1

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-15-00342-CR

NO. 09-15-00343-CR

NO. 09-15-00344-CR

NO. 09-15-00345-CR

____________________

KENNETH RAY FERGUSON, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________ 

On Appeal from the 359th District Court

Montgomery County, Texas

Trial Cause No. 15-06-06229-CR (Counts 1, 2, 3, and 4)

__________________________________________________________________ 

MEMORANDUM OPINION 

Appellant Kenneth Ray Ferguson pleaded guilty to four counts of possession 

of child pornography. After a trial on punishment, the jury found Ferguson guilty 

on all four counts and assessed punishment at ten years in prison on each count. 

The trial court sentenced Ferguson to ten years of imprisonment on each count and 

ordered the sentences to run consecutively. In a single appellate issue, Ferguson 
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contends the trial court abused its discretion by allowing the State to introduce 

extraneous offense evidence in violation of Rule 403 of the Texas Rules of 

Evidence. We affirm the trial court’s judgments. 

Background

A grand jury indicted Ferguson on four counts of possession of child 

pornography. See Tex. Penal Code Ann. § 43.26(a) (West Supp. 2015). Ferguson 

pleaded guilty before the jury to all four counts and elected to have the jury assess 

punishment. During the punishment hearing, the State presented the testimony of 

Captain Mark Seals of the Montgomery County Precinct 4 Constable’s Office to 

show that Ferguson had downloaded videos containing child pornography from the 

internet. 

Seals explained how he became involved in investigating child pornography 

cases and about the training he received on the ARES peer-to-peer file sharing 

network. Seals further explained that he uses the ARES network to search for child 

pornography on the internet and that the program he uses finds images of child 

pornography by recognizing the hash value. In September 2013, Seals was using 

the law enforcement version of the ARES network when it identified an internet 

protocol address that contained child pornography. According to Seals, an internet 

protocol or IP address is the home address for your computer that is assigned by 
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your internet service provider. Seals subpoenaed the internet service provider for 

the IP address and learned that Ferguson was the subscriber who owned the IP 

address. Based on the information obtained during his investigation, Seals obtained 

a search warrant and conducted a search of Ferguson’s apartment that resulted in 

finding a laptop computer containing child pornography.

During Seals’s testimony, the State introduced into evidence four videos

containing child pornography that Ferguson had downloaded from the internet

using the ARES file sharing network. The State also introduced evidence showing 

that the titles of the videos that Ferguson had downloaded included common search 

terms that are used to find child pornography on the internet. Additionally, over 

defense counsel’s objection, the trial court admitted a printout that was 

automatically generated by the ARES program showing that there were additional 

files on Ferguson’s computer that were of investigative interest. 

Special Agent Jeffery Chappell with Homeland Security Investigations 

testified that he forensically examined Ferguson’s computer by copying the hard 

drive and analyzing its contents. Chappell produced a report concerning the data he 

analyzed on Ferguson’s computer and confirmed that the videos on Ferguson’s 

computer contained images of child pornography. Based on his report, Chappell 

created a list of the search terms that Ferguson used to search for files on the 
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ARES network, and Chappell testified that those terms are used by people who are 

looking for images of child pornography. According to Chappell, Ferguson 

downloaded eighty-nine videos over an eight-day period, and it took Chappell 

approximately four and a half hours to view all of the videos. Chappell created two 

discs containing the eighty-nine videos of child pornography that he found on 

Ferguson’s computer, and those discs were admitted into evidence without 

objection. 

During the trial, the State played portions from six of the videos that 

Chappell found on Ferguson’s computer. Before the prosecutor played the last 

video, Ferguson’s counsel objected that playing any additional videos was 

cumulative and more prejudicial than probative. After hearing the prosecutor’s 

argument that he only intended to play six of the eighty-nine videos that Ferguson 

downloaded, and that the additional video was different because it was more 

offensive, the trial court overruled defense counsel’s objection. 

