Opinion filed June 9, 2016




                                    In The


        Eleventh Court of Appeals
                                   __________

                             No. 11-14-00157-CR
                                   __________

                NOAH DANIEL RODRIGUEZ, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee

                     On Appeal from the 142nd District Court
                             Midland County, Texas
                         Trial Court Cause No. CR39241

                      MEMORANDUM OPINION
      Appellant, Noah Daniel Rodriguez, appeals his jury convictions for
aggravated sexual assault of a child younger than fourteen years of age and
indecency with a child younger than seventeen years of age. TEX. PENAL CODE
ANN. §§ 22.021(a)(1)(B)(i), 21.11(a)(1) (West 2011 & West Supp. 2015). The jury
assessed Appellant’s punishment at confinement for a term of ten years in the
Institutional Division of the Texas Department of Criminal Justice and a fine of
$2,500 for the offense of aggravated sexual assault of a child. The jury assessed
Appellant’s punishment at confinement for a term of five years in the Institutional
Division of the Texas Department of Criminal Justice and a fine of $2,500 for the
offense of indecency with a child. The trial court ordered that the sentences are to
be served consecutively. In one issue on appeal, Appellant asserts that the trial court
committed reversible error when it refused to admit three photographs depicting the
child complainant’s mother engaged in an act with another woman that was similar
to an act allegedly committed by Appellant against the child complainant. We
affirm.
                                 Background Facts
      In 2010–2011, Appellant lived in Midland with his girlfriend, C.M., and her
two daughters, M.M. and J.W. Appellant’s convictions arise from sexual acts
alleged to have occurred with M.M. M.M. was six years old at the time. C.M.
worked as a dancer at a nightclub in Odessa, and for a few days, Appellant, C.M.,
and her daughters lived at the club as well. Appellant also worked at the same club
for a period of time. On one occasion, C.M. performed an act with another dancer
involving C.M. shining a flashlight onto the other dancer’s seminude buttocks.
Appellant’s issue on appeal concerns the trial court’s exclusion of three photographs
depicting this act performed by C.M.
      In 2011, Appellant and C.M. ended their relationship. C.M. and her daughters
moved to Stamford to live with C.M.’s mother. About three weeks after the move
to Stamford, M.M. made an outcry to her grandmother that Appellant had made her
watch “nasty movies” and told her to mimic the things she had seen in the video.
M.M. also told her grandmother that Appellant had inserted his finger inside her
vagina and had made her rub his penis. The next day, M.M. continued her outcry
and told her grandmother that Appellant had made her get “on all fours” and “spread


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her butt cheeks apart,” at which time Appellant took a flashlight and “played like he
was putting it in her butt.”
      Appellant was indicted for two counts of aggravated sexual assault of a child
and one count of indecency with a child. Count I alleged aggravated sexual assault
by Appellant digitally penetrating M.M.’s female sexual organ; Count II alleged
aggravated sexual assault by Appellant penetrating M.M.’s mouth with his sexual
organ; and Count III alleged indecency with a child by causing M.M. to touch
Appellant’s genitals. Thus, Appellant was not indicted for any offense involving the
use of a flashlight with M.M. The jury convicted Appellant of the offenses alleged
in Counts I and III, but it acquitted him of aggravated sexual assault as alleged in
Count II of the indictment.
                                      Analysis
      We review a trial court’s decision to admit or exclude evidence under an abuse
of discretion standard. Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App.
2006). We will not reverse a trial court’s ruling unless it falls outside the zone of
reasonable disagreement. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App.
2002). We will uphold the trial court’s ruling on the admission or exclusion of
evidence if the ruling was proper under any legal theory or basis applicable to the
case. See Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App. 2002).
      The excluded photographs show C.M. shining a flashlight on the buttocks of
a seminude female who is kneeling on a stage.          Appellant asserted that the
photographs were relevant to his defense and attempted to introduce them into
evidence. The defensive theory that Appellant advanced was that M.M. was exposed
to various sexual activities through her mother’s employment as a dancer at a
nightclub and that M.M. “had thereafter wrongfully morphed these experiences” into
allegations of sexual child abuse. Specifically, Appellant wanted to discredit the


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outcry that M.M. made to her grandmother that Appellant had made her “spread her
butt cheeks apart” and “played like he was putting [a flashlight] in her butt.” He
asserts that the exclusion of the photographs “essentially crippled his defensive
theory.”
      The trial court considered the admissibility of the three photographs at a
hearing outside the presence of the jury.         The prosecutor asserted that the
photographs should not be admitted on relevancy grounds because there was no
evidence that M.M. had witnessed the act depicted in the photographs.              The
prosecutor additionally asserted that the probative value of the photographs was “far
outweighed” by their prejudicial value. The prosecutor argued that Appellant sought
to offer the photographs to “embarrass and humiliate” C.M. and “to depict [C.M.] in
some kind of sexual way.” The trial court excluded the photographs on the basis
that their probative value was substantially outweighed by the danger of unfair
prejudice.
      Rule 403 of the Texas Rules of Evidence provides that relevant evidence may
be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury or by considerations of
undue delay or needless presentation of cumulative evidence. TEX. R. EVID. 403;
see Young v. State, 283 S.W.3d 854, 874 (Tex. Crim. App. 2009). A trial court is
presumed to have engaged in the required balancing test when Rule 403 was
invoked. Williams v. State, 958 S.W.2d 186, 195–96 (Tex. Crim. App. 1997) (citing
Santellan v. State, 939 S.W.2d 155, 173 (Tex. Crim. App. 1997)). An analysis under
Rule 403 includes, but is not limited to, the following factors: (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




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the evidence. Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012);
Shuffield, 189 S.W.3d at 787.
      We conclude that the trial court did not abuse its discretion in determining that
the photographs should be excluded under Rule 403. Given the fact that there was
no evidence that M.M. had witnessed the act depicted in the photographs, the
probative value, if any, of the photographs was minimal. Conversely, the potential
of the photographs to impress the jury in an irrational yet indelible way was great in
that the photographs depicted C.M. in a very negative light.
      Appellant contends that the photographs could not have been unduly
prejudicial because C.M. testified about the same conduct depicted in the
photographs. We disagree. This testimony occurred after the trial court excluded
the photographs. Additionally, Appellant’s trial counsel elicited this testimony in
questioning C.M. If anything, this subsequent testimony rendered harmless any
error by the trial court in excluding the photographs. See Anderson v. State, 717
S.W.2d 622, 628 (Tex. Crim. App. 1986) (“Inadmissible evidence can be rendered
harmless if other evidence at trial is admitted without objection and it proves the
same fact that the inadmissible evidence sought to prove.”).
      Appellant also asserts that the excluded photographs could not have been
unduly prejudicial because they were not as graphic as photographs subsequently
offered into evidence by the State that were obtained from Appellant’s computer and
depicted a fully naked woman. In this regard, Appellant did not object to the State’s
offer of these photographs into evidence. These photographs were admitted after
the trial court excluded the photographs that Appellant sought to offer. Furthermore,
these photographs did not depict C.M. Accordingly, we disagree with Appellant’s
contention that the subsequent admission of these photographs without objection




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from Appellant somehow rendered the trial court’s previous ruling erroneous. We
overrule Appellant’s sole issue on appeal.
                                   This Court’s Ruling
      We affirm the judgments of the trial court.




                                                     JOHN M. BAILEY
                                                     JUSTICE


June 9, 2016
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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