IN THE

TENTH COURT OF APPEALS

No. 10-11-00372-CR

No. 10-11-00373-CR

No. 10-11-00374-CR

No. 10-11-00375-CR

No. 10-11-00376-CR

MARK ANTHONY APONTE,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court Nos. FISC-10-20148; FISC-10-20149; FISC-10-20150; 

FISC-10-20151; and FISC-10-20152

MEMORANDUM OPINION

Although charged with aggravated sexual assault by five separate indictments, 

Mark Anthony Aponte was found guilty of lesser included offenses: two offenses of 

sexual assault, appellate case numbers 10-11-00373-CR and 10-11-00374-CR, and three 

offenses of indecency with a child, appellate case numbers 10-11-00372-CR, 10-11-00375-
Aponte v. State Page 2

CR, and 10-11-00376-CR. See TEX. PENAL CODE ANN. §§ 21.11, 22.011 (West 2011). He 

was sentenced to five years in prison for each of the two sexual assault convictions and 

five years in prison with the sentence suspended and community supervision imposed 

for each of the indecency convictions. The victim in each offense was D.K.1 

Because the trial court did not abuse its discretion in admitting certain evidence 

over a Rule 403 objection, we affirm.

RULE 403 BALANCING

In one issue, Aponte argues the trial court abused its discretion in admitting 

extraneous evidence of pornography, specifically testimony from D.K. and a State’s 

evidentiary exhibit, during the guilt phase of Aponte’s trial because the danger of unfair 

prejudice substantially outweighed the probative value of the evidence introduced. See

TEX. R. EVID. 403.

A trial court's Rule 403 decisions are reviewed for an abuse of discretion. State v. 

Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005); Moreno v. State, 858 S.W.2d 453, 463 

(Tex. Crim. App. 1993). A reversal will occur only if the trial court's decision is outside 

the zone of reasonable disagreement. Salazar v. State, 38 S.W.3d 141, 150 (Tex. Crim. 

App. 2001).

Evidence may be excluded under Rule 403 if the danger of unfair prejudice 

substantially outweighs the probative value of the evidence. TEX. R. EVID. 403. Rule 403 

 

1 D.K. was the pseudonym used for the victim in the indictments.
Aponte v. State Page 3

favors admission of relevant evidence and carries a presumption that relevant evidence 

will be more probative than prejudicial. Allen v. State, 108 S.W.3d 281, 284 (Tex. Crim. 

App. 2003); Jones v. State, 944 S.W.2d 642, 652-53 (Tex. Crim. App. 1996). The trial court 

has broad discretion in conducting a Rule 403 balancing test, and we will not lightly 

disturb its decision. Allen, 108 S.W.3d at 284. All testimony and physical evidence are 

likely to be prejudicial to one party or the other. Davis v. State, 329 S.W.3d 798, 806 (Tex. 

Crim. App. 2010); Jones, 944 S.W.2d at 653. It is only when there exists a clear disparity 

between the degree of prejudice of the offered evidence and its probative value that 

Rule 403 is applicable. Id.

A proper Rule 403 analysis by either the trial court or a reviewing court includes 

balancing the following factors: (1) the inherent probative force of the proffered item of 

evidence—that is, how strongly it serves to make more or less probable the existence of 

a fact of consequence to the litigation—along with (2) the proponent's need for that 

evidence against (3) any tendency of the evidence to suggest a decision on an improper 

basis, (4) any tendency of the evidence to confuse or distract the jury from the main 

issues, (5) any tendency of the evidence to be given undue weight by a jury that has not 

been equipped to evaluate the probative force of the evidence, and (6) the likelihood 

that presentation of the evidence will consume an inordinate amount of time or merely 

repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-642 (Tex. 

Crim. App. 2006); Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004). See 
Aponte v. State Page 4

Cressman v. State, No. 10-11-00393-CR, 2012 Tex. App. LEXIS 9849, *8-10 (Tex. App.—

Waco Nov. 29, 2012, no pet.) (not designated for publication).

D.K.’s Testimony

D.K. testified that Aponte began sexually abusing her when she was about four 

years old. The abuse started with Aponte touching her on the outside of her vagina. It 

progressed to touching her vagina with his tongue and penetration of her vagina with 

his finger and with his penis. He also penetrated her anus with his penis and had her 

perform oral sex on him. At a hearing outside the presence of the jury, D.K. testified 

that she periodically watched pornography on Aponte’s computer with him from the 

time she was four until she was fifteen years old. Over Aponte’s Rule 403 objection, the 

trial court allowed D.K. to testify before the jury about watching pornography on 

Aponte’s computer.

