      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-06-00386-CR



                               Emory Leon Bitterman, Appellant

                                                 v.

                                  The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
            NO. 59101, HONORABLE JOE CARROLL, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A Bell County jury convicted appellant Emory Leon Bitterman of sexual assault, a

second-degree felony. See Tex. Penal Code Ann. § 22.011(a)(2)(C), (c)(1), (f) (West Supp. 2006).

The jury sentenced him to the maximum penalty: twenty years’ imprisonment with a fine of

$10,000. Bitterman seeks reversal of the judgment, arguing that the trial court erred in admitting

certain evidence during sentencing, and seeks modification of the judgment, arguing that the trial

court did not have the power to order parole conditions. We will modify the judgment and

affirm it as modified.


                                         BACKGROUND

               In late June 2005, the complainant, M.E., who was sixteen years old, enrolled at the

American Preparatory Institute at Central Texas College in Killeen in order to earn extra high school

credits for early graduation. His instructor at the institute was Bitterman, who took an interest in
M.E. and attempted to befriend M.E. He obtained M.E.’s phone number from school records and

began to call him repeatedly. Two weeks after meeting M.E., Bitterman began engaging in sexual

conversations with M.E., including conversations about M.E.’s sexual orientation and whether he

had ever watched “gay porn.” On July 21, the two went to a local Denny’s for lunch. M.E. testified

that on the drive back to school, Bitterman touched his leg and asked him to masturbate in his

presence, providing M.E. with a roll of paper towels already in the car, and M.E. complied. Exactly

one week later, Bitterman took M.E. to his home after class. M.E. testified that Bitterman was going

to show him the answers to an upcoming test. Bitterman retrieved and displayed the answers on his

computer and then, M.E. testified, displayed homoerotic pornography on his computer to M.E.

According to M.E., Bitterman then became aggressively “overly sexual” and proceeded to perform

oral sex on M.E. three times. M.E. testified that he and Bitterman engaged in further similar

encounters, resulting in Bitterman performing oral sex five more times on M.E., including one time

on August 11. Around October 3, Bitterman gave M.E. a compact disc and a floppy diskette of

pornography for his upcoming seventeenth birthday. M.E. testified that on this occasion Bitterman

again performed oral sex on him.

               After the last sexual episode, M.E. testified that he told Bitterman to leave him alone

in no uncertain terms. Shortly thereafter, two of Bitterman’s other students accused him of

attempting to sexually assault them; he was incarcerated for two months awaiting trial. Upon release

after receiving deferred adjudication, he resumed contact with M.E. over the phone. Each time, M.E.

testified, he told Bitterman to leave him alone. Bitterman, however, visited the grocery store where

M.E. worked in Salado in December 2005, bought a single slice of ham, and waited around for M.E.



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until M.E. told him to leave. M.E. later called Bitterman and, in an attempt to get Bitterman to

finally leave him alone, said that he used drugs—an activity reprehensible to Bitterman—and was

going to marry his girlfriend. Bitterman responded that M.E. should run off with him to Canada and

marry him instead. M.E. declined.

               Around December 18, 2005, M.E.’s mother began receiving phone calls from an

individual claiming to be an army recruiter who informed her that M.E. was doing drugs. M.E.

learned of the phone calls in January when his mother began checking his breath upon his return

home from work. Suspecting that the army recruiter was really Bitterman, M.E. contacted Bitterman

by phone and again asked to be left alone. Bitterman denied being the army recruiter but expressed

concern for M.E. and informed him that a letter had been sent to his house.

               On January 6, 2006, M.E.’s mother found a Christmas card in the mail addressed to

M.E. containing a handwritten letter signed by Bitterman. The contents of the letter were of such

a nature that she became worried that M.E. had been sexually assaulted. She first contacted the cell

phone number listed on the handwritten letter and spoke to Bitterman. At trial, she testified that

Bitterman’s voice sounded exactly the same as the supposed army recruiter. She then contacted local

law enforcement, who interviewed M.E. M.E. was initially very reluctant to mention anything

regarding his relationship with Bitterman, but after meeting privately with a police officer, finally

related to the officer the details of the August 11 encounter and signed a conforming written

statement. Bitterman was then indicted.

                Bitterman testified at trial and his story corroborated M.E.’s testimony concerning

the dates of the meetings and the non-sexual activities that occurred during those meetings.



