William Andrew Allen v. State

Opinion issued June 7, 2012

In The

Court of

Appeals

For The

First District

of Texas

————————————

NOS. 01-10-00652-CR; 01-10-00653-CR;

01-10-00654-CR; 01-10-00655-CR; 01-10-00656-CR; 01-10-00657-CR; 01-10-00658-CR;

01-10-00659-CR; 01-10-00660-CR; 01-10-00661-CR; 01-10-00662-CR

———————————

William Andrew Allen , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 155th District Court

Waller County, Texas

Trial Court Case Nos. 12,976; 12,977; 12,978; 12,979; 12,980;

12,981; 12,982; 12,983; 12,984; 12,985; 12,986

MEMORANDUM OPINION

Appellant

William Andrew Allen was convicted by a jury on eight counts of indecency with

a child, [1] one count of sexual assault

of a child, [2]

and two counts of aggravated sexual assault of a child. [3] Punishment was assessed at 40 years’ confinement

on both counts of aggravated sexual assault, and 20 years’ confinement on each

count of indecency with a child and sexual assault of a child. The trial court ordered the sentences to run

concurrently.

Appellant timely appealed, seeking

a new trial because the trial court allegedly erred by admitting certain

evidence. We affirm.

BACKGROUND

In a consolidated trial, appellant’s

three step-daughters each

testified in detail about being sexually molested by appellant. The State also presented several other

witnesses who were familiar with the complainants or involved in the sexual-abuse

investigation, including a CPS investigator, a CPS case worker, the program

director of the Children’s Advocacy Center, a forensic interviewer with the

Children’s Advocacy Center, a clinical psychologist with the Children’s Crisis

Care Center, an assistant principal from one of the complainant’s middle

school, the complainants’ great aunt, a Sheriff’s Department Lieutenant

specializing in crimes against children, a board certified Child Abuse Pediatrician,

a Licensed Professional Counselor Intern, and an inmate who had spent time in

jail with the appellant.

The appellant testified that he did not molest the complainants, and

several people testified on his behalf, including the complainants’ mother,

grandmother, and aunt. As no

sufficiency-of-the-evidence challenge has been advanced, we need not chronicle

all of this evidence in detail. Instead,

we will focus on the evidence relevant to our analysis of the appellant’s

evidentiary challenges.

ISSUES ON APPEAL

Appellant raises three issues on

appeal:

(1)

“Whether the court erred in allowing the admission of a pornographic

video tape over objection under Rule 403 that the probative value, if any, was

outweighed by the danger of unfair prejudice.”

(2)

“The trial court erred in allowing the State’s witness, Assistant

Principal, Rose Uherek to testify that the Defendant’s step child, a

complainant in his case, often came to school with bad hygiene over objection

that said evidence was not relevant.”

(3)

“The trial court erred in allowing the State’s witness, Assistant

Principal, Rose Uherek to testify that the defendant’s step child, a

complainant in this case, often came to school with bad hygiene over objection

that the probative value, if any, was outweighed by the danger of unfair

prejudice.”

APPLICABLE LAW

A. Relevance

Evidence is “relevant” if it has

“any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without

the evidence.” Tex. R. Evid . 401.

Relevancy is “predicated on a subjective

relationship between the proffered evidence and a fact that is of consequence

to the determination of the action.” Carter v. State , 851 S.W.2d 390, 391

(Tex. App.—Fort Worth 1993, pet. ref’d). Evidence that is not relevant is not

admissible. Tex. R. Evid . 402. A court’s ruling on the relevance of evidence

is reviewed for an abuse of discretion. Fox v. State , 115 S.W.3d 550, 558 (Tex.

App.—Houston [14th Dist.] 2002, pet. ref’d).

B. Rule 403

Texas Rule of Evidence 403

provides: “Although relevant, evidence may 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.” In other words, “[r]elevant evidence is

generally admissible, but it is properly excluded under Rule 403 when its

probative value is substantially outweighed by the danger of unfair prejudice.” Casey

v. State , 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). “In keeping with the

presumption of admissibility of relevant evidence, trial courts should favor

admission in close cases.” Id . (citing Montgomery v. State , 810 S.W.2d 372, 389 (Tex. Crim. App. 1990)).

