Opinion issued August 7, 2018




                                    In The

                             Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                             NO. 01-16-01016-CR
                          ———————————
               DANE EDWARD WEATHERFORD, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 262nd District Court
                          Harris County, Texas
                      Trial Court Case No. 1482268


                         MEMORANDUM OPINION

      A jury found appellant, Dane Edward Weatherford, guilty of the offense of

sexual assault of a child and assessed his punishment at fifteen years’

confinement.1 In three issues, appellant argues that the trial court abused its


1
      See TEX. PENAL CODE ANN. § 22.011 (West Supp. 2017).
discretion in: (1) admitting the complainant’s medical records; (2) admitting

certain testimony from appellant’s wife; and (3) failing to perform its gate-keeping

function during sentencing as to extraneous pornography allegations. We affirm.

                                    Background

      Appellant met his wife, Tobi, while they were both serving in the military.

After leaving the military, appellant taught an ROTC class at North Forest High

School, and Tobi worked at a local store. The couple had three children and had

discussed adopting another child.

      The complainant, “Jane,” 2 was fourteen years old and in foster care when

she met appellant through the ROTC program where appellant worked. Tobi

testified that “probably within the first week that [Jane] was assigned to

[appellant’s] class, he came home and told [his teenage son, “Dan,”] that he found

the perfect girlfriend for him.” Tobi further testified that, a few weeks later,

appellant told her that he wanted to adopt Jane. Tobi “questioned it a little”

because she “didn’t think we were going to adopt a teenager.” However, appellant

told her that he had “already promised [Jane] that [he] was going to adopt her,” so

Tobi felt that she had “almost no choice.”

      Tobi testified that, once she was able to spend time with Jane, she believed

that the girl was a “good fit” for the family, and the couple adopted Jane in October


2
      We have changed the minors’ names in order to protect their identity.
                                           2
2014. Meanwhile, Jane had a sexual relationship with Dan, her adoptive brother. In

the spring of 2015, Jane became pregnant by Dan and had an abortion.

Approximately a week before the abortion took place, Jane attempted suicide.

      Tobi also testified regarding appellant’s behavior toward Jane. Tobi stated

that he paid more attention to Jane than he did to the other children. In August

2015, she related to Jane’s therapist her suspicions that something inappropriate

was happening between appellant and Jane.          The therapist contacted Child

Protective Services, which investigated the claim. Tobi told the CPS investigator

that she had not witnessed any sexually inappropriate behavior, and CPS

eventually ruled out the concerns of sexually inappropriate conduct and closed its

investigation. Tobi then related to Jane’s therapist that she was not concerned for

Jane’s safety.

      Jane testified that she was living in foster care when she met appellant

through the ROTC program and he asked her if she would like to be adopted. She

testified that she and appellant exchanged text messages frequently and that

appellant frequently bought her gifts. She also stated that appellant insisted on

tucking her in at night and would rub her back and stomach.

      Regarding the events surrounding her suicide attempt, Jane testified that she

had tried to commit suicide because appellant “was forcing [her] into an abortion.”

She testified that appellant had first forced her to have sex with him before her


                                         3
pregnancy and that he had raped her multiple times. She testified that she did not

tell anyone about the assaults because she did not think Tobi would believe her,

and she did not want to break up the family or cause them all to lose their home.

      On September 19, 2015, appellant caught Jane leaving Dan’s room naked.

Appellant became angry, and Jane threatened to tell Tobi about appellant’s sexual

assaults. Appellant then became suicidal. Jane testified that when Tobi got home

that day, she told her about appellant’s having forced her to have sex.

      Tobi testified that, on September 19, 2015, her youngest son called her,

asking that she come home immediately. Upon arriving home, she spoke with Jane,

and then found appellant in the shower holding a firearm. He was stating that “he

was a monster and that he deserved to die,” but he did not explain any further. Tobi

testified that appellant asked her to shoot him, then he “dry fired” the firearm at

himself. Appellant then left the shower and sat against the wall in the closet.

      Tobi stated that, during her confrontation with appellant, their oldest

daughter came home, “found out what was going on and called [appellant’s] Aunt

Deborah.” When asked why they called Aunt Deborah, Tobi explained that

Deborah “has a master’s in psychology and she’s very caring.” The State’s

questioning continued:

      [the State]: So—and what was the purpose for you-all calling her?

      [Tobi]:      When she had visited in May, I had originally disclosed
                   to her.

