ROCKY DALE DIAL, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued November 22, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-00741-CR
No. 05-09-00742-CR                                        
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ROCKY DALE DIAL, Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
 
.............................................................
On Appeal from the 382nd Judicial District Court
Rockwall County, Texas
Trial Court Cause Nos. 2-08-480 and 2-08-481
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OPINION
 
Before Justices FitzGerald, Murphy, and Fillmore
Opinion By Justice Murphy
 
 
        Rocky Dale Dial appeals his convictions for indecency with a child by sexual contact and aggravated sexual assault of a child. See Tex. Penal Code Ann. §§ 21.11, 22.021 (West 2003). In four issues, appellant contends the trial court erred in admitting evidence of extraneous offenses, admitting DVD recordings of the complainants' forensic interviews, and denying his motion for mistrial. We affirm the trial court's judgments.
 
I. BACKGROUND
 
        Appellant's step-daughters, who were seventeen and fourteen at the time of trial, testified as complainants. The older step-daughter Wilma, a pseudonym, said she was about ten years old when appellant got into bed with her one night and “just started feeling up [her] shirt.” The same conduct “probably happened a couple of times a week” and lasted for a couple of months. Each time she would stop him; and when appellant asked her if she wanted him to leave, she would say yes. After awhile, appellant stopped coming to her room.
        After the touching stopped, Wilma said her relationship with appellant changed. She was “blamed for everything,” was “getting in trouble more,” and was not allowed as much freedom as her younger sister. Wilma also testified she saw appellant looking at pornography on the computer and he would show her magazines with nude pictures of girls.
        Wilma described one final incident of touching that occurred when she was fourteen or fifteen. Following a discussion about a pink jacket appellant thought she had stolen, he came into her room, lay in bed next to her, and put his hand under her shirt.
        The younger step-daughter Pebbles, a pseudonym, said she was six years old when appellant began sleeping with her because she had nightmares. One night when she was pulling up the covers, he told her to “rub on his private part” with her hand. He then had Pebbles perform oral sex, telling her “it was like a lollipop” and instructing her to “just go up and down” with her mouth. The next night appellant told her not to tell anyone and asked her if she understood he could go to jail. Pebbles estimated this conduct “happened almost every other night” until she was in the seventh grade. At some point, he “stopped coming in the middle of the night”; instead, he asked her to perform oral sex in his Chevrolet Tahoe vehicle.
        Pebbles described other instances of sexual contact, including once when appellant “made [her] stick [her] tongue in his mouth,” once when appellant “stuck his tongue and rubbed it around [her] vagina,” and another instance when “he tried to stick his penis inside [her] butt.” Appellant also kept her home from school two or three times to “make [her] do stuff with him.” She specifically described oral sex as appellant asking her to “give him some.” The last time he asked Pebbles to perform oral sex was the summer of 2007, when she refused. He never asked again. After that, appellant made Pebbles feel guilty by not talking to her and by looking at her like he was ashamed of her.
        The jury also heard testimony from Steven Baskerville, a special agent and computer forensic examiner with the United States Secret Service. Baskerville had received a laptop computer retrieved from appellant's home. Baskerville found over 12,000 digital images on the computer, 3008 of which were pornographic. The pornography largely depicted young females showing or touching their breasts or performing oral sex on a male. Baskerville also retrieved screenshots of Google pornography searches performed on the laptop, including one search with the term “Bravo Teens.” He testified that in his experience, individuals look at pornography with the intent to arouse or gratify their sexual desire.
        Over appellant's objection, five of the 3008 pornographic images were admitted as exhibits (numbered 14 through 18) as well as one “Bravo Teens” Google search screenshot (numbered 25). The trial court instructed the jury orally and in the court's charge that they could consider the evidence only in determining whether the evidence corroborated testimony of other witnesses and in determining intent or motive, if any, of appellant in connection with the offenses charged.         Appellant denied his step-daughters' allegations as well as the suggestion he had viewed pornography on his computer. He testified the girls made up the stories and were lying to break up his marriage and get more freedom. He described confiscating their cell phones as punishment the month before his arrest and detailed complaints both girls had about their freedoms.
        The State, over appellant's objection, called appellant's niece in rebuttal to testify about extraneous offenses appellant committed against her fifteen years earlier. She testified she was ten when appellant baby-sat her one weekend. Several things appellant did made her feel uncomfortable, including descriptions about sex with his girlfriend, asking her to swim nude, exposing himself, and telling her she was his favorite niece. On the last night of his stay, he came into her room and got into bed with her. He unhooked her bra, groped her breast, and kissed and licked all over her face. “[S]ometime later” she told her family about the incident, but they did not make a police report “to protect the family.”
        The jury found appellant guilty of the offenses as charged in the indictments and assessed punishment at twenty years' confinement in the indecency with a child case and life imprisonment in the aggravated sexual assault of a child case. At the State's request, the trial court ordered appellant's sentences to run consecutively.
II. DISCUSSION
 
