Opinion
CAUSE NUMBER: 05-20-00234-CR
10-13-2020
ROBERT MICHAEL KESSLER APPELLANT v. THE STATE OF TEXAS APPELLEE
COUNSEL Ms. Shannon Miller Assistant District Attorney Collin County District Attorney's Office 2100 Bloomdale Road Suite 200 McKinney, Texas 75071 Attorney for the State Mr. David Finn 2828 N. Hardwood Street Suite 1950 Dallas, Texas 75201 Attorney for the Defendant Mr. Allan Fishburn 1910 Pacific Avenue Suite 18800 Dallas, Texas 75201 Attorney for Appellant
ON APPEAL FROM CAUSE NUMBER: 366-84524-2018 CT 10 366TH DISTRICT COURT OF COLLIN COUNTY, TEXAS APPELLANT'S BRIEF Allan Fishburn
State Bar Number 07049110
1910 Pacific Avenue
Suite 18800
Dallas, Texas 75201
(214) 761-9170
allanfishburn@yahoo.com IDENTITY OF THE COURT, PARTIES AND COUNSEL
| THE COURT | |
| Honorable Tom Nowak366th District CourtCollin County, Texas | |
| PARTIES | |
| ROBERT KESSLER | Appellant |
| THE STATE OF TEXAS | State |
| COUNSEL | |
| Ms. Shannon MillerAssistant District AttorneyCollin County District Attorney's Office2100 Bloomdale RoadSuite 200McKinney, Texas 75071 | Attorney for the State |
| Mr. David Finn2828 N. Hardwood StreetSuite 1950Dallas, Texas 75201 | Attorney for the Defendant |
| Mr. Allan Fishburn1910 Pacific AvenueSuite 18800Dallas, Texas 75201 | Attorney for Appellant |
| IDENTITY OF THE PARTIES | 2 |
| TABLE OF CONTENTS | 3 |
| INDEX OF AUTHORITIES | 5 |
| STATEMENT OF THE CASE | 8 |
| ISSUES PRESENTED | 10 |
| STATEMENT OF FACTS | 11 |
| POINT OF ERROR ONE | |
| THE TRIAL COURT ABUSED ITS DISCRETION BYORDERING CONSECUTIVE SENTENCES IN VIOLATIONOF TEX. PENAL CODE ANN. SECTION 1.02 (1)(B) | 46 |
|---|---|
| SUMMARY OF ARGUMENT | 46 |
| ARGUMENT | 46 |
| POINT OF ERROR TWO | |
| THE TRIAL COURT ABUSED ITS DISCRETION BYORDERING CONSECUTIVE SENTENCES IN VIOLATIONOF TEX. PENAL CODE ANN. SECTION 1.02 (1)(C) | 56 |
| SUMMARY OF ARGUMENT | 56 |
| ARGUMENT | 56 |
| POINT OF ERROR THREE | |
| THE TRIAL COURT LACKED JURISDICTIONTO HEAR THE INSTANT CASE AND RENDERA JUDGMENT BECAUSE THE CASE WAS NOTTRANSFERRED TO ITS DOCKET | 67 |
| SUMMARY OF ARGUMENT | 67 |
| ARGUMENT | 67 |
| PRAYER | 70 |
| CERTIFICATE OF COMPLIANCE | 70 |
| CERTIFICATE OF SERVICE | 71 |
INDEX OF AUTHORITIES
| CASES | |
|---|---|
| Arteaga v. State, 521 S.W. 3rd 329(Tex. Crim. App. 2017) | 63 |
| Baker v. State, 07-18-00366-CR(Tex. App. - Amarillo 2019) | 66 |
| Boykin v. State, 818 S.W. 2d 782(Tex. Crim. App. 1991) | 62 |
| Cary v. State, 507 S.W. 3rd 750(Tex. Crim. App. 2016) | 63 |
| Ex parte Seidel, 39 S.W. 3rd 221(Tex. Crim. App. 2001) | 68 |
| Garcia v. State, 901 S.W. 2d 731(Tex. App. - Houston [14th Dist.] 1995) | 69 |
| Guzman v. State, 955 S.W. 3rd 85(Tex. Crim. App. 1997) | 53, 64 |
| Heath v. State, 817 S.W. 2d 335(Tex. Crim. App. 1991) | 68 |
| Hernandez v. State, 268 S.W. 3rd 176(Tex. App. - Corpus Christi 2008) | 53, 64 |
| Hoang v. State, 872 S.W. 2d 694(Tex. Crim. App. 1993) | 68 |
| Jaenicke v. State, 109 S.W. 3rd 793(Tex. App. - Houston [1st. Dist.] 2003) | 54, 64 |
| Lancaster v. State, 319 S.W. 3rd 168(Tex. App. - Waco 2010) | 66 |
|---|---|
| Leon v. State, 13-09-00606-CR(Tex. App. - Corpus Christi 2011) | 65 |
| Lopez v. State, 13-14-00753-CR(Tex. App. - Corpus Christi 2016) | 66 |
| Marin v. State, 851 S.W. 2d 275(Tex. Crim. App. 1993) | 69 |
| Mason v. State, 12-19-00006-CR(Tex. App. - Tyler 2020) | 65 |
| Mills v. State, 742 S.W. 2d 832(Tex. App. - Dallas 1987) | 69 |
| Neal v. State, 05-19-00699-CR(Tex. App. - Dallas 2020) | 53, 63 |
| Reynolds v. State, 430 S.W. 3rd 467(Tex. App. - San Antonio 2014) | 66 |
| Theole v. State, 10-12-00175-CR(Tex. App. - Waco 2012) | 66 |
| Wagner v. State, 539 S.W. 3rd 298(Tex. Crim. App. 2018) | 62 |
| STATUTES | |
| 50, 60 | |
| 68 | |
| 67 |
| 68 | |
| 49, 58 | |
| 68 | |
| 50, 59 | |
| 46, 52, 55 | |
| 66 | |
| 62 | |
| 49, 59 | |
| 49, 58 | |
| 48, 58 | |
| 48, 58 | |
| 47, 57 | |
| CONSTITUTIONS | |
| Tex. Const. Art. V. section 12 (b) | 67 |
STATEMENT OF THE CASE
Appellant was charged with possession of child pornography by a 10 count indictment. The subject of this appeal is count 10, which reads: In the name and by the authority of the State of Texas: The Grand Jury of Collin County, State of Texas, duly organized at the July Term, A.D., 2018 of the 380th District Court of said county, in said court at said term, do present that Robert Michael Kessler, hereinafter called defendant on or about the 13th day of February, 2018 in said county and State, did then and there intentionally and knowingly possess visual material that visually depicted, and the defendant knew visually depicted, a child who was younger than 18 years of age at the time the image of the child was made, engaging in sexual conduct, namely actual sexual intercourse. (C.R. p. 16) Appellant pled guilty without a plea agreement to all 10 counts of the indictment. (R.R. Vol. 1, p. 10) The Trial Court pronounced sentence as follows:
So it is the order, judgment, and decree of the Court that under Counts I and II, of possession of child pornography, you are
found guilty and the Court will assess punishment at ten years confinement in the Texas Department of Criminal Justice, Institutional Division to run consecutively. Counters III through X, the Court finds you guilty and assesses your punishment at five years confinement in the Texas Department of Criminal Justice concurrently with each, but consecutively to Counts I and II.(R.R. Vol. 1, p. 208)
ISSUES PRESENTED
1. The Trial Court abused its discretion by ordering consecutive sentences in violation of Tex. Penal Code Ann. section 1.02 (1)(B).
2. The Trial Court abused its discretion by ordering consecutive sentences in violation of Tex. Penal Code Ann. section 1.02 (1)(C).
3. The Trial Court lacked jurisdiction to hear the instant case and render a judgment because the case was not transferred to its docket.
