Brian Clayton Davison v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: September 28, 2022
• Docket: 09-22-00016-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-22-00008-CR NO. 09-22-00009-CR NO. 09-22-00010-CR NO. 09-22-00011-CR NO. 09-22-00012-CR NO. 09-22-00013-CR NO. 09-22-00014-CR NO. 09-22-00015-CR NO. 09-22-00016-CR NO. 09-22-00017-CR __________________

BRIAN CLAYTON DAVISON, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause Nos. 18-30673, 18-30674, 18-30675, 18-30676, 18-30677, 18-30678, 18-30679, 18-30680, 18-30681, 18-30682 __________________________________________________________________

MEMORANDUM OPINION

Appellant Brian Clayton Davison appeals his ten convictions for possession

of child pornography. In three issues, Davison complains the trial court erred by

1 allowing the State to reopen testimony after he objected to the charge and that his

conviction on all ten identical indictments in one consolidated trial violated double

jeopardy and due process of law. We affirm the trial court’s judgments.

PERTINENT BACKGROUND

In ten indictments, a grand jury charged Davison with possession of child

pornography. The indictments allege facts charging Davison with violating section

43.26 of the Texas Penal Code. See Tex. Penal Code Ann. § 43.26. The State

consolidated the cases for prosecution.

During the jury trial, Sergeant Gary Marquis of the Texas Attorney General’s

Office testified that he investigates possession and promotion of child pornography

and child exploitation. Marquis explained that his investigation detected twenty-one

files of images of child pornography had been downloaded to a particular IP address

belonging to Davison. The State introduced the images at trial. After obtaining a

search warrant, Marquis seized eleven individual items from Davison’s residence

that contained 5,809 images and four videos of child pornography, which were

admitted into evidence.

Davison objected to the jury charge, arguing jeopardy attached when evidence

was introduced in the first case and the charge allowed double jeopardy. Davison

objected to the State’s request that the trial court allow it to reopen the case to choose

which individual items of evidence apply to each indictment.

2 Davison also objected and argued the images had been admitted under all

cause numbers and not solely to the cause number the State designated. The trial

court overruled Davison’s objections, and the trial court allowed the State to present

testimony concerning which image applied to each indictment. Sergeant Paul Horn

of the Texas Attorney General’s Office testified as to which specific images the State

was relying on to support the ten indictments. The images depicted lewd exhibition

of the genitals of a child under 18 years of age.

In each case, a jury found Davison guilty of possession of child pornography

and assessed punishment at two years of confinement. During sentencing, Davison

objected on the basis that jeopardy attached once the first conviction occurred. In

Trial Cause Number 18-30673, the jury assessed Davison’s punishment at two years

of confinement, and in the remaining nine cases, the jury assessed Davison’s

punishment at two years of confinement probated for ten years.

ANALYSIS

In issue one, Davison complains that after he objected to the charge, the trial

court erred by allowing the State to reopen the evidence and present testimony

designating an item of evidence for each of the ten indictments. Davison argues that

despite recognizing the unfairness of the presentation of the evidence regarding all

the indictments, the trial court allowed the State to reopen evidence to create the ruse

that the evidence had been only admitted regarding one indictment, violating the due

3 process of law. Davison contends the State did not withdraw any evidence in the ten

cases. The State argues it was Davison’s burden to timely file a motion with the trial

court to require the State to elect the images upon which it relied for each indictment,

and defense counsel failed to request such an election. The State further argues the

trial judge had the discretion to order the State to make the election before arguments

concluded, but the law does not obligate the judge to do so absent a timely request

from defense counsel.

We review a trial court’s decision on a motion to reopen a case for an abuse

of discretion. See Peek v. State, 106 S.W.3d 72, 79 (Tex. Crim. App. 2003); Reeves

v. State, 113 S.W.3d 791, 794 (Tex. App.—Dallas 2003, no pet.). Article 36.02 of

the Texas Code of Criminal Procedure provides that the trial court “shall allow

testimony to be introduced at any time before the argument of a cause is concluded,

if it appears it is necessary to a due administration of justice.” Tex. Code Crim. Proc.

