Jimmy Lee Pinson v. The State of Texas--Appeal from 112th District Court of Reagan County

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COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS


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JIMMY LEE PINSON, ) No. 08-02-00327=CR

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Appellant, ) Appeal from

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v. ) 112th District Court

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THE STATE OF TEXAS, ) of Reagan County, Texas

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Appellee. ) (TC# 1322-A)


MEMORANDUM OPINION


Jimmy Lee Pinson appeals his conviction for two counts of aggravated sexual assault of a child. A jury found Appellant guilty and assessed punishment at life imprisonment. We affirm.

FACTUAL SUMMARY

Although Appellant has not raised issues of legal or factual sufficiency, we will include a brief statement of the facts. Appellant and his wife had been friends with the parents of the victim, Zack, who was seven at the time of the events giving rise to this prosecution. Appellant s wife was a frequent babysitter for Zack. Around October 1999, Zack s mother picked him up from Appellant s residence. Later that night when she put Zack in the tub and started running his bath, she noticed that the boy s penis was red and asked him if anyone had ever touched his private parts. At first, Zack answered no. She then left the bathroom and returned shortly to check the water level. Zack asked whether she would be mad about the question she had asked. When she asked again whether anyone had ever touched his private parts, Zack answered that Appellant had. Zack told his mother that Appellant had put his hand and mouth on the child s petey. He also said that he had put his mouth on Appellant s petey. This had occurred four times--in the computer room, in Appellant s bedroom, and outside in Appellant s camper. Pertinent to the issues raised in this appeal, Zack testified at trial that he and Appellant spent time on the computer looking at pictures of naked men and women.

EXTRANEOUS OFFENSES

In his first point of error, Appellant contends that the trial court erred in admitting State s Exhibits 18-34 because the sexually offensive pictures were not shown to be relevant or connected to Appellant and because the probative value of the pictures was substantially outweighed by their unfair prejudice as extraneous offenses or acts. Exhibits 18-27 contain pictures of male nudity and homosexuality; exhibits 28-34 are sexually-explicit animated cartoons. Appellant claims that while there was evidence that whoever put the images on the computer had the requisite state of mind, there was no evidence that it was Appellant who had done so.

Connection and Relevance under Code of Criminal Procedure Article 38.37

Appellant first argues that Article 38.37 is inapplicable because he was not sufficiently connected to the pictures taken from his computer. He suggests that others had access to the computer and knew how to look up such web sites, or alternatively, that the pictures could have been placed there accidently. He also complains that Zack did not remember what the naked people were doing in the pictures and never said that he and Appellant watched cartoons. Because Zack was not asked to identify the exhibits and there was no evidence showing who put the images on the computer, Appellant concludes that the images could not be considered crimes, wrongs, or acts committed by the defendant against the child within the ambient of Article 38.37. We disagree.

Beyond a Reasonable Doubt Standard

Before admitting evidence of extraneous offenses, the trial court must determine pursuant to Rule 104(b) whether a jury could find beyond a reasonable doubt that the defendant committed the extraneous offenses. Harrell v. State, 884 S.W.2d 154, 160 (Tex.Crim.App. 1994). By admitting these exhibits, the trial court made the requisite determination. Harrell, 884 S.W.2d at 161. The exhibits were images taken from the hard drive of Appellant s computer, representing a small sample of files found. They corroborated Zack s testimony that he was shown sexually-explicit material by Appellant. Further, the State argued that it restricted the images to relevant issues of state of mind, that the prosecution involved a homosexual act against a child, that the homosexual pictures were further relevant to state of mind, and that the images were time stamped within six to eight months before Zack indicated the offenses occurred.

The trial court instructed the jury that it could not consider the extraneous offenses unless it believed beyond a reasonable doubt that Appellant participated in the acts. Even then, the acts could only be considered to show the intent of Appellant, his state of mind, Zack s state of mind, or the relationship between the two. Although Appellant complained there was no way to determine exactly who loaded the files on the computer or whether the sites were visited accidently, the jury could have found beyond a reasonable doubt that Appellant did so.

