LARRY WAYNE PERRY, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued July 2, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-01174-CR
No. 05-07-01313-CR
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LARRY WAYNE PERRY, Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
 
.............................................................
On Appeal from the 59th District Court
Grayson County, Texas
Trial Court Cause Nos. 054196-59;054197-59
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MEMORANDUM OPINION
 
Before Justices Wright, Bridges, and Mazzant
Opinion By Justice Bridges
 
 
        Larry Wayne Perry appeals his indecency with a child by sexual contact conviction in cause number 05-07-01174-CR and his aggravated sexual assault of a child conviction in cause number 05-07-01313-CR. A jury convicted appellant of both offenses, and the trial court sentenced appellant to ten years' confinement in cause number 05-07-01174-CR and twenty years' confinement in cause number 05-07-01313 CR. In four issues, appellant argues the trial court erred in admitting unrecorded oral statements made by appellant during custodial interrogation, sex- related advertisements seized from appellant's home, and the testimony of a SANE nurse. Finally, appellant argues the cumulative nature of the evidentiary errors at trial denied him due process. We affirm the trial court's judgments.
        Because appellant does not challenge the sufficiency of the evidence to support his convictions, only a brief recitation of the facts is necessary. Appellant was charged with indecency with a child by sexual contact and aggravated sexual assault of a child. At trial, Denison police investigator Jackie Thomas testified appellant voluntarily spoke with Thomas about the charges against appellant, and appellant was not in custody at the time. Appellant's hearsay objection to this testimony was overruled. Carolyn Riddling, sexual assault nurse examiner at Texoma Medical Center in Denison, testified a SANE exam would not be necessary in cases such as the charged offenses involving appellant allegedly licking complainant's genitalia and causing the complainant to touch appellant's penis. Such an exam would not be necessary, Riddling testified, because there would be no physical findings of such offenses. The trial court overruled appellant's objections that Riddling's testimony was irrelevant. The jury subsequently convicted appellant of both offenses, and these appeals followed.
        In his first issue, appellant argues the trial court erred in admitting unrecorded oral statements made by appellant during custodial interrogation. Specifically, appellant argues the admission of these statements violated article 38.22 of the code of criminal procedure, which governs the admission of statements obtained as a result of custodial interrogation. However, to preserve error for review on appeal, a defendant's complaint on appeal must comport with the objection raised at trial. Santellan v. State, 939 S.W.2d 155, 171 (Tex. Crim. App. 1997). If a party asserts a different complaint on appeal than its objection made at trial, the party waives the issue. Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990). Appellant's only objection at trial to the admission of his statements was that they constituted hearsay. Appellant did not raise the issue of whether the admission of these statements also violated article 38.22. Thus, appellant has not preserved this issue for our review. See Santellan, S.W.2d at 171; Rezac, 782 S.W.2d at 870.
        In his second and third issues, appellant argues the trial court erred in admitting two sex- related advertisements seized from appellant's home and the testimony of SANE nurse Riddling. Specifically, appellant complains two pictures from sex-related websites and Riddling's testimony were not relevant or, if relevant, their probative value was outweighed by their prejudicial effect. Relevant evidence is evidence that has a tendency to make the existence of a 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. A trial court's decision to admit or exclude evidence is reviewed under an abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). When determining whether photographic exhibits were properly admitted, the question is not whether the exhibits are more prejudicial than probative, but whether the probative value of the photographs is substantially outweighed by the danger of unfair prejudice. Salazar v. State, 38 S.W.3d 141, 151 (Tex. Crim. App. 2001). Rule of evidence 403 requires an admissible photograph to possess “some probative value and that its probative value not be substantially outweighed by its inflammatory nature.” Santellan, 939 S.W.2d at 172. Our analysis under rule 403 considers (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).
        Here, the photographs at issue were an internet advertisement for a teen pornography site and a photograph of three young women in cheerleader costumes in a sexually suggestive pose. The photographs contain no nudity, and the State did not argue at trial that either of the photographs was illegal. Instead, the State offered the photographs to corroborate complainant's testimony that appellant had showed her pictures on his computer of “girls” that were “big and little,” clothed and unclothed. Appellant told complainant these were “pictures of kids that he molested.” Appellant complains the pictures are not relevant because they were printed four years before appellant's alleged contact with the complainant. However, Thomas testified the pictures were recovered from appellant's bedroom after appellant consented to a search of his home following the charged offenses coming to light. Thus, the pictures were still present in appellant's bedroom after the charged offenses occurred, regardless of when they were actually printed out. We conclude the pictures were relevant to corroborate the complainant's testimony that appellant showed her pictures of girls, clothed and unclothed, of “kids that he molested.”
        Under rule 403, the pictures served to prove appellant had pictures of “girls” in his bedroom, just as complainant testified. As to the pictures' potential to impress the jury in some irrational, yet indelible, way, we note the pictures contain no nudity or illegal content. While somewhat suggestive, the pictures do not depict sexual activity of any kind. The fact that only two pictures were entered into evidence indicates there was not a lot of time needed to develop this evidence. Because the pictures precisely corroborated complainant's testimony concerning pictures appellant showed her, the pictures were very useful in building the State's case. Thus, the pictures were admissible under rule 403. See Erazo, 144 S.W.3d at 489. Having reviewed the pictures, we cannot conclude the probative value of the photographs was substantially outweighed by the danger of unfair prejudice. See Salazar, 38 S.W.3d at 151. Accordingly, the trial judge did not abuse his discretion in admitting the photographs. Torres, 71 S.W.3d at 760. We overrule appellant's second issue.
        As to Riddling's testimony, the record shows the State had no physical evidence of injury to the complainant to corroborate the complainant's testimony of abuse. The State offered Riddling's testimony to show why a SANE exam would not be useful in instances of abuse such as complainant described. Riddling also explained why an oral sexual assault on the complainant would not leave evidence of trauma, physical injury, or DNA. Under these circumstances, we cannot conclude the trial court abused its discretion in admitting Riddling's testimony. See id. We overrule appellant's fourth issue.
        In appellant's fifth issue, he asserts the trial court's cumulative evidentiary errors denied him due process. Having found no evidentiary errors, we find appellant's contention lacks merit. We overrule appellant's fifth issue.
        We affirm the trial court's judgments.
 
 
                                                          
                                                          DAVID L. BRIDGES
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
071174F.U05