David Lee Harrison v. the State of Texas

Opinion

In The

Court of Appeals

Seventh District of Texas at Amarillo

No. 07-26-00115-CR

No. 07-26-00116-CR

No. 07-26-00117-CR

No. 07-26-00118-CR

No. 07-26-00119-CR

No. 07-26-00120-CR

DAVID LEE HARRISON, APPELLANT V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 78th District Court Wichita County, Texas1

Trial Court No. DC78-CR2025-1130-1, DC78-CR2025-1130-2, DC78-CR2025-1130-3, DC78-CR2025-1130-4, DC78-CR2025-1130-5, DC78-CR2025-1130-6 Honorable Stephen Bristow, Presiding

August 17, 2026

MEMORANDUM OPINION

Before DOSS and YARBROUGH and PRATT, JJ.

1 Originally appealed to the Second Court of Appeals, this case was transferred to this Court by the

Supreme Court of Texas. See TEX. GOV’T CODE § 73.001. Should a conflict exist between the precedent of the Second Court of Appeals and this Court on any relevant issue, we apply the precedent of the Second Court of Appeals. TEX. R. APP. P. 41.3.

Appellant, David Lee Harrison, appeals from the trial court’s judgment convicting him, following a jury trial, of two counts of sexual assault2 and four counts of sexual performance by a child.3 In one issue, Appellant contends that the trial court erred by admitting search history, photographic, and video evidence of pornography recovered from his electronic devices. Because Appellant failed to preserve this complaint for our review, and because the trial court would not have abused its discretion in admitting the evidence in any event, we affirm the judgment of the trial court.

BACKGROUND

Appellant does not challenge the sufficiency of the evidence supporting his convictions, so we recite only the facts necessary to resolve the issue he raises.

“Katherine”4 was twelve or thirteen years old when she was removed from her biological parents’ home and adopted by her paternal aunt, “Diane.” Through Diane, Katherine met Appellant, who was married to her paternal grandmother, “Margaret.” The families spent considerable time together. Katherine’s relationship with Appellant was unremarkable at first. Over the following years, though, it developed into repeated sexual contact, including oral sex and, on at least one occasion, intercourse. Appellant also sent K.V. sexually suggestive photographs and messages and, after she obtained a cell phone

2 TEX PENAL CODE § 22.011.

3 TEX PENAL CODE § 43.25.

4 We use pseudonyms to protect the identity of the minor victim and of other individuals whose

identity could reveal hers. See TEX. R. APP. P. 9.10; McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).

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at sixteen, solicited nude images from her. When Katherine tried to tell Diane and Margaret about Appellant’s conduct, both refused to believe her.

Katherine eventually gave a statement to the Wichita County Sheriff’s Office and consented to a search of her phone. Using that information, Investigator Patrick Bradford obtained a warrant to search Appellant’s home and the electronic devices found there. Forensic review of those devices, and of a phone recovered from Appellant at his arrest, revealed internet search history and images depicting stepparent-stepdaughter, step- grandparent, and teenage sexual content.

At trial, Katherine testified to the encounters underlying the charged offenses.

When the State sought to elicit testimony from Investigator Bradford about search-history and photographic evidence recovered from Appellant’s devices,5 Appellant objected under Texas Rules of Evidence 404(b), 403, and 702, arguing that the evidence was irrelevant, unfairly prejudicial, and improper character evidence, and that Bradford lacked the qualifications to interpret the forensic extraction that produced it. The trial court overruled the 404(b), 403, and character-evidence objections, declined to overrule the Rule 702 objection, and granted Appellant a running objection, “especially under Rule 403,” as to the admissibility of the proffered evidence.

Following an off-the-record discussion, the parties reached an agreement narrowing what would be presented to the jury that day. The State withdrew its proffer of Exhibits 31–34 (the search history exhibits and the photographs) “until such time as a

5 Specifically, State’s Exhibits 31–33 reflected Internet search or browsing history; Exhibit 34

contained four photographs; Exhibit 35 depicted a video recovered from Appellant’s phone that shows his penis.

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different predicate has been laid,” and the trial court advised that any future offer of those exhibits before the jury would require a further bench conference and ruling. In exchange, Appellant stipulated to the admission of State’s Exhibit 35 (the video exhibit) and to testimony that Bradford had found on Appellant’s devices, internet searches and images relating to sexual relationships between stepparents and stepchildren and to teenagers engaging in sexual activity. While still outside the jury’s presence, the State then moved to admit Exhibits 31–34 into the record, and the trial court granted that motion outside the jury’s presence. However, the exhibits were not published to the jury at that time. When the jury returned, Bradford testified consistent with the parties’ agreement, and the video exhibit was published to the jury without objection.

On the next day of trial, the State again offered Exhibits 31–34, this time for publication to the jury. Appellant responded, “No objection,” and the trial court admitted the exhibits. The State published them to the jury, reciting the specific search titles referencing sexual abuse by a grandfather against a step-granddaughter and by a stepfather against a stepdaughter, along with related photographs.

In his case-in-chief, Appellant called Diane and Katherine’s adopted sister, both of whom questioned Katherine’s credibility and described instances of dishonesty in her youth. Diane testified that she was unaware of any sexual misconduct between Appellant and Katherine and did not believe the allegations. She acknowledged, however, after viewing messages introduced at trial, that some of Appellant’s texts were inappropriate; Diane agreed with the prosecutor’s characterization that Appellant’s possession of nude photographs of Katherine was “good evidence” of his guilt.

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The jury convicted Appellant on all counts and assessed four 15-year sentences, one 18-year sentence, and one 20-year sentence, to run consecutively. This appeal followed.