Chappell also testified that he found twenty-seven graphic files containing 

child pornography on Ferguson’s computer, and Chappell’s forensic examination 

showed that Ferguson had deleted files containing still images from the child 

pornography videos. The State offered twenty-five printed images into evidence, 

and Chappell testified that they were screen shots from the videos he found and 
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that they represented what someone would find if he watched all eighty-nine 

videos. Ferguson’s counsel objected to the admission of the printed images, 

arguing that because the jury had already seen the videos, the images were 

cumulative and prejudicial. The prosecutor argued that the images were not 

cumulative, because they were a representative sample of what the jury would see 

if they watched the full four-and-a-half hours of video. According to the 

prosecutor, the jury needed to understand that the evidence was comprised of more 

than the six videos that had been shown, and that Ferguson chose the evidence and 

it was not automatically prejudicial because it was graphic and offensive. In 

recognizing the nature of the evidence, the logistical difficulty of presenting the 

evidence to the jury, and that it was the punishment phase of the trial, the trial 

court admitted the twenty-five images into evidence. 

During punishment, Ferguson testified that he had complied with the 

conditions of his bond for a year and a half, and that if the trial court gave him 

probation, he could comply with the conditions of his probation. Ferguson’s 

mother, fiancé, employer, and commanding officer in the Texas National Guard all 

testified that Ferguson would be a good candidate for probation. Despite hearing 

evidence that Ferguson should receive probation, the jury assessed Ferguson’s 

punishment at ten years in prison on each of the four counts with no 
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recommendation of suspending the sentences. The trial court entered judgment and 

ordered that Ferguson’s sentences be served consecutively, totaling forty years. 

Ferguson appeals his sentences, claiming that he was denied a fair punishment trial 

and requesting a new trial.

Analysis

In his single point of error, Ferguson argues that the trial court abused its 

discretion by allowing the State to introduce extraneous offense evidence in 

violation of Rule 403 of the Texas Rules of Evidence and that the error was 

harmful because it affected the jury’s punishment decision. According to Ferguson, 

although he was only charged with possessing four items of child pornography, the 

trial court allowed the State to admit evidence to support its theory that Ferguson 

was a serial downloader of child pornography. Ferguson contends that the evidence 

not only enflamed and confused the jury, but it was cumulative, prejudicial, and 

denied him the right to a fair punishment trial by preventing the jury from 

considering him as a candidate for probation. 

We review a trial court’s decision to admit evidence under an abuse of 

discretion standard. Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005). 

We will uphold the trial court’s ruling on the admissibility of evidence as long as 

the ruling “‘was at least within the zone of reasonable disagreement.’” Id. (quoting 
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Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g)).

If the trial court’s ruling was correct on any theory of law applicable to the case, 

we must uphold the trial court’s judgment. Id. 

Unlike the guilt phase of trial, “‘the question at punishment is not whether 

the defendant has committed a crime, but instead, what sentence should be 

assessed.’” Ellison v. State, 201 S.W.3d 714, 718 (Tex. Crim. App. 2006) (quoting 

Haley v. State, 173 S.W.3d 510, 515 (Tex. Crim. App. 2005)). In assessing 

punishment, our bifurcated trial system allows the jury to hear evidence critical to 

an “‘enlightened determination of punishment[.]’” Id. (quoting Davis v. State, 968 

S.W.2d 368, 372 (Tex. Crim. App. 1998)). Except as otherwise provided by rule or 

statute, a jury is entitled to have before it all possible relevant information about 

the individual defendant whose fate it must determine. Shuffield v. State, 189 

S.W.3d 782, 793 (Tex. Crim. App. 2006). “Determining what is relevant then 

should be a question of what is helpful to the jury in determining the appropriate 

sentence for a particular defendant in a particular case.” Rogers v. State, 991 

S.W.2d 263, 265 (Tex. Crim. App. 1999). 

In addition to the Rules of Evidence, article 37.07, section 3(a)(1) of the 

Texas Code of Criminal Procedure is one of the guiding principles for the 

admissibility of evidence at the punishment phase of a trial. See Tex. Code Crim. 
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Proc. Ann. art. 37.07, § 3(a)(1) (West Supp. 2015); Sunbury v. State, 88 S.W.3d 

229, 233 (Tex. Crim. App. 2002). Article 37.07, section 3(a)(1) permits the 

introduction of relevant punishment evidence, including the circumstances of the 

offense for which the defendant is being tried, as well as “any other evidence of an 

extraneous crime or bad act that is shown beyond reasonable doubt by evidence to 

have been committed by the defendant or for which he could be held criminally 

responsible[.]” Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1). Although article 

37.07, section 3(a)(1) allows the trial court to admit a broad range of relevant 

evidence, the admitted evidence must satisfy Rule 403 of the Rules of Evidence. 

See Lamb v. State, 186 S.W.3d 136, 143 (Tex. App.—Houston [1st Dist.] 2005, no 

pet.). 

