                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                    No. 07-12-00222-CR


                      CHARLES EDWARD HARETER, APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE

                            On Appeal from the 108th District Court
                                      Potter County, Texas
               Trial Court No. 62,982-E, Honorable Douglas Woodburn, Presiding

                                       May 30, 2014

                                        OPINION
                    Before CAMPBELL and HANCOCK and PIRTLE, JJ.


       Appellant Charles Edward Hareter appeals his conviction for five counts of

possession or promotion of child pornography.1         A jury found appellant guilty and

assessed punishment at five years’ confinement in prison for each count. By order of

the trial court, the sentences for counts one through three run concurrently and upon

their completion the sentences for counts four and five begin and run consecutively.

We will affirm.

       1
           See TEX. PENAL CODE ANN. § 43.26 (West Supp. 2013).
                                       Background


          Testimony showed appellant’s wife discovered a computer thumb drive in the

clothes dryer at their residence. Her son, who is appellant’s stepson, and his family

were temporarily living with appellant and his wife.       Appellant’s wife brought her

discovery to the attention of the stepson, who works with computers and has a

background in law enforcement. The stepson opened the portable storage device using

appellant’s computer and discovered pornographic images of children. He telephoned

police.


          Meanwhile appellant, age sixty-eight, was asleep. When police arrived he was

awakened by the stepson.        In the presence of the stepson and police, appellant

acknowledged ownership of the thumb drive. He further acknowledged a statement by

the stepson, “You understand this is kids.”      Later that night, at the police station,

appellant told an interrogating officer the thumb drive contained images of females,

ages five to ten years, exhibiting their genitals in a suggestive manner. According to the

officer, appellant admitted he “saved images of children who lack pubic hair, who lack

breasts, who were in an undressed state, exhibiting their genitalia, the vagina, the

breasts.”


          A detective and an investigator viewed the contents of the thumb drive and

identified five images they believed were child pornography. These five images were

copied onto a disk which was admitted into evidence at trial. Each image on the disk

was the subject of a separate count in the indictment. According to the detective, the

thumb drive contained an estimated 250 images of child pornography.



                                            2
                                          Analysis


       By his first issue, appellant argues the trial court commented on the weight of the

evidence while it received into evidence a letter written from jail by appellant to his wife.

Specifically, appellant argues “the trial judge in open court told the jury the letter

contained a confession: ‘the [Appellant] in this letter has admitted the commission of the

offense.’”


       Elsewhere in his brief appellant recites further record excerpts placing the

highlighted excerpt in context. Outside the presence of the jury appellant’s counsel

argued the letter lacked relevance, was improper evidence of character, and was more

prejudicial than probative. The jury returned, the letter was authenticated and offered,

and appellant’s objections were renewed and overruled. This exchange followed.


       [Defense Counsel]: The—Your Honor, may I have a limiting instruction
       with regard to this exhibit?

       The Court: And your instruction would be?

       [Defense Counsel]: That it would be limited not to the—for the purpose of
       showing that the letter transpired, but it does not go to the issue of proof
       on guilt/innocence.

       [The Prosecutor]: Judge, if I may by (sic) heard? I believe that the content
       being offered is it would invade the province of the jury. That’s an issue
       for the jury to decide.

       [Defense Counsel]: Well, I agree, Judge, for the jury to decide, but it has
       to have a limiting instruction as to what—what purpose is he admitting—

       The Court: All right. I’ll admit it for the purpose of establishing that the
       Defendant in this letter has admitted the commission of the offense, if you

                                              3
believe that’s true.    And so as a—a statement that is consistent with
admission of the commission of the offense.

[Defense Counsel]: Your Honor, I object to that instruction because I think
the letter speaks for itself. It should be limited to what is in that letter.

[Defense Counsel]: And—

The Court: --the question is does that letter constitute an admission on the
part of the Defendant, and that’s for the jury to decide. And I will limit
them to reviewing this letter to determine if, in fact, it does constitute an
admission by the Defendant.          And if you feel that it does, you may
consider that in your verdict.       If you feel that it doesn’t establish an
admission on his part, then you won’t consider it. And that is my ruling to
you.

