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holding sufficient evidence that defendant had intended to induce minor to engage in sexual conduct when defendant had engaged in similar conduct with adults that had resulted in sexual activity
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No. 05-07-00586-CR
Opinion Filed July 23, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 6, Dallas County, Texas, Trial Court Cause No. F06-00566-X.
Before Justices MOSELEY, FRANCIS, and LANG.
OPINION
A jury convicted Willie James Atkins of attempted sexual performance of a child and assessed punishment, enhanced by two prior felony convictions, at life in prison. In nine issues, appellant challenges the legal and factual sufficiency of the evidence to support his conviction, admission of certain evidence, and the denial of his motion to suppress. We affirm. In May 2005, T.R. and his friend, R.S., both fifteen, were standing at a bus stop when appellant drove up and asked for directions to a nearby high school. When the boys tried to direct him, appellant acted confused and asked them to get in and show him. The boys agreed. Once inside the car, appellant asked them their ages and where they went to school. The boys told him. Appellant said he had a lawn-mowing business and offered them a job. At the end of the ride, T.R., who had been looking for a job, gave appellant his real name and telephone number; R.S. gave appellant a fake name and number. A couple of days later, appellant called T.R., asked if he could drive, and asked if he could help him get his car from the shop. The next day, appellant picked up T.R and almost immediately engaged him in a sexually explicit conversation, asking whether T.R. had ever had sex and talking about pornographic movies. Instead of driving to the shop, appellant took T.R. to his apartment, claiming he needed to change his clothes. Once inside, T.R. sat in the living room while appellant went to the back. T.R. said that seconds later, appellant called him to come back to his bedroom. T.R. said he stepped inside the bedroom and sat down in a chair next to the bed. Appellant, still clad in a dress shirt, slacks, and shoes, was talking about a pornographic movie. Appellant put the movie on and then began undressing until he was wearing only a muscle shirt and gym shorts. T.R. said he was wondering what appellant was doing. Appellant then laid across the bed, with his head about two feet from T.R., put his hand inside his shorts and began fondling himself while making sexually explicit comments. T.R. said he was nervous and sat there for two to three minutes. Appellant then asked T.R. to stand up so he could see how tall he was; T.R. stood up and appellant faced him from less than a foot away. T.R., thinking that appellant was trying to "have sex" with him, made up a story that he lost his keys so that he could flee the apartment. Once outside the gate of the complex, he saw appellant driving around the apartments looking for him. T.R. ran to a nearby gas station and called his stepfather, Bobby Nicholas. Nicholas testified that when he got the call from T.R., he could tell T.R. was "upset and nervous" and sounded like he was crying. When Nicholas arrived at the gas station, T.R. was "scared" and "real nervous." T.R. told his stepfather that he had "just ran from this guy's house that tried to rape him." Nicholas said T.R. told him that the man got him to his apartment, took off his clothes, put on a pornographic movie, and started playing with himself. When they arrived home, Nicholas retrieved appellant's telephone number from the Caller ID, called appellant, and identified himself as T.R.'s father. He asked appellant why he picked up his son without his permission and said T.R. had told him that appellant had tried to rape him. Appellant denied the allegations and said he "wouldn't do anything like that." When Nicholas said he was going to call the police, appellant begged him not to. Nicholas hung up and called the police. While Nicholas was on the telephone with the police, appellant called back crying and offered money if he would not call the police. As part of the investigation, the police took statements from T.R. and his parents. Additionally, the police set up a recorded telephone call from T.R. to appellant. During the conversation, appellant denied any wrongdoing, although T.R. believed appellant knew he was being recorded. Finally, the police executed a search warrant at appellant's apartment and found, among other things, a pinhole camera on a bedroom wall trained on the bed, a commercial pornography videotape, and fifty-eight homemade videotapes. Fifteen of the tapes showed numerous instances in which appellant was seen engaging in the type of conduct he engaged in with T.R. that ultimately resulted in sexual activity between appellant and the other male. A tape containing a representative sample of one encounter was admitted. At the punishment phase, the remaining tapes, totaling more than ninety hours, were admitted. In the first four issues, appellant contends the evidence is legally and factually insufficient to support his conviction. On a legal sufficiency challenge, this Court reviews the evidence in the light most favorable to the jury's verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). On a factual sufficiency challenge, we view all the