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Bitterman denied both calling M.E.’s house posing as an army recruiter and performing oral sex on

M.E. Bitterman further testified that he did not ask M.E. to masturbate on July 21. Bitterman’s

version of the July 28 incident differed considerably from M.E.’s. He testified that M.E. asked him

to have sex and that he refused because M.E. was under-age. Additionally, Bitterman testified that

M.E., after asking to use the Internet, accessed the homoerotic web sites on his own and, after

viewing them, asked Bitterman for permission to masturbate in his house. Bitterman testified that

he gave permission but left the room so M.E. could have privacy. In Bitterman’s version of the early

October incident, M.E., after telling Bitterman about his engagement, again asked Bitterman to have

sex with him, which Bitterman again refused, though Bitterman did admit to providing the

pornographic computer disks. Bitterman also testified to a visit on October 12 in which M.E. came

over to his house to browse the Internet for pornography and to masturbate. At this visit, Bitterman

claims that he again gave M.E. permission but left the room so M.E. could have privacy.

               During the punishment phase of the trial, the State introduced several items of

pornography retrieved from Bitterman’s home in connection with the investigation. The items

introduced contained naked pictures of clearly underage males, including prepubescent boys. The

officer who executed the search warrant corroborated that the pictures came from Bitterman’s

immense pornographic collection.


                                          DISCUSSION

Irrelevant/Unfairly Prejudicial Evidence

               We first address Bitterman’s arguments concerning the admission of the child

pornography photographs during the sentencing phase of the trial. Bitterman argues that the

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evidence of his possession of child pornography at sentencing was irrelevant and should have been

excluded. See Tex. R. Evid. 401. Bitterman further argues that even if the evidence were relevant,

the unfair prejudice it could cause substantially outweighed its probative value and thus it should

have been excluded. See Tex. R. Evid. 403. When examining admission-of-evidence issues, we

review them for an abuse of the trial court’s discretion. Martin v. State, 173 S.W.3d 463, 467

(Tex. Crim. App. 2005). We will uphold the trial court’s evidentiary rulings as long as the rulings

were “at least within the zone of reasonable disagreement.” Id. (quoting Montgomery v. State,

810 S.W.2d 372, 391 (Tex. Crim. App. 1991)).

               Bitterman argues that there was no evidence presented indicating that he ever showed

these pieces of pornography to M.E. and cites Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim.

App. 1995), as support for the proposition that the evidence was thus irrelevant. Even if we were

to assume that Bitterman’s reading of Sonnier is correct, we can easily distinguish the situation in

that case from the present case. In Sonnier, the evidence complained of was introduced during the

guilt-innocence phase of the trial. See id. at 516 (noting that no additional evidence was introduced

at sentencing). Here, the evidence complained of—the particular articles of child pornography in

Bitterman’s possession—was admitted during the sentencing phase of the trial.

               During the sentencing phase, both the State and the defendant have the ability to offer

evidence “as to any matter the court deems relevant to sentencing.” Tex. Code Crim. Proc. Ann. art.

37.07, § 3(a)(1) (West 2006). Evidence that the court may deem relevant includes, “notwithstanding

Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act

that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or



                                                 5
for which he could be held criminally responsible, regardless of whether he has previously been

charged with or finally convicted of the crime or act.” Id. The possession of child pornography is

a crime, and evidence of its commission is thus relevant during sentencing. See Tex. Penal Code

Ann. § 43.26 (West 2003); Sanders v. State, 191 S.W.3d 272, 277 (Tex. App.—Waco 2006, pet.

ref’d), cert. denied, 127 S. Ct. 1141 (2007). Because extraneous crimes and bad acts are relevant

to the issue of the type of punishment that a convicted defendant should receive, the trial court did

not abuse its discretion in concluding that evidence demonstrating that Bitterman had committed an

uncharged crime was relevant at sentencing.

               Bitterman also argues that regardless of the child pornography’s relevance, its unfair

prejudice substantially outweighed its probative value in violation of Texas Rule of Evidence 403.

The court of criminal appeals has held that rule 403 objections must be analyzed using

a balancing test:


       [A] trial court, when undertaking a Rule 403 analysis, 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 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, 641–42 (Tex. Crim. App. 2006). The first two components

of the test explore the probative value of the evidence. See id. at 641. The inherent probative force

of the evidence is more than just whether the evidence is relevant; probative force is instead “how

strongly it serves to make more or less probable the existence of a fact of consequence to the

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litigation.” Id. A proponent’s need for a particular piece of evidence is reduced when the proponent

“has other compelling or undisputed evidence to establish the proposition or fact.” Id. (quoting

Montgomery, 810 S.W.2d at 390).

               The third factor of the test evaluates the “unfair prejudice” of the evidence. See id.

An improper basis for decision is “commonly, though not necessarily, an emotional one.” Id. (citing

Montgomery, 810 S.W.2d at 389). This improper emotional basis occurs when the evidence

“arouses the jury’s hostility or sympathy for one side without regard to the logical probative force

of the evidence.” Id. (citing 1 McCormick on Evidence § 185, at 737 (Kenneth S. Broun et al. eds.,

6th ed. 2006)) (emphasis added). Because Bitterman only complains of unfair prejudice and not any

of the other rule 403 considerations, we need only balance the first two parts of the test against the

third and need not consider the other three factors. See id. at 641–643 (demonstrating that the

remaining factors of the test do not concern unfair prejudice or probative value).

