Kevin Scott Chatley v. THE STATE OF TEXAS
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Opinion
AFFIRMED as MODIFIED; and Opinion Filed April 1, 2024.
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00306-CR No. 05-23-00452-CR KEVIN SCOTT CHATLEY, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 380th Judicial District Court Collin County, Texas Trial Court Cause Nos. 380-81904-2021; 380-81905-2021
MEMORANDUM OPINION Before Justices Nowell, Miskel, and Kennedy Opinion by Justice Kennedy On our own motion, we withdraw our February 28, 2024 memorandum
opinion, vacate our judgment of same date, and substitute this opinion in its place.
Appellant Kevin Scott Chatley appeals his convictions for indecency with a
child. In nine issues, appellant challenges various evidentiary rulings of the trial
court, and he asserts the trial court failed to properly instruct the jury and erred in
assessing duplicative costs. As modified, we affirm the trial court’s judgments.
Because all issues are settled in law, we issue this memorandum opinion. TEX. R.
APP. P. 47.4. BACKGROUND
In two indictments, appellant was charged with five counts of indecency with
a child by sexual contact, each a second-degree felony. TEX. PENAL CODE
§ 21.11(a)(1), (e). Three of the counts involved complainant B.W., and two of the
counts involved complainant H.P. Appellant pleaded not guilty to all five counts,
and the cases proceeded to trial before a jury.
At the time of the alleged offenses, appellant was 28 years old and resided in
Overland Park, Kansas. Appellant’s half brother lived in McKinney, Texas, and was
a friend of B.W.’s and H.P.’s parents. Appellant’s half brother’s family hosted a party
on Christmas day 2019 at their McKinney home. B.W.’s family and appellant
attended that party. B.W. was 11 years old at the time. B.W. testified that at some
point in the evening, he was alone with appellant in the game room. They were
sitting on a bean bag chair watching TikTok videos, when appellant put his hand in
B.W.’s pants and fondled him. B.W. told him to stop, and he did so. B.W. also
indicated that on that occasion, appellant showed him some pornographic videos on
his phone.
On New Years’ Eve 2019, appellant’s brother’s family hosted another party at
their home. Among the guests at this party were B.W.’s family, H.P.’s family, and
appellant. H.P. was 13 years old at that time, and the party was the first and only
time he met and hung out with appellant.
–2– H.P. testified that at the party he found out appellant was a doctor, so he told
him about a medical condition he has having with his testicles. H.P. and appellant
went into the upstairs bathroom, where appellant looked at and touched H.P.’s
testicles and advised H.P. to seek further medical attention. After they came out of
the bathroom, it was getting close to midnight, so they joined the other guests
downstairs. Later on, appellant, H.P. and B.W. went back upstairs, and appellant
suggested that they go into a closet that was off of the game room. Inside the closet,
appellant showed them pornography involving females on his phone, talked about
masturbating, pulled his pants down, and started touching himself. Appellant then
told them they should go to the attic for a little more privacy. The door that went to
the attic was at the end of the closet. They went into the attic, where H.P. and B.W.,
at the urging of appellant, exposed themselves. Appellant was touching himself and
telling H.P. and B.W. they should likewise touch themselves. Appellant touched
H.P.’s and B.W.’s penises and told them to touch his. They did not want to touch
him, so appellant grabbed their hands and made them do so. H.P. said appellant told
him that he would hurt him if he ever told his parents what had happened. H.P. also
admitted that he peed on B.W.’s back while they were in the attic, but claimed he
was just joking around.
According to B.W., at the New Year’s Eve party, appellant showed H.P. and
him pornography while they were in the game room and everyone else was
downstairs. B.W. recalled that the pornography involved both males and females.
–3– He recalled that at appellant’s suggestion they went into the closet before midnight
where appellant showed them his privates. B.W. testified appellant asked him and
H.P. to touch his penis and they did so. Then, at appellant’s direction, he and H.P.
lowered their pants, and appellant touched them. B.W. indicated he and H.P. then
played in the attic. B.W. testified he did not tell anyone what had happened until his
father questioned him because appellant told him not to tell.
B.W.’s family spent the night at appellant’s brother’s home, and H.P.’s family
went home. According to B.W., as he was going to sleep on the bean bag chair in
the game room, appellant came upstairs and scratched his back. B.W. felt
uncomfortable and asked appellant to stop.
After the New Year’s Eve party, appellant stayed in touch with both boys. He
texted B.W. and contacted H.P. via Snapchat, a social media application. H.P.
testified that the Snapchat messages eventually became sexual. Appellant would ask
H.P. how often he would masturbate and if he would ejaculate. Appellant sent
pictures of his penis and of ejaculated sperm and videos of him masturbating.
Appellant requested photos and videos of H.P. masturbating. H.P. sent appellant
videos of himself masturbating, and he and B.W. sent appellant a photo of their
penises.
According to B.W., appellant sent H.P. videos of himself masturbating and
ejaculating. B.W. said he and H.P. sent appellant a picture of their penises only after
appellant requested one.
–4– Two or three months after the New Year’s Eve party, H.P. told his father some
of what had happened at the party. His father called B.W.’s father and apprised him
of what H.P. said transpired. B.W.’s father asked B.W. if there was anything he
wanted to talk about in regard to the New Year’s Eve party and appellant. B.W. told
his father that he, H.P. and appellant went into a storage closet upstairs, where they
exposed themselves and “participated in kind of like masturbation.” B.W. told his
father that appellant touched his penis. He then told his father that, on Christmas
Day, appellant had reached down into his pants and “fondled” him.
H.P. and B.W. were then interviewed at the Collin County Children’s
Advocacy Center. During his interview, H.P. drew a picture of the second floor of
appellant’s brother’s house and identified where they watched pornography and
where appellant touch his penis.
After the interviews, McKinney Police Detective Jennifer Grounds secured an
arrest warrant for appellant. At her request, Detective Christopher Moore of the
Overland Park, Kansas Police Department executed the warrant and arrested
appellant at his home in Kansas on April 3, 2020, and seized his cell phone.
Detective Moore obtained the passcode for the phone from appellant and sent the
phone to Detective Grounds by certified mail. She then obtained a search warrant
for the phone and extracted information from it, including text messages. Detective
Grounds found text messages between B.W. and appellant, but there were no pictures
–5– in the messages. She did not recall seeing any pornography in the search history
from appellant’s phone for December 31, 2019.
Based on information from the phone and from H.P.’s parents, Detective
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AFFIRMED as MODIFIED; and Opinion Filed April 1, 2024.
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00306-CR No. 05-23-00452-CR KEVIN SCOTT CHATLEY, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 380th Judicial District Court Collin County, Texas Trial Court Cause Nos. 380-81904-2021; 380-81905-2021
MEMORANDUM OPINION Before Justices Nowell, Miskel, and Kennedy Opinion by Justice Kennedy On our own motion, we withdraw our February 28, 2024 memorandum
opinion, vacate our judgment of same date, and substitute this opinion in its place.
Appellant Kevin Scott Chatley appeals his convictions for indecency with a
child. In nine issues, appellant challenges various evidentiary rulings of the trial
court, and he asserts the trial court failed to properly instruct the jury and erred in
assessing duplicative costs. As modified, we affirm the trial court’s judgments.
Because all issues are settled in law, we issue this memorandum opinion. TEX. R.
APP. P. 47.4. BACKGROUND
In two indictments, appellant was charged with five counts of indecency with
a child by sexual contact, each a second-degree felony. TEX. PENAL CODE
§ 21.11(a)(1), (e). Three of the counts involved complainant B.W., and two of the
counts involved complainant H.P. Appellant pleaded not guilty to all five counts,
and the cases proceeded to trial before a jury.
At the time of the alleged offenses, appellant was 28 years old and resided in
Overland Park, Kansas. Appellant’s half brother lived in McKinney, Texas, and was
a friend of B.W.’s and H.P.’s parents. Appellant’s half brother’s family hosted a party
on Christmas day 2019 at their McKinney home. B.W.’s family and appellant
attended that party. B.W. was 11 years old at the time. B.W. testified that at some
point in the evening, he was alone with appellant in the game room. They were
sitting on a bean bag chair watching TikTok videos, when appellant put his hand in
B.W.’s pants and fondled him. B.W. told him to stop, and he did so. B.W. also
indicated that on that occasion, appellant showed him some pornographic videos on
his phone.
On New Years’ Eve 2019, appellant’s brother’s family hosted another party at
their home. Among the guests at this party were B.W.’s family, H.P.’s family, and
appellant. H.P. was 13 years old at that time, and the party was the first and only
time he met and hung out with appellant.
