Opinion
NO. 14-18-00905-CR NO. 14-18-00906-CR NO. 14-18-00907-CR NO. 14-18-00908-CR NO. 14-18-00909-CR NO. 14-18-00910-CR NO. 14-18-00911-CR
08-06-2020
ISAEL LEYVA LEMUS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court Harris County, Texas
Trial Court Cause Nos. 1570005 , 1570006, 1570011, 1570012, 1570013, 1570014, and 1570015
MEMORANDUM OPINION
Appellant Isael Leyva Lemus pleaded guilty to seven counts of possession of child pornography. He raises three issues on appeal. First, appellant contends that Article 1, Section 10 of the Texas constitution mandates a jury trial in every criminal case and cannot be waived by a defendant under any circumstance. Second, appellant argues that there is a material variance between one of the indictments and appellant's judicial confession, which renders the evidence legally insufficient. Third, appellant argues that this court should modify six of the judgments as to court costs because the costs are duplicative. We modify the judgments in cause numbers 1570006, 1570011, 1570012, 1570013, 1570014, and 1570015 and affirm those judgments as modified. We affirm the judgment in cause number 1570005.
Issues one and three relate to all seven counts. Issue two relates only to one count in case No. 14-18-00911-CR.
I. WAIVER OF JURY TRIAL
Appellant contends that the language of Article I, Section 10 of the Texas constitution "categorically requires there to be a jury trial in every criminal prosecution." He argues that this language makes a jury trial an absolute requirement that cannot be waived or forfeited. Appellant pleaded guilty to all seven counts of possession of child pornography and, as a result, no jury trial was conducted. Appellant argues that because no jury trial was conducted in contravention of constitutional mandate, the convictions must be reversed.
Appellant concedes that in all seven cases he properly waived his right to a jury trial under Article 1.13 of the Code of Criminal Procedure, Article I, Section 15 of the Texas constitution, and the Sixth Amendment of the United States Constitution.
A. Applicable Law
"In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury." Tex. Const. art. I, §10. The Texas constitution goes on to discuss jury trials in criminal cases in Section 15: "The right of trial by jury shall remain inviolate. The legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency." Tex. Const. art. I, § 15. Under the Sixth Amendment to the United States Constitution, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . ." U.S. Const. amend. VI.
"[T]here is no significant textual difference between the two constitutional provisions which would indicate that different standards of protection should be applied." Jones v. State, 982 S.W.2d 386, 391 (Tex. Crim. App. 1998); see also Jacobs v. State, 560 S.W.3d 205, 210 (Tex. Crim. App. 2018). "Since 1931 we have not held, however, despite mandatory language in [Article I, Section 10], that an impartial jury is an inflexible constitutional imperative which cannot be procedurally defaulted or consciously waived." Delrio v. State, 840 S.W.2d 443, 445 (Tex. Crim. App. 1992) (citing McMillan v. State, 122 Tex. Crim. 583 (1933)). "While expressed in mandatory terms as an indispensable feature of the system, the Court held this provision conferred a right to the accused which could not be impaired without his consent, as authorized by the Legislature." Id. at 445 n.2.
B. Analysis
Appellant concedes that the Court of Criminal Appeals "actually addressed the constitutionality of the statute allowing for waiver of jury trial in connection with Article I, Section 10" but contends that because it did not make an independent analysis of the provision and merely "purported to follow the precedential cases of McMillan and Moore" that this court may disregard the precedent. See Dabney v. State, 124 Tex. Crim. 21 (1933); see also McMillan, 122 Tex. Crim. 583; Moore v. State, 22 Tex. Ct. App. 117, 2 S.W. 634 (1886).
In Dabney v. State, the defendant pleaded guilty and appealed, arguing the Texas constitution mandates a jury trial in every criminal prosecution. 124 Tex. Crim. at 22. The court held that the statute providing for waiver of trial by jury in misdemeanor cases was not in conflict with the Texas constitution. Id. On rehearing, the defendant argued that the holding was flawed because it only considered Article I, Section 15 and not Article I, Section 10 of the Texas constitution. Id. The defendant argued that Section 10 is an "absolute requirement of trial by jury in all criminal prosecutions." Id. The Court concluded that "Section 10 and 15 must be considered together as was done in [Moore]. . . . We regard the opinion in [Moore] as direct authority supporting our conclusion in McMillan." Id. The court overruled the defendant's motion for rehearing, concluding that neither McMillan nor Moore were in "accord with [the defendant's] contention." Id.
