COURT
OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-04-537-CR
JAMES
LAWRENCE THOMAS
APPELLANT
A/K/A JAMES
THOMAS
V.
THE STATE
OF TEXAS
STATE
------------
FROM THE 371ST DISTRICT COURT OF TARRANT
COUNTY
MEMORANDUM
OPINION
I. Introduction
Appellant
James Lawrence Thomas appeals his convictions for aggravated sexual assault of a
child and indecency with a child. A
jury found Thomas guilty and assessed his punishment at ninety-nine
years= and
twenty years=
confinement, respectively, and the trial court sentenced him accordingly. In two issues, Thomas contends that the
trial court abused its discretion by excluding defense evidence and by admitting
pornographic images police recovered from Thomas=s
computer. We will affirm.
II. Factual and Procedural
Background
Thomas
married Melissa in July of 2001 after living with her and her two children,
B.N.M. and J.T.C., for one year. At
the time, B.N.M. was eight years old.
On March 17, 2003, B.N.M. confided to her mother that Thomas had been
showing her Asexual
things@
on the computer and touching her in her private areas and that it had been going
on since before Melissa and Thomas married. That night, Melissa and her two
children moved out of the house, but Melissa returned on March 19th and
confiscated the hard drives from the three computers in their home.
A
computer forensics examiner, Detective Mark Stephens, retrieved 22,000 graphic
images from the hard drive of Thomas=s
home office computer. Detective Stephens also found the term ALolita@Ca
term commonly used in child pornographyCon
the hard drive 12,933 times and the term Aincest@
3,402 times.
A
grand jury indicted Thomas on five counts of aggravated sexual assault of a
child and two counts of indecency with a child, but the State later elected to
proceed on one count of aggravated sexual assault and one count of indecency
with a child. At trial, B.N.M.
testified that Thomas sometimes showed her pictures on the computer in his home
office. She explained that there
were pictures of children and adults posing nude and also of adults engaged in
sexual activities with other adults, children, and animals. B.N.M. testified that Thomas would ask
her to pose like the people in the pictures.
The State also called Detective Stephens to testify concerning the images
he retrieved from the three hard drives.
During its direct examination of the detective, the State introduced into
evidence State=s
Exhibit 3 without objection from Thomas=s
defense attorney. State=s
Exhibit 3 consists of twenty-one images of teenaged girls engaging in sexual
acts with adult males or posing in a sexual manner. When the State sought to introduce into
evidence State=s
Exhibit 4Ctwenty
images of a pre-adolescent child posing partially and fully nudeCdefense
counsel objected that the evidence was cumulative and irrelevant in light of
State=s
Exhibit 3. The trial court
overruled defense counsel=s
objection and admitted the images.
Thomas
took the stand at trial. He could
not explain the accusations against him except to suggest that
B.N.M.=s
mother may have influenced B.N.M. to falsely accuse him. Thomas=s
defense counsel then sought to introduce into evidence a proposed divorce decree
that awarded Melissa an unequal division of the couple=s
marital property; Melissa=s
divorce attorney had sent the proposed decree to Thomas. The trial court sustained the
State=s
objection that the unsigned decree was irrelevant because it was not a final
judgment. Later in his testimony,
Thomas alleged that Melissa may have influenced B.N.M. to falsely accuse him of
sexual assault in order to get out of the marriage. Thomas also testified that he never
intentionally downloaded child pornography and that he would delete it when he
found it on his computer. He
explained that he used the term ALolita@
to search for Hispanic or Spanish adult pornography.
III. Standard of
Review
We
review a trial court=s
decision to admit evidence under an abuse of discretion standard. Kelly v. State, 824 S.W.2d 568,
573-74 (Tex. Crim. App. 1992); Montgomery v. State, 810 S.W.2d 372, 391
(Tex. Crim. App. 1991) (op. on reh=g). The trial court has broad discretion in
determining the admissibility of evidence, and we may overturn the
court=s
ruling only if it is so clearly wrong that the ruling lies outside the zone of
reasonable disagreement. See
Montgomery, 810 S.W.2d at 391.
IV. No Abuse of Discretion in Exclusion of
Proposed Divorce Decree
In
his first issue, Thomas complains that the trial court abused its discretion by
excluding the unsigned copy of the divorce decree sent to him by
Melissa=s
divorce attorney. Specifically,
Thomas alleges that the decree was relevant because it proposed an unequal
division of the marital property, thus supporting his only defenseCthat
Melissa influenced her daughter to falsely accuse Thomas in order to gain an
advantage in their divorce proceedings.
The State maintains that because Thomas did not raise this contention
when he offered the decree into evidence, the trial court did not abuse its
discretion by excluding the decree as irrelevant.