–2– H.P. testified that at the party he found out appellant was a doctor, so he told
him about a medical condition he has having with his testicles. H.P. and appellant
went into the upstairs bathroom, where appellant looked at and touched H.P.’s
testicles and advised H.P. to seek further medical attention. After they came out of
the bathroom, it was getting close to midnight, so they joined the other guests
downstairs. Later on, appellant, H.P. and B.W. went back upstairs, and appellant
suggested that they go into a closet that was off of the game room. Inside the closet,
appellant showed them pornography involving females on his phone, talked about
masturbating, pulled his pants down, and started touching himself. Appellant then
told them they should go to the attic for a little more privacy. The door that went to
the attic was at the end of the closet. They went into the attic, where H.P. and B.W.,
at the urging of appellant, exposed themselves. Appellant was touching himself and
telling H.P. and B.W. they should likewise touch themselves. Appellant touched
H.P.’s and B.W.’s penises and told them to touch his. They did not want to touch
him, so appellant grabbed their hands and made them do so. H.P. said appellant told
him that he would hurt him if he ever told his parents what had happened. H.P. also
admitted that he peed on B.W.’s back while they were in the attic, but claimed he
was just joking around.
According to B.W., at the New Year’s Eve party, appellant showed H.P. and
him pornography while they were in the game room and everyone else was
downstairs. B.W. recalled that the pornography involved both males and females.
–3– He recalled that at appellant’s suggestion they went into the closet before midnight
where appellant showed them his privates. B.W. testified appellant asked him and
H.P. to touch his penis and they did so. Then, at appellant’s direction, he and H.P.
lowered their pants, and appellant touched them. B.W. indicated he and H.P. then
played in the attic. B.W. testified he did not tell anyone what had happened until his
father questioned him because appellant told him not to tell.
B.W.’s family spent the night at appellant’s brother’s home, and H.P.’s family
went home. According to B.W., as he was going to sleep on the bean bag chair in
the game room, appellant came upstairs and scratched his back. B.W. felt
uncomfortable and asked appellant to stop.
After the New Year’s Eve party, appellant stayed in touch with both boys. He
texted B.W. and contacted H.P. via Snapchat, a social media application. H.P.
testified that the Snapchat messages eventually became sexual. Appellant would ask
H.P. how often he would masturbate and if he would ejaculate. Appellant sent
pictures of his penis and of ejaculated sperm and videos of him masturbating.
Appellant requested photos and videos of H.P. masturbating. H.P. sent appellant
videos of himself masturbating, and he and B.W. sent appellant a photo of their
penises.
According to B.W., appellant sent H.P. videos of himself masturbating and
ejaculating. B.W. said he and H.P. sent appellant a picture of their penises only after
appellant requested one.
–4– Two or three months after the New Year’s Eve party, H.P. told his father some
of what had happened at the party. His father called B.W.’s father and apprised him
of what H.P. said transpired. B.W.’s father asked B.W. if there was anything he
wanted to talk about in regard to the New Year’s Eve party and appellant. B.W. told
his father that he, H.P. and appellant went into a storage closet upstairs, where they
exposed themselves and “participated in kind of like masturbation.” B.W. told his
father that appellant touched his penis. He then told his father that, on Christmas
Day, appellant had reached down into his pants and “fondled” him.
H.P. and B.W. were then interviewed at the Collin County Children’s
Advocacy Center. During his interview, H.P. drew a picture of the second floor of
appellant’s brother’s house and identified where they watched pornography and
where appellant touch his penis.
After the interviews, McKinney Police Detective Jennifer Grounds secured an
arrest warrant for appellant. At her request, Detective Christopher Moore of the
Overland Park, Kansas Police Department executed the warrant and arrested
appellant at his home in Kansas on April 3, 2020, and seized his cell phone.
Detective Moore obtained the passcode for the phone from appellant and sent the
phone to Detective Grounds by certified mail. She then obtained a search warrant
for the phone and extracted information from it, including text messages. Detective
Grounds found text messages between B.W. and appellant, but there were no pictures
–5– in the messages. She did not recall seeing any pornography in the search history
from appellant’s phone for December 31, 2019.
Based on information from the phone and from H.P.’s parents, Detective
Grounds eventually got search warrants for Snapchat and Discord records for
accounts she believed belonged to appellant. Because Snapchat images typically
disappear after they are viewed, Detective Grounds did not receive any records from
Snapchat to present as evidence of extraneous offenses at trial in this case.
Before trial, the State gave notice of its intent to introduce the Discord and
text-message records as extraneous-offense evidence. During the guilt–innocence
phase of appellant’s trial, the State introduced evidence that appellant had committed
the extraneous offenses of online solicitation of a minor and possession of child
pornography. More particularly, the State introduced messages and files that
appellant exchanged with two different usernames on the Discord social media
application, which will be referred to herein as username 1 and username 2, as
evidence of online solicitation of a minor. Appellant’s communications with
username 1 are contained in State Exhibits 1 and 2, and his communications with
username 2 are contained in State Exhibits 4 and 5. In addition, the State introduced
text messages and photos that appellant exchanged with two different contacts in his
phone, which will be referred to herein as contact 1 and contact 2, as evidence of
possession of child pornography. Appellant’s communications with contact 1 are
contained in State Exhibit 7 and his communications with contact 2 are contained in
–6– State Exhibits 8, 9 and 10.1 Before the State introduced this evidence, at appellant’s
request, the court held a hearing outside the jury’s presence to determine whether the
Discord and text messages were admissible under article 38.37, section 2 of the
Texas Code of Criminal Procedure.
At the hearing, Detective Grounds testified that “some” of the Discord records
“dealt with [appellant] talking with potentially underaged children.” State’s Exhibits
1 and 4 were spreadsheets obtained from Discord that included, among other things,
usernames, message contents, attachments, and time stamps.
State’s Exhibit 1 was an exchange between username “kevbot#0337” and
username 1, while Exhibit 2 was a picture attached to one of the messages sent by
“kevbot#0337.” Detective Grounds identified “kevbot#0337” as appellant’s
username on Discord. She obtained his username from the Discord app on his
phone. State’s Exhibit 4 was an exchange between username “kevbot#0337” and
username 2, while Exhibit 5 was a picture attached to one of the messages sent by
“kevbot#0337.”
Appellant objected to Exhibits 1, 2, 4, and 5 asserting they were not admissible
under article 38.37, section 2 because the State had presented no evidence that
username 1 or username 2 were “minors,” or that any of the messages were sent or
1 State Exhibits 8 and 9 are the same text message in different formats. Exhibit 10 is a picture of a penis that Detective Grounds described as belonging to a child. –7– received in Texas.2 The court overruled appellant’s objections and found that
Exhibits 1, 2, 4, and 5 were adequate to support a jury finding that the defendant
committed the offense of online solicitation of a minor, or attempted online
solicitation of a minor, beyond a reasonable doubt.3 Then the trial judge
“withdr[e]w” his finding and said that he would make the finding when the exhibits
were introduced during trial because the rule requires that a finding be made when
the evidence is introduced and because there may be additional evidence that
supports those documents.
When the exhibits were offered into evidence during trial, the court overruled
appellant’s objections and admitted exhibits 1, 2, 4 and 5 as evidence that appellant
committed an offense under Section 33.021 of the penal code, namely online
solicitation of a minor or attempted solicitation of a minor and exhibits 7 through 10
as evidence he committed an offense under Section 43.26 of penal code; namely,
possession of child pornography or attempted possession of child pornography.
Through State Exhibit 1 and Detective Grounds’ testimony, the State
established that the following exchange occurred between kevbot#0337 and
username 1 via Discord on December 21, 2019:
kevbot#0337: So have you started getting much bigger there yet[?] ...
2 Appellant argued that these extraneous offenses were inadmissible because the State could not prove that either appellant or the recipients of his messages were physically located in the State of Texas when the conduct occurred. Based on this, appellant argued that his conduct could not constitute “committing an offense” under Texas law because the State lacked territorial jurisdiction over his conduct. 3 The trial court did not make a finding at the hearing on Exhibits 7 through 10. –8– username 1: I don’t know[.] kevbot#0337: Well, Has it gotten any bigger[?] username 1: No clue[.] kevbot#0337: Lol. Have you got much hair there? username 1: I’m uncomfortable[.] kevbot#0337: That’s fine[.] username 1: No it’s not[.] kevbot#0337: Sorry little bro[.] ... username 1: Too many weird questions about my dick[.] kevbot#0337: Got it. Sorry bro. I just don’t care. If you were really my bro you would see me walking around naked a lot lol[.] username 1: [symbol] But you’re also kind of my dad[.] ... kevbot#0337: Its just a dick. You should feel free to ask me whatever about it and but [sic] feel embarrassed[.] ... username 1: I guess Im like a five or four[.] kevbot#0337: Inches? username 1: Yeah[.] kevbot#0337: That’s not bad at all bro[.] username 1: Alright[.] kevbot#0337: Its but. You’ll keep getting bigger[.] username 1: Gotcha[.] username 1: All I know is that I got a bunch of pubes[.] kevbot#0337: Especially if you’re anything like your brodad[.]
