                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-11-00372-CR
                                No. 10-11-00373-CR
                                No. 10-11-00374-CR
                                No. 10-11-00375-CR
                                No. 10-11-00376-CR

MARK ANTHONY APONTE,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                       From the 52nd District Court
                          Coryell County, Texas
      Trial Court Nos. FISC-10-20148; FISC-10-20149; FISC-10-20150;
                    FISC-10-20151; and FISC-10-20152


                        MEMORANDUM OPINION


      Although charged with aggravated sexual assault by five separate indictments,

Mark Anthony Aponte was found guilty of lesser included offenses: two offenses of

sexual assault, appellate case numbers 10-11-00373-CR and 10-11-00374-CR, and three

offenses of indecency with a child, appellate case numbers 10-11-00372-CR, 10-11-00375-
CR, and 10-11-00376-CR. See TEX. PENAL CODE ANN. §§ 21.11, 22.011 (West 2011). He

was sentenced to five years in prison for each of the two sexual assault convictions and

five years in prison with the sentence suspended and community supervision imposed

for each of the indecency convictions. The victim in each offense was D.K.1

          Because the trial court did not abuse its discretion in admitting certain evidence

over a Rule 403 objection, we affirm.

RULE 403 BALANCING

          In one issue, Aponte argues the trial court abused its discretion in admitting

extraneous evidence of pornography, specifically testimony from D.K. and a State’s

evidentiary exhibit, during the guilt phase of Aponte’s trial because the danger of unfair

prejudice substantially outweighed the probative value of the evidence introduced. See

TEX. R. EVID. 403.

          A trial court's Rule 403 decisions are reviewed for an abuse of discretion. State v.

Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005); Moreno v. State, 858 S.W.2d 453, 463

(Tex. Crim. App. 1993). A reversal will occur only if the trial court's decision is outside

the zone of reasonable disagreement. Salazar v. State, 38 S.W.3d 141, 150 (Tex. Crim.

App. 2001).

          Evidence may be excluded under Rule 403 if the danger of unfair prejudice

substantially outweighs the probative value of the evidence. TEX. R. EVID. 403. Rule 403


1   D.K. was the pseudonym used for the victim in the indictments.

Aponte v. State                                                                         Page 2
favors admission of relevant evidence and carries a presumption that relevant evidence

will be more probative than prejudicial. Allen v. State, 108 S.W.3d 281, 284 (Tex. Crim.

App. 2003); Jones v. State, 944 S.W.2d 642, 652-53 (Tex. Crim. App. 1996). The trial court

has broad discretion in conducting a Rule 403 balancing test, and we will not lightly

disturb its decision. Allen, 108 S.W.3d at 284. All testimony and physical evidence are

likely to be prejudicial to one party or the other. Davis v. State, 329 S.W.3d 798, 806 (Tex.

Crim. App. 2010); Jones, 944 S.W.2d at 653. It is only when there exists a clear disparity

between the degree of prejudice of the offered evidence and its probative value that

Rule 403 is applicable. Id.

       A proper Rule 403 analysis by either the trial court or a reviewing court includes

balancing the following factors: (1) the inherent probative force of the proffered item of

evidence—that is, how strongly it serves to make more or less probable the existence of

a fact of consequence to the litigation—along with (2) the proponent's need for that

evidence against (3) any tendency of the evidence to suggest a decision on an improper

basis, (4) any tendency of the evidence to confuse or distract the jury from the main

issues, (5) any tendency of the evidence to be given undue weight by a jury that has not

been equipped to evaluate the probative force of the evidence, and (6) the likelihood

that presentation of the evidence will consume an inordinate amount of time or merely

repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-642 (Tex.

Crim. App. 2006); Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004).            See


Aponte v. State                                                                        Page 3
Cressman v. State, No. 10-11-00393-CR, 2012 Tex. App. LEXIS 9849, *8-10 (Tex. App.—

Waco Nov. 29, 2012, no pet.) (not designated for publication).

       D.K.’s Testimony

       D.K. testified that Aponte began sexually abusing her when she was about four

years old. The abuse started with Aponte touching her on the outside of her vagina. It

progressed to touching her vagina with his tongue and penetration of her vagina with

his finger and with his penis. He also penetrated her anus with his penis and had her

perform oral sex on him. At a hearing outside the presence of the jury, D.K. testified

that she periodically watched pornography on Aponte’s computer with him from the

time she was four until she was fifteen years old. Over Aponte’s Rule 403 objection, the

trial court allowed D.K. to testify before the jury about watching pornography on

Aponte’s computer.

