TIMOTHY WAYNE WOOLEY, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed December 30, 2010.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-09-00455-CR
............................
TIMOTHY WAYNE WOOLEY, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F06-44339-Y
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OPINION
Before Justices Richter, Lang, and Myers
Opinion By Justice Myers
        Appellant, Timothy Wayne Wooley, was convicted of aggravated sexual assault of a child and sentenced to fifteen years in prison. In five issues, he argues that there was error in the jury instructions, the admission of certain evidence, the admission of his statement, and that the evidence is insufficient to support the conviction. We affirm.
Background
        The complainant, S, testified that, on the date of the offense, when she was seven or eight years old, she was swimming in her family's pool with her younger brothers and sisters.   See Footnote 1  After S finished swimming, she dried off and sat on the lap of appellant, her step-father, while her brothers and sisters went inside the house; she often sat on appellant's lap. As she sat on appellant's lap, his hand reached under her swimsuit and touched her “private part,” which she identified as her vagina. Appellant's finger touched the inside of S's vagina, and it was painful. It felt like dozens of ants were biting her “in one spot.” S had never felt that kind of pain before.
        S was shocked, frightened, and “didn't know what to do.” She sat there for a second and did not move, then got up from appellant's lap because she “was really[,] really scared,” and ran inside the garage. In the garage, appellant picked her up and again put his hand underneath her swimsuit and touched her private part. S did not recall whether appellant touched the inside or outside of her “private part,” but she remembered that “[i]t was still hurting.” Appellant also pulled her hand under his clothes to touch his penis as she tried to pull her hand away. S did not remember if appellant said anything. S touched appellant's penis for “[l]ike a second,” then jerked her hand away and went inside the house. Before she went inside, appellant told her “not to tell.”
        Inside the house, S wrote what had happened on a piece of paper and gave it her mother, Jennifer. S saw appellant in the front yard, sitting on the car and crying. After S gave Jennifer the note, Jennifer went to the front door, looked at appellant, and asked S if it was true. S was “really scared,” so she told her mother it was an “April [f]ool's” joke, even though it was not April. S thought her mother would “do something” about the note, and it made S “[r]eally sad” that Jennifer did nothing. When S told her mother the note was an April fool's joke, she was “really mad and disappointed,” but she was mad at S rather than appellant. S did not talk to appellant or her mother for the rest of the day. Instead, she went to her friend Kristen's house, where she spent the night. S recalled that she “was really scared and upset” that night, and she told Kristen what had happened. S did not tell any adult what had happened.         When S went to school the next day, she did not tell any teachers or counselors about appellant's behavior. But as she walked home from school that day with her friends Christian and Carlos, Carlos noticed S was limping, and he asked her what was wrong. S was normally happy, but on that day she appeared to be sad and depressed. S told Christian and Carlos what had happened. They told their mother, Janet Reyes, what S had said, and Reyes called the police. According to Reyes's testimony, she contacted the Mesquite police on October 25, 2005.
        Later that day, the police came to S's house. John McClure, who was a sergeant with the Mesquite Police Department at the time of these events, testified that on October 25, 2005, he responded to a call at 313 Meridien Lane in Mesquite, Dallas County, regarding the sexual assault of a child. The officers had spoken with two boys who heard S's outcry   See Footnote 2  as they were walking home from school with her, but the officers had not talked to the victim. McClure talked to S's mother and told her that S had made an outcry “concerning a very serious offense,” and that they needed to go to the police department to talk to an investigator. Officers drove S and her mother to the police station.
        The police took S and Jennifer to the police station while appellant was at work. Before S was interviewed at the Dallas Children's Advocacy Center, Jennifer told S, according to S's testimony, “[D]o not tell them what he did to you because he could go to prison until you're a teenager and y'all could get taken away.” S understood this to mean that she and her brothers and sisters could be removed from their home and “put in a new family.” This left S feeling “really worried” because her brother Timothy “was still a baby and he would need his mom.”
        S was interviewed by Yesenia “Jesse” Gonzalez of the Dallas Children's Advocacy Center on the same day, October 25th, that S outcried to Christian and Carlos. While Jennifer and S were in the center's restroom, Jennifer called her lawyer and, according to S's testimony, made S tell him that appellant “did not do it” and that “Papa,” Jennifer's deceased father,   See Footnote 3  was really responsible for the abuse. Because S was “worried and scared,” she followed her mother's instructions and told Gonzalez nothing happened when Gonzalez asked her if anyone touched her inappropriately. S testified that she wanted someone to help her but lied to Gonzalez because Jennifer “told me to not tell the truth about what [appellant] had done.” Gonzalez did not notice S limping or indicating any severe pain during the interview, nor did S appear to be nervous. Mesquite police detective Michael Holley, who observed the interview, saw Jennifer take S to the bathroom before the interview. S's subsequent interview made him suspect S's mother “had done something she should not have done.”