The conversation then turned to the amount and location of pubic hair and then
appellant indicated username 1 could take a picture if he wanted him to see, and
username 1 responded, “no Im fine”. About twelve hours later, the following
exchange occurred:
username 1: Can i see a picture of you? kevbot#0337: If I can see one of you too[.] username 1: Sure[.] kevbot#0337: Cool then yea[.]
–9– kevbot#0337: [blank]4
The exchange continued:
username 1: Cute [not going to lie.] kevbot#0337: Thanks bro[.] username 1: [blank] kevbot#0337: You too[.] username 1: Thanks[.] kevbot#0337: Did you wanna see anything else[?] username 1: Nah, its cool[.]
Detective Grounds testified that there was a file attached to the blank message
from username 1, but she did not have a copy of that file and did not know what it
was. She said that the conversation then turned to “cuddling” and sexual matters
and State Exhibit 1 contained the following exchange:
username 1: We don’t have ac here, we use the fireplace and space heaters[.] kevbot#0337: Oooo damn. You need someone to cuddle with lol[.] username 1: no[.] kevbot#0337: Lol. Just up warm up I’m saying[.] username 1: Ik i just don’t like cuddling too much[.] kevbot#0337: How come[.] username 1: I only cuddle with my cat[.] kevbot#0337: You’re my little bro. I would keep you warm[.] username 1: Makes sense[.] kevbot#0337: What do you wear to bed[.] username 1: A pair of shorts and a t-shirt[.] kevbot#0337: O nice. I usually just wear boxers[.] username 1: Cool, i would get cold[.] kevbot#0337: Not if I was with you[.] username 1: Go into detail? kevbot#0337: I’d hold you and keep you warm against my chest, arms wrapped around you[.]
4 The blank message from “kevbot#0337” had a picture of appellant attached to it, which was State’s Exhibit 2. –10– username 1: Cute, i would most likely wrap myself around you[.] kevbot#0337: I know doesn’t seem to make sense, but we would get warm quicker if we didn’t wear anything[.] username 1: Body heat it makes sense[.] kevbot#0337: Exactly[.] kevbot#0337: I’d hold you tight[.] username 1: Mhm, id sleep[.] username 1: Anything else? kevbot#0337: Would you wanna be resting on my chest or on your side with your back to me[?] username 1: On my Side with my back to you[.] kevbot#0337: Perfect. You’d feel my junk against you. That ok? username 1: I guess, its just a dick[.] kevbot#0337: Yea. It would probably be right against your ass[.] username 1: Oh[.] username 1: Okay[.] kevbot#0337: Just laying that way. That ok? username 1: Yeah[.] kevbot#0337: It might get stiff occasionally too[.] username 1: It happens[.] kevbot#0337: Yea. Yours probably would too[.] username 1: Alright[.] kevbot#0337: That would be nice rn[.] username 1: Rn? kevbot#0337: Right now[.] username 1: Ik, but why rn? username 1: Cold? Hard? kevbot#0337: Both[.] kevbot#0337: You? username 1: I’d be asleep. Would you be willing to fuck me? I’m sorry it just came up in my Mind[.] kevbot#0337: If you wanted[.] username 1: Maybe[.] kevbot#0337: It would just be between us. And we could go slow, maybe just feel each other and stroke the first time[.] username 1: Alright[.] kevbot#0337: You hard? username 1: no[.] kevbot#0337: O ok[.] username 1: Mhm[.] kevbot#0337: Maybe we should see what each other has[.]
–11– username 1: What? kevbot#0337: Like maybe we should see more of each other, with less on[.] username 1: no[.] username 1: Sorry[.] kevbot#0337: That’s ok[.] username 1: Mhm[.] kevbot#0337: Would you want me to fuck you like how we were cuddling[?] username 1: Maybe[.] kevbot#0337: Cool[.] username 1: Ye[.] kevbot#0337: Would go slow. Playing with yours while I do[.] username 1: Do you want to[?] kevbot#0337: As long as you do[.] username 1: No I mean like, given me an answer, yes or no? kevbot#0337: If you want to, yes[.] ... kevbot#0337: I don’t wanna do anything you wouldn’t wanna do[.] username 1: Alright[.] kevbot#0337: But yes. Do you? username 1: Sure? kevbot#0337: Lol. Yes or no[?] username 1: *1[.]
Detective Grounds next testified that State’s Exhibit 4 was a Discord exchange
between “kevbot#0337” and username 2. Detective Grounds told the jury that
appellant and username 2 exchanged messages on Discord between August and
November 2019. On August 4, the following exchange took place.
username 2: yo[.] kevbot#0337: What’s up[?] username 2: when u getting on[.] kevbot#0337: When you send that pic[.]
The rest of the communication that day was about computer games. At the end of
September, the conversation became sexual in nature.
–12– username 2: bitch[.] kevbot#0337: lol what[?] username 2: bitch[.] kevbot#0337: You want me to be your bitch or something[?] username 2: nah i dont need any more[.] kevbot#0337: Your hand is enough? username 2: i didnt expect that xD[.] kevbot#0337: What for being a smart ass back? username 2: ima play Minecraft[.] kevbot#0337: Always good[.] username 2: or something else[.] kevbot#0337: Or what[?] username 2: or play a different game[.] username 2: WHY CANT I OPEN STEAM[.] kevbot#0337: It was having issues earlier[.] username 2: it still is[.] kevbot#0337: But it was working a few minutes ago[.] kevbot#0337: Just go jackoff instead[.] username 2: why?? kevbot#0337: Why not[?] username 2: cause i dont want to[.] kevbot#0337: Then don’t[.] username 2: I planned on that[.] username 2: ima play fagnite cause im a faggot[.] kevbot#0337: Lol. Prove it[.] username 2: prove what[?] username 2: that im playing fangite[?] kevbot#0337: That you’re a faggot[.] username 2: nah[.] kevbot#0337: Lame ass[.] username 2: oh okay[.] kevbot#0337: Lol. Snap[.] username 2: what about it[.] kevbot#0337: Send them[.]
A month and a half after that, on November 15, username 2 indicated that he
was 15 years old, but appellant kept the exchange going:
username 2: ‘;lur a fag[.] kevbot#0337: I mean I want your cock... So...
–13– username 2: thats how u catch a case[.] kevbot#0337: Catch a case? username 2: u dumb? kevbot#0337: Maybe[.] username 2: yuh is only 15[.] username 2: and u are like 500[.] username 2: bish nibba[.] kevbot#0337: Lol. False. But snap me loser[.] username 2: buy me a game bitch[.] kevbot#0337: Come visit and I will[.] username 2: where u be at baby[.] kevbot#0337: You know you like me anyways. Don’t lie[.] kevbot#0337: Kansas City[.] username 2: nah to far[.] kevbot#0337: Be my bf[.] kevbot#0337: No one else needs to know[.] username 2: i dont think my girlfriend would approve[.] kevbot#0337: She wouldn’t need to know[.] username 2: im on ft with her rn[.] kevbot#0337: She still wouldn’t need to know[.] username 2: but she already does[.] kevbot#0337: Lol how[.] kevbot#0337: You know you wanna be my bf in secret[.] username 2: i think id rather fuck my girlfriend then u[.] kevbot#0337: I would give you better head. And make you cum harder. Plus I’d be just as horny as you and want to more[.] kevbot#0337: And, you know you like me[.]
Then, according to Detective Grounds, the discussion turned to pictures:
kevbot#0337: You hard? username 2: yeah u know it[.] kevbot#0337: Let’s see on snap[.] kevbot#0337: Or here[.] username 2: [blank] kevbot#0337: Send it on snap[.] username 2: why[?] kevbot#0337: Cause it’s better quality[.] username 2: nah[.] kevbot#0337: Come on. Or send a video[.] username 2: naah fam u send[.]
–14– kevbot#0337: [blank]
According to Detective Grounds, there was an attachment to the blank
message from username 2, but she did not have it and did not know what it was.
Attached to the blank message from appellant was a picture of appellant’s erect
penis. The exchange continued:
username 2: 🤢 🤮 kevbot#0337: You like it[.] kevbot#0337: Send a real one of yours[.] username 2: i kinda cant rn[.] kevbot#0337: Why[?] username 2: cause my gf is riding my dick[.] kevbot#0337: Show me[.] username 2: this is a memory for us not for u and us CAUSE PERIOD!!!!!!! kevbot#0337: Lol ok. Just be hot to see you fuck her[.] username 2: and i oop[.] kevbot#0337: It would be[.] kevbot#0337: Plus. I don’t think you really are rn[.] username 2: how would u know[?] kevbot#0337: I wouldn’t. But you’re messaging on here[.] username 2: we keep pausing for me to respond to u[.] kevbot#0337: Lol. Sure you do[.] username 2: on our relationship[.] kevbot#0337: Lol. I don’t believe you[.] username 2: fack off[.] kevbot#0337: Lol. You know I’m right[.] username 2: byeeee[.] kevbot#0337: Don’t leave me babe[.] username 2: dont call me babe[.] kevbot#0337: You called me it earlier[.] username 2: yeah as a joke xD[.] username 2: im going to bed[.] kevbot#0337: Lol. I know[.] kevbot#0337: Let me see you first[.] username 2: nah to tired[.] kevbot#0337: Tomorrow?
