ACCEPTED 03-14-00528-CR 5496967 THIRD COURT OF APPEALS AUSTIN, TEXAS 6/1/2015 4:11:44 PM JEFFREY D. KYLE CLERK NO. 03-14-00528-CR
IN THE COURT OF APPEALS FILED IN 3rd COURT OF APPEALS FOR THE AUSTIN, TEXAS THIRD SUPREME JUDICIAL DISTRICT OF TEXAS 6/1/2015 4:11:44 PM AT AUSTIN JEFFREY D. KYLE Clerk _________________________________________________________________
NO. 12-0465-K277
IN THE 368th DISTRICT COURT OF WILLIAMSON COUNTY, TEXAS _________________________________________________________________
JAMES ALAN WEATHERFORD, APPELLANT
V.
STATE OF TEXAS, APPELLEE _________________________________________________________________
APPELLANT’S ANDERS BRIEF _________________________________________________________________
DAL RUGGLES SBN: 24041834 LAW OFFICE OF DAL R RUGGLES 1103 NUECES ST. AUSTIN, TEXAS 78701 PH: (512) 477-7991 FAX:(512) 477-3580 DAL@RUGGLESLAW.COM
ATTORNEY FOR APPELLANT ON APPEAL ONLY TABLE OF CONTENTS
PAGE
Parties to Trial Court’s Final Judgment…………………………………………. 3
Index of Authorities…….….……………………………………………………. 4
Statement of the Nature of the Case……………………….………...………....... 6
Statement of Facts………...…………………………………………………….... 8
Summary of the Argument ……………………………………………………... 24
Argument There is No Arguable Issue Which Supports an Appeal In This Case………..…………….……………………………................. 25
Conclusion……………………………………………………….…...…………. 29
Prayer for Relief………………………………………………….…...…………. 29
Certificate of Service……………………………………………………………. 30
Certificate of Compliance………………………………………………………... 30
2 PARTIES TO TRIAL COURT’S FINAL JUDGMENT
In accordance with Tex.R.App.Proc. 38.1(a), Appellant certifies that the
following is a complete list of the parties and their counsel:
(a) the State of Texas represented by:
Ms. Elizabeth Whited – trial attorney State Bar No. 24060823 Williamson County District Attorney’s Office 405 Martin Luther King Drive Georgetown, Texas 78626
Mr. Danny Wallace Smith, Jr. – trial attorney State Bar No. 24046867 Williamson County District Attorney’s Office 405 Martin Luther King Drive, Box 1 Georgetown, Texas 78626
(b) Mr. James Alan Weatherford, represented by:
Mr. Daniel H. Wannamaker – trial attorney State Bar No. 20834300 Wannamaker & Associates 1012 Rio Grande Street Austin, Texas 78701
Dal Ruggles – appellate attorney State Bar No. 24041834 The Law Office of Dal R Ruggles 1103 Nueces St. Austin, Texas 78701
3 INDEX OF AUTHORITIES
CASES PAGE
Anders v. California, 386 U.S. 738, 744 (1967)………………................. 24, 25, 29
Blanco v. State, 771 S.W.2d 598, 599 (Tex.Crim.App.-Corpus Christi 1989, no pet.)..................................................................................................................... 27
Coghlan v. Starkey, 852 F.2d 806, 811 (5th Cir. 1988) ..........................................25
Dinnery v. State, 592 S.W.2d 343, 353 (Tex.Crim.App. 1979) (opinion on rehearing). ......................................................................................... 26
Ex parte Smith, 678 S.W.2d 78, 79 (Tex.Crim.App. 1984).....................................27
High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. [Panel Op.] 1978) ............... 25
Jeffery v. State, 903 S.W.2d 776, 779 (Tex.App.-Dallas 1995, no pet.)............... 25
Johnson v. State, 885 S.W.2d 641, 646 (Tex.App.-Waco 1994, pet ref.)……. 25, 26
Liggins v. State, 979 S.W.2d 56, 67 (Tex.App.-Waco 1998, pet. ref.)................... 27
Munoz v. State, 840 S.W.2d 69, 72 (Tex.App.-Corpus Christ 1992, pet. ref)........ 28
Richards v. State, 562 S.W.2d 456, 458 (Tex.Crim.App. 1977) (opinion on rehearing)............................................................................................. 27
Rodriguez v. State, 850 S.W.2d 603, 607 (Tex.App.-El Paso 1993, no pet.) ........ 28
Smith v. State, 853 S.W.2d 140, 141 (Tex.App.-Corpus Christ 1993, no pet.)...... 27
United States v. Johnson, 527 F.2d 1328, 1329 (5th Cir.1976)..……..…............... 24
4 CONSTITUTIONAL PROVISIONS, STATUTES AND RULES PAGE
Tex.R.App.Proc. 38.1(a)………………………..…………………….…................ 3
Art. 26.13, V.A.C.C.P……………………………………………………………..27
5 TO THE HONORABLE JUDGES OF SAID COURT:
COMES NOW, James Alan Weatherford, Appellant in this cause, by and
through his Attorney, and files this, his brief on original appeal.
