JOHN WESLEY PATTERSON, III, Appellant v. THE STATE OF TEXAS, Appellee

Annotate this Case

AFFIRM as modified; Opinion issued November 29, 2007

In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-00808-CR
No. 05-06-00876-CR
............................
JOHN WESLEY PATTERSON, III, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 416th Judicial District Court
Collin County, Texas
Trial Court Cause Nos. 416-82555-05 and 416-82554-05
.............................................................
OPINION
Before Justices Moseley, Lang, and Mazzant
Opinion By Justice Mazzant
        John Wesley Patterson, III, was convicted of multiple counts of aggravated sexual assault of a child, sexual assault of a child, and indecency with a child against C.J. and her sister A.L. In six issues, he raises legal and factual insufficiency and trial court error in the admission of testimony regarding pornographic computer images and a pornographic videotape found in his home. As modified, we affirm the trial court's judgments.
Background
        A.L., her younger sister C.J., and their brother R.J. were removed from the custody of their parents and placed with various family members and foster homes in Louisiana and Texas over a period of several years. When placement with an uncle proved unsuccessful, appellant and his wife offered to take them in. In May of 2002, C.J., twelve years old, R.J., eleven, and A.L., sixteen, moved in with appellant, his wife Joanne, and his daughter Kimberly. Appellant was a friend of the children's biological father and had known the children for several years. The children called him “Uncle John.” They referred to appellant's wife as “Aunt Joanne.”
        When the children first arrived at appellant's home, everything seemed perfect. Appellant owned a large home, his family treated the children as members of the family, and the children did well in school. Appellant ran a trucking-service business and sold herbal products. He also operated a “spa” in a second home.   See Footnote 1
        C.J. testified her relationship with appellant began to change after he started giving the children massages. At various times he had massaged all three children and, in turn, taught them how to give massages. One day, while massaging C.J., appellant reached up the pant leg of her pajamas and touched her “cuckoo,” or vagina, over her underwear. This occurred in an upstairs bedroom that appellant also used as an office. As appellant was touching her, C.J. thought “this can't be happening.” She said she did not report the incident because she was in “disbelief.”
        Several days later, when they were in his office, appellant asked C.J. to give him a massage. Appellant was lying on the floor and told C.J. to straddle him and rub his stomach on top of his clothing. Appellant's “wacky,” or penis, was inside his pants and felt “kind of hard.” C.J. was sitting on appellant's penis with her “cuckoo/butt area” touching his penis as she massaged his stomach on top of his clothing. When she tried to stand up, appellant told her to sit back down. Appellant began to move his body “[u]p and down, like . . . something you would do in . . . the bed with someone.” C.J. agreed with the prosecutor that it was “like sex except [appellant] had his clothes on.” After that, appellant “just stopped.”
        C.J. told Kimberly about this incident. Kimberly immediately became upset, started crying, and then told her mother, Joanne. A “family meeting” was called. At that family meeting, C.J., A.L, R.J., Kimberly, and Joanne were in attendance, but the record is not clear as to the outcome of the meeting. There was also a second family meeting at which all members of the family were present, including appellant. At the second family meeting, C.J. told the other family members what had happened. Appellant became upset and told Joanne “it wasn't true.” He also said he wanted the children to move out, although he later changed his mind. After the second meeting, Joanne instituted a rule that “[n]o one in the house could give massages.” According to C.J., however, that
rule did not “last too long.”
        A week or two later the “massages” started again, but this time “they weren't as innocent.” C.J. said that, over time, the situation gradually escalated from hand massages “to being in my room taking my clothes off.” Appellant would touch her vagina, her “butt,” and touch and kiss her “boobies.” He massaged her “butt” with his hands, put his mouth on her vagina, licked her vagina, and put his fingers inside her vagina. Appellant also rubbed his penis between her legs but did not penetrate her. He never asked C.J. to touch him but appellant sometimes said things like “thanks for last night” and “there's so many things I would want to do to you.”
        Appellant did not threaten C.J. but it was “kind of understood” that if she told anyone about the abuse the children would be removed from appellant's home. Because they did not “have anywhere else to stay,” C.J. feared the children would be separated if they reentered the foster care system. On cross-examination, C.J. admitted that she had taken medication for panic attacks when she was younger. She also admitted that she had suffered from hallucinations and was treated by a psychiatrist.
        C.J. also testified that she had seen appellant entering A.L.'s room late at night before he started to touch her sexually. When she asked A.L. about this, A.L. said appellant “didn't do anything.” C.J. did not believe her, however, “[b]ecause it just seemed so suspicious.”
        A.L., twenty years old at the time of trial, testified that when she first moved in to appellant's home, “everything was real good.” He provided for their needs and gave them gifts. The situation changed, however, after appellant started to give the children massages. When A.L. was alone with appellant he would begin by massaging her feet or back, her thighs, and then her breasts. If other children were present, appellant would give “regular” massages for everyone and turn it into a learning experience, telling them “he was just going to practice his massages.” A.L. eventually noticed appellant was massaging her more than the other children. When the massages became “too personal,” she “said something about it” to Joanne and Kimberly. After the family meetings appellant stopped touching A.L. for a couple of weeks, but then “he started again.” A.L. did not complain again.
        Appellant started coming into A.L.'s room in the middle of the night and giving her hand massages. One night, when A.L. was asleep in the guest room downstairs, appellant woke her up and said he was going to give her a massage. He told her to remove her shirt. After massaging her back, appellant ordered her to roll over and started touching her breast with his “mouth and his hands.” A.L. did not stop him because she was scared, hurt, and shocked. Appellant knew she had been molested before she moved in to his home.
        Over time, appellant's behavior escalated from touching A.L.'s breasts to licking her vagina, massaging her pelvic area, and inserting his fingers into A.L.'s vagina. A.L. eventually stopped sleeping in the guest room but appellant would periodically order her to “go down there,” and when he did this she “knew what it was for.” Afterwards, she would go upstairs to C.J.'s room, but A.L. did not tell her what was happening. On another occasion, when A.L. was at home from school, sick, and Joanne was at work, appellant told her to rub his nipples while he masturbated. Appellant ejaculated into his hand.
        After this incident, A.L. told appellant she was uncomfortable with the way he was touching her, and they argued. She told him she wanted to move in with her mother. Appellant said that was not a “good place” for her. He also promised “he would stop and . . . everything would go back to normal.” But appellant only “stopped for a little while,” then “started back up again.”
        A few weeks later, A.L. was sleeping alone upstairs in Kimberly's room. Appellant came in and asked her to “rub his nipples,” then told her to lie down. Appellant pulled her “to the edge of the bed so that [her] butt was on the edge of the bed and he was between [her] legs.” Appellant performed oral sex on her and masturbated as he knelt on the floor at the edge of the bed. She could not recall if he ejaculated. Appellant preferred to have A.L. “play with his nipples a lot while he masturbated.” He also liked to perform oral sex on her while masturbating. Appellant asked A.L. touch his penis “a couple of times,” but she did not masturbate him very well and “he ended up just doing it himself.”
        Appellant wanted to watch A.L. shower. Sometimes he would bring a video camera into the shower but he told her it did not work. He also wanted to watch A.L. masturbate. Because she did not know how to masturbate, appellant told her what to do. Appellant also made her tell him “stories” about sexual positions and how many men she could “take at one time.” If A.L. did not answer “correctly,” he would start the process all over again and tell her what to say. Appellant would masturbate while she masturbated and told him these “stories.” During these encounters, everyone else in the house was “[e]ither asleep or gone,” depending on the time of day.         In the beginning, the molestation occurred only at appellant's residence on Swanson Street. But after A.L. started assisting appellant at the spa in his second home, appellant would sometimes take her to an upstairs room and either perform oral sex on her or masturbate while watching her masturbate. On one occasion, appellant attempted “to go all the way” but was unable to fully penetrate A.L.'s vagina with his penis, and he eventually ejaculated on her stomach. This was the only time appellant attempted to have sexual intercourse with A.L. He never wore a condom.