STATEMENT OF FACTS
Appellant was charged with possession of child pornography by a 10 count indictment. The subject of this appeal is count 10, which reads:
In the name and by the authority of the State of Texas: The Grand Jury of Collin County, State of Texas, duly organized at the July Term, A.D., 2018 of the 380th District Court of said county, in said court at said term, do present that Robert Michael Kessler, hereinafter called defendant on or about the 13th day of February, 2018 in said county and State, did then and there intentionally and knowingly possess visual material that visually depicted, and the defendant knew visually depicted, a child who was younger than 18 years of age at the time the image of the child was made, engaging in sexual conduct, namely actual sexual intercourse.(C.R. p. 16) On February 4, 2020 the case was called to trial. (R.R. Vol. 1, p. 7) Appellant pled guilty without a plea agreement to all 10 counts of the indictment. (R.R. Vol. 1, p. 10) Without expressly accepting Appellant's plea the Trial Court began the punishment phase. (R.R. Vol. 1, p. 13) The prosecutor's opening statement reads in part:
Your Honor, this case starts with a man who apparently had a... some pictures shown to him back when he was in high school of child pornography, and from then has...seems to be addicted to it ever since. You will hear that he has had an encrypted drive that we had to break through, which had several pictures. He has had an external drive, which had even more. But the encrypted thumb drive that he had he had it on a lanyard. And that lanyard he could take with him anywhere at anytime containing child pornography.(R.R. Vol. 1, p. 13-14) Billy Lanier is a child abuse investigator for the district attorney's office. (R.R. Vol. 1, p. 17) In June of 2018 Lanier "had a case that I was investigating, a peer-to-peer child porn sharing." (R.R. Vol. 1, p. 19) Lanier explained that "[p]eer-to-peer is a file sharing program on computers where people upload files that other people can reach out to them and download. And they may be one or it may be thousands or hundreds of thousands. (R.R. Vol. 1, p. 19) Lanier testified that a few of the peer-to-peer networks are BitTorrent, uTorrent, Frostwire, and Shareaza. (R.R. Vol. 1, p. 20) Lanier was asked to describe how Appellant was caught. He answered:
The State has had their investigators go through the evidence. This Defendant has...what we believe we will show that the Defendant has pictures of infants and toddlers all the way up to approximately 13 years of age of children being raped, of sexual acts being done to children, of lewd exhibition of their genitals and anus. Crime scene photos of approximately 6,000 or more identified victims.
Law enforcement has tools where they can monitor some activity on the internet. Persons that share child pornography can be seen sharing child pornography through these tools. Law enforcement can connect to those shared files and download them and view them. And at that point, if we believe they are criminal, we will investigate them.(R.R. Vol. 1, p. 21) The first thing Lanier did in the present case was work "the background of the photographs, where they track back to. Identified an address in Allen, Texas. Identified the people that lived at that address, and then obtained a search warrant." (R.R. Vol. 1, p. 21) Lanier found the Allen address "by local investigations. On-line search tools[.]" (R.R. Vol. 1, p. 21) Lanier obtained an IP address and "obtained a search warrant to go to the house to look for the files of interest." (R.R. Vol. 1, p. 22) The specific address is 1609 Coventry in Allen, Texas. (R.R. Vol. 1, p. 22) Lanier and Investigator Meehan executed the search warrant. (R.R. Vol. 1, p. 22) Appellant was mowing the front yard when they arrived. (R.R. Vol. 1, p. 22) Lanier and Meehan introduced themselves to Appellant, and told him they were there to look for child pornography. (R.R. Vol. 1, p. 23) Appellant gave Lanier the password to his encrypted thumb drive. (R.R. Vol. 1, p. 23) The thumb drive was "encrypted with Mac software and it had to be plugged into a certain computer for it to be crypt to be viewed." (R.R. Vol. 1, p. 23) During the search Lanier found "a MacBook, some external hard drives, a thumb drive, and there was a Dell laptop in the office." (R.R. Vol. 1, p. 26) Lanier was asked what was viewed at the "scene" and what "was used to view it?" He answered:
We have tools. One of them is called osTriage and we used it to look at some items, and then we manually looked at the thumb drive that was plugged into the Mac because we had to do that because of the encryption.(R.R. Vol. 1, p. 26) Lanier testified he found child pornography on a thumb drive while executing the search warrant. It depicted "rape of children. Children's exposed genitals, posed." (R.R. Vol. 1, p. 26) During the search Appellant told Lanier he had been looking at child pornography since high school. (R.R. Vol. 1, p. 26-27) Lanier was asked what he seized during the search. He answered:
Multiple electronic items. The external hard drives, thumb drives, MacBook, Dell laptop, anything that we thought that
may store child pornography.(R.R. Vol. 1, p. 27) After finding the child pornography Lanier arrested Appellant and he and Investigator Meehan "logged all the evidence." (R.R. Vol. 1, p. 28) Lanier "concentrated on the Dell laptop that was up and running when we found it in the office." (R.R. Vol. 1, p. 28) Appellant told Lanier that the "Mac" was his. He also said the "encrypted thumb drive belonged to him." (R.R. Vol. 1, p. 29) Lanier found "a couple of external hard drives" that Appellant claimed. (R.R. Vol. 1, p. 29) In order to view the contents of the Dell laptop Lanier "made an image of the laptop, and from that image we have software that we use to view the image. In this case, we used Magnet Axiom and Griffeye." (R.R. Vol. 1, p. 29) Lanier testified that he obtained "over 6,000" child pornography images from the Dell laptop. (R.R. Vol. 1, p. 29) The images obtained from the Dell laptop ranged from "[e]xtremely young to maybe young teen. And it can be depicting exposure to actual rape." (R.R. Vol. 1, p. 30) Lanier didn't look at anything else at that point. When asked why not, he answered:
At that point we believed that we had quite a bit of information to move forward with the case. Of course, the Mac and the thumb drive are encrypted so I struggled with that and just left it in property.(R.R. Vol. 1, p. 30) Lanier agreed that "Apple has specific proprietary software that you need to have specific training in order to get into", "[i]f it's encrypted." (R.R. Vol. 1, p. 31) Lanier had the Apple password, but he lacked the ability to get into the Mac. (R.R. Vol. 1, p. 31) Lanier contacted CPS because "[w]e are required by law, when we believe a child has been or could have been abused, that we report it to the State." (R.R. Vol. 1, p. 32) Lanier acknowledged that CPS investigated and "ruled out" child abuse. (R.R. Vol. 1, p. 32) Lanier testified that he has had cases where the children are forensically interviewed but do not make an outcry. (R.R. Vol. 1, p. 32) Lanier was asked to look for depictions of Appellant's daughter. He found none. (R.R. Vol. 1, p. 33) Lanier looked for those images because Appellant "had made some statements that were concerning." (R.R. Vol. 1, p. 33) Lanier testified he is required to submit images to the NCEMC. (R.R. Vol. 1, p. 35) Lanier testified he reviewed the "images used for the indictment." (R.R. Vol. 1, p. 36) Lanier testified that one of the victims depicted is called "Tara." And that is an actual known victim that law enforcement knows who the actual person is that was victimized." (R.R. Vol. 1, p. 36) Over Appellant's "speculation" objection, Lanier testified that he is concerned about Appellant being around children because:
We know through our training and experience and federal studies that persons who collect and view child pornography, images of children being raped, have a higher probability of being hands-on offenders at some point in their life.(R.R. Vol. 1, p. 37-38) On cross-examination Lanier acknowledged that a "whole bunch of people" that are addicted to child pornography get treatment and do not re-offend. (R.R. Vol. 1, p. 46) Lee McMillian has a P.H.D. in "Management and Information Technologies." He has "27 years of IT experience." (R.R. Vol. 1, p. 48) McMillian is "a certified ethical hacker." He is also "a certified computer forensics expert" who holds a certification in "the Magnet Axiom software." (R.R. Vol. 1, p. 48) McMillian volunteers his services "to work on exceptionally difficult cases where an extreme IT expertise is required." (R.R. Vol. 1, p. 48) McMillian was asked to look at the encrypted Mac computer, and encrypted thumb drive. (R.R. Vol. 1, p. 49) McMillian described what he did:
I was asked that...it was made known to me that there were two devices that were encrypted. I requested that if I was going to do forensics on the encrypted drives that I would do forensics on all of the devices involved.
I started with the Dell computer and found that there were references to external drives. I went back over to the Mac, found it encrypted. It took, I believe, six weeks, maybe seven weeks, to break the encryptions on the Mac and on the thumb drive.
