Keith Anthony Hubbard v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: November 9, 2023
• Docket: 02-23-00067-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-23-00067-CR ___________________________

KEITH ANTHONY HUBBARD, Appellant

V.

THE STATE OF TEXAS

On Appeal from 371st District Court Tarrant County, Texas Trial Court No. 1580228D

Before Sudderth, C.J.; Womack and Walker, JJ. Memorandum Opinion by Justice Womack MEMORANDUM OPINION

I. INTRODUCTION

Appellant Keith Anthony Hubbard appeals his convictions for continuous

sexual assault of a young child, indecency with a child by contact, and two counts of

indecency with a child by exposure. See Tex. Penal Code Ann. §§ 21.02(b),

21.11(a)(1)–(2). On appeal, Hubbard argues in two points that (1) the trial court’s

consideration of the presentence investigation report (PSI) at punishment violated his

rights under the Sixth Amendment’s Confrontation Clause, see U.S. Const. amend. VI,

and (2) the trial court abused its discretion by admitting over Hubbard’s Rule 403

objection a forensic examiner’s testimony concerning the names of certain

pornographic websites that had been visited from Hubbard’s cell phone, see Tex. R.

Evid. 403. We will affirm.

II. BACKGROUND

In October 2018, Arlington police officer Trenton Fite and his patrol partner

were dispatched to an Arlington residence in response to a 911 call reporting a

runaway child. Upon arrival, he spoke with Shaundreika Washington, who informed

him that her then-fifteen-year-old daughter J.R.1—Hubbard’s stepdaughter—had run

away from home. Washington indicated that she had been communicating with J.R.

via text throughout the day.

1 We use initials to refer to the victim. See Tex. R. App. P. 9.10(a)(3).

2 Officer Fite testified that the nature of his investigation changed when

Washington showed him a short video clip that J.R. had texted her. The video, which

J.R. had recorded on her cell phone, showed Hubbard masturbating in front of J.R.

while standing in a hallway.

After viewing the video, Officer Fite went to a nearby Chicken Express to meet

with J.R. She told him that she did not want to return home until her stepfather was

gone. She then “opened up” about Hubbard’s sexual abuse and showed Officer Fite

the same video that he had seen on Washington’s phone. Officer Fite learned that

J.R. had made previous outcries to her mother about Hubbard’s sexual abuse but that

the police had not been notified. Pursuant to police-department protocol, he notified

the Crimes Against Children Unit and Child Protective Services of J.R.’s allegations,

triggering an investigation.

Ultimately, Hubbard was indicted for fourteen offenses: continuous sexual

assault of a young child, three counts of aggravated sexual assault of a child, six counts

of indecency with a child by contact, and four counts of indecency with a child by

exposure. See Tex. Penal Code Ann. §§ 21.02(b), 21.11(a)(1)–(2), 22.021(a)(1)(B).

Hubbard pleaded not guilty, and a jury trial was held.2

At trial, the State called seven witnesses, including J.R., who described in detail

the many forms of sexual misconduct that Hubbard had committed against her. She

Although Hubbard’s guilt was decided by a jury, he elected to have the trial 2

court decide his punishment.

3 testified that the abuse began when she was six or seven years old and in the first

grade. Hubbard began by masturbating in front of her and later progressed to taking

her clothes off after she went to bed, touching her breasts, putting his mouth on her

vagina, touching her mouth with his penis, and rubbing his semen on her lips. The

abuse occurred “all the time . . . for many, many months over many grades.” During

J.R.’s testimony, the State introduced a number of exhibits detailing the dates and

forms of Hubbard’s sexual abuse, including the video that J.R. and her mother had

shown to Officer Fite.

