Brandon Michael Hamel v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 27, 2025
• Docket: 09-23-00371-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-23-00371-CR ________________

BRANDON MICHAEL HAMEL, Appellant

V.

THE STATE OF TEXAS, Appellee

________________________________________________________________________

On Appeal from the 1st District Court Jasper County, Texas Trial Cause No. 14683JD ________________________________________________________________________

MEMORANDUM OPINION A grand jury indicted Appellant, Brandon Michael Hamel, (“Hamel”) for two

offenses: (1) sexual assault of a child in cause number 14546JD, and (2) possession

of child pornography in cause number 14683JD. See Tex. Penal Code Ann. §§

22.011(a)(2), 43.26(a)(1).

The first indictment, in cause number 14546JD, alleged that Hamel

intentionally and knowingly caused the penetration of the sexual organ of J.D., a

1 child who was younger than seventeen years of age, by defendant’s sexual organ. 1

The appeal of cause number 14546JD will be resolved through a separate

memorandum opinion issued by this court. 2 The second indictment, in cause number

14683JD, alleged that Hamel intentionally and knowingly possessed visual material

that visually depicted, and which the defendant knew visually depicted a child who

was younger than eighteen years of age at the time the image of the child was made,

engaging in sexual conduct, namely actual sexual intercourse. Id. § 43.26(a)(1).

Hamel pleaded “not guilty.” The cases were consolidated for trial and heard

by a single jury. The jury found Hamel guilty in both cases. Hamel elected to have

the trial court determine his sentence, and the court sentenced him to twelve years’

confinement on the sexual assault case in cause number 14546JD and five years’

confinement on the possession of child pornography case in cause number 14683JD,

with the sentences to run concurrently. On appeal, Hamel alleges that the evidence

is insufficient to support his conviction for possession of child pornography. We

affirm.

1 To protect the minor child’s identity, we refer to her by her initials and we refer to her family members by their relationship to the victim. See. Tex. Const. art. I, § 30(a)(1) (granting crime victims “the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process[.]”). Additionally, we use pseudonyms to identify non-law-enforcement witnesses to protect their privacy. 2 See Hamel v. State, No. 09-23-00370-CR. 2 Evidence at Trial

“Candace” testified that she worked at a tire store in Kirbyville when she saw

Hamel and J.D. at the store attempting to buy a tire in December of 2021. While

Hamel was having a casual conversation with Candace, he told Candace that he was

taking J.D. to meet Hamel’s mother because Hamel and J.D. were going to be

married. Candace said she was concerned because she thought J.D. looked as though

she were only around twelve to fourteen years old. Hamel and J.D. had to leave the

store and return later in the day after their new tire was delivered. Candace testified

that while Hamel and J.D. were away, she checked her local Facebook page and

discovered that J.D.’s mother was searching for her, saying she thought J.D. had run

away. Candace then went to the police station to report what she had learned to let

the police handle the situation.

Officer Richard Going was on duty for the Kirbyville Police Department the

day J.D. was reported missing. Going testified that he received the report of the

runaway and decided to go by the only motel in town to see whether Hamel and J.D.

were there. Going said he saw the car that matched the description he had been given

and approached the room where Hamel and J.D. were staying. After summoning

backup and waiting for it to arrive, Going asked Hamel to step outside, read him his

Miranda rights, and questioned him while another officer went inside the motel room

to speak with J.D. Going said that Hamel asked him if he knew how old J.D. was

3 and Going told him he was told she was fifteen years old. In response, Going said

Hamel told him, “[w]ell, I guess I’m going to jail.” When Going asked him why he

would be going to jail, Hamel said “because we had sex.”