Affirmative Link

We are next asked to determine whether the State established a sufficient link between Appellant and the computer images. We begin with Darby v. State, 922 S.W.2d 614, 619 (Tex.App.--Fort Worth 1996, pet. ref d). There, the defendant objected to the admission of a sexually-explicit magazine found in his bedroom closet. The trial court admitted it as relevant to intent. The appellate court noted that possession of the magazine was not unlawful and the magazine itself was not contraband. Id. Only if the magazine had been contraband would the State have to affirmatively link the defendant to it. Id., citing Travis v. State, 638 S.W.2d 502, 503 (Tex.Crim.App. 1982). The State had the burden to prove intent, which could be shown through circumstantial evidence. The magazine provided that circumstantial evidence. Id. at 620, citing Arnott v. State, 498 S.W.2d 166, 177 (Tex.Crim.App. 1973).

Here, Appellant has not been prosecuted for possession of contraband and the State did not have to affirmatively link Appellant to the computer images as long as the jury could reasonably infer that Appellant both knew about the images and had control over them. See id. at 619. Further, the indictment made it necessary for the State to prove intent or knowledge to cause[] the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor and to cause[] the penetration of the mouth of a child by the sexual organ of the actor. Tex.Pen.Code Ann. 22.021(a)(1)(B)(ii), (iii)(Vernon Supp. 2004). The images were circumstantial evidence which is admissible if it tends to prove an issue or constitutes a link in the chain of proof even though, standing alone, it might not justify a verdict. Darby, 922 S.W.2d at 620, citing Knapp v. State, 504 S.W.2d 421, 437 (Tex.Crim.App. 1973).

Evidence that the sexually explicit images were found on Appellant s computer--when considered with the evidence that Appellant showed them to Zack causing Zack to put his mouth on Appellant s penis and causing him to put his own mouth on Zack s penis--presented affirmative circumstantial links between the images and the charged offenses. See also id. (holding that a magazine found in the defendant s bedroom closet that contained sexually-explicit photographs of a young female posing with a teddy bear constituted an affirmative circumstantial link when considered with evidence that the defendant pretended to be a photographer and had a young female pose with a teddy bear and testimony that defendant reached under the female s blouse, skirt, and underwear to touch her inappropriately).

Relevance under Article 38.37

Article 38.37 provides:

Sec. 1. This article applies to a proceeding in the prosecution of a defendant for an offense under the following provisions of the Penal Code, if committed against a child under 17 years of age:

(1) Chapter 21 (Sexual Offenses);

(2) Chapter 22 (Assaultive Offenses);

(3) Section 25.02 (Prohibited Sexual Conduct);

(4) Section 43.25 (Sexual Performance by a Child); or

(5) an attempt or conspiracy to commit an offense listed in this section.

Sec. 2. Notwithstanding Rules 404 and 405, Texas Rules of Criminal Evidence, evidence of other crimes, wrongs, or acts committed by the defendant against the child who is the victim of the alleged offense shall be admitted for its bearing on relevant matters, including:

(1) the state of mind of the defendant and the child; and

(2) the previous and subsequent relationship between the defendant and the child.

Sec. 3. On timely request by the defendant, the state shall give the defendant notice of the state's intent to introduce in the case in chief evidence described by Section 2 in the same manner as the state is required to give notice under Rule 404(b), Texas Rules of Criminal Evidence.

Sec. 4. This article does not limit the admissibility of evidence of extraneous crimes, wrongs, or acts under any other applicable law.


Tex.Code Crim.Proc.Ann. art. 38.37 (Vernon Pamphlet 2004).

Appellant claims that evidence of the content of a computer s hard drive does not constitute a crime or other act against a child within the purview of Article 38.37. The State counters that the exhibits were properly admitted because they assisted the jury in understanding the relationship between Appellant and Zack inasmuch as Appellant taught Zack how to access the web sites. The State also contends that the images explained why Zack waited to tell his parents about the abuse, they showed Zack s state of mind because Appellant told Zack that he would get into trouble if he told anyone about the pictures, they demonstrated Appellant s intent in showing Zack the images, and they explained Zack s compliance.

We find some guidance in Broderick v. State, 35 S.W.3d 67, 79 (Tex.App.--Texarkana 2000, pet. ref d). Broderick involved the sexual assault of a child who while visiting the defendant, played games and made cards on his computer. At trial, an FBI agent who was an expert in computer reconstruction testified that he had examined the hard drive of the defendant s computer. While he found no pornographic images, he had found approximately one hundred deleted files whose file names remained on the computer. Id. at 78. The agent recognized a number of the files to be sexually-explicit pictures. Id. On appeal, the defendant argued ineffective assistance of counsel for his trial counsel s failure to object to the evidence as inadmissible evidence of an extraneous offense. Id. The victim testified that the defendant would show her pictures of young girls engaged in sexual acts with male adults and then tell her she would have to do these things with him. Id. The court found the evidence admissible under Rule 404(b) to show the defendant s attempts to engage the child in sexual activity. Id. We find this analysis persuasive.


