                                                                        ACCEPTED
                                                                    01-15-00222-CR
                                                         FIRST COURT OF APPEALS
                                                                 HOUSTON, TEXAS
                                                               12/7/2015 3:12:15 PM
                                                              CHRISTOPHER PRINE
                                                                             CLERK

            NOS. 01-15-00220-CR,
       01-15-00221-CR, 01-15-00222-CR
                                                   FILED IN
                                            1st COURT OF APPEALS
                 IN THE                         HOUSTON, TEXAS
    FIRST DISTRICT COURT OF APPEALS         12/7/2015 3:12:15 PM
             HOUSTON, TEXAS                 CHRISTOPHER A. PRINE
                                                    Clerk


        GARY JAMES COX, Appellant

                      V.

      THE STATE OF TEXAS, Appellee


 Appealed from the 122ND Judicial District Court
            Galveston County, Texas
Cause Nos. 13-CR-0183, 13-CR-0184, 14-CR-3651



    BRIEF FOR THE STATE OF TEXAS



             JACK ROADY
      CRIMINAL DISTRICT ATTORNEY
          GALVESTON COUNTY

            ALLISON LINDBLADE
ASSISTANT CRIMINAL DISTRICT ATTORNEY
            GALVESTON COUNTY
          STATE BAR NO. 24062850
        600 59TH STREET, SUITE 1001
            GALVESTON, TX 77551
     (409) 766-2355, FAX (409) 765-3261
      allison.lindblade@co.galveston.tx.us




                       i
                             TABLE OF CONTENTS

Table of Contents                                                          ii

Identity of Parties and Counsel                                            iv

Index of Authorities                                                       v

Statement Regarding Oral Argument                                          1

Summary of the Argument                                                    1

Statement of Facts                                                         3

Sole Issue                                                                 9
             Rule 403 does not require exclusion of evidence simply
             because it creates prejudice. The prejudice must be unfair.
             Unfair prejudice refers only to the tendency of relevant
             evidence to tempt the jury into finding guilt on grounds
             apart from proof of the offense charged.

             How did the extraneous child pornography unfairly
             prejudice Cox when it directly related to the Attempted
             Sexual Performance of a Child charge, was admissible
             under Article 38.37, and admissible to rebut a defensive
             theory?

      Argument and Authorities                                             9

      I. Standard of Review and applicable law                             10

      II. The trial court’s ruling on the extraneous evidence of child
      pornography                                                          14

      III. The child pornography was admissible as propensity or
      character evidence according to Texas Code of Criminal
      procedure Article 38.37 §2.                                          16




                                          ii
      IV. The evidence was admissible to rebut the defensive theory
      that Cox had no intent.                                              17

      V. A Rule 403 analysis demonstrates that the admission of the
      child pornography was not unfairly prejudice to Cox.                 20

             A. First factor: the probative value of the evidence.         22

             B. Second factor: the potential of the evidence to impress
             the jury in some irrational but nevertheless indelible way.   22

             C. Third factor: the time needed for the State to develop
             the evidence.                                                 24

             D. Fourth factor: the State’s need for the evidence.          24

      VI. Cox’s facts are distinguishable from the facts in Pawlak.        26

      VII. Conclusion: the admission of all the child pornography was
      more probative than prejudicial.                                     27

Conclusion and Prayer                                                      29

Certificate of Service                                                     30

Certificate of Compliance                                                  30




                                          iii
                  IDENTITY OF PARTIES AND COUNSEL


Presiding Judge                            Hon. John Ellisor

Appellant                                  Gary James Cox

Appellee                                   The State of Texas

Attorneys for Appellant                    Mike Gilliam – Trial

                                           Joel Bennett – Appeal

Attorneys for State                        Adam Poole – Trial

                                          Allison Lindblade – Appeal




 The Clerk’s Record is referred to in the State’s Brief as “C.R. cause number:

 page”. The Reporter’s Record is multiple volumes and is referred to as “R.R.

 volume number: page”.




                                     iv
                                              INDEX OF AUTHORITIES


CASES 

Bass v. State, 270 S.W.3d 557, 564 (Tex. Crim. App. 2008) ..................................18

Bradshaw v. State, ––– S.W.3d ––––, ––––, No. 06–14–00165–CR, 2015 WL
 2091376, at *7 (Tex. App.—Texarkana May 5, 2015, pet. filed). .......................13

Bradshaw v. State, 65 S.W.3d 232, 236 (Tex. App.—Waco 2001, no pet.) ...........10

Brantley v. State, 48 S.W.3d 318, 329–30 (Tex. App.—Waco 2001, pet. ref'd) ........
  ...............................................................................................................................12

Burke v. State, 371 S.W.3d 252, 257–58 (Tex. App.–Houston [1st Dist.] 2011, pet.
 dism'd) ............................................................................................................ 23, 26

Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). ........................ 14, 25

Couret v. State, 792 S.W.2d 106, 107 (Tex. Crim. App. 1990) ..............................10

Daggett v. State, 187 S.W.3d 444, 450–51 (Tex. Crim. App. 2005)................ 11, 12

Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2010). ...............................14

Dominguez v. State, 467 S.W.3d 521, ––––, 2015 WL 1939378, at *4 (Tex. App.–
 San Antonio 2015, pet. filed) ................................................................................17

Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004) ..................................26

Gigliobianco v. State, 210 S.W.3d 637, 640 (Tex. Crim. App. 2006). ...................25

Hammer v. State, 296 S.W.3d 555, 561–62 (Tex. Crim. App. 2009)…. ... 13, 22, 26

Hankton v. State, 23 S.W.3d 540, 545 (Tex. App.—Houston [1st Dist.] 2000, pet.
 ref'd) ............................................................................................................... 10, 11




                                                                v
Harris v. State, 14-14-00152-CR, 2015 WL 4984560, at *4-5 (Tex. App.—
 Houston [14th Dist.] 2015, pet. ref’d)...................................................................11

Hernandez v. State, 03-13-00186-CR, 2014 WL 7474212, at *8 (Tex. App.—
 Austin Dec. 30, 2014, no pet.) ..............................................................................26