               The trial court could have reasonably concluded that the tendency for the evidence

in question to cause a decision on an improper basis did not outweigh the combined strength of its

inherent probative force and of the State’s need to introduce the evidence. The probative force of

the proffered item was strong. The evidence the State presented—magazines containing pictures of

naked underage boys obtained from Bitterman’s home—related directly to an essential element of

the alleged extraneous offence. The fact that the magazines were found in Bitterman’s home tended

to increase the probability that Bitterman had in fact committed the offense of possession of child

pornography, and as previously mentioned, the commission of the offense is a matter of consequence

at sentencing. The State’s need to admit the evidence in question was not particularly strong. While



                                                  7
introducing the actual child pornography strengthened the State’s assertion that Bitterman possessed

child pornography, the State also had the undisputed testimony of the officer who executed the

warrant. Because the pictures were to be used in addition to undisputed testimony relevant to the

same fact of consequence, the State’s need to introduce the pictures was reduced.

               There is no question that the evidence of which Bitterman complains could inflame

the jury, as the general public would consider the evidence—nude pictures of children—to be

extremely reprehensible.1 The general public, however, also considers reprehensible the act that the

State was trying to prove—the possession of child pornography. In reality any evidence, physical

or testimonial, presented to prove this extraneous crime would be prejudicial to Bitterman because

“[a]ll testimony and physical evidence will likely be prejudicial to one party or the other.”

Jones v. State, 944 S.W.2d 642, 652 (Tex. Crim. App. 1996). Our task is to instead look for unfair

prejudice. See Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim. App. 2002). Emotion that results

from understanding the true extent of the fact of consequence is simply emotion resulting from the

logical, probative force of the evidence; what we need to examine is the opposite, that is, emotion

that has no regard for the logical, probative force of the evidence.            See Gigliobianco,

210 S.W.3d at 641.




       1
           In this case, one could argue that the introduction of the photographs actually worked in
Bitterman’s favor. The word “pornography” usually conjures an image of persons engaged in sexual
acts. If the State had only introduced the testimony of the executing police officer and did not
provide the actual photographs, the jury could have assumed that the pictures showed children
engaged in sexual acts, which might have the potential to inflame the jury to a much greater extent
than pictures that only showed children in the nude.

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                While the potential prejudice that the admitted pictures could cause is high, the

potential unfair prejudice of admitting pictures is marginal at best because the pictures merely show

the commission of the extraneous offense. The trial court was thus well within the zone of

reasonable disagreement when it decided that the unfair prejudice did not substantially outweigh the

probative value. We hold then that the admission of the photographs was not an abuse of discretion

and overrule Bitterman’s point of error.


Parole Conditions

                We now address Bitterman’s arguments regarding the trial court’s imposition of

parole conditions. The trial court ordered Bitterman, as a condition of Bitterman’s parole, to pay all

court costs, the fees of his court-appointed attorney, his fine, and restitution to the victim. The State

agrees with the basic premise of Bitterman’s point of error: that the trial court had no power to

order these parole conditions. We also agree that the executive branch alone has the authority to

place conditions on parole and that, as a general rule, a court cannot order a parole condition. See

Tex. Gov’t Code Ann. § 508.221 (West 2004); Bray v. State, 179 S.W.3d 725, 729 (Tex. App.—Fort

Worth 2005, no pet.); McNeill v. State, 991 S.W.2d 300, 302 (Tex. App.—Houston [1st Dist.] 1999,

pet. ref’d, untimely filed).

                A trial court, however, can recommend parole conditions for the Board to consider.

See McNeill, 991 S.W.2d at 302. The State would have us change the order to a recommended

parole condition of payment of court costs, court-appointed attorney fees, and the assessed fine.

Bitterman instead argues that the order must be struck on two grounds.




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               First, Bitterman argues that orders erroneously imposing parole conditions must be

struck and relies on Jones v. State, No. 07-06-0155-CR, 2006 Tex. App. LEXIS 8121, at *4

(Tex. App.—Amarillo Sept. 13, 2006, no pet.) (mem. op., not designated for publication) (citing

Garcia v. State, 773 S.W.2d 694, 697 (Tex. App.—Corpus Christi 1989, no pet.)), as authority for

deleting the order entirely. Neither the Jones court nor the Garcia court, however, offered any

reason why they deleted the orders instead of reforming them to recommendations. It has been the

consistant practice of this Court when presented with orders erroneously imposing parole conditions

to follow the McNeill decision and reform them to read as recommended parole conditions. See, e.g.,

Davis v. State, No. 03-06-00370-CR, 2006 Tex. App. LEXIS 10328, at *2 (Tex. App.—Austin Dec.