evidence from a neutral perspective. Watson v. State, 204 S.W.3d 404, 415 (Tex. 2006). The evidence, though legally sufficient, is factually insufficient if it is so weak that the jury's verdict seems clearly wrong and manifestly unjust, or if, considering conflicting evidence, the jury's verdict, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Berry v. State, 233 S.W.3d 847, 854 (Tex.Crim.App. 2007). A clearly wrong and unjust verdict occurs where the jury's finding is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Id. The difference between the two standards is that the former requires the reviewing court to defer to the jury's credibility and weight determinations while the latter permits the reviewing court to substitute its judgment for the jury on these questions but only "to a very limited degree." Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied, 128 S. Ct. 87 (2007) (explaining that factual sufficiency jurisprudence still requires appellate court to afford "due deference" to jury's determination). A factual sufficiency review is "barely distinguishable" from a Jackson legal sufficiency review. Id. A person commits the offense of sexual performance by a child if, knowing the character and content thereof, he employs, authorizes, or induces a child younger than 18 years of age to engage in sexual conduct or a sexual performance. Tex. Pen. Code Ann. § 43.25(b) (Vernon Supp. 2007). "Sexual conduct" includes, among other things, sexual contact, deviate sexual intercourse, masturbation, and lewd exhibition of the genitals. Id. at § 43.25(a)(2). A person commits the offense of criminal attempt if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended. Id. at 15.01(a) (Vernon 2003). Thus, a person commits the offense of attempted sexual performance of a child if he, with specific intent to commit sexual performance by a child, does an act amounting to more than mere preparation that tends but fails to effect the commission of sexual performance of a child. Chen v. State, 42 S.W.3d 926, 929 (Tex.Crim.App. 2001). Here, the indictment alleged that appellant attempted to induce T.R., a child under the age of eighteen, to engage in sexual conduct, to-wit: deviate sexual intercourse and masturbation and lewd exhibition of the genitals by removing appellant's pants, fondling appellant's groin area, and talking in a sexually explicit manner to T.R. In issues one and two, appellant argues the evidence is legally and factually insufficient to prove that he acted "with specific intent" to induce T.R. to engage in the sexual conduct alleged in the indictment. "With specific intent to commit an offense" means that the accused must intend to bring about the desired result. In the Matter of A.E.B., No. 05-06-01536-CV, 2008 WL 1869841, at *4 (Tex.App.-Dallas Apr. 29, 2008, pet. filed); Graves v. State, 782 S.W.2d 5, 6 (Tex.App.-Dallas 1989, pet. ref'd). Intent is usually established by circumstantial evidence and is usually inferred from the defendant's acts, words, or conduct. Slomba v. State, 997 S.W.2d 781, 783 (Tex.App.-Texarkana 1999, pet. ref'd). The evidence set out previously details the circumstances in which appellant initially met T.R. and just days later lured him to his apartment. Once there, appellant put on a pornographic videotape, stripped down to a muscle shirt and shorts, and laid across his bed with his head less than two feet from where T.R. was sitting. Appellant then put his hand inside his shorts and began to fondle himself while making sexually explicit comments to T.R. Appellant's actions that day were so unnerving to fifteen-year-old T.R. that he devised a plan of escape because he believed appellant was trying to "have sex" with him. In addition to the circumstances of the offense, the State also put on evidence that the police seized videotapes from appellant's apartment containing numerous scenes with appellant engaging in similar conduct with other males. In each of those instances, the incident resulted in sexual activity between appellant and the other male. In making his sufficiency argument, appellant stresses that T.R. voluntarily went to his apartment and appellant did not expose himself to T.R., threaten T.R., touch T.R., reach out to remove his clothes, or ask him to remove his clothes or engage in sexual activity. Additionally, he points to evidence that he denied wrongdoing in the telephone conversation between him and T.R. recorded by the police. Finally, he dismisses the evidence of intent provided by the videotapes by arguing the males on the tape were not shown to be underage. While we agree that appellant did not physically threaten T.R. or openly ask him to remove his clothes or engage in sexual activity, the lack of such evidence does not render evidence of specific intent either legally or factually insufficient. To the contrary, a rational jury could infer, beyond a reasonable doubt, that he intended this instance with T.R. to result in sexual activity, as it had in so many previous instances with others. To the extent appellant dismisses the videotape evidence as irrelevant because the males on the tapes were not shown to be underage, we disagree. The age of the males is not dispositive in this case; rather, the relevance of the evidence comes from the fact that appellant engaged in conduct similar to that with T.R. with other males and that conduct resulted