                                          4
      [Appellant]: Your Honor, I’m going to object to the statement from
                   Ms. Weatherford to Aunt Deborah or anything Aunt
                   Deborah said to—

      [Court]:     Sustained as to the hearsay portion as to Aunt Deborah.

      [the State]: What did you tell Aunt Deborah?

      [Appellant]: Same objection, Judge.

      [Court]:     Overruled.

      [Tobi]:      I had told her about my concerns about [appellant’s]
                   behavior and his behavior towards [Jane] and things that
                   had been happening that I observed and told her my
                   concerns and that I was starting to think that maybe I was
                   crazy, and she told me I wasn’t at that time, which is
                   what eventually led me to talk to Denise, [Jane’s]
                   therapist.

      Tobi then testified that appellant eventually left the home, and Tobi called

the police. Appellant was arrested when he returned to the home the next day.

Following appellant’s arrest, Tobi sought help for Jane, including taking her for a

sexual assault assessment.

      The State offered Jane’s medical records from The Children’s Assessment

Center into evidence at the conclusion of its case-in-chief. Appellant’s counsel

stated that he objected to this evidence on multiple grounds: “Generally my

objection would be, No. 1, the doctor’s not here to give the full testimony. More

importantly there’s a lot of hearsay that’s not necessarily for medical diagnosis.”

The trial court decided to “conditionally admit” the records, stating, “then you-all

can go through it. If there are any redactions that you would like to agree to, I’ll
                                         5
allow you to redact it this evening. Don’t publish it to the jury until the appropriate

redactions have been made.” The next day, the trial court set out on the record the

various redactions to the medical records agreed to by the parties, specifically

noting that it had sustained appellant’s objection regarding the physician’s notation

that “16-year-old girl gave clear history of gen-gen penetration chronic by

[appellant].” The remainder of the medical records—Jane’s sexual history,

including her abortion and the number of partners, her suicide attempt, her answers

to the physician’s questions about the nature of the assault for which she sought

treatment, the results of tests and a physical exam, and the physician’s

recommendations for Jane’s treatment—were admitted into evidence.

      Appellant’s counsel stated that he had additional objections, stating, “I’ve

written ‘hearsay’ next to what I think is hearsay. I’ve written ‘relevance’ [next] to

what I think would be irrelevant. I would just ask that that be used to preserve the

record. Since we’re outside the presence of the jury, I will not make any further

objections.”   The exhibit was marked with hearsay and relevance objections

covering a significant portion of the medical records. The trial court entered the

exhibit into the record but did not make any further rulings after appellant’s

counsel tendered the redactions.

      The jury found appellant guilty, and the trial proceeded into the punishment

phase. At the start of the punishment phase, the State called Jane’s biological


                                          6
mother to testify regarding Jane’s early life and the circumstances surrounding

Jane’s ending up in foster care. She also testified that, due to Jane’s experiences

early in her life, Jane was afraid of disrupting another family by complaining about

appellant’s conduct toward her. The State also reoffered all of its exhibits from the

guilt-innocence phase and rested.

      Appellant’s counsel introduced testimony from some of appellant’s other

ROTC students and a fellow instructor, who testified that appellant was a good and

supportive mentor and had a good reputation among the other students. Appellant’s

counsel also introduced testimony regarding appellant’s military service. Finally,

appellant presented the testimony of a clinical psychologist who worked at the

Harris County Jail and testified that appellant voluntarily participated in and

successfully completed various therapy programs at the jail.

      During a recess, outside the presence of the jury, the trial court and the

parties discussed the State’s intention to introduce rebuttal evidence during the

punishment phase. The trial court discussed with the parties the notices that the

State had provided to appellant. These included, in relevant part, a supplemental

notice that the State intended to use extraneous offense evidence “for impeachment

and/or punishment,” which described the extraneous evidence as including “[t]he

Defendant’s computer, laptop, [and] back up tapes” that “were found to contain . . .

videos and images of pornography,” including “images both real and animated [of]


                                         7
pre-pubescent females engaging in sexual activity” and videos and images

“depicting incestual [sic] pornography.”

