Addison Douglas Mays v. the State of Texas

Opinion

Affirmed and Opinion Filed November 20, 2023

In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-01033-CR

ADDISON DOUGLAS MAYS, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 366th Judicial District Court Collin County, Texas Trial Court Cause No. 366-84413-2019

MEMORANDUM OPINION Before Justices Partida-Kipness, Reichek, and Breedlove Opinion by Justice Partida-Kipness A jury convicted Appellant Addison Douglas Mays of continuous sexual

abuse of a child. TEX. PENAL CODE § 21.02. He was sentenced to forty years

imprisonment. On appeal, Mays contends: (1) the trial court abused its discretion in

admitting pornography-related evidence under Texas Rules of Evidence 404(b) and

403, and (2) the prosecutor’s closing argument denied him a fair trial. We affirm. BACKGROUND1

Mays is the biological father of R.M. Mays and R.M.’s mother divorced in

2016. R.M. lived with her mother following the divorce and would visit Mays at his

residence on weekends and occasional weekdays. At the time of the alleged abuse,

Mays lived with his mother. Beginning around September 2017—when R.M. was

eight years old—and continuing until early 2019, Mays allegedly touched R.M.’s

vagina with his fingers and put his penis in the crook of her knee, squeezing it until

he ejaculated. R.M. stated these acts happened more than twenty times during this

timeframe. R.M. also described an incident where Mays caused R.M. to grab his

penis. These incidents mostly occurred under the covers of Mays’s bed when R.M.

was visiting. While R.M.’s younger brother was sometimes in the room at the time

of the sexual contact, he apparently never saw the abuse, and there were no other

eyewitnesses.

In April 2019, R.M. and a young friend were playing a game of “therapy”

wherein R.M. discussed what Mays had done. The friend contemporaneously

transcribed the details in a letter R.M. later gave to her mother. R.M. also verbally

told her mother about the abuse. After R.M.’s mother reported the incidents to police,

R.M. underwent a sexual abuse physical exam and gave testimony to a forensic

examiner. Police arrested and interviewed Mays, who was charged with continuous

1 Mays does not challenge the sufficiency of the evidence supporting his conviction. Therefore, we discuss the facts as necessary to address his issues on appeal. –2– sexual abuse of a child under fourteen and the lesser included offense of indecency

with a child by contact. See TEX. PENAL CODE §§ 21.02, 21.11.

At trial, the jury heard R.M.’s detailed testimony about the alleged abuse.

R.M.’s mother testified about R.M.’s letter and outcry statements. The State

submitted portions of Mays’s police interview and evidence from McKinney Police

Detective Nolan Palmer describing pornographic internet searches and browsing

history extracted from Mays’s electronic devices. Mays’s mother testified she did

not witness any inappropriate behavior by Mays during R.M.’s visits to her house.

Mays did not testify, but his counsel contended R.M.’s allegations were fabricated

at the behest of her mother, who sought to cut Mays out of her new family’s life.

The jury found Mays guilty of continuous sexual abuse of a child as charged

in the indictment. The trial court set punishment at forty years imprisonment. This

appeal followed.

STANDARD OF REVIEW

We review a trial court’s decision to admit or exclude evidence for abuse of

discretion. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002); Burden v.

State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). If the trial court’s ruling falls

within the zone of reasonable disagreement, we should affirm. Moses v. State, 105

S.W.3d 622, 627 (Tex. Crim. App. 2003). Similarly, we review a trial court’s ruling

on an objection asserting improper jury argument for abuse of discretion. See Garcia

–3– v. State, 126 S.W.3d 921, 924 (Tex. Crim. App. 2004); Whitney v. State, 396 S.W.3d

696, 705 (Tex. App.—Fort Worth 2013, pet. ref’d).

ANALYSIS

In two issues, Mays asserts this Court should reverse his conviction and

remand to the trial court. We address each issue in turn.

I. Admission of Evidence Under Rules 404(b) and 403 Mays first contends the trial court abused its discretion in admitting—over his

Rule 404(b) and 403 objections—evidence of his incest-related pornographic

internet searches and browsing history. Mays contends admission of this evidence

was harmful error.

