Opinion
Nos. 05-04-01661-CR, 05-04-01662-CR
Opinion Filed May 30, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F03-35602-QU, F03-35603-QU. Affirmed.
Before Justices WHITTINGTON, FRANCIS, and LANG.
OPINION
Robert Bryan Irvin entered open guilty pleas before the jury to two offenses of aggravated sexual assault. The jury convicted him and assessed punishment for each offense at confinement for seventy-five years and a $7,500 fine. In his sole issue on appeal, appellant contends the trial court erred in admitting into evidence pornographic photographs from his private collection because their probative value was substantially outweighed by their prejudicial effect on the jury. We affirm. Appellant is a distant relative of the nine-year-old complainant. In July 2003, the complainant's family took appellant in as the family's live-in babysitter. In September 2003, the complainant made an outcry to her godmother and then to her mother. The complainant described numerous sexual offenses appellant committed against her. The complainant told her mother and godmother that appellant used his computer to show her both child and adult pornography, a video of her taking a shower, and nude photographs of her lying in bed. When questioned by the police, appellant admitted the offenses and signed a detailed, written confession. Appellant told officers that the complainant initiated the sexual contact and voluntarily participated. Appellant asserted that he only kept child pornography depicting children who appeared to him to be enjoying the sexual activities, and he thought consensual sexual contact between adults and children should be legalized. When police officers searched appellant's room, they discovered a cache of over 2,000 pornographic digital images stored on a CD-ROM disk. A file on the disk containing child pornography was password-protected. Police officers who reviewed the images testified at trial that the images depicted the victim performing sex acts and undressing, children engaging in sexual acts, and appellant inserting objects into his anus. One detective described appellant's child pornography collection as the largest that he had ever seen. The officer with the digital forensic unit who conducted the forensic analysis of the disk described appellant's collection as a "pretty sizeable collection." The exhibits at issue were admitted during the punishment phase of trial, over appellant's objection, as State's exhibits 10 through 51. Exhibit 28 is not discernible in our record and there is no copy of exhibit 34. Appellant has not complained about the defect in the record, and we conclude the existing 39 exhibits in the record suffice for our review of appellant's contention. The exhibits break down into three groups. Exhibits 10 through 30 depict sex acts involving children other than the complainant. Exhibits 31 through 38 depict appellant engaged in sexual activities by himself. Exhibits 39 through 51 depict the complainant nude or partially undressed and, in some photographs, engaged in sexual activity with an unidentifiable adult male. Appellant contends that in light of his guilty pleas, written confession, and the descriptive testimony of the police officers regarding his pornography collection, the probative value of the exhibits was outweighed by their prejudicial effect on the jury. During the punishment phase of trial, the trial court has broad discretion to admit any evidence that it "deems relevant to sentencing" including evidence of extraneous crimes, other bad acts, and character evidence. See Tex. Code Crim. Proc. Ann. Art. 37.07, § 3(a) (Vernon Supp. 2005); Jones v. State, 111 S.W.3d 600, 607 (Tex.App.-Dallas 2003, pet. ref'd). Evidence is relevant if it assists the fact finder to assess an appropriate sentence. See Rogers v. State, 991 S.W.2d 263, 265 (Tex.Crim.App. 1999). However, even relevant evidence should be excluded if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. See id. at 266. Photographs are relevant if there are elements of the photographs that are genuinely helpful to the jury. See Erazo v. State, 144 S.W.3d 487, 491-92 (Tex.Crim.App. 2004). The photograph should be excluded if the emotional and prejudicial aspects substantially outweigh the helpful aspects. Id. In making this determination, we consider the following non-exclusive set of factors: (1) the probative value of the photographs; (2) the potential of the photographs to impress the jury in some irrational, yet indelible way; (3) the time needed to develop the evidence; (4) the State's need for the evidence; (5) the number of photographs; (6) the size of the photographs; (7) whether the photographs are in color or in black and white; (8) whether the photographs are gruesome; (9) whether bodies depicted are clothed or naked; and (10) whether bodies depicted have been altered