Gomez v. State

• Citation: 459 S.W.3d 651
• Decision Date: 21 January 2015
• Docket Number: NO. 12–13–00050–CR,12–13–00050–CR
• Parties: Cesar Gomez, Appellant v. The State of Texas, Appellee
• Court: Texas Court of Appeals

459 S.W.3d 651

Cesar Gomez, Appellant

v.The State of Texas, Appellee

NO. 12–13–00050–CR

Court of Appeals of Texas, Tyler.

Opinion delivered January 21, 2015

Discretionary Review Refused June 17, 2015

Christian Souza, for Appellant.

Aaron Rediker, for State.

Panel consisted Worthen, C.J., and Hoyle, J.

OPINION

BRIAN HOYLE, Justice

Cesar Gomez appeals his conviction for continuous sexual abuse of a child younger than fourteen years of age, for which he was sentenced to imprisonment for life without the possibility of parole. Appellant raises fourteen issues on appeal. We affirm.

Background

Appellant began sexually abusing his daughter, F.G., in 2006 when she was eight years old. According to F.G., the sexual abuse continued until March 1, 2012, when she was fourteen years old. On March 5, 2012, she made an outcry statement to a school counselor concerning Appellant's sexually abusing her. As a result, Appellant was arrested and confessed in a videotaped interview to having sexually assaulted F.G. multiple times within the preceding six month period as a result of his being intoxicated. Officers searched Appellant's home and discovered, among other things, an expensive video surveillance system with multiple cameras, one of which was aimed at F.G.'s bed and the other of which was aimed at the bed in the master bedroom.

Appellant was charged by indictment with aggravated sexual assault and pleaded “not guilty.” The indictment was later amended¹ to charge Appellant with continuous sexual abuse of a child under fourteen years of age. The matter proceeded to a jury trial, following which the jury found Appellant “guilty” as charged. After a trial on punishment, the jury assessed Appellant's punishment at imprisonment for life without the possibility of parole. The trial court sentenced Appellant accordingly, and this appeal followed.

Admissibility of Punishment Evidence

In his first, second, third, and fourth issues, Appellant argues that the trial court abused its discretion in admitting two photographs during his trial on punishment in violation of Texas Rules of Evidence 401, 402, and 403.

Standard of Review and Governing Law

We review a trial court's ruling on the admissibility of evidence for an abuse of discretion. Montgomery v. State , 810 S.W.2d 372, 391 (Tex.Crim.App.1990) (op. on reh'g). “That is to say, as long as the trial court's ruling was at least within the zone of reasonable disagreement, the appellate court will not intercede.” Id. Furthermore, if the trial court's evidentiary ruling is correct on any theory of law applicable to that ruling, it will not be disturbed even if the trial judge gave the wrong reason for a correct ruling. See De La Paz v. State , 279 S.W.3d 336, 344 (Tex.Crim.App.2009).

Under the Texas Rules of Evidence, relevant evidence is generally admissible. Tex. R. Evid. 402. Texas Code of Criminal Procedure, Article 37.07, Section 3(a)(1), which governs the admissibility of evidence during the punishment phase of a noncapital trial, states, “Regardless of the plea and whether the punishment [is] assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing....” Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (West Supp.2014). In discussing the practical effect of Article 37.07, the Texas Court of Criminal Appeals has stated as follows:

[U]nder Article 37.07, the admissibility of evidence in a non-capital trial is a matter of policy, including the policy of giving complete information to the jury to allow it to tailor an appropriate sentence for the defendant. The result is that what is relevant for the jury to hear during punishment is determined by whatever is helpful to the jury.

Mata v. State, 226 S.W.3d 425, 432 (Tex.Crim.App.2007) (citation omitted). With respect to the relevance of photographic evidence, the court of criminal appeals further instructs as follows:

A photograph should add something that is relevant, legitimate, and logical to the testimony that accompanies it and that assists the jury in its decision-making duties. Sometimes this will, incidentally, include elements that are emotional and prejudicial. Our case law is clear on this point: If there are elements of a photograph that are genuinely helpful to the jury in making its decision, the photograph is inadmissible only if the emotional and prejudicial aspects substantially outweigh the helpful aspects.

Erazo v. State, 144 S.W.3d 487, 491–92 (Tex.Crim.App.2004).

