      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-14-00192-CR



                                Christopher Lawrence, Appellant

                                                   v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
         NO. CR2013-543, HONORABLE JACK H. ROBISON, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Christopher Lawrence was charged with two counts of aggravated sexual assault

of K.H., who was younger than six years old at the time of the offenses.1 See Tex. Penal Code

§ 22.021(a)(1)(B)(i), (iii) (setting out elements of offenses at issue), (a)(2)(B) (specifying that

offense is aggravated sexual assault if victim is younger than 14 years old). The first count alleged

that Lawrence penetrated K.H.’s anus with his sexual organ or caused K.H.’s anus to contact his

sexual organ, and the other count alleged that Lawrence penetrated K.H.’s sexual organ with

his fingers. See id. § 22.021(a)(1)(B)(i), (iii). During the trial, the district court admitted evidence

regarding child pornography that was discovered on Lawrence’s computers. At the end of the trial,


       1
          The indictment also alleged an additional count of aggravated sexual assault as well as a
charge for continuous sexual abuse. Before the case was submitted to the jury, the State elected not
to proceed with the continuous-sexual-abuse charge, and at the end of the guilt or innocence phase
of the trial, the jury determined that Lawrence was not guilty of the additional aggravated-sexual-
assault charge.
the jury found Lawrence guilty of both counts and sentenced him to 30 years’ imprisonment for

the first count and to 70 years’ imprisonment for the second count. See id. § 22.021(e) (stating that

offense is first-degree felony), (f) (providing that minimum sentence is 25 years if victim is younger

than six years old). The district court determined that those punishments would run concurrently.

On appeal, Lawrence contends that the district court abused its discretion by admitting into evidence

the information and files recovered from his computers. We will affirm the district court’s judgment

of conviction.


                                            DISCUSSION


Evidence of Child Pornography

                 In a single issue on appeal, Lawrence contends that the district court erred by

admitting into evidence “video, photographic and documentary evidence depicting child pornography.”

Specifically, Lawrence notes that during the trial the State introduced images and videos of child

pornography that were recovered from his computers as well as a list of internet searches that were

performed on his computers and that contained graphic sexual terminology regarding children.

When challenging the district court’s ruling, Lawrence contends that the evidence of those extraneous

offenses was impermissibly admitted as character evidence contrary to the directives of Rule of

Evidence 404(b). See Tex. R. Evid. 404(b). Moreover, although Lawrence acknowledges that the

Rule does allow for the admission of extraneous offenses for limited purposes such as establishing

identity, lack of accident, absence of mistake, intent, motive, or a lack of opportunity or impossibility,

see id. R. 404(b)(2) (setting out permissible uses for extraneous offenses); see Sandoval v. State,



                                                    2
409 S.W.3d 259, 299 (Tex. App.—Austin 2013, no pet.) (explaining that “[e]vidence of an

extraneous offense may be admissible under Rule 404(b) to rebut” defense of lack of opportunity

or impossibility), Lawrence contends that none of those exceptions to the general rule applied.

Specifically, he asserts that “the evidence was not admissible to rebut a defensive theory of lack of

intent since [he] denied that the offense occurred at all.” Furthermore, Lawrence contends that the

evidence was not “admissible to show motive because motive is not a required element of the

offense.” Finally, Lawrence contends that the evidence was not admissible to establish his identity

because his identity as the alleged perpetrator “was never in question” and that it was not admissible

to rebut a defense “of lack of opportunity or impossibility” or of “mistake or accident” because “[n]o

such claim[s] w[ere] made in this case.”2


       2
          In the fact portion of his brief, Lawrence notes that during a hearing held before the trial
started, the State indicated that it intended to discuss during its opening statement a video that was
recovered from Lawrence’s computers depicting a child performing oral sex on an adult man. When
discussing its reasons for why the State would be allowed to discuss the video, the district court
stated that the video was alleged to have been part of the res gestae of the offense because Lawrence
“showed pornography to the child on the -- on a computer and then -- that showed a child performing
fellatio on a male and then asked her to do it.” See Prible v. State, 175 S.W.3d 724, 731-32 (Tex.
Crim. App. 2005) (providing that evidence of extraneous offenses may be admitted as same-
transaction contextual evidence if crimes are intermixed, blended with one another, or connected in
manner that they form indivisible transaction). However, Lawrence asserts that during the trial,
K.H. denied in her testimony that Lawrence showed her the video on his computer and then asked
her to perform the act. Accordingly, Lawrence contends that the “State’s justification for offering
this evidence was not supported by the complainant herself.”