STATEMENT OF THE NATURE OF THE CASE
Appellant was charged by indictment on June 7, 2012 in Cause No. 12-
0465-K277 with 9 counts of possession with intent to promote child pornography
and 15 counts of possession of child pornography.1 (C.R. pp. 28-36) On July 21,
2014, Appellant entered a plea of Guilty to counts 1-9 in the indictment to the
lesser-included charge of possession of child pornography and counts 10-24 in the
indictment charging possession of child pornography. Appellant’s plea was given
open to the court with no agreed recommendation as to punishment. (C.R. pp.
105-108) (R.R. IV, pp. 9-12)
On July 23, 2014, Appellant waived his right to a jury trial for punishment
went to the court for a hearing on punishment. At the culmination of the hearing,
the trial judge found Appellant guilty on counts 1 through 24 in Cause No. 12-
0465-K277 of the offense of possession of child pornography. (R.R. VI, p. 108)
Appellant was sentenced to five years confinement in the Texas Department of
1 Appellant was also charged by indictment in Cause No. 14-0874-K368 with 4 counts of promotion of child pornography and 22 counts of possession of child pornography. Appellant pled guilty to promotion of child pornography in counts 2, 3, 4 and possession of child pornography in counts 5-26. As in Cause No. 12-0465-K277, Appellant’s plea was given open to the court with no agreed punishment. Both indictments were handled simultaneously during the punishment hearing.
6 Corrections on each count to run concurrent with Appellant’s sentence in Cause
No. 14-0874-K368. (R.R. VI, p. 110) Appellant gave a timely notice of appeal on
August 20, 2014 and filed a timely motion for a new trial on August 21, 2014.
(C.R. pp. 102-106)
7 STATEMENT OF FACTS
Appellant was charged in two indictments. In Cause No. 14-0874-K368
Appellant was charged with 4 counts of promotion of child pornography and 22
counts of possession of child pornography. The State later waived one count of
promotion of child pornography. In Cause No. 12-0465-K277 Appellant was
charged with 9 counts of promotion of child pornography and 15 counts of
possession of child pornography. In Cause No. 14-0874-K368 Appellant entered a
plea of guilty to counts 2, 3, 4 for promotion of child pornography and 5-26 for
possession of child pornography. In Cause No. 12-0465-K277 Appellant entered a
plea of guilty to counts 1-9 for the lesser-included charge of possession of child
pornography and 10-24 for possession of child pornography. Appellant waived his
right to a jury trial, and elected to have his sentence determined by the Court. (R.R.
IV, pp. 5-15)
During his guilty plea, Appellant testified that he was arrested on March 21,
2012 when officers from the Attorney General’s Office came to his house and
executed a search warrant. In the process of executing the search warrant Appellant
was questioned about suspected child pornography found on a computer located in
the house. Appellant stated he had inadvertently seen the images periodically while
searching for other things and that he tried to delete them whenever he saw them.
Ultimately, the investigation found over 25,000 images containing child
8 pornography in addition to various videos and other media files. (R.R. IV, pp. 16-
19)
Two days following Appellant’s plea, a punishment hearing was held. After
both parties waived opening, the State called Sergeant Ross Behrens. Sergeant
Behrens testified that he worked with the Texas Attorney General’s Office and was
assigned to the Cyber Crime Unit. He went on to say that as a member of the
Cyber Crimes Unit he investigated crimes committed with computers that involved
children. He explained that he often worked in an undercover capacity,
particularly when working online solicitation cases. (R.R. V, pp. 8-10)
Sergeant Behrens testified that he received specialized training through
Internet Crimes Against Children, investigative techniques, Undercover Chat and
several different peer-to-peer trainings. He described a peer-to-peer network as a
file-sharing network where someone can get online and download programs in
order to communicate though the computer with someone else. They can trade
documents, images, videos or whatever they see fit. He explained that these
programs are not preloaded on a computer but rather, have to be sought out and
downloaded from a website. Sergeant Behrens also testified that while these
programs can be used to share child pornography, they can also be used for other
purposes. He testified that child pornography is sought out and actively
downloaded by a person and that in his experience he has never seen an internet-
9 user inadvertently come into possession of files containing child pornography.