A. Extraneous-Offense Evidence
 
        In his first two issues, appellant challenges the trial court's admission of extraneous-offense testimony by the niece (issue one) and the pornography retrieved from his computer (issue two). Appellant relies on evidence rules 403 and 404(b). See Tex. R. Evid. 403, 404(b).
        We review a trial court's ruling on the admissibility of evidence for an abuse of discretion and will reverse only when the trial court's decision was so clearly wrong as to lie outside the zone of reasonable disagreement. Hayden v. State, 296 S.W.3d 549, 553 (Tex. Crim. App. 2009); De La Paz v. State, 279 S.W.3d 336, 343-44 (Tex. Crim. App. 2009).
 
1. Applicable Law
 
        Rule 404(b) prohibits the admission of extraneous-offense evidence to prove an individual's character or to show action in conformity with that character. Tex. R. Evid. 404(b). This limitation is not based on legal relevance; rather, the evidence is inherently prejudicial, has a tendency to confuse the issues, and forces the accused to defend himself against uncharged crimes in addition to the charged offense. Daggett v. State, 187 S.W.3d 444, 451 (Tex. Crim. App. 2005); Albrecht v. State, 486 S.W.2d 97, 100 (Tex. Crim. App. 1972).
        Yet extraneous-offense evidence may be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Tex. R. Evid. 404(b). Rebuttal of a defensive theory is also a permissible purpose under rule 404(b). See Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003); Albrecht, 486 S.W.2d at 101. For example, evidence of extraneous offenses in sexual assault cases is properly admitted under rule 404(b) to rebut a defensive theory of retaliation or fabrication or that the defendant is “the innocent victim of a 'frame-up' by the complainant or others.” Wheeler v. State, 67 S.W.3d 879, 888 n.22 (Tex. Crim. App. 2002); see also Bass v. State, 270 S.W.3d 557, 563 & n.8 (Tex. Crim. App. 2008).
        Under rule 403, relevant evidence of extraneous-offenses may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice or confusion of the issues. See Tex. R. Evid. 403; see also Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1991) (op. on reh'g) (presumption relevant evidence more probative than prejudicial). In considering a rule 403 challenge, courts must balance (1) the inherent probative force of the evidence-that is, how strongly it serves to make more or less probable the existence of a fact of consequence to the litigation, with (2) the proponent's need for that evidence against (3) any tendency of the evidence to suggest a decision on an improper basis, commonly, an emotional one, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006). We should reverse the trial court's balancing determination “'rarely and only after a clear abuse of discretion.'” Montgomery, 810 S.W.2d at 392 (quoting United States v. Maggitt, 784 F.2d 590, 597 (5th Cir. 1986)). In addition, because rule 403 permits the exclusion of admittedly probative evidence, “it is a remedy that should be used sparingly, especially in 'he said, she said' sexual-molestation cases that must be resolved solely on the basis of the testimony of the complainant and the defendant.” Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009).
2. Analysis
        a. Testimony of Appellant's Niece
        Appellant complains in his first issue that the niece's testimony is inadmissible extraneous- offense evidence of a remote incident that is not probative, but simply inflammatory. He argues the testimony was offered to prove he was guilty of the offenses charged because he had done something similar to a third person. He maintains the State's need for the niece's testimony was minimal.
        Appellant's theory at trial that the girls fabricated their stories was clear from the beginning. In voir dire, defense counsel questioned the potential jurors on the theory that “kids do lie,” asking if everybody understood that “kids might make allegations like this up” and “under what situations they may do that?” As part of his own testimony, appellant denied the girls' allegations and accused them of lying. He also elicited testimony that Wilma complained about appellant's discipline and closed by linking Wilma's complaints and appellant's discipline to a motive for lying about the abuse. The theme of appellant's closing was “[i]t's what they said and what he said. She said, he said.”
        Based on this record, the trial court could have reasonably concluded the niece's testimony was offered to rebut appellant's defense of fabrication. See Tex. R. Evid. 404(b); Montgomery, 810 S.W.2d at 394; see also Bass, 270 S.W.3d at 563 (extraneous-offense evidence admissible to rebut defense of fabrication). We therefore conclude the trial court did not abuse its discretion in overruling appellant's objection under rule 404(b) and allowing the testimony as relevant rebuttal evidence.         
