Opinion issued August 11, 2016

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-15-00220-CR

NO. 01-15-00221-CR

NO. 01-15-00222-CR

———————————

GARY JAMES COX, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 122nd District Court

Galveston County, Texas

Trial Court Case Nos. 13-CR-0183, 13-CR-0184 & 14-CR-3651

O P I N I O N
2

Appellant, Gary James Cox, was charged by indictment with aggravated 

sexual assault of a child,1failure to comply with registration requirements for a sex 

offender,2and attempted solicitation of sexual performance of a child.3 Appellant 

pleaded not guilty. The jury found him guilty of all three charges. The trial court 

found the enhancements true and sentenced Appellant to life imprisonment, ten 

years’ confinement, and ten years’ confinement, respectively, with the sentences to 

be served concurrently. In one issue on appeal, Appellant argues that the trial court 

abused its discretion by admitting 2,000 images and videos of child pornography 

possessed by Appellant.

We affirm for all three causes.

Background

Tom and Debbie B. were friends with Appellant when he became homeless. 

Taking pity on him, they would occasionally pick him up and feed him or put him 

in a hotel. During a family vacation in the summer of 2013, Tom and Debbie invited 

Appellant to housesit for them in League City, Texas. By that August, their son had 

reached the age of majority and moved out of their house. Tom and Debbie invited 

 

1 See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i) (Vernon Supp. 2015).

2 See TEX. CODE CRIM. PROC. ANN. art. 62.102(a) (Vernon Supp. 2015).

3 See TEX. PENAL CODE ANN. §§ 15.01(a), 43.25(b) (Vernon 2011).
3

Appellant to move into their son’s old room, and Appellant accepted. He lived with 

them from August 2013 to December 2013.

During this time, Tom and Debbie’s daughters still lived at the house. Their 

older daughter, V.B., was 13 during the time of Appellant’s stay. Their younger 

daughter, L.B., was three. On occasion, Appellant would be at the home with the 

daughters while the parents were not home. This included an occasion when Tom 

and Debbie were away for two days.

In December, Tom and Debbie discovered V.B. had a cell phone, which they 

had not given to her. On it, they found messages between Appellant and V.B. Some 

of Appellant’s text messages to V.B. were sexually suggestive. In one exchange, 

Appellant asked V.B. to send him nude pictures of herself. Tom and Debbie kicked 

Appellant out of their house and notified the League City Police Department. When 

the daughters were taken to the Children Advocacy Center, L.B. made an outcry 

against Appellant.

At trial, V.B. testified that Appellant had given her the phone that her parents 

found. She testified that, before one exchange of messages between them, Appellant 

had shown her a picture of himself nude. The picture was on his phone, and he had 

shown it to her at a time when they were the only two people in the house. Some 

time after that, they exchanged the following messages:

[Appellant:] Do you want to hear something funny?
4

[V.B.:] Ok

[Appellant:] Remember those pics of me...... The special ones?

[V.B.:] Huh

[Appellant:] The ones of me, nude.

[V.B.:] Ya

[Appellant:] Well, to make it fair, where’s the pics of you? Lol4

[Appellant:] Gotcha

[Appellant:]

[V.B.:] Uhh. I’m ok

[Appellant:] Lol, but now I’m supposed to see your pics....lol

[Appellant:] I’m just teasing with you

[V.B.:] I know... Phones about to die

[Appellant:] Then you better take the pics fast....hahaha

V.B. did not send Appellant images of herself. This exchange formed the 

basis of the State’s charge against Appellant of attempted solicitation of sexual 

performance of a child.

 

4

“LOL” is a recent, common abbreviation, meaning “Laughing out loud; laugh out 

loud (used chiefly in electronic communication to draw attention to a joke or 

amusing statement, or to express amusement).” Oxford Dictionaries, http://www.

oxforddictionaries.com/us/definition/american_english/lol (last visited February 

12, 2016).
5

Appellant’s defense to this charge during trial was that Appellant was only 

joking and, accordingly, never intended for V.B. to send him nude pictures. During 

his opening statements to the jury, Appellant’s counsel argued,

I think the evidence will show totally inappropriate text messages from 

my client to [V.B.]. I believe the evidence will show that. But the 

evidence will not show that Gary Cox had the intent of actually trying 

to get [V.B.] to send him a nude picture. Rather, I think the evidence 

will show totally inappropriate humor or inappropriate attempt at 

humor from my client to [V.B.], but nothing more.