       403 Review

       D.K’s credibility was attacked early in the proceeding. Aponte’s theory of the

case, pointed out to the jury in his opening statement, was that there were many

inconsistencies in D.K.’s story about the extent of the sexual assaults and her age range

of when the specific types of assaults began. He also informed the jury that D.K. had

sought out others on Facebook who had also allegedly been sexually assaulted and who

described their assaults to D.K., insinuating that D.K. used this information to fabricate

the abuse because the report of abuse came after Aponte threatened to take away D.K.’s


Aponte v. State                                                                     Page 4
online social community. Thus, D.K.’s testimony regarding the pornographic images

shown to her was probative, making more probable that the abuse occurred and was

needed by the State to aid with rehabilitating D.K.’s credibility.

       The tendency for D.K.’s testimony to confuse or distract the jury from the main

issue, that being Aponte’s alleged sexual assaults of D.K., was minimal. The existence

of pornography, either on D.K.’s computer, Aponte’s computer, or video tapes left at

the house by Aponte’s now deceased father, was mentioned, at least briefly, by just

about every witness produced at trial and was clearly a theme in the case used by both

sides. Although the trial court offered during the hearing outside the presence of the

jury to give an extensive limiting instruction after D.K.’s testimony regarding the

pornography viewed, when the time came, Aponte did not request that one be given.

The offered limiting instruction was, however, given in the court’s charge to the jury.

The instruction limited the jury’s use of D.K.’s testimony to determining Aponte’s state

of mind and D.K.’s state of mind and the past and subsequent relationship between

Aponte and D.K. to aid the jury in passing on the question of whether the acts alleged

and elected by the State actually occurred. Thus, the jury was equipped to evaluate the

probative force of the evidence.     Further, D.K.’s testimony about the pornography

viewed with Aponte did not take an inordinate amount of time to develop: only three

out of over 100 pages of her testimony.




Aponte v. State                                                                   Page 5
       Accordingly, balancing the necessary factors, we find the probative value of the

evidence was not substantially outweighed by the danger of unfair prejudice, and the

trial court did not abuse its discretion in admitting D.K.’s testimony over Aponte’s Rule

403 objection.

       Exhibit 9

       Kirby Culp, a detective with the McLennan County Sheriff’s Department, was

provided computers and other electronic items from Aponte’s home to search for

evidence relating to sexual abuse or child pornography. He found images on a Dell

laptop computer depicting young women posing in various stages of dress or engaged

in sexual acts. The file name where these images were located was “nubiles” which is

commonly used to identify pornography involving young girls.             He also found

indications that video and image files likely depicting pornographic content had been

stored on and viewed from a removable disk. Culp further located and bookmarked 17

database files containing a web browser history which had to do with pornography.

       On a Power Spec PC, Culp found a folder in the “root” directory entitled “Mark’s

documents.” Also in the root directory was a folder that contained images of persons

engaged in sexual acts. Within the file names of that folder were terms such as “12-

year-old,” “teenager,” “teen,” and “Lolita” which are terms commonly included in file

names that contain child pornography.         In Culp’s opinion, those images were

intentionally stored in the folder.   It was also Culp’s opinion that someone had


Aponte v. State                                                                    Page 6
attempted to delete or format over that folder. Culp also located “Google” searches for

terms such as “daddyswhores” on this computer.

       Culp also examined the hard drive of a Matrix computer. It appeared that files

on a removable disk containing pornographic content had also been viewed using this

computer. There were indications that the removable disk was the same or very similar

to the one used on the Dell laptop. Culp discovered that a second hard drive had been

installed on the Matrix computer that likely contained files with pornographic images

in them. He found additional images depicting persons engaged in sexual acts or posed

in various states of undress on the computer’s original hard drive located in a “cache”

folder with a Firefox web browser. Google searches for similar terms as on the Power

Spec PC were located on the Matrix computer as well.

       Later, Culp searched the Power Spec PC again using a different program. He

located more pornographic images that he had not previously discovered. Some of

those images were what Culp believed to be child exploitation.          He placed these

particular images on a disk which was offered as State’s Exhibit 9.

       These images, as well as others, were the subject of a hearing outside the

presence of the jury, separate from the hearing regarding D.K’s testimony, pursuant to

another Rule 403 objection. The trial court heard testimony from Culp, argument from

counsel, and viewed the disputed images. After conducting the Rule 403 balancing test,

the trial court overruled the objection as to the images on State’s Exhibit 9. At the time


Aponte v. State                                                                     Page 7
of its offering into evidence, Aponte renewed his Rule 403 objection. The trial court

admitted State’s Exhibit 9 with the following instruction:

                …you are instructed that if there is any testimony before you with
        this witness in this case regarding the defendant having committed other
        acts other than the offenses alleged against [him] in the indictments tried
        in this cause, that you cannot consider such other acts, if any, unless you
        first find beyond a reasonable doubt that the defendant committed such
        acts, if any; but if you do not believe so, or you have a reasonable doubt
        thereof, you will not consider such evidence for any purpose. You are
        further instructed that you cannot consider State’s Exhibit No. 9 unless
        you believe beyond a reasonable doubt that the defendant possessed the
        pictures, if he did; even then you may use the evidence only to consider it,
        if at all, in determining the state of mind of the defendant and the child
        and the previous and subsequent relationship between the defendant and
        the child, not as any proof that the defendant is guilty of the indictment’s
        charged offenses.

