Kenneth Ray Ferguson v. State
09-15-00345-CR
Tex. App.Aug 10, 2016Background
- Kenneth Ray Ferguson pleaded guilty to four counts of possession of child pornography and elected jury sentencing.
- Law enforcement using the ARES peer-to-peer network identified an IP address, subpoenaed the ISP, and linked the address to Ferguson; a search of his apartment found a laptop with child pornography.
- Forensic analysis showed Ferguson downloaded 89 videos over eight days and 27 graphic still files; the State admitted two discs with all 89 videos and played portions of six videos at punishment.
- The State introduced 25 representative still images (screenshots) from the videos and an ARES-generated printout showing additional files; defense objected under Rule 403 as cumulative and unduly prejudicial.
- The jury heard mitigating testimony (bond compliance, family/employer/National Guard support) but assessed 10 years per count, to run consecutively (40 years total).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether admitting graphic still images and an ARES printout at punishment violated Tex. R. Evid. 403 | Ferguson: images and printout were cumulative, unfairly prejudicial, and inflamed jury, denying fair punishment consideration | State: images representative of the volume/nature of downloads; printout probative to show additional files and investigative context | Court: no abuse of discretion; images admissible as relevant to punishment under art. 37.07 and not substantially outweighed by unfair prejudice; ARES printout objection on hearsay preserved differently and not reviewed on 403 grounds |
Key Cases Cited
- Martin v. State, 173 S.W.3d 463 (Tex. Crim. App. 2005) (abuse-of-discretion standard for evidentiary rulings)
- Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) (trial court must balance probative value against prejudice under Rule 403)
- Ellison v. State, 201 S.W.3d 714 (Tex. Crim. App. 2006) (punishment phase focuses on appropriate sentence, not guilt)
- Haley v. State, 173 S.W.3d 510 (Tex. Crim. App. 2005) (scope of evidence at punishment)
- Davis v. State, 968 S.W.2d 368 (Tex. Crim. App. 1998) (bifurcated system allows broad punishment evidence)
- Shuffield v. State, 189 S.W.3d 782 (Tex. Crim. App. 2006) (jury entitled to relevant information about defendant at punishment)
- Rogers v. State, 991 S.W.2d 263 (Tex. Crim. App. 1999) (relevance at punishment measured by helpfulness in sentencing)
- Sunbury v. State, 88 S.W.3d 229 (Tex. Crim. App. 2002) (art. 37.07 guides admissibility at punishment)
- Lamb v. State, 186 S.W.3d 136 (Tex. App.—Houston [1st Dist.] 2005) (art. 37.07 evidence still subject to Rule 403)
- Cohn v. State, 849 S.W.2d 817 (Tex. Crim. App. 1993) (definition of unfair prejudice)
- Boone v. State, 60 S.W.3d 231 (Tex. App.—Houston [14th Dist.] 2001) (burden on appellant to show prejudice outweighs probative value)