Mother testified that J.D. was a lovable but gullible child who was

homeschooled. Mother received a text message from J.D. on the morning of

December 27, 2021, saying J.D. was unhappy and was leaving home with her

boyfriend. Mother said she searched the house and then called 9-1-1 to make a

report. Mother then began contacting relatives and friends and posting on social

media that she was searching for J.D. She then received a call from Candace asking

for more photos to verify that she had seen J.D. Mother sent the photographs and

told Candace to call the police if it turned out to be J.D. whom she had seen. Mother

received a call from the police at about 1:00 p.m. that they had found J.D. at a motel

and Mother and her husband went to the motel and picked up J.D.

In December 2021, Lieutenant Jason Hollyfield was an investigator with the

Jasper County Sheriff’s Office. Hollyfield testified that he received a call about a

runaway child at the motel in Kirbyville. Hollyfield stated that as the lead

investigator on the case, he gathered evidence, including the cell phones, and learned

that Hamel had come to Texas from Virginia and that Hamel had admitted to officers

on the scene that he had sex with J.D. Hollyfield had Hamel taken into custody at

the scene. After J.D.’s parents arrived, Hollyfield told J.D.’s parents to take J.D. to

4 St. Elizabeth Hospital in Beaumont to have a S.A.N.E. (Sexual Assault Nurse

Examiner) exam done. Hollyfield said his investigation found a doll and stuffed

animals in Hamel’s car and child-like clothing items in the motel room.

On January 5, 2022, when Hollyfield interviewed Hamel, Hamel gave

Hollyfield the passcodes for his phones that Hamel had relinquished to law

enforcement at the motel. Hollyfield eventually submitted the phones to the

Department of Public Safety Forensics Lab. Hamel told Hollyfield that he met J.D.

through a messaging application. Hamel told Hollyfield that J.D. told him that she

was twenty-three years old but he said he should have asked her for identification.

Hamel told Hollyfield that, when he picked up J.D. during the night to take her to

Virginia, she climbed in and out of her bedroom window to get her things so that

they wouldn’t awaken Mother. Hamel also admitted that he had sexual intercourse

with J.D. and videoed it with his phone. Hollyfield obtained a DNA sample, which

Hamel volunteered.

Special Agent Derek Peterson, with the Texas Department of Public Safety

(“DPS”), testified that he is a forensic computer analyst for the DPS. During his

analysis of the cell phones, Peterson retrieved videos of Hamel having sexual

intercourse with J.D. His analysis also uncovered text messages in which Hamel

asked J.D. to send him nude photos, and he found at least one photo of J.D. in her

bathtub showing her nude breasts that Hamel had requested. He found other photos

5 on the phone that J.D. had sent showing elementary school-age items in the

background. Peterson identified a nude photo taken by Hamel’s phone in J.D.’s

bedroom on December 19, nearly ten days before J.D. left her home with Hamel.

Peterson then identified four nude photos of J.D. taken from Hamel’s phone, which

were admitted without objection. Finally, Peterson testified that he found a video on

Hamel’s phone showing Hamel having sexual intercourse with a person he identified

as J.D.

Niya Knighton, a forensic nurse at Christus St. Elizabeth Hospital, testified

that she examined J.D. at the hospital and took evidence swabs from J.D. for later

DNA analysis. Knighton said that J.D. told her that Hamel had had sexual intercourse

with her. Knighton also collected J.D.’s underwear, tights, and t-shirt J.D. was

wearing that day.

Michelle Turner, a forensic scientist with the DPS Crime Lab in Houston,

testified that she received the evidence swabs taken from J.D.’s body and the swab

taken from Hamel. She said her analysis determined that the vaginal swabs, thigh

swabs and panty swabs from J.D. contained DNA belonging to Hamel with a high

probability. 3 A report of the results of her testing was admitted without objection.