Hernandez v. State, 390 S.W.3d 310, 323-24 (Tex. Crim. App. 2012)............ 14, 21

Jenkins v. State, 993 S.W.2d 133, 136 (Tex. App.—Tyler 1999, pet. ref'd) .... 12, 14

Martin v. State, 176 S.W.3d 887, 902 (Tex. App.—Fort Worth 2005, no pet.) ..........
 ...............................................................................................................................12

McCulloch v. State, 39 S.W.3d 678, 683–84 (Tex. App.–Beaumont 2001, pet.
 ref'd) ......................................................................................................................17

Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1991). ....... 11, 23, 27

Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999)...............................15

Pawlak v. State, 420 S.W.3d 807 (Tex. Crim. App. 2013)......................... 27, 28, 29

Plante v. State, 692 S.W.2d 487, 491–92 (Tex. Crim. App. 1985) .........................11

Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001) ................................18

Rankin v. State, 995 S.W.2d 210, 213 (Tex. App.—Houston [14th Dist.] 1999, pet.
 ref'd) ......................................................................................................................11

Salazar v. State, 38 S.W.3d 141, 151 (Tex. Crim. App. 2001). ..............................15

Sandoval v. State, 14-12-00879-CR, 2014 WL 3870504, at *11-12 (Tex. App.—
 Houston [14th Dist.] Aug. 7, 2014, no pet.) .........................................................22

Sarabia v. State, 227 S.W.3d 320, 323 (Tex. App.—Fort Worth 2007, pet. ref'd) .....
  ...............................................................................................................................15


State v. Balderas, 915 S.W.2d 913, 919 (Tex. App.—Houston [1st Dist.] 1996, pet.


                                                                vi
  ref’d) ......................................................................................................................18

State v. Mechler, 153 S.W.3d 435, 440-441 (Tex. Crim. App. 2005). ......... 9, 23, 24

Threadgill v. State, 146 S.W.3d 654, 671 (Tex. Crim. App. 2004).........................21

Wenger v. State, 292 S.W.3d 191 (Tex. App.—Fort Worth 2009, no pet.) ............15

Wheeler v. State, 67 S.W.3d 879, 885 (Tex. Crim. App. 2002) ..............................18

Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) ...........................18

Wright v. State, 178 S.W.3d 905, 923 (Tex. App.—Houston [14th Dist.] 2005, pet.
 ref'd). .............................................................................................................. 21, 22

Wysack v. State, 01-13-00683-CR, 2015 WL 4366245, at *9 (Tex. App.—Houston
 [1st Dist.] pet. ref’d, 2015). ............................................................................ 23, 26

Young v. State, 242 S.W.3d 192, 202 (Tex. App.—Tyler 2007, no pet.) ................15


STATUTES 

TEX. CODE CRIM. PROC. art. 38.22 ...........................................................................18

TEX. CODE CRIM. PROC. art. 38.37, § 1(b). ..............................................................12

TEX. CRIM. PROC. CODE § art. 38.37 §2(1)(E). ........................................................17

TEX. CRIM. PROC. CODE § art. 38.37(b). ..................................................................16


OTHER AUTHORITIES 

Senate Comm, on Criminal Justice, Bill Analysis, Tex. S.B. 12, 83d Leg. R.S.
 (2013) ....................................................................................................................13




                                                              vii
RULES 

TEX. R. EVID. 404(b) ................................................................................................10




                                                         viii
TO THE HONORABLE COURT OF APPEALS:

       Now comes Jack Roady, Criminal District Attorney for Galveston County,

Texas, and files this brief for the State of Texas.

              STATEMENT REGARDING ORAL ARGUMENT

       The State of Texas does not request oral argument.

                       SUMMARY OF THE ARGUMENT

       Gary Cox brings a single issue on appeal in order to reverse his convictions

of Aggravated Sexual Assault of a Child under Six enhanced with an Aggravated

Sexual Assault of a Child, Attempted Sexual Performance of a Child, and Failure

to Register as a Sex Offender for which he received a statutory life sentence in

addition to 2 ten year sentences.

       Cox alleges that the sheer volume of the admission of child pornography

images, 1994 in all, were unfairly prejudicial to his case.

       Even if this evidence was prejudicial to Cox, it was not unfairly

prejudicial because of the fact that it relates to the charged offense. The

extraneous child pornography evidence directly relates to the charged offenses,

specifically, the Attempted Sexual Performance of a Child. Because the

complained-of evidence relates to the charged offense, it did not have great

potential to impress the jury in an irrational way. Additionally, there was no

                                           1
unfair prejudice due to the volume of pornography because the State only

showed a few pages of thumbnail images of child pornography to the jury and

the record does not support the premise that the jury reviewed the images during

its deliberations. The evidence was also admissible under Article 38.37, and to

rebut a defensive theory.

   For all these reasons, the Trial Court did not err to admit the extraneous

evidence.




                                       2
                              STATEMENT OF FACTS

       At the time of the sexual abuse, Tom and Debbie Bowman had three

children: an 18 year old son, and two daughters, 13 and 3 years old,

respectively.1 The Bowmans came to know Cox when he dated Debbie’s sister.2

After that dating-relationship ended, the Bowmans asked Cox to house sit for

them during the summer of 2013 while they went on vacation.3 They were trying

to help Cox because he needed a place to stay.4 Soon after that, their son moved

out of the house.5 The Bowmans offered to let Cox continue to stay in their

home and to live in their son’s bedroom.6 Cox lived continuously with the

Bowmans from about August to December of 2013.7

       The Bowmans allowed Cox to live in their home even though they knew

he was a convicted sex offender.8 Tom and Debbie trusted and befriended Cox.9

They left their kids alone with Cox.10 Debbie told the jury that she came to trust

Cox because he believed in God and he prayed with them.11 Both Tom and

Debbie testified that they didn’t see any improper behavior between their girls
1
  R.R.V:19-20, 28, 44.
2
  R.R.V:21, 42.
3
  R.R.V:22; State’s Exhibit No. 2 (In-custody interview of Cox).
4
  R.R.V:22-23.
5
  R.R.V:22-23.
6
  R.R.V:22-23.
7
  R.R.V:45; State’s Exhibit No. 2.
8
  R.R.V:24-25.
9
  R.R.V:45-46.
10
   R.R.V:45-46.
11
   R.R.V:38.


