Pinson v. State, No. 08-02-00327-CR (TX 7/29/2004)

• Decision Date: 29 July 2004
• Docket Number: No. 08-02-00327-CR,08-02-00327-CR
• Parties: JIMMY LEE PINSON, Appellant, v. THE STATE OF TEXAS, Appellee.
• Court: Texas Supreme Court

Page 1

Unpublished Opinion

JIMMY LEE PINSON, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 08-02-00327-CR

Court of Appeals of Texas, Eighth District, El Paso.

July 29, 2004.

Do Not Publish.

Appeal from 112th District Court of Reagan County, Texas, (TC# 1322-A).

Before Panel No. 2 BARAJAS, C.J., McCLURE, and CHEW, JJ.

MEMORANDUM OPINION

ANN CRAWFORD McCLURE, Justice.

Jimmy Lee Pinson appeals his conviction for two counts of aggravated sexual assault of a child. A jury found Appellant guilty and assessed punishment at life imprisonment. We affirm.

FACTUAL SUMMARY

Although Appellant has not raised issues of legal or factual sufficiency, we will include a brief statement of the facts. Appellant and his wife had been friends with the parents of the victim, "Zack," who was seven at the time of the events giving rise to this prosecution. Appellant's wife was a frequent babysitter for Zack. Around October 1999, Zack's mother picked him up from Appellant's residence. Later that night when she put Zack in the tub and started running his bath, she noticed that the boy's penis was red and asked him if anyone had ever touched his private parts. At first, Zack answered no. She then left the bathroom and returned shortly to check the water level. Zack asked whether she would be mad about the question she had asked. When she asked again whether anyone had ever touched his private parts, Zack answered that Appellant had. Zack told his mother that Appellant had put his hand and mouth on the child's "petey." He also said that he had put his mouth on Appellant's "petey." This had occurred four times—in the computer room, in Appellant's bedroom, and outside in Appellant's camper. Pertinent to the issues raised in this appeal, Zack testified at trial that he and Appellant spent time on the computer looking at pictures of naked men and women.

EXTRANEOUS OFFENSES

In his first point of error, Appellant contends that the trial court erred in admitting State's Exhibits 18-34 because the sexually offensive pictures were not shown to be relevant or connected to Appellant and because the probative value of the pictures was substantially outweighed by their unfair prejudice as extraneous offenses or acts. Exhibits 18-27 contain pictures of male nudity and homosexuality; exhibits 28-34 are sexually-explicit animated cartoons. Appellant claims that while there was evidence that whoever put the images on the computer had the requisite state of mind, there was no evidence that it was Appellant who had done so.

Connection and Relevance under Code of Criminal Procedure Article 38.37

Appellant first argues that Article 38.37 is inapplicable because he was not sufficiently connected to the pictures taken from his computer. He suggests that others had access to the computer and knew how to look up such web sites, or alternatively, that the pictures could have been placed there accidently. He also complains that Zack did not remember what the naked people were doing in the pictures and never said that he and Appellant watched cartoons. Because Zack was not asked to identify the exhibits and there was no evidence showing who put the images on the computer, Appellant concludes that the images could not be considered "crimes, wrongs, or acts committed by the defendant against the child" within the ambient of Article 38.37. We disagree.

Beyond a Reasonable Doubt Standard

Before admitting evidence of extraneous offenses, the trial court must determine pursuant to Rule 104(b) whether a jury could find beyond a reasonable doubt that the defendant committed the extraneous offenses. Harrell v. State, 884 S.W.2d 154, 160 (Tex.Crim.App. 1994). By admitting these exhibits, the trial court made the requisite determination. Harrell, 884 S.W.2d at 161. The exhibits were images taken from the hard drive of Appellant's computer, representing a small sample of files found. They corroborated Zack's testimony that he was shown sexually-explicit material by Appellant. Further, the State argued that it restricted the images to relevant issues of state of mind, that the prosecution involved a homosexual act against a child, that the homosexual pictures were further relevant to state of mind, and that the images were time stamped within six to eight months before Zack indicated the offenses occurred.

The trial court instructed the jury that it could not consider the extraneous offenses unless it believed beyond a reasonable doubt that Appellant participated in the acts. Even then, the acts could only be considered to show the intent of Appellant, his state of mind, Zack's state of mind, or the relationship between the two. Although Appellant complained there was no way to determine exactly who loaded the files on the computer or whether the sites were visited accidently, the jury could have found beyond a reasonable doubt that Appellant did so.