ANALYSIS

In his sole issue, Appellant contends that the trial court erred by admitting the search history, photographic, and video evidence recovered from his devices, arguing that the material carried little probative value, was inherently inflammatory, distracted the jury from the charged offenses, and was unnecessary given Katherine’s own testimony. We review a trial court’s evidentiary rulings for an abuse of discretion and will uphold the ruling if it falls within the zone of reasonable disagreement. Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018).

To preserve a complaint for appellate review, a party must object each time allegedly inadmissible evidence is offered, unless a running objection covers its later admission or a hearing is requested outside the jury’s presence. TEX. R. APP. P. 33.1(a). “[W]hen a defendant objects to evidence at trial but later allows substantially the same evidence to be admitted without objection, any error in admitting the objected-to evidence is waived.” Garcia v. State, 6 S.W.3d 765, 767 (Tex. App.—Fort Worth 1999, pet. ref’d). This is particularly so where the trial court has conditioned any future offer of the evidence on a further ruling; in that circumstance, the party must object when the evidence is next offered to preserve the complaint. See Williams v. State, No. 02-24-00176-CR, 2025 Tex. App. LEXIS 3561, at *37 (Tex. App.—Fort Worth May 22, 2025, pet. granted)(mem. op. not designated for publication) (holding that a party forfeits Rule 403 and 404 objections

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by failing to renew them after the trial court defers ruling on a later offer of the same evidence).6

The trial court overruled Appellant’s Rule 404(b), 403, and character evidence objections to the challenged evidence and granted him a running objection. But after the parties agreed that the search history and photograph exhibits would be withheld from the jury pending a further predicate, the trial court expressly conditioned any later offer of those exhibits on a renewed bench conference and ruling. When the State offered the exhibits for publication to the jury, Appellant did not re-urge his earlier running objection. He unequivocally said, “No objection.” Because Appellant permitted the very evidence he now challenges to reach the jury without objection, he forfeited any complaint about its admission. See Garcia, 6 S.W.3d at 767.

Even if Appellant had preserved this complaint, the trial court would not have abused its discretion in admitting the evidence. Rule 403 permits a trial court to exclude relevant evidence only when its probative value is substantially outweighed by the danger of unfair prejudice. TEX. R. EVID. 403. The rule carries a presumption favoring admission of relevant evidence. Hance v. State, 714 S.W.3d 775, 810 (Tex. App.—Fort Worth 2025, no pet.). The party opposing admission bears the burden of overcoming that presumption. Id. Courts weigh the evidence’s probative force and the proponent’s need

6 The Court of Criminal Appeals has explained that a later “no objection” statement forfeits an

earlier-preserved complaint unless “the record as a whole plainly demonstrates that the defendant did not intend, nor did the trial court construe, his ‘no objection’ statement to constitute an abandonment” of that complaint. Thomas v. State, 408 S.W.3d 877, 885 (Tex. Crim. App. 2013). Where the record does not resolve that question, the statement serves, by itself, as an unequivocal indication that a waiver was both intended and understood. Id. at 885–86. As explained below, nothing in the record indicates that Appellant or the trial court understood his “no objection” statement as anything other than a full waiver of his earlier- preserved objection.

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for it against its tendency to prompt a decision on an improper basis, confuse or distract the jury, receive undue weight from a jury ill-equipped to evaluate it, or consume an inordinate amount of trial time. Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). A reviewing court will reverse a trial court’s Rule 403 ruling only after a clear abuse of discretion. Perkins v. State, 664 S.W.3d 209, 217 (Tex. Crim. App. 2022).

The Second Court of Appeals, whose decisions are binding consistent with horizontal stare decisis,7 has held that evidence of a defendant’s search for, or possession of, pornography depicting relationships mirroring his own relationship to the victim is highly probative of intent in a child-sex-abuse prosecution, notwithstanding its inflammatory character, where a clear nexus exists between the pornography and the circumstances of the offense. See Neighbors v. State, No. 02-24-00147-CR, 2025 Tex. App. LEXIS 3361, at *6 (Tex. App.—Fort Worth May 15, 2025, pet. ref’d) (mem. op., not designated for publication); Hance, 714 S.W.3d at 812; Watkins v. State, No. 02-12- 00024-CR, 2013 Tex. App. LEXIS 1512, at *9–10 (Tex. App.—Fort Worth Feb. 14, 2013, pet. ref’d) (mem. op. not designated for publication). That nexus is present here. Appellant was charged with sexually assaulting his step-granddaughter, and the search- history evidence reflected titles specifically describing sexual abuse in such a family relationship. The correspondence between that material and Appellant’s actual relationship to Katherine rendered the evidence highly probative of his intent.

7 See TEX. R. APP. P. 41.3; Mitschke v. Borromeo, 645 S.W.3d 251, 256–58 (Tex. 2022).

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The State’s need for the evidence was likewise substantial. No medical evidence corroborated Katherine’s account, and no witness other than Katherine testified to the abuse itself. Appellant’s defense rested largely on attacking Katherine’s credibility through testimony that described other instances of dishonesty. That strategy increased, rather than diminished, the State’s need for corroborating evidence of Appellant’s intent. See Hance, 714 S.W.3d at 814. Weighing the clear nexus between the challenged evidence and the charged offenses against its inflammatory character, we cannot say the trial court’s ruling fell outside the zone of reasonable disagreement.

We overrule Appellant’s sole issue.

CONCLUSION

Having overruled Appellant’s only issue, we affirm the trial court’s judgment.

Lawrence M. Doss

Justice

Do not publish.