Opinion
NO. 03-14-00527-CR
03-09-2017
James Alan Weatherford, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
NO. 14-0874-K368 , HONORABLE RICK J. KENNON, JUDGE PRESIDING MEMORANDUM OPINION
In the above cause, appellant James Alan Weatherford pleaded guilty to three counts of promotion of child pornography and 22 counts of possession of child pornography. Following a hearing on punishment, the district court sentenced Weatherford to 20 years' imprisonment for each of the three promotion counts, with the sentences to run consecutively, and five years' imprisonment for each of the 22 possession counts, with the sentences to run concurrently with Weatherford's 20-year sentences. In a single point of error on appeal, Weatherford asserts that trial counsel rendered ineffective assistance by pursuing what Weatherford contends was a deficient strategy of challenging the admissibility and sufficiency of the State's evidence during the punishment hearing, after Weatherford had already pleaded guilty to committing the charged offenses. We will affirm the judgments of conviction.
See Tex. Penal Code § 43.26(a), (e).
In a separate cause that was consolidated with the above cause for trial purposes, Weatherford pleaded guilty to an additional 24 counts of possession of child pornography and was sentenced to five years' imprisonment for each of those offenses. This Court affirmed the judgments of conviction in that cause after concluding that the appeal was frivolous pursuant to the procedures in Anders v. California, 386 U.S. 738 (1967). See Weatherford v. State, No. 03-14-00528-CR, 2015 Tex. App. LEXIS 9089, at *1-4 (Tex. App.—Austin Aug. 28, 2015, no pet.) (mem. op., not designated for publication).
BACKGROUND
The indictment in this cause alleged four counts of promotion of child pornography and 22 counts of possession of child pornography. Prior to trial, the State dismissed the first count alleging promotion of child pornography. Weatherford pleaded guilty to committing the remaining counts without an agreed recommendation as to punishment. He then waived his right to a jury trial and elected to have the district court assess punishment. The district court accepted Weatherford's guilty pleas but withheld its finding of guilt as to each count until the conclusion of the punishment hearing.
The evidence considered by the district court during the punishment hearing included the testimony of Sergeant Ross Behrens of the Texas Attorney General's Office, who testified that during his investigation of the case, he had discovered between 120 and 130 images and videos of child pornography that had been downloaded from an internet-protocol (IP) address that was associated with Weatherford; Sergeant Steven Ried, also of the Attorney General's Office, who testified that he had found over 25,000 images of child pornography on various hard drives, CDs, and DVDs that had been seized from Weatherford's home; Dean Eddy, a sex-offender counselor, who testified as to his experience treating sex offenders and the characteristics of offenders that tend to make rehabilitation efforts more or less likely to succeed; Weatherford's ex-wife, who testified that she had found CDs, a hard drive, and other materials containing pornography at Weatherford's home and had delivered those materials to the Attorney General's Office; and Weatherford's adult daughter from a previous marriage, who testified that one of the videos found during the investigation contained images of her changing into a bathing suit when she was a child. At the conclusion of the hearing, the district court found Weatherford guilty of the charges to which he had pleaded guilty and assessed punishment as noted above. The district court rendered a separate judgment of conviction for each count. This appeal followed.
STANDARD OF REVIEW
"Ineffective-assistance-of-counsel claims are governed by the familiar Strickland framework: To prevail, the defendant must show that counsel's performance was deficient and that this deficient performance prejudiced the defense." "An attorney's performance is deficient if it is not within the range of competence demanded of attorneys in criminal cases as reflected by prevailing professional norms, and courts indulge in a strong presumption that counsel's conduct was not deficient." "If trial counsel has not been afforded the opportunity to explain the reasons for his conduct, we will not find him to be deficient unless the challenged conduct was 'so outrageous that no competent attorney would have engaged in it.'" In other words, in the absence of a record explaining the reasons for counsel's decisions, we will not find counsel's performance deficient if any reasonably sound strategic motivation can be imagined. "It is a rare case in which the trial record will by itself be sufficient to demonstrate an ineffective-assistance claim."
Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
Id. at 307-08 (emphasis in original).
Id. at 308 (quoting Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012)).
See Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
Nava, 415 S.W.3d at 308 (citing Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011)).