(R.R. V, pp. 11-16)
Sergeant Behrens testified that in a typical investigation he employs
proprietary software to scan file-sharing networks in order to identify I.P.
addresses that are sharing files containing suspected child pornography. (R.R. V,
pp.17-18) He then initiates a download of the files and if confirmed to contain
child pornography, he sends the internet-provider an administrative subpoena to
obtain information on the subscriber. This is done to confirm who had the IP
address assigned to them on the day Sergeant Behrens connected and downloaded
the file. With this information he obtains and executes a search warrant of the
location from which the files were downloaded. (R.R. V, pp. 23-30)
Sergeant Behrens testified that in this case he obtained a search warrant after
downloading between 120-130 images and videos of child pornography from
Appellant’s IP address from November of 2011 until February of 2012. He said
the search warrant was executed on March 21, 2012. (R.R. V, pp. 38-40) While
the search warrant of Appellant’s residence was being executed, Sergeant Behrens
interviewed Appellant. He read Miranda warnings to Appellant and told him the
reason for the search. Appellant admitted to Sergeant Behrens that he had used
peer-to-peer networks. Specifically, he admitted using several network programs
including eDonkey, the same program that Sergeant Behrens used to obtain child
10 pornography from Appellant’s IP address. He also admitted he had seen thousands
of child pornography files but that he never sought them out, that he tried to delete
them, and that they would randomly pop up while he was searching through adult
pornography. Sergeant Behrens testified that he had never heard of child
pornography popping up when someone visits a legal adult pornography site.
(R.R. V, pp. 47-51)
Sergeant Behrens testified that two computers were found in Appellant’s
dining room, one computer was in the master bedroom shared by Appellant’s wife
and daughter, and two computers were found in Appellant’s bedroom. One of the
computers was in his bedroom and the other was in the bedroom closet. The State
offered several photos taken of the rooms where the computers were found as well
as photos of the computers themselves into evidence as State’s Exhibits No. 5-20.
The defense voiced a relevance objection. The court overruled the objection and
allowed the exhibits into evidence. (R.R. V, pp. 52-58)
Appellant was arrested on the same day the warrant was executed. Sergeant
Behrens said he made the decision to arrest Appellant based upon files containing
child pornography that were found on the computer that Appellant admitted was
used exclusively by him. (R.R. V, p. 62)
Sergeant Behrens testified that he went back to search Appellant’s residence
on two more occasions. He identified State’s Exhibits No. 2 and 3 as being
11 consent forms to search for computer-related material that Appellant’s wife, Mrs.
Bobbie Weatherford, had signed and said the searches were conducted on April 3,
2012 and April 23, 2012 respectively. He also identified State’s Exhibit No. 4 as
being a child’s drawing that was wrapped around a computer hard drive to conceal
it. Defense counsel objected to Exhibit No. 4 saying it was irrelevant and
prejudicial outweighing probative value. The trial court overruled the objection.
(R.R. V, pp. 62-65)
Sergeant Behrens went on to say that items recovered during the follow up
search included a Maxtor internal hard drive, 3 CDs, and an 8 millimeter camera.
Sergeant Behrens was asked to describe what was on the videos recorded by the
camera to which defense counsel objected. Counsel for Appellant argued the
camera videos depicted extraneous acts not associated with the counts Appellant
was charged with and therefore, should be inadmissible based upon Texas Rules of
Evidence 403, 404, 405 and 802. Defense counsel also objected based upon Fifth
Amendment, Sixth Amendment and due process violations. The State testified that
the images in the camera videos were not child pornography but could be
construed as improper photography. The State argued that the videos were
relevant and being offered as an explanation to the sexual gratification and the
manufacturing and promotion of the child pornography in Counts 2, 3 and 4 of the
indictment that Appellant pled guilty to. The State felt that as such, the videos
12 showed Appellant’s motive. The State also confirmed that the video had been
presented to defense counsel in 2013 along with a Rule 404 notice. The trial court
overruled the defense objection and Sergeant Behrens was allowed to describe the
content of the videos. One video was of children in a pool across a street. There
were two or three girls in the video wearing bikinis. There was another video of a
neighbor girl helping her father tie down a boat. There was also a video of
Appellant’s daughter in which she was completely nude. (R.R. V, pp. 66-70)
Detective Behrens was asked if Appellant ever gave any indication he had
inappropriately touched his daughter, S _ _ _. Defense counsel again objected
based on Rule 403. The court overruled the objection. Detective Behrens said that
during the course of his investigation he saw indications that Appellant had
touched his daughter in a way that was sexual in nature. He went on to say he saw
a progression in Appellant’s case, going from downloading child pornography, to
making child pornography, to touching a child. (R.R. V, pp. 71-73)
On cross-examination, Sergeant Behrens testified that in his opinion the
officers who accompanied him in executing the search warrant could have been
more thorough in their search and that some of the evidence was collected on dates
subsequent to the execution of the search warrant. (R.R. V, pp. 82-88) Sergeant
Behrens confirmed that in the process of downloading files containing adult
pornography from a file-sharing network it is possible that child pornography
13 could be mixed in with files of adult pornography. (R.R. V, p. 92) He also
confirmed that the video of Appellant’s daughter that was in the camera was not
“lewd.” Sergeant Behrens agreed that she was nude and dancing around but not
exposing genitalia, etc.. (R.R. V, pp. 92-95)
The next witness called by the State was forensics investigator, Sergeant
Steven Ried. As a Computer Forensics Certified Examiner working for the
Attorney General’s Office, Sergeant Ried’s job was to preview computers seized
during execution of the search warrant, and to then thoroughly search all of the
digital media that was seized during the investigation. His training and experience
included being an EnCase Certified Examiner, an AccessData Certified Examiner
and Computer Forensics Certified Examiner through the International Association
of Computer Investigative Specialists. (R.R. V, pp. 97-100) Sergeant Ried
testified that in the course of previewing the computer seized at Appellant’s home
he identified files containing child pornography and that based on his forensic
investigation he determined the computer in question to be that of Appellant’s.