        We also conclude the trial court did not abuse its discretion in overruling appellant's rule 403 objection. Given appellant's sole defensive theory of fabrication, the inherent probative force of the niece's testimony strongly served to make the existence of a fact of consequence to the litigation more probable. See Gigliobianco, 210 S.W.3d at 641 (factor one). Appellant focuses on the second factor of lack of need for the niece's testimony, arguing that each girl corroborated the other's testimony and they needed no shoring up. He further maintains the strength of the State's case was evident in its closing argument when it pointed out appellant had never looked the jury in the eye and denied the offenses. Yet appellant ignores his own testimony and theory attacking the girls' credibility. While the niece's testimony of sexual abuse carried emotional weight (factor three), the trial court addressed any concern the evidence be given undue weight by twice giving limiting instructions (factors four and five). Additionally, the State's presentation of the testimony was brief and not particularly graphic (factor six). Therefore, considering the rule 403 factors, the trial court's balancing determination does not present one of those rare situations constituting a clear abuse of discretion requiring reversal. Montgomery, 810 S.W.2d at 392; see also Hammer, 296 S.W.3d at 568 (exclusion under rule 403 should be used sparingly, especially in “he said, she said” sexual-molestation cases). The trial court's ruling that any unfair prejudice does not outweigh the probative value is within the zone of reasonable disagreement. Moses, 105 S.W.3d at 627. We overrule appellant's first issue.
         b. Pornographic Evidence
        In his second issue, appellant complains the trial court abused its discretion in admitting, over his rule 404(b) and 403 objections, the five pornographic images as State's Exhibits 14 through 18 and the Google search for pornographic content as State's Exhibit 25. He argues the exhibits were “inflammatory in the extreme” and the State “did not have any need for additional, extraneous offense evidence to prove the element of intent to gratify sexual desires because such intent is self- evident and obvious from the act itself.”
        Both indictments required the State to prove, among other things, appellant committed the offenses with the intent to arouse or gratify his sexual desire. See Tex. Penal Code Ann. §§ 21.11(a)(2), 22.021; Ochoa v. State, 982 S.W.2d 904, 908 (Tex. Crim. App. 1998). Intent may be inferred from circumstantial evidence, “such as acts, words, and the conduct of the appellant.” Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). Intent, however, “cannot be inferred simply by concluding that the defendant committed the offense.” Sarabia v. State, 227 S.W.3d 320, 324-25 (Tex. App.-Fort Worth 2007, pet. ref'd). A defendant's possession or viewing of pornography is relevant circumstantial evidence of intent to arouse or gratify his sexual desire. 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) (sexually explicit magazine relevant to intent).
        Here, Baskerville testified the females depicted in the five images were young. Appellant testified “pure nakedness” alone is pornographic to him. He also agreed some of the females resembled Wilma and Pebbles. Based on the record, including a review of the exhibits, the trial court could have reasonably concluded the exhibits were probative of appellant's intent or motive to arouse or gratify his sexual desires via young females. See Tex. R. Evid. 404(b); Sarabia, 227 S.W.3d at 324. We therefore conclude the trial court did not abuse its discretion in overruling appellant's objection under rule 404(b).
        Applying the rule 403 balancing factors, we also conclude the trial court did not abuse its discretion in overruling appellant's rule 403 objection. See Tex. R. Evid. 403. As discussed above, the five pornographic images and the Google search screenshot were probative and necessary to show appellant's intent to arouse or gratify his sexual desire, an element of both offenses. There were no witnesses to the abuse, and there was no physical evidence. Although the girls testified to the abuse, appellant's entire defense consisted of an attack on their credibility. The exhibits were also probative in that they corroborated Wilma's testimony that she saw appellant look at pornography on the computer and he showed her magazines containing pictures of nude girls.
        Appellant argues the exhibits were inflammatory to such an extent the jury could have concluded “anyone who had that sort of material on his computer must necessarily be guilty of the same thing with his step-daugher[s], when it is nevertheless possible that viewing the images on the computer was a separable offense from the offense[s] charged.” While the exhibits were undoubtedly prejudicial, it is unlikely the exhibits made an irrational impression on the jury given the activity for which appellant was on trial. See Sarabia, 227 S.W.3d at 324. The State limited the visual presentation to just five of the 3008 pornographic images found, presented a screenshot of only one Google search retrieved from the computer, and the State did not spend an inordinate amount of time on the exhibits. The trial court also gave the jury a limiting instruction. Thus, in balancing the rule 403 factors, the trial court's ruling that the danger of unfair prejudice does not outweigh the probative value is within the zone of reasonable disagreement. Moses, 105 S.W.3d at 627. Accordingly, we conclude the trial court's decision to admit the pornographic content was not an abuse of discretion and appellant has shown no basis for reversal. See Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). We overrule appellant's second issue.
B. Forensic Interview Recordings
 