During his cross-examination of V.B., Appellant’s counsel emphasized that 

Appellant repeatedly used “LOL” during the exchange and that he specifically said 

he was “just teasing” her.

To develop the charge of aggravated sexual assault of a child, the State 

presented the testimony of L.B.5 She was three years old at the time of the offense, 

but was five years old at the time of trial. When presented with a diagram of the 

human body, she referred to the vagina as the “bottom” and the penis as the “front.” 

She testified that Appellant had touched her on her “bottom” with his “front.” 

 

5 After the trial court admitted the exhibit containing the child pornography pictures 

and videos—the sole issue raised on appeal—the State also presented the testimony 

of the child abuse specialist at the Child Advocacy Center, Angie Attaway, to whom 

L.B. made her first outcry against Appellant. Because our review of the admitted 

evidence is based on the record before the trial court at the time of the ruling, 

Attaway’s testimony is not a part of our review. See Rangel v. State, 250 S.W.3d 

96, 97–98 (Tex. Crim. App. 2008) (holding, unless issue is relitigated later in trial, 

appellate courts review trial court’s ruling on admission of evidence based on record 

at time of ruling).
6

Appellant did not have on any pants or underwear, and he took down her pants and 

underwear. He was moving and something came out of his “front.”

Appellant’s defense to this charge was that L.B. was confused and that his 

alleged actions never happened. During voir dire, Appellant’s counsel discussed 

with the jury about how little children act differently when something bad happens 

to them. He asked the jury about different ways children would act when something 

bad happened to them and elicited answers about children acting withdrawn, staying 

in their room, or eating less. During his opening statement, Appellant’s counsel 

asserted that no physical evidence supported L.B.’s accusation, that the evidence 

would show that her behavior never changed, and that she never demonstrated any 

unusual behavior around Appellant. During his cross-examination of L.B., 

Appellant’s counsel asked her if she knew what pretending was and if her story about 

Appellant was pretend. She testified that she understood pretending and that her 

story about Appellant was not pretend.

Near the end of the guilt-innocence phase of trial, the trial court held a hearing 

outside the presence of the jury on the admissibility of the State’s exhibit of 

approximately 2,000 child pornography images and videos found on Appellant’s 

computers and storage device. The State asserted the evidence was necessary, 

among other reasons, to show intent and motive and to rebut Appellant’s claim that 

he was only joking with V.B. and did not intend for her to send him a nude picture 
7

of himself. Appellant argued that the prejudicial effect of the evidence outweighed 

its probative value. At the close of the hearing, the trial court stated,

I have looked at the case law that’s been provided by the State. I have 

heard the voir dire, the opening statement by the Defense. I’ve heard 

the tenor of the cross-examination. And I believe that the evidence is 

probative of the ultimate issues in this case. I think they go toward 

issues that the jury’s going to need to decide. . . .

. . . .

In light of [Appellant]’s . . . denial of being serious about suggesting 

that [V.B.] provide him with pictures that would be of a pornographic 

nature, I think that the evidence is relevant, I think it is not unfairly 

prejudicial.

In balancing the interest of Mr. Cox and the State’s need for this 

evidence, I’m going to err on the side for the State and overrule your 

objection.

The exhibit was created using HTML pages. The pages in the exhibit were 

grouped according to the device upon which the evidence had been found. For each 

image or video on each page, the page displayed a thumbnail-sized image of the file 

or video. The pages also listed certain information about the files, such as the name 

of the file and the size of the file on the computer’s hard drive. In presenting the 

evidence to the jury, the State displayed some of the pages containing the thumbnail 

images, but did not show all of them. The record indicates that none of the images 

were displayed in their full size and that none of the videos were played. The 

reporter’s record shows that the guilt-innocence phase of the trial was 230 pages 
8

long and that the discussion of this exhibit spanned 14 of those pages. The exhibit 

was not provided to the jury during its deliberations.

Prejudicial Effect of Evidence

In his sole issue on appeal, Appellant argues that the trial court abused its 

discretion by admitting the 2,000 images and videos of child pornography possessed 

by Appellant and that the judgment should, therefore, be reversed. Appellant argues 

the probative value of the pornography possessed by Appellant is outweighed by 

their prejudicial effect.

A. Standard of Review

“We review a trial court’s ruling under Rule 403 of the Texas Rules of 

Evidence for an abuse of discretion.” Pawlak v. State, 420 S.W.3d 807, 810 (Tex. 