Relevant evidence is generally admissible. TEX. R. EVID. 402. “Relevant

evidence” means evidence having any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence. TEX. R. EVID. 401. Evidence of

extraneous offenses is generally inadmissible. TEX. R. EVID. 404(a). However, Rule

404(b) allows evidence of other crimes, wrongs, or acts if the evidence has relevance

apart from character conformity. TEX. R. EVID. 404(b). Evidence of other crimes,

wrongs, or acts may be admissible to prove motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident. Id.; Moses, 105 S.W.3d

at 626. Extraneous-acts evidence may also be admissible to rebut a defensive theory.

Moses, 105 S.W.3d at 626.

–4– Although admissible under Rule 404(b), evidence may still be excluded under

Rule 403 if the danger of unfair prejudice substantially outweighs its probative

value. TEX. R. EVID. 403; Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App.

1999). The term “unfair prejudice” refers not to an adverse or detrimental effect of

evidence but to an undue tendency to suggest a decision on an improper basis,

commonly an emotional one. Casey v. State, 215 S.W.3d 870, 883 (Tex. Crim. App.

2007). Unfair prejudice does not arise from the mere fact evidence injures a party’s

case. Id. Rule 403 favors the admission of relevant evidence, and courts presume

relevant evidence will be more probative than prejudicial. Shuffield v. State, 189

S.W.3d 782, 787 (Tex. Crim. App. 2006). The trial court is presumed to have

conducted the proper balancing test if it overrules a Rule 403 objection, regardless

of whether it conducted the test on the record. Williams. v. State, 958 S.W.2d 186,

195 (Tex. Crim. App. 1997).

Here, Mays objected to data extracted from his electronic devices. This

extraction showed Mays’s internet searches for “dad” and “daughter” pornography,

“teasing daddy” video views, and a “frequently visited site” of “free daughter”

pornography. Mays also objected to the video of Mays’s police interview where

Mays referenced viewing pornography. The trial court overruled Mays’s objections

and admitted the evidence.

Mays argues the searches were not relevant to any charged issue and were

overly prejudicial because they yielded only adult pornography. Mays further asserts

–5– the State introduced this evidence to show character conformity, pointing to the

State’s closing arguments:

It’s who he is, and what better way to see who he is than by his own internet history. Teasing daddy, dad search on xvideos.com, daughter search on xvideos.com, free daughter porn . . . and not only that, but Members of the Jury, you know his Internet searches and you know exactly what he is into and what sexual fetishes he has and what his sexual fetish is, it’s that he would have sex with his 8-year-old daughter.

The State contends the searches were relevant to show Mays’s sexual desire

and to rebut the defensive theory of fabrication and coaching by R.M.’s mother.

A. The evidence was admissible under Rule 404(b)

Mays was charged with continuous sexual abuse of a child. See TEX. PENAL

CODE § 21.02(b), (c). “Intent to arouse and gratify sexual desire” is an element of

the predicate offense of indecency with a child, with which the trial court charged

the jury. Id. § 21.11(a)(1), (c). The State may prove intent through circumstantial

evidence. See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). Thus,

the internet searches and frequently visited site history directed at “dad,” “daughter,”

and “free daughter porn,” were admissible under Rule 404(b) because they tended

to show Mays’s intent or motive to arouse or gratify his sexual desire with his

daughter. See Sarabia v. State, 227 S.W.3d 320, 324 (Tex. App.—Fort Worth 2007,

pet. ref’d) (in defendant’s trial for aggravated sexual assault of a child, images

depicting child pornography compiled from defendant’s computer discs were

admissible under Rule 404(b) because they tended to show intent or motive to arouse

or gratify his sexual desire with underage boys); Wooley v. State, No. 05-09-00455- –6– CR, 2010 WL 5395650, at *8 (Tex. App.—Dallas Dec. 30, 2010, no pet.) (not

designated for publication) (child pornography photos found on defendant’s

computer were relevant circumstantial evidence of defendant’s intent to arouse or

gratify his sexual desire in trial for aggravated sexual assault of a child and thus

admissible under Rule 404(b)).

The evidence was also admissible to rebut the defensive theory of fabrication

by R.M. Mays’s counsel raised this theory in his opening statement and attempted

to elicit trial testimony in support. The father/daughter pornographic searches and

browsing history tended to rebut Mays’s fabrication defense and were admissible for

this purpose. See De La Paz v. State, 279 S.W.3d 336, 346-47 (Tex. Crim. App.