(R.R. V, pp. 108-109) Sergeant Ried testified that he had no way of doing digital
forensics on a videotape such as an 8-millimeter film but he was able to do
forensics on the other items of interest. (R.R. V, pp. 116-117)
During the State’s direct examination, Sergeant Ried identified the items
taken from Appellant’s home that he performed forensic analysis on and whether
14 or not he found child pornography on them. He also identified items 25, 27 and 28
as those that were later recovered from the consent-to-searches. Those items
included CDs, DVDs and two hard drives. (R.R. V, pp. 117-122) Sergeant Ried
identified State’s Exhibits No. 21-66 as being DVD’s and CD’s containing images
and videos he found during his forensic analysis of the items in Appellant’s case.
The State tendered to opposing counsel and offered into evidence the photos as
State’s Exhibits No. 30-66 and the DVDs as State’s Exhibits No. 21-29. (R.R. V,
pp. 125-126)
Defense counsel took Sergeant Ried on voir dire regarding the admission of
Exhibit’s No. 21-66. Sergeant Ried testified that he was not able to identify each
item of evidence in terms of which particular count it was tied to. He could not say
if the State’s Exhibits No. 21-66 were all tied to counts in the indictment that
Appellant had pled to. For this reason defense counsel argued that the State had
not set the proper predicate for their admission into evidence and objected. The
State argued that all of the images found by Sergeant Ried to be child pornography
were within the scope of their direct in a sentencing hearing. Additionally, the
State testified that the 49 exhibits being introduced were the 49 counts in which
Appellant pled guilty. The court overruled defense counsel’s objection and
admitted State’s Exhibits No. 21-66 into evidence. (R.R. V, pp. 126-131)
During lengthy questioning by the State, Sergeant Ried provided testimony
15 identifying the specific images and videos in exhibits 21-66. He testified as to
what each image and video depicted and why it would be classified as child
pornography. In all, Sergeant Ried said he found Appellant to be in possession of
more than 25,000 images of child pornography. (R.R. V, pp. 137-162)
Next, the State asked Sergeant Ried if he found a video or image of
Appellant’s daughter during his analysis. He testified that he did. Defense counsel
objected saying the video or image of Appellant’s daughter was associated with a
count in the indictment that was dismissed for lack of evidence. The State argued
that the evidence was relevant to punishment. The court overruled Appellant’s
objection. (R.R. V, pp. 163-164)
Sergeant Ried testified that he learned one of Appellant’s daughters was
named J _ _ _ when he saw it as the title of one of the videos. He testified that
other videos classified as child pornography involved Appellant’s other daughter, S
_ _ _, and were found on items no. 1, 25, 28 and that he believed those videos were
titled “SL6” and then a number. The State then offered Exhibits No. 67, 68, and
69 into evidence. These exhibits were described as DVD’s of three videos titled
SL6-1, SL6-2 and SL6-3. Defense counsel did not object to their admittance.
Sergeant Ried testified that the videos labeled SL6-1, SL6-2 and SL6-3 were child
pornography because the female child in them had her breasts and vagina exposed
towards the camera. Sergeant Ried testified the videos would also be classified as
16 manufacturing of child pornography due to the fact that a female child in the
videos was being posed. Sergeant Ried testified that Appellant could be seen in
the video manipulating the camera, directing the child to pose in front of the
camera, and in one instance, adjusting his penis through his pants. (R.R. V, pp.
165-170)
The State then turned Sergeant Ried’s attention toward the video he deemed
of interest that had Appellant’s daughter, J _ _ _ , in it. Defense counsel objected
saying the video was irrelevant, hearsay, and prejudicial because it is associated
with a count that was dismissed. The State responded that everything was relevant
in punishment and that the video would be relevant even in guilt/innocence
because it showed motive, intent, plan and scheme of not only manufacturing the
video but of what he was going to do with it. The court overruled defense
counsel’s objection. Sergeant Ried testified that the video of J _ _ _ was named “J
_ _.avi” and the State tendered the video to defense counsel and offered it into
evidence as State’s Exhibit No. 70. Once again, defense counsel objected saying
there would be hearsay on the video. The court asked if there was audio. The
State said no. The video was then published to the court and described as not
being child pornography. On the video a female child could be seen changing into
a bathing suit but her genitals or breasts are never exposed because she steps out of
view of the camera. Sergeant Ried testified that he believed he found the video on
17 items No. 1, 25, and 28. He also testified that there were “known.met” files on
these three items. He explained that a “known.met” file is one used by eDonkey or
the eMule program to keep track of information about files that are either uploaded
or downloaded. Sergeant Ried testified that in the “known.met” files there were
images and videos being traded by Appellant to other individuals and though he
did not recall if he saw evidence that the video “J _ _.avi” was being traded,
uploaded, or downloaded in those “known.met” files, he did recall that an image
was. The image that was being shared was a snapshot of the “J _ _.avi” video.
