                                     In The

                              Court of Appeals
                   Ninth District of Texas at Beaumont
                            ____________________

                             NO. 09-15-00342-CR
                             NO. 09-15-00343-CR
                             NO. 09-15-00344-CR
                             NO. 09-15-00345-CR
                            ____________________

                  KENNETH RAY FERGUSON, Appellant

                                       V.

                  THE STATE OF TEXAS, Appellee
__________________________________________________________________

                 On Appeal from the 359th District Court
                       Montgomery County, Texas
          Trial Cause No. 15-06-06229-CR (Counts 1, 2, 3, and 4)
__________________________________________________________________

                         MEMORANDUM OPINION

      Appellant Kenneth Ray Ferguson pleaded guilty to four counts of possession

of child pornography. After a trial on punishment, the jury found Ferguson guilty

on all four counts and assessed punishment at ten years in prison on each count.

The trial court sentenced Ferguson to ten years of imprisonment on each count and

ordered the sentences to run consecutively. In a single appellate issue, Ferguson


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contends the trial court abused its discretion by allowing the State to introduce

extraneous offense evidence in violation of Rule 403 of the Texas Rules of

Evidence. We affirm the trial court’s judgments.

                                    Background

      A grand jury indicted Ferguson on four counts of possession of child

pornography. See Tex. Penal Code Ann. § 43.26(a) (West Supp. 2015). Ferguson

pleaded guilty before the jury to all four counts and elected to have the jury assess

punishment. During the punishment hearing, the State presented the testimony of

Captain Mark Seals of the Montgomery County Precinct 4 Constable’s Office to

show that Ferguson had downloaded videos containing child pornography from the

internet.

       Seals explained how he became involved in investigating child pornography

cases and about the training he received on the ARES peer-to-peer file sharing

network. Seals further explained that he uses the ARES network to search for child

pornography on the internet and that the program he uses finds images of child

pornography by recognizing the hash value. In September 2013, Seals was using

the law enforcement version of the ARES network when it identified an internet

protocol address that contained child pornography. According to Seals, an internet

protocol or IP address is the home address for your computer that is assigned by

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your internet service provider. Seals subpoenaed the internet service provider for

the IP address and learned that Ferguson was the subscriber who owned the IP

address. Based on the information obtained during his investigation, Seals obtained

a search warrant and conducted a search of Ferguson’s apartment that resulted in

finding a laptop computer containing child pornography.

      During Seals’s testimony, the State introduced into evidence four videos

containing child pornography that Ferguson had downloaded from the internet

using the ARES file sharing network. The State also introduced evidence showing

that the titles of the videos that Ferguson had downloaded included common search

terms that are used to find child pornography on the internet. Additionally, over

defense counsel’s objection, the trial court admitted a printout that was

automatically generated by the ARES program showing that there were additional

files on Ferguson’s computer that were of investigative interest.

      Special Agent Jeffery Chappell with Homeland Security Investigations

testified that he forensically examined Ferguson’s computer by copying the hard

drive and analyzing its contents. Chappell produced a report concerning the data he

analyzed on Ferguson’s computer and confirmed that the videos on Ferguson’s

computer contained images of child pornography. Based on his report, Chappell

created a list of the search terms that Ferguson used to search for files on the

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ARES network, and Chappell testified that those terms are used by people who are

looking for images of child pornography. According to Chappell, Ferguson

downloaded eighty-nine videos over an eight-day period, and it took Chappell

approximately four and a half hours to view all of the videos. Chappell created two

discs containing the eighty-nine videos of child pornography that he found on

Ferguson’s computer, and those discs were admitted into evidence without

objection.

      During the trial, the State played portions from six of the videos that

Chappell found on Ferguson’s computer. Before the prosecutor played the last

video, Ferguson’s counsel objected that playing any additional videos was

cumulative and more prejudicial than probative. After hearing the prosecutor’s

argument that he only intended to play six of the eighty-nine videos that Ferguson

downloaded, and that the additional video was different because it was more

offensive, the trial court overruled defense counsel’s objection.