        Appellant told A.L. he wanted to watch her have sex with her boyfriend, L.F. Appellant told her to make L.F. “feel good.” A.L. would allow L.F. to fondle her in the back seat of appellant's car while appellant watched them in the rearview mirror. Sometimes appellant would park the car and on other occasions he would just drive around. A.L. said L.F. knew “what was going on” and that “sometimes we faked it just to make [appellant] happy.”
        Appellant enjoyed talking to A.L. about his relationships and sexual experiences with other women. Some of these conversations were “normal” while others concerned appellant's fantasies. When they were discussing appellant's fantasies, appellant would ask A.L. fantasy questions of a highly sexual nature while he masturbated. A.L. told appellant what she thought he wanted to hear because she just wanted it to “be over with.”
        Appellant often talked about anal sex and once tried to talk A.L. into having anal intercourse, but she was not interested. On one occasion, appellant put his fingers in her anus but she told him to stop because it was uncomfortable. Appellant told A.L. he did not need any other women because she was “all he needed” and “all he wanted.” He promised to take care of A.L.'s family “forever.” He also claimed he had sex with A.L.'s mother and that he was her father. Once, while engaged in a sexual act with A.L., appellant told her that she was “better than” her mother.
        Appellant showed A.L. a variety of pornographic material, including pornographic movies and videos, pornography involving children, “cartoon pornography,” and depictions of people having sex with animals. The pornography that showed people having sex with animals consisted of both movies and photographs of men and women “having sex with horses and dogs.” One of the “regular” pornographic movies that appellant showed A.L. depicted a woman rubbing a man's nipples while having sex with him.
        When A.L. refused appellant's advances, he would punish her by not allowing her “go anywhere.” He told her she could do whatever she wanted provided she “kept him happy,” and that their relationship “was our secret.” A.L. never saw appellant touch C.J. apart from the “normal” massages that he was giving to all of the children.
        A.L. eventually reported the abuse to her boyfriend, L.F. She then spoke to her boyfriend's stepfather, Walter Williams, but she asked Williams not to tell anyone about the abuse “at that point” because she wanted to determine if she and the other children could find another place to stay. Williams sought the advice of his pastor, who called the police. Child Protective Services (CPS) came to appellant's home on the evening of October 18, 2002, just as A.L. was preparing to attend a homecoming dance. CPS was looking specifically for A.L., but all three children were removed from appellant's home and taken to the Collin County Children's Advocacy Center (CAC). When CPS arrived to remove the children from appellant's home, C.J. pulled A.L. aside and told her “that it had happened to her, too.” A.L. replied, “Well, I don't know what you're talking about. It didn't happen to me.” According to A.L, this was the first time that she learned appellant was molesting C.J. When the prosecutor asked why she lied to C.J., A.L. said she was afraid C.J. would be upset “that I didn't tell her in the first place that it was happening.”
        At the CAC, all three children were interviewed by a forensic investigator, Connie Palmer. C.J. told the interviewer about appellant's conduct because she felt it was just “too big” to keep secret. R.J. did not report any sexual abuse. During her interview, A.L. denied that appellant had abused her. Several days after her first CPS interview, however, A.L. “broke down”at school and told a school counselor what had happened, including the lies to the investigator. She was interviewed by another CAC investigator, Janetta Michaels, on October 22, 2002. A.L. told the jury she decided to come forward because she did not want C.J. “to have to deal with it alone,” and because she believed appellant deserved to be punished for his conduct.
        Palmer and Michaels testified that C.J., R.J., and A.L. showed no indications of deception, coaching, or vindictiveness against appellant during their interviews. Palmer said it is common for children to deny or minimize abuse when first discussing it and that children might deny abuse to authorities but confide in someone else.
        Shortly after A.L.'s second interview with the CAC, the Plano Police Department served a search warrant on appellant's home. Among other items, the police found a pornographic videotape that showed appellant masturbating while an unidentified woman rubbed his nipples. In addition, pornography involving animals was recovered from a computer in appellant's home. The police did not find any pornographic pictures or videos of C.J. or A.L. Carpet samples were seized from areas where it was thought appellant might have ejaculated, but subsequent testing found no semen or DNA.
        At the time of trial, A.L. had custody of C.J. and R.J., who was in juvenile detention. Under cross-examination, A.L. admitted that she had spent “about a week” at an in-patient mental facility after attempting suicide. She also acknowledged that she occasionally allowed C.J. to stay at her biological mother's apartment. A.L. testified that she was supporting her brother and sister by working as a dancer at the Dallas Gentleman's Club. She had recently purchased a four-door BMW 318i and started receiving food stamps the month before trial. Appellant's counsel also emphasized that A.L. denied abuse during her first CAC interview.
        Joanne Patterson testified that she sometimes used the upstairs part of their home but did not go upstairs “[a]round the last week or two of September,” 2002, because her knees were bothering her so much that she could not walk. She called the family meeting because Kimberly told her about massages appellant was performing on C.J.'s leg, which was injured in cheerleading practice. After the family meeting, everyone agreed there would be no more massages. Joanne said appellant was present at the meeting and was not angry. She also pointed out that an intercom system in the home enabled her to monitor every room of the house from the master bedroom. During the week that the children were removed from appellant's home by CPS, Joanne told A.L. that the children might have to leave her home because her family could not bear the financial burden of having one daughter in college and three other children living at home. A.L. was “very upset” when told that her stay at appellant's home might be coming to an end.
        Joanne also testified that the computer seized from appellant's home was connected to the internet and other people in the house had access to it, including the children, who used it for doing homework or playing games. She said that “once or twice,” R.J. had “hollered” to her that C.J. “was looking at porno,” and that they were “nasty, nasty things.” She also claimed appellant did not use the computer very often because he “didn't know too much about computers.”
        Kimberly Patterson testified that she told her mother appellant was massaging C.J.'s leg because she was worried C.J. might be uncomfortable with the massages, given her history of sexual abuse. Kimberly denied being upset about the massages and said that C.J. never told her she was uncomfortable with the way appellant was touching her. She also claimed A.L. made statements that were inconsistent with appellant's guilt when they went to a nightclub together after appellant's arrest, and when she and her sister, Tiffany, later encountered A.L. in the bathroom during a hearing at the courthouse in Shreveport, Louisiana.
        Called as a rebuttal witness, C.J. insisted that she approached Kimberly after the massages became “more sexual,” and that she told Kimberly she “was a bit uncomfortable with it.” Kimberly became “really upset,” started crying, and told her mother.
        In two separate indictments, appellant was charged with three counts of aggravated sexual assault of a child, eight counts of indecency with a child by contact, two counts of indecency with a child by exposure, and three counts of sexual assault of a child.   See Footnote 2 The court directed a verdict of not guilty on count seven of the case involving C.J., after which the jury found appellant guilty on the remaining counts in both cases. The trial court found true an enhancement allegation alleging a prior sexual assault conviction, and assessed punishment at life in prison for each count of both indictments.
Discussion