                                              3
and Cox until the phone was discovered.12 Tom and Debbie didn’t see any signs

or behaviors from the girls that they were afraid of Cox.13 Debbie told the jury

that Cox would play with the girls and tickle the 3 year old.14 She said she didn’t

see anything that was inappropriate.15

      One afternoon, Debbie discovered that her 13 year old daughter had a cell

phone.16 Debbie and Tom hadn’t given it to her.17 Debbie told Tom and gave

him the phone when he came home.18 Tom looked on the phone and saw a text

conversation.19 It appeared to be between his 13 year old daughter and Cox.20

Some of the texts included, “And you can practice on role playing /sexing with

me without the fear of messing up, if you want.”21 “What would you do if you

woke up and you were coming because a guy was going down on you?”22

“Would you tell him to stop, or just keep cumming because it felt so good?”23

“Remember those pics of me….. The special ones?”24 “The ones of me, nude.”25


12
   R.R.V:26, 29, 44.
13
   R.R.V:25-26.
14
   R.R.V:35.
15
   R.R.V:35.
16
   R.R.V:29-30.
17
   R.R.V:29-30.
18
   R.R.V:29-30.
19
   R.R.V:47-49.
20
   R.R.V:51-52.
21
   State’s Exhibit 1 (list of texts on Facebook Messenger from Gary Cox and 13 year old
victim).
22
   State’s Exhibit 1.
23
   State’s Exhibit 1.
24
   State’s Exhibit 1.


                                          4
“Well, to make it fair, where’s the pics of you? Lol.”26 “Lol, but now I’m

supposed to see your pics….lol.”27 “I’m just teasing with you.”28 “Then you

better take the pics fast….hahaha.”29

       After Tom read the texts, he told Cox he wasn’t allowed to live with them

anymore.30 The Bowmans took the phone to the League City Police Department

and filed a complaint.31

       After Cox moved out, their 3 year old started sleeping with them more.32

After they moved to Ohio, the 3 year old allowed a boy to draw on the upper

part of her leg near her vagina.33 Alarmed and knowing that Cox had a prior

sexual assault with a child conviction before he lived with them, the Bowman’s

asked for the matter to be further investigated.

       League City Police Detective Martin Grant spoke with the Bowmans.34

The 3 year old victim was sent to the Child Advocacy Center for a forensic

interview and then to the hospital for a medical exam.35 During her forensic

interview, later ruled to be her outcry, the 3 year old told the examiner that Cox
25
   State’s Exhibit 1.
26
   State’s Exhibit 1.
27
   State’s Exhibit 1.
28
   State’s Exhibit 1.
29
   State’s Exhibit 1.
30
   R.R.V:53.
31
   R.R.V:53.
32
   R.R.V:36, 59-60.
33
   R.R.V:55.
34
   R.R.V:117.
35
   R.R.V:181, VI:10.


                                         5
took her clothes off.36 By pointing to an anatomic diagram, the 3 year old told

the interviewer that Cox put his penis in her vagina.37 She said she saw the stuff

and that the stuff was white.38 By pointing to the picture, the 3 year old said that

Cox put his penis in her butt.39 She said it hurt.40 She said that he put his penis in

her mouth.41 She said it tasted like orange juice.42

       In trial, the 3 year old told the jury, with the aid of a diagram, that Cox’s

penis touched her vagina underneath her clothes.43 She said she likes to play

make believe being a princess.44 She told the jury that this wasn’t a pretend

story.45 This really happened.46

       During his investigation, Detective Grant discovered Cox was not current

on his registration as a sex offender.47 Cox was charged with failure to register

as a sex offender and Detective Grant obtained a warrant for his arrest.

       Once Cox was in custody, Detective Grant obtained a video recorded

statement from Cox.48 During this statement, Cox denied that the texts he sent to


36
   R.R.VI:184-186.
37
   R.R.VI:184-186.
38
   R.R.VI:184-186.
39
   R.R.VI:184-186.
40
   R.R.VI:184-186.
41
   R.R.VI:184-186.
42
   R.R.VI:184-186.
43
   R.R.V:115.
44
   R.R.V:107-108.
45
   R.R.V:115.
46
   R.R.V:115.
47
   R.R.V:118.


                                          6
the 13 year old victim were anything but joking and teasing.49 Cox claimed that

the 13 year old was looking for advice and he was providing it.50 Cox said that

he never intended for her to send him any nude photos.51 Cox said that she saw a

nude photo of him only by accident while she was looking at the pictures on his

phone.52

      During his interview, Cox said that he cared for the girls but he strongly

denied being sexually attracted to children.53 Cox admitted that he spent time

alone with the girls.54 He said that he would kiss them good-night on the

forehead.55 Cox adamantly denied any sexual contact with the 3 year old

victim.56 Cox denied his failure to register saying it was just a

misunderstanding.57

      Cox was charged and indicted with Aggravated Sexual Assault of a Child

Under Six, Attempted Sexual Performance of a Child, and Failure to Register As

a Sex Offender.58 The jury found Cox guilty of all charges. Cox was sentenced



48
   State’s Exhibit 2.
49
   State’s Exhibit 2.
50
   State’s Exhibit 2.
51
   State’s Exhibit 2.
52
   State’s Exhibit 2.
53
   State’s Exhibit 2.
54
   State’s Exhibit 2.
55
   State’s Exhibit 2.
56
   State’s Exhibit 2.
57
   State’s Exhibit 2.
58
   C.R. 13CR0183:7, C.R. 13CR0184:6, C.R. 14CR3651:5.


                                         7
to life imprisonment in the Texas Department of Criminal Justice in addition to

two 10 years sentences.59 This appeal followed.