        When appellant arrived home on the evening of October 25, 2005, he was taken to the Mesquite police station and interviewed by Sergeant Mark Bradford. Bradford advised appellant of his Miranda rights, and appellant waived those rights and agreed to talk. In his written statement, appellant said   See Footnote 4  that when S sat on his lap, he started rubbing her inner thigh, then he “rubbed her private parts through her [bathing] suit” and, when she “didn't say anything,” he “began rubbing under the suit.” Appellant placed the tip of his “pointer finger inside [S] and rubbed her a few minutes.” He added that his finger “did not go in very deep” and he “didn't make her bleed.” Appellant stated that this happened when his family lived in Garland, Dallas County, Texas.
        Bradford testified that appellant was not coerced or threatened into giving this statement. There was also nothing about appellant's demeanor to indicate he was “out of it,” intoxicated, or did not know what he was doing. Appellant appeared to be functioning on a normal level, according to Bradford. Bradford noted that appellant was allowed to leave the police station after giving the statement because S did not outcry during her Children's Advocacy Center interview with Yesenia Gonzalez.
        After the forensic interview with Gonzalez, S was referred by Child Protective Services for further evaluation and counseling. Felicia Crumedy, a therapist at the Children's Advocacy Center, testified that she first met S in November 2005. S's therapy sessions with Crumedy were each forty- five minutes in length and continued over a two-year period, ending in December 2007. At first, S was timid, shy, uncertain, and “avoidant.” In her first session, S said the police were “trying to get her to say things that aren't true.”
        Crumedy testified that S started to talk about inappropriate touching by appellant “pretty early in the therapy process, maybe around session number five or so.” At first, S revealed little about what happened, but she eventually told Crumedy that appellant touched her “on her private parts inside of her swim suit,” that this hurt, and that appellant also made S “touch him on his penis.” S said her family was living in Garland when this happened. S also said that she told her mother about the abuse on the day that it happened. Jennifer talked to appellant, who denied it, and Jennifer told S not to talk about it, so she pretended it was a joke. Holley observed the session in which S made the outcry of sexual abuse, although he was not in the same room. Crumedy invited him to watch because S had started to talk about the abuse during their previous session. Crumedy noted that behavior like Jennifer's could discourage a child from talking about past abuse, and it did not surprise Crumedy that it took four months before S felt comfortable enough to talk about the abuse. The present charges were brought against appellant in February 2006.
        Appellant testified that S was thirteen months old when he met Jennifer, and that S had never met her biological father. Appellant and his family lived in Garland for a couple of years and then moved to Mesquite. On October 25, 2005, when appellant got home from work, the police were at his house. They took appellant to the police station, where he waited in a room until Bradford interviewed him. Appellant was tired and had drunk “a six-pack of Milwaukee Bliss, tall boys.” He said that he wished he had not worked so late or consumed any alcohol so he could have been more alert during the interview. Appellant sat in the room for so long that he got tired and fell asleep two or three times. Bradford went in and out of the room several times.
        The last time Bradford came into the room, he woke appellant up, raised his voice, and said he knew appellant was not stupid and that appellant needed to tell the detective “what [he] was there for.” Bradford then asked appellant if he was sexually abusing S. Appellant said that was not true. At the end of the interrogation, appellant agreed to give a statement because Bradford said that if appellant would give a statement, Bradford would call and stop “them” from giving S a “very, very painful” rape test. Appellant did not know at that point whether or not the rape test was painful, although he acknowledged hearing Dr. Cox's subsequent trial testimony that such a test was not painful.
        Appellant wrote the statement to Bradford in his own hand, but claimed that what he said in the statement was not true. Appellant said he “wrote something down that [he] didn't do” because he did not want S to endure the pain of a rape test. Appellant regarded S as his own daughter and got upset when Bradford kept calling her his stepdaughter. Appellant was not taken back to his house until “around” 10:30 or 11:00 p.m. The next day, CPS took away his children and he was not allowed to have any further contact with them. Appellant said it “hurt” that S testified against him, and that she used words and terminology he had never heard her use before. Appellant believed someone had been influencing S because of “the way she was talking, the way she acted[,] and because she said something happened that did not.” There was always a lot of activity and people at his house   See Footnote 5  and appellant did not ever recall a time when he was by himself at his house with S. He denied sexually assaulting S in Mesquite, Garland, or anywhere else.
        The prosecutor asked appellant to read to the jury the full version of his statement to Bradford, which, including the portions that were previously withheld from the jury, is as follows:
 