       Having reviewed the record, it is not entirely clear that K.H. did in fact deny that Lawrence
asked her to reenact something after showing her a video. In her testimony, K.H. testified that
Lawrence inserted his fingers into her vagina and “put his private in my bottom.” Moreover, in
response to a question by the State regarding whether Lawrence did other sexual acts, K.H. explained
that Lawrence “tried to put his private in my mouth.” Furthermore, when asked if Lawrence showed
her any pictures or videos where people did not have any clothes on, she answered, “kind of,” but
explained that she could not “remember what the videos were.” Right after answering that last

                                                  3
                As a preliminary matter, we note that it is not entirely clear that Lawrence preserved

this issue for appeal. Before the trial started, Lawrence filed a motion in limine asking that all evidence

of extraneous offenses be excluded until a hearing is held to determine the admissibility of the

evidence. In the motion, Lawrence referenced Rules of Evidence 403, 404, 608, and 609. During

the hearing on the motion, Lawrence argued that the evidence was “designed to inflame the jury, to

impassion them on an extraneous offense. And, therefore, it’s far more prejudicial than probative.”

After hearing this argument, the district court overruled the objection and stated that it found

the evidence “far more probative than prejudicial.” On the following day, Lawrence expressed

concern regarding the admission of information from one of his computers. Specifically, Lawrence

mentioned that one of his computers was purchased from a pawn shop and that he wanted to be

certain that any information regarding internet searches or downloads pertained to activities

occurring after the purchase date, but the district court explained that it did not have enough

information about the evidence at that point to make a ruling but encouraged Lawrence to lodge

an objection if needed later. During the trial, Detective Brian Morgan testified about the forensic

analysis that was performed on the computers, and exhibits relevant to the analysis were admitted.

After questioning Officer Morgan on voir dire, Lawrence explained that he was “renewing my . . .




question, the State asked, “Was the stuff that he was wanting you to do that you’re talking about
with your mouth,” and she answered, “No.”

        In any event, other than mentioning these exchanges in the fact section of his brief, Lawrence
does not address this topic further. Moreover, given our ultimate resolution that the district court
did not abuse its discretion by admitting the evidence under Rule 404(b) for other purposes, we need
not further address this ruling by the district court. See Gaytan v. State, 331 S.W.3d 218, 225 (Tex.
App.—Austin 2011, pet. ref’d).

                                                    4
403 objection that we discussed earlier . . . [t]hat this is far more prejudicial than probative,” and the

district court overruled the objection. In his testimony, Officer Morgan extensively described the

images and videos of child pornography as well as the accompanying internet searches that he found

on Lawrence’s computers, but Lawrence made no objection during the officer’s testimony based on

Rule 404, did not make any further objections regarding Rule 403, and did not request a running

objection under either Rule. Moreover, when Lawrence later testified himself, he admitted that he

had downloaded some of the child-pornography files.

                Although Lawrence’s motion in limine sought to prevent the admission of evidence

under Rule 404(b) among other Rules, “motions in limine do not preserve error,” see Roberts v.

State, 220 S.W.3d 521, 533 (Tex. Crim. App. 2007), regardless of whether they are “granted or

denied,” see Harnett v. State, 38 S.W.3d 650, 655 (Tex. App.—Austin 2000, pet. ref’d).

Accordingly, a party must object to the actual admission of the evidence in order preserve the error

for appeal. Id. As set out above, when the evidence was offered, Lawrence only objected on Rule

403 grounds. See Roberson v. State, No. 02-08-00152-CR, 2010 Tex. App. LEXIS 6421, at *10

(Tex. App.—Fort Worth Aug. 5, 2010, pet. ref’d) (mem. op., not designated for publication)

(explaining that objection under Rule 403 at trial did not preserve for appeal complaint that evidence

was admitted in violation of Rule 404); Parmer v. State, 38 S.W.3d 661, 668 (Tex. App.—Austin

2000, pet. ref’d) (concluding that issue regarding admission of evidence under Rule 404(b) was

not preserved because no objection was made but addressing issue concerning same evidence

under Rule 403); see also Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (stating that

defendant’s appellate contention must comport with specific objection made at trial); Broxton v.