Factual and legal sufficiency

        In his first four issues, appellant complains the evidence is legally and factually insufficient to support his convictions.
        In evaluating a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia , , 319 (1979); Drichas v. State, , 798 (Tex. Crim. App. 2005); Lane v. State, , 191-92 (Tex. Crim. App. 2004); Sanders v. State , , 820 (Tex. Crim. App. 2003). The fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.).
        In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, , 415 (Tex. Crim. App. 2006); see also Marshall v. State, , 625 (Tex. Crim. App. 2006). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Johnson v. State, , 8 (Tex. Crim. App. 2000).         Under the law in effect at the time of the offense, a person committed aggravated sexual assault of a child if he intentionally or knowingly caused the penetration of the anus or female sexual organ of a child younger than fourteen years of age “by any means,” or caused the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor. See Act of May 15, 2001, 77th Leg., R.S., ch. 459, § 5, 2001 Tex. Gen. Laws 893, 898-99 (effective September 1, 2001) (current version at Tex. Penal Code Ann. § 22.021(a)(1)(B), (a)(2)(B) (Vernon Supp. 2007)). A person committed sexual assault if the person intentionally or knowingly caused the penetration of the anus or female sexual organ of a child younger than seventeen years of age and not the person's spouse “by any means” or caused “the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor.” See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, § 22.011(a)(2), 1993 Tex. Gen. Laws 3586, 3618, 3766 (current version at Tex. Penal Code Ann. § 22.011(a)(2)(A), (C), (c)(1) (Vernon Supp. 2007)).
        A person commits the offense of indecency with a child by contact if, with a child younger than seventeen years and not the person's spouse, the person engages in sexual contact with the child. Tex. Penal Code Ann. § 21.11(a)(1) (Vernon 2003). A person commits the offense of indecency with a child by exposure if, with a child younger than seventeen years and not the person's spouse, the person, with intent to arouse or gratify the sexual desire of any person, exposes his anus or any part of the person's genitals, knowing that the child is present. Id. § 21.11(a)(2)(A). “Sexual contact” includes the following acts, “if committed with the intent to arouse or gratify the sexual desire of any person”: (1) “any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child;” or (2) “any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person.” Id. § 21.11(c).
        The testimony of a child victim alone is sufficient to support a conviction for aggravated sexual assault or indecency with a child. See Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon 2005); Perez v. State, 113 S.W.3d 819, 838 (Tex. App.-Austin 2003, pet. ref'd); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.-Dallas 2002, pet. ref'd).
        Aggravated sexual assault and indecency with a child (C.J.)
        In his first and second issues, appellant claims the evidence is factually insufficient to support the jury's findings that he was guilty of aggravated sexual assault of a child and indecency with a child in the case involving C.J. Specifically, appellant argues C.J. was not a credible witness
because she had raised unsubstantiated molestation allegations against her first cousin, Alonzo, and her grandmother's foster son, Che, without any result. Appellant also points out that both C.J. and A.L. were under the supervision of a Louisiana judge who was monitoring their placement, yet they said nothing to him or to one another about any sexual abuse by appellant. Their brother, R.J., did not report any sexual abuse to authorities and testified that he noticed nothing wrong with his sisters. Appellant also claims that the large number of sexual acts reported by C.J. and A.L. would have been impossible “in the environment at hand” given the presence of appellant's wife and daughter in the home, an intercom system that operated throughout the house, and the absence of scientific evidence despite “a record replete with masturbation and ejaculation.”
        It was the jury's function to resolve any conflicts in the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Johnson, 23 S.W.3d at 9. The jury may choose to believe some witnesses and disbelieve others. See Margraves v. State, , 919 (Tex. Crim. App. 2000). Here, C.J. testified to facts establishing that appellant committed the offenses of aggravated sexual assault of a child and indecency with a child, as alleged in the indictment. Although C.J. had, at different times, accused her cousin and her grandmother's foster son of sexually molesting her, she claimed the police dropped their investigation of Alonzo after he died from a gunshot wound and claimed her grandmother pressured her lie to caseworkers in order to obstruct the investigation of Che. C.J. also said she was reluctant to say anything to the Louisiana judge about appellant's abuse because she feared being pulled out of her school and sent back to Louisiana. C.J.'s previous accusations of abuse and the absence of physical evidence do not render the evidence factually insufficient.
        The jury was entitled to accept C.J.'s testimony over the testimony presented by appellant, and we will not substitute our own determination for that of the jury. See Marshall, 210 S.W.3d at 625. Viewing all of the evidence in a neutral light, we therefore conclude the jury was rationally justified in finding guilt beyond a reasonable doubt. Thus, we conclude the evidence is factually sufficient to support appellant's convictions for aggravated sexual assault of a child and indecency with a child. See Watson, 204 S.W.3d at 415. Appellant's first and second issues are overruled.
        Sexual assault (A.L.)
        In his third issue, appellant claims the evidence is factually insufficient to support the jury's findings that he sexually assaulted A.L. Like C.J., A.L. also claimed she was sexually molested prior to living with appellant. She also claimed she was raped at a party but did not tell anyone at the time. A.L. said that she did not report appellant's abuse to the Louisiana judge for the same reason she did not tell anyone else: She did not believe that she or the other children “had anywhere else to go.” She also feared they would be separated if they were forced to reenter the foster care system, and they “weren't happy there.”