Ann. art. 36.02. “‘[D]ue administration of justice’ means a judge should reopen the

case if the evidence would materially change in the case in the proponent’s favor.”

Peek, 106 S.W.3d at 79. While Article 36.02 mandates certain circumstances in

which a trial court is required to reopen the evidence before argument is concluded,

it does not limit a trial court’s discretion to reopen a case at any time before argument

has concluded. Fury v. State, 607 S.W.3d 866, 875 (Tex. App.—Houston [14th

4 Dist.] 2020, pet. ref’d); Swanner v. State, 499 S.W.3d 916, 920 (Tex. App.—

Houston [14th Dist.] 2016, no pet.).

The State consolidated Davison’s ten separate indictments for possession of

child pornography into a single criminal action, which permitted multiple

convictions. See Tex. Penal Code Ann. §§ 3.02, 43.26. The State presented evidence

showing multiple different instances of conduct that constituted child pornography,

and defense counsel never requested that the State make an election. However, after

the State rested, defense counsel objected to the jury charge and argued the jury

should only be charged with determining his guilt or innocence in Cause Number

18-30673 because all the evidence supports the first cause. Defense counsel also

complained that double jeopardy had attached to the evidence and objected to the

State being allowed to reopen the evidence to assign particular images to the

indictments.

The State argued that Davison’s complaint was not a double jeopardy issue

but more of an election and unanimity issue to make sure the jury was unanimous

for the ten images. The State argued the indictments all concerned lewd exhibition

and the ten separate images were admitted without objection. After the trial court

questioned the fundamental fairness of not making an election during the State’s

case in chief, the State indicated it could offer rebuttal evidence, and the trial court

stated it was not harmful to allow the State to reopen “for the purposes of

5 clarification for the jury of the application of evidence as to each of the particular

ten indictments.” The trial court overruled Davison’s double jeopardy objection and

gave the defense a fair opportunity to respond to the evidence which the State

intended to rely upon to support the indictments.

The record shows the trial court granted the State’s request to reopen the

evidence before closing arguments. Moreover, the trial court allowed the State to

reopen its case for the purpose of clarifying to the jury the application of evidence

as to each of the ten indictments. By permitting the State to reopen the case to elect

the images for which it sought conviction for each indictment, each image became

essential to that specific indictment and constituted evidence that materially changed

the case in the State’s favor. See Peek, 106 S.W.3d at 79. While Davison also

complains there was no attempt to limit the jury’s consideration of the evidence to

any particular indictment, the record shows Davison did not request a limiting

instruction, and the trial court was not required to give a limiting instruction absent

a request. See Delgado v. State, 235 S.W.3d 244, 251 (Tex. Crim. App. 2007). We

conclude the trial court did not abuse its discretion in allowing the State to reopen

the evidence after the State rested but before closing arguments had commenced.

See Fury, 607 S.W.3d at 875; Swanner, 499 S.W.3d at 920. Accordingly, the timing

was such that it was within the trial court’s sound discretion to reopen the case for

the “due administration of justice.” See Tex. Code Crim. Proc. Ann. art. 36.02;

6 Reeves, 113 S.W.3d at 794; Peek, 106 S.W.3d at 79; Fury, 607 S.W.3d at 875;

Swanner, 499 S.W.3d at 920. We overrule issue one.

In issues two and three, Davison argues his conviction of all the identical

indictments on the same evidence in one consolidated trial constituted double

jeopardy and violated due process of law. Davison argues the State’s attempt to limit

the evidence did not cure the fact that it offered the evidence at trial to support his

convictions in all ten indictments. Davison contends the trial court violated his right

to due process by allowing him to be sentenced and convicted in multiple cases based

on the same evidence even though he objected that jeopardy attached when his first

conviction occurred in Cause Number 18-30673.

