Lawrence, Christopher

Opinion

/ 06 t-/S NO- PD-1068-15

ORIGINAL „ RECEIVED COURT OF

IN THE CRIMINAL APPEALS

COURTOFCRMNALAPPE

OF TEXAS NOV 13 2015 i

__ Abel Acosta, Clerk

CHRISTOPHER ALAN LAWRENCE Appellant/Petitioner ILED IN COURT OF CRIMINAL APPEALS

the state of texas Acosta, Clerk Appellee/Respondent

APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

In Appeal NO. 03-14-00192-CR from

Court of Appeals

for the Third Judicial District

Austin* Texas

CHRISTOPHER ALAN LAWRENCE

TDCJ #1923479

3001 S. EMILY DR.

BEEVILLE, TX 78102

TABLE OF CONTENTS

INDEX OF PARTIES III.

INDEX OF AUTHORITIES IV. STATEMENT REGARDING ORAL ARGUMENT !.

STATEMENT OF THE CASE 2.

STATEMENT OF PROCEDURAL HISTORY 3* GROUNDS FOR REVIEW 4.

GROUND FOR REVIEW NO. ONE

The Court of Appeals erred in holding that there was no error when the trial court overruled Appellant/Petitioner's timely objection to the admissability of video/ photographic, and documentary evidence depicting child pornography.

GROUND FOR REVIEW NO- TWO

The evidence is legally and factually insufficient to support a conviction for Aggravated Sexual Assault of a Child.

ARGUMENT NUMBER ONE 5-7. ARGUMENT NUMBER TWO 7-8. PRAYER FOR RELIEF 9. CERTIFICATE OF SERVICE 10. APPENDIX [MEMORANDUM OPINION 11.

II,

LIST OF PARTIES AND COUNSEL

Appellant - Christopher Lawrence

Appellee - The State of Texas

APPELLANT COUNSEL

Manual C. Rodriguez Jr. Lincoln Center-Suite 535 7800 IH-10 West

San Antonio, Texas 78230

Attorney for Appellant at Trial

C. Wayn-eT Huff P.O.Box 2334

Boerne, Texas 78006 (210)803-4127(phone) (830)230-5567(fax)

cwhuff@aol.com

Attorney for Appellant on Appeal

APPELLEE COUNSEL

Sammy M McCrary

Chief Felony Prosecutor

Comal County Criminal District Attorney's Office 150 N. Seguin Avenue, Suite 307 New Braunfels, Texas 78130 (830)221-1300(phone) (830)608-2008(fax)

Jennifer A. Tharp District Attorney

Comal County Criminal District Attorney's Office 150 N. Seguin Avenue, Suite 307 New Braunfels, Texas 78130 (830)221-1300(phone) (830)608-2008(fax)

hi:.

INDEX OF AUTHORITIES

CASES

Abshire V. State, 62 S.W.3d 857,860(Tex.App. - Texarkana 2001) 5

Bush V. State, 628 S.W.2d 441,444(Tex. Crim. App. 1982) 5

Carter V. State, 145 S.W.3d 702, 707 (Tex App. - Dallas 2004)....5

Jackson V. Virginia, 443 U.S.307, 99 S. Ct. 2781 (1973 ) 7

Jones V. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998) 8

Lane V. State, 933 S.W.2d 504, 519(Tex. Crim. App. 1996) 5

Montgomery V. State, 810 S.W.2d372, 386(Tex. Crim. App. 1991)....6

Morales V. State, 32 S.W.3d 862, 867(Tex. Crim. App. 2000)....... 6

Motille V. State, 78 S.W.3d 352, 356 (Tex. Crim. App. 2002) 6

Powell V. State, 63 S.W.3d 435, 438 (Tex. Crim. App.) 5

Prior V. State, 647 S.W.2d 956, 959(Tex. Crim. App. 1983) 5

Ranking V. State, 974 S.w.2d 707, 719(Tex. Crim. App. 1998) 5

Sharp V. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) 8

STATUTES

Texas Rules of Evidence 404(b) 5

IV.

NO. PD-1068-15

IN THE

COURT OF CRIMINAL APPEALS

OF TEXAS

CHRISTOPHER ALAN LAWRENCE Appellant/Petitibner.

VS.