Strickland establishes a similarly high bar for establishing prejudice: "A defendant suffers prejudice if there is a reasonable probability that, absent the deficient performance, the outcome [of the proceeding] would have been different." "A reasonable probability is a probability sufficient to undermine confidence in the outcome." "It will not suffice for Appellant to show 'that the errors had some conceivable effect on the outcome of the proceeding.'" "Rather, he must show that 'there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt,'" or, in the context of punishment proceedings, that the defendant would have received a different sentence.
Id. (citing Strickland, 466 U.S. at 694).
Id.
Perez v. State, 310 S.W.3d 890, 894 (Tex. Crim. App. 2010) (quoting Strickland, 466 U.S. at 693).
Id. (quoting Strickland, 466 U.S. at 695).
See Wiggins v. Smith, 539 U.S. 510, 536 (2003); Ex parte Lane, 303 S.W.3d 702, 719-20 (Tex. Crim. App. 2009); Bazan v. State, 403 S.W.3d 8, 13 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd).
"The defendant bears the burden of proving ineffectiveness by a preponderance of the evidence." "To succeed on an ineffectiveness claim, a defendant must show both components; failure to show either deficient performance or prejudice will defeat the ineffectiveness claim." "Both prongs of the Strickland test are judged by the totality of the circumstances as they existed at trial, not through 20/20 hindsight." In other words, "[t]he reviewing court must look to the totality of the representation, and its decision must be based on the facts of the particular case, viewed at the time of counsel's conduct so as to eliminate hindsight bias."
Perez, 310 S.W.3d at 893 (citing Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985)).
Id. (citing Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)).
Ex parte Flores, 387 S.W.3d 626, 633-34 (Tex. Crim. App. 2012) (citing Strickland, 466 U.S. at 688; Ex parte Butler, 884 S.W.2d 782, 783-84 (Tex. Crim. App. 1994); Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990)).
Ex parte Niswanger, 335 S.W.3d 611, 615 (Tex. Crim. App. 2011) (citing Strickland, 466 U.S. at 690).
ANALYSIS
Weatherford asserts that trial counsel was ineffective by challenging the admissibility and sufficiency of the State's evidence during the hearing on punishment, using rules and procedures that, according to Weatherford, were "not effective during a punishment hearing." He cites instances when trial counsel would sometimes refer to Rule 404(b) when objecting to the admission of extraneous-offense evidence, even though the admissibility of evidence during punishment proceedings is governed by article 37.07 of the Code of Criminal Procedure. Moreover, Weatherford claims that even on the occasions when counsel cited to the proper rule during his objections, counsel "should have realized" that the evidence to which he was objecting would be "clearly admissible" during the punishment phase of trial. One of the objections to which Weatherford draws our attention is the following, in which counsel had objected to the admission of evidence pertaining to the count alleging promotion that had earlier been dismissed by the State:
See Tex. Code Crim. Proc. art. 37.07, § 3(a).
See Ellison v. State, 201 S.W.3d 714, 721-22 (Tex. Crim. App. 2006) (explaining that article 37.07 "can only be construed to significantly enlarge the categories of potentially admissible evidence at punishment").
[Defense counsel]: I objected earlier and I'm going to object again. I think that's immaterial, irrelevant, it's 403, it's hearsay. The count was dismissed.
[Prosecutor]: Your Honor, this is a punishment hearing. Everything is relevant in punishment. It's also relevant in guilt/innocence, if we were there, because it shows his motive, intent, plan, and scheme of not only manufacturing this video but of what he was going to do with it.
[The Court]: I'll overrule the objection.
[Defense counsel]: If I may just have a brief rejoinder, it may be punishment, but it's not a free-for-all and donnybrook. There are rules of evidence and there are cases that apply to the rules of evidence to a punishment hearing. Best I can tell, hearsay still applies in some instances in the punishment hearing, that's why I keep renewing it. I also have objected numerous times on Rule 403, as well as 404, 405 and [article] 37.07(1).
There are parameters in which the government or the State can get into, and I think that they're trying to bootstrap something into the case. It's been dismissed and it's extraneous, and I think the probative value is nil compared to the prejudicial effect.Shortly thereafter, counsel renewed his objections:
[The Court]: I'm going to overrule the objection.