The State also called Vy Phan, a digital forensic examiner for the Arlington

Police Department, to testify regarding certain data that he had extracted from

Hubbard’s cell phone. Specifically, Phan testified as to the domain names of certain

pornographic websites—all of which suggested that they contained content relating to

incest or the sexual exploitation of children—that had been visited from Hubbard’s

phone.3

The jury convicted Hubbard of continuous sexual assault of a child (Count

One), indecency with a child by contact (Count Nine), and two counts of indecency

with a child by exposure (Counts Eleven and Thirteen).4 Because Hubbard had

Phan extracted image files from Hubbard’s phone that had been downloaded 3

from each of the listed websites, but he did not describe the images, nor were they shown to the jury. 4 The State waived Counts Seven, Ten, Twelve, and Fourteen at the close of testimony during the guilt–innocence phase of trial. In addition, the trial court’s

4 elected to be sentenced by the trial court and had requested the preparation of a PSI,

the proceedings were continued pending a presentence investigation. Ultimately,

following a sentencing hearing, the trial court sentenced Hubbard to life on Count

One, to twenty years’ incarceration on Count Nine, and to ten years’ incarceration on

Counts Eleven and Thirteen.5 This appeal followed.

III. DISCUSSION

A. Hubbard Failed to Preserve His Meritless Confrontation-Clause Complaint

In his first point, Hubbard contends that the trial court violated his Sixth-

Amendment right to confront witnesses by considering the PSI at punishment. See

U.S. Const. amend. VI. He candidly admits that the Texas Court of Criminal Appeals

has held adversely to him on the merits of this complaint,6 and he also acknowledges

that he failed to preserve the complaint by objecting at trial. Indeed, far from

objecting, Hubbard specifically requested that the trial court consider the PSI during

sentencing. However, citing Ex parte Hathorn, 296 S.W.3d 570, 572 (Tex. Crim. App.

2009), and Ex parte Turner, 542 S.W.2d 187, 189 (Tex. Crim. App. 1976), he contends

charge instructed the jury not to consider Counts Two, Three, Four, Five, Six, or Eight if it found Hubbard guilty of Count One. Thus, Counts One, Nine, Eleven, and Thirteen were the only counts considered by the jury. 5 These sentences are to run concurrently. 6 See Stringer v. State, 309 S.W.3d 42, 48 (Tex. Crim. App. 2010) (“When the sentence is determined by the judge, the information in a PSI is not subject to the Confrontation Clause.”).

5 that he was not required to preserve his Confrontation-Clause complaint because “the

Court of Criminal Appeals has held that under circumstances where the law is well-

settled to the point where any objection in the trial court would be futile, the claim

will not be considered forfeited for later review.”

But Hathorn and Turner are both postconviction writ cases in which the Court

of Criminal Appeals held that, in that context, preservation at trial was not required to

argue for reversal of a conviction based on a higher-court change in the law that

occurred after the trial. Hathorn, 296 S.W.3d at 571–72; Turner, 542 S.W.2d at 189

(“The petitioner’s trial was on September 21, 1965, almost two years before the

decision in Washington v. Texas, supra. It would be unreasonable to expect the

petitioner to anticipate the future decision of the United States Supreme Court.”).

This case is not in a postconviction-writ posture, nor has Hubbard identified any

change in the law since trial of which he now seeks to take advantage. On direct

appeal, the Rules of Appellate Procedure and Court of Criminal Appeals case law

require Confrontation-Clause complaints to be preserved at trial. See Tex. R. App. P.

33.1(a)(1); Davis v. State, 313 S.W.3d 317, 347 (Tex. Crim. App. 2010). Because

Hubbard did not preserve this complaint at trial, we overrule his first point. See Davis,

313 S.W.3d at 347; Serrano v. State, 636 S.W.3d 717, 720–21 (Tex. App.—Fort Worth

2021, pet. ref’d); Sell v. State, 488 S.W.3d 397, 398–99 (Tex. App.—Fort Worth 2016,

pet. ref’d).

6 B. Hubbard’s Rule 403 Complaint Lacks Merit

In his second point, Hubbard contends that the trial court abused its discretion

by overruling Hubbard’s Rule 403 objection to Phan’s testimony concerning the

names of four pornographic websites that had been visited from Hubbard’s cell

phone. We disagree.

