Opinion filed October 23, 2008

In The

Eleventh Court of Appeals

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Nos. 11-07-00302-CR, 11-07-00303-CR, & 11-07-00304-CR

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ROBERT LEE HIGHLAND, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 415th District Court

Parker County, Texas

Trial Court Cause Nos. CR06-0605, CR06-0606, CR06-0607

M E M O R A N D U M O P I N I O N

The trial court convicted Robert Lee Highland, upon his pleas of guilty, of three offenses of

aggravated sexual assault of a child. The jury assessed his punishment at confinement for life for

each offense. We affirm.

I. Background Facts

The State alleged that on three separate occasions Highland engaged in a number of sexual

acts with a female victim who was younger than fourteen years of age. After jury selection and

before the start of the evidence, the trial court discussed with counsel evidence the State anticipated
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it would offer. The State advised the court that, during the execution of a search warrant, a shoe box

full of VHS and eight-millimeter tapes depicting child pornography and involving Highland and the

victim were found. The State indicated its intent to offer the tapes into evidence and to play a fiveminute clip of material from these tapes for the jury. Highland responded that he would object to

the video because of improper authentication, because any probative value would be outweighed by

its unfair prejudice, and because it was cumulative. The State argued that the material was

admissible to show the jury the nature of the offense itself and because possession of child

pornography is an extraneous offense. The trial court asked both sides clarification questions, and

Highland advised the court that he was not objecting to the entirety ofthe State’s video offer but only

to the clip the State intended to play for the jury because it violated TEX. R. EVID. 901. The State

also indicated its intent to offer a photo album with Polaroid pictures taken by Highland and 350

CDs. Highland stated that his only objection to these was to any picture of himself and the victim.

Highland contended that the State was required to authenticate them with evidence that they were,

in fact, pictures of the victim. The trial court deferred any ruling on admissibility of the evidence

until trial.

The State’s first witness was Special Agent Lori A. Keefer with the Federal Bureau of

Investigation. Agent Keefer testified that her responsibilities included child pornography cases and

crimes against children. Agent Keefer testified that the FBI and Immigrations and Customs

Enforcement Agency suspected Highland was purchasing child pornography. The FBI obtained a

search warrant for Highland’s home. Agent Keefer executed the warrant when Highland was home.

He admitted to herthat he possessed child pornography. During the search, Agent Keefer found two

photo albums with Polaroid pictures in a safe in Highland’s bedroom closet.

When the State offered the two photo albums into evidence, Highland requested the

opportunity to voir dire Agent Keefer. On voir dire, Agent Keefer testified that she believed

Highland had taken the pictures but agreed that she had no personal knowledge of this. Highland’s

voir dire examination then continued:

Q. Okay. And do you know when these photos were taken?

A. I know from my identification of the victim and by interviews that

I’ve conducted, actually, with Mr. Highland’s daughter, with the
 Crawford v. Washington, 541 U.S. 36 (2004).

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victim, and with the victim’s family members, of what her age is in

the photo albums.

Q. Right. So based on that, you know or you were able to identify who

was in these pictures based on what somebody told you; is that right?

A. Well, actually, the day of the search warrant when we found the

photos – when we found the two photo albums, my initial thought

was that it was two different girls that were depicted in the photos,

and I thought that it could possibly have been histwo daughters. His

daughter . . . ended up arriving at the residence that day and I showed

her the photographs and she identified A.C. as being the girl depicted

in the photos. And I later found A.C. and showed her the

photographs, and she identified herself as being who is depicted in the

photos.

Q. Right, all of which you had no personal knowledge of. They were

identified by other people or what people told you?

A. Correct.

Highland then objected to the admission of the photo albums, contending that the proper predicate

had not been laid because Agent Keefer had no personal knowledge concerning the photographs.

The trial court overruled Highland’s objection and admitted the photo albums. Highland then asked

for, and received, permission to lodge an additional objection to the admission of the photographs.

Highland objected to the photographs because their probative value was substantially outweighed

by the danger of unfair prejudice, because the photographs were cumulative, and because “it’s [a]

violation of the Sixth Amendment right to confrontation as well as violation of Crawford.” The trial 1

court responded that its ruling would stand.

The State continued its examination of Agent Keefer. She testified that, in some of the

videos taken from Highland’s house, A.C. appeared to be “basically passed out.” The State then

asked Agent Keefer:

Q. Did you take the opportunity to see how passed out she was or how

unconscious she was?
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A. Yes. We were very concerned because during some of the sex acts,

the victim is totally unresponsive and we suspected that she was

given something and we didn’t know what she might have been

given. I have a coworker who was a former nurse, and she counted

the number of breaths A.C. took during a sequence in the video. And

she’s barely taking nine to twelve breaths a minute which she said is

borderline unresponsive. But in talking to witnesses in the case – 

Highland objected to this testimony as hearsay. The trial court overruled the objection. Following

the completion of the evidence, the jury assessed Highland’s punishment at confinement for life for

each indictment.