59
     C.R. 13CR0183: 185-189, C.R. 13CR0184:78-83, C.R. 14CR3651:36-41.


                                           8
                                     SOLE ISSUE

     Rule 403 does not require exclusion of evidence simply because it
     creates prejudice. The prejudice must be unfair. Unfair prejudice refers
     only to the tendency of relevant evidence to tempt the jury into finding
     guilt on grounds apart from proof of the offense charged.

     How did the extraneous child pornography unfairly prejudice Cox when
     it directly related to the Attempted Sexual Performance of a Child
     charge, was admissible under Article 38.37, and admissible to rebut a
     defensive theory?


                       ARGUMENT AND AUTHORITIES

       Cox believes that the admission of the numerous child pornography

images, 1994 in all, were unfairly prejudicial to his case.

       Even if this evidence was prejudicial to Cox, it was not unfairly

prejudicial because of the fact that it relates to the charged offense.60 The

extraneous child pornography evidence directly relates to the charged offenses,

specifically, the Attempted Sexual Performance of a Child.61 Because the

complained-of evidence relates to the charged offense, it did not have great

potential to impress the jury in an irrational way.62

       Cox alleges that the sheer volume of the evidence was unfairly


60
   See State v. Mechler, 153 S.W.3d 435, 440-441 (Tex. Crim. App. 2005).
61
   See id.
62
   See id. at 441.


                                            9
prejudicial.63 However, there was no unfair prejudice due to the volume of

pornography because the State only showed a few pages of thumbnail images of

child pornography to the jury.64 When the child pornography evidence was

explained by the investigator, the jury was shown computer files and icons that

were believed to contain child pornography.65 Additionally, there is nothing in

the record that indicates the jury was given this evidence during deliberations or

that the jury had time to view all the images during the time it took to reach a

guilty verdict.

       The admission of this extraneous evidence was not error.

I.     Standard of review and applicable law
       The general rule is that an accused may not be tried for being a criminal

generally.66 Evidence of other crimes, wrongs or acts are not admissible to prove

the character of the defendant and that he acted in conformity with that

character.67 However, evidence may be admissible if it has relevance separate

from the tendency to prove the defendant’s character.68 A party may introduce

such evidence where it tends to establish some elemental fact, such as identity or

63
   Cox brief, p. 31.
64
   R.R.VI:29-31.
65
   R.R.VI:29-31.
66
   Couret v. State, 792 S.W.2d 106, 107 (Tex. Crim. App. 1990); Hankton v. State, 23 S.W.3d
540, 545 (Tex. App.—Houston [1st Dist.] 2000, pet. ref'd); Bradshaw v. State, 65 S.W.3d
232, 236 (Tex. App.—Waco 2001, no pet.).
67
   TEX. R. EVID. 404(b); Hankton, 23 S.W.3d at 545.
68
   TEX. R. EVID. 404(b); Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1991).


                                            10
intent; some evidentiary fact, such as motive, opportunity or preparation, leading

inferentially to an elemental fact; or “it rebuts a defensive theory by showing,

e.g., absence of mistake or accident.”69 When a defendant claims his act was free

from criminal intent, extraneous offenses are relevant to prove guilty intent.70

       Appellate courts measure the trial court’s rulings concerning the

admissibility of evidence of other crimes, wrongs, or acts under Rule 404(b) by

an abuse of discretion standard.71 As long as the trial court’s ruling was at least

within the zone of reasonable disagreement, the appellate court will not interfere

with the ruling.72

       Although the general rule provides that evidence of extraneous offenses

may not be used against the accused in a criminal trial, the Legislature has

chosen to make specific and limited exceptions to this prohibition.73 For

example, “Rule 404(b) sets out an illustrative, not exhaustive, list of exceptions

to the prohibition against admitting evidence of extraneous offenses including

‘proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or




69
   Montgomery, 810 S.W.2d at 387, 388.
70
   Plante v. State, 692 S.W.2d 487, 491–92 (Tex. Crim. App. 1985); Rankin v. State, 995
S.W.2d 210, 213 (Tex. App.—Houston [14th Dist.] 1999, pet. ref'd).
71
   Montgomery, 810 S.W.2d at 391; Hankton, 23 S.W.3d at 546.
72
   Montgomery, 810 S.W.2d at 391; Hankton, 23 S.W.3d at 546.
73
   Daggett v. State, 187 S.W.3d 444, 450–51 (Tex. Crim. App. 2005); Harris v. State, 14-14-
00152-CR, 2015 WL 4984560, at *4-5 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d).


                                            11
absence of mistake or accident.’”74 Section 1 of Article 38.37 of the Texas Code

of Criminal Procedure also provides an exception to the general rule by allowing

“evidence of other crimes, wrongs, or acts committed by the defendant against

the child who is the victim of the alleged offense” for its bearing on relevant

matters, including the state of mind of the defendant and the child and the

previous and subsequent relationship between the defendant and the child.75 This

exception has been held to be constitutional by several Texas courts of appeals.76

       It is clear that the Legislature chose to carve out another exception to the

prohibition on evidence of extraneous offenses when it enacted Article 38.37,

Section 2 of the Texas Code of Criminal Procedure. The statute recognizes that

evidence of this type is, by definition, propensity or character evidence and that

it is admissible notwithstanding those characteristics.77 The legislative history

behind Section 2(b) reflects that it was enacted to “give prosecutors additional

resources to prosecute sex crimes committed against children” due to the “nature

of these heinous crimes and the importance of protecting children from sexual
74
   Id. at 451 n. 13.
75
   TEX. CODE CRIM. PROC. art. 38.37, § 1(b).
76
   See Martin v. State, 176 S.W.3d 887, 902 (Tex. App.—Fort Worth 2005, no pet.) (holding
that Article 38.37, Section 1 did not deny appellant constitutional right to due process);
Brantley v. State, 48 S.W.3d 318, 329–30 (Tex. App.—Waco 2001, pet. ref'd) (rejecting
appellant's argument that article 38.37 was unconstitutional “because it permits a blanket
introduction of propensity evidence”); Jenkins v. State, 993 S.W.2d 133, 136 (Tex. App.—
Tyler 1999, pet. ref'd) (holding appellant was not denied fair trial guaranteed by Due Process
Clause by admission of evidence of extraneous bad acts).
77
   Bradshaw v. State, ––– S.W.3d ––––, ––––, No. 06–14–00165–CR, 2015 WL 2091376, at
*7 (Tex. App.—Texarkana May 5, 2015, pet. filed).


