DENNIS DEWAYNE STINSON, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued May 8, 2009
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-01236-CR
............................
DENNIS DEWAYNE STINSON, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 366th Judicial District Court
Collin County, Texas
Trial Court Cause No. 366-81123-06
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OPINION
Before Justices Bridges, FitzGerald, and Lang
Opinion By Justice Bridges
        Dennis Dewayne Stinson was convicted of three counts of indecency with a child by contact. In two issues, he claims the trial court improperly admitted extraneous offense evidence and improperly cumulated his sentences. We affirm the trial court's judgment.
        
Discussion
        Extraneous Offenses
        In his first issue, appellant argues that the trial court abused its discretion by admitting evidence that he possessed child pornography, used methamphetamines, and physically abused the victim (appellant's former step-daughter) and other children. Appellant claims this evidence was inadmissible under rule 404(b) and 403. The State responds that appellant did not preserve his complaints for appellate review and, alternatively, that the evidence in question was admissible for non-character purposes and was not more prejudicial than probative.
        Preservation
        We begin with the State's contention that appellant's claims were not preserved for appellate review. According to the record, shortly before opening arguments the trial court held a hearing out of the jury's presence to consider appellant's oral motion in limine. That motion sought to prevent the State from introducing evidence of certain extraneous offenses, including appellant's possession of child pornography, his use of methamphetamines during the time of the offense, and his physical abuse of the victim and other children under his care. Regarding the child pornography evidence, there were two categories of pornographic evidence, i.e., testimony from appellant's ex-wife, Kristi Fisk,   See Footnote 1  that she saw appellant viewing child pornography on his computer, and various pornographic images and movies found on appellant's computer.
        After listening to arguments, the trial court concluded the State could develop evidence of appellant's use of methamphetamines “as it relates to--to giving the child drugs and the fact that he was up all night.” As for the evidence of physical abuse, the trial court ruled as follows:
 
With regard to the--physical abuse, I--I--you know, if there is testimony--if you've got some testimony from the daughter that she was afraid of him at some point and there was a reason for that, then I think they--they become admissible. But until I hear that testimony, I will grant a motion in limine on that, because otherwise, I don't think they are.
 
The court also determined that the State could present testimony that appellant's wife had seen him “viewing child pornography on the computer.” The court concluded this evidence was “clearly admissible.” But the question of what was “currently on the hard drive” was another matter, and until “such time as a chain of custody” could be shown and who had access to the computer, the court did not “want it mentioned.”
        Fisk then testified out of the jury's presence that appellant used the computer “99 percent of the time” and that she saw appellant viewing child pornography on the computer “maybe four or five times.” She also recalled that he would often stay locked in his home office using the computer for “days at a time.” When she saw him in the office looking at child pornography on the computer, appellant would often “have a towel over his lap and his hands under the towel.” Fisk only used the computer for e-mailing her resume and “classifieds for a job,” and the victim was never allowed to use the computer.
        Following re-direct, defense counsel argued there was still “no connection” between Fisk's testimony about appellant's use of pornography and the pornographic images recovered from the computer. Counsel said “we're not conceding it's admissible, period, given the inflammatory nature of it.” But he insisted that “the fact that [Fisk] saw [appellant] see other pornography, if it was, doesn't somehow automatically prove” appellant was the same person who downloaded the pornographic images. The court found the evidence regarding the pornographic contents of the computer's hard drive admissible, noting appellant's “objections clearly [went] to weight as opposed to admissibility.” A few moments later, defense counsel said, “Just so I'm clear, I have never conceded the methamphetamine point,” and he did not believe this evidence was relevant. The court replied that it had already determined the evidence of methamphetamine use was admissible “for two purposes: One the fact that [appellant] had given drugs to the [victim] or the children; and secondly, the fact that he was staying up, according to [Fisk's] testimony, all night. I'll allow it for that purpose.”