in sexual activity. From that evidence, a jury could infer appellant had the same goal in mind with respect to T.R. Finally, appellant's denial of wrongdoing during the taped telephone conversation was a credibility determination for the jury to make. Having reviewed the evidence under the appropriate standards, we conclude it is both legally and factually sufficient to support the element of specific intent. We overrule the first and second issues. In his third and fourth issues, appellant argues the evidence failed to prove that the acts alleged, i.e., removing his pants, fondling himself, and talking in a sexually explicit manner, amounted to more than "mere preparation." As before, he asserts that he never asked T.R. to perform a sexual act and never touched him. Further, he argues he "simply placed his own hand inside his gym shorts and appeared to be `playing with his self'" while watching an adult pornographic movie. The Texas Court of Criminal Appeals has recognized there is an "imaginary line" that separates mere preparatory conduct, which is usually noncriminal, from an act which tends to effect the commission of an offense, which is always criminal conduct. Flournoy v. State, 668 S.W.2d 380, 383 (Tex.Crim.App. 1984); McCravy v. State, 642 S.W.2d 450, 460 (Tex.Crim.App. 1980); Jones v. State, 229 S.W.3d 489, 497 (Tex.App.-Texarkana 2007, no pet.). The fact that an appellant could have taken further actions without actually committing the offense does not act so as to render his actions nothing more than mere preparation. See Gibbons v. State, 634 S.W.2d 700, 706-07 (Tex.Crim.App. 1982); Jones, 229 S.W.3d at 498. Where the imaginary line is to be drawn depends on the nature of the crime attempted and must be considered on a case-by-case basis. Jones, 229 S.W.3d 497. That appellant could have taken additional acts does not render the evidence nothing more than mere preparation. Moreover, the fact that he did not expressly ask T.R. to engage in sexual conduct or touch him does not diminish the impact of the numerous other actions taken. The evidence showed that appellant picked up T.R. at a bus stop; got his telephone number by offering him a job; called him two days later saying he needed his help to pick up a car from the shop; engaged T.R. in a sexually explicit conversation during the drive; took him to his apartment instead of the shop; called him to his bedroom, where he played a pornographic movie and continued to engage in a sexually explicit conversation; stripped down to a muscle shirt and pair of shorts; and laid across the bed, with his head two feet from T.R., and fondled himself in front of T.R. From this evidence, a jury could reasonably conclude beyond a reasonable doubt that appellant's acts, as alleged in the indictment, amounted to more than mere preparation and tended to effect commission of the offense of sexual assault. In fact, the jury could have concluded that the only reason appellant failed to achieve his intended criminal objective was T.R.'s quick-thinking in pretending he lost his keys so that he could flee the apartment. We conclude the evidence is legally and factually sufficient to show that appellant crossed the "imaginery line" between mere preparation and an attempt to commit sexual assault. We overrule the third and fourth issues. In his fifth and sixth issues, appellant argues the trial court erred in admitting extraneous acts evidence at guilt-innocence. Specifically, he argues the admission of a detective's testimony regarding acts depicted in the videotapes seized from appellant's apartment and admission of a representative sample of one of the videotapes violated Texas Rules of Evidence 403 and 404(b). In its Notice of Extraneous Offenses, the State described the conduct depicted on the tapes as follows:
. . . on 31 different occasions with 31 different unidentified males[,] the defendant laid on the bed in his apartment, removed his pants or shorts, fondled his genitals through his undergarments while watching television with the unidentified males and perceivably speaking in a sexually explicit manner, on all 31 occasions different occasions, these said acts resulted in the defendant engaging in sexual conduct and contact with each male — all of which is evidenced by the videotapes made by the defendant. . . .In a hearing outside the presence of the jury, the prosecutor told the court that Detective Joseph Corden reviewed the videotapes seized at appellant's apartment and found thirty-one scenes, in fifteen of the tapes, in which appellant engaged in conduct with other males, similar to the conduct he engaged in with T.R., and in each instance, the conduct resulted in sexual activity. In particular, appellant was seen with a male in his bedroom; appellant appeared to be speaking in a sexually explicit manner; appellant laid on the bed and fondled himself; and sexual conduct occurred, whether it was "deviant sexual intercourse, masturbation, lewd exhibition of the genitals [and] sexual contact." The prosecutor acknowledged that the males on the tapes were post-puberty, but did not know their exact ages. The trial court ruled that Detective Corden's testimony was admissible as well as one scene from one tape as a representative sample to show appellant's specific intent to engage T.R. in sexual conduct. We review a trial court's ruling on admission of evidence