Appellant argues that the court in Moore v. State, while acknowledging that it was considering the constitutionality of the statute at issue in connection with both Article I, Sections 10 and 15, "considered only constitutional provisions . . . that spoke of the 'right' to a jury trial. The Court said nothing about the unique, absolute-requirement language of Article I, Section 10." See Moore, 22 Tex. Ct. App. 117, 2 S.W. 634. However, the Moore court was clearly aware of both constitutional provisions at issue, citing to both provisions at the outset of its analysis. The court went on to hold that "[w]e are of opinion that our statute, . . . allowing a waiver of a jury trial in misdemeanors, is not in conflict with our constitution ." Id. at 120, 2 S.W. at 636 (emphasis added). The Moore court did not state that its holding was limited to application or analysis of Article I, Section 15 of the Texas constitution. See id.; see also Dabney, 124 Tex. Crim. at 22.
"As an intermediate appellate court, we lack the authority to overrule an opinion of the Court of Criminal Appeals." Merrit v. State, 529 S.W.3d 549, 554 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd); Mason v. State, 416 S.W.3d 720, 728 n.10 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd) ("When the Court of Criminal Appeals has deliberately and unequivocally interpreted the law in a criminal matter, we must adhere to its interpretation under the dictates of vertical stare decisis."). Dabney expressly considered the very issue which appellant puts to this court. See Dabney, 124 Tex. Crim. at 22. We are bound by such authority as well. See Merrit, 529 S.W.3d at 554; Mason, 416 S.W.3d at 728 n.10.
Because the Court of Criminal Appeals has already considered this argument and decided against appellant, we overrule appellant's first issue.
II. VARIANCE AND LEGAL SUFFICIENCY
Appellant contends that under the circumstances of this case, and despite a guilty plea, there is insufficient evidence to support one of his seven convictions. Appellant argues that because of a material variance between the indictment and his judicial confession, he should be acquitted.
A. Applicable Law
A "variance" is when "there is a discrepancy between the allegations in the charging instrument and the proof at trial." Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001). "In a variance situation, the State has proven the defendant guilty of a crime, but has proven its commission in a manner that varies from the allegations in the charging instrument." Id. Recently, the Court of Criminal Appeals outlined three general types of variances:
1. a statutory allegation that defines the offense; not subject to materiality analysis, or, if it is, is always material; the hypothetically correct jury charge will always include the statutory allegations in the indictment;Ramjattansingh v. State, 548 S.W.3d 540, 547 (Tex. Crim. App. 2018) (footnotes omitted). Variances are "tolerated as long as they are not so great that the proof at trial shows an entirely different offense than what was alleged in the charging instrument." Id. (quotation omitted). Generally we ask two questions when determining whether a defendant's substantial rights have been prejudiced: (1) whether the indictment, as written, informed the defendant of the charge against him sufficiently to allow him to prepare an adequate defense at trial; and (2) whether prosecution under the deficiently drafted indictment would subject the defendant to the risk of being prosecuted later for the same crime. Gollihar, 46 S.W.3d at 246.
2. a non-statutory allegation that is descriptive of an element of the offense that defines or helps define the allowable unit of prosecution; sometimes material; the hypothetically correct jury charge will sometimes include the non-statutory allegations in the indictment and sometimes not;
3. a non-statutory allegation that has nothing to do with the allowable unit of prosecution; never material; the hypothetically correct jury charge will never include the non-statutory allegations in the indictment.
A person commits the offense of possession of child pornography if:
(1) the person knowingly or intentionally possesses, or knowingly or intentionally accesses 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 engages in sexual conduct as a victim of an offense under Section 20A.02(a)(5), (6), (7), or (8); andTex. Pen. Code § 43.26(a). The statute further defines "visual material" as:
(2) the person knows that the material depicts the child as described by Subdivision (1).
(A) any film, photograph, videotape, negative, or slide or any photographic reproduction that contains or incorporates in any manner any film, photograph, videotape, negative, or slide; orTex. Pen. Code § 43.26.
(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.
We review evidence sufficiency in a non-capital felony guilty plea under Article 1.15 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. art. 1.15. A judicial confession or stipulation of evidence is sufficient to sustain a conviction based on a guilty plea and satisfies Article 1.15 as long as it embraces every essential element of the charged offense. Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009); Stewart v. State, 12 S.W.3d 146, 148 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (citing Dinnery v. State, 592 S.W.2d 343, 353 (Tex.Crim.App.1979)).
B. Background
The challenged indictment charged appellant with possession of child pornography and alleged that appellant "on or about October 25, 2017, did then and there unlawfully, intentionally and knowingly possess visual material, namely, a digital image or video more particularly described as 39.avi that visually depicts a child younger than eighteen years of age at the time that the image was made, who was engaging in sexual conduct, namely, a female child engaged in lewd exhibition of genitals"
The original indictment described the digital image or video as "Pinkk2795_01492.avi" but, upon a motion to amend the indictment filed by the State, was crossed out and "39.avi" was handwritten in its place. The complaint described ten files containing "child pornography," none of which have the filename as originally alleged in the indictment. The eighth listed filename is "pinkk2795_01439.avi."