        A.L. testified to facts establishing that appellant committed the offense of sexual assault as alleged in the indictment. Semen and DNA were not needed to corroborate her testimony. See Tex. Code Crim. Proc. Ann. art. 38.07(a), (b) (Vernon 2005). The jury was free to accept her testimony over that of other witnesses and disregard any inconsistencies. Because the jury's decision on guilt relied on its assessment of the credibility of the witnesses, we defer to its findings. Viewing all of the evidence in a neutral light, we conclude the jury was rationally justified in finding guilt beyond a reasonable doubt. Thus, we conclude the evidence is factually sufficient to support appellant's conviction. See Watson, 204 S.W.3d at 415. We overrule appellant's third issue.
        Indecency with a child (A.L)
        In his fourth issue, appellant argues the evidence is legally and factually insufficient to support the jury's findings that he committed the offense of indecency with a child in the case involving A.L. Appellant again attacks A.L.'s credibility, pointing to her previous unsubstantiated allegations of abuse; her failure to report appellant's abuse to either the Louisiana judge or to anyone else, including her sister; the fact that other people in the house had access to the computer; and the unlikelihood of there being so much sexual contact between appellant and A.L. given, among other things, the absence of physical evidence and the presence of his wife and daughter in the home. However, these challenges to the sufficiency of the evidence are based on the credibility of the witnesses and the weight to give their testimony, issues on which we must defer to the jury. Viewed under the proper standards, we conclude the evidence is legally and factually sufficient to support the conviction. Appellant's fourth issue is overruled.
        The pornographic images
        In his fifth issue, appellant claims the trial court erred in admitting testimony that pornography involving bestiality was recovered from a computer seized during the search of his home.
        According to the record, prior to the testimony of Jeff Rich, an investigator assigned to the family violence unit of the Plano Police Department, the trial court held a hearing out of the jury's presence to consider the admission of testimony regarding multiple pornographic images found on a computer in appellant's home and a pornographic videotape seized from appellant's home. During this hearing, appellant's trial counsel said he accepted “the argument that the presence of some pictures on [appellant's] computer that showed sex acts between human beings and animals is relevant.” Appellant's argument to the court focused on excluding testimony regarding the number of images found on the computer and the precise nature of the sexual acts depicted in those images. Appellant's counsel also stated that if the prosecutor was “going to ask the witness that there were some images on the computer that were consistent with the girl's testimony, then I will not object to that.” The trial court ruled the State could not elicit testimony regarding the number of images found on the computer or describe the images. The hearing then turned to appellant's arguments under Tex. R. Evid. 404 concerning the pornographic videotape.
        When Rich testified in front of the jury, he said that he told the computer analyst to look for pornographic images involving “bestiality” because of information provided by A.L. during her forensic interview, i.e., that “she had been shown by [appellant] images of people having sex with animals on the computer.” When asked about the results of the search, Rich indicated that some pornographic images involving bestiality were found on the computer seized from appellant's home. After Rich described how those images were located and retrieved, the prosecutor asked him whether there was anything on the computer “that was corroborative specifically of [A.L.'s] description of watching on the computer pornography involving animals?” He answered, “Yes, there was.” Appellant did not object to this testimony.
        The State argues appellant failed to preserve this issue for appeal because he did not object at trial when Rich testified that images of pornography involving animals were found on the computer. We agree. As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context. See Tex. R. App. P. 33.1(a). Texas law requires a party to continue to object each time inadmissible evidence is offered, except when defense counsel requests a running objection or objects out of the presence of the jury to all testimony he deems objectionable on a given subject. See Tex. R. Evid. 103(a)(1); Martinez v. State, , 193 (Tex. Crim. App. 2003); Ross v. State, 154 S.W.3d 804, 811 (Tex. App.-Houston [14th Dist.] 2004, pet. ref'd). During the hearing, appellant said he was opposed to the admission of testimony from Rich regarding the pornographic videotape. However, he did not object to testimony that some pornographic images involving animals were found on the computer. An objection stating one legal theory may not be used to support another legal theory on appeal. See Camacho v. State, , 533 (Tex. Crim. App. 1993). Therefore, appellant did not preserve his claim regarding the pornographic images for appellate review. We overrule appellant's fifth issue.
        The pornographic videotape
        In his sixth issue, appellant argues the trial court erred in admitting Rich's testimony concerning the pornographic videotape.
        At the conclusion of the hearing outside the jury's presence, the trial court found that the activity depicted in the videotape did not constitute an extraneous offense or bad act because the act in question was not illegal and did not implicate any statute. After determining rule 404(b) did not apply, the court then concluded that the probative value of the evidence was not substantially outweighed by the potential danger of unfair prejudice. In its charge, the court told the jurors the extraneous offense evidence was admitted for purposes of determining motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or to rebut a defensive theory.