Crim. App. 2013) (Pawlak II). The trial court’s ruling must be upheld as long as it 

is within the zone of reasonable disagreement. Wheeler v. State, 67 S.W.3d 879, 

888 (Tex. Crim. App. 2002).

B. Analysis

“The 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. “Evidence is unfairly 

prejudicial when it has ‘an undue tendency to suggest that a decision be made on an 
9

improper basis.’” Pawlak II, 420 S.W.3d at 809 (citing Mongtomery v. State, 810 

S.W.2d 372, 389 (Tex. Crim. App. 1990)) (internal quotations omitted). “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.

The factors considered in whether evidence is admissible under Rule 403 

“includes, but is not limited to the following factors: (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.” Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012) (citing 

Montgomery, 810 S.W.2d at 389–90). We consider each factor in turn.

1. Probative Value of the Evidence

A Rule 403 balancing test applies only to evidence that is otherwise 

admissible. See TEX.R. EVID. 402 (providing relevant evidence is admissible unless 

otherwise prohibited); TEX.R. EVID. 403 (permitting exclusion of otherwise relevant 

evidence—i.e., admissible evidence—if probative value is outweighed by any 

iterated danger). In order to determine the probative value of the evidence, it is 

necessary in this case to first determine the basis for the exhibit’s admissibility. 

The State charged Appellant with attempted solicitation of sexual 

performance of a child. “A person commits an offense if, knowing the character and 

content thereof, he . . . induces a child younger than 18 years of age to engage in 
10

sexual conduct or a sexual performance.” TEX. PENAL CODE ANN. § 43.25(b) 

(Vernon 2011); see also TEX. PENAL CODE ANN. § 15.01(a) (Vernon 2011) (“A 

person commits an offense if, with specific intent to commit an offense, he does an 

act amounting to more than mere preparation that tends but fails to effect the 

commission of the offense intended.”). This includes inducing a child to take a nude 

photograph of herself. PENAL § 43.25(a)(1)–(3).

The State also charged Appellant with aggravated sexual assault of a child. 

“A person commits an offense . . . if the person . . . intentionally or knowingly . . . 

causes the penetration of the anus or sexual organ of a child by any means.” TEX.

PENAL CODE ANN. § 22.021(a)(1)(B)(i) (Vernon Supp. 2015).

In most instances, “[e]vidence of a crime, wrong, or other act is not admissible 

to prove a person’s character in order to show that on a particular occasion the person 

acted in accordance with the character.” TEX. R. EVID. 404(b)(1). Such “evidence 

may be admissible for another purpose, such as proving motive . . . [or] intent.” TEX.

R. EVID. 404(b)(2). A different rule applies for certain sexual offenses related to 

children, however. 

Section 2 of Article 38.37 of the Texas Code of Criminal Procedure has a list 

of certain sexual offenses related to children. TEX. CODE CRIM. PROC. ANN. art. 

38.37, § 2(a)(1)–(2) (Vernon Supp. 2015). The section further provides that, 

“[n]otwithstanding Rules 404 and 405, Texas Rules of Evidence,” the State may 
11

introduce evidence of an extraneous offense contained within that list in a trial for 

any other offense also contained within that list “for any bearing the evidence has 

on relevant matters, including the character of the defendant and acts performed in 

conformity with the character of the defendant.” Id. art. 38.37, § 2(b). Allegations 

of possession of child pornography is in the list of offenses. Id. art. 38.37, 

§ 2(a)(1)(H). Trials for charges of attempted sexual performance of a child and 

aggravated sexual assault of a child are also in the list of offenses. Id. art. 38.37, 

§ 2(a)(1)(E), (a)(1)(G), (a)(2). Pursuant to section 2 of article 38.37, then, the 

evidence was admissible “for any bearing the evidence has on relevant matters, 

including the character of the defendant and acts performed in conformity with the 

character of the defendant.” Id. art. 38.37, § 2(b).

The legislative history explains the reason for this expansion of the 

admissibility of evidence of such crimes in prosecution of sexual offenses against 

children.

