No. 14-05-00862-CR
Memorandum Opinion filed August 10, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 180th District Court, Harris County, Texas, Trial Court Cause No. 1007651. Affirmed.
Panel consists of Chief Justice HEDGES and Justices YATES and GUZMAN.
LESLIE BROCK YATES, Justice.
Appellant Richard Neal Cockrell was convicted of aggravated sexual assault of a child and sentenced to ten years' imprisonment. In four issues, appellant claims the trial court reversibly erred in excluding evidence demonstrating his defensive theory of impossibility. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On July 3, 2004, K.L., then thirteen years old, was visiting a family with whom she is friends at a store the family owns. Appellant, a heavyset man and friend of the same family, was also present at the store. During K.L.'s visit, appellant drove his Geo Tracker to a nearby gas station for sodas, and K.L. rode alone with him. According to K.L., on the way to the gas station, appellant pulled over, unbuckled their seat belts and her belt, kissed her face, and told her he loved her. He then unbuttoned her pants, pulled them partially down, and digitally penetrated her vagina. A couple of minutes later, he pulled her pants further down to her knees and undid his own pants. Appellant "moved over on [her] side of the car" and penetrated her vagina with his penis. K.L. said she "froze" during the assault but at some point moved away so her back was against the car door. She also said she remained seated in the passenger's seat and her feet were on the floorboard. After the sexual assault, appellant and K.L. drove to the gas station and returned to the store. K.L. said the trip took about fifteen minutes and that afterward she "pretended nothing happened." About three months later, K.L. disclosed the sexual assault, and the State charged appellant with aggravated sexual assault of a child. Appellant denied that the sexual assault occurred and claimed it was impossible for him to have assaulted K.L. as she described because of his size and their positions in the car. At trial, he called Brian Benken, a criminal defense attorney and licensed private investigator, who he had hired to document his defensive theory of impossibility. Benken testified that he had videotaped appellant climbing from the driver's seat to the passenger's seat of a model Geo Tracker similar to appellant's and had represented K.L. using an adult actress approximately her size. After videotaping appellant, Benken took a number of still photographs while appellant repeated the demonstration. During voir dire examination by the State, Benken said he relied on police reports and K.L.'s videotaped statement, which were not admitted into evidence, in making these exhibits. Benken claimed the exhibits were "[a]s accurate as [he] could get . . . with the information provided." He admitted he had no actual knowledge of the events on July 3, 2004 and could not say the exhibits accurately re-enacted what happened. The State objected to the videotape on the basis of relevance and unfair prejudice, and the trial court sustained the objection. Appellant asked the court to reconsider, claiming the videotape matched K.L.'s courtroom testimony "exactly," and even if it did not, minor discrepancies are permissible. The trial court again sustained the State's objection. Appellant also offered thirty-six photographs of the demonstration. The State objected on the basis of unfair prejudice, cumulativeness, and relevance. The trial court excluded all but a photograph of appellant standing on a digital scale reading "277.5" and a photograph of him sitting alone in the Tracker's driver's seat. Also at trial, appellant's counsel advised the trial court that the model Tracker was parked across the street and requested a jury view, stating he wanted "to have the jury go down there and take a look at that Tracker and have [appellant] demonstrate how he can climb across the seat into the passenger side." The trial court denied appellant's request. ANALYSIS
Appellant complains that the trial court erred in excluding the videotape, photographs, and jury view because they were relevant and "not otherwise excludable" under Rule 403 of the Texas Rules of Evidence. He claims their exclusion deprived him of his constitutional right to a fair trial. We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Ruth v. State, 167 S.W.3d 560, 566 (Tex.App.CHouston [14th Dist.] 2005, pet. ref'd). A trial court must be given wide latitude in its decision to admit or exclude evidence. Theus v. State, 845 S.W.2d 874, 881 (Tex.Crim.App. 1992). We do not disturb the trial court's decision if it is within the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990) (op. on reh'g). Regardless of the trial court's reasons for admitting evidence, we uphold its decision if it is correct under any theory of law. See Santellan v. State, 939 S.W.2d 155, 167 n. 19 (Tex.Crim.App. 1997). To be relevant, evidence must be material and probative. Miller v. State, 36 S.W.3d 503, 507 (Tex.Crim.App. 2001). We will assume, for purposes of this case, that the excluded evidence is relevant. Although relevant, evidence can be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Tex. R. Evid. 403. In conducting a Rule 403 analysis, the trial court should consider the following factors: (1) the inherent probative value of the evidence, (2) the potential that the evidence would impress the jury in some irrational but indelible way, (3) the time the proponent needs to develop the evidence, and (4) the proponent's need for the evidence. Reese v. State, 33 S.W.3d 238, 240B41 (Tex.Crim.App. 2000). A. Exclusion of the Videotape and Photographs Appellant contends the videotape and photographs demonstrate that K.L.'s description of the sexual assault was "not plausible." However, a review of the record shows they did not accurately reflect K.L.'s testimony. In