        The trial court subsequently administered the oath to the jurors and heard opening statements. Plano investigating detective Jeff Rich, FBI forensic examiner Jesse Basham, and Fisk later testified without further objection regarding the child pornography found on appellant's computer. Fisk testified without further objection about appellant's frequent use of methamphetamines during the time he was molesting the victim. After the trial court overruled appellant's objections that the evidence of physical abuse was irrelevant, too remote in time to be admissible, and there was no “substantial connection” between the abuse and the victim's delayed outcry, the victim testified that appellant had physical abused her, her brother, and appellant's son.
        We conclude appellant's first two complaints are preserved for appellate review, but his complaint regarding the evidence of physical abuse was not preserved. It is well-settled that a motion in limine, whether granted or denied, preserves nothing for appellate review. See Griggs v. State, 213 S.W.3d 923, 926 n.1 (Tex. Crim. App. 2007). Instead, there must be a proper objection to the proffered evidence. McDuff v. State , 939 S.W.2d 607, 618 (Tex. Crim. App. 1997) (citing Basham v. State , 608 S.W.2d 677, 679 (Tex. Crim. App. 1980)). While, however, a motion in limine does not preserve error, error can be preserved by a timely objection made in a hearing outside the presence of the jury. Manns v. State , 122 S.W.3d 171, 190 (Tex. Crim. App. 2003); Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003). The record of the pretrial hearing shows that appellant objected to admission of the child pornography evidence and evidence of his use of methamphetamines, and that the trial court overruled those objections. See Tex. R. App. P. 33.1(a)(1)(A) (objection sufficient if complaining party sought a ruling with sufficient clarity to make trial court aware of complaint, unless specific grounds were apparent from the context). Consequently, he preserved those issues for appellate review. The trial court did not resolve appellant's objection to the evidence of physical abuse, choosing instead to grant the motion in limine until it “hear[d] that testimony.” But appellant's subsequent objections to the evidence of physical abuse failed to preserve error because a general relevancy objection alone will not preserve an extraneous offense complaint under rule 404 or 403. See Medina v. State, 7 S.W.3d 633, 643 (Tex Crim. App. 1999); Montgomery v. State, 810 S.W.2d 372, 388-89 (Tex Crim. App. 1990) (op. on reh'g); Lopez v. State, 200 S.W.3d 246, 251 (Tex. App.-Houston [14th Dist.] 1994, pet. ref'd). Moreover, the complaint on appeal does not comport with the objection at trial. See Wilson v. State , 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (“the point of error on appeal must comport with the objection made at trial”).
        Child Pornography
        Regardless of whether appellant preserved his complaints for appellate review, we believe
all three categories of evidence were admissible under rule 404(b) and 403. Beginning with the evidence that appellant possessed and viewed child pornography, we note that, according to the record, Fisk testified that she once walked into appellant's home office and saw him sitting at the computer with a towel on his lap and his hand under the towel, with images of child pornography on the computer screen. This incident occurred in the time period during which appellant was molesting the victim. Fisk later turned the computer over to the police, and forensic examiner Basham searched the computer's hard drive. The record includes fifteen photographs recovered from appellant's computer that show naked pre-teen girls performing various sexual acts. The jury was told these photographs were a “small sampling” of a much larger collection of “child-type pornography” found on appellant's computer. In addition, the State admitted into evidence a CD-R containing child pornography movies saved as digital files on appellant's computer. The State also admitted into evidence a thirty-two page report from Basham listing the files found on appellant's computer.
        We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002); Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). As long as the trial court's ruling falls within the zone of reasonable disagreement, we should affirm. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).