I, Tim Wooley, have been to a download site where you can type in the word or name of something you want to download. I regretfully keyed in the word Peto and downloaded some short clips from the Internet of children from ages six and up doing porn. I've done this for two years. One night while I was watching a fire in my barbecue pit in my backyard my oldest daughter [S] came out and she was dancing around in a two piece bathing suit.
 
 
 
She came and sat on my lap and for some stupid reason I starting rubbing her inner thigh. I rubbed her private parts through her suit. She didn't say anything so I kept--and then began rubbing under the suit. I placed the tip of my pointer finger inside her and rubbed a few minutes. I didn't make her bleed. I did not go in very deep just the length of--the tip of my finger--or anything. This happened about two years ago. I never raped her nor did she ever bleed. She has seen me naked twice. Once when I was showering to go to the hospital she had gotten up early and just walked in without knocking. The other time was when I was getting dressed in my room and she came in without knocking.
 
 
 
The clips I had seen on my computer had nothing to do with what happened. That was only stupidity. The incident in my backyard--or in the backyard had happened at the house we lived in on Daugherty in Garland.   See Footnote 6 
 
        Appellant also admitted on cross-examination that there was child pornography on his computer when Bradford seized it from his house. Appellant acknowledged the images in State's exhibits 8 through 25 appeared to be child pornography, and that he had seen some of those images on his computer. Appellant specifically recalled seeing the pornographic images in State's exhibits 8, 10, 13, 17, and 23.   See Footnote 7  Appellant testified that State's exhibits 8, 10, 13, and 17 each showed an image of a young girl with a man's penis in her mouth, while State's exhibit 23 showed a girl who appeared to be having sexual intercourse. Appellant acknowledged that, when S was seven or eight years old, “you can say” that she would have been “around” the same age as the girls in those exhibits. Appellant denied that looking at those images made him sexually aroused. When asked why he looked at the images if they did not arouse him, appellant said that he used to look at adult pornography on his computer “all the time,” but no child pornography. Appellant denied that he was addicted to pornography and stated, “It is just something I used to do.” He testified that he had not looked at pornography in three and a-half years, that he deleted the adult pornographic images after he looked at them, and that he immediately deleted the child pornographic images as soon as he realized they were child pornography.   See Footnote 8  Appellant noted that other adult males, including friends and neighbors, had access to his computer.
        Appellant admitted that Bradford did not threaten or coerce him into writing the statement, including the part where appellant admitted downloading child pornography from the internet, but appellant claimed Bradford wanted him to write that the offense occurred in Garland rather than Mesquite. Appellant also claimed it was Bradford's idea for appellant to state that S was wearing her bathing suit on the day in question, and Bradford suggested that appellant state that he rubbed her “private parts” and put his finger inside her. According to appellant, Bradford also suggested appellant should state the offense occurred “two years ago, because of the pornography.” Appellant added that he indicated in the statement that S had “seen me naked twice”--when she entered the shower without knocking and walked into his bedroom while he was getting dressed--because Bradford told him that S described appellant's body and penis. It was not appellant's intention to validate S's version of events, and he denied that he raped S. The defense rested after Jennifer Wooley invoked her Fifth Amendment right not to testify.
Discussion
Sufficiency of the Evidence
        In his first issue, appellant argues the evidence is factually insufficient to support his conviction for aggravated sexual assault of a child under the age of fourteen. The court of criminal appeals' recent decision in Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (plurality op.), overruled Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), and concluded the Jackson v. Virginia standard is the only standard a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. Brooks, 323 S.W.3d at 894-95. Under that standard, we examine the evidence in the light most favorable to the judgment and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks, 323 S.W.3d at 899-900; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony because the jury is the sole judge of those matters. Brooks, 323 S.W.3d at 899-900; Laster v. State, 275 S.W.3d 512, 517-18 (Tex. Crim. App. 2009).
