Opinion filed October 23, 2008




                                               In The


   Eleventh Court of Appeals
                                           ____________

            Nos. 11-07-00302-CR, 11-07-00303-CR, & 11-07-00304-CR
                                  __________

                         ROBERT LEE HIGHLAND, Appellant

                                                  V.

                               STATE OF TEXAS, Appellee


                            On Appeal from the 415th District Court

                                       Parker County, Texas

                 Trial Court Cause Nos. CR06-0605, CR06-0606, CR06-0607


                             MEMORANDUM OPINION

       The trial court convicted Robert Lee Highland, upon his pleas of guilty, of three offenses of
aggravated sexual assault of a child. The jury assessed his punishment at confinement for life for
each offense. We affirm.
                                        I. Background Facts
       The State alleged that on three separate occasions Highland engaged in a number of sexual
acts with a female victim who was younger than fourteen years of age. After jury selection and
before the start of the evidence, the trial court discussed with counsel evidence the State anticipated
it would offer. The State advised the court that, during the execution of a search warrant, a shoe box
full of VHS and eight-millimeter tapes depicting child pornography and involving Highland and the
victim were found. The State indicated its intent to offer the tapes into evidence and to play a five-
minute clip of material from these tapes for the jury. Highland responded that he would object to
the video because of improper authentication, because any probative value would be outweighed by
its unfair prejudice, and because it was cumulative. The State argued that the material was
admissible to show the jury the nature of the offense itself and because possession of child
pornography is an extraneous offense. The trial court asked both sides clarification questions, and
Highland advised the court that he was not objecting to the entirety of the State’s video offer but only
to the clip the State intended to play for the jury because it violated TEX . R. EVID . 901. The State
also indicated its intent to offer a photo album with Polaroid pictures taken by Highland and 350
CDs. Highland stated that his only objection to these was to any picture of himself and the victim.
Highland contended that the State was required to authenticate them with evidence that they were,
in fact, pictures of the victim. The trial court deferred any ruling on admissibility of the evidence
until trial.
         The State’s first witness was Special Agent Lori A. Keefer with the Federal Bureau of
Investigation. Agent Keefer testified that her responsibilities included child pornography cases and
crimes against children. Agent Keefer testified that the FBI and Immigrations and Customs
Enforcement Agency suspected Highland was purchasing child pornography. The FBI obtained a
search warrant for Highland’s home. Agent Keefer executed the warrant when Highland was home.
He admitted to her that he possessed child pornography. During the search, Agent Keefer found two
photo albums with Polaroid pictures in a safe in Highland’s bedroom closet.
         When the State offered the two photo albums into evidence, Highland requested the
opportunity to voir dire Agent Keefer. On voir dire, Agent Keefer testified that she believed
Highland had taken the pictures but agreed that she had no personal knowledge of this. Highland’s
voir dire examination then continued:
         Q.     Okay. And do you know when these photos were taken?

         A.     I know from my identification of the victim and by interviews that
                I’ve conducted, actually, with Mr. Highland’s daughter, with the


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                    victim, and with the victim’s family members, of what her age is in
                    the photo albums.

           Q.       Right. So based on that, you know or you were able to identify who
                    was in these pictures based on what somebody told you; is that right?

           A.       Well, actually, the day of the search warrant when we found the
                    photos – when we found the two photo albums, my initial thought
                    was that it was two different girls that were depicted in the photos,
                    and I thought that it could possibly have been his two daughters. His
                    daughter . . . ended up arriving at the residence that day and I showed
                    her the photographs and she identified A.C. as being the girl depicted
                    in the photos. And I later found A.C. and showed her the
                    photographs, and she identified herself as being who is depicted in the
                    photos.

           Q.       Right, all of which you had no personal knowledge of. They were
                    identified by other people or what people told you?

           A.       Correct.

Highland then objected to the admission of the photo albums, contending that the proper predicate
had not been laid because Agent Keefer had no personal knowledge concerning the photographs.
The trial court overruled Highland’s objection and admitted the photo albums. Highland then asked
for, and received, permission to lodge an additional objection to the admission of the photographs.
Highland objected to the photographs because their probative value was substantially outweighed
by the danger of unfair prejudice, because the photographs were cumulative, and because “it’s [a]
violation of the Sixth Amendment right to confrontation as well as violation of Crawford.”1 The trial
court responded that its ruling would stand.
           The State continued its examination of Agent Keefer. She testified that, in some of the
videos taken from Highland’s house, A.C. appeared to be “basically passed out.” The State then
asked Agent Keefer:
           Q.       Did you take the opportunity to see how passed out she was or how
                    unconscious she was?