The term “‘probative value’ refers

to the inherent probative force of an item of evidence—that is, how strongly it

serves to make more or less probable the existence of a fact of consequence to

the litigation—coupled with the proponent’s need for that item of evidence.” Gigliobianco

v. State , 210 S.W.3d 637, 641 (Tex. Crim. App. 2006). “‘Unfair prejudice’ refers to a tendency to

suggest decision on an improper basis, commonly, though not necessarily, an

emotional one.” Gigliobianco , 210 S.W.3d at 641 (citing State v. Mechler , 153 S.W.3d 435, 440 (Tex. Crim. App. 2005)). “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.” Casey ,

215 S.W.3d at 880 .

When conducting the balancing test

under Rule 403, the trial court determines whether the probative value of the

evidence is substantially outweighed by one of the following countervailing

considerations listed in the rule. See,

e.g. , Casey , 215 S.W.3d at 879 . The trial court is given wide latitude in

weighing the concerns of unfair prejudice under Rule 403. See

Mozon v. State , 991 S.W.2d 841 , 846–47 (Tex. Crim. App. 1999); Montgomery , 810 S.W.2d at 391–92. In reviewing the trial court’s balancing test

determination under rule 403, we presume that the probative value of the

evidence outweighs any prejudicial effect. Montgomery ,

810 S.W.2d at 391 . We reverse the trial

court’s ruling “rarely and only after a clear abuse of discretion.” Mozon ,

991 S.W.2d at 847 (quoting Montgomery ,

810 S.W.2d at 392 ).

C. Harm Analysis

If the court determines on appeal

that the trial court erred in the admission or exclusion of evidence, it then

must determine whether such error mandates reversal. Fox ,

115 S.W.3d at 563 . In a case such as

this one, when the appellant does not argue that any error was constitutional,

the court assesses whether it is reversible error because it affected appellant’s

substantial rights. Tex. R. App. P .

44.2(b) (“Any other error, defect, irregularity, or variance that does not

affect substantial rights must be disregarded.”); Johnson v. State , 43 S.W.3d 1, 4 (Tex. Crim. App. 2001) (“The

appropriate standard of harm is to disregard an error unless a substantial

right has been affected.”). Error affects

a substantial right when it has a “substantial and injurious effect or

influence in determining the jury’s verdict.”

Johnson , 43 S.W.3d at 4 . The Court of Criminal Appeals instructs us to

look at the record as a whole in making this determination:

In assessing the likelihood

that the jury’s decision was adversely affected by the error, the appellate

court should consider everything in the record, including any testimony or

physical evidence admitted for the jury’s consideration, the nature of the

evidence supporting the verdict, the character of the alleged error and how it

might be considered in connection with other evidence in the case. The

reviewing court might also consider the jury instruction given by the trial

judge, the State's theory and any defensive theories, closing arguments and

even voir dire, if material to appellant’s claim.

Morales v.

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

PORNOGRAPHIC VIDEO TAPE

State’s Exhibit 6 was a picture of

a VHS tape with the title “Adam and Eve, Red Light District with Girls.”

Officer Brian Cantrell testified that the tape contained pornographic material

and that he found it on a desk in appellant’s bedroom. He further testified that the tape was

confiscated during a search of appellant’s house for evidence to corroborate

the complainants’ outcry statements. On

cross-examination, Office Cantrell clarified that the tape contained only adult

pornography.

When Exhibit 6 was introduced,

appellant’s counsel objected to both relevance and undue prejudice:

State’s Exhibit Number 6, Judge, I would

object to it as not being relevant and probative value, if any, is outweighed

by the danger of unfair prejudice.