                                             12
predators.”78 The Legislature acknowledged that:

             Prosecuting sex crimes committed against children can
             be difficult due to the physical and emotional trauma
             suffered by the victims. This can result in long delays
             in reporting these crimes during which physical
             evidence can deteriorate or be destroyed. Often the
             only evidence at a trial may be the testimony of the
             traumatized child. Children often are targeted for these
             crimes, in part because they tend to make poor
             witnesses.79

The Court of Criminal Appeals has also recognized that “[s]exual assault cases

are frequently ‘he said, she said’ trials in which the jury must reach a unanimous

verdict based solely upon two diametrically different versions of an event,

unaided by any physical, scientific, or other corroborative evidence.”80 “The

special circumstances surrounding the sexual assault of a child victim outweigh

normal concerns associated with evidence of extraneous acts.”81

      Texas Rule of Evidence 403 allows for the exclusion of otherwise

relevant evidence when its probative value is substantially outweighed by the

danger of unfair prejudice.82 This rule carries a presumption that relevant




78
   Senate Comm, on Criminal Justice, Bill Analysis, Tex. S.B. 12, 83d Leg. R.S. (2013);
Bradshaw, ––– S.W.3d ––––, ––––, 2015 WL 2091376, at *7.
79
   Senate Comm, on Criminal Justice, Bill Analysis, Tex. S.B. 12, 83d Leg. R.S. (2013);
Bradshaw, ––– S.W.3d ––––, ––––, 2015 WL 2091376, at *7.
80
   Hammer v. State, 296 S.W.3d 555, 561–62 (Tex. Crim. App. 2009).
81
   Jenkins, 993 S.W.2d at 136.
82
   Hernandez v. State, 390 S.W.3d 310, 323-24 (Tex. Crim. App. 2012).


                                          13
evidence will be more probative than prejudicial.83 “‘Probative value’ refers to

the inherent probative force of an item of evidence-that is, how strongly it serves

to make more or less probable the existence of a fact of consequence to the

litigation-coupled with the proponent’s need for that item of evidence.”84

       “Unfair prejudice” refers to the tendency to suggest that decisions may be

made on an improper basis, commonly an emotional one.85 All evidence is

prejudicial to one party or the other-it is only when there is a clear disparity

between the degree of prejudice of the offered evidence and its probative value

that Rule 403 is applicable.86 Similar to the admission of evidence under Rule

404B, a trial court’s decision to allow or disallow evidence under Rule 403 is

reviewed for an abuse of discretion, and in doing so, the appellate court will

reverse a decision only when it lies outside the zone of reasonable

disagreement.87 However, the Court of Criminal Appeals has said that a reversal

of the trial court's judgment regarding a balancing test determination should be

done “rarely and only after a clear abuse of discretion.”88

II.    The trial court’s ruling on the extraneous evidence of child
       pornography

83
   See Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2010).
84
   Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007).
85
   Id.; Hernandez, 390 S.W.3d at 323-24.
86
   See Davis, 329 S.W.3d at 806.
87
   Salazar v. State, 38 S.W.3d 141, 151 (Tex. Crim. App. 2001).
88
   Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999) (emphasis added).


                                           14
              THE COURT: The State has proffered that they want
              to put in some evidence seized from Mr. Cox’s
              computer that would compromise or would be
              comprised of child pornography. There’s been an
              objection by the Defense basically raising a 4.03
              objection that however probative the evidence might
              be, that it would be more prejudicial than probative.

              I have looked at the case law that’s been provided by
              the State.89 I have heard the voir dire, the opening
              statement by the Defense. I’ve heard the tenor of the
              cross-examination. And I believe that the evidence is
              probative of the ultimate issues in this case. I think
              they go toward issues that the Jury’s going to need to
              decide.

              And I’ll quote something regarding unfair prejudice,
              which is what my job is to do is to determine that no
              unfair prejudice is put on Mr. Cox, that the Jury would
              not be unfairly prejudiced by what they hear. It says,
              "Unfair prejudice refers to a tendency to suggest a
              decision on an improper basis commonly, although not
              necessarily an emotional one. Only unfair prejudice
              provides the basis for exclusion of relevant evidence."

              In light of Mr. Cox’s denial of having interest in
              children, in light of his denial of being serious about
              suggesting that [V.B.] provide him with pictures that
              would be of a pornographic nature, I think that the
              evidence is relevant, I think it is not unfairly
              prejudicial.

              In balancing the interest of Mr. Cox and the State’s
              need for this evidence, I’m going to err on the side for
              the State and overrule your objection.90
89
   Sarabia v. State, 227 S.W.3d 320, 323 (Tex. App.—Fort Worth 2007, pet. ref'd); Young v.
State, 242 S.W.3d 192, 202 (Tex. App.—Tyler 2007, no pet.); Wenger v. State, 292 S.W.3d
191 (Tex. App.—Fort Worth 2009, no pet.).
90
   R.R.V:159-160.


                                           15
III. The child pornography was admissible as propensity or
     character evidence according to Texas Code Criminal
     Procedure Article 38.37 §2.
Article 38.37 instructs:

             (b) Notwithstanding Rules 404 and 405, Texas Rules
             of Evidence, and subject to Section 2-a, evidence that
             the defendant has committed a separate offense
             described by Subsection (a)(1) or (2) may be admitted
             in the trial of an alleged offense described by
             Subsection (a)(1) or (2) 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.91

“The statute simply provides that a specific type of evidence will be admissible

on certain relevant matters, notwithstanding Rules 404 and 405.”92 “Article

38.37, section 2(b) allows testimony regarding other extraneous offenses to

show character conformity.”93

      Here, one of the cases before the jury was Cox’s charge of Aggravated

Sexual Assault of a Child, with a 3 year old female victim.94 According to

Article 38.37 §2(1)(E), the article applies in the prosecution for Aggravated



91
   TEX. CRIM. PROC. CODE § art. 38.37(b).
92
   Dominguez v. State, 467 S.W.3d 521, ––––, 2015 WL 1939378, at *4 (Tex. App.–San
Antonio 2015, pet. filed); McCulloch v. State, 39 S.W.3d 678, 683–84 (Tex. App.–Beaumont
2001, pet. ref'd).
93
   Dominguez, 467 S.W.3d 521, ––––, 2015 WL 1939378, at *4; McCulloch, 39 S.W.3d at
683–84.
94
   C.R. 7.


