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


                  No. 06-18-00147-CR



             CAMERON MILES, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 16th District Court
                Denton County, Texas
             Trial Court No. F17-418-158




      Before Morriss, C.J., Burgess and Stevens, JJ.
       Memorandum Opinion by Justice Stevens
                                         MEMORANDUM OPINION
            A Denton County jury convicted Cameron Miles on three counts of sexual assault of a

child. 1 For the first offense, Miles was sentenced to ten years’ imprisonment and ordered to pay a

$10,000.00 fine. For the second offense, Miles was sentenced to twelve years’ imprisonment and

ordered to pay a $10,000.00 fine. And for the third offense, Miles was sentenced to twenty years’

imprisonment and ordered to pay a $10,000.00 fine. On appeal, Miles contends the trial court

erred (1) in denying his motion to suppress and (2) by admitting a photograph of him into evidence

during the punishment phase at trial.

            Because we find (1) that Miles was not in custody when he was interviewed by Denton 2

law enforcement officers and (2) that the trial court did not err in admitting the photograph into

evidence during the punishment phase at trial, we affirm the trial court’s judgment.

I.          Factual Background

            Elinor 3 was sixteen years old working at a local Subway sandwich shop. During one shift,

Miles, a twenty-eight-year-old assistant manager, made several inappropriate and suggestive

comments to her, even though he knew she was under seventeen. Later that night, when the two

left the restaurant after closing, Miles followed Elinor to her car. Miles asked about all the things

he had said earlier that he would like to do to her. Elinor said she thought he was joking. He then


1
    See TEX. PENAL CODE ANN. § 22.011 (West 2019).
2
 Originally appealed to the Second Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We are unaware
of any conflict between precedent of the Second Court of Appeals and that of this Court on any relevant issue. See
TEX. R. APP. P. 41.3.
3
    In this opinion, we refer to the child victim by a pseudonym to protect the child’s identity. See TEX. R. APP. P. 9.10.

                                                              2
put her in the back seat and forced her to engage in sexual intercourse. 4 Elinor was frightened and

claimed she “felt frozen like [she] couldn’t do anything,” “zone[d] out,” and did not resist. 5 A few

hours after Elinor got home, she told her parents about the assault. Her parents immediately called

the police.

           A sexual assault investigation began. About four or five days after the assault, two Denton

Police Department detectives interviewed Miles at his apartment for about an hour. Following the

interview, a warrant for Miles’ arrest was obtained the next day. Miles was arrested twenty days

later.

           Miles moved to suppress any evidence gained from the interview. After a hearing on the

motion to suppress, the trial court denied the motion.

II.        Miles Was Not in Custody

           In his first point of error, Miles claims the trial court erred in denying his motion. Miles

argues that, when detectives came to his apartment to interview him about the assault, Miles was

effectively in custody. Miles would have this Court find that the detectives’ failure to advise him

of his Miranda 6 rights rendered inadmissible any evidence produced in the interview. We must




4
 Miles was indicted on four counts of sexual assault of a child. The jury convicted him for three acts: Miles’ digital
penetration of Elinor’s sexual organ; contacting Elinor’s sexual organ with Miles’ sexual organ; and contacting
Elinor’s anus with Miles’ sexual organ.
5
 Elinor said that, when she began to cry, she covered her face because she did not want Miles to see her cry. She
testified, “At that point, I just wanted to be happier, so I wasn’t there anymore. I was - - I saw - - like just thinking
about my sister actually.” During the acts, Elinor said Miles called her “a good little girl.” When he left her vehicle,
he said, “[Y]ou should let me f--- you more often.”
6
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                           3
first decide the threshold matter of whether Miles was legally in custody at the time. If not,

Miranda warnings were not required.

       A.      Standard of Review

       “[T]he trial court is the ‘sole and exclusive trier of fact and judge of the credibility of the

witnesses’ and the evidence presented at a hearing on a motion to suppress, particularly where the

motion is based on the voluntariness of a confession.” Delao v. State, 235 S.W.3d 235, 238 (Tex.

Crim. App. 2007) (citations omitted); Green v. State, 934 S.W.2d 92, 98 (Tex. Crim. App. 1996);

Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); see Bizzarri v. State, 492 S.W.2d

944, 946 (Tex. Crim. App. 1973). Thus, in reviewing the trial court’s factual determination of the

circumstances surrounding the interrogation, we give almost total deference to the trial court.