[Defense counsel]: I'm going to renew the objections, strenuously at this point. The State dismissed this out of the indictment. And what they're trying to do, and I'll be quite candid, is they're trying to bootstrap SL6 [a computer file relating to a promotion count that had not been dismissed] into something more than what it is by introducing evidence of another video that they deemed insufficient to bring into evidence and take to trial.The district court again overruled the objections.
So I'm going to object, 403, it's going to have hearsay on it—I'm just telling you now, it's going to have hearsay on it, and I'm going to renew the objection again, and I think that hearsay is going to be more prejudicial than the probative value. So I object.
[Prosecutor]: Your Honor, the same rebuttal: It is a video of child erotica. It sets the predicate of motive, intent, plan, and scheme of why we charged promotion of child pornography with the SL6 series.
In addition to claiming that counsel had made ineffective objections, Weatherford also criticizes the decision of counsel to move for a "directed verdict" on the counts in the indictment that alleged promotion of child pornography. At the close of evidence, counsel argued the following:
Their Counts 2, 3, and 4—Count 1 having been dismissed—those counts allege promotion of child pornography. The Defendant pled guilty to it. The Court has now found him guilty.The State provided the following response:
We'd ask 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. There was no evidence and it was adduced during the sentencing hearing, which made this amply clear, the only evidence that they have of any intent to disseminate that information was bootstrapped through the count that was dismissed and dismissed because of lack of evidence.
So we'd ask the Court to consider Counts 2, 3 and 4 as possession of child pornography rather than possessing it with intent to distribute and promoting.
Your Honor, I am appalled that the Defense attorney would have his Defendant plead guilt to Counts 2, 3 and 4, waiving that argument, giving the State notice that guilt and innocence was no longer an issue, and then hold our presentation of punishment evidence against us and then ask the Court to find him not guilty of promotion. That is a sneaky, backdoor way around the jury trial that we were set for on Monday. In response, there was evidence that he both manufactured and had the intent to promote.The district court denied the motion.
In Weatherford's view, counsel's motion for directed verdict, combined with what Weatherford claims were improper objections to evidence that was "clearly admissible during a punishment hearing," demonstrate that counsel's strategy was to challenge the admissibility and sufficiency of the State's evidence during the punishment hearing. Such a strategy was deficient, Weatherford asserts, because Weatherford's "guilty plea and judicial confession not only removed any sufficiency-of-the-evidence argument regarding Appellant's guilt, it subjected any relevance objection during the punishment hearing to the very broad language of Article 37.07." Therefore, according to Weatherford, "in the process of pursuing this strategy, [counsel] demonstrated a lack of understanding regarding rules of evidence and trial procedure."
The record, however, could support an alternate view of counsel's strategy. Again, our standard of review dictates that when trial counsel has not been afforded an opportunity to explain the reasons for his conduct—which is the situation here—we are to find him deficient only if "the challenged conduct was 'so outrageous that no competent attorney would have engaged in it.'" We cannot conclude that counsel's conduct rises to that level here. It is true that a judicial confession, standing alone, is sufficient evidence of guilt, and the record reflects that Weatherford judicially confessed to committing the charged offenses. Nevertheless, as the State observes, counsel could have "used the request for a directed verdict, however inapplicable, to try to mitigate his client's punishment by attempting to persuade the trial court to question the State's portrayal of Appellant." Throughout the punishment hearing, the State had portrayed Weatherford as someone who had both possessed and promoted child pornography, with an emphasis on the evidence of promotion, in an apparent effort to maximize the punishment that Weatherford would receive. Given the State's strategy to emphasize the evidence that portrayed Weatherford in the worst possible light, counsel could have reasonably concluded that he needed a counter-strategy of vigorously attacking the State's evidence in an effort to mitigate Weatherford's punishment. It would not be unreasonable for such a strategy to include a challenge to the sufficiency of the evidence supporting the promotion counts, even if such a challenge was unlikely to succeed, and to also include raising numerous objections to the admissibility of the State's evidence, even if such objections were unlikely to be sustained. Counsel could have reasonably concluded that such efforts, even if unsuccessful in isolation, could have a cumulative effect of mitigating Weatherford's punishment, by forcing the State to repeatedly defend the admissibility of its evidence and, in some instances, by obtaining favorable rulings from the district court. In fact, the record reflects that on multiple occasions during the hearing, the district court, in response to counsel's objections, either sustained counsel's objections or required the State to explain why the evidence would be admissible, which in some instances resulted in the State withdrawing certain questions that could have elicited testimony that would be damaging to the defense case. We also observe that throughout the punishment hearing, counsel: (1) raised numerous objections to the evidence that were based on applicable rules and procedures; (2) engaged in a thorough cross-examination of the State's witnesses, in an attempt to mitigate the State's evidence of pornography possession and promotion; (3) presented the testimony of a defense witness, Weatherford's sister, who testified that she would support her brother if he were placed on deferred adjudication and who attempted to present Weatherford in a more favorable light; and (4) provided a closing argument that emphasized the mitigating circumstances in the case, including evidence tending to show that Weatherford's pornographic activity had recently been decreasing. Thus, when looking at the totality of counsel's representation, as we are required to do, we cannot conclude on this record that Weatherford carried his burden to prove by a preponderance of the evidence that counsel's performance during the punishment hearing was deficient.