        In appellant's third issue, he asserts the trial court erred in admitting as first outcry statements State's Exhibits 4 and 5, which were digital recordings of Wilma's and Pebbles's forensic interviews. The interviews were conducted by Holly Robinson with the Children's Advocacy Center. Robinson testified her job as a forensic interviewer is “to just get the facts” for law enforcement and child protective services, stating the interview is a “neutral fact-finding process so the child doesn't have to go through many interviews.” Robinson described her sessions with Wilma and Pebbles and confirmed that State's Exhibits 4 and 5 were the recordings of those interviews.   See Footnote 1  At trial, appellant objected to the exhibits based on repetitiveness and argued Robinson was not the outcry witness. The trial court overruled the objection, and the interviews were played for the jury.
        On appeal, appellant contends the interviews were inadmissible because “they were hearsay and not first outcry statements.” Appellant maintains the forensic interviews were subject to the mandatory notice and written transcript requirements of article 38.072 of the Texas Code of Criminal Procedure and had the State complied with such requirements, “defense counsel could have avoided the surprise” of the jury hearing references made by the girls to extraneous offenses committed by appellant. We begin with appellant's contention the interviews were inadmissible in their entirety because they were “not first outcry statements.”
        Article 38.072 of the Texas Code of Criminal Procedure is a statutory exception to the hearsay rule and permits the State to introduce outcry statements made by a child abuse victim that otherwise would be inadmissible. See Tex. Code Crim. Proc. Ann. art. 38.072 (West Supp. 2010). Before the outcry statements are admissible, however, several requirements must be satisfied. See id. art. 38.072, § 2. Here, however, nothing in the record suggests the State attempted to designate Robinson as the outcry witness for either complainant or to offer the exhibits as outcry statements. Rather, the record shows the State offered the complainants' mother as the outcry witness for Wilma and a family friend as the outcry witness for Pebbles and complied with article 38.072 as to both witnesses. Because Robinson was not offered as the outcry witness for either complainant and the record does not reveal a situation where the State attempted to present more than one outcry witness for each complainant, we conclude the requirements of article 38.072 are inapplicable. We therefore overrule appellant's issue to the extent he complains the State failed to meet article 38.072's requirements.
        As to appellant's hearsay challenge, he appears to attack the exhibits themselves as well as specific references to extraneous offenses contained on the recordings. The State responds appellant failed to preserve this point for appellate review because his complaint at trial does not comport with his complaint on appeal. We agree.
        It is well-settled that an objection at trial that does not comport with the complaint raised on appeal preserves nothing for appellate review. See TEX. R. APP. P. 33.1(a); Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999). Appellant's only objections to admission of the exhibits were repetitiveness and that Robinson was not the initial outcry witness.   See Footnote 2  Appellant never raised a hearsay objection to admission of the recordings themselves and therefore has failed to preserve error.