Martinez v. State, 348 S.W.3d 919, 922–23 (Tex. Crim. App. 2011). That said, because whether

a reasonable person would feel that he was not free to end the questioning and leave is a mixed

question of law and fact that does not depend on the trial court’s credibility determination, we

employ a de novo standard when evaluating this question. Thompson v. Keohane, 516 U.S. 99,

113–14 (1995); State v. Saenz, 411 S.W.3d 488, 490 (Tex. Crim. App. 2013).

       As a reviewing court, we must defer to “a trial judge’s findings of historical fact, as long

as they find support within the record.” State v. Garcia, 569 S.W.3d 142, 149 (Tex. Crim. App.

2018). “This is because, on matters of historical fact, the trial judge is in ‘an appreciably better

position than the appellate court’ to settle disputes.” Id. (quoting Guzman v. State, 955 S.W.2d 85,

88 (Tex. Crim. App. 1997)). “Such findings are also typically considered to be highly relevant to

deciding Fourth-Amendment issues.” Id.

                                                 4
       B.      Analysis

       The warnings required by Miranda are triggered when a person undergoes custodial

interrogation or, in other words, the “questioning initiated by law enforcement officers after a

person has been taken into custody or otherwise deprived of his freedom of action in any significant

way.” Miranda, 384 U.S. at 444; Herrera v. State, 241 S.W.3d 520 (Tex. Crim. App. 2007). One

is in custody, for these purposes, “only if, under the circumstances, a reasonable person would

believe that his freedom of movement was restrained to the degree associated with a formal arrest.”

Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996). In Dowthitt, the Texas Court of

Criminal Appeals suggested four scenarios in which a person might be considered in custody:

       (1) when the suspect is physically deprived of his freedom of action in any
       significant way, (2) when a law enforcement officer tells the suspect he cannot
       leave, (3) when law enforcement officers create a situation that would lead a
       reasonable person to believe his freedom of movement has been significantly
       restricted, and (4) when there is probable cause to arrest and law enforcement
       officers do not tell the suspect he is free to leave.

Id. at 255. “[T]he restriction upon freedom of movement [in situations one through three] must

amount to the degree associated with an arrest as opposed to an investigative detention.” Id.

“[T]he custody determination is based entirely upon the objective circumstances”; the subjective

intents of the law enforcement officer and of the defendant are “irrelevant except to the extent that

they may be manifested in the words or actions of law enforcement officials.” Id. at 254.

       In Thompson, the United States Supreme Court clarified the factors for determining

whether a suspect is in custody.       The matter turns on (1) a factual determination of the

circumstances surrounding the interrogation and (2) a legal determination of whether, under the

factual circumstances, a reasonable person would feel that he was not free to end the questioning
                                                 5
and leave. Thompson, 516 U.S. at 112–13. “‘[T]he ultimate inquiry is simply whether there [was]

a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal

arrest.’” Stansbury v. California, 511 U.S. 318, 322 (1994) (per curiam) (quoting California v.

Beheler, 463 U.S. 1121, 1125 (1983) (per curiam) (quoting Oregon v. Mathiason, 429 U.S. 492,

495 (1977) (per curiam))).

       Miles contends that he was in custody under the fourth scenario described in Dowthitt.

Under this fourth scenario of custody, the manifestation of probable cause does not automatically

establish custody. “Rather, custody is established if the manifestation of probable cause, combined

with other circumstances, would lead a reasonable person to believe that he is under restraint to

the degree associated with an arrest.” Dowthitt, 931 S.W.2d at 255. According to Miles, Detective

Scott Salazar “manifested his knowledge of probable cause to arrest” Miles by telling him, falsely,

that Salazar had seen surveillance footage of the parking lot where Miles sexually assaulted Elinor.

Miles also points to statements by Salazar that he thought Elinor had given a “really good

interview” and that he believed a sexual encounter between Miles and the sixteen-year-old had in

fact occurred. Because neither Salazar nor the other detective told Miles he was free to leave,

Miles claims he was effectively in custody.

               1.      The Interview in Miles’ Apartment

       Salazar wore a body camera and recorded his interview with Miles, so we can review the

conversation and tone of the participants in reviewing Salazar’s conduct vis-à-vis the custodial

status of Miles. Salazar and another detective knocked on Miles’ apartment door about 8:30 a.m.