The State responded that the tape corroborates one

of the complainants’ statements:

Your Honor, Lieutenant Cantrell stated that

when they were going to execute the search warrant that they were looking for

things that corroborated what the outcry or the victim’s statements were, and

this is one of the pictures that were found that were taken in the house that

corroborates what the victim stated was inside the house.

Noting that it was for the jury “as to whether it

corroborated or not,” the court overruled the appellant’s objection to the

picture of the VHS tape.

In his first point of error,

appellant argues that the probative value of the photograph of the pornographic

tape was outweighed by the danger of unfair prejudice because the tape “carried

strong character implications.” He

points out that he is “alleged to have committed sexual assault on children,”

but that the court admitted into evidence “a pornographic video of unrelated

adults having sex,” which only involved “pornographic actors and did not

involve either the defendant or any of the alleged victims.” This tape, he contends, “could easily

‘arouse[] 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 640 – 41. He stresses that he had a right to be tried

only on the crimes charged, not “extraneous acts” that might meet the jury’s

disapproval.

The appellant acknowledges the

State’s argument that the presence of a pornographic tape corroborated one complainant’s testimony that appellant

forced her to watch pornography, but notes that “neither in the child’s

testimony or in Officer Cantrell[’s] did he ever say that the child identified

this particular tape as one she viewed.”

Given this, and given that “all three child witnesses and the outcry

witness testified” as to the complainants’ allegations, appellant argues “the

state’s need for the evidence was outweighed by danger of unfair prejudice and

the potential harm to the defendant of the pornographic tape.”

In response, the State emphasizes

the considerable discretion afforded to trial courts in evidentiary decisions

that “should not be reversed unless th[e] ruling falls outside of the ‘zone of

reasonable disagreement,’ Salazar v.

State , 38 S.W.3d 141 , 153 – 54 (Tex.

Crim. App. 2001), even if the trial court gives the wrong reason for [its]

decision so long as the decision is correct on any theory of law applicable to

the case.” Osbourn v. State , 92

S.W.3d 531, 538 (Tex. Crim. App. 2002).

Here, the State argues, one of the

complainants testified that appellant made her watch pornographic movies with

him and would make her try to engage in the same sexual acts portrayed in the

movie. While she did not testify to the

movie introduced being one of the movies she watched with appellant, the State

contends that because there was testimony that appellant watched pornographic

videos with one of his step-daughters before sexually assaulting her, admitting

the picture of pornographic video found in appellant’s room had some relevance

to the issues for the jury to decide.

Finally, according to the State,

given the other evidence related to appellant’s viewing of pornographic

materials, “[a]ny prejudicial effect, if there is any shown at all, did not

affect the defendant’s right to a fair trial and not have an injurious effect

or influence on the jury’s verdict.” The

State also notes that appellant “received a limiting instruction in the charge

to the jury.” [4]

The jury was not shown the contents

of the video tape at issue. It was shown

a picture of the tape showing the title “Adam and Eve, Red Light District with

Girls,” and Office Cantrell testified that it contained adult pornography. Thus, the issue is not whether anything

particular on the tape was unduly prejudicial but, rather, whether the fact

that appellant possessed adult pornography would “arouse[] 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 640 – 41. We conclude, viewing the record as a whole, that

the trial court did not commit reversible error by admitting the picture of the

pornographic video tape.

It is well settled that “Rule 403

requires an admissible photograph to possess ‘some probative value and that its

probative value not be substantially outweighed by its inflammatory nature.’” Krause

v. State , 243 S.W.3d 95, 105 (Tex. App.—Houston [1st Dist.] 2007, pet.

ref’d) (quoting Santellan v. State ,

939 S.W.2d 155, 172 (Tex. Crim. App. 1997)).

To make this determination, we “consider these general rule 403 factors:

(1) the probative value of the evidence; (2) the potential to impress the jury

in some irrational, yet indelible, way; (3) the time needed to develop the

evidence; and (4) the proponent’s need for the evidence.” Erazo v. State , 144 S.W.3d 487, 489 (Tex. Crim. App. 2004).