–15– kevbot#0337: I like seeing you[.]
Twelve hours later, the exchange resumed with username 2 asking for a video
game and appellant asking for pictures and videos:
username 2: u should buy me the new modern warfare[.] kevbot#0337: You should actually show me[.] username 2: u should buy me the new modern warfare[.] kevbot#0337: If I did, then you would be mine for real[.] username 2: wym by be mine[?] kevbot#0337: Send me pics of whatever, videos, be my “bf”[.] username 2: bruv how old are u[?] kevbot#0337: You’ve seen me. Your at least attracted to me[.] username 2: im attracted to u[.] username 2: im not tho[.] kevbot#0337: What does that mean[.] username 2: u said im attracted to u when im not[.] kevbot#0337: Sure[.] username 2: buy me the new modern warfare xD[.] kevbot#0337: Lol why[?] username 2: cause yuh boy is tried of playing bf5[.] username 2: i need something new[.] kevbot#0337: My boy never sends me anything[.] username 2: cause yuh boy is 15[.] kevbot#0337: You still could on snap[.] username 2: how old are u[?] kevbot#0337: Why[?] username 2: jw[.] kevbot#0337: It doesn’t matter though. If you don’t want to, it’s fine. But I’m not buying you a game[.] username 2: damn can a person not wonder what ur age is[?] kevbot#0337: Lol. username 2: u know my age[.] kevbot#0337: I didn’t ask[.] username 2: yeah but i still told u[.] kevbot#0337: True. But still[.] username 2: oml just fucking tell me[.] kevbot#0337: Lol. Nah. Don’t want you to somehow use it against me[.] username 2: bruv[.]
–16– Detective Grounds testified that State’s Exhibit 7 was a text conversation
between appellant’s cell phone and a phone number saved in appellant’s phone that
we refer to herein as contact 1. The following exchange took place:
contact 1: Ok. Promise[.] appellant: Good[.] contact 1: Yea[.] appellant: How old are they[?] contact 1: 14, 14, 15, 12, 11[.] contact 1: Young. Lol[.] appellant: Lol. How young[?] contact 1: I just said. Haha[.] appellant: O nice. The guys 14 14 and 15? contact 1: No, girls. The guys are 12 and 11[.] appellant: Ooo.. nice. Not even hit puberty yet[.] contact 1: Lol ikr[.] appellant: Lol. Kinda wonder if they even have pubes yet[.] contact 1: Lol omg[.] appellant: Lol. They need to learn how to j/o[.] contact 1: Lol ok[.] appellant: Lol they do[.] contact 1: Ok. Haha[.] appellant: Lol I’d teach them[.] appellant: [blank] contact 1: Omg. Haha[.] appellant: Lol might as well. They would be impressed with mine at least[.] contact 1: Ok. Haha[.] appellant: Lol. You are[.] contact 1: O hush[.] appellant: Lol. You know I’m right[.]
Next, Detective Grounds testified that State’s Exhibits 8 and 9 were a text
conversation between appellant’s phone and contact 2, and that State’s Exhibit 10
contained two photos from the conversation, including a single photo of a penis. The
text conversations were as follows:
–17– appellant: Hey it’s Kevin[.] contact 2: Heyy[.] appellant: Whose that[?] contact 2: A dude I kind of like[.] appellant: And you kissed lol[.] contact 2: Yes[.] appellant: Are you out to people[.] contact 2: No[.] appellant: Cool. Same. How did that happen then[.] contact 2: Well he kissed me and took a pic[.] appellant: Lol. But how did he know you would want to[.] contact 2: I told him[.] appellant: Ooo cool. Why don’t you date him[.] contact 2: He’s dating my ex girlfriend[.] appellant: Oooo. He’s bi? contact 2: Yes me too[.] appellant: Me to y Too* contact 2: Lol[.] appellant: Threesome with a girl and you would be hot[.] contact 2: Yes[.] We should have a threesome when we meet[.] appellant: Idk. I kinda wanna just have you at first[.] contact 2: Yea same[.] appellant: Like take you on a date. End up in bed with you. appellant: We have plenty of time to have threesomes after. But first I just want you. contact 2: Yes[.] Can I be honest[.] appellant: Go for it[.] contact 2: I’m 14[.] appellant: Like I said, I’m fine with it as long as you are[.] contact 2: Ok[.] appellant: Have you been with anyone? contact 2: Yes[.] appellant: Idc if not Guys or girls[.] contact 2: Both[.] appellant: All the way? contact 2: Yes[.] [image sent]5 appellant: Damn. You have a nice cock[.] Sorry I’m still at work[.]
5 Detective Grounds testified this image, depicted in State Exhibit 10, was sent from contact 2 to appellant and was a picture of a child’s penis. –18– contact 2: Thx[.] Lol[.] appellant: I’ll send a saved pic on snap. That cool? contact 2: Yea[.] appellant: Did you get it[.] contact 2: Oh yeah hold on[.] I’m watching Netflix lol[.] appellant: Cool[.]
The State’s remaining witnesses were B.W.’s father, who testified as an outcry
witness, Detective Chris Meehan, who testified about digital forensics, and Eligio
Molina, a forensic interviewer, who testified about the interview process and his
interview of H.P. Appellant called Dr. Aaron Price, who practices in forensic mental
health, to testify about sex offenders and their behavior patterns and about false
allegations.
The trial court gave the jury its charge, and the jury returned a guilty verdict
on each count. During the punishment phase of trial, the State’s witnesses were
Chris Meehan and the mother of another minor who alleged he was in a relationship
with appellant. Appellant called his father to testify on his behalf. The jury assessed
punishment at 20 years’ confinement for each count. The trial court ordered the
sentences to run concurrently. Appellant filed a motion for new trial and an amended
motion for new trial. The amended motion was overruled by operation of law. This
appeal followed.
–19– DISCUSSION
I. Evidentiary Rulings
A. Extraneous-Offense Evidence
In his first five issues, appellant challenges the trial court’s rulings on the
admissibility of State’s Exhibits 1, 2, 4, 5, 7, 8, 9 and 10, the extraneous-offense
evidence.
Evidence of extraneous offenses is generally inadmissible to prove character
conformity. TEX. R. EVID. 404(b). But in prosecutions for certain sexual offenses
against children, including indecency with a child, evidence that the defendant
committed sex crimes against children other than the victim of the alleged offense
may be admitted “for any bearing the evidence has on relevant matters, including
the character of the defendant and acts performed in conformity with the character
of the defendant.” CRIM. PROC. art. 38.37, § 2(a), (b); Dies v. State, 649 S.W.3d 273,
284 (Tex. App.—Dallas 2022, pet. ref’d). Before evidence may be admitted for this
purpose, the State must give 30 days’ notice of its intent to introduce the evidence.
CRIM. PROC. 38.37, § 3. The trial court must then hold a hearing outside the presence
of the jury and “determine that the evidence likely to be admitted at trial will be
adequate to support a finding by the jury that the defendant committed the separate
offense beyond a reasonable doubt.” Id. art. 38.37, § 2-a. “Adequate” means legally
sufficient. Romano v. State, 612 S.W.3d 151, 159 (Tex. App.—Houston [14th Dist.]
2020, pet. ref’d). At the hearing, the trial court acts as the factfinder and is the judge
–20– of the credibility of witnesses and the weight to be given their testimony. Deggs v.
State, 646 S.W.3d 916, 924 (Tex. App.—Waco 2022, pet. ref’d).
1. Territorial Jurisdiction
In his first two issues, appellant asserts the trial court erred in admitting the
Discord and text messages under article 38.37. Appellant contends that evidence of
extraneous offenses is admissible under article 38.37, section 2 only if Texas would
have territorial jurisdiction over the separate offenses. See PENAL § 1.04(a)
(addressing territorial jurisdiction over offenses). Appellant acknowledges that there
is no authority, persuasive or binding, to support this assertion and that he is
requesting that this Court adopt his reasoning as a case of first impression. For the
reasons set forth herein, we decline to do so.
Appellant contends the Discord and text messages were inadmissible because
the State did not prove that either he or the recipients of his messages were physically
located in Texas when the messages were sent. Thus, claims appellant, the conduct
could not constitute an offense under the Texas Penal Code. The State responds
asserting article 38.37, section 2 does not require the State to prove that it would
have territorial jurisdiction over the separate offenses, it only has to prove the
conduct satisfies the essential elements of the extraneous offense as set forth in the
Texas Penal Code. We agree with the State because appellant conflates the
requirement that either a conduct element or a result element occurred inside the
state in order for the State to have jurisdiction to prosecute an individual for the
–21– commission of an offense enumerated in the penal code—see Texas Penal Code
Section 1.04(a)–with article 38.37’s evidentiary standards.