                                          16
Sexual Assault of a Child.95 The child pornography was relevant to corroborate

the 3 year old victim’s testimony that, in addition to the sexual acts Cox

committed upon her, he also photographed her. The child pornography was

relevant to counter the defensive theory that the sexual assault on the child just

didn’t occur;96 to rebut the defensive theory that the 3 year old child’s “delayed

outcry” was a result of the investigation into the lude texts Cox sent to her

sister;97 and to refute the defensive theory that the relationship Cox had with

both the victims was a healthy relationship.98

IV. The evidence was admissible to rebut the defensive theory
    that Cox had no intent.
       Once the defense opens the door, through either its opening statement or

cross examination, the State can offer extraneous offense evidence to rebut the

defensive theory.99 However, the State may not elicit the defensive theory it

wishes to rebut.100

       Cox maintains that the State was the party the introduced the evidence it




95
   TEX. CRIM. PROC. CODE § art. 38.37 §2(1)(E).
96
   R.R.V:15-16.
97
   R.R.V:36
98
   R.R.V:35-36.
99
    Bass v. State, 270 S.W.3d 557, 564 (Tex. Crim. App. 2008); Powell v. State, 63 S.W.3d
435, 438 (Tex. Crim. App. 2001); Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App.
2009).
100
    See Wheeler v. State, 67 S.W.3d 879, 885 (Tex. Crim. App. 2002).


                                           17
wished to rebut.101 While Cox is correct that the State admitted his interview

video, this evidence was properly admitted after Cox had presented a clear

defensive theory to the jury in his opening statement and throughout the cross-

examinations of all 4 witnesses that preceded the introduction of the video.102

       In Cox’s opening statement he told the jury,

                     In regards to the attempted sexual performance
              of a child, the second charge, I think the evidence will
              show totally inappropriate text messages from my
              client to [V.B.]. I believe the evidence will show that.
              But the evidence will not show that Gary Cox had the
              intent of actually trying to get [V.B.] to send him a
              nude picture. Rather, I think the evidence will show
              totally inappropriate humor or inappropriate attempt at
              humor from my client to [V.B.], but nothing more.103

The cross examination questions included the following:

Question to Deborah Bowman:

                                    When [L.B.] was around Gary Cox before you
                                    discovered the messages, did [L.B.] ever show
                                    that she was afraid of Gary at all?

                                    A. No. But she was young.



101
    Cox’s brief, p. 31.
102
    R.R.V:153; see TEX. CODE CRIM. PROC. art. 38.22; see also State v. Balderas, 915 S.W.2d
913, 919 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d) (This Court held that the
confession conformed to all the elements of article 38.22 of the Texas Code of Criminal
Procedure. It was apparent from Officer Trevino’s testimony that he gave appellee his
statutory warnings and that appellee understood those rights and so indicated by initialing
each right on his written statement.).
103
    R.R.V:16 (emphasis added).


                                            18
                                Q. And -- and -- and would she play with Gary
                                at all or anything at all?

                                A. Well, yeah.

                                Q. And how would they play? What would they
                                do?

                                A. Well, he would, I mean, just joke around and
                                hold her and sometimes tickle her and I mean –
                                but nothing that we didn't think was abnormal.

                                Q. Did she ever look at Gary and start to cry or
                                run away from him or anything like that?

                                A. No.104

                                Q. Did you ever inquire as to whether the
                                messages were an inappropriate attempt at
                                humor by Gary Cox?105

Question to Tom Bowman:         Q. Did you ever inquire as to whether some of
                                those messages -- and again, this is did you ever
                                inquire. I’m going to ask -- the question is
                                whether you ever inquired as to whether those
                                text messages were just a very inappropriate
                                attempt at humor. Did you ever ask about that or
                                did that never just come into play?106

Questions to the 13 year-old victim [V.B.]:

                                Q. Did he at the time include, like, “Just
                                kidding,” after he made the request in the
                                message?

                                Q. After some of those requests, there’s little
104
    R.R.V:35-56.
105
    R.R.V:39.
106
    R.R.V: 60-61.


                                       19
                                  letters like “LOL.” What does that mean?

                                  Q. And also with the messages, did Mr. Gary
                                  say he was just teasing you? Is that --

                                  A. Yes, sir, he would say that.

                                  Q. Now, I know you’ve had -- it’s been two
                                  years. And over time you can think differently.
                                  But back then -- even though today you think
                                  differently. But back then did you think it was
                                  just a joke or teasing even though you were
                                  uncomfortable?

                                  A. I don’t think he was really teasing.

                                  Q. At the time did you think he was?

                                  A. I didn’t think at the time he was teasing
                                  either. I was just, like, I don’t think so. Actually,
                                  I was, like, "Uh, okay." But, like, what I meant
                                  by that was, like, I’m okay without it, without
                                  doing that.107

         Throughout trial, Cox consistently maintained a clear defensive strategy.

Even before the jury viewed his interview video, Cox wanted the jury to believe

that he had a normal relationship with the victims, that he had no intent to

procure a nude photo from the 13 year old victim, and that the 3 year old’s

sexual assault outcry was a fabrication.

V.       A Rule 403 analysis demonstrates that the admission of the
         child pornography was not unfairly prejudice to Cox.