        During the hearing, appellant made two arguments that he repeats here. First, he argued that the testimony concerning the videotape was inadmissible under rule 404(b) because it did not show motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. See Tex. R. Evid. 404(b). He also claimed the testimony was more prejudicial than probative so as to violate rule 403. See Tex. R. Evid. 403.
        Before the jury, Rich testified that he found a “homemade” videotape during his search of appellant's home that showed appellant “with an adult female, naked, masturbating while the adult female fondled his nipples.” Rich did not know the identity of the adult female in the video. He also testified that the videotape was significant “[b]ecause both [A.L.] and [C.J.] had stated [appellant] had done something similar to them and they hadn't seen that video.” The prosecutor asked Rich whether the act that he “saw the defendant engaged in on that videotape” was “the same act that [A.L.] and [C.J.] had described that [appellant] committed with them?” He responded, “Yes.”
        The admissibility of evidence is within the discretion of the trial court and will not be reversed absent an abuse of discretion. Osbourn v. State, , 537 (Tex. Crim. App. 2002). We will not reverse a trial court's ruling concerning the admission of evidence unless that ruling falls outside the zone of reasonable disagreement. See Salazar v. State, , 153- 54 (Tex. Crim. App. 2001). Even when the trial judge gives the wrong reason for his decision, if the decision is correct on any theory of law applicable to the case, it will be sustained. Osbourn, 92 S.W.3d at 538.         Evidence of extraneous offenses, i.e., “other crimes, wrongs, or acts,” is inadmissible “to prove the character of a person in order to show action in conformity” with that character. Tex. R. Evid. 404(b); Carter v. State, 145 S.W.3d 702, 707 (Tex. App.-Dallas 2004, pet. ref'd). An exception to this rule of inadmissibility provides that evidence of other crimes, wrongs, or acts may be admissible for another purpose, for example, to prove “motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” See Tex. R. Evid. 404(b); see also Powell v. State, , 438 (Tex. Crim. App. 2001); Montgomery v. State, , 386 (Tex. Crim. App. 1991) (op. on reh'g). This list is illustrative and not exhaustive. See Johnston v. State, , 219 (Tex. Crim. App. 2004) (extraneous offense may be admissible when a defendant raises an affirmative defense or a defensive issue that negates one of the elements of the crime). Article 38.37 of the code of criminal procedure provides that notwithstanding rule 404, evidence of other crimes, wrongs, or bad acts committed by a defendant against a child who is the victim of the alleged sexual assault “shall be admitted for its bearing on relevant matters, including: (1) the state of mind of the defendant and the child; and (2) the previous and subsequent relationship between the defendant and the child.” Tex. Code Crim. Proc. Ann. art. 38.37 (Vernon Supp. 2007).
        The State argues rule 404(b) does not apply because the act described in Rich's testimony does not constitute an extraneous offense or a bad act. There is, however, no requirement that the evidence must involve another criminal offense or even misconduct in order to fall within the purview of rule 404(b). Bishop v. State, , 345 (Tex. Crim. App. 1993);   See Footnote 3 see also 1 Steven Goode, Olin Guy Wellborn, III & M. Michael Sharlot, Texas Practice: Texas Rules of Evidence § 404.6.2, at 210 (3d ed. 2002). The language of rule 404(b) speaks of “other crimes, wrongs, or acts.” Bishop, 869 S.W.2d at 345. The intent of this rule is to prevent the introduction of evidence to prove the character of a person in order to show that he acted in conformity with that character. Id. A party may introduce such evidence when it logically serves to make more probable or less probable an elemental fact or an evidentiary fact that inferentially leads to an elemental fact. Id. at 346. We therefore conclude, based on the facts of this case, that the testimony in question is evidence of an extraneous act and analysis under rule 404(b) is appropriate. See Bishop, 869 S.W.2d at 345-46.
        Intent and knowledge
        Turning to the rule 404(b) exceptions, the State argues that the trial court properly admitted the extraneous offense testimony because it “corroborated” A.L.'s testimony and showed appellant's intent to commit the offense.
        Extraneous offense evidence may become admissible to help prove intent only if the intent required for a conviction is a contested issue in the case. Dunkin v. State, 194 S.W.3d 14, 26 (Tex. App.-Tyler 2006, no pet.). Intent can be characterized as a contested issue for purposes of justifying the admission of extraneous offense evidence if the required intent for the primary offense cannot be inferred from the act itself or if the accused presents evidence to rebut the inference that the required intent existed. Johnson v. State, 932 S.W.2d 296, 302 (Tex. App.-Austin 1996, pet. ref'd); Carter, 145 S.W.3d at 708. “Intent is most clearly in issue when the defendant argues the charged offense was unintentional or the result of an accident.” Johnson, 932 S.W.2d at 302. “Once the defendant claims accident, mistake, lack of intent, etc., intent can no longer be inferred from other uncontested direct evidence, and the State is allowed to prove intent through evidence of other crimes, wrongs, or acts.” Id.         As noted earlier in the opinion, A.L. testified to numerous and specific acts of sexual abuse perpetrated by appellant over a three to four month period during the summer and early fall of 2002. The jury could infer the required guilty intent from A.L.'s testimony. See, e.g., DeLeon v. State, 77 S.W.3d 300, 312 (Tex. App.-Austin 2001, pet. ref'd) (intent can be inferred from acts, words, and conduct of the accused); Couchman v. State, 3 S.W.3d 155, 163 (Tex. App.-Fort. Worth 1999, pet. ref'd) (specific intent to arouse or gratify sexual desire of a person can be inferred from the defendant's conduct). At trial, appellant did not claim his conduct was unintentional or the result of an accident or mistake; he denied the allegations altogether. When, as in this case, the State's direct evidence shows the intent or knowledge element of the crime and that evidence is uncontradicted by the defendant and not undermined by cross-examination of the State's witnesses, evidence of extraneous offenses is inadmissible. See Rankin v. State, , 719 (Tex. Crim. App. 1998) (op. on reh'g); Owens v. State, , 916 (Tex. Crim. App. 1992); Montgomery, 810 S.W.2d at 397; DeLeon, 77 S.W.3d at 312; Hankton v. State, 23 S.W.3d 540, 546 (Tex. App.-Houston [1st Dist.] 2000, pet. ref'd). Based on the record before us, we therefore conclude the disputed testimony was not admissible on the issue of intent or knowledge. We now consider the other rule 404(b) exceptions.