Statutory construction questions are questions of law that we review de novo.
Alfaro-Jimenez v. State, 577 S.W.3d 240, 244 (Tex. Crim. App. 2019). When
interpreting statutes, we look to their literal text and attempt to discern their fair,
objective meaning at the time of their
enactment. Herron v. State, 625 S.W.3d 144, 153 (Tex. Crim. App. 2021). If the
language is clear and unambiguous, our analysis ends. Id. Courts do not add or
subtract from such a statute. Id.
Courts presume that the legislature used every word for a purpose and
intended for the entire statutory scheme to be effective. Id. Thus, courts should give
each word, phrase, clause, and sentence effect if reasonably possible and will not
choose a construction that renders a statutory provision superfluous. Id.; State v.
Schunior, 506 S.W.3d 29, 36 (Tex. Crim. App. 2016).
Article 38.37, section 2 provides:
(a) Subsection (b) applies only to the trial of a defendant for:
(1) an offense under any of the following provisions of the Penal Code:
(A) Section 20A.02, if punishable as a felony of the first degree under Section 20A.02(b)(1) (Labor or Sex trafficking of a Child or Disabled Individual);
(B) Section 21.02 (Continuous Sexual Abuse of Young Child or Disabled Individual);
–22– (C) Section 21.11 (Indecency With a Child);
(D) Section 22.011(a)(2) (Sexual Assault of a Child);
(E) Sections 22.021(a)(1)(B) and (2) (Aggravated Sexual Assault of a Child);
(F) Section 33.021 (Online Solicitation of a Minor);
(G) Section 43.25 (Sexual Performance by a Child); or
(H) Section 43.26 (Possession or Promotion of Child Pornography), Penal Code; or
(2) an attempt or conspiracy to commit an offense described by Subdivision (1).
(b) Notwithstanding Rules 404 and 405, Texas Rules of Evidence, and subject to Section 2-a, evidence that the defendant has committed a separate offense described by Subsection (a)(1) or (2) may be admitted in the trial of an alleged offense described by Subsection (a)(1) or (2) for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant.
CRIM. PROC. art. 38.37, § 2.
Appellant contends that had the legislature intended that an offense
occurring outside of Texas be included in article 38.37, section 2 it would have
used the phrase “an offense under the laws of another state that are substantially
similar” to the elements of Texas offenses as it has done on other occasions in the
penal code and other statutes. The fact that the legislature did not include similar
language in article 38.37, section 2 highlights the fact that to be admissible the
–23– conduct must meet the elements of a separate offense described by the Texas
Penal Code, not the laws of another state.
Section 1.04 of the Penal Code establishes the State’s territorial
jurisdiction. It defines the State’s ability to prosecute and punish conduct. PENAL
§ 1.04. In the present case, the State was not trying to prosecute appellant for the
extraneous offenses of online solicitation and possession of child pornography.
Rather, the State was offering proof of these offenses pursuant to a code of
criminal procedure provision that the legislature enacted to give prosecutors
additional resources to prosecute sex crimes committed against children,
recognizing that children often are targeted for these crimes, in part because they
tend to make poor witnesses. Harris v. State, 475 S.W.3d 395, 402 (Tex. App.—
Houston [14th Dist.] 2015, pet. ref’d) (citing Senate Comm. on Criminal Justice,
Bill Analysis, Tex. S.B. 12, 83d Leg. R.S. (2013)). That provision merely
requires legally sufficient proof that the person committed the offense as
described by the Penal Code, not that the State of Texas could prosecute the
individual for same. See CRIM. PROC. art. 38.37, § 2-a(1); Romano, 612 S.W.3d
at 159.
When, as here, the statute is clear and unambiguous, the legislature must
be understood to mean what it has expressed, and it is not for the courts to add or
subtract from such a statute. See Miles v. State, 506 S.W.3d 485, 487 (Tex. Crim.
App. 2016). To require territorial jurisdiction before admitting evidence of these
–24– offenses under article 38.37 would add language beyond that which is in the
statute. Territorial jurisdiction is simply not a prerequisite to the admission of
evidence of an extraneous offense under article 38.37, section 2.
Appellant contends that the court of criminal appeals’ decision in Lee v. State
supports his assertion that the State of Texas must have territorial jurisdictional over
the separate offense in order for evidence concerning same to be admissible under
article 38.37, section 2. 537 S.W.3d 924, 925 (Tex. Crim. App. 2017). Appellant’s
reliance on Lee is misplaced because the issue in that case was whether the
commission of an out-of-state aggravated sexual assault will support a conviction
for continuous sexual abuse of a child, not whether evidence of same was admissible
under article 38.37, section 2. Id. at 925. Thus, Lee is not controlling and does not
inform our decision here.
We conclude the trial court did not abuse its discretion in overruling
appellant’s objections to the Discord and text messages on territorial jurisdiction
grounds. We overrule appellant’s first two issues.
2. Rule 403 of the Texas Rules of Evidence
In his third and fourth issues, appellant contends the trial court abused its
discretion in overruling his Rule 403 objections to the Discord and text messages
because the danger of unfair prejudice, confusing the issues, and undue delay
substantially outweighed any probative value that the messages may have had.
–25– a. Standard of Review
We review a trial court’s ruling on the admissibility of evidence, including
evidence of extraneous offenses, for an abuse of discretion. Devoe v. State, 354
S.W.3d 457, 469 (Tex. Crim. App. 2011). As long as the trial court’s decision was
within the zone of reasonable disagreement and was correct under any theory of law
applicable to the case, it must be upheld. Montgomery v. State, 810 S.W.2d 372, 391
(Tex. Crim. App. 1990) (op. on reh’g). This is so because trial courts are usually in
the best position to make the determination as to whether certain evidence should be
admitted or excluded. Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App.
2007).
b. Applicable Law
Evidence admitted under article 38.37 is still subject to Rule 403’s balancing
test. Keller v. State, 604 S.W.3d 214, 228 (Tex. App.—Dallas 2020, pet. ref’d).
Under Texas Rule of Evidence 403, relevant evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice,
confusing the issues, misleading the jury, undue delay, or needlessly presenting
cumulative evidence. TEX. R. EVID. 403. Even so, Rule 403 “should be used
sparingly to exclude relevant, otherwise admissible evidence that might bear on the
credibility of either the defendant or complainant in such ‘he said, she said’ cases.”
Hammer v. State, 296 S.W.3d 555, 562 (Tex. Crim. App. 2009). Rule 403 envisions
exclusion of evidence “only when there is a clear disparity between the degree of –26– prejudice of the offered evidence and its probative value.” Id. at 568. Accordingly,
“the plain language of Rule 403 does not allow a trial court to exclude otherwise
relevant evidence when that evidence is merely prejudicial.” Pawlak v. State, 420
S.W.3d 807, 811 (Tex. Crim. App. 2013). Indeed, “all evidence against a defendant
is, by its very nature, designed to be prejudicial.” Id. This Court will reverse a trial
court’s determination under Rule 403 “rarely and only after a clear abuse of
discretion,” recognizing that the trial court is in a superior position to gauge the
impact of the evidence. Perkins v. State, 664 S.W.3d 209, 217 (Tex. Crim. App.
2022).
When a trial court conducts a Rule 403 balancing test,
it must balance (1) the inherent probative force of the proffered item of evidence along with (2) the proponent’s need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted.
Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). In any
given case, “these factors may well blend together.” Id. at 642.
c. Application of Law to Facts
With respect to the first factor in the balancing test, evidence of a separate
sexual offense against a child admitted under a article 38.37, section 2(b) is probative
of a defendant’s character or propensity to commit a sexual offense against a child. –27– See, e.g., Bradshaw v. State, 466 S.W.3d 875, 883 (Tex. App.—Texarkana 2015,
pet. ref’d). Appellant stood accused of touching two young boys on their genitals
and causing the young boys to touch appellant on his genitals. The State had to
prove that he: (1) intentionally or knowingly; (2) with intent to arouse/gratify the
sexual desire of any person; (3) engaged in sexual contact; (4) with a child younger
than 17 years of age. See PENAL § 21.11(a). Appellant’s defensive theory was that
the allegations were false, the story was implausible, and the children were not
credible.
The Discord conversations with username 16 and username 2 (who claimed to
be 15 years old) as well as appellant’s text conversations with contact 2 (who
claimed to be 14 years old) demonstrate that appellant has a sexual interest in
underage boys. The trial court could reasonably conclude that this was strong
propensity evidence and helped establish his intent to arouse/gratify sexual desire.
