                                     In The

                                Court of Appeals
                     Ninth District of Texas at Beaumont
                              ____________________

                               NO. 09-12-00279-CR
                              ____________________

                     CRAIG STEPHEN HOARD, Appellant

                                       V.

                  THE STATE OF TEXAS, Appellee
_________________________________        ______________________

                On Appeal from the 359th District Court
                      Montgomery County, Texas
                    Trial Cause No. 12-02-01753 CR
_________________________________________________                      _______

                           MEMORANDUM OPINION

      A jury convicted Craig Stephen Hoard of sexual performance by a child

(count one), indecency with a child by sexual exposure (count two), and five

counts of possession of child pornography (counts three through seven). In three

appellate issues, Hoard challenges the admission of extraneous-offense evidence

and expert testimony and the trial court’s denial of his motion to suppress. We

affirm the trial court’s judgment.



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                           Extraneous-Offense Evidence

      In issue one, Hoard contends that the trial court abused its discretion by

allowing the State to present testimony and evidence of extraneous offenses.

Evidence of other crimes, wrongs, or acts may be admissible as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake

or accident. Tex. R. Evid. 404(b). Even relevant evidence may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice. Tex.

R. Evid. 403. We review a trial court’s admission of extraneous-offense evidence

under an abuse of discretion standard. Rankin v. State, 974 S.W.2d 707, 718 (Tex.

Crim. App. 1998) (op. on reh’g). Error may not be predicated upon a ruling which

admits evidence unless a party’s substantial rights are affected. Tex. R. Evid.

103(a); see Tex. R. App. P. 44.2(b). We will not reverse if, after examining the

entire record, we have fair assurance that the error did not influence the jury or had

but slight effect. Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008).

      According to the record, several images of children were found on electronic

devices belonging to Hoard. State’s witness Leonard Keiser, a digital forensic

examiner, testified that he analyzed Hoard’s computer, thumb drive, and iPod,

from which he obtained several images. Keiser opined that the images were

purposefully placed on Hoard’s devices. On cross-examination, Keiser admitted

                                          2
that he cannot tell how the images were placed on the devices or who put the

images on the devices. Keiser also testified that images can be placed on a

computer without the owner’s knowledge.

      The State argued that the defense’s cross-examination of Keiser opened the

door to evidence of extraneous offenses for purposes of identity, intent,

knowledge, and absence of mistake or accident. The State proffered testimony

regarding two extraneous offenses. The defense argued that identity and

knowledge are not controverted issues and that the probative value of the State’s

proffered evidence was outweighed by the danger of unfair prejudice. The trial

court found the evidence admissible to prove identity and intent regarding counts

one and two and to prove intent and absence of mistake or accident as to counts

three through seven. The trial court found that the evidence’s probative value was

not outweighed by the danger of unfair prejudice.

      The trial court instructed the jury that extraneous-offense evidence could

only be considered for purposes of identity, intent, knowledge, and absence of

mistake or accident. C.C., a ten-year-old male, testified that in June 2010, a man

approached him in the restroom at Incredible Pizza and asked if he wanted to make

some money and watch a video on the man’s iPod. When C.C. tried to leave the

restroom, the man grabbed him but eventually let go and C.C. left the restroom.

                                        3
C.C. identified Hoard as the man in the restroom. C.C.’s grandmother testified that

C.C. appeared frightened when he emerged from the restroom and C.C. told her

what happened. She testified that C.C. pointed the man out to her and she

identified Hoard as that man.

      N.R., a twelve-year-old male, testified that in June 2010, a man approached

him in the restroom at Wal-Mart and asked for N.R.’s name. The man asked N.R.

if he wanted to make some money by going into a stall and letting him take nude

photographs of N.R. N.R. declined, agreed not to tell anyone, left the restroom, and

then told his mother what had happened. N.R. identified Hoard as the man in the

restroom. Brad Bell, the Wal-Mart assistant manager, testified that surveillance

cameras captured the man entering the restroom, N.R. entering the restroom, the

man leaving the restroom and reentering the restroom, and N.R. leaving the

restroom followed by the man. Bell recognized the man as someone who had

submitted an employment application. Bell testified that the man’s name was

“Craig Hoard.”

      Assuming, without deciding, that the complained-of testimony qualifies as

inadmissible extraneous-offense evidence and the trial court abused its discretion

by admitting this testimony into evidence, we cannot say that Hoard’s substantial

rights were affected. See Tex. R. Evid. 103(a); see also Tex. R. App. P. 44.2(b).