        Motive
        Motive is not an essential element of a criminal offense and need not be proved to establish the commission of an offense. Bush v. State, , 444 (Tex. Crim. App. 1982); Rodriguez v. State, , 358 (Tex. Crim. App. 1972); Prince v. State, 192 S.W.3d 49, 68 n.6 (Tex. App.-Houston [14th Dist.] 2006, pet. ref'd). Evidence of motive is usually required to relate or pertain to other acts by the accused against the victim of the crime for which the accused is presently being prosecuted. Foy v. State, , 708-09 (Tex. Crim. App. 1980); Prince, 192 S.W.3d at 68 n.6. When, as in this case, the acts do not relate to the same victim, they are not admissible to show motive. Zuliani v. State, 903 S.W.2d 812, 827 (Tex. App.-Austin 1995, pet. ref'd).
        Opportunity
        Evidence of an extraneous offense is admissible under rule 404(b) to rebut a defense of “lack of opportunity” or “impossibility.” See, e.g., Wheeler v. State, , 887-88 (Tex. Crim. App. 2002) (extraneous offense involving another child “with family members in the immediate vicinity” admissible to rebut claim of lack of opportunity and impossibility where defense was that defendant was never alone with child victim); Powell v. State, , 438 (Tex. Crim. App. 2001) (extraneous sexual offenses admissible in sexual abuse case where defense claimed lack of opportunity to commit offense because many children were always present); Abshire v. State, 62 S.W.3d 857, 860 (Tex. App.-Texarkana 2001, pet. ref'd) (extraneous offense evidence admissible in child sexual assault case where defense was lack of opportunity to commit offense and all of defendant's family members testified they never saw defendant do anything unusual with child complainant). However, the issue of opportunity was not raised in this case; therefore, it could not serve as a basis for admitting the extraneous offense.
        Preparation or plan
        Although extraneous offenses may be admissible under rule 404(b) to prove plan or preparation, these issues were not raised in this case. Therefore, they could not serve as a proper basis for admitting the extraneous offense. See Daggett v. State, , 451-52 (Tex. Crim. App. 2005).
        Identity
        Extraneous offenses are also admissible to show identity but only when identity is an issue in the case. See Lane v. State, , 519 (Tex. Crim. App. 1996). Identity was not an issue here because A.L. testified (as did C.J.) that she had known appellant for a considerable period of time. Accordingly, the extraneous offense is not admissible for purposes of proving identity. See id.
        Absence of mistake or accident
        In the instant case, appellant denied the alleged offense by his plea of not guilty and never argued that the conduct alleged in the indictments was the product of accident or mistake. Since neither accident nor mistake was raised in this case, neither could serve as a justification for admitting the extraneous offense under rule 404(b). See Prior v. State, , 959 (Tex. Crim. App. 1983); Prince, 192 S.W.3d at 68 n.6.
        Rebuttal of a defensive theory
        If defensive theories are raised by the State's witnesses on cross-examination, extraneous acts may be introduced into evidence to rebut those theories. See Ransom v. State, , 301 (Tex. Crim. App. 1996) (op. on reh'g); Webb v. State, 36 S.W.3d 164, 180 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd). But the mere fact that the State's witnesses were cross-examined will not, in and of itself, authorize the introduction of extraneous offense evidence. A challenge to the credibility of the complainant, for example, either through argument or cross-examination, does not automatically open the door to extraneous offenses. See Schutz v. State, , 72 (Tex. Crim. App. 1997); DeLeon, 77 S.W.3d at 313. Rather, it is the responses elicited from the State's witnesses on cross-examination which may allow the State to subsequently introduce extraneous offense evidence. See DeLeon, 77 S.W.3d at 314. Extraneous offense evidence is not admissible if offered merely to bolster the testimony of the complainant. Owens, 827 S.W.2d at 918 n.5.
        In the present case, the State does not claim the disputed testimony was admissible to rebut any defensive theories. Looking to the record, although appellant attacked A.L.'s credibility he did not seriously undermine her testimony. See DeLeon, 77 S.W.2d at 314 (cross-examination must seriously weaken the State's testimony). He cross-examined A.L. about her initial denial of abuse, but the State elicited this testimony on direct examination. The State may not rely on its own questioning as an invitation to rebuttal. See Bishop, 869 S.W.2d at 345; DeLeon, 77 S.W.3d at 314. In addition, even if it could “be argued that the extraneous offense evidence was necessary to rehabilitate the complainant, . . . testimony about an extraneous offense involving another person does not rehabilitate the complainant.” See DeLeon, 77 S.W.3d at 313 (citing Webb, 36 S.W.3d at 181 n.9).
        Nor did appellant assert a retaliation or “frame-up” defense. See Moses v. State, , 627 (Tex. Crim. App. 2003) (retaliation defense); Wheeler, 67 S.W.3d at 887 n.22 (“frame-up” defense). Joanne Patterson claimed A.L. was “very upset” when told the children might have to move out because Joanne and appellant were experiencing financial difficulties. But, other than occurring shortly before the children were removed from appellant's home, this matter was never tied to the specific allegations of abuse. Appellant also did not elicit any testimony showing A.L.'s allegations were connected to any specific act of discipline or parental punishment imposed by appellant. See DeLeon, 77 S.W.3d at 314. We conclude no defensive theories were raised that would justify the introduction of the extraneous offense evidence.