      Chappell also testified that he found twenty-seven graphic files containing

child pornography on Ferguson’s computer, and Chappell’s forensic examination

showed that Ferguson had deleted files containing still images from the child

pornography videos. The State offered twenty-five printed images into evidence,

and Chappell testified that they were screen shots from the videos he found and

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that they represented what someone would find if he watched all eighty-nine

videos. Ferguson’s counsel objected to the admission of the printed images,

arguing that because the jury had already seen the videos, the images were

cumulative and prejudicial. The prosecutor argued that the images were not

cumulative, because they were a representative sample of what the jury would see

if they watched the full four-and-a-half hours of video. According to the

prosecutor, the jury needed to understand that the evidence was comprised of more

than the six videos that had been shown, and that Ferguson chose the evidence and

it was not automatically prejudicial because it was graphic and offensive. In

recognizing the nature of the evidence, the logistical difficulty of presenting the

evidence to the jury, and that it was the punishment phase of the trial, the trial

court admitted the twenty-five images into evidence.

      During punishment, Ferguson testified that he had complied with the

conditions of his bond for a year and a half, and that if the trial court gave him

probation, he could comply with the conditions of his probation. Ferguson’s

mother, fiancé, employer, and commanding officer in the Texas National Guard all

testified that Ferguson would be a good candidate for probation. Despite hearing

evidence that Ferguson should receive probation, the jury assessed Ferguson’s

punishment at ten years in prison on each of the four counts with no

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recommendation of suspending the sentences. The trial court entered judgment and

ordered that Ferguson’s sentences be served consecutively, totaling forty years.

Ferguson appeals his sentences, claiming that he was denied a fair punishment trial

and requesting a new trial.

                                     Analysis

      In his single point of error, Ferguson argues that the trial court abused its

discretion by allowing the State to introduce extraneous offense evidence in

violation of Rule 403 of the Texas Rules of Evidence and that the error was

harmful because it affected the jury’s punishment decision. According to Ferguson,

although he was only charged with possessing four items of child pornography, the

trial court allowed the State to admit evidence to support its theory that Ferguson

was a serial downloader of child pornography. Ferguson contends that the evidence

not only enflamed and confused the jury, but it was cumulative, prejudicial, and

denied him the right to a fair punishment trial by preventing the jury from

considering him as a candidate for probation.

      We review a trial court’s decision to admit evidence under an abuse of

discretion standard. Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005).

We will uphold the trial court’s ruling on the admissibility of evidence as long as

the ruling “‘was at least within the zone of reasonable disagreement.’” Id. (quoting

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Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g)).

If the trial court’s ruling was correct on any theory of law applicable to the case,

we must uphold the trial court’s judgment. Id.

      Unlike the guilt phase of trial, “‘the question at punishment is not whether

the defendant has committed a crime, but instead, what sentence should be

assessed.’” Ellison v. State, 201 S.W.3d 714, 718 (Tex. Crim. App. 2006) (quoting

Haley v. State, 173 S.W.3d 510, 515 (Tex. Crim. App. 2005)). In assessing

punishment, our bifurcated trial system allows the jury to hear evidence critical to

an “‘enlightened determination of punishment[.]’” Id. (quoting Davis v. State, 968

S.W.2d 368, 372 (Tex. Crim. App. 1998)). Except as otherwise provided by rule or

statute, a jury is entitled to have before it all possible relevant information about

the individual defendant whose fate it must determine. Shuffield v. State, 189

S.W.3d 782, 793 (Tex. Crim. App. 2006). “Determining what is relevant then

should be a question of what is helpful to the jury in determining the appropriate

sentence for a particular defendant in a particular case.” Rogers v. State, 991

S.W.2d 263, 265 (Tex. Crim. App. 1999).

      In addition to the Rules of Evidence, article 37.07, section 3(a)(1) of the

Texas Code of Criminal Procedure is one of the guiding principles for the

admissibility of evidence at the punishment phase of a trial. See Tex. Code Crim.

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Proc. Ann. art. 37.07, § 3(a)(1) (West Supp. 2015); Sunbury v. State, 88 S.W.3d

229, 233 (Tex. Crim. App. 2002). Article 37.07, section 3(a)(1) permits the

introduction of relevant punishment evidence, including the circumstances of the

offense for which the defendant is being tried, as well as “any other evidence of an

extraneous crime or bad act that is shown beyond reasonable doubt by evidence to

have been committed by the defendant or for which he could be held criminally

responsible[.]” Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1). Although article

37.07, section 3(a)(1) allows the trial court to admit a broad range of relevant

evidence, the admitted evidence must satisfy Rule 403 of the Rules of Evidence.