2009) (evidence of extraneous offense admissible for purpose of rebutting the

defensive theory of fabrication); Shockley v. State, No. 05-12-01018-CR, 2014 WL

3756301, at *4 (Tex. App.—Dallas July 30, 2014, pet. ref’d) (not designated for

publication) (similar sexual assault against unrelated child had tendency to rebut

fabrication defense). The trial court did not abuse its discretion by admitting the

disputed evidence under Rule 404(b).

B. The evidence was admissible under Rule 403

We now turn to whether the evidence should have been excluded under Rule

403. Rule 403 analysis includes, but is not limited to, the following factors: (1) the

probative value of the evidence; (2) the potential of the evidence to impress the jury

–7– in some irrational, yet indelible, way; (3) the time needed to develop the evidence;

and (4) the proponent’s need for the evidence. Shuffield, 189 S.W.3d at 787.

As discussed, the pornographic internet searches involving fathers and

daughters were probative of the charged offenses because they tended to prove

Mays’s intent or motive to arouse or gratify his sexual desire with his daughter. The

likelihood the jury was impressed in some irrational, indelible way by the evidence

is small, considering the detailed testimony R.M. gave about the sexual abuse

perpetrated by Mays. His internet searches and history were less heinous than the

evidence relating to the sexual abuse itself. See Sarabia, 227 S.W.3d at 324. And,

the State did not spend excessive time developing the evidence. The extractions from

Mays’s electronic devices consisted of just three pages of web history, and most

entries were non-pornographic. Detective Palmer’s testimony about the

pornographic materials spanned less than eight pages of testimony. Less than a

minute of Mays’s police interview references his pornography habits.2 The State

asked Mays’s mother a single question about her knowledge of Mays’s browsing

history. Further, the State’s need for the evidence was significant. There was no

DNA or other physical evidence showing Mays assaulted R.M.3 There were no

corroborating eyewitnesses. The State had little else—other than R.M.’s own

2 A review of the interview–State’s Exhibit 24–did not reveal any incest references. 3 According to State witnesses, most sexual abuse physical exams do not show evidence of injury or abuse. –8– testimony—with which to rebut Mays’s attack on R.M.’s credibility and the

fabrication defense. See Sarabia, 227 S.W.3d at 324. And even if the State’s closing

argument suggests the pornographic searches were being used for an improper

character-evidence purpose, the trial court included an instruction in the charge

limiting the jury’s use of evidence of other acts to the permissible purposes outlined

in Rule 404(b). We generally presume the jury follows the trial court’s instructions.

Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005). Considering all these

factors, we cannot say the trial court abused its discretion in admitting the evidence

under Rule 403. See Sarabia, 227 S.W.3d at 324; Barto v. State, No. 13-13-00384-

CR, 2014 WL 895511, at *4-*5 (Tex. App.—Corpus Christi-Edinburg Mar. 6, 2014,

pet. ref’d) (mem. op., not designated for publication) (trial court did not abuse its

discretion under Rule 403 in admitting six images of child pornography found on

defendant’s electronic devices in defendant’s trial for continuous sexual abuse of a

child). We overrule Mays’s first issue.

II. Jury Argument In his second issue, Mays contends he was denied a fair trial when the

prosecutor offered her personal opinions and stated facts not in evidence during

closing arguments. We disagree.

Permissible jury argument generally falls into one of four areas: (1)

summation of the evidence; (2) reasonable deductions from the evidence; (3) an

answer to the argument of opposing counsel; or (4) a plea for law enforcement. Davis

–9– v. State, 329 S.W.3d 798, 821 (Tex. Crim. App. 2010). Remarks of counsel must be

considered within the context of the entire argument. Gaddis v. State, 753 S.W.2d

396, 398 (Tex. Crim. App. 1988).

For an improper jury argument to mandate reversal, it must affect the

defendant’s substantial rights. TEX. R. APP. P. 44.2(b); Martinez v. State, 17 S.W.3d

677, 692 (Tex. Crim. App. 2000). The Court considers three factors when assessing

the impact of the harm arising from improper jury argument under Rule 44.2(b): (1)

the severity of the misconduct/magnitude of the prejudicial effect; (2) measures

adopted to cure the misconduct; and (3) the certainty of conviction absent the

misconduct. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).