Rule 403 provides that the trial court “may exclude relevant evidence if its 

probative value is substantially outweighed by a danger of one or more of the 

following: unfair prejudice, confusing the issues, misleading the jury, undue delay, 

or needlessly presenting cumulative evidence.” Tex. R. Evid. 403. Unfair prejudice 

refers to “‘an undue tendency to suggest decision on an improper basis, commonly, 

though not necessarily, an emotional one.’” Rogers, 991 S.W.2d at 266 (quoting 

Cohn v. State, 849 S.W.2d 817, 820 (Tex. Crim. App. 1993)). Thus, relevant 

evidence that is admissible under article 37.07, section 3(a)(1) may be excluded if 
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it fails to comport with Rule 403. See id.; Lamb, 186 S.W.3d at 144. Once a Rule 

403 objection is raised, the trial court must balance the probative value of the 

evidence against its potential for unfair prejudice. Montgomery, 810 S.W.2d at 

389. Rule 403 presumes that relevant evidence will be more probative than 

prejudicial, and the burden is on the appellant to demonstrate that the negative 

attributes of the admitted evidence outweigh its probative value. Boone v. State, 60 

S.W.3d 231, 239 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). 

Ferguson first complains that the trial court violated Rule 403 by admitting

State’s exhibit twelve, a printout from the ARES program showing that Ferguson’s 

computer contained additional files of investigative interest. The record shows that 

Ferguson’s counsel objected to the admission of State’s exhibit twelve based on 

hearsay. Because Ferguson’s hearsay objection at trial fails to comport with his 

Rule 403 complaint on appeal, we conclude that he has failed to preserve his 

argument regarding State’s exhibit twelve for our review. See Camacho v. State, 

864 S.W.2d 524, 533 (Tex. Crim. App. 1993) (holding appellant’s general hearsay 

and relevance objections at trial failed to preserve his Rule 403 complaint on 

appeal). 

Ferguson also complains that the trial court violated Rule 403 by admitting 

State’s exhibits seventeen through forty-one, which are the printed images of the 
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graphic files that Special Agent Chappell found on Ferguson’s computer. 

Ferguson’s counsel objected to the admission of the images because they were 

cumulative and prejudicial. Once Ferguson raised a 403 objection, the trial court 

was required to perform a balancing test to determine if the evidence’s probative 

value was substantially outweighed by the alleged negative attributes of the 

evidence. See Montgomery, 810 S.W.2d at 389; Boone, 60 S.W.3d at 239. 

The record shows that the trial court conducted the required balancing test. 

In deciding to admit the images at issue, the trial court considered defense

counsel’s argument that the images were cumulative and prejudicial because the 

jury had already viewed the videos, as well as the State’s argument that the images 

were a representative sample of what the jurors would see if they were to view all 

eighty-nine videos in the case. The trial judge recognized the difficulty in dealing 

with the nature of the evidence and the importance of not duplicating the evidence, 

but also noted that more evidence is relevant during the punishment phase of the 

trial and that the jury did not have the benefit of going through all of the evidence 

at a trial because Ferguson entered a plea of guilty. See Tex. Code Crim. Proc. 

Ann. art. 37.07, § 3(a)(1) (allowing the trial court to admit a broad range of 

relevant evidence during punishment, including circumstances for which the 

defendant could be held criminally responsible); Rogers, 991 S.W.2d at 265.
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Although the images in State’s exhibits seventeen through forty-one are

undoubtedly prejudicial, we cannot say that the trial court abused its discretion by

concluding that the probative value was not substantially outweighed by the danger 

of unfair prejudice. See Martin, 173 S.W.3d at 467. Because the images are 

representative of the number and nature of the child pornography videos that 

Ferguson downloaded to his computer, they demonstrated the circumstances 

surrounding Ferguson’s crimes and were certainly relevant to the jury’s 

determination of an appropriate sentence and the trial court’s decision to cumulate 

the sentences. We conclude that the trial court’s determination that State’s exhibits 

seventeen through forty-one were not prohibited by Rule 403 falls within the zone 

of reasonable disagreement. See id. We overrule Ferguson’s sole issue on appeal 

and affirm the trial court’s judgments. 

AFFIRMED. 

______________________________

 STEVE McKEITHEN

 Chief Justice

Submitted on July 20, 2016

Opinion Delivered August 10, 2016

Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.