The image was a snapshot of J _ _ _ getting undressed where you could see her
buttocks. (R.R. V, pp. 172-178)
Sergeant Ried testified that he also discovered chats that Appellant had
engaged in on these peer-to-peer networks. The “GigaTribe” chat file was found
on Item No. 1 and Item No. 25. Item No. 1 was the Dell desktop from appellant’s
bedroom and item 25 was the Seagate hard drive. State’s Exhibit No. 71,
described as “about ten pages worth of chat text” was shown to Sergeant Ried who
testified that he recognized it and described it as a chat that appears to be between
two persons by the name of Chris and “Tornado.” State’s Exhibit No. 71 was
tendered to defense counsel and offered into evidence. Defense counsel objected.
Sergeant Ried went on to explain why he believed Tornado was actually Appellant.
He explained that among the many chats he viewed, Tornado was the character or
18 screen name consistently used. That led Sergeant Ried to believe that Tornado was
the user of the computer where the chats were located. According to Sergeant
Ried, Tornado was the holder of an account that requested information and at times
provided information. He testified that Tornado shared the snapshot from J _
_.avi. This fact, along with the fact that Tornado was the consistent user name on
the Dell desktop that was shown to be Appellant’s computer, led Sergeant Ried to
determine that Tornado was Appellant. The State offered the chat into evidence as
State’s Exhibit No. 71 to which the defense objected, saying the chat contained
hearsay and that the proper predicate had not been laid. (R.R. V, pp. 180-183)
The State argued that the chat was not hearsay because it was a statement by
Appellant. The State went on to say that “the statements go to identity, intent,
motive, plan and scheme of the Defendant, not of the other party, and it’s
incriminating statements against himself.” Finally, the State argued they were not
offering it for the truth of the matter asserted. They were offering it for the context
of what J _ _.avi was filmed and uploaded for, and what SL6-1 was filmed and
uploaded for. The court expressed a concern that the chat did not deal with intent
to distribute videos, SL6-1, 2 and 3. (R.R. V, pp. 180-185) Again, the State
argued that while the chat was not about SL6 it would show his motive of what he
planned to do with it. When asked by the court if there was any information that
the chat was done at or anywhere near the time that videos SL6-1, 2, and 3 were
19 made the State answered “no.” The State explained that the films were made over
a period of at least seven years and that although the chat was not about the SL6
videos it was a bad act that was relevant during a punishment hearing. The court
reminded Appellant’s counsel that this was a punishment hearing without a jury.
Defense counsel argued that Rule 403 was “still in play” to which the court
responded “I know it does, but I’m going to go ahead and overrule the objection
and allow it in”. State’s Exhibit No. 71, the chat between Appellant “Tornado”
and Chris, was admitted into evidence and published to the court by having
Sergeant Ried take the role of Tornado and read statements made by him, and
State’s prosecutor, Danny Smith, take the role of Chris and read his statements.
(R.R. V, pp. 183-199)
Sergeant Ried testified that at the end of the chat Tornado requested pictures
of Chris sexually gratifying himself with J _ _’s pictures. The State offered photos
into evidence as State’s Exhibit No. 72 through 75. State’s Exhibit No. 72 was
described as a school photo of Appellant’s daughter. State’s Exhibit No. 73 was
described as the same school photo but this time with an adult male penis over her
mouth. State’s Exhibit No. 74 was a photo of the same picture depicted in State’s
Exhibit No. 73 with semen on it. State’s Exhibit No. 75 was semen on a screen
capture of “J _ _.avi.” Defense counsel objected to all photos on the basis of Rule
403, hearsay, Fifth Amendment, due process and relevance. The court overruled
20 the objections. Sergeant Ried testified that Tornado requested Chris send him
pictures of him enjoying “J _ _.avi.” Sergeant Ried went on to say that although “J
_ _.avi” did not reach the definition of child pornography, it was his belief that it
was made and uploaded for sexual gratification. Regarding some of the specific
content of the chat, Sergeant Ried agreed that Appellant made a statement that
amounted to a confession to indecency by contact with his daughter, J _ _ _ , when
he said to Chris that he had touched her breast. Defense counsel objected based on
Rule 403, Rule 404, Art. 37.07(1) and Fifth Amendment. The State countered that
Appellant’s confession on the chat was already in evidence. The court agreed and
overruled the objection. (R.R. V, pp. 200-202)
Sergeant Ried testified that in his training and experience he had also been
made aware of a progression in behaviors. In his forensic analysis of Appellant’s
case he saw a progression of behavior. He saw a progression from hiding the
camera when videotaping his oldest daughter, to having the camera out while
videotaping his youngest daughter. Sergeant Ried testified that during the chat
Appellant said he wanted to have sexual relationships with his daughter but that he
thought it was “too risky”. (R.R. V, pp. 203-204)
On cross-examination, Sergeant Ried testified that six items were found in
Appellant’s home that contained child pornography. He went on to testify that
while his forensics investigation was able to determine which computers contained
21 child pornography, he could not determine who in the household was using which
computer at any given time. And while he could sometimes determine which
downloaded files had actually been viewed, he could not determine who viewed
them. He also could not say which items contained which particular State’s exhibit
without having the file names with him. (R.R. V, pp. 207-213)
Sergeant Ried testified that some of the pornography found during his
forensic analysis could have come from countries outside the United States and
that some of it could have been made years ago. He testified that there may have
been legal adult pornography in the items he analyzed and that it is possible for
someone to download images without looking at each and every one. (R.R. V, pp.
