ORAL ARGUMENT REQUESTED

NO. PD-0270-15

IN THE COURT OF CRIMINAL APPEALS 

OF THE STATE OF TEXAS

SITTING AT AUSTIN, TEXAS

JOSEPH SULLIVAN, 

Petitioner,

VS.

THE STATE OF TEXAS 

Respondent

On Petition for Discretionary Review

To the Court of Appeals Twelfth

Supreme Judicial District Cause

No. 12-13-00253-CR

PETITION SEEKING DISCRETIONARY REVIEW 

James W. Huggler

State Bar No. 00795437

100 E. Ferguson, Suite 802

Tyler, Texas 75702

Telephone: 903-593-2400

Facsimile: 903-593-3830

jhugglerlaw@sbcglobal.net

ATTORNEY FOR PETITIONER
i

TABLE OF CONTENTS

DESCRIPTION PAGE

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i 

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii 

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . 2

GROUND FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

THE COURT OF APPEALS ERRED IN FINDING THAT 

THE TRIAL COURT’S DECISION TO ADMIT EVIDENCE 

WAS WITHING THE ZONE OF REASONABLE 

DISAGREEMENT.

REASONS FOR GRANTING REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . 3

ARGUMENTS AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

B. Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

APPENDIX A - Opinion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ii

INDEX OF AUTHORITIES

STATUTES

TEX. PENAL CODE ANN. §20.02 (West 2009). . . . . . . . . . . . . . . . . . . . . . . 2

CASES

Erazo v. State, 144 S.W.3d 487 (Tex. Crim. App. 2004). . . . . . . . . . . 4, 5

Jackson v. State, 314 S.W.3d 118 (Tex. App. – Houston [14th Court],

2010, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990). . . . . . 3, 4

Prytash v. State, 3 S.W.3d 522 (Tex. Crim. App. 1999).. . . . . . . . . . . . . 3

Santellan v. State, 939 S.W.2d 155 (Tex. Crim. App. 1997). . . . . . . . 4, 5

Sullivan v, State, No. 12-13-00253-CR, 2015 Tex. App.

LEXIS 1304 (Tex. App. – Tyler, Feb. 15, 2015).. . . . . . . . . . . . passim

RULES

TEX. R. APP. P. ANN. 9.4 (West 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . 10

TEX. R. APP. P. ANN. 66.3(a) (West 2013). . . . . . . . . . . . . . . . . . . . . . . . . 3

TEX. R. APP. P. ANN. 66.3( c) (West 2013). . . . . . . . . . . . . . . . . . . . . . . . . 3
1

JOSEPH SULLIVAN,

PD-0270-15

§ IN THE COURT OF

PETITIONER §

§

VS. § CRIMINAL APPEALS

§

THE STATE OF TEXAS, §

APPELLEE § AUSTIN, TEXAS

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

Now Comes JOSEPH SULLIVAN, Petitioner and Defendant in the 

trial court, and respectfully submits this his Petition for Discretionary 

Review complaining of the ruling and opinion by the Court of Appeals for 

the Twelfth Supreme Judicial District, and would show the Court as 

follows:

STATEMENT REGARDING ORAL ARGUMENT

In the event this Court grants this petition, Petitioner requests the 

Court to grant oral argument herein so that all matters may be clarified 

and any questions presented by the briefs of the parties may be addressed 

in a proper manner.
2

STATEMENT OF THE CASE

Appellant was indicted in cause number 007-1018-12 and charged

with the offense of continuous sexual abuse of a child and received a life 

sentence. TEX. PENAL CODE ANN. §21.02 (West 2009). A jury trial was 

held on all issues. The Court of Appeals affirmed the trial court’s 

judgment and sentence in an unpublished decision, and this petition 

follows.

STATEMENT OF PROCEDURAL HISTORY

The Twelfth Court of Appeals issued an opinion in number 12-13-

00253-CR on February 11, 2015. No motion for rehearing was filed. On 

March 11, 2015, a Motion to Extend Time to File Petition for 

Discretionary Review was filed. That Motion was granted and the time 

to file a petition for discretionary review was extended until April 13,

2015.
3

GROUND FOR REVIEW

THE COURT OF APPEALS ERRED IN FINDING THAT 

THE TRIAL COURT’S DECISION TO ADMIT EVIDENCE 

WAS WITHIN THE ZONE OF REASONABLE 

DISAGREEMENT.