Miles did not seem reluctant to speak to the detectives; he simply asked for a moment to get

                                                 6
dressed. When officers asked to come in and talk, Miles welcomed them and said he had been

expecting them. Salazar asked why he would be expecting them, and Miles said because of what

happened at his work. Once the detectives and Miles sat down, Miles spoke, uninterrupted, for

several minutes, generally about Elinor, events since the attack, and things Miles had heard about

Elinor’s condition. At one point, Salazar asked Miles’ girlfriend to leave the room so they could

talk. Salazar then asked Miles about his version of events. Miles denied having sex with Elinor

or even getting in her vehicle.

         As the interview progressed, Salazar explained that he had seen surveillance footage of the

parking lot where Elinor was assaulted in her vehicle. 7 After about twenty minutes, Miles admitted

that he got in Elinor’s vehicle to tie his shoe. Salazar then asked Miles about the shadows he had

“seen” on the non-existent surveillance footage. Salazar claimed that he saw two shadows, then

one, in Elinor’s car. This led Salazar to believe that either Elinor got on top of Miles or Miles got

on top of Elinor. Miles first denied contact with Elinor, but then claimed she climbed on top of

his lap. Gradually, Miles acknowledged sexual contact and then intercourse with Elinor.




7
  This was not true. No surveillance footage from the Subway restaurant’s interior or any of the businesses with
exterior cameras of the parking lot was obtained. Salazar also suggested to Miles that law enforcement had found
Miles’ DNA at the scene. While DNA consistent with Miles (or a brother, son, or his father) was found in Elinor’s
panties, this result was not known until the laboratory report generated in April 2018, about a year and a half after the
crime. Deception by law enforcement agents is not impermissible. “[I]t is well established that lying about the state
of the evidence is not the sort of ‘overreaching’ that implicates the Due Process Clause, as long as the subterfuge used
is not one likely to produce an untrue statement.” Oursbourn v. State, 259 S.W.3d 159, 182 (Tex. Crim. App. 2008);
see Frazier v. Cupp, 394 U.S. 731, 737–39 (1969) (refusing to find that a defendant who confesses, after being falsely
told that his codefendant has turned State’s evidence, does so involuntarily); Snow v. State, 721 S.W.2d 943, 946 (Tex.
App.—Houston [1st Dist.] 1986, no pet.) (“voluntariness is not destroyed, and a confession induced by deception or
trickery is not inadmissible, unless the method used was calculated to produce an untruthful confession or was
offensive to due process”).
                                                           7
       Salazar then suggested that maybe Elinor had been smitten with Miles and that she had

instigated the sexual activities. Miles agreed with that version. He said she reached her hand into

his pants, then put his hand in hers. When asked if Elinor put Miles’ finger in her vagina, he said

he did not think so. Miles told Salazar that, at that point, he pushed Elinor off him and left her

vehicle.

       Salazar kept questioning Miles, who gradually made more specific and clarifying

admissions. Salazar eventually explained that he believed Miles had forced the sexual encounter

upon Elinor. Miles denied the coital and post-coital statements attributed to him by Elinor. Miles

finally asked to speak to an attorney, and Salazar immediately terminated the interview.

               2.     Trial Court’s Findings

       “The trial court [is] obligated to make findings [of fact] that [are] adequate for the appellate

court to decide the legal determinations in the case.” Saenz, 411 S.W.3d at 495. Here, the trial

court made the following findings of fact:

       1.      The detectives “knocked on [Miles’] door” at his “personal residence”;

       2.      Miles told the detectives “[b]efore questioning started” that “he knew why the
               officers were there and was waiting for them”;

       3.      He was questioned “in the living room of his own home with a view of windows
               and doors leading to the outside”;

       4.      Miles agreed to speak to the detectives;

       5.      Miles asked to end the interview after about an hour;

       6.      Miles was of “sound mind at the time of the questioning” and “not intoxicated, ill,
               or suffering from a mental illness such that he was unable to comprehend the
               officer’s questioning at the time or contemplate the voluntariness of his answers to
               police questioning”;
                                                  8
         7.       The detectives “never restricted [Miles’] movements” or “used physical force,
                  threats of physical force, or a showing of force when speaking with” Miles;

         8.       The detectives never told Miles he was under arrest, did not arrest him, and left his
                  apartment; and

         9.       A warrant was obtained the next day, but Miles was not arrested until twenty-one
                  days later.

The trial court then concluded that Miles was not in custody when he was interviewed “because

under the circumstances a reasonable person would not have believed that his freedom of

movement was restrained to the degree associated with a formal arrest.” The trial court’s findings

of fact are supported by the record—including the recording of the interview. Thus, we defer to

them.