Appellant signed a waiver of constitutional rights, agreement to stipulate, and judicial confession in which appellant stated that "on or about October 25, 2017, [he] did then and there unlawfully and knowingly possess visual material, namely a digital image or video more particularly described as Pinkk2795_01439.avi, that visually depicts a child younger than eighteen years of age at the time that the image was made, who was engaging in sexual conduct, namely, a female child engaged in lewd exhibition of genitals." In the judicial confession, appellant acknowledged that he understood the charges, confessed that they were true, and that such acts were committed on or about October 25, 2017.
The judicial confession was also lineated to change the original typed "Pinkk2795_01492.avi" to remove the "92" with "39.avi" with the notation that the change was an "oral trial amendment."
Appellant appeared with counsel before the trial court to enter his plea to the indictments. At the plea hearing prior to accepting appellant's judicial confession, the trial court indicated that the State had moved to amend the indictment and the trial court had granted the motion. Appellant's trial counsel indicated that appellant was aware of the amendment and lodged no objection. The trial court then directly addressed appellant, stating "you have been charged with the third-degree felony offense of possession of child pornography. . . . to the charges alleged in the indictments as amended, how do you plead, guilty or not guilty?" Appellant responded that "those are guilty, your Honor." Appellant further clarified that he was pleading guilty because he was guilty and for no other reason. Appellant confirmed to the trial court that he waived his rights and judicially confessed without a recommendation from the State on punishment.
C. Analysis
Appellant contends that the indictment, as written, failed to inform him of the charge against him sufficiently to allow him to prepare an adequate defense at trial and that prosecution under the deficiently drafted indictment would subject appellant to the risk of being prosecuted later for the same crime. We disagree with appellant.
Appellant contends that the judicial confession admits guilt to possessing visual material, namely a digital image or video more particularly described as "Pink2795_01439.avi" while the indictment only alleges the description as "39.avi." The existence of "visual material" is a substantive element of the offense of possession of child pornography, but not the specific file name of that visual material on a defendant's computer or electronic device. See Tex. Pen. Code § 43.26; Gollihar, 46 S.W.3d at 254 ("hypothetically correct jury charge" encompasses the statutory elements of the offense as modified by the charging instrument); Fuller v. State, 73 S.W.3d 250, 254 (Tex. Crim. App. 2002) ("In this case, the prosecution's failure to prove the victim's name exactly as alleged in the indictment does not make the evidence insufficient . . . . The victim's name is not a statutory element of the offense."); Byrd v. State, 336 S.W.3d 242, 251 (Tex. Crim. App. 2011); see also Witt v. State, 237 S.W.3d 394, 397 (Tex. App.—Waco 2007, pet. ref'd) ("[R]ational trier of fact court have found beyond a reasonable doubt that [defendant] possessed eleven items of child pornography as alleged [in indictment], regardless of whether the photographs in evidence were made to correspond in some fashion to the counts in the indictment."). However, because each item of "visual material" possessed by a defendant under section 43.26 is an allowable unit of prosecution, the variance in this case falls into category two—sometimes material. See Ramjattansingh, 548 S.W.3d at 547; see also Vineyard v. State, 958 S.W.2d 834, 838 (Tex. Crim. App. 1998) (each item of child pornography is an allowable unit of prosecution).
Because the variance in this type of case is sometimes material, we must assess whether the indictment, as written, informed the defendant of the charge against him sufficiently to allow him to prepare an adequate defense at trial. See Gollihar, 46 S.W.3d at 246. Appellant cannot point to any part of the record to support his contention on appeal that he was unable to prepare an adequate defense. There is no indication in the record that appellant did not possess the file, that he did not possess child pornography, or that he was confused about the particular file for which the State sought prosecution. See id. at 258 ("Appellant did not attempt to raise a defense that he did not take the cart alleged or that the State had misidentified the allegedly stolen property."). The fact that appellant acknowledged the amendment to the indictment, as well as acknowledged and judicially confessed his guilt to the amended indictment defeats his claim that he was surprised or unable to present his defense in this case. See Byrd, 336 S.W.3d at 255 (defendant's position was not that she stole the item from a different person or store, "[t]hus, the notice prong of Gollihar's 'immaterial variance' doctrine" was not at issue); Fuller, 73 S.W.3d at 254 ("There is no indication in the record that appellant did not know whom he was accused of injuring or that he was surprised by the proof at trial."); see also Menefee, 287 S.W.3d at 13 (judicial confession sufficient to sustain conviction as long as it embraces every essential element of the charged offense).
During the sentencing hearing, the State's witnesses testified that they had located more than 700 files depicting child pornography on appellant's computer and external hard drive. Appellant did not object to this evidence and did not question whether these files actually depicted child pornography. Appellant only questioned whether he had intentionally re-shared these files with other individuals on a peer-to-peer file sharing network.