for an abuse of discretion. Saucedo v. State, 129 S.W.3d 116, 120 (Tex.Crim.App. 2004). While evidence of other crimes, wrongs or acts is not admissible "to prove the character of a person in order to show action in conformity therewith," it may be admissible for another purpose, such as intent. Tex. R. Evid. 404(b); Berry, 233 S.W.3d at 858. When the defendant's intent to commit the offense charged is at issue, the relevance of an extraneous offense derives from the doctrine of chances — the instinctive recognition of that logical process which eliminates the element of innocent intent by multiplying instances of the same result until it is perceived that this element cannot explain them all. Cantrell v. State, 731 S.W.2d 84, 90 (Tex.Crim.App. 1987); Plante v. State, 692 S.W.2d 487, 492 (Tex.Crim.App. 1985); Wiggins v. State, 778 S.W.2d 877, 885 (Tex.App.-Dallas 1985, pet. ref'd); Brown v. State, 96 S.W.3d 508, 513 (Tex.App.-Austin 2002, no pet.). An unusual or abnormal element might be present in one instance, but the more often it occurs the less likely it is to be the true explanation. Cantrell, 731 S.W.2d at 90; Plante, 692 S.W.2d at 492; Wiggins, 778 S.W.2d at 885; Brown, 96 S.W.3d at 513. If the defendant's conduct is capable of both an innocent and a criminal interpretation, the "doctrine of chances" can be utilized to prove the unlikelihood of the innocent explanation. Wiggins, 778 S.W.2d at 885. For the doctrine to apply, there must be a similarity between the charged and extraneous offenses, since it is the improbability of a like result being repeated by mere chance that gives the extraneous offense probative weight. Plante, 692 S.W.2d at 492. The degree of similarity required, however, is not as great when intent, as opposed to identity, is the material issue. Cantrell, 731 S.W.2d at 90; Brown, 96 S.W.3d at 513. Appellant argues the evidence was not "logically relevant" to establish specific intent because of the lack of similarity between the extraneous acts and the facts here. In particular, he contends the fact he "had consensual sex with adult males on prior occasions did not tend to prove that he had the specific intent to engage in sexual conduct with a child." The relevance of what is shown on the tapes does not depend on the ages of the males and whether they consented to sexual activity with appellant. Rather, the question is whether the conduct engaged in by appellant that resulted in sexual conduct was sufficiently similar to that engaged in with T.R., such that a fact finder could logically infer appellant intended the same result with T.R. The videotapes showed that appellant engaged in virtually the same conduct as he did with T.R., and in each instance, sexual conduct occurred. Further, this happened repeatedly. Given the similarity between appellant's conduct with T.R. and his conduct with other males on the tapes, as well as the number of times the conduct was repeated, we conclude the evidence was relevant to the issue of specific intent. We overrule the fifth issue. In his sixth issue, appellant contends that even if the evidence was admissible under rule 404(b), it should have been excluded under rule 403. Evidence admissible under rule 404(b) may be excluded under rule 403 if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury. See Tex. R. Evid. 403; Jones v. State, 119 S.W.3d 412, 421 (Tex.App.-Fort Worth 2003, no pet.). When undertaking a rule 403 analysis, a trial court 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, 642 (Tex.Crim.App. 2006). When evaluating a trial court's determination under rule 403, a reviewing court is to reverse the trial court's judgment "rarely and only after a clear abuse of discretion," because the trial court is in a superior position to gauge the impact of the relevant evidence. Mozon v. State, 991 S.W.2d 841, 847 (Tex.Crim.App. 1999); Jones, 119 S.W.3d at 421-22. For the most part, appellant did not contest his conduct in this case; rather, the contested issue was his intent. As previously explained, evidence regarding the videotapes was highly probative of that intent, which was a material issue in the State's case, and corroborated T.R.'s belief that appellant wanted to have sex with him. The evidence was particularly compelling in light of the fact that appellant did not verbally express his intent and the fact that T.R. fled the apartment before appellant could put his intent into effect. There was no similar evidence that the State could offer. In balancing the inherent probative value and the State's need for the evidence against the remaining rule 403 counterfactors, the trial court could have reasonably concluded that the evidence was not unfairly prejudicial nor did it have a tendency to suggest a decision on an improper basis or to confuse or mislead the jury. We note that the "prejudicial" acts depicted on the tapes were the same acts that appellant was alleged to have intended to engage T.R. in. Prior to Detective Corden's testimony, the trial court limited the jury's consideration of the evidence to appellant's intent. Detective Corden's testimony was brief, and the State offered only one scene as a representative sample of the tapes. Considering all of the factors, we conclude the trial court did not abuse its discretion in admitting the evidence over appellant's rule 403 objection. We overrule the sixth issue. In