Opinion filed August 5, 2010




                                            In The


   Eleventh Court of Appeals
                                          __________

                                    No. 11-09-00163-CR
                                        __________

                        TEDDY EUGENE MORRIS, Appellant

                                               V.

                               STATE OF TEXAS, Appellee


                          On Appeal from the 132nd District Court

                                     Scurry County, Texas

                                  Trial Court Cause No. 9442


                           MEMORANDUM OPINION

       The jury convicted Teddy Eugene Morris of possession of child pornography. Upon
appellant’s plea of “true” to two felonies alleged for enhancement purposes, the jury assessed his
punishment at confinement in the Institutional Division of the Texas Department of Criminal
Justice for a term of eighty years. Appellant challenges his conviction in a single issue. He
contends that the admission, during the guilt/innocence phase of trial, of nine photographs
recovered from his cell phone depicting naked adult females violated TEX. R. EVID. 404(b) and
403. We affirm.
                                        Background Facts
       The State alleged that appellant possessed child pornography based upon his possession
of twenty-seven pictures on his cell phone depicting his fourteen-year-old niece in various stages
of undress. The pictures were discovered when appellant sent three of them to Heather Clark, his
niece’s teacher and coach.      Clark reported the three pictures sent to her by appellant to
Detective Keith Ward of the Snyder Police Department. Detective Ward obtained the additional
twenty-four pictures depicting appellant’s niece from appellant’s cell phone. Detective Ward
also obtained several pictures of other naked females from appellant’s cell phone.
       During the defense’s opening statement, appellant’s trial counsel told the jury that
appellant only possessed the naked pictures of his niece because he wanted to help her. In this
regard, Clark testified that, on a previous occasion, appellant informed her that his niece was
“sending pictures to boys, and that she was doing bad things.” Appellant’s niece told Clark that
she did not know what appellant was talking about on this occasion. On a later occasion,
appellant told Clark that he had some letters that his niece had written “explaining what she had
been doing.” Appellant’s niece told Clark that appellant made her write these letters. On a
subsequent occasion, appellant showed Clark naked pictures of a blond girl on his cell phone.
Appellant’s niece denied to Clark that the pictures on appellant’s phone were of her. Appellant
later asked Clark if he could send her some “bad” pictures to her cell phone. He subsequently
sent Clark three naked pictures of his niece.
       Appellant’s niece testified that appellant made her take the naked pictures of herself. He
forced her to take the pictures by threatening to tell on her to her father.         Appellant also
threatened to have her sent to an alternative school.
                                        Standard of Review
       We review a trial court’s decision regarding the admissibility of evidence under an abuse
of discretion standard. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). Appellate
courts will uphold a trial court’s admissibility decision when that decision is within the zone of
reasonable disagreement because trial courts are in the best position to decide questions of
admissibility. Id. An appellate court may not reverse a trial court’s decision regarding the
admissibility of evidence solely because the appellate court disagrees with the decision. Id. A
trial court abuses its discretion when its decision lies outside the zone of reasonable
disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991).

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                                              Analysis
       In addition to the twenty-seven naked pictures of his niece, appellant also had
approximately thirty-five pictures of other naked females on his cell phone. The State sought to
offer these pictures of other females during Detective Ward’s testimony. The State asserted that
these pictures were relevant because they refuted appellant’s trial counsel’s assertion during his
opening statement that appellant’s possession of the pictures of his niece occurred because he
was trying to help her. Appellant objected to the admission of the pictures of other females on
the basis that they were not relevant and that they would be “highly prejudicial.”
       The trial court inspected the additional pictures in camera prior to making a ruling. The
trial court subsequently announced its determination that the additional pictures were relevant to
rebut appellant’s defensive theory that he was trying to help his niece. However, the trial court
determined that only nine of the additional pictures were admissible because the prejudicial
effect of the other twenty-six pictures outweighed their probative value. In this regard, the trial
court stated that the nine pictures that it was going to allow into evidence were no more
prejudicial than the photographs of appellant’s niece because they contained similar depictions.
At the time the nine pictures were admitted into evidence before the jury, the trial court orally
gave a limiting instruction that the pictures were only to be considered for the purpose of
rebutting the defensive theory that appellant was trying to help his niece by possessing the
pictures of her. The trial court also gave the same limiting instruction in the court’s charge.
       Texas Rule of Evidence 404(b) prohibits the admission of evidence of extraneous
offenses committed by the defendant for the purpose of proving that, on the occasion in question,
the defendant acted in conformity with the character demonstrated by the other bad acts.
Santellan v. State, 939 S.W.2d 155, 168 (Tex. Crim. App. 1997).             However, evidence of
extraneous offenses is admissible if it is relevant to a fact of consequence apart from the
tendency to show conduct in conformity with character. See Casey v. State, 215 S.W.3d 870,
879 (Tex. Crim. App. 2007). Further, evidence of extraneous offenses is admissible under
Rule 404(b) when it is offered to rebut an affirmative defense or a defensive issue that negates
one of the elements of the crime. Id.
       Appellant’s trial counsel promoted the theme during his opening statement that appellant
only possessed the naked pictures of his niece because he was trying to help her. A defense
opening statement may open the door to the admission of extraneous offense evidence to rebut a