See Dies, 649 S.W.3d at 285–86. Appellant’s text conversation with contact 1
demonstrates a sexual interest in boys aged 11–12, and specifically an interest in
teaching them how to masturbate. This behavior is similar to the conduct that
appellant was accused of engaging in with H.P. and B.W. The trial court could
reasonably conclude that this evidence helped establish that his actions were
intentional or knowing; that he intended to arouse/gratify sexual desire; and his
6 Although username 1 did not claim to be a minor, a reasonable juror could infer that fact from the context of the conversation. –28– propensity to do so. See Fisk v. State, 510 S.W.3d 165, 174 (Tex. App.—San
Antonio 2016, no pet.) (similarities between extraneous and charged conduct
strengthen the probative force). Accordingly, we conclude the trial court could have
reasonably concluded that the evidence of appellant engaging in or attempting online
solicitation of a minor and possession of child pornography had significant probative
value in determining his guilt for the charged offenses of indecency with a child.
With respect to the second factor, we find that the State demonstrated its great
need for the evidence. By adopting article 38.37, section 2, the legislature
recognized that in child sex offenses, “there is typically very little evidence to assist
prosecutors with proving their cases.” Bradshaw, 466 S.W.3d at 884 (quoting
Senate Comm. on Criminal Justice, Bill Analysis, Tex. S.B. 12, 83d Leg., R.S.
(2013)). The only direct evidence that the State had of appellant committing
indecency with a child was the testimony of H.P. and B.W. In these situations, court
routinely conclude this factor weighs in favor of the State. Hammer, 296 S.W.3d at
561–62 (Tex. Crim. App. 2009); Denson v. State, No. 03-21-00262-CR, 2023 WL
3396628, at *9 (Tex. App.—Austin May 12, 2023, no pet.) (mem. op., not designated
for publication); Mason v. State, No. 05-21-00491-CR, 2023 WL 2033778, at *3
(Tex. App.—Dallas Feb. 16, 2023, no pet.) (mem. op., not designated for
publication); Portwood v. State, No. 14-19-00377-CR, 2020 WL 6072721, at *5
(Tex. App.—Houston [14th Dist.] Oct. 15, 2020, no pet.) (mem. op., not designated
for publication); Duran v. State, No. 14-18-00686-CR, 2020 WL 3697736, at *4
–29– (Tex. App.—Houston [14th Dist.] July 7, 2020, no pet.) (mem. op., not designated
for publication); Fox v. State, No. 04-15-00618-CR; 2017 WL 96160, at * 5 (Tex.
App.—San Antonio Jan. 11, 2017, no pet.) (mem. op., not designated for
publication); Cox v. State, 495 S.W.3d 898, 909 (Tex. App.—Houston [1st Dist.]
2016, pet. ref’d); McCulloch v. State, 39 S.W.3d 678, 682 (Tex. App.—Beaumont
2001, pet. ref’d). Appellant tries to minimize the State’s need for this evidence by
urging that the evidence could not rebut any notion that H.P. and B.W. were lying
because the State presented it before H.P. and B.W. testified. But appellant ignores
the fact that during opening statement defense counsel stated, “this is a case about
false accusations.” It was apparent from the start that appellant’s defensive position
was that the conduct never occurred. In such a case, evidence of similar extraneous
acts may be necessary to corroborate the victim’s account and rebut the defensive
theory. See Wheeler v. State, 67 S.W.3d 879, 888–89 (Tex. Crim. App. 2002).
Appellant presents no case law or legal authority, nor have we found any, for the
premise that a complainant has to testify prior to the admission of extraneous-offense
evidence. For the foregoing reasons, we find that the second factor also weighed in
favor of admission.
With respect to the third factor, the evidence that appellant engaged in or
attempted online solicitation of a minor and possession of child pornography was
clearly prejudicial to his case, but the question in a Rule 403 analysis is whether the
evidence was unfairly prejudicial. See Bradshaw, 466 S.W.3d at 883 (noting that
–30– Rule 403 does not allow exclusion of otherwise relevant evidence when evidence is
merely prejudicial). The focus of Rule 403 is to assure that the danger of unfair
prejudice is not substantially outweighed by the probative value of proffered
evidence. Given article 38.37, section 2 was designed, at least in part, to allow the
State to introduce evidence of the accused’s prior or subsequent bad acts to show the
accused’s propensity to commit the charged offense, the calculus of what is unfair
and what is probative has materially changed. Price v. State, No. 05-18-00243-CR,
2019 WL 2223600, at *5 (Tex. App.—Dallas May 23, 2019, pet. ref’d) (not
designated for publication). Appellant does not identify any particular facts in the
Discord and text messages that make them uniquely or unfairly prejudicial. See
Alvarez v. State, 491 S.W.3d 362, 371 (Tex. App.—Houston [1st Dist.] 2016, pet.
ref’d). Thus, we conclude the third factor weighed only slightly against admission.
As to the fourth factor, the ultimate issue in this case was whether appellant
had committed the sexual offenses against H.P. and B.W. as alleged in the State’s
indictments. The trial court mitigated the tendency of the extraneous-offense
evidence to confuse or distract the jury from the main issue at trial by instructing
them orally when the evidence was admitted and in the jury charge that such
extraneous-offense evidence could only be considered if the jury determined,
beyond a reasonable doubt, that the extraneous offenses were committed and for its
bearing on any relevant matter, including the character of the defendant and any acts
in conformity with the character of the defendant. Thus, the trial court twice
–31– instructed the jury in accordance with the statute. We presume that the jury follows
the trial court’s instructions in the manner presented. Thrift v. State, 176 S.W.3d
221, 224 (Tex. Crim. App. 2005). An appellant may refute this presumption, but he
must rebut it by pointing to evidence that the jury failed to follow the
instruction. Id. Appellant has not identified any such evidence in this case. We find
the fourth factor weighed in favor of admission.
The fifth factor refers to evidence such as highly technical or scientific
evidence that might mislead the jury because it is not equipped to weigh the
probative force of the evidence. Gigliobianco, 210 S.W.3d at 641. Here, the
evidence in question was neither scientific nor technical and pertained to matters
including victim credibility that could easily be understood by a jury. Appellant
urges the jury was misled into believing he committed the extraneous offenses
relying once again on his 38.37 argument regarding territorial jurisdiction, which we
have rejected. We find the fifth factor weighed in favor of admission.
With respect to the sixth factor, appellant asserts that the presentation of
the evidence took nearly half of the guilt–innocence phase of trial causing the
probative value of the messages to be substantially outweighed by their unfair
prejudice, confusion of the issues, misleading of the jury, and undue delay. We
consider direct, cross, and redirect examination when calculating the time spent
developing evidence. See Newton v. State, 301 S.W.3d 315, 321 (Tex. App.—
Waco 2009, pet. ref’d). Only one of the State’s six witnesses testified to
–32– appellant’s extraneous offenses: Detective Grounds. Of the approximate 750
pages of the record containing trial testimony before the jury, her direct testimony
regarding appellant’s Discord messages with the username 1 took up 12 pages of
the record. Her direct testimony regarding appellant’s Discord messages with the
username 2 took up 23 pages of the record. Her direct testimony about appellant’s
text interactions with contact 2 took up 24 pages of the record. Her direct
testimony about appellant’s conversations with contact 1 took up 12 pages of the
record. In calculating the number of pages in the record devoted to extraneous-
offense evidence appellant counts 176 pages of his own cross-examination of
Detective Grounds; 70 pages of his objections to the evidence; and 14 pages of
his own voir dire examinations of Detective Grounds. Because we consider
direct, cross and redirect examination in calculating the time spent developing the
evidence, we conclude this factor weighed against admission, although it is highly
unlikely the trial court anticipated the parties would spend the amount of time
they did when it decided to admit the extraneous-offense evidence.
Given our standard of review, the presumption in favor of admissibility,
and the factors discussed above, and concluding four of the factors weighed in
favor of admission, one weighed slightly against, and one weighed against, we
conclude that the district court did not abuse its discretion by overruling
appellant’s Rule 403 objection and admitting the extraneous-offense
evidence. See Hammer, 296 S.W.3d at 568 (explaining that exclusion under
–33– “Rule 403 . . . should be used sparingly, especially in ‘he said, she said’ sexual-
molestation cases that must be resolved solely on the basis of the testimony of the
complainant and the defendant”).
We overrule appellant’s third and fourth issues.
3. Authentication of Evidence
In his fifth issue, appellant contends that the text messages between appellant
and contact 1 and contract 2 were inadmissible over his chain-of-custody objection.
He claims that to authenticate physical evidence or the results of scientific testing,
the State must prove both the beginning and end of the chain of custody. Appellant
admits that the text messages came from an extraction of his cell phone, but contends
the State failed to prove the beginning of the chain of custody for that phone, and
thus, failed to properly authenticate the messages. The State responds urging
Detective Grounds adequately linked the cell phone to appellant for authentication
purposes.
We review a trial court’s ruling on authentication issues under an abuse of
discretion standard. Fowler v. State, 544 S.W.3d 844, 848 (Tex. Crim. App. 2018).