      The following discussion occurred between the trial court and appellant’s

counsel:

      [counsel]:   Whenever we get to the pornography portion, I have
                   asked the analyst if he has—I was given a disk at some
                   point, thousands of pages, it has many images. I believe
                   the ones they have back there are temporary internet files
                   from 2011 to 2012. Much of it was from when
                   [appellant] was deployed. So, I would ask for a
                   gatekeeping function on those because the images aren’t
                   good to see whether not, No. 1, they’re overly
                   prejudicial, if they’re relevant. Is there any way to prove
                   that these are [appellant’s] or someone else[’s] in the
                   house, there [were] teenagers in the house?

      [Court]:     With regards to—you’re asking me to—you’re asking me
                   to determine, like, the questions you just asked me, the
                   credibility of the evidence, and that is not my function as
                   a gatekeeper. Now that being said, I will give the jury a
                   limiting instruction regarding extraneous offenses that
                   are admitted at the punishment phase of a trial so that
                   they can perform their function and determine the
                   credibility of that evidence before they make a decision
                   as to whether or not to consider it.

      [counsel]:   I guess my only concern is it’s my understanding . . . that
                   we’re supposed to have some sort of a gatekeeping
                   function to make sure it’s possible the jury can believe
                   whatever the bad act is beyond a reasonable doubt. And
                   that’s simply what I’m asking for before we ring this bell,
                   I’d ask that you at least look into that. When were the
                   pictures? How do we know that they’re [appellant’s], this
                   type of thing? . . . He was in a submarine.

      [Court]:     Did they have internet access?

                                           8
      [counsel]:    Not to this computer. It’s our understanding this is a
                    home computer. At the time it was in the den in San
                    Diego, if it’s indeed the pictures we think they are. That’s
                    our concern.

      [Court]:      You’ll have an opportunity to cross-examine those
                    witnesses. Are both sides ready for the jury?

      The State then presented its rebuttal evidence to the jury, starting with the

testimony of appellant’s oldest biological daughter. She testified regarding the

nature of her relationship with her father—that she loved him, but they were not

very close and had had problems over the years—and the hardship his assault of

Jane had caused in their family. A former ROTC student of appellant’s testified

that she, like Jane, had been in foster care, that appellant had expressed an interest

in adopting her, and that he had touched her breast while she was visiting his

home. She testified that she was never adopted by appellant’s family and now has a

child of her own.

      Tobi testified again, this time referencing the fact that appellant had

admitted to watching pornography. She stated:

      [Tobi]:       It was probably a couple of weeks [after] the comment he
                    made about porn that he’d been watching [that] was in
                    the back of my mind, it just kept coming back up. And I
                    did something I don’t normally do. I looked at his
                    computer, and I looked at his browser history.

      [counsel]:    Your Honor, I would renew my previous objections to
                    this.

      [Court]:      All right. Overruled.

                                            9
      Tobi identified the desktop CPU and laptop entered into evidence by the

State as belonging to appellant, and she testified that she had turned the laptop and

CPU from the desktop over to the detectives after appellant’s arrest. She testified

that when she searched his computer herself, she “found multiple searches for

incest porn on his search history.” Tobi testified that she asked appellant “how he

could possibly be looking at things like that. And he told me it was—none of it was

real. It was just things that he happened to be watching, and the reason he was

watching those particular videos was that those were the only ones that had

attractive females in it.” Tobi also clarified that, when she confronted appellant

about the pornography, he did not try to blame the searches for the images on

anyone else in the house, and he admitted that he had looked for those images.

Tobi also testified regarding appellant’s access to the computers. He was deployed

during some of the relevant time, but he also had duties that allowed him to be

home more. She also stated that he used his laptop “on the go.”

      Finally, the State called a computer forensic examiner for the Federal

Bureau of Investigation, and the following bench conference occurred between

appellant’s counsel and the trial court:

      [counsel]:    Two quick issues, my request to have a voir dire outside
                    the presence of the jury is denied at this time?

      [Court]:      Based on your earlier—

      [counsel]:    Yes, ma’am. Just wanting to make sure.

                                           10
      [Court]:     Yes.

      The expert testified regarding documents recovered from appellant’s desktop

computer that contained pornographic images. When the State offered these

images into evidence, appellant’s counsel stated, “In addition to the objections I

made earlier, I just have an unduly prejudicial objection and not relevant at this

time.” The trial court overruled the objections and admitted the exhibits.

      On cross-examination, appellant’s attorney questioned the forensic computer

examiner regarding the images that he had flagged in his search of appellant’s

computer. The forensic examiner agreed that all of the images had come from

temporary internet files, which were created automatically while the user browsed

the internet. Thus, the images were not necessarily “stand-alone image[s] on a web

page,” but could be “one of a series in a banner” or on “the side or anywhere on

that web page.” The forensic examiner also stated that the flagged images that

were admitted into evidence were dated from either May 23, 2011, or May 25,

2011. The examiner testified that he could not determine who had accessed the

web pages.