        Even had appellant preserved a valid hearsay objection, any error was harmless. See Tex. R. App. P. 44.2(b). Under rule 44.2(b), a non-constitutional error “that does not affect substantial rights must be disregarded.” Id.; see also Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998) (improper admission of hearsay evidence is non-constitutional error). “[S]ubstantial rights are not affected by the erroneous admission of evidence 'if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect.'” Motilla v. State, 78 S.W.3d 352, 357 (Tex. Crim. App. 2002) (quoting Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001) and Johnson, 967 S.W.2d at 417). In situations where a video recording is admitted improperly, yet the recording essentially repeats the testimony of the victim and is cumulative of the victim's properly admitted testimony on the same issue, “courts often disregard the error, reasoning that it could not have affected the appellant's substantial rights.” Dunn v. State, 125 S.W.3d 610, 615 (Tex. App.-Texarkana 2003, no pet.) (citing Jensen v. State, 66 S.W.3d 528, 537 (Tex. App.-Houston [14th Dist.] 2002, pet. ref'd)); see also Anderson v. State, 717 S.W.2d 622, 627 (Tex. Crim. App. 1986) (“If the fact to which the hearsay relates is sufficiently proved by other competent and unobjected to evidence . . . the admission of the hearsay is properly deemed harmless and does not constitute reversible error.”).
        Here, the forensic interviews were admitted after Wilma and Pebbles had already testified to the abuse. Although appellant contends the recordings contain “the most detailed descriptions of the offenses alleged,” he does not contend the interviews contain different facts or allegations from what was testified to by Wilma and Pebbles or the designated outcry witnesses. Appellant's trial objection in fact was that the recordings were “repetitive.” Having reviewed the recordings and the transcript of the complainants' live testimony, we conclude Exhibits 4 and 5 were in all relevant aspects the same as the testimony of Wilma and Pebbles at trial. Therefore, any error in admitting the recordings could not have affected appellant's substantial rights. Dunn, 125 S.W.3d at 615.
        After the exhibits were admitted, appellant lodged objections specifically to extraneous offenses referenced on each recording, and the trial court sustained those objections. Specifically, appellant complains about the reference Wilma made on Exhibit 5 to appellant having sexually assaulted his niece and the reference Pebbles made on Exhibit 4 to appellant having raped her mother.
        Wilma's interview (Exhibit 5), was the first interview played for the jury. When the recording ended, appellant objected “to the last portion of the exhibit” related to appellant's sexual assault of his niece, arguing “it's a violation of a previous court order.” Following an off-the-record discussion, appellant also asked the trial court to instruct the jury as to the last question and partial answer and moved for a mistrial. The trial court instructed the jury to disregard Wilma's last statement and denied the motion for mistrial.
        Pebbles's interview (Exhibit 4) was subsequently played for the jury. At one point, defense counsel asked to stop the recording and objected to the portion where Pebbles, responding to Robinson's question, said she thought appellant “might have raped her mother.” Defense counsel objected to the statement, arguing it was hearsay and constituted an extraneous offense. The trial court sustained the objection and instructed the jury to disregard Pebbles's final statement. The trial court also denied appellant's motion for mistrial.
        Without addressing his failure to preserve error, appellant complains about the “harm” and “surprise” he suffered when the jury heard reference to his extraneous offenses on the recordings. But the record shows in both instances that the references to the extraneous offenses were brief, contained no substantive facts about the alleged conduct, and were followed by limiting instructions from the trial court. The record also shows the State attempted to cut off the recordings before the statements were made and took immediate action to stop the tapes. Wilma's reference to appellant's sexual abuse of her cousin on Exhibit 5, in particular, could not have affected appellant's substantial rights because the niece later testified about the extraneous offense. In addition, the girls' mother testified appellant had never been violent with her, thus mitigating any effect the brief reference by Pebbles that she thought appellant might have raped her mother.
        Based on this record, we overrule appellant's third issue.        
 