403 Review

D.K’s credibility was attacked early in the proceeding. Aponte’s theory of the 

case, pointed out to the jury in his opening statement, was that there were many 

inconsistencies in D.K.’s story about the extent of the sexual assaults and her age range 

of when the specific types of assaults began. He also informed the jury that D.K. had 

sought out others on Facebook who had also allegedly been sexually assaulted and who 

described their assaults to D.K., insinuating that D.K. used this information to fabricate 

the abuse because the report of abuse came after Aponte threatened to take away D.K.’s 
Aponte v. State Page 5

online social community. Thus, D.K.’s testimony regarding the pornographic images 

shown to her was probative, making more probable that the abuse occurred and was 

needed by the State to aid with rehabilitating D.K.’s credibility.

The tendency for D.K.’s testimony to confuse or distract the jury from the main 

issue, that being Aponte’s alleged sexual assaults of D.K., was minimal. The existence 

of pornography, either on D.K.’s computer, Aponte’s computer, or video tapes left at 

the house by Aponte’s now deceased father, was mentioned, at least briefly, by just 

about every witness produced at trial and was clearly a theme in the case used by both 

sides. Although the trial court offered during the hearing outside the presence of the 

jury to give an extensive limiting instruction after D.K.’s testimony regarding the 

pornography viewed, when the time came, Aponte did not request that one be given. 

The offered limiting instruction was, however, given in the court’s charge to the jury. 

The instruction limited the jury’s use of D.K.’s testimony to determining Aponte’s state 

of mind and D.K.’s state of mind and the past and subsequent relationship between 

Aponte and D.K. to aid the jury in passing on the question of whether the acts alleged 

and elected by the State actually occurred. Thus, the jury was equipped to evaluate the 

probative force of the evidence. Further, D.K.’s testimony about the pornography 

viewed with Aponte did not take an inordinate amount of time to develop: only three 

out of over 100 pages of her testimony. 
Aponte v. State Page 6

Accordingly, balancing the necessary factors, we find the probative value of the 

evidence was not substantially outweighed by the danger of unfair prejudice, and the 

trial court did not abuse its discretion in admitting D.K.’s testimony over Aponte’s Rule 

403 objection.

Exhibit 9

Kirby Culp, a detective with the McLennan County Sheriff’s Department, was 

provided computers and other electronic items from Aponte’s home to search for 

evidence relating to sexual abuse or child pornography. He found images on a Dell 

laptop computer depicting young women posing in various stages of dress or engaged 

in sexual acts. The file name where these images were located was “nubiles” which is 

commonly used to identify pornography involving young girls. He also found 

indications that video and image files likely depicting pornographic content had been 

stored on and viewed from a removable disk. Culp further located and bookmarked 17 

database files containing a web browser history which had to do with pornography. 

On a Power Spec PC, Culp found a folder in the “root” directory entitled “Mark’s 

documents.” Also in the root directory was a folder that contained images of persons 

engaged in sexual acts. Within the file names of that folder were terms such as “12-

year-old,” “teenager,” “teen,” and “Lolita” which are terms commonly included in file 

names that contain child pornography. In Culp’s opinion, those images were 

intentionally stored in the folder. It was also Culp’s opinion that someone had 
Aponte v. State Page 7

attempted to delete or format over that folder. Culp also located “Google” searches for 

terms such as “daddyswhores” on this computer. 

Culp also examined the hard drive of a Matrix computer. It appeared that files 

on a removable disk containing pornographic content had also been viewed using this 

computer. There were indications that the removable disk was the same or very similar 

to the one used on the Dell laptop. Culp discovered that a second hard drive had been 

installed on the Matrix computer that likely contained files with pornographic images 

in them. He found additional images depicting persons engaged in sexual acts or posed 

in various states of undress on the computer’s original hard drive located in a “cache” 

folder with a Firefox web browser. Google searches for similar terms as on the Power 

Spec PC were located on the Matrix computer as well.

Later, Culp searched the Power Spec PC again using a different program. He 

located more pornographic images that he had not previously discovered. Some of 

those images were what Culp believed to be child exploitation. He placed these 

particular images on a disk which was offered as State’s Exhibit 9. 

These images, as well as others, were the subject of a hearing outside the 

presence of the jury, separate from the hearing regarding D.K’s testimony, pursuant to 

another Rule 403 objection. The trial court heard testimony from Culp, argument from 

counsel, and viewed the disputed images. After conducting the Rule 403 balancing test, 

the trial court overruled the objection as to the images on State’s Exhibit 9. At the time 
Aponte v. State Page 8

of its offering into evidence, Aponte renewed his Rule 403 objection. The trial court 

admitted State’s Exhibit 9 with the following instruction:

...you are instructed that if there is any testimony before you with 

this witness in this case regarding the defendant having committed other 

acts other than the offenses alleged against [him] in the indictments tried 

in this cause, that you cannot consider such other acts, if any, unless you 

first find beyond a reasonable doubt that the defendant committed such 

acts, if any; but if you do not believe so, or you have a reasonable doubt 

thereof, you will not consider such evidence for any purpose. You are 

further instructed that you cannot consider State’s Exhibit No. 9 unless 

you believe beyond a reasonable doubt that the defendant possessed the 

pictures, if he did; even then you may use the evidence only to consider it, 

if at all, in determining the state of mind of the defendant and the child 

and the previous and subsequent relationship between the defendant and 

the child, not as any proof that the defendant is guilty of the indictment’s 

charged offenses.