      The jury assessed appellant’s punishment at fifteen years’ confinement. This

appeal followed.




                                         11
             Admission of Evidence During Guilt-Innocence Phase

      In his first two issues, appellant argues that the trial court erred in admitting

Jane’s medical records and Tobi’s testimony that she had expressed her concerns

about appellant and Jane to appellant’s aunt.

A.    Standard of Review

      We review a trial court’s ruling on the admission or exclusion of evidence

for an abuse of discretion. Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App.

2016). An abuse of discretion occurs when the trial court acts “arbitrarily or

unreasonably” or “without reference to any guiding rules and principles.” State v.

Hill, 499 S.W.3d 853, 865 (Tex. Crim. App. 2016) (quoting Montgomery v. State,

810 S.W.2d 372, 380 (Tex. Crim. App. 1990)). We will not reverse a trial court’s

ruling unless it is so clearly wrong that it “falls outside the zone of reasonable

disagreement.” Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016); see

Henley, 493 S.W.3d at 83. We will uphold a trial court’s evidentiary ruling if it is

correct on any theory of law applicable to the case. Henley, 493 S.W.3d at 93.

B.    Admission of Jane’s Medical Records

      In his first issue, appellant argues that the trial court erred in admitting

Jane’s medical records. He argues that the records were not properly authenticated,




                                          12
but appellant did not raise a complaint regarding the authentication of these

documents at trial.3

      To preserve error, a party must timely object and state the grounds for the

objection with enough specificity to make the trial judge aware of the complaint,

unless the specific grounds were apparent from the context. TEX. R. APP. P.

33.1(a)(1)(A); see Thomas v. State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016);

Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014). The objection must

be sufficiently clear to give the judge and opposing counsel an opportunity to

address and, if necessary, correct the purported error. Thomas, 505 S.W.3d at 924;

Ford v. State, 305 S.W.3d 530, 533 (Tex. Crim. App. 2009); see Smith v. State,

499 S.W.3d 1, 7–8 (Tex. Crim. App. 2016) (“There are two main purposes behind

requiring a timely and specific objection. First, the judge needs to be sufficiently

informed of the basis of the objection and at a time when he has the chance to rule

on the issue at hand. Second, opposing counsel must have the chance to remove the

objection or provide other testimony.”). If a trial objection does not comport with

arguments on appeal, error has not been preserved. Thomas, 505 S.W.3d at 924.

3
      Appellant states in his brief:

         The State did file written notice with the district clerk under Rule 902(10)
         of its intent to use business records with an accompanying affidavit as to
         the Complainant’s records from the Children’s Assessment Center (CAC).
         . . . However, this self-authenticating business records affidavit was not
         introduced at trial, and cannot be found in the Clerk’s or Reporter’s records
         in this case.
                                          13
      Appellant argues on appeal that Jane’s “CAC medical records were hearsay

and they were unauthenticated at trial, thus the trial court abused its discretion by

admitting the record.” However, at trial, appellant objected only on the basis of

impermissible hearsay contained within the medical records and relevance. He did

not assert at trial that the medical records were not authenticated, and thus he did

not preserve this complaint for consideration on appeal. See id. (holding that trial

objection must comport with arguments on appeal to preserve error).

      Appellant initially objected at trial on multiple grounds, including that “the

doctor’s not here to give the full testimony” and “there’s a lot of hearsay that’s not

necessarily for medical diagnosis.” The trial court conditionally admitted the

medical records, asking the parties to make redactions and then reassert any

remaining objections. After the redacted document was presented to the trial court,

appellant stated that he continued to object, submitting an annotated copy of Jane’s

medical records and stating, “I’ve written ‘hearsay’ next to what I think is

hearsay.”