THE STATE OF TEXAS

APPELLEE/rESPONDENT

APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

TO THE COURT OF CRIMINAL APPEALS OF TEXAS

Appellant/Petitioner respectfully submits this Petition for

Discretionary Review and moves that this Honorable Court grants review of this cause and offers the following in support there of:

STATEMENT REGARDING ORAL ARGUMENT

The Appellant/Petitioner requests oral argument in this case because such argument may assist the Court in applying the facts to the issues raised. It is suggested that oral argument may help simplify the facts and clarify the issues.

1.

STATEMENT OF THE CASE

A Jury found the Appellant/'Petitoner guilty on two (2) counts

of Aggravated Sexual Assault of a Child. Appellant/Petitioner gave a timely notice of appeal.

Appellant/Petitioner raised the issue that the Trial Court

erred In its decision to overrule Appellant/Petitioner's timely

objection to the admissability of video, photographs and documentary

evidence depicting child pornography.

The Third District Court of Appeals affirmed the Appellant/

Petitioner's appeal stating,"... Moreover, given our ultimate

resolution that the District Court did not abuse its discretion

by admitting the evidence under Rule 404(b) for other purposes, we

need not further address this ruling by the District Court." The

Appellant/Petitioner file an Motion for Rehearing, and was sub

sequently denied.

2.

STATEMENT OF PROCEDURAL HISTORY

Iffi Cause No. CR-2013-543 Appellant/Petitioner was charged

with a four (4) Count indictment of Continuous Sexual Assault of

a Child and Aggravated Sexual.Assault of a Child. Texas Penal Code

§22.021(f)(1). The Continuous Sexual Assault of a Child was dropped prior to Jury Trial.

On March 19, 2015 the Jury found Appellant/Petitioner guilty of two (2) Counts of Aggravated Sexual Assault of a Child. On March

20,2015 The Jury assessed a punishment of 30 years for one count and 70 years for the second. The conviction was appealed on July 16, 2015/ and was subsequently affirmed on the same date.

The Motion for Rehearing was filed on July 29, 2015 and was sub

sequently •denied.

On this 5th day of November / 2015 this Petition for

Discretionary Review was timely forwarded to the Court of Criminal

Appeals of Texas for filing pursuant to Rule 9.2(b), Texas Rules of

Appellate Procedure.

GROUNDS FOR REVIEW

I.

The Court of Appeals erred in holding that there was no error

when the trial court overruled Appellant/Petitioner's timely

objection to the admissability of video, photographic, and

documentary evidence depicting child pornography.

II.

The evidence is legally and factually insufficient to support

a conviction for Aggravated Sexual Assault of a Child.

ARGUMENT NUMBER ONE

Evidence of extraneous offense, i.e 'other crimes, wrongs or

acts," is inadmissible to prove the character of a person in order

to show action in conformity with that character. Tex.R.Evid.404(b); / —"— — '•

Carter V. State, 145 S.W.3d 702, 707(Tex. App-Dallas 2004) An

exception to this rule of inadmissibility provides that evidence

of other crimes, wrongs, or acts may be admissible for another

purpose, for example, to prove motive, oppurtunity, intent/

preperation, plan, knowledge, identity or absence of mistake or

accident." Powell V. State, 63 S.W.3d 435, 433(Tex.Crim.App.2001) ; Montgomei-y V. State, 810 S.W. 372, 336(Tex. Crim. App. 1991). Possession of pornography in an extraneous offense.

Clearly the evidence was not admissible to rebut a defensive

theory of lack of intent since Appellant denied that the offense

occured at all. Rankin V. State S.W. 2d 707,719(Tex. Crim App. 1998). Nor was it admissible to show motive because motive is not a required element of the offense. Bush V. St-at-P, 628 S.W. 2d 441,444(Tex Crim. App 1982).

An extraneous offense can be admissable pursuant to Rule 404(b)

to rebut a defense of lack of oppurtunity or impossibility. Abshire v- State, 62 S.W.3d 857,850(Tex. App - Texarkana 2001) No such claim

was made in this case. Likewise Appellant's identity was never in question nor did he raise mistake or accident; consequently the evidence was not admissible to prove these issues. Lane V. State 933 S.W.2d 504, 519(Tex.Crim.App. 1995); Prior V. State, 647 S.W.2d 956,959 (Tex. Crim. '.App. 1983).

Clearly, Appellant was harmed oy the admission of the child

pornography evidence. The State waa able to bring before the jury 5.

videos with s.jch titles as "Father and hi ten-year old twind daughters",

"11 year-old,13 year-old, suck first time, lesbo play.avi*", PTHC

(preteen hardcore), PTSC stick am 2009,Julie, three ten-year-olds.