Prosecuting sex crimes committed against children can be difficult due 

to the physical and emotional trauma suffered by the victims. This can 

result in long delays in reporting these crimes during which physical 

evidence can deteriorate or be destroyed. Often the only evidence at a 

trial may be the testimony of the traumatized child. Children often are

targeted for these crimes, in part because they tend to make poor 

witnesses.
12

House Research Org., Bill Analysis, Tex. S.B. 12, 83d Leg. R.S. (2013); accord 

Harris v. State, 475 S.W.3d 395, 402 (Tex. App.—Houston [14th Dist.] 2015, pet. 

ref’d).

For the charge of attempted sexual performance of a child, Appellant’s main 

defense was that he was only joking when he sent the texts that form the basis of the 

charge. Appellant’s texts to V.B. included “LOL,” “hahaha,” and “I’m just teasing 

with you.” Intent is an element of the offense. See PENAL § 43.25(b) (“A person 

commits an offense if, knowing the character and content thereof, he . . . induces a 

child younger than 18 years of age to engage in sexual conduct or a sexual 

performance.” (Emphasis added.)); Alexander v. State, 906 S.W.2d 107, 110 (Tex. 

App.—Dallas 1995, no pet.) (holding intent is element of attempted sexual 

performance of a child). Appellant’s possession of child pornography constitutes 

some proof that Appellant intended to solicit more child pornography.

For the charge of aggravated sexual assault, Appellant’s main defense was 

that there was only L.B.’s word that he sexually assaulted her, while L.B. never acted 

like she had been harmed and never withdrew from Appellant. Appellant’s 

possession of pornography was some proof that he is sexually attracted to 

prepubescent girls. See PENAL § 22.021(a)(1)(B)(i) (establishing offense for 

intentionally or knowingly penetrating sexual organ of a child).
13

2. Potential to Irrationally Impress the Jury

In his brief, Appellant relies heavily on Pawlak II to argue we should reverse 

the trial court’s admission of the evidence. Pawlak II concerned the admission of 

child pornography during the guilt-innocence phase of a trial concerning sexual 

assault of a child. 420 S.W.3d at 808. The defendant had been “charged with five 

counts of sexual assault of a child, one count of sexual assault, and two counts of 

attempted sexual assault.” Id. Five complainants testified at trial. See Pawlak v. 

State, No. 13-10-00535-CR, 2012 WL 3612493, at *1–3 (Tex. App.—Corpus Christi 

Aug. 23, 2012, pet. granted) (Pawlak I). Common themes ran throughout the 

complaints. All five were teenage boys at the time of the alleged assault. Id. All of 

them accepted drinks by the defendant, either alcoholic or a specific, coconutflavored drink. Id. All of them were drugged, either voluntarily or involuntarily. 

Id. The drugs rendered the boys unable to fend off the defendant’s sexual assaults. 

See id. 

The defendant presented three character witnesses at trial. Id. at *3. One 

defense witness referenced the allegation that the defendant had been accused of 

possessing child pornography along with the sexual assault allegations. Id. at *4–5. 

The witness added that he did not believe any of the allegations. Id. The State 

sought to admit the pornographic images because Appellant had opened the door to 
14

the allegations. Id. at *5. The evidence was also used to rebut the defendant’s claim 

that he was not sexually interested in men or boys. Pawlak II, 420 S.W.3d at 810.

The evidence consisted of two exhibits. Id. One exhibit contained about 900 

pornographic images, and the other contained over 9,000 pornographic images. Id. 

The “majority of the images” were classified as gay porn, while “many of the images 

were child porn images.” Id. (internal quotations omitted). Two images were 

published to the jury. Id. During deliberations, however, the jury requested all of 

the evidence and the trial court complied. Id. 

The Court of Criminal Appeal’s analysis was formed by two principles. First, 

“[w]e have held that sexually related bad acts and misconduct involving children are 

inherently inflammatory.” Id. at 809 (citing Montgomery, 810 S.W.2d at 397). 

Second, “[w]e have also held that it is possible for the admission of character 

evidence, though not necessarily cumulative, to cross the line from prejudicial to 

unfairly prejudicial based on the sheer volume of character evidence admitted.” Id.

at 809–10 (citing Mosley v. State, 983 S.W.2d 249, 263 (Tex. Crim. App. 1998); 

Salazar v. State, 90 S.W.3d 330, 336 (Tex. Crim. App. 2002)).

The court observed that the charges at trial involved sexual assault and 

attempted sexual assault but did not involve possession of child pornography. Id. at 

810. The court acknowledged that the defendant’s “possession of male pornographic 

pictures, including male child pornography” was relevant to rebut the defendant’s 
15

“claims that he was not interested in men.” Id. It added, however, “that there was 

no allegation that Appellant took the pictures [in his possession] or that he in any 

way participated in coercing children to be involved in producing child pornography, 

much less that he assaulted them.” Id. Accordingly, they did not directly support 

the claims asserted against the defendant. Id. 