        A person commits aggravated sexual assault if he intentionally or knowingly causes the penetration of the sexual organ of child younger than fourteen by any means. Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), (2)(B) (West Supp. 2009). The complainant's testimony alone can establish penetration. Garcia v. State, 563 S.W.3d 925, 928 (Tex. Crim. App. [Panel Op.] 1978). A child complainant's testimony alone will support an aggravated sexual assault conviction. Tear v. State, 74 S.W.3d 555, 560 (Tex. App.--Dallas 2002, pet. ref'd). The slightest penetration will suffice to support the indictment. See Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992). We do not sit as a thirteenth juror to reevaluate a witness's testimony merely because the witness used unsophisticated language or had a limited vocabulary. See Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990).
        Appellant argues there was “insufficient corroboration” of his statement because S's testimony was questionable and differed in some key respects from appellant's statement. Appellant points out, for example, that the indictment alleged he committed the offense by digitally penetrating S's vagina in Garland “on or about” April 1, 2004. Appellant's October 25, 2005 written statement indicated that the offense occurred in Garland approximately two years before, and Crumedy likewise testified that S said the offense occurred in Garland. But S's testimony showed the offense occurred in Mesquite on October 24, 2005, which was the day before S's outcry to Christian and Carlos.
        The trier of fact certainly could have concluded that any confusion by S regarding the precise date or location of the offense was attributable to the fact that she was only seven or eight years old when these events occurred, and that her family had moved from Garland to Mesquite in early 2005, which was only a few months before the outcry. More importantly, however, appellant's statement, S's testimony, and S's description of the offense to Crumedy all indicated that appellant's finger penetrated S's vagina, which satisfied the essential elements of the offense. We also note that both Garland and Mesquite are located in Dallas County, and neither party disputes the trial court's jurisdiction to hear this case. See Tex Code Crim. Proc. Ann. art. 21.02(5) (West 2009) (place where offense was committed must be within the jurisdiction of court where indictment presented). In addition, “[i]t is well settled that the 'on or about' language of an indictment allows the State to prove a date other than the one alleged in the indictment as long as the date is anterior to the presentment of the indictment and within the statutory limitation period.” Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997) (citing Tex. Code Crim. Proc. Ann. art. 21.02(6)); see Thomas v. State, 753 S.W.2d 688, 692 (Tex. Crim. App. 1988) (“[W]here an indictment alleges that some relevant event transpired 'on or about' a particular date, the accused is put on notice to prepare for proof that the event happened at any time within the statutory period of limitations.”).
        Appellant also argues Crumedy was biased and taught S about “inappropriate touching.” Crumedy testified, however, that she taught S about “inappropriate touching” only after they addressed “the abuse and issues they've presented,” which was after S reported the sexual abuse. As for Crumedy's alleged bias, S testified that Crumedy did not make her talk about what happened with appellant until after she felt comfortable enough to discuss the abuse. Crumedy testified that she did not do a forensic evaluation with S, and instead conducted therapy in which she allowed S to talk about “whatever issues she brought in.”
        Appellant further argues that S “was worn down by the pressure to claim that [a]ppellant sexually abused her.” Appellant points out that Gonzalez testified that children can be coached to “believe something occurred that did not occur.” But the record in this case shows that S was pressured by her mother not to talk about the abuse. S testified that she initially told her mother that appellant had sexually abused her, and then recanted when her mother told her appellant would go to jail and S and her siblings would be removed from the home unless she withdrew the allegations. When defense counsel asked S if, during the “time period after October,” she “got tired of people constantly trying to get [her] to say something that wasn't true,” S responded, “Yes.” Counsel asked S to whom she was referring, and S replied, “Jennifer.”
        The jury in this case was presented with two different versions of events. One version was presented through the testimony of S, the complainant, who alleged that appellant's finger penetrated her vagina, as well as the testimony of Bradford, Crumedy, and the other witnesses. Appellant, on the other hand, denied that he committed the offense. The trier of fact was entitled to accept the State's version of events as true and resolve any inconsistencies in the evidence against appellant. Viewed under the appropriate standard, we conclude the evidence was sufficient for the jury to find beyond a reasonable doubt that appellant was guilty of the charged offense. Appellant's first issue is overruled.         
        