18 lavi*". "PTHCnew, Amber, virgin pussy, 11-12-year-old,pedo.

PTSCavi*","Russia,Lelia(12)-Daddy does her 3 times","2010 9yo-suziQ-

too tight, avi", 9yo Izabel-anal (with sound)mpg"/"Young girl,

lolita, pedo, fuck brother","a good five-year old fuck." (RR4:64-69)

the above is just a sample of titles that are contained in the

printout admitted before the jury and contents of the flash drive

(State's Exhibits 25 & 26). The State's witness testified that in

a search for PTHC(preteen hardcore) he received 26,526 hits, and

in a search for "lolita" he received 5142 hits.

In assessing harm, factors to be considered include the nature

of evidence supporting the verdict, thexcharacter of the alleged

error, and hoc/ the evidence might be considered in connection with

the other evidence in the case. Motilla V. State, 78 S>W..3d 352,

356 (Tex.Crim.App. 2002); Morales V. State, 32 S.W.3d 352,867

(Tex.Crim.App.2000).

In this case the occurence of the offense itself was refused not

only by Appellant, but also by his mother and step-father. The

admitted evidence represented a huge trove of material bearing on

an offense not alleged in the indictment and not shown to be

connected in any way to issues at trial. The overwhelimg nature of

this evidence was prejudicial to this defendant at both phases of

the trial.

Not only vis the evidence prjudicial, but ,it was heavily

emphasized by the state during trial and particularly during final

argument. (RR5: 41-44) Motilla V. State at 355-355.

6.

petitioner feels that it is impecitive that this Court of Crim

inal Appeals reviews this issue because of the inherently prejudi cial nature of the video,photographic and documentary evidence depicting child pornography.

ARGUMENT NUMBER TWO

Due to ineffective assistance of counsel on appeal the Court

of Appeals was unable to review the case to determine if the evidence was sufficient to support "rational" determination

that Lawrence was guilty of Aggravated Sexual Assault of a Child.

The whole point of this issue is the fact that the State overcharged

the original allegations - which at best could only be probable

cause on indecency with a child - The incident alleged in the

indictment involved 'ONE' incident where the child and the accused

were laying on a couch "fully clothed" with other people in the

general vicinity. The testimony and facts were "created" by law

enforcement and prosecutors by soliciting the proper words and

phrases necessary to obtain a conviction. This is nothing more than

a cleverly designed "witchhunt,"

In a legal sufficiency review the appellate court reviews all

the evidence in the light most favorable to the verdict and deter

mines whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Jackson V.

Virginia/ 443 U.S.307, 99 S.Ct.2781(1973) .

In this case the "interpretations" of facts and circumstances

was considered evidence. Of course the jury could find guilt by

the clever solicitation of words and phrases with the added benefit

of extreme prejudice. This case draws a question as to what is

rational? It is not rational to believe a "grown" man could insert

his penis into the anus of a child without causing traceable damage. This is a common sense question of "size", add the fact that both

parties were "FULLY CLOTHED" while laying on the couch, while other

persons in the vicinity and it becomes clearly "irrational.."

The jury is the sole judge of the credibility of the witnesses,

is free to believe or disbelieve all or part of a witness testimony. Jones V. State, 984 S.W.2d 254,257(Tex.Crim.App.1998). The jury

may reasonably infer, facts from the evidence presented, credit the

witnesses it chooses to, disbelieve any or all of the evidence or

testimony proffered, and weigh the evidence as it sees fit. Sharp V. State, 707 S.W.2d 611,614(Tex.Crim.App.1986).

Due to ineffective assistance by court appointed counsel the

state was given free reign to obtain a conviction and because

the record was clearly scripted by the prosecutor and the court

appointed attorney, the conviction was safe from challenge.

This case is a clear representation of a modern day witchhunt.

Fear and prejudice secured a conviction for a crime in which the

accused is actually innocent, but since he is not a lawyer the

courts follow the pernicious ways of the prosecutor, with no

consideration that the judicial system and constitution are being systematically converted to third world standards.

PRAYER FOR RELIEF

Christopher Alan Lawrence humbly prays this Honorable Court

will grant this Petition for Discretionary Review and set it for submission to sort out the legal issues raised by this case that have been forfeited through ineffective counsel at trial and on

appeal by attorneys hired by the state to protect the interest of the state. Ultimately Lawrence prays the Court will grant him a new trial where he can "intelligently" defend himself against the false charges.