For the State’s proof of the charges involved in the suit, the court noted that 

“the State had five complainants who all testified that [the defendant] had assaulted 

them” and that the similarities in the complainants’ testimony “were striking.” Id.

at 811. In this way, the court distinguished a prior case, which involved a single 

complainant. Id. (citing Wheeler, 67 S.W.3d at 889). “Here, the State’s need for the 

extraneous-offense evidence . . . was not as great as in a ‘he-said she-said’ case with 

a single victim.” Id. As a result, the court concluded that “the extraneous-offense 

evidence was only marginally probative as a possible rebuttal of [the defendant]’s 

theory that he was not sexually interested in young men.” Id. 

Due to the low probative value of the evidence and the large number of 

images, 

the sheer volume of extraneous-offense evidence was unfairly 

prejudicial and invited the jury to convict [the defendant] of sexually 

assaulting or attempting to sexually assault the victims because [the 

defendant] possessed 9,900 images that included homosexual child 

pornography. . . . Even if were to decide that at least some of the 

extraneous-offense digital images of pornography were admissible, the 

trial court abused its discretion when it admitted all 9,900 images of 
16

pornography without regard to the amount of evidence, kind of 

evidence, or its source, and over [the defendant]’s Rule 403 objection.

Id. The court did not identify at which point the line had been crossed to become 

unfairly prejudicial. See id. (“The facts of this case do not require us to determine 

the exact point at which the admission of voluminous amounts of extraneous-offense 

character evidence crosses the threshold to unfairly prejudicial.”); see also Salazar, 

90 S.W.3d at 336 (holding “there is no legal ‘bright and easy line’ for deciding 

precisely what evidence is and is not admissible” as character evidence). 

Nevertheless, we find no basis to conclude that the court would have drawn 

the line of admissibility above 2,000 images. While Pawlak II concerned the 

admission of 10,000 pornographic images, only some of those images were actually 

child pornography. The concern expressed by the court was the “inherently 

inflammatory” effect of “sexually related bad acts and misconduct involving 

children,” not the more general act of possessing any kind of pornography. Pawlak 

II, 420 S.W.3d at 809. The opinion does not specify the amount of child 

pornography found in the exhibits. Instead, it states that the majority of the images 

were not child pornography while “many of the images were child porn images.” Id.

at 810. This further supports the conclusion that the court in Pawlak II would still 

have found an unfairly prejudicial effect if only 2,000 images had been admitted. 

Our case concerns the admission of 2,000 files of only child pornography. In 

addition, some small portion of these files were videos, not just still images. None 
17

of the videos were published to the jury, but the jury was informed that they existed. 

Based on Pawlak II, we must conclude that the exhibit of 2,000 pornographic images 

and videos had a significant potential to irrationally impress the jury.

Related to this factor, in Pawlak II, two images were published to the jury 

during the trial. Id. During its deliberation, however, the jury requested all of the 

evidence to be given to them, and the trial court complied. Id.; see also TEX. CODE 

CRIM. PROC. ANN. art. 36.25 (Vernon 2006) (“There shall be furnished to the jury 

upon its request any exhibits admitted as evidence in the case.”).

Here, in presenting the evidence to the jury, the State displayed some of the 

HMTL pages containing the thumbnail images, but did not show all of them. The 

record indicates that none of the images were displayed in their full size and that 

none of the videos were played. The exhibit was not provided to the jury during its 

deliberations.

3. Time Needed to Develop the Evidence

The guilt-innocence phase of trial—from opening statements to closing 

statements—constitutes 230 pages of the reporter’s record. Fourteen pages of the 

record are dedicated to the witness that developed and explained the exhibit in 

question, constituting six percent of the total length of the reporter’s record for guiltinnocence.
18

4. Proponent’s Need for the Evidence

In Pawlak II, the Court of Criminal Appeals determined that admitted 

evidence was “marginally probative as a possible rebuttal of Appellant’s theory that 

he was not sexually interested in young men.” 420 S.W.3d at 811. Instead, the court 

held, the strength of the case was the “multiple victims testifying about specific 

incidents of inappropriate sexual behavior, and the similarities in their stories were 

striking.” Id. 