210-214)
When asked by the defense, Sergeant Ried confirmed that State’s Exhibit 70,
the video titled “J _ _.avi” was not child pornography. He testified the videos
titled “SL6” and introduced into evidence as State’s Exhibits No. 67, 68 and 69
were child pornography however. Sergeant Ried said that he found no evidence
that any of the three videos deemed child pornography had been uploaded or
shared. (R.R. V, pp. 214-216)
At the end of the punishment hearing and after both sides had rested,
Appellant’s counsel made a motion to the court for a directed verdict in Cause No.
14-0874-K368. The defense explained to the court that although Appellant pled
22 guilty to 3 counts of promotion of child pornography there was insufficient
evidence to support his plea. Counsel asked the court to “direct a verdict at least as
to the second degree nature of it and reduce it to a consideration for a third degree
possession of child pornography.” Defense counsel argued that the only evidence
of intent to disseminate child pornography was “bootstrapped” through the count
that was dismissed because of lack of evidence. For this reason Appellant’s
attorney asked the court to consider Counts 2, 3, and 4 as possession of child
pornography rather than possessing it with intent to distribute and promote. The
court responded that Appellant had already pled guilty to those crimes and as such,
the guilt/innocence phase of evidence was over. The court noted that only
punishment was being addressed at that point. Appellant’s motion for a directed
verdict was denied. (R.R. VI. pp. 81-83)
After both sides presented closing arguments the court sentenced Appellant
to 20 years imprisonment for each count of promotion of child pornography that
Appellant pled guilty to in Cause No. 14-0874-K368. These sentences were to run
consecutively. Appellant was sentenced to 5 years imprisonment for each count of
possession of child pornography he pled to in Cause No. 14-0874-K368 and Cause
No. 12-0465-K277. These sentences were to run concurrently. (R.R. VI, pp. 109-
110)
23 SUMMARY OF THE ARGUMENT
Under Anders v. California, 386 U.S. 738, 744 (1967), a court-appointed
attorney may not raise an issue in an appeal if he makes a conscientious
examination of the case and finds the appeal wholly frivolous. To comply with
Anders, counsel must isolate “possibly important issues” and “furnish the court
with references to the record and legal authorities to aid it in its appellate
function.” United States v. Johnson, 527 F.2d 1328, 1329 (5th Cir.1976). After the
appellant is given an opportunity to respond, the court makes a full examination of
the record to detect whether the case is frivolous. Anders, 386 U.S. at 744.
The undersigned court-appointed appellate attorney has carefully reviewed
the trial record in this case. It is his professional opinion that there is no issue of
arguable merit in this case, and thus Appellant’s appointed counsel files this brief
and moves for withdrawal.
24 ARGUMENT
THERE IS NO ARGUABLE ISSUE WHICH SUPPORTS AN APPEAL IN THIS CASE
Following a careful review of the complete record in this case: the
Reporter’s Record and the Clerk’s Record; after talking with Appellant’s court-
appointed trial attorney; and after researching the law as it relates to the facts of
this case, counsel has concluded that any further proceedings on behalf of
Appellant would be wholly frivolous and without arguable merit within the
meaning of Anders v. California, 386 U.S. 738 (1967) and its progeny.2 Pursuant
to Anders, Appellant’s appointed counsel files this brief.
