ROY ASHBY BOWEN, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued December 23, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-01739-CR
No. 05-07-01740-CR
............................
ROY ASHBY BOWEN, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 203rd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F05-27488-P & F05-27509-P
.............................................................
MEMORANDUM OPINION
Before Chief Justice Thomas and Justices Morris and Francis
Opinion By Justice Francis
        Roy Ashby Bowen pleaded guilty to two charges of indecency with a child by exposure, and the trial court assessed punishment at six years in prison. In three issues, appellant complains his plea was involuntary and the trial court abused its discretion in admitting certain evidence. We overrule all issues and affirm the trial court's judgments.
        S.D. testified that when she was in fifth grade, she would walk by appellant's house on her way home from school. On several occasions, she saw appellant in his garage showing his “private parts.” She reported the incidents to a school counselor. Garland police were notified and set up surveillance. On the first day of surveillance, nothing happened. But on the second day, police videotaped appellant exposing and fondling himself while sitting on a stool in his garage. Appellant set up a video camera facing the street, and after S.D. passed his house, appellant appeared to review what the video camera recorded.
        Appellant was arrested and admitted to police that he had exposed his penis. By way of explanation, appellant told police he would go to his garage and had a “habit of grabbing his tools and grabbing his penis and pretty much massaging it.” Appellant's wife consented to a search of their home. Among other things, the police found several Polaroid photographs depicting a male's genitals. Additionally, they collected two computers from which images of child pornography were recovered.
        About two years later while these cases were pending, police received another call regarding appellant. A neighbor reported appellant was mowing his backyard wearing only a T-shirt and no pants. The police officer arrived at the scene, also saw appellant mowing his lawn with his genitals exposed, and gave appellant a Class C misdemeanor citation for disorderly conduct. Appellant pleaded no contest and paid a fine.
        In his first issue, appellant contends he did not knowingly and voluntarily enter his guilty pleas because he was “laboring under the false impression” that the trial court would grant him probation.
        Article 26.13 of the Texas Code of Criminal Procedure requires a trial court to give certain admonishments before accepting a plea of guilty, and the admonishments may be given either orally or in writing. See Tex. Code Crim. Proc. Ann. art. 26.13(a), (d) (Vernon Supp. 2008); McGill v. State, 200 S.W.3d 325, 333 (Tex. App.-Dallas 2006, no pet. ). Proper admonishment by the trial court creates a prima facie showing that the defendant entered a knowing and voluntary plea. See Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). Once a prima facie showing of voluntariness is made, the burden shifts to the defendant to show that he entered the plea without knowing its consequences and was thereby harmed. See id.
        The record in this case shows, and appellant does not deny, he was properly admonished about the consequences of his plea. In fact, with respect to his specific complaint, the record shows the trial judge asked appellant if anyone promised him she would place him on probation, and he said no. The judge then asked appellant if he understood she could assess his punishment anywhere from two to ten years in the penitentiary, and he said yes. Nevertheless, appellant argues that even though the record demonstrates he understood the full range of punishment, he believed the trial court would grant probation and “grant him the opportunity to redeem himself and return to society.” But the mere fact appellant's punishment was higher than anticipated or hoped for does not render his guilty plea involuntary. See Tovar-Torres v. State, 860 S.W.2d 176, 178 (Tex. App.-Dallas 1993, no pet.) (per curiam); Rice v. State, 789 S.W.2d 604, 607 (Tex. App.-Dallas 1990, no pet.) (per curiam). We overrule the first issue.
        In his second issue, appellant contends the trial court abused its discretion in admitting Exhibit 5, a photograph depicting a collection of Polaroid photographs of exposed male genitals. He argues the evidence was irrelevant because the Polaroid photographs did not show the person's face and “were not directly linked” to him and were therefore neither probative of guilt or sentencing. We disagree.
        Once a defendant enters a guilty plea, the procedure becomes a “unitary trial” to determine the remaining issue of punishment, and the introduction of testimony by the State is to enable the jury or judge to intelligently exercise discretion in the assessment of punishment. See Carroll v. State, 975 S.W.2d 630, 632 (Tex. Crim. App. 1998). Relevance in this context is more a matter of policy than an application of rule of evidence 401; it fundamentally consists of what would be helpful to the judge or jury in determining the appropriate punishment. Mendiola v. State, 21 S.W.3d 282, 285 (Tex. Crim. App. 2000); see Tex. R. Evid. 401 (defining relevant evidence as evidence having any tendency to make existence of fact that is of consequence to determination of action more probable or less probable than it would be without evidence).
        The Polaroid photographs were found in appellant's house that he shared only with his wife. One of the officers took a photograph of the Polaroid pictures, which was offered as Exhibit 5. The sponsoring officer testified he believed the Polaroids depicted appellant's genitals because they were found with “similar photographs of that nature, only . . . the other photographs had the picture of [appellant], of his face, to identify him.” Given this evidence, the trial court could have reasonably concluded that Exhibit 5 depicted photographs appellant took of his own genitals. Further, the evidence was relevant to sentencing, given the circumstances of this offense, to show appellant's obsession with exposing his penis. Although appellant also argues the evidence was more prejudicial than probative, no such complaint was raised below and therefore is not preserved for appeal. See Tex. R. App. P. 33.1. We overrule the second issue.
        In his third issue, appellant argues the trial court abused its discretion in admitting evidence of child pornography found on computers in his home. He complains the evidence was not sufficiently tied to him. We disagree.
        Extraneous offense evidence is admissible for any relevant purpose at punishment, but only if the State can offer proof that would allow a reasonable fact-finder to conclude, beyond a reasonable doubt, that the defendant could be held criminally responsible for that act. Delgado v. State, 235 S.W.3d 244, 252 (Tex. Crim. App. 2007).
        Here, the evidence showed the police collected two computers from appellant's home. An FBI forensic analyst recovered child pornographic images from the computers. The analyst said she did not know to whom the computers belonged, who had access to them, or who downloaded the images. However, a report generated by appellant's witness, psychologist William Flynn, stated appellant's wife “reported observing him viewing pornographic images on the computer while simultaneously masturbating.” Given that the computers were collected from appellant's home that he shared only with his wife, there was no evidence appellant's wife had any interest in child pornography, and there was evidence appellant had a sexual interest in children, we conclude the evidence was sufficiently connected to appellant. Moreover, the evidence was probative of appellant's character and was relevant in determining his punishment on a charge of exposing his genitals to a ten-year-old girl. We overrule the third issue.
        We affirm the trial court's judgments.
 
 
                                                          
                                                          MOLLY FRANCIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
071739F.U05