At that point it was the Friday prior to the last hearing, I was able to take an image at that point and begin true computer forensics on the Mac and the thumb drive. When I was able to compare the forensics between the Mac and the Dell, it pointed
to an external hard drive that had not been forensic before. And on that external hard drive I found thousands of child porn images.(R.R. Vol. 1 p. 49 McMillian discovered that a "couple of unknown thumb drives that had been connected to the Dell computer that we did not have in evidence." (R.R. Vol. 1, p. 50) McMillian found "thousands" of child pornography images on the thumb drive. (R.R. Vol. 1, p. 51) McMillian testified the encrypted thumb drive had been connected to the encrypted Mac. (R.R. Vol. 1, p. 52) McMillian found no child pornography on the Mac. (R.R. Vol. 1, p. 52) McMillian testified that when a computer is used it leaves "breadcrumbs behind, or evidence that you were doing certain things." (R.R. Vol. 1, p. 52) "[T]he technical term for breadcrumbs is link files. And in a link file, it's going to show that he had viewed child pornography on the Mac." (R.R. Vol. 1, p. 53) The link files "referred" to "a VOC video viewer." (R.R. Vol. 1, p. 53) A VOC video viewer is a free video and picture viewer that is downloadable on the internet. (R.R. Vol. 1, p. 53-54) McMillian testified that Appellant did view child pornography on the Mac because "there was a specific link that showed the specific video he was trying to view." (R.R. Vol. 1, p. 54) McMillian "created three portable cases that contained the five devices" which is contained in State's exhibit 1. (R.R. Vol. 1, p. 54) State's exhibit 1 contains "the original downloads." These downloads were lifted form the Dell computer the Mac computer, the thumb drive, and an "external Western Digital hard drive." (R.R. Vol. 1, p. 55) State's exhibit 1 was admitted without objection. (R.R. Vol. 1, p. 56) Appellant objected to the exhibit being published in open court. He didn't want his witnesses to be exposed to it. The Trial Court ruled:
No, sir. You are not in charge of this courtroom and if the witnesses are going to be testifying on his behalf, okay, then just know that that's going to be relevant in this case. You have been sitting in through the other witnesses. If you want them sitting in through the witnesses that are testifying, have them sit in. Okay? But you are not allowed to speak to witnesses and you are not in control of this courtroom.(R.R. Vol. 1, p. 57) McMillian explained there are three pieces of evidence in exhibit 1. The contents of the Dell computer is labeled "WDCWD32." "40825 is the evidence number for the Mac." (R.R. Vol. 1, p. 58) The prosecutor asked what WDCWD32 "dash USB" means. McMillian answered:
It's the Dell computer. Whenever you take a hard drive out of a computer and plug it into a forensic workstation, there's two methods to do. So one is through a Tableau write blocker, and it shows up just as the drive itself. And then the other is through a USB device through a write blocker. The moment you enter the USB device to attach the hard drive, USB will show up in the device.(R.R. Vol. 1, p. 58) There were 2,006,849 "unique pieces of information tied to the computer." (R.R. Vol. 1, p. 58-59) Among those pieces of evidence "[t]here is child pornography in this. There's link files. There's searched for child pornography. There's numerous items that are significant." (R.R. Vol. 1, p. 59) McMillian was asked what browsers were installed on the Dell computer to look at child pornography. He testified, "[t]he torrents are listed as peer-to-peer. And it's going to show me the torrent files and that he had uTorrent and Frostwire and Shareaza installed at some point." (R.R. Vol. 1, p. 59) "A torrent is a reference file that allows a user to download larger files through the BitTorrent network using a client software." (R.R. Vol. 1, p. 59) "A torrent file is kept on the computer. Once you attempt to download a BitTorrent file until the user deletes it." (R.R. Vol. 1, p. 59) Torrent files "are kept in a user's roaming folder on the hard drive." (R.R. Vol. 1, p. 60) McMillian found the torrents in the "user folder." They were not deleted and if they were deleted Appellant "would have the torrents that would point back so that he could download it again freely and easily." (R.R. Vol. 1, p. 60) McMillian described the torrents he found as follows:
To begin with, I found search terms that would indicate searches for child pornography. Show stars is known child pornography. The term "wire 151" is known child pornography. The terms "dolce models" is also known child pornography. He's also searching for the terms "petite" "sister" "vlad," which is known child pornography. "Twelve-year-old," "13-year-old," "10-year-old," and "LSM" that is known child pornography.(R.R. Vol. 1, p. 60-61) McMillian defined "parsing":
Parsing means that...there's two methods of recovery data off of the computer. Parsing is that the data is still there in its
original and intended usable form. Carving is that the data is still there in some parts or in whole, but the pointer to the data has been deleted. Because when you delete data on a hard drive, the data remains and only the pointer to the data is deleted.(R.R. Vol. 1, p. 61) The child pornography began to be download in 2015. (R.R. Vol. 1, p. 61-62) In 2015 "[t]he torrent for LSM or LS models, which is nude, underage both prepubescent and postpubescent children out of eastern Europe" appeared on the Dell computer. (R.R. Vol. 1, p. 62) McMillian testified the Dell computer was used exclusively for downloading. The information was put on an external hard drive and then put in the Mac's encrypted device. About 80 percent of the child pornography was on the Dell computer and 20 percent was on the Mac encrypted device. (R.R. Vol. 1, p. 62) McMillian "personally viewed" "almost 90,000 files." (R.R. Vol. 1, p. 62) McMillian was asked to identify which image on State's exhibit 1 depicts what is described in count 1 of the indictment. He clicked on the exhibit and stated, "[t]his video did not get all of the pieces of the torrent to download." "There's parts that it will skip to further in the video that will have more of it." (R.R. Vol. 1, p. 64) This video was downloaded on April 6, 2018, and was last accessed on April 6, 2018. (R.R. Vol. 1, p. 65) McMillian described the image on State's exhibit 2 as it relates to count 1 of the indictment as follows:
Oftentimes when suspects trade child porn on the Internet, they'll create a thumbnail of the videos to put in front of the video itself so then that you can download the thumbnail and then say yes or no I want to continue downloading the video.(R.R. Vol. 1, p. 65) The image depicts a victim named Laura from the Laura UK series. Laura was born May 17, 1993. (R.R. Vol. 1, p. 65-66) The Laura image was downloaded on April 6, 2018. It was then modified on April 17, 2018. Modified could mean "he had it opened for a period of days and then he changed something on the screen. And as he closed the screen, it wrote back to the file." (R.R. Vol. 1, p. 66) Specific cashes attach to each pornographic image. They are unique identifiers. (R.R. Vol. 1, p. 66-67) McMillian was asked to explain how these caches are used by NCMEC to identify whether a particular image is of a known victim. He answered:
Yes. When we submit images to the National Centers for Missing and Exploited Children, which we call NCMEC, we have to submit two values. One is a MD5hash and the other is a SHA-1 hash. And with the SHA-1hash, the probability that a match of the same image is not the same was one in a quindecillion [sic], which would be one a one with 100 zeros behind it. So the probability that we're submitting to NCMEC is not the same file as is so remotely. It's improbable.(R.R. Vol. 1, p. 67) Laura was between 8 and 16 during the period she was abused. (R.R. Vol. 1, p. 67) McMillian described count 3:
This is a video of prepubescent female. You can't see it at this point, but she's in the back of a car. She was completely
disconnected from the process. You can tell that she had been sexually abused. There's points where flies land on her genitalia during this video, and later in the video an adult male ejaculates on her female sexual organ.(R.R. Vol. 1, p. 68) This image was downloaded on June 26, 2017. It was last accessed on June 26, 2017. The image was modified on July 10, 2017. (R.R. Vol. 1, p. 69) McMillian was asked to describe count 4. He answered:
This is a prepubescent female wearing a mask with an adult penis in her mouth while she's performing oral sex.(R.R. Vol. 1, p. 69) McMillian submitted the image to NCMEC. The victim's name is Morgan. It is part of the Tara series. The abuse began when she was 6 and continued into her teens. (R.R. Vol. 1, p. 69-70) McMillian testified everything was found on the Dell computer except for the images in counts 1 and 10 which were also found on the external hard drive. (R.R. Vol. 1, p. 70) The count 4 image was downloaded and last accessed on May 31, 2018. (R.R. Vol. 1, p. 70) McMillian found other images similar to those in count 4. There were "numerous videos" found on the external hard drive. (R.R. Vol. 1, p. 71) Count 5 is "a prepubescent four-or-five-six-year-old female with an adult penis laying on her female sexual organ." (R.R. Vol. 1, p. 71) This image was downloaded on May 31, 2018. It was last accessed on May 31, 2018. (R.R. Vol. 1, p. 72) Count 6 is "a prepubescent male with an adult male placing his penis in the anus of the prepubescent male." (R.R. Vol. 1, p. 72) The image was submitted to NCMEC. The child is named Aaron. He's from Switzerland. Aaron was 8 or 9 when he was abused. (R.R. Vol. 1, p. 72) The image was downloaded on May 31, 2018. It was last accessed on May 31, 2018. (R.R. Vol. 1, p. 72) Count 7 is "a prepubescent female wearing a lime green shirt. She's nude from the waist down. The one thing I took away from this how red her female sexual organ is." (R.R. Vol. 1, p. 71-72) The image was downloaded on May 31, 2018. It was last accessed on May 31, 2018. (R.R. Vol. 1, p. 73) McMillian described count 8:
You're looking at a juvenile female that is bound with rope to the point that her venus flow of blood to her hands is cut off and it is only allowing arterial blood flow to the hand causing her hands to turn purple with an adult male placing his penis in the anus of the juvenile female.(R.R. Vol. 1, p. 73) The victim depicted is named Morgan. She is from Holland. She was between 10 and 12 years old at the time of the image. (R.R. Vol. 1, p. 74) The image was downloaded on May 31, 2018. The image was last accessed on May 31, 2018. (R.R. Vol. 1, p. 74) Count 9 was described:
A prepubescent female approximately four or five years old wearing a cloth on her chest...it doesn't appear to be PJs...with an adult male placing his finger inside the female sexual organ of the prepubescent female.(R.R. Vol. 1, p. 74) The image was downloaded on May 31, 2018. It was last accessed on May 31, 2018. (R.R. Vol. 1, p. 75) McMillian described count 10:
Count X is a prepubescent female wearing black stockings, nude, laying on her back with an adult penetrating her female sexual organ with his penis.(R.R. Vol. 1, p. 75) McMillian testified he believes the external hard drive was used as a "transient medium. Meaning that it is quite possible he would download onto the Dell until the point that the Dell got full he would move the images over to the external hard drive and delete them off of the Dell." (R.R. Vol. 1, p. 75-76) McMillian found images on three devices. Some were duplicates but most were not. (R.R. Vol. 1, p. 76) The image depicted in count 10 was downloaded on February 13, 2018. It was last accessed on February 13, 2018. (R.R. Vol. 1, p. 76) McMillian was asked to compare the child pornography downloaded in 2015 to that which was downloaded in May of 2018. He answered:
Based on the forensics, it appears that the Defendant started with the LS models-type images, which is nude modeling pictures of underage children, and progressed until you have sexual abuse of children and pictures of technically crime scene photos of children being sexually abused. They become worse and worse to the point that you have in this...one of the indictments the child being bound and being raped against her will.(R.R. Vol. 1, p. 77) McMillian submitted "about 45,000 images to NCMEC." (R.R. Vol. 1, p. 78) The NCMEC reported 6,200 identified victims in the 45,000 batch, with 153 being on the Dell computer and the remainder on the external hard drive. (R.R. Vol. 1, p. 78) McMillian investigated whether any of Appellant's children were depicted in any of the images he seized. (R.R. Vol. 1, p. 79) McMillian seized an image from the "White Sugar" series of a girl named Pia. (R.R. Vol. 1, p. 80) A picture of Appellant's child was admitted without objection as State's exhibit 2. (R.R. Vol. 1, p. 80) McMillian testified that Appellant's child resembles a victim from a series called "K baby." (R.R. Vol. 1, p. 80) The White Sugar series and the K baby series consisted of 79 images found on the external hard drive. (R.R. Vol. 1, p. 80-81) These images were downloaded on February 13, 2018. They were last accessed on May 31, 2018. (R.R. Vol. 1, p. 82) There was also 1 picture and 12 videos on the Dell computer from the Tara series that are not included in the indictment. (R.R. Vol. 1, p. 82) Count 4 also includes a video. McMillian described it:
It depicts a child being sexual abused. And at one point the child gives oral sex to an adult male.(R.R. Vol. 1, p. 83-84) McMillian described where the images were located on the devices in question as follows:
The child is approximately eight. And in one of the videos an extremely large adult toy is used on the female sexual organ of the child to the point that the child is in pain and the child is bracing herself against the force that the adult male is using the adult toy on the child.
My biggest concern is that the lengths and extent that he was going to hide this from the people that were around him. Even with the USB drive being encrypted, it was a work flash drive, one that had multiple images, and PowerPoint presentations, and Excel files for his work and it was embedded in a folder structure that was multiple, multiple layers down into a folder called dollar sign, dollar sign, WKM. And then that same type of folder structure burying was used on the external hard drive. I don't remember exactly how the folder structure was, but it was probably six, seven, eight layers deep.(R.R. Vol. 1, p. 84) McMillian testified that since the Dell computer was still in his wife's name he "had to use cell phone backups to attribute it to him." (R.R. Vol. 1, p. 87) Child pornography was being downloaded on Appellant's devices at the time of his arrest. (R.R. Vol. 1, p. 87) State's exhibit 3 is a victim impact statement given at some point by "Tara." It was admitted without objection. (R.R. Vol. 1, p. 89) State's exhibit 4 is a victim impact statement given by the mother of the victim in the Sweet White Sugar series. It was admitted without objection. (R.R. Vol. 1, p. 89) On cross-examination the resume of a sex offender treatment provider named Liles Arnold was admitted without objections as Defendant's exhibit 1. (R.R. Vol. 1, p. 90, 222) The State rested. (R.R. Vol. 1, p. 99) Joe Harper started a company called Southwest Materials Handling in 1966. (R.R. Vol. 1, p. 100) Appellant begam working for Mr. Harper in September of 2018. (R.R. Vol. 1, p. 101) Mr. Harper testified that Appellant is of good character. (R.R. Vol. 1, p. 101) Mr. Harper testified he is aware of the indicted offense and that Appellant could continue to work for him if given probation. (R.R. Vol. 1, p. 103) Janice Smith is Appellant's mother-in-law. (R.R. Vol. 1, p. 103) After his arrest Appellant requested to talk to Ms. Smith. She described the conversation:
Okay. We talked at length. I quizzed him about some things. I don't remember specifics because it was two or three months after the arrest so it's been over a year. But he was very repentant. He was very contrite.
He was asking forgiveness from me for...for all of what he had done. And it took me a long time to get there, but, yes, I have
forgiven him.(R.R. Vol. 1, p. 113) Ms. Smith was asked to summarize the changes she has observed in Appellant. She answered:
I have statements here about that. I would be privileged to read to you if given that opportunity.
One of my last comments after...towards the end of discussion about him is that I've seen a complete transformation, conversion, reborn, redeemed experience. He is a completely different person. He is...he used to be pretty selfish. He's not selfish anymore. He is very open, obviously, to his sins. He seeks counsel from professionals. He seeks counsel from the church. He has a whole plethora of church members that he can contact and go to day and night if he needs help. If he needs anything. Anyone sitting other here (indicating), would be happy to help him at the drop of a pin. All he would have to do is say...call them day or night and say I need some help right now.(R.R. Vol. 1, p. 115-116) Ms. Smith was asked to address whether Appellant would succeed on probation. She explained:
So it is my opinion that...Number one, he will not reoffend. I know he won't reoffend because he is a new creation. Number two, these restrictions, sentencing, everything that you can do... and I say this, respectfully...to me is punishment. So the
reason I see for punishment is to change a behavior. His behavior has already changed. And the other thing that I see around punishment is that the people that are going to suffer the most from that punishment is not Robert.(R.R. Vol. 1, p. 117-118) Ms. Smith testified she believes Appellant will not possess child pornography again. She explained:
The people that are going to suffer the most...even though he would suffer, he wouldn't suffer the most. My daughter and my grandchildren are who would suffer the most from that. To not be able to around him and be in their lives. They would haven't that opportunity, and they're the ones that are going to suffer.
Because I know his conversion is real. We had a text conversation before the October 30th, hearing. And in that text conversation he was very humble. He thanked us for being willing to make the trip to come to his hearing. We live two hours away. He thanked us for coming and he thanked me for loving a broken person.
And I said back, "You are no longer broken. You are a...you are reborn. You're...you're...you're a new creation." And he texted me back with a scripture and I can't quote it. I have it written down. But it was about, you've been in this merk and meyer in the past. You are no longer in the merk and meyer, you're a new creation. Get on with the good things that Christ wants you to do.