A. The Anders Brief.
The purpose of an Anders brief is to support counsel's motion to withdraw
by showing that he has performed a conscientious examination of the record and
that the appeal is so frivolous that an appellant should be denied his constitutional
right to appointed counsel on appeal. Jeffery v. State, 903 S.W.2d 776, 779
(Tex.App.-Dallas 1995, no pet.). The ultimate test of an Anders brief is whether it
2 A frivolous appeal has been defined as an appeal in which the result is obvious or the arguments of error are wholly without merit. Coghlan v. Starkey, 852 F.2d 806, 811 (5th Cir.1988). The court defined a "frivolous appeal" as one where "the only theories that the attorney can discover after this conscientious review of the record and the law are 'arguments that cannot conceivably persuade the court ...' " Johnson v. State, 885 S.W.2d at 645. Any point which is "arguable on [the] merits" is, by definition, not frivolous. Johnson at 645. Yet another definition is an appeal is "frivolous" when "the trial court's ruling[s were] correct" or "the appellant was not harmed by the ruling [s]." High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. [Panel Op.] 1978).
25 contains a professional evaluation of the record demonstrating why, in effect, there
are no arguable grounds to be advanced. Johnson v. State, 885 S.W.2d 641, 646
(Tex.App.-Waco 1994, pet ref.)
B. The “Arguable Issues of Law.”
In reaching the conclusion that there are no arguable issues of law that
support Appellant’s appeal, counsel has considered the following issues of possible
merit, which he believes are the only possible issues raised by this record.
1. The Evidence Was Insufficient To Prove Appellant’s Guilt for the Charge of the Indictment.
Appellant could argue that the evidence was legally insufficient to support
his conviction. A judicial confession, standing alone, provides sufficient evidence
to support the trial court's judgment. See Dinnery v. State, 592 S.W.2d 343, 353
(Tex.Crim.App. 1979)(opinion on rehearing). Appellant’s plea of guilty and
judicial confession to the indictment constitutes a waiver of all complaints
regarding the sufficiency of the evidence to support his conviction. Thus this
would be a frivolous argument to make on appeal.
2. Appellant’s Plea of Guilty to the Indictment Was Not Made Knowingly and Voluntarily.
Appellant could argue that his plea of guilty was not made knowingly and
voluntarily. However, the undersigned appellate counsel has carefully reviewed
the record of the plea and has concluded that the plea was done according to
26 statutory and case law.
Before accepting a defendant's guilty plea, a trial court must satisfy itself
that the accused understands "the consequences of his plea." Liggins v. State, 979
S.W.2d 56, 67 (Tex.App.-Waco 1998, pet. ref.); Art. 26.13, V.A.C.C.P.. However,
the trial judge need not ask any certain questions nor follow any formula to
substantially comply with Art. 26.13. Richards v. State, 562 S.W.2d 456, 458
(Tex.Crim.App. 1977)(opinion on rehearing). The trial court need only
substantially comply with the requirements of Art. 26.13, V.A.C.C.P.. Ex parte
Smith, 678 S.W.2d 78, 79 (Tex.Crim.App. 1984). Art. 26.13, V.A.C.C.P.
mandates that certain "admonishments" must be given to a criminal defendant prior
to accepting a plea of guilty. These include among other things the range of the
punishment attached to the offense. These admonishments may be made orally
and/or in writing. Blanco v. State, 771 S.W.2d 598, 599 (Tex.Crim.App.-Corpus
Christi 1989, no pet.). If the court makes the admonitions in writing, it must
receive a statement signed by the defendant and the defendant's attorney that he
understands the admonitions and is aware of the consequences of his plea. Art.
26.13, V.A.C.C.P.. If done in writing, there is no requirement to verbally inquire
about the voluntariness of a plea after a defendant and trial counsel have signed the
written waiver and the judge has established that Appellant has read and
understood the waivers. Smith v. State, 853 S.W.2d 140, 141 (Tex.App.-Corpus
27 Christ 1993, no pet.); Rodriguez v. State, 850 S.W.2d 603, 607 (Tex.App.-El Paso
1993, no pet.). The trial judge shows compliance with this statute by approving
the plea papers containing the written admonishments by signing a statement
reciting his satisfaction with the same and ordering the documents to be filed in the
papers of the case. Munoz v. State, 840 S.W.2d 69, 72 (Tex.App.-Corpus Christ
1992, pet. ref).
In the instant case, the trial court satisfied himself that appellant was aware
of what he was doing by having him sign both written plea papers that appellant
had read and gone over with his attorney, and then by having appellant again
acknowledge that he understood what he was doing orally on the record.
Appellant testified that he wanted to waive his right to a jury trial and that he
wanted to have a sentencing hearing in front of the judge. Appellant testified that
he understood the consequences of his open plea, including the fact that he was
subject to the full punishment range for a third degree felony in each count he was
pleading to. Appellant testified he was pleading guilty to each count because he
was guilty and that he was doing so knowingly and voluntarily. Appellant also
testified that he understood that by entering his plea he was waiving his right to
appeal any issue with regard to guilt/innocence and could only appeal the
punishment that he might receive with regard to the punishment hearing. (R.R. IV,
pp. 5-12, 33)
28 CONCLUSION
For the preceding reasons, counsel has concluded that any further
proceedings on behalf of Appellant would be wholly frivolous and without
arguable merit within the meaning of Anders v. California, 386 U.S. 738 (1967)
and its progeny. For this reason counsel respectfully moves to withdraw as
counsel on appeal for Appellant.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Counsel respectfully prays
that this Honorable Court permit him to withdraw after this Court’s own
examination of the record in this cause and to afford Appellant his right to file any
pro se brief he may wish to file.