The jury was then allowed to view the exhibit.2 A substantially similar limiting 

instruction was provided to the jury in the court’s charge.

 

2 The “exhibit” included in the reporter’s record is a disc with a total of 208 images in individually 

numbered “jpg” files under a file folder labeled “09-285 Report-Suspected Child Exploits.” The images 

that were the subject of the objection were included under this electronic file label. But on the disc, there 

is no indication of which of these images comprise the images included in/on Exhibit 9. Some images, 

including some of the disputed images, are duplicated within this file. Only by reviewing the images on 

the disc and the reporter’s record at the same time have we been able to identify the specific images that 

were admitted as Exhibit 9 and about which the present complaint was made. We caution trial counsel 

for all parties and the trial courts that electronic files on appeal are very difficult, read that as time 

consuming, to work with in determining what constitutes an admitted or excluded exhibit especially 

when it contains multiple electronic files. The problem is multiplied if some files on the same disc, or 

other electronic media, are not admitted when others are admitted. This problem also presents issues of 

publication to the jury as well as the jury having access during deliberation to all of the admitted exhibits 

but not the excluded exhibits. These problems can be easily eliminated if the electronic files, whether 

images, video, or documents, that are admitted are copied or moved to one disc for the jury to use during 

deliberation and which then comes up on appeal; likewise, those files that are excluded are copied or 

moved to another disc which comes up on appeal but which does not go to the jury. In this particular 

case, we note that this could have been easily done by reference to the label of each electronic file on the 

disc index that was either admitted or excluded. Particular attention also needs to be made to the 

“viewability” of the exhibit by the appellate court. No exhibit should require proprietary software to 
Aponte v. State Page 9

403 Review

As stated previously, D.K’s credibility was attacked early in the proceeding and 

continually throughout the trial. The credibility of her mother, to whom D.K. made her 

initial outcry, was also attacked. Thus, State’s Exhibit 9, containing pornographic 

images found on Aponte’s computer, was probative, by establishing the nature of the 

relationship between D.K. and Aponte, thus making more probable that the abuse 

occurred and was needed by the State to aid with rehabilitating the State’s primary 

witnesses. Further, there was only a limited possibility or tendency for the exhibit to 

confuse or distract the jury from the main issue, that being Aponte’s alleged sexual 

assaults of D.K. As previously discussed, the existence of pornography was mentioned 

throughout the trial and was clearly a theme in the case used by both sides. The trial 

court gave a thorough limiting instruction prior to the publication of the exhibit to the 

jury. A substantially similar limiting instruction was given in the court’s charge to the 

jury. Thus, the jury was equipped to evaluate the probative force of the exhibit. Finally, 

the time necessary for the introduction of the exhibit took about 100 pages of testimony 

to develop. This is not an insignificant amount of time, but it was not all just about the 

introduction of this single exhibit. However, in relation to the overall length of the trial, 

that being eight days from start to finish, 100 pages was not an inordinate amount of 

 

review. These issues are extremely important now and will become even more important as we move to 

e-filing of the record and briefs.
Aponte v. State Page 10

time for the development of the evidence, including that specifically related to the 

introduction of Exhibit 9.

Aponte relies on this Court’s opinion in Thrift to argue that the trial court abused 

its discretion in permitting the introduction of State’s Exhibit 9 over a Rule 403 

objection. See Thrift v. State, 134 S.W.3d 475 (Tex. App.—Waco 2004), aff’d on other 

grounds, 176 S.W.3d 221 (Tex. Crim. App. 2005). Thrift should be limited to its facts, and 

those facts are distinguishable. In Thrift, the evidence was offered to show intent which 

this Court determined was not in dispute; thus the evidence could not pass a Rule 403 

balancing test. Here, the evidence was offered to show the state of mind of Aponte and 

D.K. and to show their past and present relationship. Thus, Thrift is not on point, and 

we will not follow the holding of Thrift in this case.

Accordingly, balancing the necessary factors, we find the probative value of the 

evidence was not substantially outweighed by the danger of unfair prejudice, and the 

trial court did not abuse its discretion in admitting State’s Exhibit 9 over Aponte’s Rule 

403 objection.

CONCLUSION

Aponte’s sole issue is overruled, and the trial court’s judgment is affirmed.

TOM GRAY

Chief Justice
Aponte v. State Page 11

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

(Justice Davis concurs without a separate opinion)

Affirmed 

Opinion delivered and filed July 11, 2013

Do not publish 

[CR25]