Under Rule 403 of the Texas Rules of Evidence, even relevant “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice....” Tex. R. Evid. 403. “Rule 403 favors admissibility of relevant evidence, and the presumption is that relevant evidence will be more probative than prejudicial.” Montgomery , 810 S.W.2d at 389. Rule 403 requires both trial and reviewing courts to analyze and balance (1) the probative value of the evidence (2) the potential to impress the jury in some irrational, yet indelible, way, (3) the time needed to develop the evidence, and (4) the proponent's need for the evidence. See Erazo , 144 S.W.3d at 489. In making this determination, we consider factors including (1) the number of exhibits offered, (2) their gruesomeness, (3) their detail, (4) their size, (5) whether they are black and white or color, (6) whether they are close-up shots, (7) whether the body is naked or clothed, (8) the availability of other means of proof, and (9) other circumstances unique to the individual case. Santellan v. State , 939 S.W.2d 155, 172 (Tex.Crim.App.1997).

Pornographic Photographs of Appellant and His Wife

In the instant case, the State sought to admit two photographs recovered from Appellant's cellular telephone. Each of these pictures was taken from Appellant's point of view. The first picture depicts Appellant's wife placing her lips on his penis. The second picture depicts Appellant's wife placing her tongue on the underside of his penis. Appellant objected to the admissibility of these photographs, arguing that they were not relevant and were “more prejudicial than probative.” The trial court overruled Appellant's objections.²

Relevance

At trial, the State asserted that the photographs were relevant because the photographs were of Appellant's penis, “and that's what that little girl had to look at for six years.” And while the State's assertion concerning Appellant's abuse of F.G. is uncontested, we do not agree that it was helpful to the jury to view pictures of Appellant's penis so that it could see precisely what F.G. saw.

However, we are not bound by this underlying rationale for admissibility. See De La Paz , 279 S.W.3d at 344. An underlying theory of Appellant's defense was based on his assertion that his sexual abuse of F.G. took place during the six month period preceding her outcry and resulted from his being intoxicated. Contrary to the limited timeline of abuse asserted by Appellant, F.G. testified that Appellant regularly sexually assaulted her in her bedroom from 2006 through 2012. When officers searched Appellant's house, they discovered, among other things, a $1,200.00 video surveillance system with multiple cameras, one of which was aimed at F.G.'s bed and the other of which was aimed at the bed in the master bedroom. The system was connected through the walls to a recording device located in the master bedroom with a monitor that displayed the various camera feeds. The record reflects that officers were unsuccessful in recovering past videos recorded by the surveillance system. Nonetheless, the record also supports that Appellant admitted to having used the surveillance system on one occasion to record his sexual abuse of F.G.³

Consequently, the pictures recovered from Appellant's cellular telephone depicting his wife performing fellatio on him tend to support the State's theory that Appellant regularly engaged in voyeurism.⁴ Therefore, the State's establishing that Appellant engaged in voyeurism and used his expensive surveillance system to further that end was helpful to the jury in assessing Appellant's punishment because it contradicted his assertion that his sexual abuse of F.G. was limited to a handful of regrettable encounters as a result of his being intoxicated. Rather, it tends to show that Appellant invested a substantial sum of money and time installing a video system to record himself sexually abusing F.G. Accordingly, we conclude that the trial court did not err in overruling Appellant's relevance objection to these exhibits.

Danger of Unfair Prejudice

We next consider whether the probative value of these photographs is substantially outweighed by the danger of unfair prejudice to Appellant. We first note that the probative value of the evidence is high. The jury had a wide range of punishment to consider. See Tex. Penal Code Ann. § 21.02(h) (West Supp.2014); Tex. Gov't Code Ann. § 508.145(a) (West Supp.2014). And while the thought of Appellant's committing this act against his daughter is deplorable in and of itself, evidence tending to support that he did so regularly over a period of years rather than at random was extremely helpful to the jury in assessing his punishment.⁵

Furthermore, the State had a significant need for this evidence, particularly in light of the fact that it was unable to recover any past video from the recording device. Further still, the State spent a relatively short time developing the evidence during a very brief exchange with Detective Gregg Roberts concerning the recovery of the pictures and a slightly longer period spent questioning Appellant's girlfriend in order to identify the subjects of the photograph.⁶

As for the exhibits, they are two 8‘x10‘ color photographs that depict a close-up shot of Appellant's wife engaged in an intimate act with her husband's exposed penis. And despite the fact that the photographs were taken with a cellular telephone, they are...