REASONS FOR GRANTING REVIEW

The Court of Appeals’ decision conflicts with another court of appeals 

decision on the same issue. TEX. R. APP. P. ANN. 66.3(a) (West 2014).

The Court of Appeal’s decision conflicts with an applicable decision 

of the Court of Criminal Appeals on an important question of state law.

TEX. R. APP. PROC. ANN. 66.3( c)(West 2014).

ARGUMENTS AND AUTHORITIES

A. Standard of Review

A court’s decision to admit evidence is reviewed for an abuse of

discretion. Prytash v. State, 3 S.W.3d 522, 527 (Tex. Crim. App. 1999);

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). As

long as the trial court’s ruling was at least within the zone of reasonable
However, both Erazo and Santellan involved prosecutions for

4

disagreement, the appellate courts will not intercede. Montgomery, 810

S.W.2d at 391.

B. Analysis

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. Both a trial and appellate 

court are required 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. Erazo v. State 144 S.W.3d 487, 489 

(Tex. Crim. App. 2004). Specifically regarding photographs, the courts are 

to consider (1) the number of exhibits offered; (2) the gruesomeness; (3) 

the detail; (4) the 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; (9) and other circumstances

unique to the case. Santellan v. State, 939 S.W.2d 155, 172 (Tex. Crim. 

App. 1997).
5

murder and the pictures in those matters were related directly to the 

offense charged. In this case, the photographs offered and admitted did 

not purport to show the defendant or the complaining witness. The 

photographs offered were offered solely to impress the jury that this 

defendant was a sexual predator. These photographs were not related to 

the offense conduct, did not depict anything similar to what the 

complainant described, and were not prosecuted as offenses in and of 

themselves. While they may have been distasteful,they were not illegal.

Just as prosecutors have learned that evidence of membership in an 

organized criminal street gang leads to convictions, possession of possible

child pornography can also lead juries to disregard evidence and convict.

Jackson v. State, 314 S.W.3d 118 (Tex. App. – Houston [14th Court], 2010, 

no pet.). While the photographs admitted did contain lascivious

depictions,there was no causal link to establish that Sullivan was aroused

by these photographs. Sullivan at *8.

In this case, the appellate court described the cross-examination of

the complainant as well-structured and effective. Sullivan at *9-10. The 

Court of Appeals erred in determining that it was “keenly important” 

“particularly important” for the State to offer these photographs to
6

establish that Sullivan received sexual gratification from them

contemporaneously with the alleged abuse. Sullivan at *10. Despite the 

well-structured attack on the complainant’s credibility, the Court of 

Appeals erred in then stating that these photographs were not likely to 

impress the jury in some irrational way, and that possession of 

“pornographic” material was less heinous than the acts testified to by the 

complainant. This decision reached by the Court of Appeals conflicts with 

opinions from this Court and other appellate courts and should be

reversed.

CONCLUSION

Under all circumstances, the Court of Appeals erred in affirming the 

trial court’s decision. This court should grant discretionary review and, 

upon such review, reverse the Court of Appeals and remand the case to 

the Court of Appeals.
7

PRAYER

WHEREFORE, Petitioner prays the Court to grant discretionary 

review and, upon such review, to reverse the judgment of the Court of 

Appeals; and for such other and further relief to which he may show 

himself justly entitled.

Respectfully submitted,

/s/ James Huggler 

James W. Huggler

State Bar No. 00795437

100 E. Ferguson, Suite 805

Tyler, Texas 75702

Telephone: 903-593-2400

Facsimile: 903-593-3830

ATTORNEY FOR PETITIONER
8
9

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Petition 

has been forwarded to the District Attorney, Smith County, Texas, and on 

the State Prosecuting Attorney by regular mail or through the State of 

Texas Electronic Filing System on this the 11th day of April, 2015 at the 

addresses listed below

/s/ James Huggler 

James W. Huggler

Michael West

Smith County District Attorney’s Office

100 N. Broadway, 4th Floor

Tyler, Texas 75702

Lisa McMinn

State Prosecuting Attorney

PO Box 12405

Austin, Texas 78711

CERTIFICATE OF COMPLIANCE

I certify that this Brief complies with Tex. R. App. P. 9.4, specifically 

using 14 point Century font and contains 2,332 words as counted by 

Corel WordPerfect version x6.