During closing argument, the State argued:

And Members of the Jury, I’ll tell you this, I’m a child abuse prosecutor. These are the cases I hear day in and day out, and you know what, when some of you had that reaction during opening when I talked about the penis behind the leg and you kind of gave me this look, guess what? It’s not something that I could make up either. How do you expect an 8- or 9-year-old— Mays objected “as to the prosecutor inserting her own personal opinion in those

matters, and also interjecting facts not in evidence.” The trial court overruled the

objection. Mays contends the remarks were severely prejudicial because the

prosecutor was acting as a de facto expert by offering her own experience and

improperly bolstering R.M.’s allegations while dismissing the defense’s theory.

When the prosecutor attaches a personal belief to the credibility of a witness,

the effect is to bolster the credibility of the witness with unsworn testimony, which –10– is improper. Robillard v. State, 641 S.W.2d 910, 912 (Tex. Crim. App. 1982).

However, if the State’s argument falls within one of the four permissible areas of

jury argument, it does not constitute error. See Davis, 329 S.W.3d at 821; Johnson

v. State, 987 S.W.2d 79, 84 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d).

During trial, Mays’s counsel attempted to elicit testimony R.M.’s mother

coached R.M. to fabricate the allegations to get Mays out of the picture. Counsel

argued this fabrication theory during his closing argument. The State’s closing

argument was a response to the fabrication argument. Further, the prosecutor never

directly stated she believed R.M., but merely suggested the story was not something

that had been fabricated. That statement was not an improper response to defense

counsel’s argument R.M. had been influenced and coached by her mother. See Lange

v. State, 57 S.W.3d 458, 469 (Tex. App.—Amarillo 2001, pet. ref’d) (prosecutor did

not improperly bolster complainant’s credibility by listing the people complainant

would have had to fool if she were lying, in light of defense counsel’s attempts to

attack complainant’s credibility by showing inconsistencies in her story and

suggesting she had been manipulated into bringing allegations against defendant);

Wylie v. State, 908 S.W.2d 307, 310 (Tex. App.—San Antonio 1995, pet. ref'd)

(because the defense strategy was to attack the complainant’s credibility by

suggesting she tended to fabricate and was influenced by the prejudices of others,

the arguments of the State were found to be a response to the defense and reasonable

deductions from the evidence). Under this record, we conclude the trial court did

–11– not abuse its discretion in overruling Mays’s objection to the State’s closing

argument.

Even assuming the argument was improper, it did not constitute harmful error.

The statement was brief in the State’s overall argument regarding the veracity of

R.M.’s allegations; any prejudicial effect was slight. That the prosecutor believed

R.M. was telling the truth was not so extreme as to deny Mays due process. See

Flores v. State, 778 S.W.2d 526, 528 (Tex. App.—Corpus Christi-Edinburg 1989,

no pet.) (prosecutor’s statement “This is a little girl. She got up here and told the

truth.” while improper, was not so extreme as to require reversal, where

complainant’s credibility was being addressed); Ruedas v. State, No. 11-13-00049-

CR, 2015 WL 9584002, at *7 (Tex. App.—Eastland Dec. 31, 2015, pet. ref’d) (mem.

op., not designated for publication) (prosecutor’s statement the complainant “is

telling the truth” did not result in the denial of due process). Moreover, the evidence

in support of Mays’s guilt was significant.4 Any error, therefore, did not affect

Mays’s substantial rights. We overrule Mays’s second issue.

CONCLUSION

The trial court did not abuse its discretion in admitting the pornography-

related evidence under Rules 404(b) or 403. The trial court did not abuse its

discretion in overruling Mays’s objections to the State’s closing argument. Even if

4 Mays candidly admits the State had sufficient evidence to overcome a sufficiency challenge. –12– the closing argument was improper, it did not affect Mays’s substantial rights.

Accordingly, we affirm the judgment.

/Robbie Partida-Kipness/ 211033f.u05 ROBBIE PARTIDA-KIPNESS Do Not Publish JUSTICE TEX. R. APP. 47.2(b)

–13– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

ADDISON DOUGLAS MAYS, On Appeal from the 366th Judicial Appellant District Court, Collin County, Texas Trial Court Cause No. 366-84413- No. 05-21-01033-CR V. 2019. Opinion delivered by Justice Partida- THE STATE OF TEXAS, Appellee Kipness. Justices Reichek and Breedlove participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 20th day of November, 2023.

–14–