Jury Instruction
        In his second issue, appellant contends the court erred by failing to instruct the jury that they could not base a guilty verdict solely on appellant's confession.
        Our first duty in analyzing a jury charge issue is to decide whether error exists. Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003); see also Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If we find error, we apply the appropriate harm analysis depending on whether the error was preserved in the trial court. See Jennings v. State, 302 S.W.3d 306, 311 (Tex. Crim. App. 2010) (all jury charge errors are cognizable on appeal, but unobjected-to error is reviewed for “egregious harm,” while objected-to error is reviewed for “some harm”); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g).
        The corpus delicti doctrine requires that evidence independent of an accused's extra-judicial confession shows the “essential nature” of the charged crime was committed by someone. See Bible v. State, 162 S.W.3d 234, 246 (Tex. Crim. App. 2005). When, as in this case, the body of the crime is established by evidence independent of the appellant's statement, such as the complainant's testimony or the testimony of other witnesses, an instruction on corroboration is not necessary. See Salazar v. State, 86 S.W.3d 640, 644-45 (Tex. Crim. App. 2002) (some evidence independent of appellant's statement must show the crime actually occurred, though the independent evidence does not have to identify the accused as the culprit); Cardenas v. State, 30 S.W.3d 384, 390 (Tex. Crim. App. 2000) (all that is required is that some evidence makes the commission of the offense more probable than it would be without the evidence); Baldree v. State, 784 S.W.2d 676, 686-87 (Tex. Crim. App. 1989) (“a trial judge need not instruct the jury on corroboration when the corpus delicti is established by other evidence”); Bordman v. State, 56 S.W.3d 63, 71 (Tex. App.--Houston [14th Dist.] 2001, pet. ref'd) (testimony of pediatric nurse sufficient to establish corpus delicti of aggravated sexual assault of a child offenses); Damian v. State, 881 S.W.2d 102, 106 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd) (testimony of twelve year old complainant in aggravated sexual assault case sufficient to establish corpus delicti of offense). Thus, the trial court did not err in failing to include a corroboration instruction in the jury charge. We overrule appellant's second issue.
Child Pornography
        In his third issue, appellant argues the trial court erred by admitting into evidence State's exhibits 8, 10, 13, 17, and 23, which were the five child pornography photographs found on appellant's home computer, because the evidence was unduly prejudicial under rule 403. In his fifth issue, appellant argues the trial court erred by admitting evidence concerning child pornography to prove character conformity under rule 404(b).
        Before appellant testified, the trial court ruled that it would allow the State to impeach appellant with evidence of the pornographic images of children that were found on appellant's computer. The court overruled appellant's rule 403 and 404(b) objections and concluded this evidence was “much more probative than it is prejudicial. I don't think it is even close.” The court's charge instructed the jurors that they could not consider State's exhibits 8, 10, 13, 17, and 23 “unless you believe beyond a reasonable doubt that the defendant possessed the pictures, if he did. Even then you may only consider the same, if you consider it at all, in determining the intent of the defendant to arouse or gratify his sexual . . . desire.”
        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 the disputed 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.
 