CHRISTOPHER ALAN LAWRENCE TDCJ # 1923479

WILLIAM G. MCCONNELL UNIT 3001 S. EMILY DR BEEVILLE, TX 78102

CERTIFICATE OF SERVICE

The undersigned Appellant/Petitioner hereby certifies that a true

and correct copy of the foregoing Petition for Discretionary Review has been mailed, by U.S. Mail, postage prepaid, to the District Attorney, Appellate Division, Comal County Courthouse Annex, 150 S. Seguin Avenue Suite 307, New Braunfels, Texas 78130, and to the State Prosecuting Attorney, P.O.Box •13A2&', Austin, Texas 78711. On this 6th day of November , 2015.

CHRISTOPHER ALAN LAWRENCE TDCJ# 1923479

10.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-14-00192-CR

Christopher Lawrence, Appellant

The State of Texas, Appellee

FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT NO. CR2013-543, HONORABLE JACK H. ROBISON, JUDGE PRESIDING

MEMORANDUM OPINION

Christopher Lawrence was charged with two counts of aggravated sexual assault

of K.H., who was younger than six years old at the time of the offenses.1 See Tex. Penal Code

§ 22.02 l(a)(l)(B)(i), (iii) (setting out elements of offenses at issue), (a)(2)(B) (specifying that

offense is aggravated sexual assault if victim is younger than 14 years old). The first count alleged

that Lawrence penetrated K.H.'s anus with his sexual organ or caused K.H.'s anus to contact his

sexual organ, and the other count alleged that Lawrence penetrated K.H.'s sexual organ with

his fingers. See id. § 22.02 l(a)(l)(B)(i), (iii). During the trial, the district court admitted evidence

regarding child pornography that was discovered on Lawrence's computers. At the end ofthe trial,

1The indictment also alleged an additional count of aggravated sexual assault as well as a charge for continuous sexual abuse. Beforethe case was submittedto thejury, the Stateelectednot to proceedwith the continuous-sexual-abuse charge, and at the end of the guilt or innocence phase of the trial, the jury determined that Lawrence was not guilty of the additional aggravated-sexualassault charge.

the jury found Lawrence guilty ofboth counts and sentenced him to 30 years' imprisonment for the first count and to 70 years' imprisonment for the second count. See id. §22.021(e) (stating that offense is first-degree felony), (f) (providing that minimum sentence is 25 years ifvictim is younger than six years old). The district court determined that those punishments would run concurrently. On appeal, Lawrence contends that the district court abused its discretion by admitting into evidence the information and files recovered from his computers. We will affirm the district court'sjudgment of conviction.

DISCUSSION

Evidence of Child Pornography

In a single issue on appeal, Lawrence contends that the district court erred by admitting into evidence "video, photographic and documentaryevidence depicting childpornography." Specifically, Lawrence notes that during the trial the State introduced images and videos ofchild pornography that were recovered from his computers as well asa list of internet searches that were

performed on his computers and that contained graphic sexual terminology regarding children. When challenging the district court's ruling, Lawrence contends that the evidence ofthose extraneous offenses was impermissibly admitted as character evidence contrary to the directives ofRule of Evidence 404(b). See Tex. R. Evid. 404(b). Moreover, although Lawrence acknowledges that the Rule does allow for the admission ofextraneous offenses for limited purposes such as establishing identity, lack ofaccident, absence ofmistake, intent, motive, or alack ofopportunity or impossibility, see id. R. 404(b)(2) (setting out permissible uses for extraneous offenses); see Sandoval v. State, 409 S.W.3d 259, 299 (Tex. App.—Austin 2013, no pet.) (explaining that "[ejvidence of an

extraneous offense may be admissible under Rule 404(b) to rebut" defense of lack of opportunity

or impossibility), Lawrence contends that none of those exceptions to the general rule applied.