The Fifth Amendment’s Double Jeopardy Clause provides that no person shall

“be subject for the same offence to be twice put in jeopardy of life or limb.” Ex parte

Denton, 399 S.W.3d 540, 545 (Tex. Crim. App. 2013) (citing U.S. CONST. amend.

V). The Double Jeopardy Clause of the Fifth Amendment, which is applicable to the

states through the Fourteenth Amendment, protects an accused against (1) a second

prosecution for the same offense after acquittal, (2) a second prosecution for the

same offense after conviction, and (3) multiple punishments for the same offense.

Id. In determining whether there have been multiple punishments for the same

offense, we apply the “same elements” test from Blockburger v. United States, 284

U.S. 299, 304 (1932). See id. In resolving whether two crimes are the same for

7 double jeopardy purposes, we focus on the elements alleged in the charging

instruments. Barthelman v. State, No. 13-15-00576-CR, 2016 WL 5941867, at *10

(Tex. App.—Corpus Christi 2016, pet. ref’d) (mem. op., not designated for

publication).

By trying the ten indictments before the jury in one consolidated trial, the

State could possibly obtain ten convictions if it proved Davison possessed ten

separate images of child pornography. There is no violation of the Double Jeopardy

Clause prohibition for multiple punishments if the evidence establishes the

commission of distinct and separate offenses. See Langs v. State, 183 S.W.3d 680,

685 (Tex. Crim. App. 2006). Each item of child pornography possessed by a

defendant under section 43.26 is an “‘allowable unit of prosecution.’” Vineyard v.

State, 958 S.W.2d 834, 837–38 (Tex. Crim. App. 1998); see also Tex. Penal Code

Ann. § 43.26. Accordingly, each item of child pornography found in a defendant’s

possession constitutes a separate offense for which he may be prosecuted and

convicted. See Vineyard, 958 S.W.2d at 837–38; Roise v. State, 7 S.W.3d 225, 232

(Tex. App.—Austin 1999, pet. ref’d).

The State charged Davison with ten separate offenses of child pornography.

The allegations–Davison intentionally or knowingly possessed visual material that

visually depicted a child who was younger than the age of 18 engaging in sexual

conduct, to-wit, lewd exhibition of the genitals–were the same in each of the ten

8 indictments. Although the State’s indictments did not allege the specific visual

material Davison possessed, the State introduced evidence showing which images

depicting lewd exhibition of the genitals of a child under the age of 18 were attached

to the indictments, and we can look at the evidence to determine whether there was

proof showing separate and distinct offenses. See Luna v. State, 493 S.W.2d 854,

855 (Tex. Crim. App. 1973).

The State’s evidence clearly demonstrates Davison’s ten convictions for

possession of child pornography were based on separate images. See id.; Eubanks v.

State, 326 S.W.3d 231, 246 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d); see

also Vineyard, 958 S.W.2d at 837–38. We conclude there is no double jeopardy

violation because Davison’s ten convictions for possession of child pornography

were based on separate and different images. We overrule issue two.

In issue three, Davison argues the State’s attempt to limit the consideration of

one item of evidence to one particular indictment violated his rights to due process

of law because it resulted in his conviction in ten cases based upon the same

evidence. Davison’s due process complaint relies on his complaints that the trial

court abused its discretion by allowing the State to reopen the case and that his ten

convictions for possession of child pornography violated double jeopardy. Having

already concluded the trial court did not abuse its discretion by allowing the State to

reopen the case and that there is no double jeopardy violation, we hold Davison’s

9 due process complaint lacks merit. We overrule issue three and affirm the trial

court’s judgments in Trial Court Cause Numbers 18-30673, 18-30674, 18-30675,

18-30676, 18-30677, 18-30678, 18-30679, 18-30680, 18-30681, 18-30682.

AFFIRMED.

_________________________ W. SCOTT GOLEMON Chief Justice

Submitted on September 15, 2022 Opinion Delivered September 28, 2022 Do Not Publish

Before Golemon, C.J., Kreger and Johnson, JJ.