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defensive theory presented in the opening statement. See Bass v. State, 270 S.W.3d 557, 563
(Tex. Crim. App. 2008). It is significant to note that trial counsel made his opening statement
immediately after the State made its opening statement. As the court pointed out in Bass,
“[w]hen, as here, the defense chooses to make its opening statement immediately after the State’s
opening statement, the State may reasonably rely on this defensive opening statement as to what
evidence the defense intends to present and rebut this anticipated defensive evidence during its
case-in-chief as opposed to waiting until rebuttal.”       Id. at n.7.    Appellant’s trial counsel
continued to promote this theme throughout trial. We conclude that the trial court did not abuse
its discretion in determining that the nine pictures depicting adults in similar poses as those
depicted in the pictures of appellant’s niece rebut the defensive theory that appellant only
possessed the pictures for the purpose of trying to help her.
       Having determined that the evidence was admissible under Rule 404(b), we must next
consider whether or not the evidence, although relevant and, therefore, admissible, should have
been disallowed due to the probative value of the evidence being substantially outweighed by the
danger of unfair prejudice under Rule 403. There is a presumption that evidence that is deemed
to be relevant is admissible. See Casey, 215 S.W.3d at 879. Evidence is unfairly prejudicial when
it tends to have some adverse effect upon the defendant beyond tending to prove the fact or issue
that justifies its admission into evidence.     Id.   In conducting the balancing test regarding
admissibility, the trial court must balance (1) the inherent probative force of the proffered item of
evidence along with (2) the proponent’s need for that evidence against (3) any tendency of the
evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse
or distract the jury from the main issue, (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
repeat evidence already admitted. Id. at 880.
       Having reviewed all of the pictures obtained from appellant’s cell phone, we find that the
nine pictures of naked adult females that the trial court admitted into evidence were probative to
rebut appellant’s defensive theory that he was trying to help his niece. The State, as proponent
of the evidence, needed this evidence to rebut appellant’s defensive theory. We note in this
regard that the applicable provisions of the Penal Code provide an affirmative defense if the
possession of child pornography was for “a bona fide educational, medical, psychological,

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psychiatric, judicial, law enforcement, or legislative purpose.”       TEX. PENAL CODE ANN.
§ 43.25(f)(2) (Vernon Supp. 2009), § 43.26(c) (Vernon 2003). With regard to the prejudicial
effect of the additional pictures, the trial court excluded the majority of them based upon its
determination that the depicted images were more graphic than those depicted in the pictures of
appellant’s niece. Furthermore, the trial court gave both oral and written limiting instructions to
the jury regarding the challenged pictures. Lastly, the time involved in presenting the challenged
pictures was minimal. When all of these factors are viewed in toto, we find no abuse of
discretion by the trial court in overruling appellant’s Rule 403 objection. See Montgomery, 810
S.W.2d at 391. Appellant’s sole issue is overruled.
                                       This Court’s Ruling
        The judgment of the trial court is affirmed.




                                                             TERRY McCALL
                                                             JUSTICE


August 5, 2010
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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