        Because the State failed to identify any legitimate reason for allowing evidence of the extraneous offense and our independent review of the record reveals none, we conclude the trial court erred in admitting the extraneous offense evidence.
        Harm analysis
        Having concluded the trial court erred, we must now determine if the error is reversible. The State argues that even if the trial court erred in admitting Rich's testimony regarding the videotape, the error was harmless. Rule 44.2(b) of the Texas Rules of Appellate Procedure provides that any non-constitutional error that does not affect substantial rights must be disregarded. See Tex. R. App. P. 44.2(b). Substantial 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, , 355 (Tex. Crim. App. 2002) (citations omitted). The erroneous admission of an extraneous offense is non-constitutional error. See Martin v. State, 176 S.W.3d 887, 897 (Tex. App.-Fort Worth 2005, no pet.); Johnson v. State, 84 S.W.3d 726, 729 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd).
        In conducting the harm analysis, an appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the trial court's instructions to the jury, the State's theory, any defensive theories, closing arguments, and even voir dire if material to the appellant's claim. Motilla, 78 S.W.3d at 355-56; Morales v. State, , 867 (Tex. Crim. App. 2000). In assessing harm, factors to be considered include the nature of the evidence supporting the verdict, the character of the alleged error, and how the evidence might be considered in connection with the other evidence in the case. See Motilla, 78 S.W.3d at 355; Morales, 32 S.W.3d at 867. Whether the State emphasized the error can be a factor. Motilla, 78 S.W.3d at 356. The weight of the evidence of appellant's guilt is also relevant in conducting the harm analysis under rule 44.2(b). Id. at 359-60.
        In determining the magnitude of the harm resulting from the erroneous admission of the complained-of evidence, we have examined and considered the entire record. Although the State was the source of the error here, the evidence in question was presented in just a few short sentences of Rich's testimony, which spans nearly fifty-five pages in the record, and was mentioned only once by the State in its closing argument. The videotape itself was not admitted into evidence, only a brief description of its contents. In addition, Rich testified without objection that A.L. told him appellant had shown her pornographic images “of people having sex with animals.” He also told the jury that “bestiality” images were found on the computer seized from appellant's home and that those images corroborated at least part of A.L.'s testimony. The notes from the jury during deliberations also suggest the complained-of evidence had at most only a slight effect on the jury's verdict. During deliberations, the jury told the court it “would like to review the detective's testimony.” Told they could hear testimony only on the particular point in dispute, the jurors inquired about Rich's testimony concerning the pornographic images.   See Footnote 4 Upon reviewing the entire record, we therefore conclude the trial court's error did not have a substantial and injurious effect or influence on the jury's verdict.
        State's cross point
        The State brings a cross point asking us to modify the judgments in both cases to correctly reflect the jury's verdict. Appellant does not challenge the cross point.
        Both judgments contain discrepancies. In the case involving A.L., 05-06-00876-CR, the judgment for counts one, two, and three states that appellant was convicted of aggravated sexual assault of a child under section 22.021 of the penal code when he was actually indicted for sexual assault of a child under section 22.011 of the penal code.   See Footnote 5 In the same case, the judgment incorrectly states that appellant received an instructed verdict of not guilty on count seven of the indictment. In the case involving C.J., 05-06-00808-CR, the judgment also incorrectly states that appellant was found guilty of count seven. The jury, however, found appellant guilty of each count of both indictments except for count seven in 05-06-00808-CR, where the court directed a verdict of not guilty.
        The sentences pronounced in open court also fail to accurately reflect the jury's verdict. Pronouncing sentence in 05-06-00808-CR, the trial court sentenced appellant to life in prison on count seven of the indictment. In 05-06-00876-CR, the court incorrectly pronounced that a directed verdict of not guilty was granted as to count seven.
        This Court has the power to modify an incorrect judgment to make the record speak the truth when we have the necessary information to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, , 27-28 (Tex. Crim. App. 1993) (en banc); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd), modified on other grounds by Lockett v. State, 874 S.W.2d 810, 818 (Tex. App.-Dallas 1994, pet. ref'd). Accordingly, we sustain the State's cross point.
        We modify the trial court's judgment for counts one, two, and three in 05-06-00876-CR to reflect that appellant was convicted of sexual assault of a child under section 22.011 of the penal code. We also modify the judgment to show appellant was found guilty of count seven of the indictment. We delete the judgment indicating appellant was acquitted of count seven. In addition, we modify the judgment for count seven in 05-06-00808-CR to reflect that a directed verdict of not guilty was entered on count seven of the indictment.
        As noted previously, the pronouncements in both cases do not accurately reflect the jury's verdict. Because of the discrepancy, appellant was never sentenced on count seven of the indictment in 05-06-00876-CR. Accordingly, we will remand to the trial court for imposition of punishment in accordance with the jury's verdict. See Tex. Code Crim. Proc. Ann. art. 42.03, § 1(a) (Vernon Supp. 2007) (providing that felony sentence must be pronounced in the defendant's presence); see also Casias v. State, , 263 (Tex. Crim. App. 1973) (felony defendant may not waive the right to be present at sentencing). We further order the trial court to issue new judgments that reflect these modifications.
        As modified, we affirm the trial court's judgments.