And that...that spoke volumes to me. I knew I had already forgiven him. I knew he was already a new creation. I went to his graduation at his regeneration class at Watermark church. I
saw what he had done. It was a 12-step program. And he consistently stayed in that program on many other things that he has done to try to make this right. He's given 100 percent to make this right.(R.R. Vol. 1, p. 125-126) Jill Kessler is Appellant's mother. (R.R. Vol. 1, p. 130) Ms. Kessler was asked to tell what her "thoughts are on the process and sentencing." She answered:
And I don't excuse what he did. I don't at all excuse what he did. But I know he's a different person.
I'm not sure what you want me to say other than I believe my son would do well with probation or a limited time spent in the county jail, or whatever. I do feel like he is very accountable for his actions.
He has been living with us for a good part of this year and part of last year. And he is more aware of what his bond restrictions were and was much more likely to call us out to make sure that he was following those bond restrictions.
For example, we were going to go to a new restaurant the other day and he would not go with us because it was next door to a high school. So he has learned from being in with his treatment with Liles and also from the Region program at Watermark. What is expected of him, he had adhered to that to the letter. He has not done anything since his arrest that would make me think that he would break any kind of restrictions or probationary restrictions that were put on him. I feel like he has
gained a lot from the treatment that he received with Liles as well as through Watermark church.(R.R. Vol. 1, p. 131-132) Ms. Kessler was asked to describe the change she has observed in Appellant. She answered:
My son is extremely remorseful. And I know if there had been an opportunity for him to seek treatment before he was arrested that he would have, but there is nothing in the community available to these men that have this problem without...if they speak up about this problem then they're arrested. So I don't know that there is...that's something that concerns me that is there is no outlet for these people that have this type of addiction like there is for drug or alcohol abuse. It's not something that's going to be apparent like someone that's impaired so nobody is going to know.(R.R. Vol. 1, p. 134-135) Ms. Kessler is an occupational therapist who "worked in a locked psychiatric unit with drug and alcohol people for nine years." (R.R. Vol. 1, p. 135) Ms. Kessler testified Appellant is addicted to child pornography. She believes he is dealing with the addiction. (R.R. Vol. 1, p. 136) Michael Vogelaar met Appellant a month after his arrest and offered to be a mentor to him through his rehabilitation program. (R.R. Vol. 1, p. 157) Mr. Vogelaar was asked if Appellant was honest with him. He answered:
And I think he was actually relieved to get some treatment. I think that has made the world of difference in him. You know, before he was arrested, we noticed that he had become more withdrawn and more irritable and that was something that was concerning to us. And I know as a child when he had done something wrong we would see that kind of behavior. And then once he was caught and punished he never did it again for one thing. But he was almost relieved to be caught and to be helped to stop whatever behavior it was.
So I've walked alongside a lot of guys and couples, whether it's premarital counseling afterwards or just reach in like this. I've seen a lot of different attitudes. And some people can keep up a facade for so long, but you can start to see cracks in what they say and what they actually do. And what I can say truthfully and honestly, the full conviction is that Robbie is, if not the most, transformational and authentic person that I've met doing counseling and visiting with guys. There's consistency.
So I reach out to Robbie over the last year and a half at least once ever 72 hours to see how he's doing, what he's up to. And I get text messages, and notifications, and phone calls on just where his heart's at. So that's the biggest thing for me. It's not just, hey, have you not looked at anything? What are you doing? But really where is your heart and how are you really transforming yourself versus just checking the boxes.
And so that's the part that I've really seen in Robbie grow from
when I first met him and from what it sounds like he was before that July to who is he now. So that's been my experience.(R.R. Vol. 1, p. 160) On cross-examination Mr. Vogelaar was asked to explain "what it is that you do with the Defendant?" He answered:
So I've volunteered my time to, essentially, walk beside the Defendant, and just, essentially, be a shoulder to lean on. Somebody to be able to be transparent. And also someone that I can challenge to be able to grow so that he can know Christ more and so that Christ will be shown through him more.(R.R. Vol. 1, p. 162) Quentan Tobolka is the leader of the "regeneration recovery group" at Watermark Community Church. (R.R. Vol. 1, p. 171) Tobolka described Appellant as being "the most diligent, persistent, thorough individual" that he has worked with. (R.R. Vol. 1, p. 174) On cross-examination Tobolka testified that there is no difference, as far as addiction is concerned, between adult and child pornography. (R.R. Vol. 1, p. 179) Tobolka acknowledged there is a "group of people called licensed sex offender treatment providers that are specifically trained and licensed to treat or try to treat sex offenders." (R.R. Vol. 1, p. 189) Both sides rested and closed. (R.R. Vol. 1, p. 196) The State pointed out in argument that Appellant's expert had provided "no risk assessments, we have no sexual reoffending information, we have none of that. Nothing from a professional that would indicate that this Defendant is not a risk." (R.R. Vol. 1, p. 205) The State requested that the Court "stack the sentences for the identified children." (R.R. Vol. 1, p. 206) During the pronouncement of sentence the Trial Court stated:
There's been no evidence, other than conjecture and speculation, that this is like alcohol or drugs. I believe that putting a substance in your body and changing the chemical composition is different than the choices one makes when deciding to download something they know immediately to be illegal, wrong, operant, and continuing to download, and continuing to view, and continuing to review, delete, hide. To
do all of those things is different than somebody who has an addiction to alcohol or drugs. And even then when we do have people who are addicted to drugs and alcohol, they commit crimes and they come before us in this court.(R.R. Vol. 1, p. 206) The Court continued:
My job is to protect the community, to send a message, and to make sure the Defendant doesn't reoffend.(R.R. Vol. 1, p. 206) Th Trial Court continued:
However, the fact is the sheer volume is unprecedented. The amount of images, the amount of time it took, the amount of hiding you had to do from the people you claim to love the most is unprecedented. The levels that you went through, and the, lastly, the types of images that were found. The fact that you have a daughter roughly the same age as those found on those images is disturbing on many levels. The conscious indifference that you had in downloading, viewing, repeatedly, deleting, hiding the images where people were brutally victimized is disturbing, and it really is beyond my comprehension.(R.R. Vol. 1, p. 207-208) The Trial Court pronounced sentence as follows:
So it is the order, judgment, and decree of the Court that under Counts I and II, of possession of child pornography, you are found guilty and the Court will assess punishment at ten years confinement in the Texas Department of Criminal Justice, Institutional Division to run consecutively. Counters III through X, the Court finds you guilty and assesses your punishment at five years confinement in the Texas Department of Criminal Justice concurrently with each, but consecutively to Counts I and II. Therefore ...I apologize.(R.R. Vol. 1, p. 208)
POINT OF ERROR ONE
THE TRIAL COURT ABUSED ITS DISCRETION BY ORDERING
CONSECUTIVE SENTENCES IN VIOLATION OF
TEX. PENAL CODE ANN. SECTION 1.02 (1)(B)
SUMMARY OF ARGUMENT
The Trial court expressly refused to consider rehabilitation as required by section 1.02 (1) (B) of the Penal Code. This was an abuse of discretion.
ARGUMENT
Appellant was charged with 10 counts of possession of child pornography. Count 10 reads:
In the name and by the authority of the State of Texas: The Grand Jury of Collin County, State of Texas, duly organized at the July Term, A.D., 2018 of the 380th District Court of said county, in said court at said term, do present that Robert Michael Kessler, hereinafter called defendant on or about the 13th day of February, 2018 in said county and State, did then and there intentionally and knowingly possess visual material that visually depicted, and the defendant knew visually depicted, a child who was younger than 18 years of age at the time the image of the child was made, engaging in sexual conduct, namely actual sexual intercourse.Possession of child pornography is proscribed by Tex. Penal Code Ann. section 43.26 which reads:
(a) A person commits an offense if:
(1) the person knowingly or intentionally possesses with intent to view, visual material that visually depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct, including a child who is engaging in sexual conduct as a victim of an offense under section 20A.02 (a) (5), (6), (7), or (8) and
(2) the person knows that the material depicts the child as described by subdivision (1).
(b) In this section:
(2) "Sexual conduct" has the meaning assigned by section 43.25.Tex. Penal Code Ann. section 43.25 defines sexual conduct:
(3) "Visual material" means:
(B) any disk, diskette, or other physical medium that allows an image to be displayed on a computer or other video screen and any image transmitted to a computer or other video screen by telephone line, cable, satellite transmission, or other method.
