John Petronella v. The State of Texas--Appeal from 385th District Court of Midland County

Opinion filed April 26, 2007

In The

Eleventh Court of Appeals

__________

   No. 11-05-00299-CR

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JOHN PETRONELLA, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 385th District Court

Midland County, Texas

Trial Court Cause No. CR29635

O P I N I O N

John Petronella appeals from a guilty jury verdict on three counts of sexual assault. The jury assessed his punishment at fifteen years confinement in the Texas Department of Criminal Justice, Institutional Division for each count. We affirm.

Background Facts

Appellant was indicted for six counts of sexual assault and two counts of sexual assault of a child. The State abandoned two counts of the sexual assault of the adult victim. Appellant proceeded to a trial by jury. Before trial, appellant stipulated that he had had sex with the adult victim on the dates in the indictment. The only issue in the sexual assault of the adult victim was consent. At trial, the State offered two pictures of the contents of drawers in appellant=s house containing sex toys and a magazine titled AVibrations.@ The State also offered several pictures of nude girls posing that were found on appellant=s computer. Appellant objected to the admission of the pictures. The trial court admitted the pictures over appellant=s objection. The jury found appellant guilty of four counts of sexual assault of the adult victim and not guilty on the two counts of the sexual assault of a child.

Issues on Appeal

Appellant presents two issues on appeal. First, appellant contends that he received ineffective assistance of counsel because his trial counsel failed to obtain a ruling on appellant=s motion for new trial. Second, appellant contends that the trial court abused its discretion by admitting certain pictures into evidence.

Ineffective Assistance of Counsel

Appellant=s first issue is moot. On May 18, 2006, this court entered an order to abate the appeal until the trial court could conduct a hearing on appellant=s motion for new trial. The trial court conducted a hearing on appellant=s motion for new trial and overruled the motion. Therefore, we need not address appellant=s first issue on appeal.[1]

Standard of Review

The admissibility of evidence is within the sound discretion of the trial court. Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997). Under an abuse of discretion standard, the trial court=s decision to admit the evidence must be reasonable in view of all the relevant facts. Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006). We will defer to the trial court=s ruling if it is within the zone of reasonable disagreement. Shuffield, 189 S.W.3d at 793; Montgomeryv. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991).

When deciding if evidence should be admitted, it must first be determined if the evidence is relevant to the prosecution. Evidence is relevant if it has Aany 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. All relevant evidence is admissible. Tex. R. Evid. 402. However, relevant evidence may be excluded if its probative value Ais substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, or needless presentation of cumulative evidence.@ Tex. R. Evid. 403. Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Shuffield, 189 S.W.3d at 787.

At trial, appellant objected under Rule 403 to the introduction of the pictures showing the contents of appellant=s drawers stating that the only purpose of the pictures was to inflame the jury. Appellant also objected under Rule 403 to the introduction of the pictures of the nude girls found on appellant=s computer again stating that the only purpose of the pictures was to inflame the jury.[2]

Admission of the Pictures

The State contends that the pictures admitted were relevant to show how appellant was Agrooming@ the victims. David Hernandez, a therapist with the Midland Rape Crisis Center, explained the grooming process in his testimony. He testified that a defendant will first gain access to the victim by becoming her friend and allowing her to do things her parents would not let her do. He further testified that part of the grooming process is to desensitize the victim to sexual behavior and get the victim curious about the sexual act. Both victims testified that they had seen the pictures of the nude girls on appellant=s computer. One of the victims further testified that she was aware that appellant had a Adildo@ and Adirty magazines@ at his house. Based on this testimony, the pictures were relevant for the purpose of showing how appellant was grooming the victims.

Once an objection under Rule 403 is made, the trial court must engage in a balancing test weighing the probative value of the evidence against its tendency to suggest a decision on an improper basis. Montgomery, 810 S.W.2d at 389. This analysis should include, but is not limited to, the following factors: (1) how probative the evidence is; (2) the potential of the evidence to impress the jury in some irrational, but nevertheless, indelible way; (3) the time the proponent needs to develop the evidence; and (4) the proponent=s need for the evidence. Shuffield, 189 S.W.3d at 787; Montgomery, 810 S.W.2d at 389 90.

In this case, the probative value of the pictures was compelling. Both victims testified that they observed the pictures of the nude girls on appellant=s computer and also knew that appellant possessed sex toys. Based on this testimony, it can be concluded that the pictures were used to assist appellant in committing the offense. See Howk v. State, 969 S.W.2d 46, 50 (Tex. App.CBeaumont 1998, no pet.) (one could reasonably conclude that cartoons depicting sexual acts between a man and boy that were shown to the victim assisted the defendant in committing the crime). The pictures were instrumentalities of the crime. Such evidence is rarely excluded for its prejudical effect. Id. The pictures, while graphic, were not of such a nature that they would influence the jury in an indelible way. The time involved in developing the evidence was minimal and did not divert the attention of the jury away from the indicted offenses. Finally, the State had a need for this evidence to show how appellant was grooming the victims and desensitizing them to the sexual act. Based on the above factors, the pictures= probative value substantially outweighed their prejudical effect. The trial court did not abuse its discretion in admitting the pictures. We overrule appellant=s second issue on appeal.

Conclusion

We affirm the judgment of the trial court.

RICK STRANGE

JUSTICE

April 26, 2007

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

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

[1]Appellant=s Issue No. 2 states that the trial court erred in admitting the pictures into evidence because they were prejudicial and had no probative value in the case. However, the argument portion of appellant=s brief states that the trial court erred in admitting the pictures for the purpose of showing character conformity.

[2]Appellant bases his argument on Tex. R. Evid. 403, 404. However, because appellant=s objection at trial was only under Rule 403, we will only address their admissibility under Rule 403. See Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990) (an objection stating one legal basis may not be used to support a different legal theory on appeal).