                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

        ______________________________

              No. 06-08-00089-CR
        ______________________________


          ROGER DALE WARR, Appellant

                          V.

         THE STATE OF TEXAS, Appellee



    On Appeal from the 4th Judicial District Court
                Rusk County, Texas
            Trial Court No. CR05-182




     Before Morriss, C.J., Carter and Moseley, JJ.
          Opinion by Chief Justice Morriss
                                             OPINION

        Roger Dale Warr appeals his conviction for indecency with a child by sexual contact. See

TEX . PENAL CODE ANN . § 21.11 (Vernon 2003). The jury assessed punishment at seven years'

confinement. In the trial of the charges against Warr, the State introduced the supporting affidavit

for a search warrant for Warr's residence and also introduced a group of sex toys recovered from

Warr's master bedroom. On appeal, he complains of the admission of these two items, contending

that their admission was harmful error. In our view, the record demonstrates that admission of these

two items constitutes harmful error.

(1)     Admission of Search Warrant Affidavit Was Error

        Warr objected to the admission of the search warrant affidavit, urging that it was hearsay.

On appeal, the State concedes error in the admission of the search warrant affidavit but maintains

that the error was harmless. Indeed, it is error for the trial court to admit the affidavit and the search




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warrant over an objection that they contain hearsay.1 Albitez v. State, 461 S.W.2d 609, 612 (Tex.

Crim. App. 1970); Baxter, 66 S.W.3d at 498.

(2)    Admission of Sex Toys Was Error

       Warr unsuccessfully objected to the admission of the group of sex toys on the basis of

relevance and on the basis that the evidence was offered to inflame the jury and had no probative

value. He claims their admission was error. We agree.

       Relevant evidence is "evidence having any tendency to make the existence of any fact that

is of consequence to the determination of the action more or less probable than it would be without

the evidence." TEX . R. EVID . 401. Relevant evidence is generally admissible. TEX . R. EVID . 402.

Even 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. Absent an abuse

of discretion, we will not disturb a trial court's decision whether to admit or exclude evidence. See

       1
         There are exceptions in which search warrants or affidavits may be admissible over a
hearsay objection. Baxter v. State, 66 S.W.3d 494, 498 n.2 (Tex. App.—Austin 2001, pet. ref'd).
For instance, when a defendant disputes the existence of a warrant and a warrant exists, the warrant
may be admitted before the jury. See id. (citing Sallings v. State, 789 S.W.2d 408, 416–17 (Tex.
App.—Dallas 1990, pet. ref'd)). Also, if a defendant makes probable cause an issue before a jury,
hearsay evidence is admissible. See id. (citing Juarez v. State, 758 S.W.2d 772, 774 n.1 (Tex. Crim.
App. 1988); Murphy v. State, 640 S.W.2d 297, 299 (Tex. Crim. App. 1982); Adams v. State, 552
S.W.2d 812, 814 n.1 (Tex. Crim. App. 1977); Roberts v. State, 545 S.W.2d 157, 159 (Tex. Crim.
App. 1977); Lacy v. State, 424 S.W.2d 929, 931 (Tex. Crim. App. 1967)). In the instant case, Warr
does not claim the officers did not have a warrant and did not make probable cause an issue before
the jury, leaving no room for the exceptions to the general rule that the search warrant affidavit is
inadmissible over a hearsay objection.

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Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005). Under the abuse of discretion

standard of review, we will uphold a trial court's evidentiary ruling so long as that ruling is within

the zone of reasonable disagreement. See id.

       The State contends the possession of sex toys goes to Warr's intent to arouse or gratify his

sexual desire, an essential element of the offense of indecency with a child by contact.2 See TEX .

PENAL CODE ANN . § 21.11. The State also points out that the intent to gratify the sexual desire of

an appellant may be inferred by the act itself, by appellant's conduct or remarks, or by surrounding

circumstances. In re M.M.L., 241 S.W.3d 546, 558 (Tex. App.—Amarillo 2006, pet. denied). The

presence of the sex toys, according to the State, would be "surrounding circumstances" from which




       2
        To support its position that the sex toys and other materials were admissible, the State cites
to Rule 404(b). Rule 404(b) of the Texas Rules of Evidence provides that

       [e]vidence of other crimes, wrongs or acts is not admissible to prove character of a
       person in order to show action in conformity therewith. It may, however, be
       admissible for other purposes, such as proof of motive, opportunity, intent,
       preparation, plan, knowledge, identity, or absence of mistake or accident, provided
       that upon timely request by the accused in a criminal case, reasonable notice is given
       in advance of trial of intent to introduce in the State's case-in-chief such evidence
       other than that arising in the same transaction.