Nava, 415 S.W.3d at 308 (quoting Menefield, 363 S.W.3d at 593).
See Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009); Dowden v. State, 455 S.W.3d 252, 255 (Tex. App.—Fort Worth 2015, no pet.).
In fact, during its closing argument, the State referred to Weatherford as a "supplier" and "manufacturer" of child pornography.
Additionally, even if counsel's performance had been deficient, we could not conclude on this record that Weatherford carried his burden to prove by a preponderance of the evidence that, absent any deficient performance, the result of the proceeding would have been different. The evidence in this case included the following: (1) testimony by Sergeant Behrens tending to show that Weatherford's behavior had progressed from downloading child pornography to filming child pornography; (2) Weatherford's admission to Behrens that he had seen "thousands" of images of child pornography; (3) Sergeant Ried's testimony that he had discovered 25,841 images of child pornography in Weatherford's possession; (4) testimony as to the content of the child pornography that was found in Weatherford's possession, which included images of bondage and sexual assault; (5) evidence tending to show that Weatherford had set up a hidden camera in his home to film his daughter and that he had shared the video recordings with others; (6) testimony by Weatherford's ex-wife and adult daughter describing the extent of their suffering as a result of Weatherford's behavior; and (7) a transcript of an online "chat" session Weatherford had with another person online, in which Weatherford used sexually explicit language to describe his daughter, admitted that he wanted to have sex with his daughter and indicated a willingness to let other men have sex with her, and sought to exchange images of child pornography that he possessed with images of child pornography that the other person possessed. In light of this and other evidence, which likely would have been admitted regardless of what counsel did, we cannot conclude that if counsel had raised different objections or pursued a different strategy during the punishment hearing, there is a reasonable probability that Weatherford would have received a different sentence than the one he received.
Weatherford also argues in his brief that, had counsel "understood the law and procedure regarding what could or could not be successfully argued during punishment," Weatherford would not have pleaded guilty and would have insisted on a jury trial. We first note that any argument as to whether Weatherford would have pleaded guilty is not properly before us, as the trial-court certification of Weatherford's right of appeal indicates that Weatherford has waived his right of appeal "as to guilt / innocence but maintains the right [of] appeal as to sentencing," and the record supports this certification. See Ex parte Broadway, 301 S.W.3d 694, 697-98 (Tex. Crim. App. 2009); see also Tex. Code Crim. Proc. art. 1.14(a); Jones v. State, 488 S.W.3d 801, 806-07 (Tex. Crim. App. 2016). Accordingly, our review is limited to counsel's performance during the punishment hearing. But even if Weatherford's decision to plead guilty were properly before us, there is nothing in this record to support a finding that Weatherford would have insisted on going to trial under these circumstances, particularly in light of what can be fairly characterized as overwhelming evidence of Weatherford's guilt, summarized above. See Ex parte Torres, 483 S.W.3d 35, 48 (Tex. Crim. App. 2016) (explaining that analysis of prejudice prong in context of decision to plead guilty includes consideration of whether contrary decision to plead not guilty "would have been rational under the circumstances" and that one factor to consider in the analysis is "the likelihood of success at trial").
We overrule Weatherford's sole point of error.
CONCLUSION
We affirm the judgments of conviction.
/s/_________
Bob Pemberton, Justice Before Chief Justice Rose, Justices Pemberton and Field Affirmed Filed: March 9, 2017 Do Not Publish