       Appellant does not present any argument on appeal comporting with his

trial objection that certain statements contained in the medical records were

impermissible hearsay. See id. On appeal, appellant argues generally that the

statements in Jane’s medical records were hearsay, but he does not provide a clear

and concise argument, with citation to proper legal authority and the record,


                                         14
identifying which statements, if any, constituted “hearsay that [was] not

necessarily for medical diagnosis.” Moreover, we observe that many statements in

the medical records—such as the information regarding Jane’s sexual history, her

medical and mental health history, and the specific facts relevant to the assault for

which she was seeking treatment—were pertinent to her medical treatment and,

thus, were admissible under Rule of Evidence 803(4). See TEX. R. EVID. 803(4)

(providing hearsay exception for statements made for purpose of medical diagnosis

or treatment and describing medical history, or past or present symptoms, pain or

sensations, or inception or general character of cause or external source thereof,

insofar as reasonably pertinent to diagnosis or treatment); Bargas v. State, 252

S.W.3d 876, 896 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (“Because

treatment of child abuse includes removing a child from an abusive setting, the

identity of the abuser is pertinent to the medical treatment of the child. Hearsay

statements by a suspected child victim of abuse regarding causation, source of

abuse, or describing abusive acts are admissible under Rule 803(4) as being

pertinent to the medical treatment of a victim.”).

      Thus, to the extent that we can consider appellant’s general assertion on

appeal that these records contain impermissible hearsay as an attempt to reassert

his hearsay objections from trial, he has not adequately briefed this complaint or




                                          15
demonstrated any error on the part of the trial court.4 See Mims v. State, 238

S.W.3d 867, 874 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (holding that

complaint on appeal was waived where defendant failed to specifically identify

statement he claimed was hearsay); see also TEX. R. APP. P. 38.1(i) (providing that

appellant’s brief must contain clear and concise argument for contentions made

and appropriate citations to record).

      We overrule appellant’s first issue.

C.    Admission of Tobi’s Testimony

      In his second issue, appellant argues that the trial court erred in admitting the

following testimony by his wife, Tobi, over his objection on hearsay grounds:

      I had told [appellant’s Aunt Deborah] about my concerns about
      [appellant’s] behavior and his behavior towards [Jane] and things that
      had been happening that I observed and told her my concerns and that
      I was starting to think that maybe I was crazy, and she told me I
      wasn’t at that time, which is what eventually led me to talk to Denise,
      [Jane’s] therapist.

      Appellant argues that this testimony constitutes improper hearsay in that it

relates a previous out-of-court statement made by Tobi. Hearsay is an out-of-court

statement offered for the truth of the matter asserted. TEX. R. EVID. 801(d); see also

Coronado v. State, 351 S.W.3d 315, 326 (Tex. Crim. App. 2011) (“Both the


4
      We also observe that appellant never obtained a ruling from the trial court after
      submitting the redacted copies of the medical records. See TEX. R. APP. P. 33.1(a)
      (providing that party complaining of error on appeal must generally demonstrate
      that it objected to error and that trial court ruled, or refused to rule, on objection).
                                             16
federal and Texas hearsay rules apply to prior out-of-court statements made by a

testifying witness.”). The State argues, however, that Tobi’s testimony about her

prior conversation with appellant’s aunt did not constitute hearsay because Tobi’s

statements were not out-of-court statements offered for the truth of the matter

asserted, and we agree.

      In the complained-of testimony, Tobi was testifying to the fact that she had

expressed her concerns about appellant’s conduct toward Jane to another person,

but she did not relate the specific content of her previous statements to appellant’s

aunt. In context, this testimony was offered to explain why Tobi’s oldest daughter

made a phone call to the aunt after the confrontation on September 19, 2015, and to

explain why the family did not immediately call the police. The purpose of this

testimony was not to relate previous factual assertions about appellant’s conduct,

but to explain the events surrounding the day of the confrontation and to put Tobi’s

testimony into its proper context. The trial court could have reasonably concluded

that Tobi’s testimony was not relating an out-of-court statement offered for the

truth of the matter asserted, and thus it did not abuse its discretion in admitting the

testimony. See TEX. R. EVID. 801(d); Johnson v. State, 425 S.W.3d 344, 346 (Tex.

App.––Houston [1st Dist.] 2011, pet. ref’d) (“An extrajudicial statement or writing

that is offered for the purpose of showing what was said, rather than for proving

the truth of the matter stated therein, does not constitute hearsay.”).