In
order to be admissible, the evidence must be relevant as defined by rule 401 of
the Texas Rules of Evidence. Tex. R. Evid. 401. Pursuant to rule 401, evidence is
relevant if it has Aany
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.@ Id. The proponent of the evidence has the
burden of demonstrating the relevance of the evidence. See Garza v. State, 18 S.W.3d
813, 822 (Tex. App.CFort
Worth 2000, pet. ref=d). The appellate court must
review the trial court's ruling in light of what was before the trial court at
the time that the trial court made the ruling. Weatherred v. State, 15 S.W.3d 540,
542 (Tex. Crim. App. 2000). In
determining whether evidence is relevant, courts look to the stated purpose for
offering the evidence and to whether there is a direct or logical connection
between the offered evidence and the proposition sought to be proved. Reed v. State, 59 S.W.3d 278, 281
(Tex. App.CFort
Worth 2001, pet. ref'd). Before Thomas
offered the proposed divorce decree into evidence, he testified that Melissa is
the only person in B.N.M.=s
life who has enough influence over B.N.M. to be able to convince her to falsely
accuse him of sexual assault. At
that time, however, Thomas did not allude to any motive for Melissa to encourage
her daughter to falsely accuse him.
Additionally, when Thomas=s
defense counsel offered the proposed divorce decree into evidence, she did not
inform the trial court of her purpose in introducing the evidence, nor did she
make any attempt to explain its relevance.
Thomas=s
testimony went on for over twenty-five pages before he suggested that Melissa
may have influenced her daughter to lie so that Melissa could get out of the
marriage.
When Thomas offered the proposed divorce decree into evidence, he had the
burden of establishing that the evidence was relevant. See Garza, 18 S.W.3d at 822. However, he failed to meet this burden,
and we cannot say that the trial court acted outside the zone of reasonable
disagreement by sustaining the State=s
objection that the proposed decree was irrelevant at the time it was
offered. See Montgomery, 810
S.W.2d at 391. Even if Thomas had
explained to the trial court his reason for introducing the proposed divorce
decree, the trial court could have reasonably determined that the proffered
evidence did not have any tendency to make the existence of any fact of
consequence to the determination of the actionCThomas=s
alleged sexual assault of and indecency with B.N.M.Cmore
probable or less probable. See
Tex. R. Evid. 401.
The
proposed decree indicates that the district court heard Melissa and
Thomas=s
divorce proceedings on September 8, 2003Calmost
six months after B.N.M. told her mother that Thomas had been touching her. There is no evidence that Melissa and
Thomas had even discussed divorce until after Melissa learned of
Thomas=s
alleged sexual assault of her daughter.
It is logical that Melissa decided to divorce Thomas after learning of
B.N.M.=s
allegations that Thomas had been sexually assaulting her for three years and
that she sought a disproportionate amount of the marital property for that
reason. Thus, although Thomas
sought to introduce the proposed decree to prove Melissa=s
motive in influencing B.N.M. to lie about the sexual assault, the trial court
could have reasonably concluded that no logical connection existed between the
proposed divorce decree and this proposition. See Reed, 59 S.W.3d at 281. We hold that the trial court=s
decision to exclude the proposed divorce decree does not fall Aoutside
the zone of reasonable disagreement.@
See Montgomery, 810 S.W.2d at 391.
Accordingly, the trial court did not abuse its discretion by excluding
the evidence. See Kelly, 824
S.W.2d at 573-74; Montgomery, 810 S.W.2d at 391. We overrule Thomas=s
first issue.
V. No Abuse of Discretion in Admission of
Pornographic Images
In
his second issue, Thomas contends that the trial court abused its discretion by
admitting as State=s
Exhibit 4 images of a young girl found on Thomas=s
computer. Thomas argues that the
images were cumulative of the other pornographic images introduced in
State=s
Exhibit 3 and that the probative value of these images was substantially
outweighed by their prejudicial effect. Rule
403 provides that A[a]lthough
relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, or needless
presentation of cumulative evidence.@ Tex. R. Evid. 403 (emphasis
added). A rule 403 analysis by the
trial court should include, but is not limited to, the following
considerations: (1) the probative
value of the evidence; (2) the potential of the evidence to impress the jury in
some irrational, indelible way; (3) the time the proponent needs to develop the
evidence; and (4) the proponent=s
need for the evidence. See Erazo
v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004). Concerning probativeness, photographs
generally are admissible if verbal testimony of the matters depicted in the
photographs is also admissible as long as their probative value is not
outweighed by any prejudicial effect.