                                                    5
State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (noting that objection stating one legal theory

may not be used to support different legal theory on appeal). Moreover, as set out above, Lawrence

did not object to the testimony of Officer Morgan when the officer was describing the contents of

the files and searches that were recovered from the computers, see Mitchell v. State, 68 S.W.3d 640,

643 (Tex. Crim. App. 2002) (explaining that if previously objected to evidence is introduced from

another source without objection, defendant may not challenge admission on appeal); Luu v. State,

440 S.W.3d 123, 127 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (providing that party must

object every time inadmissible evidence is offered or request running objection and that any error

in admission of evidence is cured when evidence comes in without objection), and Lawrence himself

later admitted that he downloaded some of the files to his computers.

                In any event, as Lawrence correctly points out, Rule of Evidence 404 generally

prohibits the admission of “other crime[s], wrong[s], or other act[s] . . . to prove a person’s character

in order to show that on a particular occasion the person acted in accordance with the character,” but

the Rule does allow that type of evidence to be admitted for other purposes, “such as proving motive,

opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”

Tex. R. Evid. 404(b); see Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011) (explaining

that “evidence may be admissible when it has relevance apart from character conformity”).3


        3
         For sexual-abuse cases involving minors, article 38.37 of the Code of Criminal Procedure
provides that “[n]otwithstanding” Rule of Evidence 404, “evidence that the defendant has committed
a separate” sexual offense pertaining to children, including the possession or promotion of child
pornography, “may be admitted in the trial” of a defendant accused of aggravated sexual assault of a
child “for any bearing the evidence has on relevant matters, including the character of the defendant
and acts performed in conformity with the character of the defendant.” Tex. Code Crim. Proc. art.
38.37, § 2. By its terms, article 38.37 “supercedes in certain sexual abuse cases the application of”

                                                   6
                On appeal, courts review a trial court’s ruling regarding the admission of evidence

under an abuse-of-discretion standard. Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005).

“A trial court abuses its discretion when its ruling is arbitrary or unreasonable.” Gaytan v. State,

331 S.W.3d 218, 223 (Tex. App.—Austin 2011, pet. ref’d). But a trial court does not abuse its

discretion if its ruling lies within “the zone of reasonable disagreement.” Bigon v. State, 252 S.W.3d

360, 367 (Tex. Crim. App. 2008). “A trial court’s 404(b) ruling admitting evidence is generally

within this zone if there is evidence supporting that an extraneous transaction is relevant to a

material, non-propensity issue.” Devoe, 354 S.W.3d at 469; see Rankin v. State, 974 S.W.2d 707,

719 (Tex. Crim. App. 1998) (op. on reh’g) (stating that extraneous-offense evidence will generally

be relevant but purpose for which it is offered might not be); see also Tex. R. Evid. 401 (providing

that evidence is relevant if it tends to make fact of consequence “more or less probable than it would

be without the evidence”). “If the trial court’s evidentiary ruling is correct on any theory of law

applicable to that ruling, it will not be disturbed.” Devoe, 354 S.W.3d at 469.



Rule of Evidence 404(b). See Hitt v. State, 53 S.W.3d 697, 704-05 (Tex. App.—Austin 2001, pet.
ref’d) (discussing prior version of statute). Accordingly, the evidence at issue in this case would
seem to have been admissible under article 38.37.

         However, before this type of evidence may be admitted under article 38.37, the provision
requires that the State “give the defendant notice of the state’s intent to introduce” the evidence in
its case in chief “not later than the 30th day before the date of the defendant’s trial” and that the trial
court “conduct a hearing out of the presence of the jury” for the purpose of determining whether “the
evidence likely to be admitted at trial will be adequate to support a finding by the jury that the
defendant committed the separate offense beyond a reasonable doubt.” Tex. Code Crim. Proc. art.
38.37, §§ 2-a, 3. Although the record in this case reveals that Lawrence requested notice of the
State’s intent to introduce evidence under article 38.37, the record does not show that the State
provided notice that it intended to introduce the evidence at issue under article 38.37 or that a
hearing was held before the evidence was admitted. For these reasons, we limit our discussion to
whether this evidence was admissible under Rule 404.