                                           17
      We overrule appellant’s second issue.

       Performance of Gatekeeping Function During Punishment Phase

      In his third issue, appellant complains that the trial court refused to perform

its gatekeeper function when it allowed the State to present evidence during the

punishment phase of “extraneous pornography allegations,” including that

appellant had viewed pornography in the past and that there was evidence of

pornography viewing on a computer taken from appellant’s home. Appellant

specifically contends that “[t]he trial court refused to make an initial determination

or perform its gatekeeping function as to this extraneous evidence,” which

included testimony regarding his viewing of pornography and images found on a

computer of “incest pornography” depicting males engaging in sexually explicit

conduct with younger women or girls. He further argues that the trial court failed

to make a finding that the jury could rationally find beyond a reasonable doubt that

appellant was “criminally responsible for the extraneous misconduct, or even that

the extraneous acts were attributable to the appellant beyond a reasonable doubt.”

A.    Standard of Review

      The Code of Criminal Procedure provides that

      evidence may be offered by the state . . . as to any matter the court
      deems relevant to sentencing, including . . . evidence of an extraneous
      crime or bad act that is shown beyond a reasonable doubt by evidence
      to have been committed by the defendant or for which he could be
      held criminally responsible, regardless of whether he has previously
      been charged with or finally convicted of the crime or act.

                                         18
TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (West 2011); Thompson v. State,

425 S.W.3d 480, 490 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). The

authority of the trial court to admit evidence of extraneous bad acts or misconduct

during the punishment phase is not unconditional. Thompson, 425 S.W.3d at 490

(quoting Smith v. State, 227 S.W.3d 753, 759–60 (Tex. Crim. App. 2007)). “Unless

the extraneous misconduct evidence is such that the sentencing entity (either judge

or jury) can rationally find the defendant criminally responsible for the extraneous

misconduct, the trial court is not permitted to admit it at a punishment hearing.” Id.

Thus, here, when the State offered evidence of appellant’s extraneous bad act of

possession of incest pornography, it was required to present evidence such that the

jury could determine beyond a reasonable doubt that appellant had engaged in the

extraneous bad act. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1);

Thompson, 425 S.W.3d at 490.

      The trial court must act as a gatekeeper to determine whether the evidence is

admissible, while the jury “is to determine whether or not the State has proved the

extraneous offenses beyond a reasonable doubt.” Mitchell v. State, 931 S.W.2d

950, 953–54 (Tex. Crim. App. 1996) (plurality op.); see Palomo v. State, 352

S.W.3d 87, 91–92 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) (holding that

trial court decides threshold issue of admissibility and fact finder decides whether

extraneous offense was proved beyond reasonable doubt). We review a trial court’s


                                         19
decision to admit evidence of an extraneous offense or bad act during the

punishment phase under an abuse-of-discretion standard. Thompson, 425 S.W.3d

at 490 (citing Lamb v. State, 186 S.W.3d 136, 141 (Tex. App.—Houston [1st Dist.]

2005, no pet.)).

B.    Facts

      When appellant first objected in anticipation of the State’s introduction of

evidence regarding his viewing of pornography and asked the trial court to perform

its “gatekeeping function,” he stated that he had concerns regarding whether the

images on the computer could actually be attributed to him. Thus, appellant asked

the trial court to perform its “gatekeeping function” to determine whether the

evidence was such that the jury could find him criminally responsible for the

pornography in question beyond a reasonable doubt.

      The record demonstrates that the trial court had before it the State’s pretrial

notices regarding the devices and specific images it wanted to admit, and the trial

court replied:

      [T]he questions you just asked me [go to] the credibility of the
      evidence and that is not my function as a gatekeeper. Now that being
      said, I will give the jury a limiting instruction regarding extraneous
      offenses that are admitted at the punishment phase of a trial so that
      they can perform their function and determine the credibility of that
      evidence before they make a decision as to whether or not to consider
      it.




                                         20
The trial court discussed the evidence briefly with the attorneys, asked whether

appellant had access to the internet during the relevant time, and ultimately

concluded that appellant’s counsel would be able to cross-examine the witnesses.

The trial court did not conduct a hearing or otherwise explore Tobi’s anticipated

testimony on the issue of appellant’s pornography viewing or her testimony

attributing the pornographic images taken from the computer to appellant’s use of

that device.

      Subsequently, Tobi testified regarding her personal knowledge of appellant’s

viewing of pornography. Appellant again objected to this testimony, stating that he

wished to “renew my previous objections to this,” referring to his concerns that the

images found on the computer could not be attributed to him. The trial court

overruled the objection again.