We hold the State’s need for the evidence in this case was much greater than 

in Pawlak II. The court in Pawlak II emphasized the difference between the facts of 

its case and that of a one-on-one, he-said she-said case. Id. The strength of the case 

in Pawlak II was in the five complainants with strikingly consistent stories. Id. 

Accordingly, the State’s need to rebut the defendant’s claim that he was not sexually 

interested in men or boys was not strong. Id. 

Here, the basis for admitting the evidence for the charge concerning L.B. was 

similar to Pawlak II, but the need was much greater. We have held that the relevance 

of the evidence for the charge concerning L.B. was to present some proof that 

Appellant is sexually attracted to prepubescent girls, making the likelihood of the 

assault somewhat greater. See TEX. R. EVID. 401 (“Evidence is relevant if . . . it has 

any tendency to make a fact more or less probable than it would be without the 

evidence; and the fact is of consequence in determining the action.”).
19

While these bases for admission in Pawlak II and this case are similar, the 

needs for them are not. Here, there were two complainants, not five. Additionally, 

there was very little in common between the stories of the two complainants. In one, 

Appellant was communicating to a thirteen-year-old girl in a separate location, 

encouraging her to take an action of her own volition. In the other, Appellant was 

physically touching a three-year-old girl, forcing her to engage in sexual acts, and 

physically penetrating and assaulting her.

Moreover, L.B. was five years old at the time of trial. Her testimony was 

reluctant. Throughout her testimony, she would only respond with motions of her 

head until prompted to verbally respond. At times, she would respond in the 

negative to embarrassing questions until the State further developed the testimony 

in other ways. The very purpose of article 38.37 of the Code of Criminal Procedure 

was to aid in such circumstances. See House Research Org., Bill Analysis, Tex. S.B. 

12, 83d Leg. R.S. (2013) (recognizing difficulty of prosecuting sex crimes against 

children and recognizing that is why children are often targeted). 

The State also had a strong need for the evidence in the charge concerning 

V.B. There was no dispute that Appellant sent the messages concerning her sending 

him nude pictures of herself. The only dispute was whether Appellant was merely 

engaging in overly crass humor or whether he actually intended to persuade her to 
20

send the pictures. We have held that Appellant’s possession of child pornography 

constitutes some proof that Appellant intended to solicit more child pornography. 

Intent is rarely susceptible to proof by direct evidence. Christensen v. State, 

240 S.W.3d 25, 32 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (citing 

Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991)). Instead, “[i]ntent 

is most often proven through the circumstantial evidence surrounding the crime.” 

Id. During the closing, the State discussed other evidence that it asserted was 

relevant regarding Appellant’s intent, such as Appellant supplying V.B. with the 

phone and the home wi-fi password along with Appellant’s repeated requests for the 

images in the messages. But it argued that the strongest evidence of intent was 

Appellant’s possession of child pornography. We agree. Appellant’s possession of 

child pornography demonstrated his interest in obtaining more child pornography in 

a stronger way than providing V.B. with a phone or wi-fi password or than sending 

three requests for nude pictures intertwined with suggestions that he was joking.

While we conclude that the State had a larger need for the evidence than in 

Pawlak II, we still must consider whether the sheer volume of the pictures and videos 

nevertheless outweighed this stronger need for the evidence. See Pawlak II, 420 

S.W.3d at 809–10 (holding admissible character evidence can still become unfairly 

prejudicial based on sheer volume of evidence). To resolve this, we recognize that 

the State bore the burden of proving intent and of proving the elements of aggravated 
21

sexual assault beyond a reasonable doubt. See TEX. CODE CRIM. PROC. ANN. art. 

38.03 (Vernon Supp. 2015) (requiring “no person may be convicted of an offense 

unless each element of the offense is proved beyond a reasonable doubt”); Short v. 

State, 874 S.W.2d 666, 667 (Tex. Crim. App. 1994) (“The State alone has the burden 

of proving beyond a reasonable doubt every essential element of the offense 

charged.”); Alexander, 906 S.W.2d at 110 (holding intent is element of attempted 

sexual performance of a child). 

Necessarily, when the State is attempting to present evidence of possession of 

child pornography in support of proof of an essential element of another offense, the 

State must be permitted to present sufficient evidence so as to not just come up to a 

reasonable doubt, but to move beyond it. See TEX. CODE CRIM. PROC. ANN. art. 