                                                    7
                As set out above, Lawrence was charged with two counts of aggravated sexual

assault. The Penal Code specifies that an individual commits that offense if he “intentionally or

knowingly . . . causes the penetration of the anus or sexual organ of a child by any means” or “causes

the anus of a child to contact the . . . sexual organ of another person” and if “the victim is younger

than 14 years of age.” Tex. Penal Code § 22.021(a)(1)(B)(i), (iii), (a)(2)(B) (emphasis added).

Moreover, although not listed specifically, “‘[i]ntent to arouse or gratify sexual desire’ is an implicit

element of aggravated sexual assault of a child.” Sarabia v. State, 227 S.W.3d 320, 323-24 (Tex.

App.—Fort Worth 2007, pet. ref’d) (citing Ochoa v. State, 982 S.W.2d 904, 908 (Tex. Crim. App.

1998)); see also Ochoa, 982 S.W.2d at 908 (explaining that “Legislature did not intend that the

‘intent to arouse and gratify’ requirement” found in other statutes regarding sexual crimes “be

excluded from proof of the elements of aggravated sexual assault”). Accordingly, the evidence

establishing that the computers had been used to search for and download images and videos of

underage girls having sex was “admissible under rule 404(b) because [it] tend[ed] to show Appellant’s

intent or motive to arouse or gratify his sexual desire via” underage girls. See Sarabia, 227 S.W.3d

at 324.

                Moreover, during the trial, evidence was introduced through a recording of an

interview of Lawrence by the police, through the cross-examination of one of the State’s witnesses,

through the testimony of witnesses called on behalf of Lawrence, and through Lawrence’s testimony

that any inappropriate touching that occurred was unintentional or accidental, occurred while he was

sleeping, or was caused by K.H. See Abshire v. State, 62 S.W.3d 857, 860 (Tex. App.—Texarkana

2001, pet. ref’d) (explaining that evidence of extraneous offenses may be used to establish “elemental



                                                   8
fact” such as intent, to establish evidentiary fact like motive, or to rebut defensive theories like

absence of mistake or accident).

               Prior to the trial, Lawrence was interviewed by Detective David Schroeder. A copy

of that interview was played for the jury during Officer Schroeder’s testimony. In the interview,

Lawrence repeatedly asserted that he did not touch K.H. in any manner but also repeatedly stated that

if he did touch K.H., he did so unintentionally or when he was asleep. Specifically, he stated, “If I

touched her, I did not do it when I was awake. I cannot account for when I was asleep. I may

have. . . . I was asleep that night.” Moreover, Lawrence explained that one time he woke up and

realized that his hands were on K.H.’s leg and that he was “afraid of what I did when I was asleep.

Okay. I don’t know what I do in my sleep, and I’m scared shitless of it.” Furthermore, Lawrence

recalled that “there is a good chance that it happened” while he was asleep but that “I know I did not

touch her in an intentional setting. I [did] not intentionally touch[] her.” More specifically near the

end of the interview and when describing one incident, Lawrence stated as follows:


       We were laying there. I was laying there, at first. And then [K.H.], all jumpy, was
       like, “I want to lay down.” So, she came over and she was like, “Can I lay down with
       you?” I was like, “sure.” So, I let her under the covers, and I let her lay there. I started
       to doze off, and I kind of pulled her closer to me, you know, because you know
       contact kind of feels nice. . . . I’m a cuddler. . . . And we were laying there. And I
       was half dozed off, and I thought she grabbed my hand to pull me closer. And the
       next thing I know, my hands were underneath her pants. And then when my reaction
       hit, my finger was on top . . . you know how a woman’s or a female’s vagina is where
       it is at the very top. When I realized my hand was there, I yanked it back.


When Lawrence cross-examined Officer Schroeder about the interview, the following exchange

occurred:



                                                    9
       Q: In this case about the touching, [Lawrence] says over and over again that what he
       did was unintentional. Right?

       A: Subconsciously, he didn’t mean to do it.

       ...

       Q: So does it make no difference that she pulled his hand while he was asleep?

       A: I don’t believe that happened. I think he minimized it.