This deferential standard requires us to uphold a trial court’s admissibility decision
when that decision is within the zone of reasonable disagreement. Id. A trial court
judge is given considerable latitude with regard to evidentiary rulings. Id. Different
trial judges may “reach different conclusions in different trials on substantially
similar facts without abusing their discretion. Id.
–34– If the trial court’s ruling that a jury could reasonably find proffered evidence
authentic is at least within the zone of reasonable disagreement, we should not
interfere. Id. It is the jury’s role ultimately to determine whether an item of evidence
is indeed what its proponent claims; the trial court need only make the preliminary
determination that the proponent of the item has supplied facts sufficient to support
a reasonable jury determination that the proffered evidence is authentic. Id. This
has been described as a “liberal standard of admissibility.” Id.
The Texas Rules of Evidence do not specifically address chain of custody.
Instead, Texas Rule of Evidence 901 governs the authentication requirement for the
admissibility of evidence. TEX. R. EVID. 901. To satisfy the requirement of
authenticating or identifying an item of evidence, the proponent must produce
evidence sufficient to support a finding that the item is what the proponent claims it
is. Id. Conclusive proof of authenticity before allowing admission of disputed
evidence is not required. See Reed v. State, 811 S.W.2d 582, 587 (Tex. Crim. App.
1991) (citing United States v. Jimenez Lopez, 873 F.2d 769 (5th Cir. 1989)). Rule
901 “merely requires some evidence sufficient to support a finding that evidence in
question is what the proponent claims.” Id.
Authenticity may be established with evidence of “distinctive characteristics
and the like,” which include “[t]he appearance, contents, substance, internal patterns,
or other distinctive characteristics of the item, taken together with all the
circumstances.” Id. If the party seeking admission cannot identify the evidence
–35– “through distinctive markings . . . or if the evidence is fungible, as are drugs or tests
results,” proof of chain of custody is required. Davis v. State, 992 S.W.2d 8, 10–11
(Tex. App.—Houston [1st Dist.] 1996, no pet.) (citing Hammett v. State, 578 S.W.2d
699, 708 (Tex. Crim. App. 1979)). The chain-of-custody requirement generally
applies to indistinguishable objects. See Foley v. State, No. 01-11-00113-CR, 2012
WL 1564685, at *4 (Tex. App.—Houston [1st Dist.] May 3, 2012, pet. ref’d) (mem.
op., not designated for publication) (sample of heroin); Frasier v. State, No. 03-09-
00354-CR, 2010 WL 3058256, at *2 (Tex. App.—Austin Aug. 5, 2010, no pet.)
(mem. op., not designated for publication) (bag of methamphetamine); Clemens v.
State, No. 03-05-00156-CR, 2008 WL 2065986, at *5–6 (Tex. App.—Austin May
15, 2008, no pet.) (mem. op., not designated for publication) (samples of gasoline);
At trial, Detective Grounds testified, without objection, that, at her request,
Detective Moore seized appellant’s cell phone when he arrested appellant and
delivered it to her via certified mail. In addition, Detective Grounds indicated that
she obtained a search warrant for the phone and was able to unlock it because she
was given the passcode for same. She found identifiers in the phone that matched
appellant, including text messages between appellant and B.W. and appellant’s
usernames on Discord and Snapchat. She was confident that it was appellant’s
phone. The facts the State developed through Detective Grounds are similar to those
in Berhe v. State, where the testifying officer received a cell phone from the task
force that arrested the defendant and otherwise identified the phone as having the
–36– defendant’s phone number. See No. 01-17-00540-CR, 2018 WL 4781070, *3 (Tex.
App.—Houston [1st. Dist.] Oct. 4, 2018, no pet.) (mem. op., not designated for
publication). The Houston Court determined that the cell phone was properly
authenticated despite the fact that the arresting officers did not testify as to the
seizing the phone, concluding that the testifying officer presented sufficient
circumstantial evidence to overcome a chain-of-custody objection. See id.
The situation presented here can be analogized to a circumstance where Texas
courts routinely find that the State has sufficiently proven the beginning of a chain
of custody: contraband that a non-testifying informant delivered to police following
a drug buy. See, e.g., Cain v. State, 501 S.W.3d 172, 175—76 (Tex. App.—
Texarkana 2016, no pet.); Watson v. State, 421 S.W.3d 186, 192 (Tex. App.—San
Antonio 2013, pet. ref’d); Hawkins v. State, No. 10-18-00270-CR, 2020 WL
5938818, *3 (Tex. App.—Waco Aug. 10, 2020, pet. ref’d) (mem. op., not designated
for publication). In these cases, the contraband has been properly authenticated
despite the sponsoring officers not personally witnessing the non-testifying
informant receive the contraband from the defendant. See e.g., Cain, 501 S.W.3d at
175–76; Watson, 421 S.W.3d at 192; Hawkins, 2020 WL 5938818 at *3.
Detective Grounds’s testimony about how she received the cell phone from
the arresting officer, along with the passcode for the phone, and her discovery of
identifiers matching appellant on this phone, constitute sufficient circumstantial
evidence to place the text messages’ authenticity (including the first step in the chain
–37– of custody) within the zone of reasonable disagreement. See generally Berhe, 2018
WL 4781070 at *3. Accordingly, the trial court did not abuse its discretion by
admitting messages extracted from the cell phone over appellant’s chain-of-custody
objection.
Appellant contends Detective Grounds never testified that the extraction
accurately copied what was on the phone. Instead, she simply testified that the
printed reports were accurate copies of the extraction. Appellant contends Detective
Ground’s testimony left unresolved the question of whether the extraction was an
accurate copy of the phone, and it therefore failed to authenticate the extraction itself,
as required by Wright and Villareal-Garcia. Villareal-Garcia v. State, 671 S.W.3d
791 (Tex. App.—Dallas 2023, no pet.); Wright v. State, 618 S.W.3d 887 (Tex. App.—
Fort Worth 2021, no pet.). Appellant did not object to the evidence on the basis that
the State did not authenticate the Cellebrite extraction. Thus, we do not address this
argument here. TEX. R. APP. P. 33.1(a).
We overrule appellant’s fifth issue.
B. Ruling on Hearsay Objection
In his sixth issue, appellant claims the trial court abused its discretion in
overruling his hearsay objection to the drawing depicted below that H.P. made of the
–38– second floor of appellant’s brother’s home during his interview with Eligio Molina.
In response to his objection, the State urged that the defense opened the door
to its admission into evidence during its questioning of Molina. During cross
examination, defense counsel asked Molina if he used “drawings” during the
forensic interview. Molina responded that he asked H.P. “to draw a layout of the
area.” On redirect examination, the State offered the drawing as State’s Exhibit 44,
arguing that the defense had “opened the door” because “they asked the witness
about the drawing, which included comments by H.P. as to where appellant showed
“porn videos” and “touched [his] private parts.” The State further urges that the
drawing was admissible under the rule of optional completeness. See TEX. R. EVID.
–39– 107. Appellant contends that there is no “open-door” exception to the hearsay rule
and that drawing was not admissible under the rule of optional completeness.
We need not determine whether appellant opened the door to the admission of
the drawing or whether the drawing was admissible under the optional completeness
rule because we conclude appellant was not harmed by the admission of same. The
erroneous admission of hearsay is non-constitutional error. Taylor v. State, 268
S.W.3d 571, 592 (Tex. Crim. App. 2008). This Court disregards such errors unless
the error effects a defendant’s substantial rights. See TEX. R. APP. P. 44.2(b);
Macedo v. State, 629 S.W.3d 237, 240 (Tex. Crim. App. 2021). Error does not affect
a substantial right, and is thus harmless, if it has no more than a slight effect on the
jury’s verdict. See Macedo, 629 S.W.3d at 240. In determining an error’s effect,
this Court considers the character of the alleged error and how it might be considered
in connection with other evidence; the nature, existence, and degree of evidence
supporting the verdict; and whether the State emphasized the error. Id.
Appellant contends that he suffered harm because H.P.’s and B.W.’s accounts
of where appellant showed pornography to them and where the alleged offense
occurred were inconsistent, and H.P.’s hand-drawn floorplan helped to resolve those
inconsistencies.
But the drawing did not resolve the inconsistencies, such as they were. B.W.
and H.P. testified before the drawing was introduced into evidence through the
forensic interviewer. B.W. recalled that they viewed pornography in the game room
–40– and H.P. maintained they viewed same in the closet. With respect to where the
offenses occurred, B.W. stated that the offenses occurred in the closet and H.P.
recalled they occurred in the attic. While the drawing was consistent with H.P.’s
testimony at trial, it did not alter or in any way effect B.W.’s testimony.
