant evidence" means evidence having any
testimony from multiple forensic scientists concerning the
                                                                tendency to make the existence of any fact that is of
biological samples collected from K.J. by the sexual assault
                                                                consequence to the determination of the action more

                                                           12
probable or less probable than it would be without the            S.W.3d 320, 322 (Tex. App.--Fort Worth 2007, pet. ref'd).
evidence. TEX. R. EVID. 401. Evidence that is not relevant
is inadmissible. See TEX. R. EVID. 402. With respect to the       The Photographs and K.J.'s Trial Testimony
relevance of photographic evidence, the court of criminal
                                                                       In the instant case, the State sought to admit nine of
appeals further instructs as follows:
                                                                  approximately two thousand photographs recovered from
                                                                  Appellant's laptop. Each of these pictures depicts one or
          A photograph should add something that
                                                                  more young girls. In five of the pictures, the girls are nude
        is relevant, legitimate, and logical to the
                                                                  or partially nude. In three of the remaining four pictures,
        testimony that accompanies it and that
                                                                  the girls depicted are wearing only undergarments, and in
        assists the jury in its decision-making
                                                                  the fourth picture, the girl is wearing an ill-fitting and
        duties. Sometimes this will, incidentally,
                                                                  revealing bathing suit. Appellant objected to the
        include elements that are emotional and
                                                                  admissibility of these photographs, arguing that they were
        prejudicial. Our case law is clear on this
                                                                  not relevant and were "more prejudicial than probative."
        point: If there are elements of a photograph
                                                                  The trial court overruled Appellant's objections.
        that are genuinely helpful to the jury in
        making its decision, the photograph is                         Earlier in the trial, K.J., who was twelve years old at
        inadmissible only if the emotional and                    that time, testified that when she was nine years old,
        prejudicial aspects substantially outweigh                Appellant sexually abused her on multiple occasions.
        the helpful aspects.                                      Specifically, she stated that Appellant would put his hand
                                                                  on her genitals under her underwear and, subsequently,
                                                                  would put his finger in her vagina. K.J. specified that this
Erazo v. State, 144 S.W.3d 487, 491-92 (Tex. Crim. App.           happened approximately twenty-five times, usually on a
2004).                                                            weekly basis. K.J. also described another incident when
                                                                  Appellant placed [*6] an object she described as "hard and
     Under Rule 403 of the Texas Rules of Evidence, even
                                                                  rubbery [feeling], like a [hard] bottle nipple . . . close to
relevant "evidence may be excluded if its [*4] probative
                                                                  [her] bottom." K.J. elaborated, stating that her back was
value is substantially outweighed by the danger of unfair
                                                                  toward Appellant, who was rubbing this object on her
prejudice . . . ." TEX. R. EVID. 403. "Rule 403 favors
                                                                  bottom and who once put the object in her bottom, while he
admissibility of relevant evidence, and the presumption is
                                                                  breathed heavily and rubbed her stomach under her shirt
that relevant evidence will be more probative than
                                                                  with his hands.
prejudicial." Montgomery, 810 S.W.2d at 389. Rule 403
requires both trial and reviewing courts to analyze and                On cross examination, K.J. testified that she told
balance (1) the probative value of the evidence (2) the           Mendez that she "gets really mad sometimes." She further
potential to impress the jury in some irrational, yet             testified that she did not like having to sleep in the dining
indelible, way, (3) the time needed to develop the evidence,      room and was mad because Appellant's son had his own
and (4) the proponent's need for the evidence. See Erazo,         room. K.J. further recounted an incident with a boy at her
114 S.W.3d at 489. In making this determination, we               school, whom she accused of touching her bottom. Based
consider factors including (1) the number of exhibits             on K.J.'s testimony about feeling something similar to a
offered, (2) their gruesomeness, (3) their detail, (4) their      bottle nipple on her bottom, the State questioned her about
size, (5) whether they are black and white or color, (6)          her familiarity with condoms and whether she had seen one
whether they are close up shots, (7) whether the body is          in her mother and Appellant's bathroom on one occasion.
naked or clothed, (8) the availability of other means of          The State further questioned K.J. about whether Appellant's
proof, and (9) other circumstances unique to the individual       son had, on numerous occasions, jokingly pretended to
case. Santellan v. State, 939 S.W.2d 155, 172 (Tex. Crim.         "drop a condom" in front of her.
App. 1997).
                                                                       On redirect examination, K.J. stated that she had not
     Moreover, under Rule 404(b), evidence of other               fabricated her allegations against Appellant for the purpose
crimes, wrongs, or bad acts is inadmissible if it is offered to   of creating an opportunity to have [*7] her own bedroom.
prove the character of a person in order to show action in
                                                                       During his closing argument, Appellant began by
conformity therewith. See TEX. R. EVID. 404(b). But it may
                                                                  stating, "The bottom line in this case is the credibility of the
be admissible for other purposes, such as proof of motive,
                                                                  witnesses, primarily, [K.J.]. She was the only witness that
opportunity, intent, [*5] absence of mistake or accident, or
                                                                  means anything in the case." Appellant then proceeded to
to rebut a defensive theory. Id.; Sarabia v. State, 227
                                                                  point out inconsistencies in K.J.'s testimony and suggest to