Conclusion

We conclude that the images were relevant and fell within the purview of Article 38.37 to show the state of mind of both Appellant and Zack, as well as the relationship between them. See also Phelps v. State, 5 S.W.3d 788, 797 (Tex.App.--San Antonio 1999, pet. ref d)(holding prior sexual acts between defendant and victim were admissible to show the nature of the relationship and to explain the victim s compliance); McCoy v. State, 10 S.W.3d 50, 54 (Tex.App.--Amarillo 1999, no pet.) (finding that prior sexual abuse clearly falls within the purview of Article 38.37 to show the relationship between the defendant and the victim); Walker v. State, 4 S.W.3d 98, 103 (Tex.App.--Waco 1999, pet. ref d) (holding that extraneous acts were admissible under Article 38.37 when they showed the defendant continually subjected the victim to sexual and physical assaults and provided an explanation why the victim did not report the abuse sooner).

Challenge under Rule 403

Appellant also challenged the exhibits under Rule 403, which 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.


Tex.R.Evid. 403. When a party lodges a Rule 403 objection, the trial court must conduct a balancing test to determine whether the probative value of the evidence substantially outweighs its prejudicial value. See Rojas v. State, 986 S.W.2d 241 (Tex.Crim.App. 1998); Williams v. State, 958 S.W.2d 186 (Tex.Crim.App. 1997); Walker, 4 S.W.3d at 103. While the trial court must conduct this balancing test, it need not enter its thought processes on the record. See Rojas, 986 S.W.2d at 250. If the record is silent, we will presume that the trial court properly conducted the test prior to ruling on the objection. See id.

Almost all evidence offered by the prosecution will be prejudicial to the defendant; however, Rule 403 excludes only evidence that is unfairly prejudicial. Caballero v. State, 919 S.W.2d 919, 922 (Tex.App.--Houston [14th Dist.] 1996, pet. ref d). Unfair evidence has an undue tendency to suggest that a decision be made on an improper basis, commonly an emotional one. Montgomery v. State, 810 S.W.2d 372, 389 (Tex.Crim.App. 1991). Since Rule 403 favors the admissibility of relevant evidence, there is a presumption that relevant evidence will be more probative than prejudicial. Massey v. State, 933 S.W.2d 141, 154 (Tex.Crim.App. 1996).

Appellant asserts that the exhibits violated Rule 403 because the State s evidence on intent was not contradicted, the exhibits were not connected to Appellant, and the exhibits were quite likely highly offensive to the jury. In support of this argument, he directs our attention to Bishop v. State, 869 S.W.2d 342 (Tex.Crim.App. 1993) and DeLeon v. State, 77 S.W.3d 300 (Tex.App.--Austin 2001, pet. ref d).

In Bishop, the court found that evidence of the defendant s sexual misconduct unduly prejudiced some of the jurors because, while it pertained to practices that were not defined as criminal offenses or misconduct, the practices were considered improper, immoral, and highly offensive by segments of the population. 869 S.W.2d at 346. At issue was sexual behavior that the defendant had engaged in with his ex-wife. Id. at 344. DeLeon involved extraneous offenses that the defendant had committed against third parties. 77 S.W.3d at 316. There, the court found that the probative value of unadjudicated third party extraneous offenses was substantially outweighed by the danger of unfair prejudice because the jurors could have lost sight of the specific issues framed by the indictment and convicted the defendant out of revulsion for his conduct as a serial child molester. Id. Here, Appellant showed Zack sexually-explicit images, an act which involved the victim and not a third party. As such, Bishop and DeLeon are distinguishable.

Factors to be considered by the trial court include: (1) how compelling the extraneous offense evidence serves to make a fact of consequence more or less probable--a factor which is related to the strength of the evidence presented by the proponent to show the defendant in fact committed the extraneous offense; (2) the potential the other offense evidence has to impress the jury in some irrational but nevertheless indelible way; (3) the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; (4) the force of the proponent s need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute. Montgomery, 810 S.W.2d at 389-90.