1. Standard of Review

We review a trial court’s decision to admit or exclude evidence under an abuse

of discretion standard. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003);

Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990). We will not reverse a

trial court’s decision to admit or exclude evidence unless the record shows a clear

abuse of discretion. Zuliani, 97 S.W.3d at 595. An abuse of discretion occurs only

when the trial court’s decision was so clearly wrong as to lie outside that zone within

which reasonable persons might disagree. Id. If the trial court’s evidentiary ruling is

correct on any applicable theory of law, we will not disturb it even if the trial court

gave the wrong reason for its correct ruling. De la Paz v. State, 279 S.W.3d 336, 344

(Tex. Crim. App. 2009); Qualls v. State, 547 S.W.3d 663, 675 (Tex. App.—Fort Worth

2018, pet. ref’d).

2. Rule 403

Even if evidence is relevant, it can still be excluded under Rule 403 if the

danger of unfair prejudice substantially outweighs the evidence’s probative value.

McNeil v. State, 398 S.W.3d 747, 756 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d);

7 see also Tex. R. Evid. 403. “Rule 403 favors the admission of relevant evidence and

carries a presumption that relevant evidence is more probative than prejudicial.” James

v. State, 623 S.W.3d 533, 546–47 (Tex. App.—Fort Worth 2021, no pet.) (first citing

Montgomery, 810 S.W.2d at 389; and then citing Emich v. State, No. 02-18-00059-CR,

2019 WL 311153, at *7 (Tex. App.—Fort Worth Jan. 24, 2019, no pet.) (mem. op.,

not designated for publication)). Because of this presumption, it is the burden of the

party opposing the admission of the evidence to show that the evidence’s probative

value is substantially outweighed by one or more of the dangers listed in Rule 403—

including unfair prejudice. James, 623 S.W.3d at 547; Wells v. State, 558 S.W.3d 661,

669 (Tex. App.—Fort Worth 2017, pet. ref’d); Sanders v. State, 255 S.W.3d 754, 760

(Tex. App.—Fort Worth 2008, pet. ref’d).

To determine whether evidence is admissible in the face of a Rule 403

objection, the trial court must conduct a balancing test. Montgomery, 810 S.W.2d at

389; see Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). The

Texas Court of Criminal Appeals has instructed that when undertaking a Rule 403

analysis, courts must balance (1) the inherent probative force of the proffered item of

evidence and (2) the proponent’s need for that evidence against (3) any tendency of

the evidence to suggest a decision on an improper basis, (4) any tendency of the

evidence to confuse or distract the jury from the main issues, (5) any tendency that a

jury that has not been equipped to evaluate the probative force of the evidence would

give it undue weight, and (6) the likelihood that presentation of the evidence will

8 consume an inordinate amount of time or merely repeat evidence already admitted.

Gigliobianco, 210 S.W.3d at 641–42.

3. Application

Hubbard contends that Phan’s testimony concerning the names of the four

pornographic websites visited from Hubbard’s phone had minimal probative value

because this evidence was “utterly irrelevant to any fact of consequence.”7 However,

evidence of a defendant’s use of pornography is admissible when—as here—there is a

clear nexus between the pornography and the offense. See, e.g., Sarabia v. State,

227 S.W.3d 320, 324 (Tex. App.—Fort Worth 2007, pet. ref’d) (concluding that

photographs found in defendant’s computer depicting sexual acts involving underage

boys were admissible as evidence of intent to arouse or gratify sexual desire in

prosecution for aggravated sexual assault of a preteen boy); Darby v. State, 922 S.W.2d

614, 620 (Tex. App.—Fort Worth 1996, pet. ref’d) (holding that there was no error in

the trial court’s admission of a magazine depicting sexually explicit photographs of

young female posing with teddy bear when defendant was accused of fondling

underage victim while taking her picture posed with a teddy bear). Evidence that

Hubbard visited pornographic websites with domain names suggesting that they

contained content relating to incest or the sexual exploitation of children is highly

We note that this contention is in direct conflict with the position taken by 7

Hubbard’s trial counsel, who conceded on the record that the names of the pornographic websites were “probably relevant.”