the exhibits, appellant lifts his legs one at a time over the center console — with evident difficulty — and places them on the passenger's floorboard before shifting his entire body to the passenger's side. Although K.L. testified appellant "moved over on [her] side of the car," she said she was "not sure" where his legs were, and she did not testify that he moved his entire body to the passenger's seat. Additionally, the actress in appellant's exhibits moves her back against the corner of the passenger's seat and door. From this position, she indirectly faces the driver's seat. K.L. testified her back was to the door, not at the angle suggested in the exhibits. Thus, appellant's demonstration directly contradicted K.L.'s testimony in some respects and supplied details not contained in her testimony. Because these discrepancies relate to a critical matter — appellant's and K.L.'s positioning and movements in the Tracker — the exhibits' probative value is small compared to their potential for unfairly prejudicing the jury in an irrational way. See Rossel v. State, No. 01-03-00906-CR, 2005 WL 327162, at *5 (Tex.App.CHouston [1st Dist.] Feb. 10, 2005, pet. ref'd) (not designated for publication) ("[R]e-enacted . . . defensive issues involving human beings are impossible to duplicate in every minute detail and are therefore inherently dangerous, offer little in substance and the impact of the re-enactment is too highly prejudicial to ensure the State or the defendant a fair trial." (quotation marks omitted)). Moreover, there is a high risk that this evidence would indelibly impress the jury with an erroneous depiction of K.L.'s account of the assault. See Harris v. State, 152 S.W.3d 786, 792B93 (Tex.App.CHouston [1st Dist.] 2004, pet. ref'd) (upholding trial court's exclusion of videotapes that recreated crime due to concern that discrepancies could mislead and confuse jury). Finally, the trial court admitted appellant's testimony regarding the re-enactment as well as twelve photographs of the Tracker, a photograph of appellant seated in its driver's seat, and a photograph of appellant on a scale. Thus, appellant had a decreased need for the excluded videotape and photographs. Based on the above factors, we conclude the trial court's exclusion of the videotape and photographs falls within the zone of reasonable disagreement and does not constitute an abuse of discretion. Additionally, appellant claims any discrepancies in the demonstrations and K.L.'s testimony go to the weight of the evidence and not its admissibility. In support of this argument, he cites Wright v. State, 178 S.W.3d 905 (Tex.App.CHouston [14th Dist.] 2005, pet. ref'd), and Horn v. Hefner, 115 S.W.3d 255 (Tex.App.CTexarkana 2003, no pet.), which note that minor dissimilarities between a portrayal of events and the actual events do not render them substantially dissimilar and the portrayal thus inadmissible. See Wright, 178 S.W.3d at 922B23 ("[I]t is not necessary that the demonstration be identical to the event in every respect."); Horn, 115 S.W.3d at 256 (stating that conditions depicted on a videotaped experiment and the actual event being litigated "do not need to be identical"). However, we noted in Wright that the inaccuracy in question related to an "insignificant fact." Wright, 178 S.W.3d at 922. Here, by contrast, appellant's and K.L.'s exact positioning and movements were critical matters, distinguishing this case from Wright. Moreover, Horn pointed out that the trial court has discretion to determine whether dissimilarities warrant exclusion of evidence. Horn, 115 S.W.3d at 257. The fact that the discrepancies may be small — for example, whether the model placed her back against the car door directly or indirectly — does not necessarily render them insignificant. Minor, almost imperceptible shifts in a person's body position can affect range of motion. Because appellant's proffered evidence contradicted some of K.L.'s account and supplied information she did not provide that related to critical matters, we find the trial court's exclusion of this evidence does not constitute an abuse of discretion. We overrule appellant's issues regarding the excluded videotape and photographs. B. Denial of Appellant's Request for a Jury View Appellant also complains that the trial court erred in denying his request for a jury view of his attempt to climb from the driver's to the passenger's seat. The decision whether to grant or deny a jury view is within the trial court's discretion. Mauricio v. State, 153 S.W.3d 389, 393 (Tex.Crim.App. 2005). In exercising its discretion, the trial court must consider the totality of the circumstances, including, but not limited to, the timing of the request for the jury view, the difficulty and expense of arranging it, the importance of the information to be gained by it, the extent to which the information has been or could be secured from more convenient sources, and the extent to which the place or object to be viewed has changed in appearance. Id. Considering the totality of the circumstances, we find the trial court did not abuse its discretion in denying appellant's request for a jury view. Although his request was timely and the jury view involved little difficulty or expense, appellant sought through the jury view "to demonstrate his defense that this is impossible so the jury can see — actually see him attempt to do what [K.L.] claims he did." As discussed above, appellant's prior re-enactment did not accurately represent K.L.'s testimony regarding both her and appellant's body positioning and movements during the crime, and there is no indication appellant intended to alter his live demonstration. Thus, his demonstration would have risked misleading the jury, and the trial court did not abuse its discretion in denying appellant's request. We overrule appellant's issue regarding the jury view. We affirm the trial court's judgment.