                                         4
Testimony regarding the two extraneous offenses did not consume an inordinate

amount of time during trial. The State focused the majority of its closing argument

on the evidence establishing the charged offenses. The trial court instructed the

jury, both verbally and in writing in the jury charge, that it could only consider

evidence of extraneous offenses for purposes of identity, intent, knowledge, and

absence of mistake or accident. The trial court’s limiting instruction minimized any

impermissible inference of character conformity. See Lane v. State, 933 S.W.2d

504, 520 (Tex. Crim. App. 1996). We presume the jury followed the trial court’s

instructions. See Renteria v. State, 206 S.W.3d 689, 707 (Tex. Crim. App. 2006).

Moreover, given the evidence before the jury, it is unlikely that the admission of

the complained-of evidence had a substantial effect on the jury’s verdict. See Ladd

v. State, 3 S.W.3d 547, 568 (Tex. Crim. App. 1999). After examining the record as

a whole, we have fair assurance that the error, if any, did not influence the jury, or

had but slight effect. See Taylor, 268 S.W.3d at 592. We overrule issue one.

                                 Expert Testimony

      In issue two, Hoard argues that the trial court abused its discretion by

allowing Dr. David Self to testify at trial. “If scientific, technical, or other

specialized knowledge will assist the trier of fact to understand the evidence or to

determine a fact in issue, a witness qualified as an expert by knowledge, skill,

                                          5
experience, training, or education may testify thereto in the form of an opinion or

otherwise.” Tex. R. Evid. 702. We review the admission of expert testimony for

abuse of discretion. Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim. App. 2010).

      During direct-examination of Dr. Self, a forensic psychologist, the State

asked Self to describe his definition of “lewd exhibition of genitals[.]” The defense

objected on grounds that the question invaded the province of the jury and did not

invite an opinion as required by the Texas Rules of Evidence. The State argued that

Self’s testimony could help the jury understand an ultimate issue in the case. The

trial court ruled that Self could answer basic questions that would educate the

jurors, without being specific to Hoard.

      Self testified that he is familiar with the connection between images or

objects and sexual arousal. Self explained:

      [T]here is not one thing or a set of things that sexually excite people.
      There’s a norm and an average that most people share, but then there
      are folks that are excited by things that are outside the realm of that
      norm or average. And so, it’s more or less in the eye of the beholder.
      And what the individual finds erotic -- what they find sexually
      exciting is how that gets defined.

When asked how a photograph of a child could be sexually stimulating or arousing

to someone, Self responded, “only if that person had a desire -- a sexual excitement

for small children -- for pre-pubescent children, which is well outside that realm of

the norm or average sexual desire.”
                                           6
      The record in this case contains evidence that images of children were found

on various devices owned by Hoard, that one of Hoard’s devices contained a video

of Hoard with the victim, and that the images were purposefully placed on these

devices. The jury was given the opportunity to review these images. For each of

the seven counts, the trial court’s charge advised the jury that it is the exclusive

judge of the facts proven, of the credibility of the witnesses, and of the weight to

be given the witness’s testimony. The trial court also advised the jury that it could

only find Hoard guilty if it so found beyond a reasonable doubt. Assuming without

deciding that the trial court abused its discretion by allowing Self’s testimony, the

record as a whole gives us fair assurance that the error, if any, did not influence the

jury, or had but slight effect. See Taylor, 268 S.W.3d at 592. Because Hoard’s

substantial rights were not affected by any error in the admission of Self’s

testimony, we overrule issue two. See Tex. R. Evid. 103(a); see also Tex. R. App.

P. 44.2(b).

                                 Motion to Suppress

      In issue three, Hoard challenges the trial court’s denial of his motion to

suppress evidence seized from his home at the time of his arrest. “We review a trial

court’s ruling on a motion to suppress under a bifurcated standard of review.”

Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010).

                                          7
      First, we afford almost total deference to a trial judge’s determination
      of historical facts. The trial judge is the sole trier of fact and judge of
      the credibility of the witnesses and the weight to be given their
      testimony. He is entitled to believe or disbelieve all or part of the
      witness’s testimony--even if that testimony is uncontroverted--
      because he has the opportunity to observe the witness’s demeanor and
      appearance.