Probative Value

Here one complainant testified that,

on more than one occasion, appellant made her watch “a sexual movie,” in which

“there would be guys and girls trying to have sex with each other.” [5] She testified that she “would try not to”

watch the movie, because of its sexual nature.

At least once, appellant told her he wanted to try having sex with her

in a way portrayed in the film, and she told him that she did not want to, but

he made her.

Officer Cantrell, a Waller County

Sheriff’s Lieutenant in the crimes-against-persons division, testified that

pornography is often used to groom child victims of sexual crimes:

My experience, grooming basically is employed

by sexual predators, to simplify it, what sexual predators will do is they will

introduce children to maybe certain photographs of that, that are pornographic,

not necessarily child pornography, but in the case of child pornography, what

they will do is they will gauge their reaction to this child pornography, they

often use it as a way to warm the child. Grooming is also referred to as warming the

child, and this is what these images are used for.

Given the complainant’s testimony about the

appellant’s use of pornography in his bedroom immediately before sexually

assaulting her and Office Cantrell’s testimony about the use of pornography in

grooming child sexual assault victims, the picture of a VHS tape containing

pornography found in appellant’s bedroom had some probative value in

corroborating at least one of the complainant’s versions of events.

Prejudicial Effect

“‘Unfair prejudice’ refers to a

tendency to suggest decision on an improper basis, commonly, though not

necessarily, an emotional one.” Casey , 215 S.W.3d at 879 . But, as the Court of Criminal Appeals has

explained, the fact that evidence is detrimental does not render it unfairly

prejudicial.

Unfair prejudice does not arise from the mere

fact that evidence injures a party’s case. Virtually all evidence that a party

offers will be prejudicial to the opponent’s case, or the party would not offer

it. Cohn

v. State , 849 S.W.2d 817, 820 (Tex. Crim. App. 1993). Evidence is unfairly

prejudicial only when it tends to have some adverse effect upon a defendant

beyond tending to prove the fact or issue that justifies its admission into

evidence. United States v. Figueroa ,

618 F.2d 934 (2d Cir. 1980). The

prejudicial effect may be created by the tendency of the evidence to prove some

adverse fact not properly in issue or unfairly to excite emotions against the

defendant. See id .

Casey , 215

S.W.3d at 883 .

The admission of legally possessed

“sex toys and other sexually oriented materials” has been found to constitute

reversible error under Rule 403 in an indecency-with-a-child case in which

“nothing in the record . . . would

connect the sex toys to the State’s allegations of indecency with a

child.” Warr v. State , ___ S.W.3d ___, No. 06-08-00089-CR, 2009 WL 996028 ,

at *4 – 5 (Tex. App.—Texarkana April

15, 2009, no pet.) (erroneous admission of items, used by State to argue that

because of defendant’s “predilection towards sex, things sexual, it’s not a

stretch to see then the extension of that onto the area that we’ve seen with

the [child complainant]” was not harmless).

Balancing and Harm

Appellant complains that the trial

court admitted the pornographic video tape without “performing any type of

balancing test as required under Rule 403.”

But “[w]hen, as in this case, the record is silent as to the trial

court’s balancing of these factors, we presume the trial court conducted the

balancing test.” Bargas v. State , 252 S.W.3d 876, 893 (Tex. App.—Houston [14th

Dist.] 2008, no pet.).

While the tape contained only adult

pornography, its probative value was in the corroboration of the complainant’s

testimony, especially here where the defendant called the complainants’

credibility into question. Moreover, when

there is unobjected-to testimony about the subject-matter of an exhibit, that

can undercut an appellant’s argument as to the unfair prejudicial effect of the

exhibit. E.g. , Kolanowski v. State ,

Nos. 02-10-00163-CR; 02-10-00146-CR, 2011 WL 1797310 , at *4 (Tex. App.—Fort

Worth April 21 2011, no pet.) (mem. op.; not designated for publication). In addition to the admission of the picture

of the pornographic tape, Officer Cantrell provided unobjected-to testimony

about similar materials found on appellant’s computer.