        “'Relevant evidence' means evidence having 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. Evidence of extraneous offenses is generally not admissible. Tex. R. Evid. 404(a). However, rule 404(b) allows evidence of other crimes, wrongs, or acts if the evidence has relevance apart from character conformity. Tex. R. Evid. 404(b); Carter v. State, 145 S.W.3d 702, 707 (Tex. App.-Dallas 2004, pet. ref'd). Evidence of other crimes, wrongs, or acts may be admissible to prove identity or intent, to establish motive, or to show opportunity or preparation. Tex. R. Evid. 404(b); Moses v. State, 105 S.W.3d at 626; Carter, 145 S.W.3d at 707. Rebuttal of a defensive theory such as mistake or accident is also one of the permissible purposes for which relevant evidence may be admitted under rule 404(b). Moses, 105 S.W.3d at 626. In its charge, the trial court limited the jury's consideration of extraneous offense evidence to the issue of intent.
 
 
        Although admissible under rule 404(b), evidence may still be excluded under rule 403 if the danger of unfair prejudice substantially outweighs its probative value. Tex. R. Evid. 403; Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999). The court of criminal appeals has explained that the term “unfair prejudice”
 
refers not to an adverse or detrimental effect of evidence but to an undue tendency to suggest a decision on an improper basis, commonly an emotional one. 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. 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. 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 Casey v. State, 215 S.W.3d 870, 883 (Tex. Crim. App. 2007) (citations omitted).
        Rule 403 favors the admission of relevant evidence, and it is presumed that relevant evidence will be more probative than prejudicial. Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006). “A proper Rule 403 analysis includes, but is not limited to, the following factors: (1) the probative value of the evidence; (2) the potential of the evidence 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.” Prible v. State, 175 S.W.3d 724, 733 (Tex. Crim. App. 2005). The trial court is presumed to have conducted the proper balancing test if it overrules a 403 objection, regardless of whether it conducted the test on the record. See Williams. v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997).
        Appellant was charged with indecency with a child, which required the State to prove, among other things, that he touched the victim with the intent to arouse and gratify his sexual desire. See Tex. Penal Code Ann. § 21.11(b) (Vernon 2003). The State is allowed to prove intent through circumstantial evidence. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). Courts have concluded that, in cases such as these, the defendant's possession or viewing of child pornography is relevant circumstantial evidence of the defendant's intent to arouse or gratify his sexual desire.
See Lewis v. State, 676 S.W.2d 136, 139 (Tex. Crim. App. 1984); Sarabia v. State, 227 S.W.3d 320, 324 (Tex. App.-Fort Worth 2007, pet. ref'd); Darby v. State, 922 S.W.2d 614, 620 (Tex. App.-Fort Worth 1996, pet. ref'd). Thus, the trial court did not abuse its discretion by admitting the disputed evidence under rule 404(b). See Tex. R. Evid. 401, 404(b).
        Appellant also argues that the prejudice substantially outweighed the probative value of the evidence. Considering the rule 403 factors, we conclude the complained-of evidence was probative because it tended to show appellant's intent to arouse or gratify his sexual desire. Further, we believe the evidence had little potential to impress the jury in some irrational and indelible way. Appellant was accused of repeatedly drugging and molesting his twelve-year-old step-daughter, touching her genitals, breasts, and causing her hand to touch his penis. While the complained-of evidence undoubtedly made an impression on the jury, it is unlikely the impression was an irrational one given the activity for which appellant was on trial. See Sarabia, 227 S.W.3d at 324. We also conclude the State did not spend an excessive amount of time developing the disputed evidence. Finally, the force of the State's need for the evidence was significant because the State's case rested on the victim's credibility and there was no scientific evidence nor witnesses to the abuse. Accordingly, the trial court did not abuse its discretion by determining that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice.         
        Use of Methamphetamines
        Turning to Fisk's testimony regarding appellant's methamphetamine use, we note that, according to Fisk, appellant was a frequent user of methamphetamines during the time period that he was molesting the victim. Fisk testified that, when appellant was using methamphetamines, he would often stay locked in his home office for days at a time, neglecting to eat, sleep, bathe, or brush his teeth. She described appellant's behavior during this time as “very erratic” and noted that her son Taylor had once found “some white powder” in a tool box in the garage. When Fisk asked appellant about the powder, he told her that “it was methamphetamines.” He also showed her a “recipe” that he “printed out . . . on the computer to make it himself.”