Specifically, he asserts that "theevidence was notadmissible to rebut a defensive theory of lack of

intent since [he] denied that the offense occurredat all." Furthermore, Lawrence contends that the

evidence was not "admissible to show motive because motive is not a required element of the

offense." Finally, Lawrence contends that the evidence was not admissible to establish his identity

because his identity as the alleged perpetrator "wasnever inquestion" andthatit wasnotadmissible

torebut adefense "oflack ofopportunity orimpossibility" orof"mistake oraccident" because "[n]o such claim[s] w[ere] made in this case."2

2In the fact portion ofhis brief, Lawrence notes that during a hearing held before the trial started, the State indicated that it intended to discuss during its opening statement a video that was recovered from Lawrence's computers depicting a child performing oralsexonanadult man. When discussing its reasons for why the State would be allowed to discuss the video, the district court stated that thevideo wasalleged to have been partoftheresgestae of theoffense because Lawrence "showed pornography to the child on the - on acomputer and then ~ that showed achild performing fellatio on a male and then asked her to do it." See Prible v. State, 175 S.W.3d 724, 731-32 (Tex. Crim. App. 2005) (providing that evidence of extraneous offenses may be admitted as sametransaction contextual evidence if crimes are intermixed, blended with oneanother, orconnected in manner that they form indivisible transaction). However, Lawrence asserts that during the trial, K.H. denied in hertestimony that Lawrence showed herthe video on his computer and then asked her to perform the act. Accordingly, Lawrence contends that the "State's justification for offering this evidence was not supported by the complainant herself."

Having reviewed the record, it is not entirely clear that K.H. did infact deny that Lawrence asked her to reenact something after showing her a video. In her testimony, K.H. testified that Lawrence inserted his fingers into her vagina and "put his private in my bottom." Moreover, in response to aquestion by the State regarding whether Lawrence did other sexual acts, K.H. explained that Lawrence "tried toput his private inmy mouth." Furthermore, when asked ifLawrence showed her any pictures or videos where people did not have any clothes on, she answered, "kind of," but explained that she could not "remember what the videos were." Right after answering that last

As apreliminary matter, we note that itis not entirely clear that Lawrence preserved this issue for appeal. Before the trial started, Lawrence filed amotion in limine asking that all evidence ofextraneous offenses be excluded until a hearing is held to determine the admissibility of the evidence. In the motion, Lawrence referenced Rules ofEvidence 403,404, 608, and 609. During the hearing on the motion, Lawrence argued that the evidence was "designed to inflame the jury, to impassion them on an extraneous offense. And, therefore, it's far more prejudicial than probative." After hearing this argument, the district court overruled the objection and stated that it found the evidence "far more probative than prejudicial." On the following day, Lawrence expressed concern regarding the admission ofinformation from one ofhis computers. Specifically, Lawrence mentioned that one of his computers was purchased from a pawn shop and that he wanted to be certain that any information regarding internet searches or downloads pertained to activities occurring after the purchase date, but the district court explained that it did not have enough information about the evidence at that point to make aruling but encouraged Lawrence to lodge an objection if needed later. During the trial, Detective Brian Morgan testified about the forensic analysis that was performed on the computers, and exhibits relevant to the analysis were admitted. After questioning Officer Morgan on voir dire, Lawrence explained that he was "renewing my . . .

question, the State asked, "Was the stuff that he was wanting you to do that you're talking about withyourmouth," and she answered, "No."

In any event, other than mentioning these exchanges in the fact section ofhis brief, Lawrence does not address this topic further. Moreover, given our ultimate resolution that the district court did not abuse its discretion by admitting the evidence under Rule 404(b) for other purposes, we need not further address this ruling by the district court. See Gaytan v. State, 331 S.W.3d 218,225 (Tex. App.—Austin 2011, pet. ref d).

403 objection that we discussed earlier... [t]hat this isfar more prejudicial than probative," and the

district court overruled the objection. Inhis testimony, Officer Morgan extensively described the

images and videos ofchild pornography aswell asthe accompanying internet searches that hefound

on Lawrence's computers, but Lawrence made no objection during the officer's testimony based on

Rule 404, did not make any further objections regarding Rule 403, and did not request a running objection under either Rule. Moreover, when Lawrence later testified himself, he admitted that he

had downloaded some of the child-pornography files.

Although Lawrence's motion in limine sought to prevent theadmission of evidence

under Rule 404(b) among other Rules, "motions in limine do not preserve error," seeRoberts v.