his seventh issue, appellant contends the trial court violated rule 403 by admitting at punishment appellant's medical records showing that he has been HIV positive since 1991. He argues (1) his HIV positive status was of no probative value because there was no evidence anyone had contracted HIV from him, (2) the evidence had the effect of distracting jurors from their role of tailoring an appropriate sentence, and (3) there was no need for the evidence because the State offered other evidence from which the jury could assess an appropriate sentence. During punishment, both the State and the defense may offer evidence as to "any matter the court deems relevant to sentencing." See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2007). Relevancy, in the context of punishment, is different than that contemplated by evidence rule 401 because unlike the guilt/innocence phase where "facts of consequence" are narrowly drawn by the applicable statutes, there are no discrete factual issues to be determined at punishment. See Rogers v. State, 991 S.W.2d 263, 265 (Tex.Crim.App. 1999). Determining what is relevant then should be a question of what is helpful to the jury in determining the appropriate sentence for a particular defendant in a particular case. Id. Even so, rule 403 still applies to evidence offered at punishment. See id. at 266. Evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Id. Unfair prejudice does not mean the evidence injures the opponent's case, which is the central point of offering evidence. Id. Rather, it refers to "an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Id. (quoting Cohn v. State, 849 S.W.2d 817, 820 (Tex.Crim.App. 1993). Evidence might be unfairly prejudicial if, for example, it arouses the jury's hostility or sympathy for one side without regard to the logical probative force of the evidence. Gigliobianco, 210 S.W.3d at 641. The trial court admitted appellant's medical records, which showed he was diagnosed with HIV in 1991. That means appellant knew of his HIV status at the time he attempted to engage T.R. in sexual conduct. Such evidence is relevant as a circumstance of the offense that the jury could consider in assessing punishment. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (listing circumstances surrounding the convicted offense as type of evidence admissible at punishment); see also Hunter v. State, 799 S.W.2d 356, 360 (Tex.App.-Houston [14th Dist.] 1999, no pet) (whether defendant infected with AIDS virus relevant at punishment stage for aggravated sexual assault). Moreover, the evidence showed that from January 1999 to the time his apartment was searched by the police, appellant engaged in often-unprotected sex with some 131 unidentified males, conduct that reflects appellant's willingness to expose others to the virus and his reckless disregard for the lives of others. That there was no evidence that anyone actually contracted HIV from appellant does not diminish that fact. While this evidence may indeed be prejudicial, we do not believe it is unfairly so nor do we believe, under the circumstances, that it distracted the jury from fashioning an appropriate sentence in this case. Rather, it was a viable concern at the punishment stage of a trial for attempted sexual performance of a child. As for his suggestion that the State did not need the evidence because of other evidence of extraneous bad acts, we disagree. The State presented evidence of convictions for felon in possession of a firearm in 1992, aggravated robbery in 1988, and misdemeanor possession of a firearm in 1987. Given the age of the convictions, we cannot say they would carry significant weight. Additionally, the State offered the testimony of a twenty-three-year-old man, who said that when he was fifteen, appellant made sexual advances towards him (again at a time when appellant knew he was HIV positive.) This evidence reflects appellant's tendency towards sexually predatory conduct, which, if anything, enhances the probative value of appellant's HIV positive status. We conclude the trial court did not abuse its discretion in admitting into evidence appellant's medical records. We overrule the seventh issue. In his eighth issue, appellant contends the trial court abused its discretion in denying his motion to suppress the videotape evidence and testimony because the videotapes were illegally seized. Specifically, he argues that, in violation of Franks v. Delaware, 438 U.S. 154 (1978), the investigating detective intentionally or recklessly included false information in the probable cause affidavit supporting the warrant. Further, he asserts that when that information is excised, the affidavit fails to support probable cause to show an offense had been committed. In Franks, the United States Supreme Court held that if a defendant established by a preponderance of the evidence that a false statement made knowingly, intentionally, or with reckless disregard for the truth was included in a probable cause affidavit, and if it was material to establish probable cause, the false material must be excised from the affidavit. Franks, 438 U.S. at 156; Harris v. State, 227 S.W.3d 83, 85 (Tex.Crim.App. 2007). If the remaining content of the affidavit does not then still establish sufficient probable cause, the search warrant must be voided and the evidence resulting from that search excluded. Franks, 