TEX . R. EVID . 404(b). Even assuming that the legal possession of sexually-oriented materials would
fall within the purview of Rule 404(b), we note that admissibility of such evidence is still subject to
a Rule 403 analysis. Even if the evidence is relevant, and the purpose for which it is being offered
is permissible under Rule 404(b), it may still be excluded by the trial court under Rule 403 if its
probative value is substantially outweighed by the danger of unfair prejudice. Moses v. State, 105
S.W.3d 622, 626 (Tex. Crim. App. 2003). Warr's objection concerning inflammatory nature and lack
of probative value raised the Rule 403 issue.

                                                  4
the jury could infer the requisite intent. The State's position that the sex toys were relevant is best

summed up by its statement in its brief to this Court:

                The jury could find that Appellant had sexual performance problems, and
       used these items to enhance his ability to have sex. A logical inference for the jury
       to take would be that, when the sex toys were inadequate to the task, his next step
       was to go into the other bedroom and fondle and molest the little girls in an attempt
       to "to [sic] arouse or gratify" his sexual desire.

The State does concede the possession of the sex toys was not illegal.

       Under cross-examination, the officer testified that none of the sex toys were specifically

directed at or involved children. He also conceded that the items were discovered in the master

bedroom. The State unsuccessfully tried to get in evidence that some of the items were near a video

game console, presumably attempting to suggest that the children would have had access to some

of the items.

       H.H.'s mother, Warr's girlfriend, testified that most of the items were in a locked case and

that the items were all in the master bedroom and not accessible to the children. She expressed her

refusal to be embarrassed about the items, testified that the items belonged to her and Warr, and

explained that some of the items belonged to her prior to her relationship with Warr. Warr,

similarly, testified that the sex toys and other items were in his and his girlfriend's bedroom, put

away in boxes and drawers.

       Our review reveals not only what was said in reference to the possession of the sex toys, but

also what is missing in connection with the sex toys. In none of the interviews of the children in the



                                                  5
house were any references made to any of the sex toys. None of the witnesses who testified to H.H.'s

account of the abuse testified to any connection between the abuse and the sex toys. H.H.'s own

testimony, likewise, failed to make any reference to the sex toys. The record shows that the victim's

account of abuse did vary over time in terms of frequency, nature, and other details, but never made

any reference to any item such as those making up State's Exhibit 4. The officers who testified to

the results of the search warrant also failed to connect the sex toys to any of the allegations of abuse.

        The State makes another argument concerning the relevance of the sex toys: "It is a logical

inference [from the possession of the various sex toys] to conclude that Appellant used the little girls

to arouse himself to have relations with his [girlfriend]." We find no support in the record for such

a connection. To the contrary, the record suggests that Warr used those sex toys to arouse himself

during sexual relations with his girlfriend. The State clearly wants the Court to connect Warr's sex

toys and the sexual offense charged here, a connection we have no logical or factual basis to make.

        The State fails in its attempt to connect the sex toys with the charged offense. The record

shows that the sex toys belonged to Warr and his girlfriend. Further, in no account of the alleged

abuse did the child victim make any reference to the sex toys. The record contains no suggestion that

sex toys were used in any way related to H.H. To suggest that possession of the toys would lend

itself to establishing that Warr made sexual contact with the child victim with the intent to arouse

or gratify his sexual desire is to engage in speculation or, worse, to seek to convict on the basis of

propensities. Evidence of extraneous sexual activity that simply proves certain propensities toward



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sexual conduct in general is not admissible; to be admissible, the extraneous activity must ordinarily

involve the complainant. See Boutwell v. State, 719 S.W.2d 164, 176–81 (Tex. Crim. App. 1985)

(op. on reh'g). The trial court's admission of the sex toys over a Rule 403 objection was error.

(3)    The Erroneous Admission of the Affidavit and Sex Toys Was Harmful

       Other than constitutional error, any error must be disregarded unless it affects substantial

rights of the defendant. TEX . R. APP . P. 44.2. The violation of a rule of evidence in the admission

of evidence, as in this case, is considered nonconstitutional error. See Johnson v. State, 967 S.W.2d

410, 417 (Tex. Crim. App. 1998); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).

Error affects a defendant's substantial right when the error had a substantial and injurious effect or

influence in determining the jury's verdict. Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App.

2000). A criminal conviction should not be overturned for nonconstitutional error if the appellate

court, after examining the record as a whole, has fair assurance that the error did not influence the

jury, or had but slight effect. Id. In assessing the likelihood that the jury's decision was affected by

the error, we consider everything in the record, including any testimony or physical evidence

admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character

of the error and how it might be considered in connection with other evidence in the case. The

reviewing court might also consider the jury instruction given by the trial court, the parties' theories

of the case, closing arguments, and even voir dire, if material to appellant's claim. Id.; Llamas v.

State, 12 S.W.3d 469, 471 (Tex. Crim. App. 2000); Baxter, 66 S.W.3d at 499. The improper



                                                   7
admission of evidence does not constitute reversible error if the same facts are proved by other

properly admitted evidence. Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986). Here,

we identify two errors. Errors may be found harmful in their cumulative effect. See Feldman v.