1, 2006, no pet.) (mem. op., not designated for publication); Terrell v. State, No. 03-06-00250-CR,

2006 Tex. App. LEXIS 9780, at *13–14 (Tex. App.—Austin Nov. 10, 2006, no pet.) (mem. op., not

designated for publication); Rushin v. State, No. 03-06-00068-CR, 2006 Tex. App. LEXIS 6693, at

*10 (Tex. App.—Austin July 28, 2006, pet. ref’d) (mem. op., not designated for publication). As

the McNeill decision came after the Garcia decision and is now the practice of this Court, Bitterman

would need to present a convincing reason for us to deviate from the McNeill decision. Bitterman,

however, has failed to provide us with any reason, convincing or otherwise, why we should ignore

settled practice in favor of a procedure that he finds personally beneficial.

               Bitterman’s second ground for striking the order is that the Board of Pardons and

Paroles would not have the power in this case to make the payment of court-appointed attorney fees

and court costs a condition of parole. The Board of Pardons and Paroles has the power to impose,

as a condition of parole, any condition that a court could impose on a defendant placed on



                                                 10
community supervision. Tex. Gov’t Code Ann. § 508.221. The conditions that a court can impose

on a defendant under community supervision are quite broad; the court can impose “any reasonable

condition that is designed to protect or restore the community, protect or restore the victim, or

punish, rehabilitate, or reform the defendant.” Tex. Code Crim. Proc. Ann. art. 42.12, § 11(a)

(West 2006). Ordering the payment of court-appointed attorney fees, court costs, and the assessed

fine is included. Id. § 11(a)(8), (11). Bitterman argues that if this were a matter of court-ordered

community supervision, the trial court would not have been able to order the payment of court-

appointed attorney fees and court costs unless the court first determined that the defendant had the

ability to pay the fees. In support of this assertion, Bitterman cites the following statute:


       If the court determines that a defendant has financial resources that enable him to
       offset in part or in whole the costs of the legal services provided, including any
       expenses and costs, the court shall order the defendant to pay during the pendency
       of the charges or, if convicted, as court costs the amount that it finds the defendant
       is able to pay.


Id. art. 26.05(g) (West Supp. 2006). Because the trial court could not have ordered the payment of

those fees, Bitterman argues, the Board of Pardons and Paroles cannot either. According to

Bitterman, it would be improper for the trial court to recommend to the Board a parole condition that

it could not impose and the order must instead be struck.

               We need not decide whether the cited statute prohibits the Board of Pardons and

Paroles from imposing parole conditions regarding payment without a finding by the trial court to

determine ability to pay. Assuming without deciding that the Board is prohibited from making such

an order, it does not follow that it would be improper for the trial court to issue a recommendation



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on parole conditions regarding payment. A trial court’s recommendation is not an order; such a

recommendation imposes no obligation on anyone to observe it. Bitterman has not cited, and we

have not located, any authority that would prohibit a court from making a recommendation about

parole conditions in this situation. Officers and agencies of the State are presumed to act legally

unless the contrary is shown. See Ex parte Lefors, 303 S.W.2d 394, 398 (Tex. Crim. App. 1957);

Citizens of Tex. Sav. & Loan Ass’n v. Lewis, 483 S.W.2d 359, 366 (Tex. Civ. App.—Austin 1972,

writ ref’d n.r.e.). We must therefore presume that the Board of Pardons and Paroles will investigate

its legal ability to follow a particular court’s recommendation before doing so, rather than simply

rubber-stamping the trial court’s recommendation.

               Because both the State and Bitterman agree that the reformed judgment should omit

payment of restitution as a recommended condition of parole because the trial court determined that

no restitution was owed, we will modify the judgment to that extent and will modify the rest of the

ordered parole conditions to reflect that they are recommendations. Accordingly, we partially sustain

Bitterman’s issue.


                                         CONCLUSION

               Having sustained in part Bitterman’s point of error regarding the parole conditions

and having overruled the point of error regarding the admission of evidence at sentencing, we modify

the judgment of conviction by striking out the entire last paragraph, which reads, “PAROLE

CONDITION: DEFENDANT ORDERED BY COURT TO PAY COURT COSTS, ATTORNEY

FEES, FINES, AND RESTITUTION AS A CONDITION OF PAROLE,” and inserting the




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following in its place: “The court recommends that as a condition of parole the defendant pay court

costs, attorney fees, and fines.”

               As modified, we affirm the judgment of the trial court.




                                             Diane Henson, Justice

Before Chief Justice Law, Justices Puryear and Henson

Modified and, as Modified, Affirmed

Filed: August 28, 2007

Do Not Publish




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