See Lamb v. State, 186 S.W.3d 136, 143 (Tex. App.—Houston [1st Dist.] 2005, no

pet.).

         Rule 403 provides that the trial court “may exclude relevant evidence if its

probative value is substantially outweighed by a danger of one or more of the

following: unfair prejudice, confusing the issues, misleading the jury, undue delay,

or needlessly presenting cumulative evidence.” Tex. R. Evid. 403. Unfair prejudice

refers to “‘an undue tendency to suggest decision on an improper basis, commonly,

though not necessarily, an emotional one.’” Rogers, 991 S.W.2d at 266 (quoting

Cohn v. State, 849 S.W.2d 817, 820 (Tex. Crim. App. 1993)). Thus, relevant

evidence that is admissible under article 37.07, section 3(a)(1) may be excluded if

                                           8
it fails to comport with Rule 403. See id.; Lamb, 186 S.W.3d at 144. Once a Rule

403 objection is raised, the trial court must balance the probative value of the

evidence against its potential for unfair prejudice. Montgomery, 810 S.W.2d at

389. Rule 403 presumes that relevant evidence will be more probative than

prejudicial, and the burden is on the appellant to demonstrate that the negative

attributes of the admitted evidence outweigh its probative value. Boone v. State, 60

S.W.3d 231, 239 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d).

      Ferguson first complains that the trial court violated Rule 403 by admitting

State’s exhibit twelve, a printout from the ARES program showing that Ferguson’s

computer contained additional files of investigative interest. The record shows that

Ferguson’s counsel objected to the admission of State’s exhibit twelve based on

hearsay. Because Ferguson’s hearsay objection at trial fails to comport with his

Rule 403 complaint on appeal, we conclude that he has failed to preserve his

argument regarding State’s exhibit twelve for our review. See Camacho v. State,

864 S.W.2d 524, 533 (Tex. Crim. App. 1993) (holding appellant’s general hearsay

and relevance objections at trial failed to preserve his Rule 403 complaint on

appeal).

      Ferguson also complains that the trial court violated Rule 403 by admitting

State’s exhibits seventeen through forty-one, which are the printed images of the

                                         9
graphic files that Special Agent Chappell found on Ferguson’s computer.

Ferguson’s counsel objected to the admission of the images because they were

cumulative and prejudicial. Once Ferguson raised a 403 objection, the trial court

was required to perform a balancing test to determine if the evidence’s probative

value was substantially outweighed by the alleged negative attributes of the

evidence. See Montgomery, 810 S.W.2d at 389; Boone, 60 S.W.3d at 239.

      The record shows that the trial court conducted the required balancing test.

In deciding to admit the images at issue, the trial court considered defense

counsel’s argument that the images were cumulative and prejudicial because the

jury had already viewed the videos, as well as the State’s argument that the images

were a representative sample of what the jurors would see if they were to view all

eighty-nine videos in the case. The trial judge recognized the difficulty in dealing

with the nature of the evidence and the importance of not duplicating the evidence,

but also noted that more evidence is relevant during the punishment phase of the

trial and that the jury did not have the benefit of going through all of the evidence

at a trial because Ferguson entered a plea of guilty. See Tex. Code Crim. Proc.

Ann. art. 37.07, § 3(a)(1) (allowing the trial court to admit a broad range of

relevant evidence during punishment, including circumstances for which the

defendant could be held criminally responsible); Rogers, 991 S.W.2d at 265.

                                         10
      Although the images in State’s exhibits seventeen through forty-one are

undoubtedly prejudicial, we cannot say that the trial court abused its discretion by

concluding that the probative value was not substantially outweighed by the danger

of unfair prejudice. See Martin, 173 S.W.3d at 467. Because the images are

representative of the number and nature of the child pornography videos that

Ferguson downloaded to his computer, they demonstrated the circumstances

surrounding Ferguson’s crimes and were certainly relevant to the jury’s

determination of an appropriate sentence and the trial court’s decision to cumulate

the sentences. We conclude that the trial court’s determination that State’s exhibits

seventeen through forty-one were not prohibited by Rule 403 falls within the zone

of reasonable disagreement. See id. We overrule Ferguson’s sole issue on appeal

and affirm the trial court’s judgments.

      AFFIRMED.



                                               ______________________________
                                                      STEVE McKEITHEN
                                                          Chief Justice

Submitted on July 20, 2016
Opinion Delivered August 10, 2016
Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.

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