                                                             13
the jury that she fabricated the story because, among other             also id. § 21.01(2) (West 2011) (under Section
reasons, she was mad about having to sleep in the dining                21.11, "sexual contact" includes touching by person
room. Appellant elaborated, suggesting that K.J. observed               of any part of child's genitals and requires act be
the consequences that befell the boy at her school after she            committed with intent to arouse or gratify sexual
reported to the teacher that he had touched her rear end.               desire of actor).
Appellant proffered that, as a result, K.J. believed she could
gain some sort of advantage by placing Appellant in a            Weighing Probative Value Against Danger of Unfair
similar predicament by telling her teacher that he had           Prejudice
touched her inappropriately. Appellant further emphasized
                                                                     We next consider whether the probative value of these
to the jury that the State had admitted having no physical
                                                                 photographs is substantially outweighed by the danger of
evidence and, ultimately, asked the jury to conclude that
                                                                 unfair prejudice to Appellant.
there was reasonable doubt that Appellant did what K.J.
said he did.                                                          Applying the Rule 403 balancing factors to this case,
                                                                 we first consider how compellingly the photographs served
Relevance                                                        to make a fact of consequence more or less probable.
                                                                 Sarabia, 227 S.W.3d at 324. As set forth previously, this
     The photographs admitted in the instant case share a
                                                                 photographic evidence was necessary to prove the requisite
common theme--lascivious depictions of young girls.2 The
                                                                 intent element under Sections 21.02 and 21.11. Moreover,
indictment alleged that Appellant committed the offense of
                                                                 at trial, Appellant fervently challenged K.J.'s credibility.
continuous [*8] sexual abuse by, among other ways,
                                                                 Because there were no other eyewitnesses and no biological
intentionally or knowingly engaging in sexual contact with
                                                                 evidence linking Appellant to the crime, the evidence in
K.J. by touching her genitals with the intent to arouse or
                                                                 question [*10] was particularly important to the State's
gratify his sexual desire.3 K.J. testified that Appellant put
                                                                 need to rebut Appellant's well-structured attack on its key
his hand in her pants underneath her underwear on
                                                                 witness. Appellant declined to call any witnesses. Thus, his
numerous occasions. The photographs, which were
                                                                 attack on K.J.'s credibility was a critical component to his
recovered from Appellant's computer, tended to prove that
                                                                 defense. As a result, it was keenly important that the State
Appellant was aroused by lascivious depictions of young
                                                                 seek to bolster K.J.'s testimony. Because K.J. admitted that
girls. This tends to support the conclusion that Appellant,
                                                                 she was mad about having to sleep in the dining room and
on numerous occasions, engaged in the aforementioned
                                                                 that she accused a boy at her school of making unwanted
sexual contact with the intent to arouse or gratify a similar
                                                                 contact with her rear end, the jury could have reasonably
sexual desire. See, e.g., Pallm v. State, No. 12-10-00329-
                                                                 concluded that she fabricated her allegations to gain some
CR, 2011 Tex. App. LEXIS 9402, 2011 WL 6043025, at *2
                                                                 sort of advantage by getting Appellant into trouble. These
(Tex. App.--Tyler Nov. 30, 2011, pet. ref'd) (mem. op., not
                                                                 photographs possessed by Appellant contemporaneously
designated for publication). They further served to bolster
                                                                 with the events in question tended to show that K.J.'s
K.J.'s testimony, the veracity of which Appellant attacked.
                                                                 testimony was truthful since it demonstrated that Appellant
Id.
                                                                 received sexual gratification from viewing these
                                                                 photographs. See, e.g., Pallm, 2011 Tex. App. LEXIS 9402,
       2 Among these pictures was a photograph of a
                                                                 2011 WL 6043025, at *2. We conclude that the probative
       prelude to a sexual encounter between a girl and an
                                                                 value of the photographic evidence is high and the State's
       older nude male with an erect penis. Another
                                                                 need for the evidence was significant.
       photograph depicts two girls. One is on her knees,
       leaning forward on her elbows, and facing away                  As for the exhibits, they are nine color images
       from the camera, while the other girl is kneeling,        apparently downloaded from the internet. Eight of the nine
       facing the camera, and has both of her hands placed       photographs are 4? x 6,? while the remaining photograph is
       on the first girl's genitals.                             3 1/2? x 5.? None of the [*11] pictures are particularly
       3 See TEX. [*9] PENAL CODE ANN. § 21.02(c)(2)             sharp in detail. Most of the photographs could be described
       (West Supp. 2014) ("act of sexual abuse" includes         as blurry to moderately pixilated. Finally, one photograph
       indecency with a child under Section 21.11(a)(1), if      appears to have been taken with some sort of night vision
       actor committed offense in a manner other than by         filter, and its subject is barely discernible.
       touching breast of child); id. § 21.11(a) (West
                                                                     But despite the poor quality of the photographs, we
       2011) (person commits indecency with child if,
                                                                 cannot discount the possibility that they may have
       with a child younger than seventeen years of age,
                                                                 potentially impressed the jury in some irrational way. And
       person engages in sexual contact with child); see