Respectfully submitted,
/s/ Dal Ruggles Dal Ruggles Attorney at Law 1103 Nueces St. Austin, Texas 78701 Telephone: (512) 477-7991 Facsimile: (512) 477-3580 SBN: 24041834
ATTORNEY FOR APPELLANT JAMES ALAN WEATHERFORD
29 CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of Appellant’s Brief on Original
Appeal was delivered, via e-file, to the Williamson County District Attorney’s
Office on this the 1st day of June, 2015.
/s/ Dal Ruggles Dal Ruggles
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief contains 5,899 words, as calculated by the
word count function on my computer.
30 NO. 03-14-00528-CR
JAMES ALAN WEATHERFORD § IN THE COURT OF APPEALS § V. § THIRD JUDICIAL DISTRICT § THE STATE OF TEXAS § SITTING AT AUSTIN, TEXAS
CERTIFICATE OF COUNSEL
In compliance with the requirements of Anders v. California, 386 U.S. 378
(1967), I, Dal Ruggles, court-appointed counsel for appellant, James Alan Weatherford,
in the above-referenced appeal, do hereby verify, in writing, to the Court that I have:
1. notified appellant that I filed a motion to withdraw as counsel with an accompanying Anders brief, and provided a copy of each to appellant;
2. informed appellant of his right to file a pro se response identifying what he believes to be meritorious grounds to be raised in his appeal, should he so desire;
3. advised appellant of his right to review the appellate record, should he wish to do so, preparatory to filing that response;
4. explained the process for obtaining the appellate record, provided a Motion for Pro Se Access to the Appellate Record lacking only appellant’s signature and the date, and provided the mailing address for this Court; and
5. informed appellant of his right to seek discretionary review pro se should this Court declare his appeal frivolous.
_/s/ Dal Ruggles_________________ Dal Ruggles Attorney for Appellant ACCEPTED 03-14-00528-CR 5515859 THIRD COURT OF APPEALS AUSTIN, TEXAS 6/2/2015 4:13:16 PM JEFFREY D. KYLE CLERK
June 1, 2015
VIA CERTIFIED MAIL
Mr. James Alan Weatherford TDCJ # 01953853 Middleton Unit 13055 FM 3522 Abilene, Texas 79601
Re: James Alan Weatherford v. State of Texas Trial Court Cause No. 12-0465-K277 in the District Court of Williamson County Third Court of Appeals Cause No. 03-14-00528-CR
Dear Mr. Weatherford:
Enclosed please find a copy of the motion to withdraw as counsel and brief pursuant to Anders v. California that I have prepared and filed in your case. After a diligent search of both the clerk’s record and reporter’s record in your case and a review of the applicable law, it is my opinion that no reversible error occurred at your plea and sentencing proceeding.
Whenever appellate counsel files a motion such as this, the law provides the appellant the right to review the record and file a response identifying to the appellate court any grounds he thinks are non-frivolous issues to be raised on his behalf that the appellate court should consider in deciding whether the case presents any meritorious grounds for appeal. Because I have filed this motion and brief, you now have the right to review the record and file a response or brief if you so choose. To assist you in obtaining the record if you wish to review it, I have enclosed a Motion for Pro Se Access to the Appellate Record for you to file. In order to obtain the appellate record, you must sign and date the motion and mail it to the Third Court of Appeals within ten days of the date of this letter at the following address:
Jeffrey D. Kyle, Clerk Third Court of Appeals Post Office Box 12547 Austin, Texas 78711
The Court of Appeals will then direct the clerk of the trial court to provide you with a copy of the appellate record. Your response will be due to be filed in the Third Court of Appeals within 30 days of the date the clerk provides the record to you.
Whether or not you file a response, the law requires the Court of Appeals to review the record to determine if the Court agrees with my assessment that no meritorious grounds for appeal exist, i.e., that no reversible error exists. If the Court does not agree, but instead believes there are non-frivolous issues to be raised on your behalf, the Court must abate the appeal to have another attorney appointed to review the record on your behalf.
Should the Court of Appeals ultimately determine that there are no meritorious grounds to be raised and that your appeal is frivolous, the Court will affirm your conviction and sentence. You may then file a pro se petition for discretionary review with the Texas Court of Criminal Appeals. Such petition must be filed within 30 days of the date the Court of Appeals renders its judgment.
Feel free to write me if you have any questions about the procedure utilized in your appeal. I will do my best to answer any questions you may have.
Sincerely,
Dal Ruggles
Enclosures