         Miles also contends that Salazar communicated that he had probable cause to arrest Miles.

Detective Salazar never explicitly told Miles that he was a prime suspect or focus of the

investigation. Even so, by the end of the interview, Salazar told Miles that he believed Miles had

forced the sexual event upon Elinor and knew his conduct was wrong. Miles effectively confessed

to at least one act of sexual assault of a child after admitting he contacted Elinor’s vagina with his

penis while and knowing she was sixteen years old. But “the mere fact that the suspect becomes

the focus of a criminal investigation does not convert [an investigation] into an arrest.” State v.

Stevenson, 958 S.W.2d 824, 829 (Tex. Crim. App. 1997). 8 Indeed, even

         where a person voluntarily accompanies investigating police officers to a certain
         location, and he knows or should know that the police officers suspect that he may
8
  Stevenson and his wife were in a one-car accident. The couple first told the investigating officer Mrs. Stevenson had
been driving. The officer noticed evidence contradicting that statement. On the second ask, Stevenson admitted he
had been driving. The Texas Court of Criminal Appeals held that Stevenson was not in custody at the time of the
statement.
                                                          9
        have committed or may be implicated in committing a crime, that person is not
        ‘restrained’ or ‘in custody’ as contemplated by Art. 15.22, . . . so that his Fourth
        Amendment or Art. I, § 9 rights are implicated.

Livingston v. State, 739 S.W.2d 311, 327 (Tex. Crim. App. 1987). 9

        At no time did either detective tell Miles that he was under arrest or that he was not free to

leave. In fact, Miles was in his own residence throughout the interview. When the detectives

arrived, Miles said he was eager to speak with them and had been waiting for them. He explicitly

said he wanted to speak to the officers when Salazar pointedly asked him that question. He and

Salazar sat next to each other on the couch. Salazar’s body-camera recording shows the men

sitting perhaps a foot or two apart. About eighteen minutes into the interview, Salazar moved to

an ottoman directly in front of Miles. Then, Salazar was about two feet across from Miles. The

detective leaned in toward Miles, but at no time during the interview was Salazar closer than a

couple of feet. Several times Miles chuckled or laughed and claimed he was not nervous. At one

point, Salazar told Miles that they would soon be done with their questions, then would leave so

Miles could go about his day. When Miles said he would like to have an attorney with him, the

interview immediately ended, and the detectives left Miles’ residence. See Beckwith v. U.S., 425

U.S. 341, 347 (1976) (holding defendant who was interviewed by IRS agents in a private home

and whose “tax liability . . . was under scrutiny . . . hardly found himself in the custodial situation

described by the Miranda Court as the basis for its holding”).




9
 That said, probable cause is manifested when a suspect acknowledges criminal conduct, such as making a confession.
See Ard v. State, 418 S.W.3d 256, 262–63 (Tex. App.—Houston [14th Dist.] 2013, no pet.). Probable cause was not
manifested until Ard confessed; she was immediately arrested, and then she was in custody.
                                                        10
                 3.       The Suppression Hearing

        The trial court also could weigh the contents of the recorded interview against Miles’

credibility at the suppression hearing. Miles testified first and told the court he was “scared” when

Salazar asked his girlfriend to leave the room. Miles stated he felt the detective got in his “personal

space” when the detective moved to sit closer to and directly opposite him. When Salazar moved

to sit directly across from him, Miles, seated on the couch in his own apartment, stated that he felt

“like [he] was getting arrested at that point.” He continued, “[I was] scared like I was backed up

into a corner like a dog.” 10 He felt Salazar “was lying about everything” when the detective told

him that he had DNA samples and surveillance footage from the parking lot. Miles told the trial

court that he felt compelled to tell Salazar “what he wanted to hear” “so [he] could get it over

with.” He also believed that he was in custody.