(d) An offense under Subsection (a) is a felony of the third degree[.]
(a) In this section:Tex. Penal Code Ann. section 12.34 sets forth the punishment for third degree felonies:
(2) "Sexual conduct" means sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola.
(a) An individual adjudged guilty of a felony of the third degree shall be punished by imprisonment in the Texas Department of Criminal Justice for any term of not more than 10 years or less than 2 years.A defendant found guilty of possession of child pornography is eligible for probation pursuant to Tex. Code Crim. Proc. Ann. article 42A.053:
(a) A judge, in the best interest of justice, the public, and the defendant, after conviction or a plea of guilty or nolo contendere, may:
(1) suspend the imposition of the sentence and place the defendant on community supervision[.]
Tex. Penal Code Ann. section 3.03 sets forth the rules governing sentences for offenses arising out of the same criminal episode:
(b) If the accused is found guilty of more than one offense arising out of the same criminal episode, the sentences may run concurrently or consecutively if each sentence is for a conviction of:Tex. Penal Code Ann. section 3.01 defines criminal episode:
(3) an offense:
(A) under Section 21.15 or 43.26 , regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of both sections[.]
In this chapter, "criminal episode" means the commission of two or more offenses, regardless of whether the harm is directed toward or inflicted upon more than one person or item of property, under the following circumstances:
(1) the offenses are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan; or
(2) the offenses are the repeated commission of the same or similar offenses.
Tex. Penal Code Ann. section 1.02 set forth the objectives of the Penal Code:
The general purposes of this code are to establish a system of prohibitions, penalties, and correctional measures to deal with conduct that unjustifiably and inexcusably causes or threatens harm to those individual or public interests for which state protection is appropriate. To this end, the provisions of this code are intended, and shall be construed, to achieve the following objectives:
(1) to insure the public safety through:
(B) the rehabilitation of those convicted of violations of this code[.]
In the present case Appellant pled guilty to 10 counts of possession of child pornography without a plea agreement. The Trial Court accepted Appellant's guilty plea and admitted without objection his judicial confession to all 10 counts. See, Tex. Crim. Proc. Ann. article 1.15.
After the close of evidence at the punishment phase the Trial Court found Appellant guilty of all 10 counts. Sentence was set at 10 years for counts 1 and 2. Those sentences were set to run consecutively. Sentence was set at 5 years for counts 3-10. Those sentences were ordered to run concurrently. They were ordered to run consecutively to counts 1 and 2. The total sentence was 25 years.
For the benefit of the record the Trial Court made the following remarks during the pronouncement of the 25 year sentence:
The Court having accepted your plea of guilty in Counts I through X, possession of child pornography, having heard the testimony from the witnesses and counsel, I'm tasked with deciding all manner of crimes in this court. And to quote defense counsel, there's hardly a worse crime that we have here in front of us.
There's been no evidence, other than conjecture and speculation, that this is like alcohol or drugs. I believe that putting a substance in your body and changing the chemical composition is different than the choices one makes when deciding to download something they know immediately to be illegal, wrong, aberrant, and continuing to download, and continuing to view, and continuing to review, delete, hide. To do all of those things is different than somebody who has an addiction to alcohol or drugs. And even then when we do have people who are addicted to drugs and alcohol, they commit crimes and they come before us in this court.
This is a court of law. It is not a church. And as been said many times before, we are all sinners and that is something I'm fully aware of and fully admit myself. However, the fact that the Defendant has made his peace with God and his peace with his religion, bears little resemblance as to what we should do here and now in this court of law. My job is to protect the community, to send a message, and to make sure the Defendant doesn't reoffend.
We play the images in these cases not to revictimize individuals, but to give them a voice. And that may seem odd, but this is the only place that we can do that. And if people are going to be testifying one way or the other in regards to this kind of case, they have to know what we're dealing with. It's no
different than showing crime scene photos, murder photos, to the people involved in those kinds of cases. In fact, that's the point.
In determining whether or not, Mr. Kessler, you will reoffend, I trust from everybody here that you would not. I have no way of knowing if you're a different person, however, because I didn't really hear any evidence of you being a different person. By all accounts, you had a good family and a good life prior to being caught with these images. At the same time, you admitted your guilt and gave access in these cases. That is something that worked in your favor.
However, the fact is the sheer volume is unprecedented. The amount of images, the amount of time it took, the amount of hiding you had to do from the people you claim to love the most is unprecedented. The levels that you went through, and the, lastly, the types of images that were found. The fact that you have a daughter roughly the same age as those found on those images is disturbing on many levels. The conscious indifference that you had in downloading, viewing, repeatedly, deleting, hiding the images where people were brutally victimized is disturbing, and it really is beyond my comprehension. The fact that the only way that these girls from around the world, and boys, excuse me, from around the world have any justice is in this courtroom. And, again, that's why we play those videos.
Appellant argues that in his remarks the Trial Court specifically excluded consideration of rehabilitation in violation of section 1.02 (1) (B). The Court stated "[m]y job is to protect the community, to send a message, and to make sure the Defendant doesn't reoffend." The Trial Court also discounted the common understanding that possession of child pornography can turn into an addiction, and that it is treatable. The Court said: " I believe that putting a substance in your body and changing the chemical composition is different than the choices one makes when deciding to download something they know immediately to be illegal wrong, aberrant, and continuing to download, and continuing to review, delete, and hide. To do all those things is different from somebody who has an addiction to alcohol or drugs."
The standard of review of a sentencing decision is abuse of discretion. See, Neal v. State, 05-19-00699-CR ( Tex. App. - Dallas 2020). Abuse of discretion " is a deferential standard in that the reviewing court is not to substitute its own view of the question so long as the lower court's decision or ruling is a reasonable one. A case should not be reversed simply because the reviewing court disagrees with the conclusion of the lower court, so long as that decision is within the zone of reasonable disagreement." Guzman v. State, 955 S.W. 3rd 85, 94 (Tex. Crim. App. 1997) (Myers J. dissenting). In the present case the Trial Court left the zone of reasonable disagreement by expressly excluding consideration of rehabilitation.
The cases agree that a trial objection is required to preserve this complaint for review. None was made in the present case. However, the Trial Court's remarks bring this case into an exception to this rule. In Hernandez v. State, 268 S.W. 3rd 176 (Tex. App. - Corpus Christi 2008) the Court held that a defendant has an absolute right to an impartial judge during sentencing, and that "a defendant may complain for the first time on appeal about a trial court's refusal (i.e., lack of impartiality) to consider the full range of punishment, so long as the trial judge's conduct is so egregious as to deem the judge biased on the matter of punishment." Id., at 178. In Jaenicke v. State, 109 S.W. 3rd 793 (Tex. App. - Houston [1st. Dist.] 2003) the Court stated that a court's arbitrary refusal to consider the full range of punishment constituted a denial of due process, and a court denies a defendant due process when it refuses to consider the full range of punishment or when it imposes a predetermined punishment. Id., at 796-797. In the present case the Trial Court demonstrated bias against considering rehabilitation when he departed from the record and interjected his personal opinion that there is not such thing as addiction to child pornography. Thus, Appellant's complaint is preserved for review.
During his sentencing remarks the Trial Judge acknowledged that Appellant's witnesses had convinced him Appellant would not re-offend. This a tacit acknowledgement that Appellant could be rehabilitated in that he was already sufficiently rehabilitated to not pose a risk of repeating the crime. Then the Trial Court contradicted this statement saying, "I have no way of knowing if you're a different person or not, because I really didn't hear any evidence of you being a different person."
Appellant's entire defense consisted of evidence that he was remorseful, and that he had changed. Appellant had been making steady progress in his treatment for addiction to child pornography for an entire year following his arrest and prior to trial. Appellant's mother and mother-in-law both testified in his behalf. Both women demonstrated they had first-hand knowledge of Appellant's ongoing rehabilitation efforts both through observation and through personally and repeatedly speaking with Appellant about the crime itself and his efforts to reform. In addition, there was testimony from Appellant's employer that he was an outstanding employee and could keep his job if placed on probation. There was also testimony from Appellant's treatment mentor regarding his active and consistent participation in therapy. Moreover, Appellant has no prior criminal record of any kind.