There were several photographs of adult

pornography. There were several

photographs of naked men, naked women, several photographs of adults being two

to three at a time engaging in sexual intercourse.

“Evidence is unfairly prejudicial

only when it tends to have some adverse effect upon a defendant beyond tending

to prove the fact or issue that justifies its admission into evidence.” Casey ,

215 S.W.3d at 883 . Given the probative

value of the pornographic tape, coupled with the non-graphic nature of the

photograph of the tape, the relatively short amount of time the State focused

on the evidence, and the other unobjected-to testimony about similar materials

in appellant’s bedroom, we conclude that the trial court did not abuse its

discretion in concluding that the probative value of the tape was not

outweighed by unfair prejudice. We

overrule appellant’s first point of error.

HYGIENE TESTIMONY

During the State’s direct

examination, Rose Uherek, a middle-school assistant principal, was asked about

“other issues [one of the complainants] might have, like hygiene, for

instance.” In response to appellant’s

objection to relevance, the following exchange took place between the State and

the court:

[The State]: Your Honor, we

are going to be having some testimony later from someone about specific

characteristics of sexual abuse, and —

[The Court]: All right.

If you believe you can connect it later, I will permit the

testimony. Overruled.

Appellant then lodged a Rule 403 objection, arguing

that the probative value, if any, was outweighed by the danger of unfair

prejudice. The court overruled that

objection and permitted the testimony.

A. We did have some issues. I am assuming I can answer? We did

have some issues with [her] urinating on herself.

[The State]: Yes, ma’am.

Q. And other hygiene issues?

A. Yes. When she came to us at the middle school, she would come to

us with a body odor that was very offensive, that we actually allowed her to go

in the nurse’s office and shower. Then we would, we had extra clothes there for

her, and we would actually take the clothes, her clothes down to the locker

room and wash them and then allow her to put them back on, but we let her shower

quite frequently in the nurse’s office at the school.

Q When you say quite frequently, how often would you say that

was?

A. Couple, three times a week. And we did have a conference with

the mother, and that did improve after that.

Fiona Remko, the Program Director of Fort Bend

County’s Children’s Advocacy Center, revisited this topic later, testifying

about “specific characteristics that are commonly amount children who have

experienced sexual abuse.”

They may have trouble with hygiene issues.

They may actually add a lot of weight on, or on the flip side of it, they could

actually lose a lot of weight and a lot of that is just trying to change their

body and how they look so they may appear to be less attractive to somebody.

Maria Peters, a therapist

extensively trained in sexual-abuse cases that sees each of the complainants

weekly, likewise testified to hygiene issues by the same complainant as a

symptom or characteristic of a child who has been sexually abused.

In his second point of error,

appellant argues that Uherek’s testimony about one of the complainant’s bad

hygiene was not relevant. In his third

point of error, he argues that the probative value, if any, of this testimony

was outweighed by unfair prejudice.

A. Relevance

Appellant characterizes the

testimony about his step-daughter’s bad hygiene as extraneous evidence that

“would go to the character of the accused as a bad parent.” He complains that when Uherik testified, “the

state offered only a loose promise to connect [it] later, i.e., to make it

relevant later.” Appellant argues that

this is improper, as the State should be required to demonstrate relevance at

the time the appellant objects to lack of relevance rather than promise to

demonstrate relevance later.

Accordingly, appellant argues, “this evidence should have been excluded

where as here the state offered objectionable testimony without showing it was

then relevant [so] the court erred in admitting it.”

In response, the State argues that

the relevance of Uherek’s testimony was established through the testimony of

both Fiona Remko and Maria Peters demonstrating that bad hygiene is

characteristic of a child sexual-assault victim. The State also contends that the “trial

court has the discretion to grant leeway in the admission of relevant evidence,

allowing the sponsoring party the opportunity to establish relevance through

later testimony.” Thus, the State argues,

there was no clear abuse of discretion by the trial court. We agree.