        Miles described Salazar as wearing a “suit” and stated that the other detective “looked like

he was all ready for a gun battle, had every kind of gun on him, handcuffs, everything.” However,

these descriptions were belied by Salazar’s body-camera recording, and on cross-examination,

Miles conceded that both detectives were in khaki pants and short-sleeved Polo shirts.

Additionally, Miles agreed that he told the officers he had been expecting them. Miles also

confirmed that Salazar did not draw a weapon, threaten him with violence, handcuff him, promise

any benefits for what he told the detective, or arrest him.




10
  From the recording of the interview, Salazar sat next to Miles, within a foot or less. When he moved to sit on an
ottoman across from Miles, he was a similar distance away, if not a bit farther.
                                                        11
       Whether consciously or not, Miles made an inculpatory admission in the course of his

interview with Salazar. Even so, “[a]lthough a reasonable person would have realized the

incriminating nature of [his] admission, no other factors indicating police control over [Miles]

existed to lead a reasonable person to believe that he was under arrest.” Wilson v. State, 442

S.W.3d 779, 786 (Tex. App.—Fort Worth 2014, pet. ref’d) (holding “[p]robable cause alone does

not automatically establish custody; other circumstances must also combine to lead a reasonable

person to believe that he is not free to leave and is under arrest”). Miles voluntarily made the

admission while in the comfort and safety of his own apartment, and he was free to suspend the

interview at any time.

       Other than Beckwith, other cases we have found which contemplate whether one was in

custody involve police department or jailhouse questioning. For example, in Garza v. State, 34

S.W.3d 591 (Tex. App.—San Antonio 2000, pet. ref’d), the defendant voluntarily accompanied

law enforcement to the police station. Id. at 594. The questioning then lasted about four hours.

Id. Garza was questioned by several different officers, who accused him of murdering his wife.

Garza gave two statements, the second confessing to the murder. Yet, he never asked to leave the

station. He was told at least three times during the interrogation that he was free to leave at any

time, and he was told this after confessing to the killing, but before signing the written statement.

Id. at 596–97. After signing a written version of his confession, he was taken home. Id. at 597.

The Court of Appeals agreed with the trial court that “a reasonable person in Garza’s situation

would have considered himself free to terminate the interview and leave” and that “the

interrogation was not custodial.” Id. at 598.

                                                 12
         Similarly, in Ervin v. State, 333 S.W.3d 187 (Tex. App.—Houston [1st Dist.] 2010, pet.

ref’d), the suspect voluntarily went to the police station with officers and gave them her car keys

and car to be searched. Id. at 205–06. She was taken to the station in a marked police car, because

no unmarked vehicles were available. Id. at 207. She was not handcuffed, and the detective

testified she would have been allowed to leave if she had asked. Id. at 206–07. She was also told

by a detective that “she was not under arrest and she was free to go anytime she wanted to.” Id. at

207. Over questioning lasting about four hours, Ervin gave two written statements. In the second

statement, she acknowledged being the driver in the capital murder being investigated. Id. at 211.

Although probable cause then arose to arrest Ervin, she was still allowed to go home. Id. Ervin’s

statements were held to be non-custodial. Id. at 211–12.

         Based on the record before us, we find Miles was not in custody when Detective Salazar

interviewed him. Given the circumstances, Miranda warnings were not required. As a result, we

overrule Miles’ first point of error.

III.     No Error in Admission of Photograph of Miles at Punishment

         Miles next complains that the trial court erred in admitting into evidence, in the punishment

phase, a nude “selfie” or photograph that Miles took of himself in a bathroom mirror. This photo

was admitted along with an ad Miles posted on an internet dating site seeking to meet women for

sexual relations. Because we find the photo relevant to the matter of sentencing, we overrule

Miles’ second point of error. 11


11
  Miles’ appellate brief also argues the photo, even if relevant, was inadmissible because it could only have relevance
as evidence of character conformity. Miles did not make this objection to the trial court, and we will not consider it.
See TEX. R. APP. P. 33.1.
                                                         13
       A.      Standard of Review

       We review a trial court’s decision to admit or exclude evidence for an abuse of discretion.

Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). Abuse of discretion occurs only

if the decision is “so clearly wrong as to lie outside the zone within which reasonable people might

disagree.” Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008); Montgomery v. State,

810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g). We may not substitute our own

decision for that of the trial court. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).