Potter v. State, 74 S.W.3d 105, 112 (Tex. App.CWaco
2002, no pet.) (citing Ramirez v. State, 815 S.W.2d 636, 647 (Tex. Crim.
App. 1991)).
With
respect to Thomas=s
claim that the images in State=s
Exhibit 4 were inadmissible because they were needlessly cumulative, the concern
for needless presentation of cumulative evidence involves the efficiency of the
judicial process rather than the threat of inaccurate decisions. See Alvarado v. State, 912 S.W.2d
199, 212 (Tex. Crim. App. 1995).
The trial court must balance the probativeness of the evidence against
the tendency, if any, that the evidence has to prolong the trial to the
defendant=s
detriment. Ladd v. State, 3
S.W.3d 547, 569 (Tex. Crim. App. 1999) (citing Alvarado, 912 S.W.2d at
213), cert. denied, 529 U.S. 1070 (2000).
Here,
the images in State=s
Exhibit 3 portray teenage girls performing sexual acts with an adult male and
posing in a sexual manner, but the images in State=s
Exhibit 4 portray a younger pre-adolescent girl posing partially and fully nude
and are not as sexually explicit as those in State=s
Exhibit 3. The images in
State=s
Exhibit 4 are clearly not cumulative because they address different points from
those addressed in State=s
Exhibit 3. See Alvarado, 912
S.W.2d at 213 (quoting Goode,
Wellborn & Sharlot, Guide to
the Texas Rules of Evidence '
403.3 (2d ed. 1993)) (defining cumulative to mean that A>other
evidence on the same point has been already received=@). The State explains that it presented the
second set of images (State=s
Exhibit 4) to illustrate Thomas=s
sexual interest in pre-adolescent girls the same age as B.N.M.; to support
Detective Stephens=s
testimony that the term ALolita@
retrieves child pornography, not Hispanic adult pornography as Thomas suggested;
and to corroborate B.N.M.=s
testimony that Thomas showed her pictures of people posing nude and asked her to
pose like the girls in the pictures.
Thus, State=s
Exhibit 4 did not present cumulative evidence as Thomas suggests. See id. Turning to the rule 403
considerations, Detective Stephens testified concerning the images of the
pre-adolescent girl recovered from Thomas=s
computer=s
hard drive, and B.N.M. testified concerning the images Thomas showed her on his
computer. The images in
State=s
Exhibit 4 tended to corroborate both Detective Stephen=s
and B.N.M.=s
testimony and thus had the probative value of strengthening this testimony. See Lewis v. State, 505 S.W.2d
603, 604 (Tex. Crim. App. 1974) (holding that probative value is established if
photograph is needed to corroborate witness=s
observations and conclusions). We
also conclude that the images in State=s
Exhibit 4 do not tend to impress on the jury in an irrational and indelible
way. The age of the girl in the
images is disturbing, but she is not performing any sexual act, making these
images less likely to impress on the jury in an irrational way and certainly
less likely to prejudice the jury than the images admitted without objection in
State=s
Exhibit 3. Cf. Taylor v.
State, 93 S.W.3d 487, 506-07 (Tex. App.CTexarkana
2002, pet. ref=d)
(excluding graphic story of adults raping children as likely to encourage jury
to resolve material issues on emotional and irrational basis). Thomas admits that the State did not
spend an excessive amount of time developing the evidence; Detective
Stephens=s
testimony amounts to thirty-five pages from a 310-page record. Cf. Booker v. State, 103 S.W.3d
521, 536 (Tex. App.CFort
Worth 2003, pet. ref=d)
(op. on reh=g)
(noting third Montgomery factor weighed in favor of excluding extraneous
offense when trial time spent proving extraneous offense exceeded time spent
proving charged offense). Finally,
the State had other ways to elicit the evidenceCDetective
Stephens=s
testimony concerning these imagesCbut
that testimony could not as accurately depict for the jurors the exact age of
the young girl in the images.
We
have reviewed the images and conclude that the trial court acted within its
discretion by determining that the probative value of State=s
Exhibit 4 was not greatly outweighed by the prejudicial effect of the images or
by needless presentation of cumulative evidence. We hold that the trial court acted
within its discretion by admitting State=s
Exhibit 4. See Kelly, 824
S.W.2d at 573-74; Montgomery, 810 S.W.2d at 391. We overrule Thomas=s
second issue.
VI. Conclusion
Having
overruled each of Thomas=s
two issues, we affirm the trial court=s
judgment.
SUE
WALKER
JUSTICE
PANEL
B: LIVINGSTON, GARDNER, and
WALKER, JJ.
DO NOT
PUBLISH
Tex.
R. App. P.
47.2(b)
DELIVERED:
December 8, 2005
See Tex. R. App. P.
47.4.