107
      R.R.V:85-86.


                                           20
         In addition to the admissibility of the child pornography evidence under

Article 38.27 and to rebut a defensive theory, its probative value substantially

outweighed the danger of unfair prejudice.108

         Rule 403 favors the admission of relevant evidence and carries a

presumption that relevant evidence will be more probative than prejudicial.109

Trials involving sexual assault may raise particular evidentiary and

constitutional concerns because the credibility of both the complainant and

defendant is a central, often dispositive, issue.110 Sexual assault cases are

frequently “he said, she said” trials in which the jury must reach a unanimous

verdict based solely upon two diametrically different versions of an event,

unaided by any physical, scientific, or other corroborative evidence.111

         A Rule 403 analysis demonstrates that the admission of the child

pornography was not unfairly prejudice to Cox. A Rule 403 analysis includes

such factors as “(1) the probative value of the evidence; (2) the potential of the

evidence to impress the jury in some irrational but nevertheless indelible way;

(3) the time the proponent needs to develop the evidence; and (4) the


108
   Hernandez, 390 S.W.3d at 323-24.
109
   Threadgill v. State, 146 S.W.3d 654, 671 (Tex. Crim. App. 2004) (en banc); Wright v.
State, 178 S.W.3d 905, 923 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd).

110
      Hammer, 296 S.W.3d at 561-62.
111
      Id.


                                          21
proponent’s need for the evidence.”112

       A. First factor: the probative value of the evidence.

       Here, the first factor weighs in favor of admissibility because the evidence

that Cox possessed and viewed child pornography was probative of his state of

mind and made more probable that he had the intent and motive to sexually

assault the 3 year old victim, as well as, induce the 13 year old victim to send

him nude photographs of herself.113

       B.      Second factor: the potential of the evidence to
               impress the jury in some irrational but
               nevertheless indelible way.
       The second factor also weighs in favor of admissibility. The intent behind

Cox’s texts to the 13 year old victim was the focus of significant dispute during

trial. The jury could not have been distracted from the charged offenses because

the complained-of evidence directly relates to the charged offenses, specifically,

the Attempted Sexual Performance of a Child.114 Also, although the contested

evidence was prejudicial to Cox, it was not unfairly prejudicial because of the


112
    Sandoval v. State, 14-12-00879-CR, 2014 WL 3870504, at *11-12 (Tex. App.—Houston
[14th Dist.] Aug. 7, 2014, no pet.); Wright, 178 S.W.3d at 923.
113
    See Montgomery, 810 S.W.2d at 381 (holding evidence defendant had frequently exposed
himself to complainants on prior occasions probative of his “manner” with them and not
unfairly prejudicial); Burke v. State, 371 S.W.3d 252, 257–58 (Tex. App.–Houston [1st Dist.]
2011, pet. dism'd) (holding evidence of prior sexual assaults probative of relationship and not
unfairly prejudicial); Wysack v. State, 01-13-00683-CR, 2015 WL 4366245, at *9 (Tex.
App.—Houston [1st Dist.] pet. ref’d, 2015).
114
    See Mechler, 153 S.W.3d at 435.


                                              22
fact that it relates to the charged offense.115

       Rule 403 does not require exclusion of evidence simply because it creates

prejudice; rather, the prejudice must be “unfair.”116 “Unfair prejudice” refers

only to the tendency of relevant evidence to “tempt the jury into finding guilt on

grounds apart from proof of the offense charged.”117 Because the complained-of

evidence relates to the charged offense, it did not have great potential to impress

the jury in an irrational way.118

       Cox alleges that the sheer volume of the evidence was unfairly

prejudicial.119 However, there was no unfair prejudice due to the volume of

images because the State only showed a few pages of thumbnail images of child

pornography to the jury.120 When the child pornography evidence was explained

by the investigator, the jury was shown computer files and icons and that were

believed to contain child pornography. There is nothing in the record that

indicates the jury was given this evidence during its deliberations. The evidence

probably was prejudicial to Cox as all extraneous evidence is prejudicial;

however, it was not unfairly prejudicial.

       C. Third factor: the time needed for the State to
115
    See id. at 440–41.
116
    Id. at 440.
117
    Id.
118
    See id. at 441.
119
    Cox brief, p. 31.
120
    R.R.VI:29-31.


                                           23
              develop the evidence.
       The tendency of the evidence to confuse or distract the jury from the main

issues and the time required to develop the evidence weighs in favor of

admissibility.121 “Evidence that consumes an inordinate amount of time to

present or answer, for example, might tend to confuse or distract the jury from

the main issues.”122 Here, the amount of time the State devoted to developing the

evidence was not insignificant. The State used 2 witnesses to introduce the how

and where the child pornography was found. Their testimony was not lengthy

and only spanned approximately 18 pages out of a total of 198 pages of trial

record.123 The State did not take time to show any full-scale images to the jury.

       D. Fourth factor: the State’s need for the evidence.

       Finally, the State’s need for the contested evidence was significant. Even

though the jury knew of the prior aggravated sexual assault of a child

conviction, the testimony by Debbie Bowman suggested that, at one time at

least, she believed Cox had changed since that time. In her efforts to explain to

the jury why she allowed Cox to live in the same house with her daughters and

spend time alone with them, Debbie became a possible positive character

witness for Cox. This testimony, added to the defensive theory that the sexual

121
    Gigliobianco v. State, 210 S.W.3d 637, 640 (Tex. Crim. App. 2006).
122
    Casey, 215 S.W.3d at 870.
123
    R.R.I:4; R.R.V:161-166.


                                            24
assault on the child didn’t happen, and to Cox’s interpretation that the texts were

made in humor as he wrote “just joking” and “LOL”, created a strong need for

the State to introduce evidence of Cox’s intent and propensity character.