38.03. “[S]exually related bad acts and misconduct involving children are inherently 

inflammatory.” Pawlak II 420 S.W.3d at 809. But the fact that evidence is 

inflammatory or prejudicial does not, itself, establish that the evidence is 

inadmissible. See id. at 811 (“However, the plain language of Rule 403 does not 

allow a trial court to exclude otherwise relevant evidence when that evidence is 

merely prejudicial.”).

Whatever amount of evidence is sufficient for the State to prove that 

possession of child pornography was not an aberration (so that the State could prove 

that the Appellant intended to attempt to obtain more child pornography) will also 
22

have an inherently inflammatory effect. See id. at 809. By the time the State has 

admitted sufficient evidence to firmly establish that a defendant’s possession of child 

pornography was not an aberration, we have no basis for believing that any 

subsequent addition of volume of the evidence would have anything more than a 

minorly incremental effect on the inflammatory nature of the material. Nor do we 

discern a method by which the State or a trial court could readily discern the margin 

between inflammatory evidence that is sufficient to carry’s the State’s burden of 

proof beyond a reasonable doubt and the same inflammatory evidence that clearly 

exceeds the burden and has a significantly larger inflammatory effect.

This is what distinguishes the facts of this case from Pawlak II. In Pawlak II, 

the need for the pornographic images to rebut an assertion that the defendant was 

not sexually attracted to men and boys was minor and did not have much bearing on 

the State’s burden of proof. Id. at 811. As a result, some smaller amount of evidence 

could have been admitted that would have mitigated the full inflammatory effect of 

such a large volume of pornographic images. See id. Given the State’s need for the 

evidence in this case, the inflammatory effect of the evidence was unavoidable, and 

any excess prejudicial effect that may have been added by the volume of evidence 

was minorly incremental.
23

5. Considerations of the Trial Court

Pawlak II relied in part on Salazar, a case concerning admission of evidence 

of the good character of the murder victims during the punishment phase of trial. 

See id. at 809 (citing Salazar, 90 S.W.3d at 336). Salazar included consideration of 

a factor we deem relevant here. In Salazar, the trial court did not consider the 

evidence prior to its admission. 90 S.W.3d at 336–37. In that situation, the court 

acknowledged, “We generally will not ‘second guess the trial court’s determination’ 

that a tape recording is ‘not needlessly cumulative or more prejudicial than 

probative’ precisely because the trial judge has reviewed offered exhibits and 

explicitly or implicitly balanced probative value against the Rule 403 

counterfactors.” Id. at 337 n.19 (quoting Webb v. State, 760 S.W.2d 263, 276 (Tex. 

Crim. App. 1988)). For that reason, “Trial judges deserve the greatest deference 

when they have explicitly weighed and balanced these four factors, and articulated 

their rationale for admitting or excluding the evidence.” Id. at 337.

Here, after the parties presented their argument to the trial court on the 

admissibility of the evidence under Rule 403, the trial court recessed to review the 

matter. Later, the trial court stated on the record that it had considered the matter, 

acknowledged the prejudicial effect of the evidence, stated the grounds for the 

State’s need for the evidence, and referenced the relevant portions of the trial 

proceedings that supported those determinations. Ultimately, the trial court held, 
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“In balancing the interest of Mr. Cox and the State’s need for this evidence, I’m 

going to err on the side for the State and overrule your objection.”

“In close cases, courts should favor the admission of relevant evidence.” Id.

at 338. The court in Salazar reversed the trial court’s admission of the evidence 

because “[n]one of the Rule 403 factors weighs in favor of admissibility.” Id. Here, 

while we have determined one factor weighs in favor of exclusion of the evidence 

(the potential to irrationally impress the jury), we have also determined other factors 

weigh in favor of its admission (the probative value of the evidence, the State’s need 

for the evidence, and the trial court’s considered ruling). Given the probative value 

of the evidence, the limited emphasis placed on the evidence, the strength of the 

State’s need for the evidence, and the careful thought of the trial court in determining 

its admissibility, we hold the trial court did not abuse its discretion by admitting the 

evidence.

We overrule Appellant’s sole issue.

Conclusion

We affirm the judgment of the trial court in all three causes.

Laura Carter Higley

Justice

Panel consists of Chief Justice Radack and Justices Keyes and Higley.
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Justice Keyes, concurring in the judgment.

Publish. See TEX. R. APP. P. 47.2(b).