We will uphold an evidentiary ruling if it was correct on any theory of law applicable to the case.

De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).

       B.      Analysis

       “[T]he question at punishment is not whether the defendant has committed a crime, but

instead what sentence should be assessed.” Thompson v. State, 425 S.W.3d 480, 491 (Tex. App.—

Houston [1st Dist.] 2012, pet. ref’d) (alteration in original) (quoting Haley v. State, 173 S.W.3d

510, 515 (Tex. Crim. App. 2005)); see also Ellison v. State, 201 S.W.3d 714, 718 (Tex. Crim. App.

2006). Under Article 37.07 of the Texas Code of Criminal Procedure, any evidence that the trial

court “deems relevant to sentencing” is admissible during the punishment phase of a trial. TEX.

CODE CRIM. PROC. ANN. art. 37.07(3)(a)(1) (West 2018); Sims v. State, 273 S.W.3d 291, 295 (Tex.

Crim. App. 2008). If the evidence “will assist the fact[-]finder in deciding the appropriate sentence

in a particular case,” it is relevant to determining punishment. Sims, 273 S.W.3d at 295 (citing

Mendiola v. State, 21 S.W.3d 282, 285 (Tex. Crim. App. 2000)).



                                                 14
       During punishment, the State offered a frontal nude photo of Miles that he had taken of

himself in a bathroom mirror. The State presented testimony from Lisa Lozada, a former girlfriend

of Miles, who authenticated the photograph. Lozada also testified she had seen other similar

photos of Miles on his cell phone during their relationship. Miles objected to the photo, claiming

it was not relevant. The State answered Miles’ objections to the relevancy of the photo by arguing

it was “relevant . . . given the sexual nature of this particular offense.” The State continued, “And

again, it goes back to the same thing. I think sexual-wise, I’m saying about these Craigslist

advertisements, they tell this jury an awful lot about this Defendant, and they’re the ones being

asked to specifically tailor a punishment.”

       We find admission of the photo of Miles naked was within the zone of reasonable

disagreement as to punishment. Lozada described an abusive relationship with Miles which lasted

about four years. She described Miles choking and slapping her in the course of sexual relations.

Miles was “very aggressive” and said “things that [made] him dominant in the bedroom.” Miles,

Lozada said, thought inflicting pain on her in the sexual act “was a game.” While the photo was

not dated, Lozada had seen such photos on Miles’ phone during their relationship, and she had told

him not to send such photos to her because she did not like it. Lozada also testified that Miles

used her computer to place explicit personal ads seeking other sexual partners. These ads were

placed during or near the end of her relationship with Miles.

       The trial court could have concluded that the photo, in conjunction with the personal ads,

showed Miles was looking for sexual partners while still in a relationship with Lozada. Based on

Elinor’s description of the offense and Lozada’s descriptions of Miles’ abusive and violent

                                                 15
behavior toward her, the photo could be seen as evidence of Miles’ propensity to act as a sexual

predator, or one seeking sex partners with whom he would be violent. Given the offenses of which

Miles was convicted, we find that the photo of him naked was relevant to the jury’s sentencing

obligation. 12 As a result, we overrule Miles’ second point of error.

IV.      Conclusion

         The trial court’s judgment is affirmed.




                                                      Scott E. Stevens
                                                      Justice

Date Submitted:            February 22, 2019
Date Decided:              May 22, 2019


Do Not Publish




12
  We find support for this holding in Baird v. State, 379 S.W.3d 353 (Tex. App.—Waco 2012), aff’d, 398 S.W.3d 220
(Tex. Crim. App. 2013). After being convicted of possession of child pornography the State offered as punishment
evidence

         photographs of Baird in bondage and sadomasochistic poses similar to poses of children in Baird’s
         child pornography photographs; photographs of nude young men engaging in sexual conduct in
         camping situations; Baird’s nonsexual photographs of actual boy scouts on camping trips (Baird
         was a scout leader); internet chat sessions regarding sexual activity, including wearing sexual
         devices, and meeting for sex.

Id. at 359. The Waco Court of Appeals found admission of this evidence to be within the zone of reasonable
disagreement. Baird argued the evidence consisted of “constitutionally protected homosexual conduct,” but the court
observed that “[s]uch evidence may be admissible if it is shown to be relevant to the issues involved in the case.” Id.
at 359, 360.
                                                         16