State, 71 S.W.3d 738, 757 (Tex. Crim. App. 2002); Wright v. State, 28 S.W.3d 526, 537 (Tex. Crim.

App. 2000); Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999).

       The search warrant affidavit contains references to child pornography, specifically that there

was reason to believe there were, in Warr's home, video recordings of sexual offenses exploiting

minors, such as the offense charged in this case. The State points out that Warr was able to use the

inconsistencies between the search warrant affidavit statements and what was actually discovered

at the home. Since the affidavit was beneficial to the defense, the State maintains, Warr cannot show

harm. Indeed, Warr attempted to minimize the effect of these references by pointing out that the

search of Warr's home yielded no evidence of child pornography. Two notable factors militate

against the State's harmlessness argument here. First, the return on the search warrant was not

published to the jury. So, initially, the jury saw only what officers expected to find at Warr's home,

and any defense benefit was at least delayed. Second, the State made a concerted, trial-long effort

to make a connection between the sex toys that were found and the affidavit's, later shown erroneous,

references to child pornography. In fact, immediately following the admission of the search warrant

affidavit, the sex toys were first mentioned.3



       3
           Warr also objected to the admissibility of the materials at this point.

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        In isolation, the erroneous admission of the search warrant affidavit may not seem obviously

harmful; but we must consider that error within the context of the entire record. That record shows

the State's attempts to emphasize the affidavit's statements, by citing during trial the sex toys that

were found, reinforced the harm. In fact, the record demonstrates the State's consistent, trial-long

effort to connect the sex toys to the allegations of indecency with a child by sexual contact.

        The State first made reference to the sex toys and other sexually oriented materials found at

Warr's residence at a bench conference, first arguing that they demonstrated Warr's "propensities"

and were connected to the search-warrant affidavit's statements concerning child pornography.

While this initial argument was not before the jury, it does illustrate the State's theory of

admissibility and its treatment of the evidence throughout trial. We also note that the State did refer

to the items as a whole as "pornography-related items," at least arguably continuing to try to connect

the items to the previously admitted statements from the search warrant affidavit concerning child

pornography.

        The State made it a point to mention prominently that the officer testifying about the sex toys

was wearing protective gloves due to "hygiene" concerns. The State then went on to elicit the

officer's description of each sex toy and other items, explaining their common names and uses. The

officer apologized directly to the jury at least twice for the graphic nature of the item as he described

an item.




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        The State continued its strategy during its closing argument to the jury. In an effort to blunt

the effects of the admission of the affidavit, Warr had pointed out to the jury that no child

pornography had been found by authorities. The State responded in its closing argument by saying,

"Did they find anything illegal? No. But I don't know how you felt, but I felt they found stuff that

was awfully offensive." The State explained that it had brought that evidence to court to "give you

a feel of the environment in which this child is living, and the preoccupation, I would say, with

sexual issues." The State then urged the jury to use that evidence to decide whether it makes H.H.'s

statements more "credible, believable, and true." Emphasizing the State's position that the presence

of sexually oriented materials suggests the truth of the allegations of indecency with a child by sexual

contact, the State reiterated the position: "But the predilection toward sex, things sexual, it's not a

stretch to see then the extension of that onto the area that we've seen with [H.H.]."

        We have found nothing in the record that would connect the sex toys to the State's allegations

of indecency with a child by sexual contact. Instead, we have found that the State emphasized those

items in providing a detailed description of each item, making certain to emphasize their graphic

nature by carrying them in a single plastic tub, pointing out the testifying officer's wearing of gloves,

and repeatedly apologizing to the jury for the graphic nature of those items. Indeed, the State sought

and obtained admission of various sexually oriented materials as a single exhibit, in the plastic tub.

The exhibit included the sex toys complained of here by Warr, as well as sexually explicit magazines

and DVDs not urged on appeal by Warr. The record shows the State's compound emphasis on the



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two improperly admitted items of evidence in an attempt, on the heels of hearsay allegations of child

pornography, to suggest that Warr's legal possession of sexually oriented items supported the

allegations of indecency with a child by sexual contact. That emphasis is in vivid contrast with a

record demonstrating that no child pornography was found and failing to make any factual

connection between the sexually oriented materials and the alleged offense. That vivid contrast

coexists in this case along with the variable, unsteady, and questioned testimony of the child

complainant. Given all that, we believe such an approach and the effort with which it was made had

a substantial and injurious influence on the jury's verdict. Nothing gives us fair assurance that those

coexisting problems did not influence the jury or had only a slight effect.

       Having found harm in the erroneous admission of the search warrant affidavit and the sex

toys, we reverse the trial court's judgment and remand the matter to the trial court for a new trial.




                                               Josh R. Morriss, III
                                               Chief Justice

Date Submitted:        December 10, 2008
Date Decided:          April 15, 2009

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