All the evidence presented in this case regarding Appellant's amenability to rehabilitation was positive. The Trial Court refused to consider this evidence and he put his reason for it on the record. The Trial Court interjected his personal opinion that the possession of child pornography cannot become a treatable addiction. This resulted in a violation of section 1.02 (1) (B) which resulted in an abuse of discretion.
POINT OF ERROR TWO
THE TRIAL COURT ABUSED ITS DISCRETION BY ORDERING
CONSECUTIVE SENTENCES IN VIOLATION OF
TEX. PENAL CODE ANN. SECTION 1.02 (1)(C)
SUMMARY OF ARGUMENT
The Trial Court tacitly refused to set a punishment solely designed to prevent recidivism. This was an abuse of discretion.
ARGUMENT
Appellant was charged with 10 counts of possession of child pornography. Count 10 reads:
In the name and by the authority of the State of Texas: The Grand Jury of Collin County, State of Texas, duly organized at the July Term, A.D., 2018 of the 380 District Court of said county, in said court at said term, do present that Robert Michael Kessler, hereinafter called defendant on or about the 13 day of February, 2018 in said county and State, did then and there intentionally and knowingly
possess visual material that visually depicted, and the defendant knew visually depicted, a child who was younger than 18 years of age at the time the image of the child was made, engaging in sexual conduct, namely actual sexual intercourse.Possession of child pornography is proscribed by Tex. Penal Code Ann. section 43.26 which reads:
(a) A person commits an offense if:
(1) the person knowingly or intentionally possesses with intent to view, visual material that visually depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct, including a child who is engaging in sexual conduct as a victim of an offense under section 20A.02 (a) (5), (6), (7), or (8) and
(2) the person knows that the material depicts the child as described by subdivision (1).
(b) In this section:
(2) "Sexual conduct" has the meaning assigned by section 43.25.
(3) "Visual material" means:
(B) any disk, diskette, or other physical medium that allows an image to be displayed on a computer or other video screen and any image transmitted to a computer or other video screen by telephone line, cable, satellite transmission, or other method.
(d) An offense under Subsection (a) is a felony of the third degree[.]Tex. Penal Code Ann. section 43.25 defines sexual conduct:
(a) In this section:Tex. Penal Code Ann. section 12.34 sets forth the punishment for third degree felonies:
(2) "Sexual conduct" means sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola.
(a) An individual adjudged guilty of a felony of the third degree shall be punished by imprisonment in the Texas Department of Criminal Justice for any term of not more than 10 years or less than 2 years.A defendant found guilty of possession of child pornography is eligible for probation pursuant to Tex. Code Crim. Proc. Ann. article 42A.053:
(a) A judge, in the best interest of justice, the public, and the defendant, after conviction or a plea of guilty or nolo contendere, may:
(1) suspend the imposition of the sentence and place the defendant on community supervision[.]
Tex. Penal Code Ann. section 3.03 sets forth the rules governing sentences for offenses arising out of the same criminal episode:
(b) If the accused is found guilty of more than one offense arising out of the same criminal episode, the sentences may run concurrently or consecutively if each sentence is for a conviction of:Tex. Penal Code Ann. section 3.01 defines criminal episode:
(3) an offense:
(A) under Section 21.15 or 43.26 , regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of both sections[.]
In this chapter, "criminal episode" means the commission of two or more offenses, regardless of whether the harm is directed toward or inflicted upon more than one person or item of property, under the following circumstances:
(1) the offenses are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan; or
(2) the offenses are the repeated commission of the same or similar offenses.
Tex. Penal Code Ann. section 1.02 set forth the objectives of the Penal Code:
The general purposes of this code are to establish a system of prohibitions, penalties, and correctional measures to deal with conduct that unjustifiably and inexcusably causes or threatens harm to those individual or public interests for which state protection is appropriate. To this end, the provisions of this code are intended, and shall be construed, to achieve the following objectives:
(1) to insure the public safety through:
(C) such punishment as may be necessary to prevent likely recurrence of criminal behavior[.]
In the present case Appellant pled guilty to 10 counts of possession of child pornography without a plea agreement. The Trial Court accepted Appellant's guilty plea and admitted without objection his judicial confession to all 10 counts. See, Tex. Crim. Proc. Ann. article 1.15.
After the close of evidence at the punishment phase the Trial Court found Appellant guilty of all 10 counts. Sentence was set at 10 years for counts 1 and 2. Those sentences was set to run consecutively. Sentence was set at 5 years for counts 3-10. Those sentences were ordered to run concurrently. They were ordered to run consecutively to counts 1 and 2. The total sentence was 25 years.
For the benefit of the record the Trial Court made the following remarks during the pronouncement of the 25 year sentence:
The Court having accepted your plea of guilty in Counts I through X, possession of child pornography, having heard the testimony from the witnesses and counsel, I'm tasked with deciding all manner of crimes in this court. And to quote defense counsel, there's hardly a worse crime that we have here in front of us.
There's been no evidence, other than conjecture and speculation, that this is like alcohol or drugs. I believe that
putting a substance in your body and changing the chemical composition is different than the choices one makes when deciding to download something they know immediately to be illegal, wrong, operant, and continuing to download, and continuing to view, and continuing to review, delete, hide. To do all of those things is different than somebody who has an addiction to alcohol or drugs. And even then when we do have people who are addicted to drugs and alcohol, they commit crimes and they come before us in this court.
This is a court of law. It is not a church. And as been said many times before, we are all sinners and that is something I'm fully aware of and fully admit myself. However, the fact that the Defendant has made his peace with God and his peace with his religion, bears little resemblance as to what we should do here and now in this court of law. My job is to protect the community, to send a message, and to make sure the Defendant doesn't reoffend.
We play the images in these cases not to revictimize individuals, but to give them a voice. And that may seem odd, but this is the only place that we can do that. And if people are going to be testifying one way or the other in regards to this kind of case, they have to know what we're dealing with. It's no different than showing crime scene photos, murder photos, to the people involved in those kinds of cases. In fact, that's the point.
In determining whether or not, Mr. Kessler, you will reoffend, I trust from everybody here that you would not. I have no way of knowing if you're a different person, however, because I didn't really hear any evidence of you being a different person. By all accounts, you had a good family and a good life prior to being caught with these images. At the same time, you admitted your guilt and gave access in these cases. That is something that worked in your favor.
However, the fact is the sheer volume is unprecedented. The amount of images, the amount of time it took, the amount of hiding you had to do from the people you claim to love the most is unprecedented. The levels that you went through, and the, lastly, the types of images that were found. The fact that you have a daughter roughly the same age as those found on those images is disturbing on many levels. The conscious indifference that you had in downloading, viewing, repeatedly, deleting, hiding the images where people were brutally victimized is disturbing, and it really is beyond my comprehension. The fact that the only way that these girls from around the world, and boys, excuse me, from around the world have any justice is in this courtroom. And, again, that's why we play those videos.
Tex. Penal Code Ann. section 1.05 sets forth the manner in which the Penal Code is to be construed:
The rule that a penal statute is to be strictly construed does not apply to this code. The provisions of this code shall be construed according to the fair import of their terms, to promote justice and effect the objectives of the code."The elementary principle of statutory construction" is to interpret a statute in accordance with the plain meaning of its language. Wagner v. State, 539 S.W. 3rd 298, 306 (Tex. Crim. App. 2018). In determining plain meaning, words and phrases must be read in context, and construed according to the rules of grammer and usage. Boykin v. State, 818 S.W. 2d 782, 785-786 (Tex. Crim. App. 1991). Every word is presumed to have been used for a purpose and each word, phrase, clause, and sentence should be given effect if reasonably possible. Arteaga v. State, 521 S.W. 3rd 329, 334 (Tex. Crim. App. 2017). If the language of the statute is plain, the reviewing court is to effectuate that plain language without resort to extra-textual sources. Cary v. State, 507 S.W. 3rd 750, 756 (Tex. Crim. App. 2016).
Deterrence and punishment are included in section 1.02 and they are to be considered to achieve the objectives of the code through:
(A) The deterrent influence of the penalties herein provided:The plain language of the statute shows that the statutory penalty ranges for the various degrees of felonies are set forth for their general deterrent effect on the public. However, subsection (C) is focused on the sentencing of an individual defendant. It plainly says a prison sentence shall only be sufficiently long to prevent the likely recurrence of criminal behavior. Thus, punishment is designed to prevent the individual from recidivism.