       In addition, the defense made an issue out of the fact that the 3 year old

victim did not make an outcry until after cell phone texts were found and the

investigation ensued. In regards to the aggravated sexual assault on the 3 year

old victim, there was no physical evidence, no other witnesses to support her

testimony, and the State had a strong need to counter Cox’s theory that the

family and the victim fabricated the allegations.124

       In sum, the rule 403 factors weigh in favor of admissibility, and the trial

court did not committed error in overruling a rule 403 objection to the

extraneous-offense evidence.125 Although it’s acknowledged that “misconduct

involving children [is] inherently inflammatory,” Cox has not shown that the

trial court committed reversible error had it concluded from balancing these

factors that the testimony’s prejudicial force did not substantially outweigh its

probative value.126


124
    See Hammer, 296 S.W.3d at 561–62; Hernandez v. State, 03-13-00186-CR, 2014 WL
7474212, at *8 (Tex. App.—Austin Dec. 30, 2014, no pet.) (not designated for publication)
(In a case of a child alleging sexual abuse [by an adult] with no physical evidence, there is a
strong need for the State to admit this evidence.).
125
    See Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004); Burke, 371 S.W.3d at 258;
Wysack, 2015 WL 4366245, at *9.
126
    Montgomery, 810 S.W.2d at 397.


                                              25
VI. Cox’s facts are distinguishable from the facts in Pawlak.
       Cox wants this Court to believe his case is identical to Pawlak v. State.127

Both defendants were on trial for sexual assault of a child, in addition to other

charges, and the State introduced extraneous evidence of a lot of child

pornography. Specifically, Pawlak was convicted of 3 counts of sexual assault

of a child, 1 count of sexual assault, and 1 count of attempted sexual assault.128

Five victims testified at trial.129 But, unlike the sexual assault complainants in

Pawlak, the 3 year old victim in Cox’s aggravated sexual assault of a child

charge wasn’t followed by numerous other sexually abused children. She only

had her outcry witness to validate her abuse. The only other victim to testify was

her sister in relation to the attempted sexual performance of a child charge.

       Unlike Pawlak, here the jury did not specifically request all the evidence

in the case during their deliberations. In fact, there is nothing the record to

suggest that the jury reviewed the child pornography when it deliberated. The

record indicates that the jury didn’t deliberate for long and wouldn’t have had

time to thoroughly review the child pornography during its deliberations.130


127
     Pawlak v. State, 420 S.W.3d 807 (Tex. Crim. App. 2013).
128
    Id.
129
    Id.
130
    The State’s case began at 9:33 a.m. when it presented 2 witnesses before closing. R.R.I:5.
After a charge conference made changes to the jury charges, the jury charge was file-stamped
at 11:07 a.m. R.R.VI:35, C.R.110. The jury was read the charge and given the case. The jury
broke for lunch. The jury returned a note announcing a verdict at 1:36 p.m. on the same day.


                                             26
       In Pawlak, the Court of Criminal Appeals noted that the images referred

to a crime for which the appellant was not on trial – possession of child

pornography.131 Most notably, the Court in Pawlak noted that


               there was no allegation that Appellant took the pictures
               or that he in any way participated in coercing children
               to be involved in producing child pornography, much
               less that he assaulted them. Thus, while the
               extraneous-offense evidence may have been
               permissible rebuttal evidence, it did not show that an
               assault or attempted assault was more likely to have
               occurred.132

Here, Cox was charged with Attempted Sexual Performance of a Child. There

was testimony that Cox took nude pictures of the 3 year old victim and that he

tried to coerce the 13 year old victim to be involved in producing child

pornography. The facts here are unmistakably distinguishable from Pawlak.

       In Pawlak, the Court ruled, “Under these facts, the sheer volume of

extraneous-offense evidence was unfairly prejudicial.”133 The holding in Pawlak

is not applicable here.

VII. Conclusion: the admission of all the child pornography was
     more probative than prejudicial.
       The trial court’s ruling to admit the extraneous evidence was within the


C.R. 13CR0183:115.
131
    Pawlak, 420 S.W.3d at 810.
132
    Id.
133
    See id. at 811 (emphasis added).


                                         27
zone of reasonable disagreement because the evidence was not unfairly

prejudicial to Cox. The extraneous child pornography evidence directly related

to the charge of Attempted Sexual Performance of a Child.134 Because the

complained-of evidence relates to the charged offense, it did not have great

potential to impress the jury in an irrational way.135 The volume of the evidence

was not unfairly prejudicial because the jury did not see all the images and the

State only showed a few pages of thumbnail images of child pornography during

trial.136 Importantly, there is nothing in the record that indicates the jury was

given this evidence during deliberations or that the jury had time to view all the

images during the time it took to reach a guilty verdict. Lastly, these facts are

not like the case of Palwak and its holding doesn’t apply.

        The admission of this extraneous evidence was not error.




134
    See id.
135
    See id. at 441.
136
    R.R.VI:29-31.


                                        28
                        CONCLUSION AND PRAYER

      WHEREFORE, PREMISES CONSIDERED, the State prays that the

judgment of the Trial Court be affirmed in all respects.

                                        Respectfully submitted,

                                        JACK ROADY
                                        CRIMINAL DISTRICT ATTORNEY
                                        GALVESTON COUNTY, TEXAS


                                          /s/ Allison Lindblade
                                        ALLISON LINDBLADE
                                        Assistant Criminal District Attorney
                                        State Bar Number 24062850
                                        600 59th Street, Suite 1001
                                        Galveston, Texas 77551
                                        Tel (409)766-2452/Fax (409)765-3261
                                        allison.lindblade@co.galveston.tx.us




                                         29
                           CERTIFICATE OF SERVICE

         The undersigned Attorney for the State certifies a copy of the foregoing

 brief was sent via email, eFile service, or certified mail, return receipt requested, to

 Joel Bennett, Sears & Bennett, 1100 Nasa Parkway, Suite 302, Houston, Texas

 77058, joel@searsandbennett.com, on December 7, 2015.

                                             /s/ Allison Lindblade
                                          ALLISON LINDBLADE
                                          Assistant Criminal District Attorney
                                          Galveston County, Texas



                       CERTIFICATE OF COMPLIANCE

      The undersigned Attorney for the State certifies this brief complies with Tex.

R. App. Proc. 9.4(i)(3), is a computer generated document, and consists of 6,153

words.


                                            /s/ Allison Lindblade
                                         ALLISON LINDBLADE
                                         Assistant Criminal District Attorney
                                         Galveston County, Texas




                                           30