Appellant does not argue that the

State failed to later demonstrate the relevance of Uherek’s testimony with

testimony from Remko and Peters.

Instead, he argues that the relevance objection to Uherek’s testimony

should have been sustained when made because the State should be required to

establish relevance at the time that evidence objected to. Appellant cites no authority for this

proposition and, in fact, numerous cases recognize that the potentially

irrelevant evidence can be admitted upon the condition that relevance will

eventually be linked. E.g. ,

Fischer v. State , 268 S.W.3d 552, 558 (Tex. Crim. App. 2008); Powell v. State, 898 S.W.2d 821, 829

(Tex. Crim. App. 1994); Davis v. State ,

268 S.W.3d 683, 715 (Tex. App.—Fort Worth 2008, pet. ref’d). “If sufficient ‘connecting’ evidence does not

appear by the close of the proponent’s evidence, the opposing party must renew

his original objection by a motion to strike the conditionally admitted

evidence.” Williams v. State , 82 S.W.3d 557, 563 (Tex. App.—San Antonio 2002, pet.

ref’d). Because the trial court did not

err admitting Uherek’s testimony upon the State’s representation that its

relevance would be demonstrated through later testimony, and because appellant

has not argued here or in the trial court that the relevance of that testimony

was not demonstrated with later evidence, appellant has failed to demonstrate

that the trial court abused its discretion in admitting this testimony. We overrule the appellant’s second point of

error.

B. Rule 403

Appellant asserts that the

testimony about his step-daughter’s hygiene “served to convey to the jury that

the defendant was a bad parent and such testimony about hygiene could easily

‘arouse the jury’s hostility or sympathy for one side without regard to the probative

force of the evidence.’” He insists

that such evidence was directed at his character, and that the trial court

admitted it without “performing any type of balancing test required under Rule

403.”

We have already held that this

testimony had probative value in corroborating one of the complainants’

testimony and in showing circumstances consistent with sexual abuse. “[W]e presume the trial court conducted the

balancing test” required by Rule 403 and concluded that this probative value

was not outweighed by unfair prejudice to the defendant. Bargas

v. State , 252 S.W.3d 876, 893 (Tex. App.—Houston [14th Dist.] 2008, no

pet.). On this record, where the only

articulated potential prejudice is the implication that appellant was “a bad

parent,” appellant has not demonstrated that this evidence suggested the jury

reach a verdict on an improper basis. Gigliobianco , 210 S.W.3d at 641 . We thus cannot conclude that the trial court

abused its discretion by overruling the appellant’s Rule 403 objection. We overrule appellant’s third point of error.

CONCLUSION

We affirm the trial court’s

judgment.

Sherry

Radack

Chief

Justice

Panel

consists of Chief Justice Radack and Justices Jennings and Keyes.

Do

not publish. Tex. R. App. P. 47.2( b).

[1]

trial court and appellate court

cause numbers 12976/01-10-00652-CR; 12977/01-10-00653-CR; 12978/01-10-00654-CR;

12979/01-10-00655-CR; 12980/01-10-00656; 12981/01-10-00657-CR;

12985/01-10-00661-CR; 12986/01-10-00662-CR

[2]

trial court and appellate court

cause numbers 12982/01-10-00658-CR

[3]

trial court and appellate court

cause numbers 12983/01-10-00659-CR; 12984/01-10-00660-CR

[4]

This is presumably a reference

to the extraneous-offense instruction included in the Court’s charge:

You are instructed that if there is any testimony before you in this case

regarding the defendant’s having committed offenses other than the offense alleged

against him in the indictment in this case, you cannot consider said testimony

for any purpose unless you find and believe beyond a reasonable doubt that the

defendant committed such other offenses, if any were committed, and even then

you may only consider the same with regard to the purpose for which such

evidence was offered and for no other purpose.

[5]

The trial court admitted this

testimony over appellant’s objections that it was irrelevant and that the

probative value was outweighed by the danger of unfair prejudice.