/s/ James Huggler 
10

James W. Huggler, Jr.
11

NO. PD-0270-15

IN THE COURT OF CRIMINAL APPEALS 

OF THE STATE OF TEXAS SITTING AT

AUSTIN, TEXAS

********************************************************* 

JOSEPH SULLIVAN,

Petitioner

VS.

THE STATE OF TEXAS,

Respondent

********************************************************* 

On Petition for Discretionary Review

To the Court of Appeals Twelfth

Supreme Judicial District Cause

No. 12-13-00253-CR

********************************************************* 

APPENDIX

*********************************************************
12

JOSEPH EDWARD SULLIVAN, APPELLANT v. THE STATE OF TEXAS, APPELLEE 

NO. 12-13-00253-CR

COURT OF APPEALS OF TEXAS, TWELFTH DISTRICT, TYLER

2015 Tex. App. LEXIS 1304

February 11, 2015, Opinion Delivered

NOTICE: PLEASE CONSULT THE TEXAS RULES 

OF APPELLATE PROCEDURE FOR CITATION OF 

UNPUBLISHED OPINIONS.

PRIOR HISTORY: [*1] Appeal from the 7th District

Court of Smith County, Texas. (Tr.Ct.No. 007-1018-12).

COUNSEL: For Appellant: Austin R. Jackson. 

For State: Michael J. West.

JUDGES: Panel consisted of Worthen, C.J., Hoyle,J., and

Neeley, J.

OPINION BY: BRIAN HOYLE

OPINION

MEMORANDUM OPINION

Joseph Edward Sullivan appeals his conviction for 

continuous sexual abuse of a child under fourteen, for 

which he was sentenced to imprisonment for life. In one 

issue, Appellant argues that the trial court erred in 

admitting irrelevant and unduly prejudicial photographic 

evidence offered by the State during the guilt-innocence 

phase of trial. We affirm.

BACKGROUND

Appellant was charged by indictment with continuous 

sexual abuse of his girlfriend's young daughter, K.J. 

Appellant pleaded "not guilty." The matter proceeded to a 

jury trial.

At trial, K.J. testified regarding multiple instances of 

Appellant's sexually abusing her.

1 Moreover, a video 

recording of her interview with Jackie Mendez, a forensic 

examiner with the Child Advocacy Center in Tyler, Texas, 

was played for the jury. Additionally, the State elicited 

testimony from multiple forensic scientists concerning the 

biologicalsamples collected from K.J. by the sexual assault

nurse examiner. Each testified that no DNA linking 

Appellant to the crime was present in [*2] the samples 

collected. The State further sought to introduce, over 

Appellant's objection, nine pictures recovered from 

Appellant's laptop depicting young girls. The trial court 

overruled Appellant's objection and permitted the State to 

publish the pictures to the jury. Thereafter, the State rested. 

Appellant rested without calling any witnesses.

1 Appellant has not raised an issue challenging the 

sufficiency of the evidence.

Ultimately, the jury found Appellant "guilty" as 

charged. Following a bench trial on punishment, the trial 

court sentenced Appellant to imprisonment for life. This 

appeal followed.

ADMISSIBILITY OF EVIDENCE - RELEVANCE AND UNDUE

PREJUDICE

In his sole issue, Appellant argues that the trial court 

abused its discretion in admitting nine photographs seized 

from Appellant's laptop. Specifically, Appellant argues the 

admission ofthis evidence violates Texas Rules of Evidence

401, 402, and 403.

Standard of Review and Governing Law

We review the trial court's decision to admit evidence 

for abuse of discretion. See Prystash v. State, 3 S.W.3d

522, 527 (Tex. Crim. App. 1999); 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." Montgomery, 810 S.W.2d at 391. 

Furthermore, [*3] 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).

"Relevant evidence" means evidence having any 

tendency to make the existence of any fact that is of 

consequence to the determination of the action more
13

probable or less probable than it would be without the 

evidence. TEX. R. EVID. 401. Evidence that is not relevant 

is inadmissible. See TEX. R. EVID. 402. 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 [*4] 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,

114 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).