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 aggravated sexual assault of a child. “[I]ntent to arouse or gratify sexual desire” is an implicit element of that offense. See Sarabia v. State, 227 S.W.3d 320, 323-24 (Tex. App.--Fort Worth 2007, pet. ref'd) (citing Ochao v. State, 982 S.W.2d 904, 908 (Tex. Crim. App. 1998)). 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, 227 S.W.3d at 324; Darby v. State, 922 S.W.2d 614, 620 (Tex. App.--Fort Worth 1996, pet. ref'd). Therefore, 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. He contends, for example, that the photographs lacked probative value because “the disturbing contents of the photographs were already described in [a]ppellant's testimony.” Appellant also argues the photographs lacked probative value because he never showed them to S.         Weighing 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. Furthermore, the evidence had little potential to impress the jury in some irrational and indelible way. Appellant was accused of sexually assaulting his seven or eight year old step-daughter. The evidence showed that he penetrated the inside of S's vagina with his finger and caused 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. Nor did the photographs lack probative value simply because appellant did not show them to S. See id. at 324-325 (two contact sheets containing pornographic photos that showed
underage boys engaged in sex that victim did not see were admissible because they showed defendant's intent or motive to arouse or gratify his sexual desire via underage boys). 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 S's credibility and there was no scientific evidence nor witnesses to the abuse.
        We reach these conclusions despite appellant's reliance on Thrift v. State, 134 S.W.3d 475,480 (Tex. App.--Waco 2004), aff'd on other grounds, 176 S.W.3d 221 (Tex. Crim. App. 2005), which he cites for the proposition that “the probative value of child pornography pictures is substantially outweighed by the danger of unfair prejudice whenever it is undisputed that the requisite intent would be obvious if the accusations are established as truthful.” In Sarabia, the Fort Worth Court of Appeals found Thrift was incorrectly decided:
 
        Appellant relies [upon] Thrift v. State for the proposition that rule 403 bars the admission of child pornography as evidence of “intent to arouse or gratify” sexual desire. 134 S.W.3d 475, 477 (Tex. App--Waco 2004), aff'd on other grounds, 176 S.W.3d 221 (Tex. Crim. App. 2005). In Thrift, the appellant was tried for aggravated sexual assault of a child and indecency with a child. Id. As in our case, the appellant's defense was that the complainant was lying. 134 S.W.3d at 478. The trial court admitted into evidence photographs found in the appellant's residence depicting sexually-aroused teenage males, instructing the jury that it could consider the photos in connection with the “intent to arouse or gratify” element of the indecency charge. Id. In a two-to-one decision, the majority held that the photographs were inadmissible under rule 403 because “intent to arouse or gratify” was not controverted and was readily inferred from the offense itself. Id. 37
 
 
 
        We disagree with the Thrift majority's reasoning. First, to say that an element of an offense may be “readily inferred” from the offense itself is circular reasoning. If “A” and “B” are the elements of offense “C,” it is logically impossible to infer element “A” from conclusion “C” when element “A” is essential to proving “C” in the first place. “Intent to arouse or gratify sexual desire” is an essential element of indecency with a child, and that element cannot be inferred simply by concluding that the defendant committed the offense. To hold otherwise would relieve the State of its duty to prove all elements of an offense beyond a reasonable doubt. See Mullaney v. Wilbur, 421 U.S. 684, 699-700, 95 S. Ct. 1881, 1889-90, 44 L. Ed. 2d 508 (1975); In re Winship, 397 U.S. 358, 363-64, 90 S. Ct. 1068, 1072-73, 25 L. Ed. 2d 368 (1970). Second, as the Thrift dissent pointed out, when a defendant contends that an event did not occur, that denial puts every element of the offense in issue. Thrift, 134 S.W.3d at 481 (Gray, C.J., dissenting in part and concurring in part) (citing Old Chief v. U.S., 519 U.S. 172, 199-200, 117 S. Ct. 644, 659, 136 L. Ed. 2d 574 (1997)). For these reasons, we decline to follow the Thrift majority's reasoning.
 