State, 220 S.W.3d 521, 533 (Tex. Crim. App. 2007), regardless ofwhether they are "granted or denied," see Harnett v. State, 38 S.W.3d 650, 655 (Tex. App.—Austin 2000, pet. refd). Accordingly, aparty must object to the actual admission ofthe evidence in order preserve the error for appeal. Id. As set out above, when the evidence was offered, Lawrence only objected on Rule 403 grounds. See Roberson v. State, No. 02-08-00152-CR, 2010 Tex. App. LEXIS 6421, at *10 (Tex. App.—Fort Worth Aug. 5, 2010, pet. refd) (mem. op., not designated for publication) (explaining that objection under Rule 403 attrial did not preserve for appeal complaint that evidence was admitted in violation ofRule 404); Parmer v. State, 38 S.W.3d 661, 668 (Tex. App.—Austin 2000, pet. refd) (concluding that issue regarding admission ofevidence under Rule 404(b) was not preserved because no objection was made but addressing issue concerning same evidence under Rule 403); see also Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (stating that defendant's appellate contention must comport with specific objection made at trial); Broxton v.

State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (noting that objection stating one legal theory may not be used to support different legal theory on appeal). Moreover, as set out above, Lawrence did not object to the testimony of Officer Morgan when the officer was describing the contents of the files and searches that were recovered from the computers, see Mitchell v. State, 68 S.W.3d 640, 643 (Tex. Crim. App. 2002) (explaining that ifpreviously objected to evidence is introduced from another source without objection, defendant may not challenge admission on appeal); Luu v. State, 440 S.W.3d 123, 127 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (providing that party must object every time inadmissible evidence is offered or request running objection and that any error in admission ofevidence is cured when evidence comes in without objection), and Lawrence himself later admitted that he downloaded some ofthe files to his computers.

In any event, as Lawrence correctly points out, Rule ofEvidence 404 generally prohibits the admission of"other crime[s], wrong[s], or other act[s]... to prove aperson's character in order to show that on aparticular occasion the person acted in accordance with the character," but the Rule does allow that type ofevidence to be admitted for otherpurposes, "such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence ofmistake, orlack ofaccident." Tex. R. Evid. 404(b); seeDevoe v. State, 354 S.W.3d 457,469 (Tex. Crim. App. 2011) (explaining that "evidence may be admissible when it has relevance apart from character conformity").3

3For sexual-abuse cases involving minors, article 38.37 ofthe Code ofCriminal Procedure provides that "[notwithstanding" Rule ofEvidence 404, "evidence that the defendant has committed a separate" sexual offense pertaining to children, including the possession or promotion of child pornography, "maybe admitted in the trial" ofadefendant accused ofaggravated sexual assault ofa child "for any bearing the evidence has on relevant matters, including the character ofthe defendant and acts performed in conformity with the character ofthe defendant." Tex. Code Crim. Proc. art. 38.37, §2. By its terms, article 38.37 "supercedes in certain sexual abuse cases the application of

On appeal, courts review a trial court's ruling regarding the admission of evidence

under an abuse-of-discretion standard. Prible v. State, 175 S.W.3d 724,731 (Tex. Crim. App. 2005). "A trial court abuses its discretion when its ruling is arbitrary orunreasonable." Gaytan v. State,

331 S.W.3d 218, 223 (Tex. App.—Austin 2011, pet. refd). But a trial court does not abuse its

discretion ifits ruling lies within "the zone ofreasonable disagreement." Bigon v. State, 252 S.W.3d

360, 367 (Tex. Crim. App. 2008). "A trial court's 404(b) ruling admitting evidence is generally within this zone if there is evidence supporting that an extraneous transaction is relevant to a

material, non-propensity issue." Devoe, 354 S.W.3d at 469; see Rankin v. State, 91A S.W.2d 707, 719 (Tex. Crim. App. 1998) (op. on reh'g) (stating that extraneous-offense evidence will generally be relevant but purpose for which it is offered might not be); see also Tex. R. Evid. 401 (providing that evidence is relevant ifittends to make fact ofconsequence "more or less probable than itwould be without the evidence"). "Ifthe trial court's evidentiary ruling is correct on any theory oflaw applicable to that ruling, it will not be disturbed." Devoe, 354 S.W.3d at 469.

Rule ofEvidence 404(b). SeeHitt v. State, 53 S.W.3d 697, 704-05 (Tex. App.—Austin 2001, pet. refd) (discussing prior version of statute). Accordingly, the evidence at issue in this case would seem to have been admissible under article 38.37.