Moreover, under Rule 404(b), evidence of other 

crimes, wrongs, or bad acts is inadmissible if it is offered to 

prove the character of a person in order to show action in 

conformity therewith. See TEX. R. EVID. 404(b). But it may 

be admissible for other purposes, such as proof of motive, 

opportunity, intent, [*5] absence of mistake or accident, or 

to rebut a defensive theory. Id.; Sarabia v. State, 227

S.W.3d 320, 322 (Tex. App.--Fort Worth 2007, pet. ref'd).

The Photographs and K.J.'s Trial Testimony

In the instant case, the State sought to admit nine of 

approximately two thousand photographs recovered from 

Appellant's laptop. Each of these pictures depicts one or 

more young girls. In five of the pictures, the girls are nude 

or partially nude. In three of the remaining four pictures, 

the girls depicted are wearing only undergarments, and in 

the fourth picture, the girl is wearing an ill-fitting and 

revealing bathing suit. 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.

Earlier in the trial, K.J., who was twelve years old at 

that time, testified that when she was nine years old, 

Appellant sexually abused her on multiple occasions. 

Specifically, she stated that Appellant would put his hand 

on her genitals under her underwear and, subsequently, 

would put his finger in her vagina. K.J. specified that this 

happened approximately twenty-five times, usually on a 

weekly basis. K.J. also described another incident when 

Appellant placed [*6] an object she described as "hard and 

rubbery [feeling], like a [hard] bottle nipple . . . close to 

[her] bottom." K.J. elaborated, stating that her back was 

toward Appellant, who was rubbing this object on her 

bottom and who once put the object in her bottom, while he 

breathed heavily and rubbed her stomach under her shirt 

with his hands.

On cross examination, K.J. testified that she told 

Mendez that she "gets really mad sometimes." She further 

testified that she did not like having to sleep in the dining 

room and was mad because Appellant's son had his own 

room. K.J. further recounted an incident with a boy at her 

school, whom she accused of touching her bottom. Based 

on K.J.'s testimony about feeling something similar to a 

bottle nipple on her bottom, the State questioned her about 

her familiarity with condoms and whether she had seen one

in her mother and Appellant's bathroom on one occasion. 

The State further questioned K.J. about whether Appellant's 

son had, on numerous occasions, jokingly pretended to 

"drop a condom" in front of her.

On redirect examination, K.J. stated that she had not 

fabricated her allegations against Appellant for the purpose 

of creating an opportunity to have [*7] her own bedroom.

During his closing argument, Appellant began by 

stating, "The bottom line in this case is the credibility of the 

witnesses, primarily, [K.J.]. She was the only witness that 

means anything in the case." Appellant then proceeded to 

point out inconsistenciesin K.J.'stestimony and suggest to
14

the jury that she fabricated the story because, among other 

reasons, she was mad about having to sleep in the dining 

room. Appellant elaborated, suggesting that K.J. observed 

the consequencesthat befell the boy at her school after she 

reported to the teacher that he had touched her rear end. 

Appellant proffered that, as a result, K.J. believed she could 

gain some sort of advantage by placing Appellant in a 

similar predicament by telling her teacher that he had 

touched her inappropriately. Appellant further emphasized 

to the jury that the State had admitted having no physical 

evidence and, ultimately, asked the jury to conclude that 

there was reasonable doubt that Appellant did what K.J. 

said he did.

Relevance

The photographs admitted in the instant case share a 

common theme--lascivious depictions of young girls.

2 The 

indictment alleged that Appellant committed the offense of 

continuous [*8] sexual abuse by, among other ways, 

intentionally or knowingly engaging in sexual contact with 

K.J. by touching her genitals with the intent to arouse or 

gratify his sexual desire.

3 K.J. testified that Appellant put 

his hand in her pants underneath her underwear on 

numerous occasions. The photographs, which were 

recovered from Appellant's computer, tended to prove that 

Appellant was aroused by lascivious depictions of young 

girls. This tends to support the conclusion that Appellant, 

on numerous occasions, engaged in the aforementioned 

sexual contact with the intent to arouse or gratify a similar 

sexual desire. See, e.g., Pallm v. State, No. 12-10-00329-

CR, 2011 Tex. App. LEXIS 9402, 2011 WL 6043025, at *2 

(Tex. App.--Tyler Nov. 30, 2011, pet. ref'd) (mem. op., not 

designated for publication). They further served to bolster 

K.J.'s testimony, the veracity of which Appellant attacked. 