[Defense Counsel]: And I object to that instruction as not being complete.
And I also further object that it constitutes a comment on the weight of the
evidence.

***


[Defense Counsel]: It would be more complete if they would limit it to the
purpose for which he is admitting it and it does not show that he’s guilty of
the—what he's charged with.

The Court: All right. I’ll overrule the request. And it is admitted for the
limited purpose to determine if you feel that it does constitute an
admission on his part, and that’s—that is my limiting instruction.

***

The Court: The exhibit is admitted, subject to the limiting instruction that
I’ve given you.




                                        4
      Article 38.05 of the Code of Criminal Procedure provides:

      In ruling upon the admissibility of evidence, the judge shall not discuss or
      comment upon the weight of the same or its bearing in the case, but shall
      simply decide whether or not it is admissible; nor shall he, at any stage of
      the proceeding previous to the return of the verdict, make any remark
      calculated to convey to the jury his opinion of the case.

TEX. CODE CRIM. PROC. ANN. art. 38.05 (West 1979). The trial court must withhold any

comment before the jury calculated to convey its opinion of the case. Brown v. State,

122 S.W.3d 794, 798 (Tex. Crim. App. 2003). It is axiomatic that “jurors are prone to

seize with alacrity upon any conduct or language of the trial judge which they may

interpret as shedding light upon his view of the weight of the evidence, or the merits of

the issues involved.” Id.


      The trial court improperly comments on the weight of the evidence if it makes a

statement that implies approval of the State’s argument, indicates disbelief in the

defense’s position, or diminishes the credibility of the defense’s approach to the case.

Clark v. State, 878 S.W.2d 224, 226 (Tex. App.—Dallas 1994, no pet.). Applying this

standard, we first examine whether the challenged remarks, made by the trial judge

during trial, were improper comments on the weight of the evidence.


      The statement appellant challenges is not a comment on the weight of the

evidence.   It did not express or imply approval of the State’s position.    Rather the

instruction allowed the jury to decide whether the letter contained an admission of guilt

by appellant, or did not contain such an admission. Being so qualified, the instruction

could not be an expression of the court’s view of how the jury should resolve the issue.

See Easter v. State, 867 S.W.2d 929, 941 (Tex. App.—Waco 1993, pet. refused)

                                            5
(“Because the court used the phrases ‘if any were committed’ and ‘if any,’ the instruction

does not constitute a comment on the weight of the evidence”). Moreover, the court’s

instruction, given at appellant’s request, limited the availability of the letter for

consideration by the jury. We hardly see how an instruction benefiting an accused can,

at the same time, amount to a comment on the weight of the evidence benefiting the

State. See Bell v. State, 768 S.W.2d 790, 798 (Tex. App.—San Antonio 1989, pet.

refused) (noting a comment on the weight of the evidence benefits the State or

prejudices the accused’s rights and holding since the instruction was given for the

benefit of the accused it could not be the basis of a complaint by the accused).

Appellant’s first issue is overruled.


       In his second issue, appellant argues his due process right to a fair trial was

denied when the court admitted the thumb drive containing 250 extraneous offenses.


       Appellant lodged several objections to admission of the thumb drive but did not

raise the due process complaint here urged. Issues on appeal must correspond or

comport with objections and arguments made at trial. Wright v. State, 154 S.W.3d 235,

241 (Tex. App.—Texarkana 2005, pet. refused) (citing Dixon v. State, 2 S.W.3d 263,

273 (Tex. Crim. App. 1998)). “Where a trial objection does not comport with the issue

raised on appeal, the appellant has preserved nothing for review.” Id.; see Tex. R. App.

P. 33.1; Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999). Appellant “did not

fairly and specifically object to the exclusion of this evidence on the constitutional due

process basis he now urges on appeal.” Id. Accordingly nothing is preserved for our

review. TEX. R. APP. P. 33.1(a). Appellant’s second issue is overruled.



                                            6
      By his third issue appellant contends he suffered egregious harm because the

jury charge allowed convictions on less than unanimous verdicts.


      We first consider whether the trial court committed charge error as appellant

asserts. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). Should we find

error, we then determine whether appellant was harmed to a degree warranting

reversal. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g).