  1
      Crawford v. Washington, 541 U.S. 36 (2004).

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       A.      Yes. We were very concerned because during some of the sex acts,
               the victim is totally unresponsive and we suspected that she was
               given something and we didn’t know what she might have been
               given. I have a coworker who was a former nurse, and she counted
               the number of breaths A.C. took during a sequence in the video. And
               she’s barely taking nine to twelve breaths a minute which she said is
               borderline unresponsive. But in talking to witnesses in the case –

Highland objected to this testimony as hearsay. The trial court overruled the objection. Following
the completion of the evidence, the jury assessed Highland’s punishment at confinement for life for
each indictment.
                                              II. Issue
        Highland challenges his sentence with a single issue contending the trial court abused its
discretion by overruling his objections to Agent Keefer’s testimony.
                                      III. Standard of Review
        We review the trial court’s admission of evidence under an abuse of discretion standard.
Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). A trial court does not abuse its
discretion if its ruling is within the zone of reasonable disagreement. Id. We will uphold a trial
court’s evidentiary ruling if it is reasonably supported by the record and is correct under any theory
of applicable law. Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005). If evidence is
admitted in error, we must then conduct a harmless error analysis. TEX . R. APP . P. 44.2.
                                           IV. Discussion
       Although presented in a single issue, Highland’s appeal implicates two decisions by the trial
court. We will address these decisions separately, starting first with the trial court’s decision to
overrule Highland’s objection to testimony that the victim appeared unresponsive in some of the
videos. The only objection Highland made to this testimony at trial and thus the only issue we will
consider on appeal is whether this testimony was hearsay.
       Agent Keefer’s testimony that the victim appeared unresponsive during some of the sex acts
is not hearsay because it was her personal observation after watching the videos, but her testimony
that a coworker said the victim was borderline unresponsive because she was taking only nine to
twelve breaths a minute is hearsay. See TEX . R. EVID . 801(d). This is nonconstitutional error and,



                                                  4
thus, must be disregarded unless it affected Highland’s substantial rights. Rule 44.2(b). We find that
it did not.
        The jury knew that Highland had pleaded guilty to three indictments alleging aggravated
sexual assault. Each indictment alleged multiple acts of sexual assault by Highland against the
victim. Agent Keefer’s testimony advised the jury that on some occasions the victim was borderline
unresponsive and, thus, added the allegation that Highland also drugged the victim. After Agent
Keefer testified, the State called the victim’s younger sister as a witness. She testified without
objection that she and her sister spent considerable time with Highland’s daughter at his house and
that he frequently provided them with alcohol. At the time, she was seven to nine years old, and her
sister was eight to ten years old. She testified that Highland would purchase two six-packs of wine
coolers and that she and Highland’s daughter would drink one and the victim would drink the other
by herself. This resulted in her sister getting “more drunk than what she should have been.” This
testimony rendered any prior error harmless.
        We next consider Agent Keefer’s voir dire testimony. Highland’s brief characterizes his trial
objection as an objection to Agent Keefer’s testimony, but the transcript reveals that he was actually
objecting to the admission of the photo albums. Agent Keefer’s testimony that Highland’s daughter
and A.C. identified themselves in the photographs was hearsay; however, Highland did not object
in response to this testimony. He instead asked an additional question to confirm that Agent Keefer
had no personal knowledge of the identity of the people in the photographs and then, consistently
with the position he articulated prior to the start of the evidence, objected because “the proper
predicate [had] not been laid with respect to these photo albums.” When that objection was
overruled, he asked for permission to “lodge another objection to the admittance of these video --
of these photographs in addition to my previous objection under Rule 901.” Highland’s trial
objection to the photo albums did not preserve the objection to Agent Keefer’s prior testimony that
he raises in his brief.
        Regardless, any error would be harmless. Agent Keefer’s testimony established the
extraneous offense of possession of child pornography – an allegation Highland does not contest.
Highland admitted to Agent Keefer that he had child pornography when she executed the search
warrant. In addition to the two photo albums, the State’s evidence included eighteen videotapes,


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over 300 computer disks (containing 100,000 to 125,000 child pornography images), seven floppy
disks, and a variety of other child-pornography related material. Each of these exhibits was
introduced without objection. In light of this overwhelming evidence of possession, any evidence
of the identity of the subjects would not affect Highland’s substantial rights.
       The fact that Agent Keefer testified that she knew the identity of the subjects in the photo
albums from her conversations with the victim and Highland’s daughter does not alter the analysis.
Other testimony establishing that Highland’s child pornography collection included pictures of the
victim and Highland’s daughter was introduced without objection. Agent Keefer testified that she
met with both the victim and Highland’s daughter during her investigation. She also testified that
she viewed the VHS tapes and eight-millimeter tapes found in Highland’s closet. Agent Keefer
testified that Highland appeared on some of the tapes and that both the victim and Highland’s
daughter could be seen on some of them. During trial, Highland’s daughter was shown a portion of
one of the videos and confirmed that it depicted herself and the victim. Because this testimony and
evidence came in without objection, there was no harm in admitting Agent Keefer’s description of
her conversations with the victim and Highland’s daughter. Highland’s issue is overruled.
                                            V. Holding
       The judgments of the trial court are affirmed.




                                                              RICK STRANGE
                                                              JUSTICE


October 23, 2008
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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