Moreover, notwithstanding the slight variations in H.P.’s and B.W.’s
recollections of where certain events occurred, the forensic interviewer explained he
looks for general and sensory details in determining whether abuse occurred, and the
boys were able to give that detail, including a description of appellant’s penis and
H.P.’s testimony that the color of appellant’s pubic hair was “ginger.” Furthermore,
the jury had already seen significant propensity evidence from appellant’s
extraneous solicitations of minors and his possession of child pornography, which
we have concluded was properly admitted into evidence. The State mentioned the
floorplan in closing arguments, but simply pointed out that H.P.’s account of the
events remained consistent over time. On the record before us, we conclude that the
admission of the hand-drawn floorplan did not have more than a slight effect on the
jury and did not affect appellant’s substantial rights.
We overrule appellant’s sixth issue.
II. Jury Charge
In his seventh and eighth issues, appellant asserts there were errors in the jury
charge.
–41– A. Standard of Review
The trial court must provide the jury with a written charge distinctly setting
forth the law applicable to the case. CRIM. PROC. art. 36.14. The purpose of the
charge is to inform the jury of the applicable law, guide them in its application to the
case, and to prevent confusion. Delgado v. State, 235 S.W.3d 244, 249 (Tex.
Crim. App. 2007).
Review of alleged jury-charge error is a two-step process: first, the reviewing
court must decide whether error exists; second, if error exists, it must decide whether
the appellant was harmed by the erroneous charge. Ngo v. State, 175 S.W.3d 738,
743 (Tex. Crim. App. 2005) (citing Middleton v. State, 125 S.W.3d 450, 453
(Tex. Crim. App. 2003)). If a defendant objects to a jury charge at trial, an error
is reversible if the record shows that the defendant suffered “some harm.” Reeves v.
State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013); Almanza v. State, 686 S.W.2d
157, 171 (Tex. Crim. App. 1984). Under this standard, the record must reveal
“actual” and not merely “theoretical” harm. French v. State, 563 S.W.3d 228, 235
(Tex. Crim. App. 2018). To determine whether “some” harm exists, this Court
considers the error in light of the four Almanza factors: (1) the entire jury charge, (2)
the state of the evidence, (3) the jury arguments, and (4) any other relevant
information as revealed by the record as a whole. Id. at 235–36. Neither party bears
the burden to show harm. Alcoser v. State, 663 S.W.3d 160, 165 (Tex. Crim. App.
–42– B. Definition of Individual
In his seventh issue, appellant asserts there was jury charge error in the court’s
article 38.37, section 2 instruction because it incorrectly defined the offense of online
solicitation of a minor.
The trial court instructed the jury that the defendant is on trial solely for the
charges contained in the indictment. It further instructed:
If there is any evidence before you in this case that this defendant committed an offense under Section 33.021 of the Penal Code, namely Online Solicitation of a Minor, an offense under Section 43.26 of the Penal Code, namely Possession of Child Pornography, or an attempt to commit either of these offenses, and you unanimously find beyond a reasonable doubt that this defendant committed such offenses, you may consider such evidence for its bearing on any relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant.
The trial court then instructed the jury regarding the elements of Online Solicitation
of a Minor, which include communicating in a sexually explicit manner with a
minor, distributing sexually explicit material to a minor, or soliciting a minor to meet
with someone with the intent that the minor engage in sexual contact or intercourse.
The trial court then defined a “minor” as “an individual who is younger than 17 years
of age or an individual whom the actor believes to be younger than 17 years of age.”
This is the statutory definition of the word “minor.” PENAL § 33.021. Appellant
contends that because the definition of “minor” includes the term “individual,” the
jury charge should have included Penal Code section 1.07’s definition of
–43– “individual” as a human being who is alive. TEX. PENAL CODE ANN. § 1.07(a)(26).7
The trial court denied appellant’s request to include this definition. Appellant
contends that the trial court should have included this definition so that the jury could
consider the possibility that appellant was communicating with chatbots rather than
human beings.
Even it we assume, without deciding, the trial court erred in refusing to
include appellant’s requested instruction, we cannot conclude that he suffered some
harm therefrom. The common understanding of the term individual means a human
being even without the statutory definition. In addition, the definition of minor itself
being an individual who is younger than 17 years of age, likewise establishes the
reference is to a human being, rather than a chatbot. The definition of sexual contact
includes the words “another person” which also indicates the reference is to a human
being. Moreover, in addition to the testimony of B.W. and H.P. describing
appellant’s acts of indecency with a child, there was evidence of the extraneous
offense of possession of child pornography, which was not the subject of appellant’s
request for an instruction on the definition of individual. Accordingly, we conclude
appellant did not suffer any actual harm by the trial court’s refusal to include his
requested instruction on the term “individual.” We overrule appellant’s seventh
issue.
7 Section 1.07(a)(26) defines “individual” as “a human being who is alive, including an unborn child at every stage of gestation from fertilization until birth.” PENAL § 1.07(a)(26). –44– C. Territorial Jurisdiction Instruction
In his eighth issue, appellant urges the article 38.37, section 2 instruction in
the jury charge erroneously failed to instruct the jury that Texas must have
jurisdiction over an offense for it to be an offense under the Penal Code. This issue
is effectively a restatement of appellant’s first and second issues, which we have
resolved against him. We, likewise, and for the same reasons, resolve appellant’s
eighth issue against him.
III. Modification of Judgments
In his final issue, appellant asserts the trial court improperly assessed court
costs in four of the five judgments. The State agrees.
“In a single criminal action in which a defendant is convicted of two or more
offenses or of multiple counts of the same offense, the court may assess each court
cost or fee only once against the defendant.” CRIM. PROC. art. 102.073(a). For
purposes of this rule, a person convicted of two or more offenses in the same trial or
plea proceeding is convicted of those offenses in a “single criminal action.” See
Garcia v. State, No. 05-21-01134-CR, 2022 WL 5113172, at *1 (Tex. App.—Dallas
Oct. 5, 2022, no pet.) (mem. op., not designated for publication) (quoting Hurlburt
v. State, 506 S.W.3d 199, 201–04 (Tex. App.—Waco 2016, no pet.)). If the
convictions are for the same category of offense and the costs are the same, the costs
should be assessed in the case with the lowest trial court cause number. See Thomas
v. State, No. 05-20-00114-CR, 2021 WL 2948550, at *2 (Tex. App.—Dallas June
–45– 30, 2021, pet. ref’d) (mem. op., not designated for publication) (citing CRIM. PROC.
art. 102.073(b); Johnson v. State, No. 05-19-00641-CR, 2020 WL 4745552, at *5
(Tex. App.—Dallas Aug. 17, 2020, no pet.) (mem. op., not designated for
publication)).
Here, appellant was convicted of five second-degree felony offenses in a
single trial. See TEX. PEN. CODE ANN. § 21.11(d) (indecency with child by sexual
contact). Court costs, therefore, should have been assessed only once in the case
with the lowest trial court cause number, 380-81904-2021 Count I.
The record shows that appellant was not only assessed court costs in the
amount of $455 in trial court cause number 380-81904-2021 Count I, but he was
also assessed court costs in the amount of $455 in trial court cause number 380-
81904-2021 Counts II and III, and in trial court cause number 380-81905-2021
Counts I and II, even though the counts were tried together. Because the fees
charged in trial court cause numbers 380-81904-2021 Counts II and III, and in trial
court cause numbers 380-81905-2021 Counts I and II, were already assessed in trial
court cause number 380-81904-2021 Count I, those fees are duplicative. We sustain
appellant’s nineth issue and modify the judgments in trial court cause number 380-
81904-2021 Counts II and III, and cause number 380-81905-2021 Counts I and II,
to delete the $455 in duplicative costs in each judgment.
–46– CONCLUSION
We affirm the trial court’s judgments as modified.
/Nancy Kennedy/ NANCY KENNEDY JUSTICE Do Not Publish Tex. R. App. P. 47
230306F.U05
–47– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
KEVIN SCOTT CHATLEY, On Appeal from the 380th Judicial Appellant District Court, Collin County, Texas Trial Court Cause No. 380-81904- No. 05-23-00306-CR V. 2021. Opinion delivered by Justice THE STATE OF TEXAS, Appellee Kennedy. Justices Nowell and Miskel participating.
Based on the Court’s opinion of this date, the judgment of the trial court in cause number 380-81904-2021 Count I is AFFIRMED and the judgment of the trial court in cause number 380-81904-2020 Counts, II and III are MODIFIED as follows:
delete court costs of $455.
As REFORMED, the judgment is AFFIRMED.
Judgment entered this 1st day of April, 2024.
–48– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
KEVIN SCOTT CHATLEY, On Appeal from the 380th Judicial Appellant District Court, Collin County, Texas Trial Court Cause No. 380-81905- No. 05-23-00452-CR V. 2021. Opinion delivered by Justice THE STATE OF TEXAS, Appellee Kennedy. Justices Nowell and Miskel participating.
Based on the Court’s opinion of this date, the judgment of the trial court in cause number 380-81904-2021 Counts I and II are MODIFIED as follows:
–49–
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