9 probative of his intent to arouse or gratify his sexual desire by sexually abusing his

stepdaughter J.R.

Hubbard has failed to show that the evidence’s high probative value was

substantially outweighed by any of the dangers listed in Rule 403. See James,

623 S.W.3d at 547; Wells, 558 S.W.3d at 669; Sanders, 255 S.W.3d at 760. No images

were presented to the jury—only the website addresses. Given that the State

presented other more substantial and graphic evidence, including J.R.’s testimony

detailing Hubbard’s years-long sexual abuse and the video J.R. recorded of Hubbard

masturbating in front of her, we are unpersuaded that hearing the names of the

pornographic websites had a strong effect on the jury, much less caused it to decide

the case on an improper basis. See Foster v. State, No. 05-14-01186-CR, 2015 WL

8039901, at *4 (Tex. App.—Dallas Dec. 7, 2015, no pet.) (mem. op., not designated

for publication); see also Gigliobianco, 210 S.W.3d at 641 (clarifying that unfair prejudice

“refers to a tendency to suggest [a] decision on an improper basis, commonly, though

not necessarily, an emotional one”). Further, because the evidence was not scientific

or technical in nature, there was little risk of jury confusion. See Gigliobianco,

210 S.W.3d at 641 (providing scientific evidence as an example of the type of evidence

that “might mislead a jury that is not properly equipped to judge” its “probative

force”). Moreover, the presentation of the evidence consumed relatively little time,8

8 To support his argument that “the State consumed an inordinate amount of the trial court’s time” to present the website names, Hubbard points to the fact that

10 and the State only mentioned the list of the websites once during final argument. See

Foster, 2015 WL 8039901, at *4 (holding that appellant had failed to show that a report

reflecting that he had “searched for and observed child pornography” was unfairly

prejudicial under Rule 403 in part because “the topic [had not been] heavily developed

during the trial”).

Thus, we cannot conclude that any tendency of Phan’s testimony about the

pornographic websites to confuse or distract the jury from the main issues in the case

substantially outweighed its probative value, see Gigliobianco, 210 S.W.3d at 642, much

less that the trial court’s decision to admit this evidence was outside the zone of

reasonable disagreement, see Zuliani, 97 S.W.3d at 595. Further, because we conclude

that the evidence was not unduly prejudicial, we also agree with the State that any

error in admitting it was harmless. See Tex. R. App. P. 44.2(b); Foster, 2015 WL

8039901, at *4.

the presentation of this evidence made up “a substantial portion of [Phan’s] trial testimony.” However, Hubbard fails to point out that Phan’s entire testimony only lasted approximately thirty minutes. Thus, even taking into account the roughly ten- to fifteen-minute hearing that the trial court held outside the jury’s presence to consider the admissibility of Phan’s testimony, the presentation of the website names consumed no more than forty to forty-five minutes of a trial in which the guilt– innocence phase spanned three calendar days and included eight total witnesses. This amount of time is far from “inordinate.” Cf. Ibenyenwa v. State, 367 S.W.3d 420, 426 (Tex. App.—Fort Worth 2012, pet. ref’d) (holding that the trial court had not abused its discretion by overruling appellant’s Rule 403 objection to the admission of a recorded interview of the child complainant in his trial for sex-related offenses in part because the recording “was only about forty minutes long” and thus “there was little danger of it[’s] taking an undue amount of time from the remainder of the trial”).

11 We overrule Hubbard’s second point.

IV. CONCLUSION

Having overruled both of Hubbard’s points, we affirm the trial court’s

judgments.

/s/ Dana Womack

Dana Womack Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: November 9, 2023