        We believe this evidence was relevant to show appellant's state of mind at the time of the charged offense and tended to show how the offense unfolded and progressed. The trial court did not abuse its discretion by finding the complained-of evidence was relevant for non-character purposes.
        Nor was this evidence more prejudicial than probative. Regarding the first and fourth factors, the evidence was significant because, as noted previously, the only direct evidence of molestation was the victim's testimony. This necessarily required the jury to weigh her credibility. Appellant's recreational use of methamphetamines was compelling evidence because it tended to show appellant's state of mind and explain how a father could have committed such offenses against his step-daughter. In addition, while the evidence of appellant's methamphetamine use undoubtedly made an impression on the jury, it is unlikely that it impressed the jury on some irrational and indelible manner given the other evidence against appellant. We also conclude that the State did not spend an excessive amount of time developing the complained-of evidence. Testimony about appellant's methamphetamine use occupies only a few pages of the trial record compared to over 250 pages of testimony regarding the charged offenses. Accordingly, the trial court did not abuse its discretion when it concluded that the evidence of appellant's methamphetamine use was not more prejudicial than probative.
        Physical Abuse
        We have previously noted that appellant's complaint regarding the evidence of physical abuse was not preserved. However, if we assume for the sake of argument that this claim was preserved, the record shows that, during the victim's trial testimony, in addition to describing the sexual abuse inflicted by appellant, she also testified that appellant was “mean” to her, her mother, and her brother, Taylor. She saw appellant physically abuse Taylor and his own son, Michael, picking Taylor “up by the neck off the ground” and hitting both Taylor and Michael with vacuum cords. When they misbehaved, appellant would sometimes punish the victim or the other children by forcing them to stand facing the wall with their arms stretched out, holding a piece of paper in “each hand and one with [their] nose.” Appellant would require them to do this for as long as thirty minutes. If they dropped a piece of paper, appellant would hit them with a paddle that was twelve inches long, three or four inches thick, and had holes cut in it that left bruises on the victim's “rear end” through her clothing. The victim believed she could not tell her mother about the abuse because her mother “couldn't protect herself.”
        The general rule is that evidence of other crimes, wrongs, or bad acts is not admissible if offered to prove the character of a person in order to show action in conformity therewith. Tex. R. Evid. 404(b). When, however, the other crimes, wrongs, or bad acts were committed by the defendant against a child who is the victim of the alleged offense, this evidence is admissible for its bearing on relevant matters, such as the state of mind of the defendant and the child and their previous and subsequent relationship. Tex. Code Crim. Proc. Ann. art. 38.37, § 2 (Vernon Supp. 2008); Jones v. State, 119 S.W.3d 412, 420 (Tex. App.-Fort Worth 2003, no pet.). Evidence that is admissible under article 38.37 may nonetheless be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403; Jones, 119 S.W.3d at 421.
        In this case, the trial court could have reasonably concluded that the evidence at issue met the requirements of article 38.37, section two. Evidence that appellant physically abused the victim, Taylor, and Michael, in addition to providing context about the relationship between the victim and appellant, was admissible to show the victim's state of mind and explain why she did not speak up earlier about the abuse. See McCulloch v. State, 39 S.W.3d 678, 681 (Tex. App.-Beaumont 2001, pet. ref'd); Walker v. State, 4 S.W.3d 98, 103 (Tex. App.-Waco 1999, pet. ref'd). Such evidence was also relevant to show how a person in a position of authority, custody, or care of a young child developed an unnatural attitude and relationship toward that child. See Poole v. State, 974 S.W.2d 892, 898 (Tex. App.-Austin 1998, pet. ref'd).         Regarding the rule 403 balancing test, the evidence of physical abuse was not more prejudicial than probative. Beginning with the first and fourth factors, the victim testified that she did not tell anyone about the abuse because she was scared of appellant. She believed her mother could not help because she “couldn't protect herself.” In addition, the victim did not report the abuse until June 2004, approximately nine months after appellant moved out of the house. Evidence that appellant physically abused the children in his care was therefore important to explain why the victim feared appellant and why she waited so long to report the abuse. While this evidence undoubtedly made an impression on the jury, it is unlikely that it impressed the jury on some irrational manner given the other evidence against appellant. We also note that the physical abuse's relevance to the indicted offense meant that little time was taken away from the jury's consideration of the indicted offense. Moreover, the State spent little time developing this evidence, which takes up only a few pages of the trial record. Accordingly, the trial court did not abuse its discretion when it concluded the complained-of evidence was not more prejudicial than probative. Appellant's first issue is overruled.