      If the trial judge makes express findings of fact, we view the evidence
      in the light most favorable to his ruling and determine whether the
      evidence supports these factual findings. When findings of fact are not
      entered, we “must view the evidence ‘in the light most favorable to
      the trial court’s ruling’ and ‘assume the trial court made implicit
      findings of fact that support its ruling as long as those findings are
      supported by the record.’”

      Second, we review a trial court’s application of the law of search and
      seizure to the facts de novo. We will sustain the trial court’s ruling if
      that ruling is “reasonably supported by the record and is correct on
      any theory of law applicable to the case.”

Id. at 447-48 (footnotes omitted).

      In his motion to suppress, Hoard sought to exclude evidence seized as the

result of his arrest and the search of his home. At the suppression hearing,

Detective Jason Waller testified that he obtained a warrant to arrest Hoard. Waller

testified that he knocked on the door of the residence and Hoard’s brother allowed

the officers to enter the home. According to Waller, he intended to arrest Hoard

and Hoard was not free to leave, but Hoard was not handcuffed until officers were

ready to remove Hoard from the residence. Waller testified that he was there to

arrest Hoard for the Wal-Mart incident, but that Hoard volunteered information
                                          8
that he had frightened a child at Incredible Pizza. Hoard also told Waller that he

spoke to the child in the Wal-Mart restroom, asked the child if he could take

photographs of the child, and must have frightened the child. Before arresting

Hoard, Waller asked for and received Hoard’s verbal and written consent to search.

Waller testified that Hoard never withdrew consent. Hoard gave Waller the

passcode to his computer, which contained what Waller described as “lewd

conduct[,]” and the officers seized the computer, an iPod, a thumb drive, an art

book, and a disc. Waller admitted that he did not give Hoard any Miranda

warnings and served Hoard with the arrest warrant after they finished speaking.

      Waller testified that he also obtained consent to search from Hoard’s

brother, David. David testified that he opened the door of his home and found

officers standing outside with guns, after which he gave the officers admittance

into the home that he shared with Hoard. He did not recall officers asking him for

consent to search the home, but he testified that he had no problem with the

officers being at the home, and he testified to pulling out boxes for the officers to

look through. David heard an officer state that Hoard had given consent to search.

David testified that Hoard cooperated with police and that he never saw officers

behave inappropriately, act forcefully, or place a gun in Hoard’s face.




                                          9
      Hoard argued that the arrest warrant was unrelated to the case before the trial

court and that officers failed to give Miranda warnings to Hoard, which rendered

the evidence obtained inadmissible. The trial court found that Hoard’s consent was

voluntary and denied Hoard’s motion to suppress. The trial court’s findings of fact

and conclusions of law state, in pertinent part, that: (1) Waller obtained Hoard’s

verbal and written consent to search; (2) Hoard’s consent was voluntary; (3) a

request for consent to search does not constitute a custodial interrogation; (4) a

lack of Miranda warnings does not render Hoard’s consent involuntary; and (5) the

record does not indicate that the consent was involuntary.

      When determining whether an accused’s consent to search is voluntary, we

look to the totality of the circumstances. Johnson v. State, 68 S.W.3d 644, 653

(Tex. Crim. App. 2002). An officer is not required to inform a suspect of his

Miranda rights before obtaining consent to search. Rayford v. State, 125 S.W.3d

521, 528 (Tex. Crim. App. 2003). While an officer’s failure to inform a suspect

that evidence found can be used against him may be a factor to consider, it does

not automatically render the suspect’s consent involuntary. Id.

      In this case, the trial court heard testimony that Hoard was not handcuffed

and was cooperative. The record does not indicate that officers acted

inappropriately or forcefully. The trial court also heard testimony that Hoard

                                         10
consented, both verbally and in writing, to a search of his home, voluntarily gave

officers the passcode for his computer, and at no time withdrew his consent. The

written consent form, signed by Hoard, states that consent could be refused and

that consent was being freely and voluntarily given. Under these circumstances, the

trial court could reasonably conclude that Hoard’s consent was voluntary. See

Rayford, 125 S.W.3d at 528-29; see also Johnson, 68 S.W.3d at 653. We overrule

issue three and affirm the trial court’s judgment.

      AFFIRMED.




                                               ________________________________
                                                       STEVE McKEITHEN
                                                           Chief Justice

Submitted on August 22, 2013
Opinion Delivered September 18, 2013
Do Not Publish

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




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