3 According to Turner, it was more than 34.2 septillion times more likely that the mixture profile she obtained came from J.D. and Hamel than from J.D. and one unrelated, unknown individual. 6 J.D. testified that she met Hamel through a messaging app called “KIK” in

January 2021. J.D. said they shared an interest in anime entertainment. Since Hamel

said he was twenty-four years old (he later testified he was actually thirty-one years

old), J.D. told him she was twenty-three years old to be close to the same age. J.D.

says she told him that she had parental controls on her phone that would cut off at

9:00 p.m. each night. J.D. testified that she began to like Hamel, he invited her to

move to Virginia with him and asked her to send him nude photos of herself. J.D.

said she sent him nude photos and she had sex with him. J.D. said Hamel said he

was coming to Dallas to visit his grandfather and then he would come see her while

in Texas. Hamel gave J.D. a ring and said they were going to get married but J.D.

did not want her Mother to know. J.D. never told Hamel that she was only fifteen

years old.

Brandon Hamel testified in his own defense. He said he communicated with

J.D. through the “KIK” app and then switched to the “Discord” app. J.D. told him

she was twenty-three and they began communicating through the app every day for

the last six months of 2021. Hamel testified that J.D. told him she was in college.

Hamel testified he was thirty-one years old at that time and that he had fallen in love

with J.D. Hamel said he arrived at J.D.’s house at 12:30 at night, she left the house

to meet him, and they went into a dog kennel in her back yard to visit for an hour.

After spending Christmas in Fort Worth, Hamel returned to J.D.’s home after 10:00

7 p.m. and knocked on her bedroom window to attempt to take J.D. to Virginia. Hamel

admitted that he had nude photos of J.D. on his phone and that he videoed himself

having sexual intercourse with J.D. but that she had told him she was twenty-three

Issue Presented

In one issue, Hamel asserts that the evidence is insufficient to support his

conviction for possession of child pornography. Section 43.26 of the Texas Penal

Code sets out the offense of possession of child pornography:

(a) A person commits an offense if:

(1) the person knowingly or intentionally possesses, or knowingly or intentionally accesses with intent to view, visual material that visually depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct, including a child who engages in sexual conduct as a victim of an offense under Section 20A.02(a)(5), (6), (7), or (8); and (2) the person knows that the material depicts the child as described by Subdivision (1). Tex. Penal Code Ann. § 43.26(a).

“Sexual conduct” includes deviate sexual intercourse, sexual contact, and

sexual intercourse. Tex. Penal Code Ann. § 43.25(a)(2).

Hamel’s indictment alleged that he “intentionally and knowingly possess[ed]

visual material that visually depicted, and which the defendant knew visually

depicted a child who was younger than 18 years of age at the time the image of the

child was made, engaging in sexual conduct, namely actual sexual intercourse[.]”

8 Standard of Review In reviewing the legal sufficiency of the evidence, we review all the evidence

in the light most favorable to the verdict to determine whether a rational factfinder

could have found the essential elements of the offense beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hooper v. State, 214 S.W.3d 9, 13

(Tex. Crim. App. 2007). We defer to the factfinder’s responsibility to fairly resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13. If the record contains

conflicting inferences, we must presume that the factfinder resolved such facts in

favor of the verdict and defer to that resolution. See Brooks v. State, 323 S.W.3d 893,

899 n.13 (Tex. Crim. App. 2010) (citing Jackson, 443 U.S. at 319). The appellate

court does not reweigh the evidence, determine the credibility of the evidence, or

substitute its own judgment for that of the factfinder. Williams v. State, 235 S.W.3d

742, 750 (Tex. Crim. App. 2007).

The factfinder is the sole judge of the weight of the evidence and credibility of

the witnesses, and the factfinder may believe all, some, or none of the testimony

presented by the parties. See Febus v. State, 542 S.W.3d 568, 572 (Tex. Crim. App.

2018); Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016) (citations omitted);

Clark v. State, 573 S.W.3d 367, 372 (Tex. App.—Beaumont 2019, no pet.); Hill v.

State, 161 S.W.3d 771, 775 (Tex. App.—Beaumont 2005, no pet.).

9 The standard of review is the same for direct and circumstantial evidence

cases; circumstantial evidence is as probative as direct evidence in establishing guilt.

See Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). “Intent may also

be inferred from circumstantial evidence such as acts, words, and the conduct of the

appellant.” Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). In

determining the sufficiency of the evidence to show an appellant’s intent, and faced

with a record that supports conflicting inferences, we “must presume—even if it

does not affirmatively appear in the record—that the trier of fact resolved any such

conflict in favor of the prosecution[] and must defer to that resolution.” Matson v.

State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).

Analysis In his sole issue, Hamel claims that the evidence is insufficient to support the

conviction because the video image “appears to depict two persons involved in

sexual intercourse, but there is no way to tell from the image whether either party in

the image is a minor.” Based upon this assertion, Hamel concludes that there is

insufficient evidence to support the jury’s verdict.

The determination of the age of a child in a possession-of-child-pornography

case is an issue for the factfinder’s determination. Gerron v. State, 524 S.W.3d 308,

318 (Tex. App.—Waco 2016, pet. ref’d) (citing Carter v. State, No. 05-05-01424-

CR, 2006 Tex. App. LEXIS 10687, at *14 (Tex. App.—Dallas Dec. 14, 2006, pet.

10 ref’d) (mem. op., not designated for publication); Section 43.25 of the Texas Penal

Code provides five methods by which the court or jury may make an age

determination:

(1) personal inspection of the child;

(2) inspection of the photograph or motion picture that shows the child engaging in the sexual performance;

(3) oral testimony by a witness to the sexual performance as to the age of the child based on the child’s appearance at the time;

(4) expert medical testimony based on the appearance of the child engaging in the sexual performance; or

(5) any other method authorized by law or by the rules of evidence at common law.

Tex. Penal Code Ann. § 43.25(g).

The evidence, as noted above, included (1) testimony from Special Agent

Peterson that the video showed Hamel and J.D. having sexual intercourse; (2)

testimony from J.D. that she and Hamel engaged in sexual intercourse, which Hamel

recorded on his phone; and (3) the testimony of Hamel himself, who identified the

video in evidence as that of him having sexual intercourse with J.D. Under the

factors the trier of fact shall consider set forth in Texas Penal Code section 43.25(g),

(1) the child testified in person before the jury so they could compare their personal

observation against the visual depiction; (2) the jury was given the video exhibit,

admitted without objection, to personally view and compare to J.D.’s in-person

11 testimony; (3) Special Agent Peterson, among others, testified that J.D. appeared to

be underage in person, in the video and photos; (4) there was no medical testimony

to attempt to verify the age of J.D. in the video (but this factor alone is not

dispositive); and (5) other methods of evidence admissible by law which, in this

case, include J.D.’s testimony about her actual age at the time and the evidence of

juvenile items in photos sent to Hamel before the sexual intercourse. Tex. Penal Code

Ann. § 43.25(g). See Gerron, 524 S.W.3d at 318 (“Determination of the age of a

child in a possession of child pornography case is a fact issue for the factfinder to

decide.”).

The jury viewed the video and was permitted to use common sense and

knowledge to draw the inference that it was Hamel and J.D. who appeared in the

video engaged in sexual intercourse and that Hamel knew J.D. was underage. See

Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014) (“[T]he trier of fact

may use common sense and apply common knowledge, observation, and experience

gained in ordinary affairs when drawing inferences from the evidence.”). Having

seen the video in evidence themselves and having heard both Hamel and J.D.’s

testimony that it was Hamel and J.D. having sexual intercourse, along with Special

Agent Peterson’s testimony that J.D. was obviously underage, the jury had sufficient

evidence to support its verdict. Id. As an appellate court, we will not reweigh the

12 evidence, determine the credibility of the evidence, nor substitute our own judgment

for that of the factfinder. See Williams, 235 S.W.3d at 750.

We overrule Hamel’s sole issue. Conclusion Having overruled Hamel’s sole issue, we affirm the trial court’s judgment.

AFFIRMED.

JAY WRIGHT Justice

Submitted on July 8, 2025 Opinion Delivered August 27, 2025 Do Not Publish

Before Golemon, C.J., Wright and Chambers, JJ.