(C) such punishment as may be necessary to prevent the likely recurrence of criminal behavior[.]
The standard of review of a sentencing decision is abuse of discretion. See, Neal v. State, 05-19-00699-CR (Tex. App - Dallas 2020). Abuse of discretion " is a deferential standard in that the reviewing court is not to substitute its own view of the question so long as the lower court's decision or ruling is a reasonable one. A case should not be reversed simply because the reviewing court disagrees with the conclusion of the lower court, so long as that decision is within the zone of reasonable disagreement." Guzman v. State, 955 S.W. 3rd 85, 94 (Tex. Crim. App. 1997) (Myers J. dissenting).
The cases agree that a trial objection is required to preserve this complaint for review. None was made in the present case. However, the Trial Court's remarks bring this case into an exception to this rule. In Hernandez v. State, 268 S.W. 3rd 176 (Tex. App. - Corpus Christi 2008) the Court held that a defendant has an absolute right to an impartial judge during sentencing, and that "a defendant may complain for the first time on appeal about a trial court's refusal (i.e., lack of impartiality to consider the full range of punishment, so long as the trial judge's conduct is so egregious as to deem the judge biased on the matter of punishment.)" Id., at 178. In Jaenicke v. State, 109 S.W. 3rd 793 (Tex. App. - Houston [1st. Dist.] 2003) the Court stated that a court's arbitrary refusal to consider the full range of punishment constituted a denial of due process, and a court denies a defendant due process when it refuses to consider the full range of punishment or when it imposes a predetermined punishment. Id., at 796-797.
In the present case the Trial Court stated his own personal objectives for sentencing rather than those stated in section 1.02. The Court stated: "[M]y job is to protect the community, to send a message, and to make sure the defendant doesn't reoffend." This statement indicated a sufficient departure from the statutory considerations to bring this case within the exception to the general rule regarding preservation of error.
Under subsection (C) the Trial Court was authorized to impose a sentence no longer than "necessary to prevent likely recurrence of criminal behavior." The Trial Court acknowledged that he was persuaded that Appellant would not reoffend. And it is a fact that Appellant has no prior criminal record. The issue is why the 25 year cumulative sentence? The Trial Court stated that his "job is... to send a message." This is a clear indication that the 25 year sentence was imposed to send a clearly punitive message to Appellant that, as the Trial Court stated, his possession of child pornography was not merely illegal, it was also morally "wrong" and "aberrant."
The Trial Court attempted to justify the sentence stating that the "sheer volume is unprecedented." This was a reference to police testimony that there were thousands of images uncovered during the investigation. The remark that the number of images is "unprecedented" is not in the record. There was no testimony to this effect. Moreover, this was a 10 count indictment. There is plenty of "precedent" of reported cases with many more counts than 10. See, e.g. Leon v. State, 13-09-00606-CR (Tex. App. - Corpus Christi 2011) (20 counts); Mason v. State, 12-19- 00006-CR (Tex. App. - Tyler 2020) (20 counts); Baker v. State, 07-18-00366-CR (Tex. App. Amarillo 2019) (20 counts); Lopez v. State, 13-14-00753-CR (Tex. App. - Corpus Christi 2016) (33 counts); Reynolds v. State, 430 S.W. 3rd 467 (Tex. App. - San Antonio 2014) (80 counts); Lancaster v. State, 319 S.W. 3rd 168 (Tex. App. - Waco 2010 (100 counts); Theole v. State, 10-12-00175-CR (Tex. App. - Waco 2012) (50 counts).
Finally, rather than setting the number of total years in prison to prevent a recurrence of the crime the Trial Court made it clear the length of the sentence was to vindicate the rights of the children depicted by punishing Appellant for punishment's sake- that is, retribution. The Court stated:
We play the images in these cases not to revictimize individuals, but to give them a voice. And that may seem odd, but this is the only place that we can do that.Because the Trial Court tacitly departed from the statutory objective of section 1.02 (1) (C) the 25 year total sentence falls outside the zone of reasonable disagreement and constitutes an abuse of discretion.
The fact that the only way that these girls from around the world have any justice is in this courtroom.
POINT OF ERROR NUMBER THREE
THE TRIAL COURT LACKED JURISDICTION TO HEAR THE
INSTANT CASE AND RENDER A JUDGMENT BECAUSE THE
CASE WAS NOT TRANSFERRED TO ITS DOCKET
SUMMARY OF ARGUMENT
The 366th District Court had no jurisdiction over this case. Its judgment is void.
ARGUMENT
The Texas Constitution provides that a court is vested with jurisdiction over a criminal case by the presentment of an indictment or information. Tex. Const. Art. V. section 12 (b). An indictment is presented when it has been duly acted on by the grand jury and received by the Trial Court. Tex. Code Crim. Proc. Ann. article 12.06. Statutory provisions also codify the necessary result, implied by article V section 12 above that the Trial Court lacks jurisdiction in the absence of proper presentment. Tex. Code Crim. Proc. Ann. article 32.01 (requiring an indictment to be dismissed if not presented to the Trial Court by date certain). Once the indictment is presented jurisdiction is exclusive in the receiving Court unless it is transferred to another Court. Tex. Code Crim. Proc. Ann. article 4.16.
The only mechanism for transferring the power to try a felony is by an order of transfer combined with an order of receiving. Combined, these constitute a written agreement between the two courts involved. The transferring Court issues an order formally transferring jurisdiction over the case. The second Court accepts the case by issuing a formal order receiving. See, Tex. Govt. Code Ann. section 24.003.
The instant case was presented to 380th District Court of Collin County, Texas. Jurisdiction was thus vested in that Court. However, there is nothing in the record showing that jurisdiction was ever transferred by the 380th District Court to the 366th District Court. Therefore it appears that the 380th District Court "retains" jurisdiction, just as article 4.16 states. Appellant contends that the 366th District Court never acquired jurisdiction in this matter.
Lack of jurisdiction over a case renders a Trial Court's judgment void. Ex parte Seidel, 39 S.W. 3rd 221 (Tex. Crim. App. 2001); Hoang v. State, 872 S.W. 2d 694 (Tex. Crim. App. 1993). A defect which renders a sentence void may be raised for the first time of appeal. Heath v. State, 817 S.W. 2d 335 (Tex. Crim. App. 1991).
The right to be tried in a court that has properly acquired jurisdiction over a case is absolute. See, Marin v. State, 851 S.W. 2d 275 (Tex. Crim. App. 1993). Such a right to cannot be waived or forfeited, even with consent. Id. Implementation is not optional, it is always required. Id. at 279. Error in this regard is not subject to further analysis. Thus, a defendant may complain about this violation of an absolute right on appeal without having raised the question in the Trial Court. Id. at 280.
Appellant now complains that the 366th District Court never acquired jurisdiction over the instant case, but he acknowledges that authority is against his position. See, e.g., Mills v. State, 742 S.W. 2d 832, 835 (Tex. App. - Dallas 1987); Garcia v. State, 901 S.W. 2d 731,732-733 (Tex. App. - Houston [14th. Dist.]1995). These cases all hold that the present issue must be raised by the trial counsel or it is waived. However, they simply cite to their antecedents without any Constitutional or statutory authority for the proposition that a jurisdictional defect can be cured by procedural default.
PRAYER
WHEREFORE Premises Considered, Appellant prays that this Honorable Court reverse and remand or reform the judgement to delete the cumulation order. Respectfully submitted:
/s/ Allan Fishburn
Allan Fishburn
State Bar Number: 07049110
1910 Pacific Avenue
Suite 18800
Dallas, Texas 75201
Telephone (214) 761-9170
allanfishburn@yahoo.com
CERTIFICATE OF COMPLIANCE
I hereby certify the foregoing document contains 13,002 words. /s/ Allan Fishburn
Allan Fishburn
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Brief was e-served to the Collin County District Attorney's office at da@collincountytx.gov on this the 13th day of October, 2020. /s/ Allan Fishburn
Allan Fishburn
Automated Certificate of eService
This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Debbie Brock on behalf of Allan Fishburn
Bar No. 07049110
lawoffice1910@yahoo.com
Envelope ID: 47127286
Status as of 10/13/2020 9:29 AM CST Case Contacts
| Name | BarNumber | | TimestampSubmitted | Status |
|---|---|---|---|---|
| Collin County | da@collincountytx.gov | 10/13/2020 9:24:48 AM | SENT |