Appellant specifically complained that the exhibits were unduly prejudicial because they had little probative value, were not relevant to any contested fact, and were highly offensive to the jury. He also alleged that more time was spent on proving the extraneous offenses than the charges in the indictment, creating a likelihood that jurors were distracted from the main issues. We are convinced, however, that the probative value of the pictures substantially outweighed any danger of unfair prejudice. The computer images were strong evidence of Appellant s and Zack s states of mind as well as their relationship. They were highly probative of Appellant s intent to engage in the charged offenses. Although the images had the potential to impress the jury, they were not so prejudicial as to affect the jury in an irrational manner. While sexually related misconduct and misconduct involving children are inherently inflammatory, the computer images did not create a grave potential for the jury to find Appellant guilty on an improper basis. The exhibits were representative of those images frequently shown to Zack and put the offense into context for the jury. Other acts of misconduct between the defendant and the child victim are relevant to show how a person in a position of authority, custody, or care of a young child has developed an unnatural attitude and relationship toward that child to explain the charged act--an act that would otherwise seem wholly illogical and implausible to the average juror. Ernst v. State, 971 S.W.2d 698, 700 (Tex.App.--Austin 1998, no pet.), quoting Johns v. State, 155 Tex.Crim. 503, 236 S.W.2d 820, 823 (1951). It not only shows that a peculiar relationship exists, but also how and why the defendant achieved dominance over the child. Id.

The trial court is given wide latitude to admit or exclude evidence of other crimes, wrongs, or acts. Montgomery, 810 S.W.2d 372, 390. As long as the trial court s ruling was within the zone of reasonable disagreement, we must not intercede. See id. at 391. We find no abuse of discretion in the trial court s evidentiary ruling. Point of Error One is overruled.

JURY ARGUMENT

In Point of Error Two, Appellant complains of improper jury argument, alleging that the prosecutor articulated community demands and expectations for conviction.

Factual Summary

During closing arguments at the guilt-innocence stage, the prosecutor argued:

Ladies and gentlemen, this case is from Reagan County. Makes it no less important because it s being tried here in your county. Maryland Avenue could well be -- Maryland Street in Reagan, in Big Lake, could well be Avenue E, right on the steps of this courthouse, down the street from you, from me in Fort Stockton.

Ladies and gentlemen, . . . [t]his is important to us here in Crockett County. This is important to people in the United States, for you to find this defendant guilty because of the depraved things he did to this child . . . ladies and gentleman. It s clear. I m not going to take it anymore.


Appellant objected that the argument went beyond the permissible bounds of community standards. The State responded that it merely constituted a plea for law enforcement.

Permissible Bounds of Jury Argument

Permissible jury argument is confined to four broad areas: (1) summations of the evidence; (2) reasonable deductions from the evidence; (3) answers to arguments of opposing counsel; and (4) pleas for law enforcement. Dinkins v. State, 894 S.W.2d 330, 357 (Tex.Crim.App.), cert. denied, 516 U.S. 832, 116 S.Ct. 106, 133 L.Ed.2d 59 (1995). Generally speaking, jury argument constitutes reversible error only when it is extreme or manifestly improper, or injects new and harmful facts into evidence. McKay v. State, 707 S.W.2d 23, 36 (Tex.Crim.App. 1985), cert. denied, 479 U.S. 871, 107 S.Ct. 239, 93 L.Ed.2d 164 (1986). In making this determination, the entire argument should be considered, not just isolated sentences. See Drew v. State, 743 S.W.2d 207, 220-22 (Tex.Crim.App. 1987).

With regard to pleas for law enforcement, the State may argue the relationship between the jury s verdict and the deterrence of crime, as well as the impact of the jury s verdict on the community. Borjan v. State, 787 S.W.2d 53, 55-56 (Tex.Crim.App. 1990); Adams v. State, 685 S.W.2d 661, 671 (Tex.Crim.App. 1985); Alexander v. State, 919 S.W.2d 756, 764 (Tex.App.--Texarkana 1996, no pet.). A prosecutor may address the jurors as representatives, spokespersons, and even as the conscience of the community. See Whittington v. State, 580 S.W.2d 845, 847 (Tex.Crim.App. [Panel Op.] 1979); Barcenes v. State, 940 S.W.2d 739, 749 (Tex.App.--San Antonio 1997, pet. ref d). It is improper, however, for the State to argue that the community expects or demands a particular sentence or punishment. Borjan, 787 S.W.2d at 56; Cortez v. State, 683 S.W.2d 419, 420 (Tex.Crim.App. 1984).

The Court of Criminal Appeals has found the following statements to constitute improper pleas for community expectations and demands:

" So I ask you, this is a hard decision that you have to make, but I will tell you on behalf of the State of Texas, an aggravated sexual assault such as this, probation is not what this community and what the State would want. [Emphasis in original]. Mata v. State, 952 S.W.2d 30, 33 (Tex.App.-- San Antonio 1997, no pet.).