Id.

2 Among these pictures was a photograph of a 

prelude to a sexual encounter between a girl and an 

older nude male with an erect penis. Another 

photograph depicts two girls. One is on her knees, 

leaning forward on her elbows, and facing away 

from the camera, while the other girl is kneeling, 

facing the camera, and has both of her hands placed 

on the first girl's genitals.

3 See TEX. [*9] PENAL CODE ANN. § 21.02(c)(2) 

(West Supp. 2014) ("act of sexual abuse" includes 

indecency with a child under Section 21.11(a)(1), if 

actor committed offense in a manner other than by 

touching breast of child); id. § 21.11(a) (West

2011) (person commits indecency with child if,

with a child younger than seventeen years of age, 

person engages in sexual contact with child); see

also id. § 21.01(2) (West 2011) (under Section

21.11, "sexual contact" includes touching by person 

of any part of child's genitals and requires act be 

committed with intent to arouse or gratify sexual 

desire of actor).

Weighing Probative Value Against 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.

Applying the Rule 403 balancing factors to this case, 

we first consider how compellingly the photographs served 

to make a fact of consequence more or less probable. 

Sarabia, 227 S.W.3d at 324. As set forth previously, this 

photographic evidence was necessary to prove the requisite 

intent element under Sections 21.02 and 21.11. Moreover, 

at trial, Appellant fervently challenged K.J.'s credibility. 

Because there were no other eyewitnesses and no biological 

evidence linking Appellant to the crime, the evidence in 

question [*10] was particularly important to the State's 

need to rebut Appellant's well-structured attack on its key

witness. Appellant declined to call any witnesses. Thus, his 

attack on K.J.'s credibility was a critical component to his 

defense. As a result, it was keenly important that the State 

seek to bolster K.J.'s testimony. Because K.J. admitted that 

she was mad about having to sleep in the dining room and 

that she accused a boy at her school of making unwanted 

contact with her rear end, the jury could have reasonably 

concluded that she fabricated her allegations to gain some 

sort of advantage by getting Appellant into trouble. These 

photographs possessed by Appellant contemporaneously 

with the events in question tended to show that K.J.'s 

testimony was truthful since it demonstrated that Appellant 

received sexual gratification from viewing these 

photographs. See, e.g., Pallm, 2011 Tex. App. LEXIS 9402,

2011 WL 6043025, at *2. We conclude that the probative 

value of the photographic evidence is high and the State's 

need for the evidence was significant.

As for the exhibits, they are nine color images 

apparently downloaded from the internet. Eight of the nine 

photographs are 4? x 6,? while the remaining photograph is

3 1/2? x 5.? None of the [*11] pictures are particularly 

sharp in detail. Most of the photographs could be described 

as blurry to moderately pixilated. Finally, one photograph 

appears to have been taken with some sort of night vision 

filter, and its subject is barely discernible.

But despite the poor quality of the photographs, we 

cannot discount the possibility that they may have 

potentially impressed the jury in some irrational way. And
15

while the notion of a person receiving any sort of 

gratification from these sorts of pictures is repugnant, its 

potential to irrationally impress the jury in the instant case 

was diminished given the totality of the evidence before the 

jury. See, e.g., Gomez v. State, No. 12-13-00050-CR, 2015

Tex. App. LEXIS 486, 2015 WL 303095, at *4 (Tex. App.--

Tyler 2015, no pet. h.) (not yet released for publication);

Pallm, 2011 Tex. App. LEXIS 9402, 2011 WL 6043025, at

*3. Indeed, Appellant's possession of this pornographic 

material was likely to be construed as less heinous by the 

jury than the detailed evidence it heard concerning 

Appellant's repeatedly rubbing nine-year-old K.J.'s genitals, 

inserting his finger into her vagina, and penetrating her 

anus with a foreign object. Cf. Gomez, 2015 Tex. App. 

LEXIS 486, 2015 WL 303095, at *4; Pallm, 2011 Tex. App. 

LEXIS 9402, 2011 WL 6043025, at *3.