438 U.S. at 155-56; Harris, 227 S.W.3d at 85. This exclusionary rule does not extend to instances in which the police are merely negligent in collecting the facts alleged in the affidavit. Franks, 438 U.S. at 170. The affidavit must make a truthful showing of probable cause "in the sense that the information put forth is believed or appropriately accepted by the affiant as true." Id. at 165. A misstatement in an affidavit that is the result of simple negligence or inadvertence, as opposed to reckless disregard for the truth, will not make the warrant invalid. See Dancy v. State, 728 S.W.2d 772, 783 (Tex.Crim.App. 1987). At a Franks hearing, the trial judge is owed great deference as sole fact-finder and judge of the witnesses' credibility. Janecka v. State, 937 S.W.2d 456, 462 (Tex.Crim.App. 1996). The trial court's ruling will be reversed only if it outside the bounds of reasonable disagreement. Id. Detective Patricia San Martino prepared the affidavit in support of the search warrant. In addition to facts regarding how T.R. met appellant and ended up at his apartment, the affidavit also set out the following details:
The complainant entered the suspect's bedroom and sat on the bed. . . . The suspect began asking more questions relating to the complainant's sexual experiences. The suspect then removed his clothes down to a pair of grey tight shorts and white muscle shirt and laid on the bed next to the complainant. The suspect then got up from the bed, walked to the bedroom closet and sorted through several video cassette tapes. The suspect then put one of the tapes into a video cassette player next to the television. The complainant described the movie as a "Porno" which contained scenes of a black adult male and adult white female in different stages of nudity engaged in sexual intercourse and oral sex. As the complainant and suspect were watching the pornographic movie the suspect exposed his penis to the complainant and began to masturbate. The suspect then asked the complainant to stand in front of him. The complainant became nervous and told the suspect that he thought he had lost his keys outside. . . .Appellant argues San Martino fabricated the italicized portion of the affidavit. At the hearing, San Martino testified that information for the affidavit came from her interviews with T.R. and his parents. She testified that T.R. and both parents told her that appellant exposed himself to T.R. and masturbated. She did not, however, have any written interview notes that contained that specific information. She also acknowledged that T.R. did not include it in his affidavit. However, she pointed to T.R.'s father's affidavit in which he said appellant "started to play with his thing" and T.R.'s mother's affidavit in which she said appellant "undressed only to his gym shorts and began to grope, play with his penis." Detective Vidal Olivarez testified he assisted San Martino in the investigation. He testified he spoke with San Martino regarding her interview with T.R. and he personally interviewed T.R. about twelve days after the incident. Based on the conversation with San Martino and his interview with T.R., Olivarez believed appellant had exposed his penis and masturbated in front of T.R. Finally, T.R. testified earlier at trial that he did not tell the police that appellant exposed himself to him or masturbated. However, T.R. read his affidavit to the jury, and in the affidavit, T.R. stated that appellant put his hand in his pants and took his clothes off. In addition, T.R. testified that appellant fondled himself while making sexually explicit comments. Although T.R. testified to the contrary, both detectives testified that he reported that appellant exposed himself and masturbated. Additionally, San Martino said she obtained the same information from T.R.'s parents. As the sole judge of the witnesses' credibility and the weight to be given their testimony, we conclude the trial court could have believed this evidence and determined the statement in the affidavit was not false. Alternatively, the trial court could have believed that while the information was not technically accurate, the detectives did not knowingly, intentionally, or with reckless disregard for the truth include a false statement in the affidavit. T.R.'s affidavit given to the police asserted that appellant put his hands in his pants and took off his clothes. His parents' affidavits alleged that appellant groped or played with his penis. Even if we assume that by fondling, groping, or playing with his penis, appellant was not masturbating, and that by removing his clothes, he did not expose himself, the trial court could have believed the detectives simply misunderstood what T.R. and his parents reported. Clearly, the information in the affidavit had a factual basis; it was not contrived from no facts. Under the circumstances, we conclude the trial court's ruling to deny appellant's motion to suppress is not outside of the zone of reasonable disagreement. We overrule the eighth issue. In his ninth issue, appellant argues the trial court erred in admitting the videotapes and related items into evidence at punishment. Within this issue, appellant argues the evidence was illegally seized and relies on his argument in issue eight. Given our disposition of issue eight, we reject the ninth issue. We affirm the trial court's judgment.