In the face of a proper objection to charge error, we will reverse on a finding of “some

harm” to the defendant. Id. Absent a proper objection, we reverse only if the record

shows the defendant sustained “egregious harm.” Id. Because appellant did not raise

the objection to the charge in the trial court he now urges on appeal, we must determine

whether the trial court erred, and if it did whether the resulting harm to appellant was

egregious. See Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008) (“The

failure to preserve jury-charge error is not a bar to appellate review, but rather it

establishes the degree of harm necessary for reversal”). Egregious harm results from

charge error that affects the very basis of the case, deprives the defendant of a valuable

right, or vitally affects a defensive theory. Stuhler v. State, 218 S.W.3d 706, 719 (Tex.

Crim. App. 2007). This is a difficult standard to meet and requires the record disclose

actual rather than theoretical harm. Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim.

App. 2013). If we find charge error, the egregious harm analysis requires we consider

the entire jury charge, the state of the evidence (including the contested issues and the

weight of probative evidence), the arguments of counsel, as well as all other relevant

information shown by the record.      Nava, 415 S.W.3d at 298.       A defendant has a

valuable right to a unanimous verdict in a felony case. Ngo, 175 S.W.3d at 750-52. We


                                            7
presume the jury followed the trial court’s instructions contained in the charge.

Resendiz v. State, 112 S.W.3d 541, 546 (Tex. Crim. App. 2003).


      A person commits the offense of possession or promotion of child pornography

under Penal Code section 43.26(a) if the person knowingly or intentionally possesses

visual material that visually depicts a child younger than 18 years of age at the time the

image of the child was made who is engaging in sexual conduct and the person knows

that the material depicts the child as described in section 43.26(a)(1). TEX. PENAL CODE

ANN. § 43.26(a)(1),(2) (West Supp. 2013). Visual material includes any disk, diskette, or

other physical medium that allows an image to be displayed on a computer. TEX. PENAL

CODE ANN. § 43.26(b)(3) (West Supp. 2013).          As used in § 43.26, the meaning of

“sexual conduct” includes actual or simulated sexual intercourse, deviate sexual

intercourse, and lewd exhibition of the genitals. TEX. PENAL CODE ANN. § 43.25(a)(2)

(West 2011).


      Here, the indictment alleged five counts of possession of child pornography

under section 43.26(a). The visual depiction alleged by count one was deviate sexual

intercourse. Counts two, three, and four alleged lewd exhibition of the genitals. Count

five alleged actual sexual intercourse. During the detective’s trial testimony the five

images, each corresponding to one count in the indictment, were shown to the jury via

power point. As an image was presented, the detective described the conduct shown.

He opined whether it amounted to deviate sexual intercourse, lewd exhibition of the

genitals, or actual sexual intercourse.         The charge contained five independent

application paragraphs, each expressly corresponding to a count in the indictment. The

court supplied five verdict forms for the jury, each correlating to a specific numbered

                                            8
count and each requiring the jury to determine whether appellant was guilty or not guilty

of the conduct alleged in the referenced count. The charge instructed the jury that

before it could return a verdict of guilty or not guilty “all twelve jurors must agree upon

the verdict.”


         Appellant urges that our decision is guided by Ngo.         We disagree.      The

application paragraphs in Ngo were presented in the disjunctive without requiring

unanimity so that all twelve jurors would immediately realize that they had to agree on

one specific paragraph which set out one specific criminal act. 175 S.W.3d at 749 &

n.44.


         Here, the application paragraphs were not disjunctively submitted. Rather, each

expressly followed a count in the indictment and then flowed directly to a dedicated

verdict form. As noted, the charge required unanimity for a verdict. Each charged

offense, from indictment to verdict form, stood independently and, presuming the jury

followed the court’s instruction, each verdict was unanimous. Appellant has not shown

a unanimity problem. Finding the trial court did not commit charge error as appellant

asserts, we overrule his third issue.


                                        Conclusion


         Having overruled each of appellant’s issues, we affirm the judgment of the trial

court.


                                                 James T. Campbell
                                                     Justice


Publish.

                                             9