        Stacked Sentences
        In his second issue, appellant argues that the trial court improperly cumulated his sentences. A trial court's decision to cumulate sentences is reviewed for an abuse of discretion. Hurley v. State, 130 S.W.3d 501, 503 (Tex. App.-Dallas 2004, no pet.). An improper cumulation order is a void sentence and error may be raised at any time. Id.        
        According to the record, for count one of the indictment, the jury sentenced appellant to ten years in prison, with a recommendation for community supervision and a $10,000 fine. In each of counts two and three, the jury sentenced appellant to eighteen years in prison and a $5,000 fine. Pronouncing sentence on July 27, 2007, the trial court read the sentences in numerical order then ordered “and these will run consecutively.” In the August 24, 2007 written judgments, however, the trial court ordered that appellant serve his prison sentence for count two, then his prison sentence for count three, and, finally, the community supervision sentence for count one.
        When a defendant is convicted of two or more offenses, the trial court has the authority to “stack” the sentences, that is, order the sentences to run consecutively. See Tex. Code Crim. Proc. Ann. art. 42.08(a) (Vernon 2006). As a general rule, if the offenses are tried in one trial, the sentences must run concurrently, but the trial court may stack the sentences under certain conditions, such as if the convictions are for sex crimes against children. See Tex. Penal Code Ann. § 3.03 (Vernon 2003). If the trial court suspends one of the sentences, it may not order a sentence of confinement to commence after the period of supervision. See Tex. Code Crim. Proc. Ann. art. 42.08(c) (Vernon 2006).
        In the present case, appellant was sentenced to two prison sentences and one sentence for community supervision. Appellant does not challenge the trial court's decision to stack the sentences. Instead, he claims the trial court's oral pronouncement of sentence incorrectly ordered the community supervision sentence in count one to be served first, followed by the prison sentences in counts two and three. See Tex. Code Crim. Proc. Ann. art. 42.08(c); Hurley, 130 S.W.3d at 503 (illegal cumulation orders are void).
        “A defendant's sentence must be pronounced orally in his presence. The judgment, including the sentence assessed, is just the written declaration and embodiment of that oral pronouncement. When there is a conflict between the oral pronouncement of the sentence and the sentence in the written judgment, the oral pronouncement controls.” Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004) (footnotes omitted); Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998). But if the oral pronouncement is merely ambiguous, the jury's punishment verdict, the court's pronouncement, and the written judgment should be read together in an effort to resolve the ambiguity. Aguilar v. State, 202 S.W.3d 840, 843 (Tex. App.-Waco 2006, pet. ref'd).         We conclude the trial court's oral pronouncement in this case is ambiguous. The court read the sentences in numerical order and concluded “and these sentences will run consecutively,” yet it did not specify the order in which the sentences would be served. On the other hand, the written judgments unambiguously state, consistent with the jury's verdict, that the prison sentence for count two is to be served first, followed by the prison sentence for count three, and concluding with the community supervision sentence for count one. We conclude the cumulation orders in the judgments do not conflict with the ambiguous oral pronouncement. We therefore overrule appellant's second issue.         
        We affirm the trial court's judgment.
 
 
                                                          
                                                          DAVID L. BRIDGES
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
071236F.U05
 
Footnote 1 By the time of trial, Fisk had divorced appellant and remarried.