The jury was then allowed to view the exhibit. 2                   A substantially similar limiting

instruction was provided to the jury in the court’s charge.


2 The “exhibit” included in the reporter’s record is a disc with a total of 208 images in individually
numbered “jpg” files under a file folder labeled “09-285 Report-Suspected Child Exploits.” The images
that were the subject of the objection were included under this electronic file label. But on the disc, there
is no indication of which of these images comprise the images included in/on Exhibit 9. Some images,
including some of the disputed images, are duplicated within this file. Only by reviewing the images on
the disc and the reporter’s record at the same time have we been able to identify the specific images that
were admitted as Exhibit 9 and about which the present complaint was made. We caution trial counsel
for all parties and the trial courts that electronic files on appeal are very difficult, read that as time
consuming, to work with in determining what constitutes an admitted or excluded exhibit especially
when it contains multiple electronic files. The problem is multiplied if some files on the same disc, or
other electronic media, are not admitted when others are admitted. This problem also presents issues of
publication to the jury as well as the jury having access during deliberation to all of the admitted exhibits
but not the excluded exhibits. These problems can be easily eliminated if the electronic files, whether
images, video, or documents, that are admitted are copied or moved to one disc for the jury to use during
deliberation and which then comes up on appeal; likewise, those files that are excluded are copied or
moved to another disc which comes up on appeal but which does not go to the jury. In this particular
case, we note that this could have been easily done by reference to the label of each electronic file on the
disc index that was either admitted or excluded. Particular attention also needs to be made to the
“viewability” of the exhibit by the appellate court. No exhibit should require proprietary software to

Aponte v. State                                                                                       Page 8
403 Review

       As stated previously, D.K’s credibility was attacked early in the proceeding and

continually throughout the trial. The credibility of her mother, to whom D.K. made her

initial outcry, was also attacked.       Thus, State’s Exhibit 9, containing pornographic

images found on Aponte’s computer, was probative, by establishing the nature of the

relationship between D.K. and Aponte, thus making more probable that the abuse

occurred and was needed by the State to aid with rehabilitating the State’s primary

witnesses. Further, there was only a limited possibility or tendency for the exhibit to

confuse or distract the jury from the main issue, that being Aponte’s alleged sexual

assaults of D.K. As previously discussed, the existence of pornography was mentioned

throughout the trial and was clearly a theme in the case used by both sides. The trial

court gave a thorough limiting instruction prior to the publication of the exhibit to the

jury. A substantially similar limiting instruction was given in the court’s charge to the

jury. Thus, the jury was equipped to evaluate the probative force of the exhibit. Finally,

the time necessary for the introduction of the exhibit took about 100 pages of testimony

to develop. This is not an insignificant amount of time, but it was not all just about the

introduction of this single exhibit. However, in relation to the overall length of the trial,

that being eight days from start to finish, 100 pages was not an inordinate amount of




review. These issues are extremely important now and will become even more important as we move to
e-filing of the record and briefs.

Aponte v. State                                                                            Page 9
time for the development of the evidence, including that specifically related to the

introduction of Exhibit 9.

       Aponte relies on this Court’s opinion in Thrift to argue that the trial court abused

its discretion in permitting the introduction of State’s Exhibit 9 over a Rule 403

objection. See Thrift v. State, 134 S.W.3d 475 (Tex. App.—Waco 2004), aff’d on other

grounds, 176 S.W.3d 221 (Tex. Crim. App. 2005). Thrift should be limited to its facts, and

those facts are distinguishable. In Thrift, the evidence was offered to show intent which

this Court determined was not in dispute; thus the evidence could not pass a Rule 403

balancing test. Here, the evidence was offered to show the state of mind of Aponte and

D.K. and to show their past and present relationship. Thus, Thrift is not on point, and

we will not follow the holding of Thrift in this case.

       Accordingly, balancing the necessary factors, we find the probative value of the

evidence was not substantially outweighed by the danger of unfair prejudice, and the

trial court did not abuse its discretion in admitting State’s Exhibit 9 over Aponte’s Rule

403 objection.

CONCLUSION

       Aponte’s sole issue is overruled, and the trial court’s judgment is affirmed.




                                           TOM GRAY
                                           Chief Justice



Aponte v. State                                                                        Page 10
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       (Justice Davis concurs without a separate opinion)
Affirmed
Opinion delivered and filed July 11, 2013
Do not publish
[CR25]




Aponte v. State                                             Page 11