Sarabia, 227 S.W.3d at 324-325. We believe the reasoning in Sarabia is sound and that Thrift should not be followed in the instant case. 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. We overrule appellant's second and third issues.
Appellant's Statement and Testimony Regarding Child Pornography
        In his fourth issue, appellant argues the trial court erred by admitting his statement and testimony regarding child pornography because it was unduly prejudicial.
        When the trial court and defense counsel discussed the impact of appellant's decision to testify, counsel noted “that the door is totally open on everything as far as the other evidence and I need clarification on that too, as to the statement or as to all evidence of another offense.” The court responded, “Anything having to do with something that might show reason why he would want to do that. So that's all child porn . . . .” The court stated that it would allow appellant to make a bill of exceptions “but it is coming in” if appellant took the stand. Just before appellant testified, the court noted that the evidence was much more probative than prejudicial, and the court did not consider the question to be “even close.” When the State offered State's Exhibit 7 into evidence, appellant reasserted his rule “608, 403 and 404” objections, which the court overruled. The State then asked appellant to read his statement to the jury.
        To support his argument concerning undue prejudice, appellant first contends there was no evidence to show he committed an extraneous offense “that did not derive from [a]ppellant's questionable confession, i.e., there was little strength to the evidence to show that he possessed child pornography.” Yet this argument overlooks appellant's trial testimony that he possessed child pornography. Appellant never denied that he possessed child pornography, nor did he contend that the portion of his statement concerning possession of child pornography was not true. In fact, appellant acknowledges in his brief that “the issue about whether [a]ppellant possessed child pornography was not disputed.”
        Second, appellant points out that he “did not show the [child pornography] photographs to complainant.” As noted previously, however, the Sarabia court determined that child pornography evidence was admissible in an aggravated sexual assault trial even though that pornography was not shown to the victim. See Sarabia, 227 S.W.3d at 324-325. The same is true here.         Appellant also argues his “putative interest in child pornography that depicted children performing oral sex would disturb the jury.” As discussed earlier, however, appellant's possession of the photographs was less heinous than the evidence relating to the aggravated sexual assault itself, and the photographs are unlikely to have impressed in some irrational way, given the evidence against appellant. See id. at 324.
        Appellant further argues that “simple possession of child pornography would not generally support a [rational] inference of escalation to sexual abuse.” A similar argument was rejected in Sarabia, where the court determined that because the photographic contact sheets depicted underage boys engaged in sex, they were admissible under rule 404(b) because they tended to show the defendant's intent or motive to arouse or gratify his sexual desire via underage boys. See id. The child pornography found on appellant's computer showed girls of approximately the same age as S engaged in oral and vaginal intercourse with adult males. As we have already noted, this evidence was more probative than prejudicial because, as in Sarabia, it tended to show appellant's intent to arouse or gratify his sexual desire. See id.
        Finally, appellant argues “the issue about whether [he] possessed child pornography was not disputed.” But the fact that appellant did not dispute his possession of child pornography arguably made the pornographic evidence more probative, rather than less probative. The probative nature of the pornographic evidence stemmed not from the fact that appellant possessed it, but from the fact that he denied sexually assaulting S while possessing child pornography that showed young girls of approximately the same age as S engaged in oral and vaginal sexual intercourse with adult males, which indicated an interest by appellant in such activity.
        Having carefully reviewed the record and the relevant law, we conclude that none of the factors cited by appellant show that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. Therefore, the trial court did not abuse its discretion by admitting appellant's statement and testimony concerning his possession of child pornography. We overrule appellant's fourth issue.
        We affirm the trial court's judgment.
 
                                                          
                                                          LANA MYERS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
090455F.U05
 
Footnote 1 S was twelve years old at the time of trial.
Footnote 2 An outcry is normally the first disclosure of sexual abuse to an adult, but in this case S's first disclosure was made to other children.
Footnote 3 S noted that “Papa” had been dead “[f]or a really long time.”
Footnote 4 Appellant's written statement was admitted during Bradford's testimony as State's Exhibit 1. Portions of appellant's statement that pertained to the downloading and viewing of child pornography by appellant were withheld from the jury, but were later admitted for impeachment purposes when appellant testified. The complete version of appellant's statement, State's Exhibit 7, which included the references to child pornography, was admitted over appellant's objections, and his arguments are discussed in detail under his fourth issue.
Footnote 5 Appellant's sister and her three children and his sister-in-law lived with his family; his sister-in-law slept on a mattress in the girls' bedroom.
Footnote 6 The portions of appellant's statement that appear in boldface type were initially withheld from the jury.
Footnote 7 Only those exhibits were admitted into evidence.
Footnote 8 Appellant now understood that the images were burned into his hard drive even though he deleted them.