" Now, the only punishment that you can assess that would be any satisfaction at all to the people of this county would be life [imprisonment]. [Emphasis in original]. Cortez, 683 S.W.2d at 420.


" There are over a million people that stand between him and the penitentiary. They d want him to go there if they knew what he did. Prado v. State, 626 S.W.2d 775 (Tex.Crim.App. 1982).


" The people of Nueces County expect you to put this man away. Pennington v. State, 345 S.W.2d 527, 528 ( Tex.Crim.App. 1961).


" The people of De Soto are asking the jury to convict this defendant. Cox v. State, 247 S.W.2d 262, 263 (Tex.Crim.App. 1952).


" The people of this community expect you to put this man away, and the only way you can do it is to send Willie Porter to the electric chair. Porter v. State, 226 S.W.2d 435, 436 (Tex.Crim.App. 1950).


" I tell you, the people of Matagorda and Jackson Counties are expecting you to do your duty in this case and assess the defendant's punishment at death. Peysen v. State, 124 S.W.2d 137, 138 (Tex.Crim.App. 1939).


" Look at this courtroom--it is crowded with Polk County people demanding the death penalty for Bob White. White v. State, 117 S.W.2d 450 (Tex.Crim.App. 1938).


" The people are present in this courtroom to see that this defendant gets punished. Cleveland v. State, 94 S.W.2d 746 (Tex.Crim.App. 1936).


The court disapproved of these arguments because they asked the jury to convict or punish the defendant based on public sentiment or desire rather than the evidence. Cortez, 683 S.W.2d at 421.

However, the following statements were proper as a plea for law enforcement:

" I am asking you to enforce it. I m asking you to do what needs to be done to send these type of people a message to tell them we re not tolerating this type of behavior in our county. Goocher v. State, 633 S.W.2d 860, 864 (Tex.Crim.App. 1982).


" I think you will want to give them an answer you can be proud of, that your friends and neighbors can be proud of. Whittington, 580 S.W.2d at 847.


" You know, you re here because you have been chosen by the community to make the decision, and that s it. . . . -- don t send a message to the community that you re going to believe--. Barcenes, 940 S.W.2d at 749.


" [J]urors are sick and tired of this. Jurors are tired of crime because jurors such as yourself are members of the community you represent. You represent the community. Caballero, 919 S.W.2d at 924.


" You give this man exactly what he deserves and what the victims in this case, or the victim s next of kin and loved ones, deserve, for this man to serve a life sentence. It s only proper, and it serves the interest of this community as a whole. [Emphasis in original]. Alexander v. State, 919 S.W.2d 756, 764 (Tex.App.--Texarkana 1996, no pet.).


" [I]f you want to find somebody like this innocent of the charge, you may do it, but you will have to explain your actions to the community. Goff v. State, 794 S.W.2d 126, 127 (Tex.App.--Austin 1990, pet. ref d).


" A jury verdict in a murder case speaks for this community. You're saying: What will Travis County tolerate? What does Travis County think human life is worth? Bell v. State, 774 S.W.2d 371, 375 (Tex.App.--Austin 1989, pet. ref d).


" Probation, in this case, members of the jury, would be a slap on the wrist to the Defendant, would be a slap in the face to law enforcement in this community. Lugo v. State, 732 S.W.2d 662, 665 (Tex.App.--Corpus Christi 1987, no pet.).


" That when it comes to destroying and enjoying destroying the symbol of our country that is offensive and it s serious as far as every American is concerned, and when you go back into that jury room you represent each and everyone of them; and don t forget it, and consider the community effect of your verdict. Johnson v. State, 706 S.W.2d 120, 125 (Tex.App.--Dallas 1986), rev d on other grounds, 755 S.W.2d 92 (Tex.Crim.App. 1988), aff d by, Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989).


Measured against this standard, we conclude that the prosecutor s argument was a proper plea for law enforcement. The prosecutor intended to stress the importance of the case in order to prevent nullification, which can occur when jurors distance themselves from crimes that occurred in another county. In fact, the prosecutor emphasized that the jurors should find Appellant guilty for the acts he committed against Zack and not due to community desires or expectations. Point of Error Two is overruled. Having overruled both issues presented for review, we affirm the judgment of the trial court.


July 29, 2004

ANN CRAWFORD McCLURE, Justice


Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.


(Do Not Publish)