                                                            14
while the notion of a person receiving any sort of
gratification from these sorts of pictures is repugnant, its      In response, Appellant's attorney also made several
potential to irrationally impress the jury in the instant case    references to the photographs, explaining to the jurors that
was diminished given the totality of the evidence before the      the purpose of the State's offering [*13] the photographs
jury. See, e.g., Gomez v. State, No. 12-13-00050-CR, 2015         was to "get a reaction out of" them and cause them to not
Tex. App. LEXIS 486, 2015 WL 303095, at *4 (Tex. App.--           care about the evidence, or lack thereof. Appellant further
Tyler 2015, no pet. h.) (not yet released for publication);       reminded the jury that it was not obligated to convict
Pallm, 2011 Tex. App. LEXIS 9402, 2011 WL 6043025, at             Appellant based on his possessing these photographs.
*3. Indeed, Appellant's possession of this pornographic
                                                                       Having considered and balanced the aforementioned
material was likely to be construed as less heinous by the
                                                                  factors, we conclude that each factor weighs in favor of the
jury than the detailed evidence it heard concerning
                                                                  trial court's finding that the probative value of the
Appellant's repeatedly rubbing nine-year-old K.J.'s genitals,
                                                                  photographs is not substantially outweighed by the danger
inserting his finger into her vagina, and penetrating her
                                                                  of unfair prejudice. Therefore, we hold that the trial court
anus with a foreign object. Cf. Gomez, 2015 Tex. App.
                                                                  did not abuse its discretion in admitting these photographs.
LEXIS 486, 2015 WL 303095, at *4; Pallm, 2011 Tex. App.
                                                                  Appellant's sole issue is overruled.
LEXIS 9402, 2011 WL 6043025, at *3.
     Moreover, the State did not spend an excessive amount        DISPOSITION
of time developing this evidence. All argument concerning
                                                                        Having overruled Appellant's sole issue, we affirm the
the admissibility of these photographs [*12] was conducted
                                                                  trial court's judgment.
outside of the jury's presence. The State proved up the
photographs with only three questions. Once the                          BRIAN HOYLE
photographs were offered into evidence and published to
                                                                         Justice
the jury, the State concluded its examination and rested.
Further still, while the State made references to these                  Opinion delivered February 11, 2015.
photographs in its jury argument, it did so while drawing a            Panel consisted of Worthen, C.J., Hoyle, J., and Neeley,
clear line to the intent element. Specifically, the prosecuting   J.
attorney argued to the jury as follows:
                                                                         (DO NOT PUBLISH)
           One of the other elements we have to
                                                                  JUDGMENT
        prove is that the defendant acted with intent
        to arouse or gratify his sexual desires. I                     THIS CAUSE came to be heard on the appellate
        think his acts speak for themselves, but I                record and briefs filed herein, and the same being
        also think other items do. I didn't like                  considered, it is the opinion of this court that there was no
        looking at these [photographs]. I had to                  error in the judgment.
        look at them for trial. You didn't want to
        look at them. But you had to look at them                      It is therefore ORDERED, ADJUDGED and
        because you're the jury in this case. Do you              DECREED that the judgment of the court below be in all
        think anybody else in this room likes                     things affirmed, for which execution may issue, and that
        looking at them? That man right there.                    this decision be certified [*14] to the court below for
        Ladies and gentlemen, we have proved our                  observance.
        case beyond a reasonable doubt. I ask you                        Brian Hoyle, Justice.
        today to fight for her, to right a wrong in
        her life with a guilty.