Affirmative Link

We are next asked to determine whether the State established a sufficient link between Appellant and the computer images. We begin with Darby v. State, 922 S.W.2d 614, 619 (Tex.App.—Fort Worth 1996, pet. ref'd). There, the defendant objected to the admission of a sexually-explicit magazine found in his bedroom closet. The trial court admitted it as relevant to intent. The appellate court noted that possession of the magazine was not unlawful and the magazine itself was not contraband. Id. Only if the magazine had been contraband would the State have to affirmatively link the defendant to it. Id., citing Travis v. State, 638 S.W.2d 502, 503 (Tex.Crim.App. 1982). The State had the burden to prove intent, which could be shown through circumstantial evidence. The magazine provided that circumstantial evidence. Id. at 620, citing Arnott v. State, 498 S.W.2d 166, 177 (Tex.Crim.App. 1973).

Here, Appellant has not been prosecuted for possession of contraband and the State did not have to affirmatively link Appellant to the computer images as long as the jury could reasonably infer that Appellant both knew about the images and had control over them. See id. at 619. Further, the indictment made it necessary for the State to prove intent or knowledge to "cause[] the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor" and to "cause[] the penetration of the mouth of a child by the sexual organ of the actor." Tex.Pen.Code Ann. § 22.021(a)(1)(B)(ii), (iii)(Vernon Supp. 2004). The images were circumstantial evidence which is admissible if it tends to prove an issue or constitutes a link in the chain of proof even though, standing alone, it might not justify a verdict. Darby, 922 S.W.2d at 620, citing Knapp v. State, 504 S.W.2d 421, 437 (Tex.Crim.App. 1973).

Evidence that the sexually explicit images were found on Appellant's computer—when considered with the evidence that Appellant showed them to Zack causing Zack to put his mouth on Appellant's penis and causing him to put his own mouth on Zack's penis—presented affirmative circumstantial links between the images and the charged offenses. See also id. (holding that a magazine found in the defendant's bedroom closet that contained sexually-explicit photographs of a young female posing with a teddy bear constituted an affirmative circumstantial link when considered with evidence that the defendant pretended to be a photographer and had a young female pose with a teddy bear and testimony that defendant reached under the female's blouse, skirt, and underwear to touch her inappropriately).

Relevance under Article 38.37

Article 38.37 provides:

Sec. 1. This article applies to a proceeding in the prosecution of a defendant for an offense under the following provisions of the Penal Code, if committed against a child under 17 years of age:

(1) Chapter 21 (Sexual Offenses);

(2) Chapter 22 (Assaultive Offenses);

(3) Section 25.02 (Prohibited Sexual Conduct);

(4) Section 43.25 (Sexual Performance by a Child); or

(5) an attempt or conspiracy to commit an offense listed in this section.

Sec. 2. Notwithstanding Rules 404 and 405, Texas Rules of Criminal Evidence, evidence of other crimes, wrongs, or acts committed by the defendant against the child who is the victim of the alleged offense 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.

Sec. 3. On timely request by the defendant, the state shall give the defendant notice of the state's intent to introduce in the case in chief evidence described by Section 2 in the same manner as the state is required to give notice under Rule 404(b), Texas Rules of Criminal Evidence.

Sec. 4. This article does not limit the admissibility of evidence of extraneous crimes, wrongs, or acts under any other applicable law.

Tex.Code Crim.Proc.Ann. art. 38.37 (Vernon Pamphlet 2004).

Appellant claims that evidence of the content of a computer's hard drive does not constitute a crime or other act against a child within the purview of Article 38.37. The State counters that the exhibits were properly admitted because they assisted the jury in understanding the relationship between Appellant and Zack inasmuch as Appellant taught Zack how to access the web sites. The State also contends that the images explained why Zack waited to tell his parents about the abuse, they showed Zack's state of mind because Appellant told Zack that he would get into trouble if he told anyone about the pictures, they demonstrated Appellant's intent in showing Zack the images, and they explained Zack's compliance.

We find some guidance inBroderick v. State, 35 S.W.3d 67, 79 (Tex.App.—Texarkana 2000, pet. ref'd). Broderick involved the sexual assault of a child who while visiting the defendant, played games and made cards on his computer. At trial, an FBI agent who was an expert in computer reconstruction testified that he had examined the...