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James Alan Weatherford v. The State of Texas
Date: 03-21-2017
Case Number: 03-14-00527-CR
Judge: Bob Pemberton
Court: TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
Plaintiff's Attorney: The Honorable Stacey M. Soule
Mr. John C. Prezas
Defendant's Attorney:
Dal R Ruggles |
Description:
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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 3
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 4
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 5
Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013) (citing Strickland v.3 Washington, 466 U.S. 668, 687 (1984)). Id. at 307-08 (emphasis in original).4 Id. at 308 (quoting Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012)).5 3
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 6
record will by itself be sufficient to demonstrate an ineffective-assistance claim.” 7
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 8
sufficient to undermine confidence in the outcome.” “It will not suffice for Appellant to show ‘that 9
the errors had some conceivable effect on the outcome of the proceeding.’” “Rather, he must show 10
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 11
defendant would have received a different sentence.12
See Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).6 Nava, 415 S.W.3d at 308 (citing Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App.7
2011)).
Id. (citing Strickland, 466 U.S. at 694).8 Id.9 Perez v. State, 310 S.W.3d 890, 894 (Tex. Crim. App. 2010) (quoting Strickland, 466 U.S.1 0 at 693). Id. (quoting Strickland, 466 U.S. at 695).1 1 See Wiggins v. Smith, 539 U.S. 510, 536 (2003); Ex parte Lane, 303 S.W.3d 702, 719-201 2 (Tex. Crim. App. 2009); Bazan v. State, 403 S.W.3d 8, 13 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). 4
“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; 13
failure to show either deficient performance or prejudice will defeat the ineffectiveness claim.”14
“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 15
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.”16
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
Perez, 310 S.W.3d at 893 (citing Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.1 3 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)).1 4 Ex parte Flores, 387 S.W.3d 626, 633-34 (Tex. Crim. App. 2012) (citing Strickland, 4661 5 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, 4661 6 U.S. at 690). 5
proceedings is governed by article 37.07 of the Code of Criminal Procedure. Moreover, 17
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 18
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:
[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).
See Tex. Code Crim. Proc. art. 37.07, § 3(a).1 7 See Ellison v. State, 201 S.W.3d 714, 721-22 (Tex. Crim. App. 2006) (explaining that1 8 article 37.07 “can only be construed to significantly enlarge the categories of potentially admissible evidence at punishment”).
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.
[The Court]: I’m going to overrule the objection.
Shortly thereafter, counsel renewed his objections:
[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.
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.
The district court again overruled the objections.
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.
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.
The State provided the following response:
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 19
confession, standing alone, is sufficient evidence of guilt, and the record reflects that Weatherford 20
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.21
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
Nava, 415 S.W.3d at 308 (quoting Menefield, 363 S.W.3d at 593). 1 9 See Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009); Dowden v. State, 4552 0 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” and2 1 “manufacturer” of child pornography. 9
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.
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. 22
We overrule Weatherford’s sole point of error.
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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 3
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 4
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 5
Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013) (citing Strickland v.3 Washington, 466 U.S. 668, 687 (1984)). Id. at 307-08 (emphasis in original).4 Id. at 308 (quoting Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012)).5 3
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 6
record will by itself be sufficient to demonstrate an ineffective-assistance claim.” 7
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 8
sufficient to undermine confidence in the outcome.” “It will not suffice for Appellant to show ‘that 9
the errors had some conceivable effect on the outcome of the proceeding.’” “Rather, he must show 10
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 11
defendant would have received a different sentence.12
See Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).6 Nava, 415 S.W.3d at 308 (citing Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App.7
2011)).
Id. (citing Strickland, 466 U.S. at 694).8 Id.9 Perez v. State, 310 S.W.3d 890, 894 (Tex. Crim. App. 2010) (quoting Strickland, 466 U.S.1 0 at 693). Id. (quoting Strickland, 466 U.S. at 695).1 1 See Wiggins v. Smith, 539 U.S. 510, 536 (2003); Ex parte Lane, 303 S.W.3d 702, 719-201 2 (Tex. Crim. App. 2009); Bazan v. State, 403 S.W.3d 8, 13 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). 4
“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; 13
failure to show either deficient performance or prejudice will defeat the ineffectiveness claim.”14
“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 15
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.”16
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
Perez, 310 S.W.3d at 893 (citing Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.1 3 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)).1 4 Ex parte Flores, 387 S.W.3d 626, 633-34 (Tex. Crim. App. 2012) (citing Strickland, 4661 5 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, 4661 6 U.S. at 690). 5
proceedings is governed by article 37.07 of the Code of Criminal Procedure. Moreover, 17
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 18
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:
[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).
See Tex. Code Crim. Proc. art. 37.07, § 3(a).1 7 See Ellison v. State, 201 S.W.3d 714, 721-22 (Tex. Crim. App. 2006) (explaining that1 8 article 37.07 “can only be construed to significantly enlarge the categories of potentially admissible evidence at punishment”).
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.
[The Court]: I’m going to overrule the objection.
Shortly thereafter, counsel renewed his objections:
[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.
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.
The district court again overruled the objections.
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.
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.
The State provided the following response:
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 19
confession, standing alone, is sufficient evidence of guilt, and the record reflects that Weatherford 20
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.21
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
Nava, 415 S.W.3d at 308 (quoting Menefield, 363 S.W.3d at 593). 1 9 See Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009); Dowden v. State, 4552 0 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” and2 1 “manufacturer” of child pornography. 9
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.
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. 22
We overrule Weatherford’s sole point of error.
Plaintiff's Experts:
Defendant's Experts:
Comments:
About This Case
What was the outcome of James Alan Weatherford v. The State of Texas?
The outcome was: < We affirm the judgments of conviction. >
Which court heard James Alan Weatherford v. The State of Texas?
This case was heard in TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN, TX. The presiding judge was Bob Pemberton.
Who were the attorneys in James Alan Weatherford v. The State of Texas?
Plaintiff's attorney: The Honorable Stacey M. Soule Mr. John C. Prezas. Defendant's attorney: Dal R Ruggles.
When was James Alan Weatherford v. The State of Texas decided?
This case was decided on March 21, 2017.