by autopsy. See id. at 489. We review the trial court's determination to admit the photographs under an abuse-of-discretion standard. Rayford v. State, 125 S.W.3d 521, 529 (Tex.Crim.App. 2003). The trial court does not abuse its discretion as long as its determination lies within the zone of reasonable disagreement. Id. Initially, we note that the photographs are small in size, are not gruesome, and did not require much time to present at trial. The copies of the photographs in the record are in black and white, but it is reasonable to assume that the original exhibits were in color. The photographs depict individuals who are either naked or partially undressed. Although not gruesome, the photographs are disturbing. The State responds that the trial court did not abuse its discretion in admitting into evidence exhibits ten through thirty because the photographs were highly probative of appellant committing the extraneous offense of possession of child pornography and reflect upon appellant's character. See Tex. Pen. Code Ann. § 43.26(a), (b)(3)(B) (Vernon 2003) (outlawing possession of child pornography). See also Henderson v. State, 29 S.W.3d 616, 626-27 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd) (concluding probative value of extraneous offense evidence not substantially outweighed by prejudicial effect of evidence). We agree with the State. In arguing for the probity of the photographs, the State points out that the complainant told her mother and godmother that appellant had shown her pornographic photographs on his computer. Thus, not only do the photographs reflect appellant's character and moral culpability by showing him committing the extraneous offense of possession of child pornography, but they also are part of the res gestae of the offenses against the complainant. We conclude that the probative value of showing the jury a sample of the type of material appellant showed the complainant was essential to the jury's understanding of the enormity of appellant's offenses, and thus outweighed the photographs' prejudicial effect. We cannot conclude the trial court's determination to admit exhibits 10 through 30 into evidence abused the trial court's discretion. Regarding exhibits 39 through 51, we agree with the State's assessment that the probative value of the photographs substantially outweighs their prejudicial effect. The photographs are highly probative in that they were found on appellant's password-protected CD-ROM and thus constitute direct evidence of appellant's offenses against the complainant and allow the jury to place his offenses into context. Although the photographs are certainly prejudicial, the trial court does not abuse its discretion in admitting prejudicial evidence that merely reflects what appellant has done. See Sonnier v. State, 913 S.W.2d 511, 519 (Tex.Crim.App. 1995). Finally, as the State contends, the photographs also show that, in addition to sexually assaulting the complainant, appellant used her to commit extraneous offenses of possession of child pornography. On balance, we cannot conclude that the trial court abused its discretion in admitting these photographs into evidence during the punishment phase of trial. See Fowler v. State, 126 S.W.3d 307, 311 (Tex.App.-Beaumont 2004, no pet.) (trial court acted within zone of reasonable disagreement in admitting evidence of long-past extraneous aggravated sexual assault during punishment phase of aggravated sexual assault case). Regarding exhibits 31 through 38, the photographs do, as the State contends, reflect adversely upon appellant's character and thus assist the jury in assessing his personal responsibility and moral guilt. Moreover, although the photographs have less probative value than the other two categories of exhibits at issue, these exhibits are also less prejudicial to appellant. Under the circumstances of this case, we cannot conclude the trial court's determination to admit a limited number of photographs showing appellant performing sexual acts upon himself lies outside the zone of reasonable disagreement. Accordingly, we conclude the trial court did not abuse its discretion in admitting into evidence exhibits 31 through 38. Finally, having concluded that the trial court did not abuse its discretion in admitting into evidence each category of exhibits, we further conclude the trial court did not abuse its discretion in admitting into evidence the entire set of exhibits. The police found over 2,000 pornographic images on appellant's CD-ROM. The State selected only 41 images to display to the jury. We conclude that the probative value to the jury of viewing this small sample of appellant's collection is not substantially outweighed by the danger of unfair prejudice to appellant. Accordingly, we overrule appellant's sole issue. We affirm the trial court's judgment.