However, before this type of evidence may be admitted under article 38.37, the provision requires that the State "givethe defendant notice of the state's intentto introduce" the evidence in its case in chief"not laterthanthe 30thdaybefore thedateof the defendant's trial"andthatthetrial court "conduct ahearing out ofthe presence ofthe jury" for the purpose ofdetermining whether "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." Tex. Code Crim. Proc. art. 38.37, §§ 2-a, 3. Although the record in this case reveals that Lawrence requested notice ofthe State's intent to introduce evidence under article 38.37, the record does not show that the State provided notice that it intended to introduce the evidence at issue under article 38.37 or that a hearing was held before the evidence was admitted. For these reasons, we limit our discussion to whether this evidence was admissible under Rule 404.

As set out above, Lawrence was charged with two counts of aggravated sexual assault. The Penal Code specifies that an individual commits that offense ifhe "intentionally or knowingly... causes the penetration ofthe anus or sexual organ ofachild by any means" or "causes the anus ofachild to contact the ... sexual organ ofanother person" and if"the victim is younger than 14 years of age." Tex. Penal Code §22.02l(a)(l)(B)(i), (iii), (a)(2)(B) (emphasis added). Moreover, although not listed specifically,'"[i]ntent to arouse or gratify sexual desire' is an implicit element of aggravated sexual assault ofachild." Sarabia v. State, 227 S.W.3d 320, 323-24 (Tex. App.—Fort Worth 2007, pet. refd) (citing Ochoa v. State, 982 S.W.2d 904, 908 (Tex. Crim. App. 1998)); see also Ochoa, 982 S.W.2d at 908 (explaining that "Legislature did not intend that the 'intent to arouse and gratify' requirement" found in other statutes regarding sexual crimes "be excluded from proof ofthe elements ofaggravated sexual assault"). Accordingly, the evidence establishing that the computers had been used to search for and download images and videos of underage girls having sex was "admissible under rule 404(b) because [it] tend[ed] to show Appellant's intent or motive to arouse or gratify his sexual desire via" underage girls. See Sarabia, 227 S.W.3d at 324.

Moreover, during the trial, evidence was introduced through a recording of an interview ofLawrence by the police, through the cross-examination ofone ofthe State's witnesses, through the testimony ofwitnesses called on behalfofLawrence, and through Lawrence's testimony that any inappropriate touching that occurred was unintentional or accidental, occurred while he was sleeping, or was caused by K.H. See Abshire v. State, 62 S.W.3d 857, 860 (Tex. App.—Texarkana 2001, pet. refd) (explaining that evidence ofextraneous offenses may be used to establish "elemental fact" such as intent, to establish evidentiary fact like motive, or to rebut defensive theories like

absence of mistake or accident).

Prior to the trial, Lawrence was interviewed by Detective David Schroeder. A copy

of that interview was played for the jury during Officer Schroeder's testimony. In the interview,

Lawrencerepeatedlyasserted that he did not touch K.H. in anymanner but also repeatedlystatedthat

if he did touch K.H.. he did so unintentionally or when he was asleep. Specifically, he stated, "If I

touched her, I did not do it when I was awake. I cannot account for when I was asleep. I may

have.... I was asleep that night." Moreover, Lawrence explained that one time he woke up and

realized that his hands were on K.H.'s leg and that he was "afraid of what I did when I was asleep.

Okay. I don't know what I do in my sleep, and I'm scared shitless of it." Furthermore, Lawrence

recalled that "there is a good chance that it happened" while he was asleep but that "I know I did not

touch her in an intentional setting. I [did] not intentionallytouch[] her." More specificallynear the

end of the interview and when describing one incident, Lawrence stated as follows:

We were laying there. I was laying there, at first. And then [K.H.], all jumpy, was like, "I want to lay down." So, she came over and she was like, "Can I lay down with you?" I was like, "sure." So, I let her under the covers, and I let her lay there. I started to doze off, and I kind of pulled her closer to me, you know, because you know contact kind of feels nice.... I'm a cuddler.... And we were laying there. And I was half dozed off, and I thought she grabbed my hand to pull me closer. And the next thing I know, my hands were underneath her pants. And then when my reaction hit, my finger was on top... you know how a woman' s or a female' s vagina is where it is at the very top. When I realized my hand was there, I yanked it back.

When Lawrence cross-examined Officer Schroeder about the interview, the following exchange

occurred:

Q: In this case about the touching, [Lawrence] says over and over again that what he did wasunintentional. Right?

A: Subconsciously, he didn't mean to do it.