C. Denial of Motion for Mistrial
 
        In his fourth issue, appellant specifically argues the trial court erred in denying his motion for mistrial following “admission of sexual misconduct evidence towards Appellant's niece through the forensic interview tape of [Wilma]” (Exhibit 5). Appellant contends “the extraneous offense could not be reasonably considered relevant to the exceptions listed in Rule 404(b)” at that stage of the trial and maintains the admission of such evidence was unfairly prejudicial.
        We review a trial court's decision to deny a mistrial for an abuse of discretion. Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). We will reverse only when the trial court's decision was so clearly wrong as to lie outside the zone of reasonable disagreement. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). “Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required.” Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).
        Whether a witness's improper reference to an extraneous offense warrants a mistrial depends on the particular facts of the case. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). A mistrial is required only when the improper question or evidence is clearly prejudicial to the defendant and “is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors.” Id.; see also Young v. State, 283 S.W.3d 854, 878 (Tex. Crim. App. 2009) (per curiam), cert. denied, 130 S. Ct. 1015 (2009).         An instruction to disregard will ordinarily cure error associated with a witness's improper reference to an extraneous offense committed by the defendant. See Ovalle v. State, 13 S.W.3d 774, 783-84 (Tex. Crim. App. 2000). We presume the jury followed the trial court's instruction to disregard testimony in the absence of evidence that it did not. Ladd, 3 S.W.3d at 567; State v. Boyd, 202 S.W.3d 393, 402 (Tex. App.-Dallas 2006, pet. ref'd). In determining whether the trial court erred in denying a motion for mistrial, we consider (1) the severity of the misconduct or the magnitude of the prejudicial effect; (2) the measure adopted to cure the misconduct; and (3) the certainty of conviction or punishment absent misconduct. Archie, 221 S.W.3d at 700.
        Considering the particular facts of this case, we conclude the trial court did not abuse its discretion in denying appellant's motion for mistrial. As described above, the reference to appellant's sexual misconduct involving his niece was brief, did not contain any substantive facts, was not repeated by the State, and was followed by a prompt instruction to disregard. Although appellant asserts otherwise, nothing in the record suggests the reference to appellant's extraneous conduct was so “highly prejudicial and incurable” that the trial court erred in denying his motion for mistrial. Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003). Indeed, any error would be harmless; the same evidence was later introduced by appellant's niece who testified appellant sexually abused her. We overrule appellant's fourth issue.
CONCLUSION
 
        Having resolved appellant's four issues against him, we affirm the trial court's judgment in both cases.
 
 
                                                          
                                                          MARY MURPHY
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
090741F.U05
 
Footnote 1 Exhibit 4 was the recording of Pebbles's interview; Exhibit 5 was the recording of Wilma's interview. Both interviews occurred on July 29, 2008. Exhibits 4 and 5 were played for the jury during the State's case.
Footnote 2 After the recordings were admitted and were being played for the jury, appellant objected to playing the portion of the recordings relating to the extraneous offenses. Those objections will be addressed in connection with the Court's additional harm analysis as to those statements.