      When the State called the forensic computer examiner, appellant’s counsel

asked again “to have a voir dire outside the presence of the jury” based on his

earlier arguments, which the trial court denied. Appellant also objected when the

images themselves were offered into evidence, stating, “In addition to the

objections I made earlier, I just have an unduly prejudicial objection and not

relevant at this time.” The trial court, again, overruled the objections and admitted

the exhibits.




                                         21
C.    Threshold Determination of Admissibility and Harm Analysis

      Appellant argues that the trial court erred in not holding a hearing prior to

admitting pornography evidence, making a brief reference to Rule of Evidence

104. In relevant part, Rule 104(c) provides that a trial court “must conduct a

hearing on a preliminary question so that the jury cannot hear it if: (1) the hearing

involves the admissibility of a confession in a criminal case; (2) a defendant in a

criminal case is a witness and so requests; or (3) justice so requires.” TEX. R. EVID.

104(c). However, appellant provided no argument or citation to authority

indicating that any of these grounds applied in this case. Thus, to the extent that

appellant is attempting to argue that the trial court was required to hold a separate

evidentiary hearing outside the presence of the jury under the provisions of this

Rule, we conclude that the argument is waived. See TEX. R. APP. P. 33.1(a), 38.1(i)

      Appellant also argues that the trial court erred in not making a proper

threshold determination regarding the admissibility of the pornography evidence

prior to Tobi’s testimony. However, even if we assume, without deciding, that the

trial court failed to make a proper threshold determination regarding the

admissibility of this evidence prior to Tobi’s testimony, the record indicates that

appellant was not harmed by the trial court’s permitting testimony and evidence on

this topic. Under Texas law, any non-constitutional error, defect, irregularity, or

variance that does not affect substantial rights must be disregarded. See TEX. R.


                                         22
APP. P. 44.2(b). Moreover, the Court of Criminal Appeals has held, in the context

of a trial court’s failure to hold a required gatekeeper hearing on admissibility of

scientific evidence, that the failure to hold a hearing is harmless if the evidence

was, in fact, reliable. Jackson v. State, 17 S.W.3d 664, 672 (Tex. Crim. App.

2000).

      The record contained evidence from which the jury could have concluded

beyond a reasonable doubt that appellant possessed and viewed pornography. At

the gatekeeping stage before receiving Tobi’s testimony, the trial court had before

it information that appellant had had access to the internet during the relevant time,

and the trial court determined that appellant’s counsel would be able to cross-

examine the witnesses. Subsequently, Tobi testified that appellant made a

comment indicating that he had viewed pornography, so she looked on his

computer and searched his browser history. When she confronted him about his

searching for incest pornography, he did not deny that he had done so but stated

that “none of it was real” and that “he was watching those particular videos

[because they] were the only ones that had attractive females in [them].” Tobi also

identified the computer examined by the forensic examiner and found to contain

pornographic images. Tobi testified that the computer belonged to appellant, that

he had used the laptop “on the go,” and that appellant had had at least periodic

access to the computer during the relevant time.


                                         23
      We conclude that the evidence of the extraneous pornography allegations

was reliable and was such that the jury reasonably could have concluded that

appellant had searched for and viewed the pornography as asserted. See Wise v.

State, 364 S.W.3d 900, 907 (Tex. Crim. App. 2012) (holding that “[t]he jury could

have reasonably inferred from appellant’s possession of temporary internet files

referring to ‘young porn’ and ‘teen sex’ that appellant knowingly and intentionally

had possession of the other child pornography in the free space of his computer”);

Wilson v. State, 419 S.W.3d 582, 590 (Tex. App.—San Antonio 2013, no pet.)

(holding that evidence was sufficient to sustain conviction for possession of child

pornography when images were found under defendant’s profile and he admitted

that he had viewed images). Appellant’s counsel was permitted to cross-examine

the witnesses regarding the exact nature of the evidence, and the trial court agreed

to give the jury a limiting instruction regarding its ability to consider the

pornography evidence.

      We conclude that any error in the trial court’s failing to make a preliminary

gatekeeping determination on the admissibility of the extraneous pornography

evidence did not affect any substantial right of appellant’s. See TEX. R. APP. P.

44.2(b). Accordingly, appellant was not harmed by the trial court’s ruling

admitting this evidence. See TEX. R. APP. P. 44.2(b); Jackson, 17 S.W.3d at 672.

      We overrule appellant’s third issue.


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                                   Conclusion

      We affirm the judgment of the trial court.




                                                Evelyn V. Keyes
                                                Justice

Panel consists of Justices Keyes, Brown, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




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