                                                             15
4/15/2015                                                                  Envelope Details


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  Case # PD­0270­15
   Case Information
   Location                                     Court Of Criminal Appeals
   Date Filed                                   04/13/2015 03:39:05 PM
   Case Number                                  PD­0270­15
   Case Description
   Assigned to Judge
   Attorney                                     James Huggler
   Firm Name                                    Law Office of James Huggler
   Filed By                                     James Huggler
   Filer Type                                   Not Applicable
   Fees
   Convenience Fee                              $0.09
   Total Court Case Fees                        $0.00
   Total Court Filing Fees                      $0.00
   Total Court Service Fees                     $0.00
   Total Filing & Service Fees                  $0.00
   Total Service Tax Fees                       $0.00
   Total Provider Service Fees                  $3.00
   Total Provider Tax Fees                      $0.25
   Grand Total                                  $3.34
   Payment
   Account Name                                 Amie
   Transaction Amount                           $3.34
   Transaction Response
   Transaction ID                               8000323
   Order #                                      004867925­0

   Petition for Discretionary Review
   Filing Type                                                                EFileAndServe
   Filing Code                                                                Petition for Discretionary Review
   Filing Description                                                         Petition for Discretionary Review
   Reference Number                                                           PDR
   Comments
   Status                                                                     Rejected
   Fees
   Court Fee                                                                  $0.00
   Service Fee                                                                $0.00
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4/15/2015                                                                  Envelope Details

   Rejection Information
   Rejection
             Time       Rejection Comment
   Reason
             04/15/2015 The petition for discretionary review does not contain the identity of Judge,
   Other     04:47:14 Parties and Counsel [Rule 68.4(a)]. You have ten days to tender a corrected
             PM         petition for discretionary review.
   Documents
   Lead Document                  PDR.pdf                           [Original]


   eService Details
                                                                                                                   Date/Time
   Name/Email                               Firm                       Service Type              Status   Served
                                                                                                                   Opened
                             Smith County
   Michael West                                                                                                    04/13/2015
                             District Attorney's EServe                                          Sent     Yes
   MWest@smith­county.com                                                                                          05:13:18 PM
                             Office
   Lisa McMinn               State Prosecuting                                                                     04/13/2015
                                                 EServe                                          Sent     Yes
   information@spa.texas.gov Attorney                                                                              04:26:08 PM
   Lisa C. McMinn            State Prosecuting                                                                     04/14/2015
                                                 EServe                                          Sent     Yes
   lisa.mcminn@spa.texas.gov Attorney's Office                                                                     08:30:29 AM




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