                 After the state rested its case, Lawrence called his stepfather, Jeff Lewallen, to the

stand to discuss what he saw on the day in question. Specifically, Lewallen testified Lawrence was

asleep on the couch and that K.H. “kept trying to get up there to lay with him. And he kept telling

her that, no, he wanted to lay by himself. And he finally dozed off by himself.” Moreover, Lewallen

explained that K.H.’s mother placed K.H. beside Lawrence on the couch and then covered them up

with a blanket. Next, Lewallen stated that he saw Lawrence “get up, telling [K.H.], We don’t do

things like that around here” and that Lawrence pushed K.H. away. After Lewallen finished

testifying, his wife and Lawrence’s mother, Shirley Lewallen, was called to the stand to testify

regarding her recollections of the day in question. In her testimony, she said that Lawrence was

asleep on the sofa, that K.H. wanted to lay down beside him, that K.H.’s mother covered K.H.

with a blanket, that K.H.’s mother grabbed Lawrence’s arm and placed it near K.H.’s waist, and that

Lawrence later stood up and stated that “[w]e do not do these things in this house” and that “[t]hey’re

not allowed.”4


       4
         In his testimony, Lewallen also explained that he believed that K.H.’s significantly older
brother was sexually abusing her based on interactions that he observed and based on a statement
that K.H. made to him about how her brother had been very rough when he bathed her and caused

                                                  10
                During his own testimony, Lawrence stated that any inappropriate touching was

unintentional, was caused by K.H., or happened while he was asleep. Specifically, Lawrence testified

as follows when asked why K.H. was with him on the sofa:


       Q: How did K.H. come to be on that sofa with you?

       A: I’m not too certain.
               But she always liked laying on the couch, especially when somebody was
       laying on it with her. I would cuddle with her, and [her mother] was okay with it.
               But that night, I don’t know. I fell asleep and -- I mean, I didn’t want her on
       the couch because she asked. I told -- I told them no, and I fell asleep.
               And then I woke up with her bumping me, and I don’t -- she was doing
       something weird, and I didn’t like it, so I pushed -- well, I didn’t push her, but I told
       her to get off the couch and, you know, go play or go somewhere else.

       Q: Why did you tell her to get off the couch?

       A: I think she was pulling my hand over her. I wasn’t sure what it was for. I felt --
       I felt the ridge of her pants, so that’s what woke me up. That, and the -- she kicked
       me on the shin; not hard, but just, like, squirming.

       Q: Did you ever intend to touch her at all?

       A: No.

       Q: Now, you heard your testimony to Detective Schroeder. Right?

       A: Yes.

       Q: Did you touch her private area?




her genitals to bleed. Similarly, Shirley also testified that she was concerned that K.H.’s older
brother was sexually abusing her because the two of them slept in the same bed at night, because he
bathed her behind closed doors, and because K.H. told her that her brother scrubbed her so hard that
her bottom started bleeding.

                                                  11
       A: I’m not too sure if I did or not, to be honest.5


               Finally, during his closing argument, Lawrence stated as follows:


       A very important part of the statute is the state of mind of the accused in this case,
       [Lawrence]. They’re asking you to find that [Lawrence] intentionally or knowingly
       did this.

       And I think if you review the evidence and the witnesses, you’ll see that wasn’t there.
       A lot of time was spent when we watched [the interview]. It was a long one.
       [Lawrence] said, “I did touch her. My hand touched the top, but I didn’t mean to.
       As soon as I woke up, as soon as I felt it, I pushed her off.” He admitted to the
       touching, but he didn’t do it on purpose.


               In light of the preceding, we cannot conclude that the district court abused its

discretion by allowing in evidence regarding images and videos of child pornography as well as

internet searches for child pornography that were found on Lawrence’s computers because that

evidence tended to prove Lawrence’s intent to commit the offenses charged and to disprove, among

other things, the defensive theories that any touching was caused by K.H., occurred while Lawrence

was asleep or otherwise unaware, and was done inadvertently or by accident. Accordingly, we

overrule Lawrence’s issue on appeal.




       5
         During the interview with the police, in his testimony, and during his closing argument,
Lawrence also explained that he believed that K.H.’s mother had coached her to make the allegations
against him because he had been involved in a sexual relationship with K.H.’s mother that had
ended. Moreover, in the interview to the police, in his opening and closing statements, and through
his questioning of the State’s witnesses and his own witnesses, Lawrence also suggested that it was
highly unlikely that any abuse could have occurred because the home was too small to hide any
improper activity and because there were other individuals in the room during the alleged incidents.

                                                 12
                                     CONCLUSION

              Having overruled Lawrence’s issue on appeal, we affirm the district court’s

judgment of conviction.




                                          David Puryear, Justice

Before Justices Puryear, Goodwin, and Bourland

Affirmed

Filed: July 16, 2015

Do Not Publish




                                            13