Q: So does it make no difference that she pulled his hand while he was asleep? A: I don't believe that happened. I think he minimized it.

After the state rested its case, Lawrence called his stepfather, Jeff Lewallen, to the stand to discuss what he saw on the day in question. Specifically, Lewallen testified Lawrence was asleep on the couch and that K.H. "kept trying to get up there to lay with him. And he kept telling her that, no, he wanted to lay by himself. And he finally dozed offby himself." Moreover, Lewallen explained that K.H.'s mother placed K.H. beside Lawrence on the couch and then covered them up with ablanket. Next, Lewallen stated that he saw Lawrence "get up, telling [K.H.], We don't do things like that around here" and that Lawrence pushed K.H. away. After Lewallen finished testifying, his wife and Lawrence's mother, Shirley Lewallen, was called to the stand to testify regarding her recollections ofthe day in question. In her testimony, she said that Lawrence was asleep on the sofa, that K.H. wanted to lay down beside him, that K.H.'s mother covered K.H. with ablanket, that K.H. 'smother grabbed Lawrence's arm and placed it near K.H. 'swaist, and that Lawrence later stood up and statedthat "[w]e do not do these things in this house" and that "[fjhey're not allowed."4

4In his testimony, Lewallen also explained that he believed that K.H.'s significantly older brother was sexually abusing her based on interactions that he observed and based on a statement that K.H. made to him about how her brother had been very rough when he bathed her and caused

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During his own testimony, Lawrence stated that any inappropriate touching was

unintentional, wascausedby K.H.,or happened whilehe was asleep. Specifically, Lawrence testified

as follows when asked why K.H. was with him on the sofa:

Q: How did K.H. come to be on that sofa with you?

A: I'm not too certain.

But she always liked laying on the couch, especially when somebody was laying on it with her. I would cuddle with her, and [her mother] was okay with it.

But that night, I don't know. I fell asleep and ~ I mean, I didn't want her on the couch because she asked. I told ~ I told them no, and I fell asleep.

And then I woke up with her bumping me, and I don't ~ she was doing something weird, and I didn't like it, so I pushed- well, I didn't push her, but I told her to get off the couch and, you know, go play or go somewhere else.

Q: Why did you tell her to get off the couch?

A: I think she was pulling my hand over her. I wasn't sure what it was for. I felt - I felt the ridge of her pants, so that's what woke me up. That, and the - she kicked me on the shin; not hard, but just, like, squirming.

Q: Did you ever intend to touch her at all?

A: No.

Q: Now, you heard your testimony to Detective Schroeder. Right?

A: Yes.

Q: Did you touch her private area?

her genitals to bleed. Similarly, Shirley also testified that she was concerned that K.H.'s older brother was sexually abusing her because the two ofthem slept in the same bed at night, because he bathed her behind closed doors, and because K.H. told her that her brother scrubbed her so hard that her bottom started bleeding.

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A: I'm not too sure if I did or not, to be honest.5

Finally, during his closing argument, Lawrence stated as follows:

Avery important part ofthe statute is the state of mind ofthe accused in this case, [Lawrence]. They're asking you to find that [Lawrence] intentionally or knowingly

And Ithink ifyou review the evidence and the witnesses, you'll see that wasn't there. A lot of time was spent when we watched [the interview]. It was a long one. [Lawrence] said, "Idid touch her. My hand touched the top, but I didn't mean to. As soon as I woke up, as soon as I felt it, I pushed her off." He admitted to the touching, but he didn't do it on purpose.

In light of the preceding, we cannot conclude that the district court abused its discretion by allowing in evidence regarding images and videos of child pornography as well as internet searches for child pornography that were found on Lawrence's computers because that evidence tended to prove Lawrence's intent to commit the offenses charged and to disprove, among other things, the defensive theories that any touching was caused by K.H., occurred while Lawrence was asleep or otherwise unaware, and was done inadvertently or by accident. Accordingly, we overrule Lawrence's issue on appeal.

During the interview with the police, in his testimony, and during his closing argument Lawrence also explained that he believed that K.H. 's motherhad coachedher to make the allegations' agamst him because he had been involved in a sexual relationship with K.H.'s mother that had ended. Moreover, in the interview to the police, in his opening and closing statements, and through his questioning ofthe State's witnesses and his own witnesses, Lawrence also suggested that it was highly unlikely that any abuse could have occurred because the home was too small to hide any improper activity and because there were other individuals in the room during the alleged incidents.

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