II. Issue

 Highland challenges his sentence with a single issue contending the trial court abused its

discretion by overruling his objections to Agent Keefer’s testimony.

III. Standard of Review

 We review the trial court’s admission of evidence under an abuse of discretion standard.

Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). A trial court does not abuse its

discretion if its ruling is within the zone of reasonable disagreement. Id. We will uphold a trial

court’s evidentiary ruling if it is reasonably supported by the record and is correct under any theory

of applicable law. Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005). If evidence is

admitted in error, we must then conduct a harmless error analysis. TEX. R. APP. P. 44.2.

IV. Discussion

Although presented in a single issue, Highland’s appeal implicates two decisions by the trial

court. We will address these decisions separately, starting first with the trial court’s decision to

overrule Highland’s objection to testimony that the victim appeared unresponsive in some of the

videos. The only objection Highland made to this testimony at trial and thus the only issue we will

consider on appeal is whether this testimony was hearsay.

Agent Keefer’s testimony that the victim appeared unresponsive during some of the sex acts

is not hearsay because it was her personal observation after watching the videos, but her testimony

that a coworker said the victim was borderline unresponsive because she was taking only nine to

twelve breaths a minute is hearsay. See TEX. R. EVID. 801(d). This is nonconstitutional error and,
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thus, must be disregarded unless it affected Highland’s substantial rights. Rule 44.2(b). We find that

it did not.

The jury knew that Highland had pleaded guilty to three indictments alleging aggravated

sexual assault. Each indictment alleged multiple acts of sexual assault by Highland against the

victim. Agent Keefer’s testimony advised the jury that on some occasions the victim was borderline

unresponsive and, thus, added the allegation that Highland also drugged the victim. After Agent

Keefer testified, the State called the victim’s younger sister as a witness. She testified without

objection that she and her sister spent considerable time with Highland’s daughter at his house and

that he frequently provided them with alcohol. At the time, she was seven to nine years old, and her

sister was eight to ten years old. She testified that Highland would purchase two six-packs of wine

coolers and that she and Highland’s daughter would drink one and the victim would drink the other

by herself. This resulted in her sister getting “more drunk than what she should have been.” This

testimony rendered any prior error harmless.

We next consider Agent Keefer’s voir dire testimony. Highland’s brief characterizes his trial

objection as an objection to Agent Keefer’s testimony, but the transcript reveals that he was actually

objecting to the admission of the photo albums. Agent Keefer’s testimony that Highland’s daughter

and A.C. identified themselves in the photographs was hearsay; however, Highland did not object

in response to this testimony. He instead asked an additional question to confirm that Agent Keefer

had no personal knowledge of the identity of the people in the photographs and then, consistently

with the position he articulated prior to the start of the evidence, objected because “the proper

predicate [had] not been laid with respect to these photo albums.” When that objection was

overruled, he asked for permission to “lodge another objection to the admittance of these video --

of these photographs in addition to my previous objection under Rule 901.” Highland’s trial

objection to the photo albums did not preserve the objection to Agent Keefer’s prior testimony that

he raises in his brief.

Regardless, any error would be harmless. Agent Keefer’s testimony established the

extraneous offense of possession of child pornography – an allegation Highland does not contest.

Highland admitted to Agent Keefer that he had child pornography when she executed the search

warrant. In addition to the two photo albums, the State’s evidence included eighteen videotapes,
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over 300 computer disks (containing 100,000 to 125,000 child pornography images), seven floppy

disks, and a variety of other child-pornography related material. Each of these exhibits was

introduced without objection. In light of this overwhelming evidence of possession, any evidence

of the identity of the subjects would not affect Highland’s substantial rights.

The fact that Agent Keefer testified that she knew the identity of the subjects in the photo

albums from her conversations with the victim and Highland’s daughter does not alter the analysis.

Other testimony establishing that Highland’s child pornography collection included pictures of the

victim and Highland’s daughter was introduced without objection. Agent Keefer testified that she

met with both the victim and Highland’s daughter during her investigation. She also testified that

she viewed the VHS tapes and eight-millimeter tapes found in Highland’s closet. Agent Keefer

testified that Highland appeared on some of the tapes and that both the victim and Highland’s

daughter could be seen on some of them. During trial, Highland’s daughter was shown a portion of

one of the videos and confirmed that it depicted herself and the victim. Because this testimony and

evidence came in without objection, there was no harm in admitting Agent Keefer’s description of

her conversations with the victim and Highland’s daughter. Highland’s issue is overruled.

V. Holding

The judgments of the trial court are affirmed.

RICK STRANGE

JUSTICE

October 23, 2008

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.