                                                          AMOS L. MAZZANT
                                                          JUSTICE

Do Not Publish
Tex. R. App. P. 47
060808F.U05

Footnote 1 Appellant owned two homes. The home where appellant's family lived was on Swanson Street, in Plano, Collin County, Texas. The other house was on Whitehall Street, also in Plano.
Footnote 2 The indictment in the case involving C.J., 05-06-00808-CR, contained eight separate counts:

I. Aggravated sexual assault of a child under fourteen: causing C.J.'s female sexual organ to contact appellant's male sexual organ.

II. Aggravated sexual assault of a child under fourteen: causing C.J.'s female sexual organ to contact appellant's mouth.

III. Aggravated sexual assault of a child under fourteen: causing the penetration of C.J.'s female sexual organ with appellant's finger.

IV. Indecency with a child: touching C.J.'s genitals with appellant's hand with the intent to arouse and gratify appellant's sexual desires.

V. Indecency with a child: touching C.J.'s breast with appellant's hand with the intent to arouse and gratify appellant's sexual desires.

VI. Indecency with a child: touching C.J.'s breast with appellant's mouth with the intent to arouse or gratify appellant's sexual desires.

VII. Indecency with a child: causing C.J.'s hand to touch appellant's breast with the intent to arouse and gratify appellant's sexual desires.

VIII. Indecency with a child: exposing part of appellant's genitals to C.J., knowing she was present and with the intent to arouse and gratify appellant's sexual desires.

The indictment in 05-06-000876-CR also contained eight counts:

I. Sexual assault of a child: causing A.L.'s female sexual organ to contact the male sexual organ of appellant.

II. Sexual assault of a child: causing A.L.'s female sexual organ to contact appellant's mouth.

III. Sexual assault of a child: penetrating A.L.'s female sexual organ with appellant's finger.

IV. Indecency with a child: touching A.L.'s genitals with appellant's hand with the intent to arouse and gratify appellant's sexual desires.

V. Indecency with a child: touching A.L.'s breast with appellant's hand with the intent to arouse and gratify appellant's sexual desires.

VI. Indecency with a child: touching A.L.'s breast with appellant's mouth with the intent to arouse and gratify appellant's sexual desires.

VII. Indecency with a child: causing A.L.'s hand to contact appellant's breast with the intent to arouse and gratify appellant's sexual desires.

VIII. Indecency with a child: exposing part of appellant's genitals to A.L., knowing she was present and with the intent to arouse and gratify appellant's sexual desires.

Footnote 3 At issue in Bishop was sexual behavior that the defendant had engaged in with his ex-wife. Id. at 344. The court found that evidence of the defendant's sexual misconduct unduly prejudiced some of the jurors because, while it pertained to practices that were not defined as criminal offenses or misconduct, the practices were considered improper, immoral, and highly offensive by some segments of the population. Id. at 346.
Footnote 4 The note asked whether Rich testified “to the time/date stamp of porn prior to May '02 on the computer, prior to the children's arrival.” We find no such testimony in the record. Subsequent notes from the jury asked for information regarding the approximate date and time of A.L.'s outcry and the date of C.J.'s first outcry.
Footnote 5 The jury charge in 05-06-00876-CR properly defined the offenses in the abstract and application paragraphs as sexual assault of a child. The verdict forms for counts one, two, and three incorrectly described the offense as aggravated sexual assault, but appellant did not object to the charge and raises no jury charge error on appeal.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.