Appellant argues that under Gollihar's second prong there is a risk that he could be prosecuted again for the very same visual material because no one would know whether the subsequent prosecution was based on the same video that formed the basis of the prosecution in this case. While the indictment itself stated "39.avi," appellant's judicial confession admitted to a specific file name containing child pornography. It is clear from the record that appellant admitted and judicially confessed to all of the substantive elements of the crime for which he judicially confessed and alleged the specific filename for the visual material which he admitted to possessing, thus barring any later possible attempt to hold appellant liable for the same visual material. See Gollihar, at 258 (needless allegation of the model number of the stolen property will not subject defendant to risk of being prosecuted later for the same crime) (citing United States v. Apodaca, 843 F.2d 421, 430 n.3 (10th Cir.) (entire record, not just indictment, may be referred to in protecting against double jeopardy in event of subsequent prosecution)). There is also no argument that "39.avi" is a different file than the one appellant admitted to possessing. See Byrd, 336 S.W.3d at 258 ("We agree . . . that '[t]he word variance ought to be used to describe instances in which there is a minor discrepancy between the facts alleged and those proved, such as a difference in spelling, in numerical digits, or some other minor way.' But when the discrepancy between the facts alleged and the proof at a theft trial is that of an entirely different person or entirely different property, that discrepancy is not merely a variance, it is a failure of proof." (quoting Bailey v. State, 87 S.W.3d 122, 131 (Tex. Crim. App. 2002) (Keasler, J., dissenting))).
Appellant does not contend that the file name in his judicial confession as amended is inaccurate.
We overrule appellant's second issue.
III. COURT COSTS UNDER ARTICLE 102.073
In his third issue, appellant contends that the trial court assessed costs in all seven convictions when it should have only assessed costs in one conviction under Article 102.073 of the Code of Criminal Procedure. Appellant does not "complain about the assessment of any costs in Cause Number 157005." The State concedes that the trial court should have only assessed costs in one conviction and that the costs assessed in the other six convictions "are duplicative" of those assessed in Cause Number 157005. Thus, the State does not object to the judgments in the other six causes being modified to delete the duplicative costs.
Article 102.073 of the Code of Criminal Procedure provides that:
(a) In a single criminal action in which a defendant is convicted of two or more offenses or of multiple counts of the same offense, the court may assess each court cost or fee only once against the defendant.Tex. Code Crim. Proc. art. 102.073. It is undisputed that appellant was convicted of seven offenses arising from a "single criminal action."
(b) In a criminal action described by Subsection (a), each court cost or fee the amount of which is determined according to the category of offense must be assessed using the highest category of offense that is possible based on the defendant's convictions.
In each of appellant's cases, the trial court assessed identical charges against appellant with the exception of one item. In cause number 1570005 an additional $60 was assessed for "summoning witness/mileage" that was not charged in the other cases. The bill of costs reflect that the following fees were assessed in all seven of the cases:
• Serving Capias $50.00
• Commitments $5.00
• Release $5.00
• District Clerk's Fee $40.00
• Security Fee $5.00
• Consolidated Court Cost $133.00
• DNA Testing Fee $250.00
• Jury Reimbursement Fee $4.00
• DC Records Preservation $25.00
• Child Abuse Prevention $100.00
• Support of Indg Defense $2.00
• Support of Judiciary Fee08 $6.00
• Court Technology Fee $4.00
• Electronic Filing State $5.00
Under Article 102.073, the costs assessed against appellant should have been assessed once. See id.; Guerra v. State, 547 S.W.3d 445, 446-47 (Tex. App.—Houston [14th Dist.] 2018, no pet.); Williams v. State, 495 S.W.3d 583, 590 (Tex. App.—Houston [1st Dist.] 2016, pet. dism'd) ("Consistent with article 102.073, where a defendant is convicted of two or more offenses or of multiple counts of the same offense in a single criminal action, and the convictions are the same category of offense and the costs are all the same, we hold that the court costs should be based on the lowest cause number."). Thus, we modify the judgments in cause numbers 1570006, 1570011, 1570012, 1570013, 1570014, and 1570015 to delete the costs assessed therein. See Tex. R. App. P. 43.2(b); Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013). We affirm the costs assessed in cause number 1570005.
We sustain appellant's third issue.
IV. CONCLUSION
We modify the trial court's judgments in cause numbers 1570006, 1570011, 1570012, 1570013, 1570014, and 1570015 to delete the costs assessed as outlined in Section III of this opinion and affirm the judgments as modified. We affirm the trial court's judgment in cause number 1570005.
/s/ Ken Wise
Justice Panel consists of Justices Wise, Jewell, and Poissant. Do Not Publish — TEX. R. APP. P. 47.2(b).