Moreover, the State did not spend an excessive amount 

of time developing this evidence. All argument concerning 

the admissibility of these photographs [*12] was conducted 

outside of the jury's presence. The State proved up the 

photographs with only three questions. Once the 

photographs were offered into evidence and published to 

the jury, the State concluded its examination and rested. 

Further still, while the State made references to these 

photographs in its jury argument, it did so while drawing a 

clear line to the intent element. Specifically, the prosecuting 

attorney argued to the jury as follows:

One of the other elements we have to 

prove is that the defendant acted with intent 

to arouse or gratify his sexual desires. I 

think his acts speak for themselves, but I 

also think other items do. I didn't like 

looking at these [photographs]. I had to 

look at them for trial. You didn't want to 

look at them. But you had to look at them 

because you're the jury in this case. Do you 

think anybody else in this room likes 

looking at them? That man right there. 

Ladies and gentlemen, we have proved our 

case beyond a reasonable doubt. I ask you 

today to fight for her, to right a wrong in 

her life with a guilty.

In response, Appellant's attorney also made several 

references to the photographs, explaining to the jurors that 

the purpose of the State's offering [*13] the photographs 

was to "get a reaction out of" them and cause them to not 

care about the evidence, or lack thereof. Appellant further 

reminded the jury that it was not obligated to convict 

Appellant based on his possessing these photographs.

Having considered and balanced the aforementioned 

factors, we conclude that each factor weighs in favor of the 

trial court's finding that the probative value of the 

photographs is not substantially outweighed by the danger 

of unfair prejudice. Therefore, we hold that the trial court 

did not abuse its discretion in admitting these photographs. 

Appellant's sole issue is overruled.

DISPOSITION

Having overruled Appellant's sole issue, we affirm the 

trial court's judgment.

BRIAN HOYLE

Justice

Opinion delivered February 11, 2015.

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

J.

(DO NOT PUBLISH)

JUDGMENT

THIS CAUSE came to be heard on the appellate 

record and briefs filed herein, and the same being 

considered, it is the opinion of this court that there was no 

error in the judgment.

It is therefore ORDERED, ADJUDGED and 

DECREED that the judgment of the court below be in all 

things affirmed, for which execution may issue, and that 

this decision be certified [*14] to the court below for 

observance.

Brian Hoyle, Justice.
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Case # PD­0270­15

Case Information

Location Court Of Criminal Appeals

Date Filed 04/13/2015 03:39:05 PM

Case Number PD­0270­15

Case Description

Assigned to Judge

Attorney James Huggler

Firm Name Law Office of James Huggler

Filed By James Huggler

Filer Type Not Applicable

Fees

Convenience Fee $0.09

Total Court Case Fees $0.00

Total Court Filing Fees $0.00

Total Court Service Fees $0.00

Total Filing & Service Fees $0.00

Total Service Tax Fees $0.00

Total Provider Service Fees $3.00

Total Provider Tax Fees $0.25

Grand Total $3.34

Payment

Account Name Amie

Transaction Amount $3.34

Transaction Response

Transaction ID 8000323

Order # 004867925­0

Petition for Discretionary Review

Filing Type EFileAndServe

Filing Code Petition for Discretionary Review

Filing Description Petition for Discretionary Review

Reference Number PDR

Comments

Status Rejected

Fees

Court Fee $0.00

Service Fee $0.00
4/15/2015 Envelope Details

https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=d9c63dbb­5823­44e9­950b­3bd097eb1016 2/2

Rejection Information

Rejection

Reason

Time Rejection Comment

Other

04/15/2015

04:47:14

PM

The petition for discretionary review does not contain the identity of Judge,

Parties and Counsel [Rule 68.4(a)]. You have ten days to tender a corrected

petition for discretionary review.

Documents

Lead Document PDR.pdf [Original]

eService Details

Name/Email Firm Service Type Status Served

Date/Time

Opened

Michael West

MWest@smith­county.com

Smith County

District Attorney's

Office

EServe Sent Yes

04/13/2015

05:13:18 PM

Lisa McMinn

information@spa.texas.gov

State Prosecuting

Attorney

EServe Sent Yes

04/13/2015

04:26:08 PM

Lisa C. McMinn

lisa.mcminn@spa.texas.gov

State Prosecuting

Attorney's Office

EServe Sent Yes

04/14/2015

08:30:29 AM