Jeffrey Dean Gerron v. State , 524 S.W.3d 308 ( 2016 )

IN THE
TENTH COURT OF APPEALS
No. 10-14-00121-CR
JEFFREY DEAN GERRON,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 40th District Court
Ellis County, Texas
Trial Court No. 36,660CR
OPINION
Jeffrey Dean Gerron was convicted on nine of ten counts of possession of child
pornography, and he was sentenced to consecutive terms of nine years in prison on each
count. Act of May 27, 1985, 69th Leg., R.S., ch. 530, § 2, 1985 Tex. Gen. Laws 2133, 2134,
amended by Act of May 29, 1999, 76th Leg., R.S., ch. 1415, § 22(c), 1999 Tex. Gen. Laws
4831, 4841 (current version at TEX. PENAL CODE ANN. § 43.26 (West Supp. 2016)).
In ten issues, Gerron complains that (1) the evidence was insufficient for the jury
to have found beyond a reasonable doubt that the images in six of the photographs were
that of females under the age of 18; (2) subsection 43.25(a)(2) of the Penal Code is facially
unconstitutional; (3) the trial court abused its discretion by admitting hearsay testimony
of a law-enforcement officer from Norway; (4) the admission of the Norwegian law-
enforcement officer’s testimony violated the Confrontation Clause; (5) the trial court
abused its discretion in admitting 491 photographs as extraneous-offense evidence; (6)
the trial court abused its discretion in allowing testimony regarding approximately 11,000
images that were found on Gerron’s computer; (7) the trial court abused its discretion by
admitting a 64-page list of files that had been downloaded onto Gerron’s computer; (8)
the trial court abused its discretion by excluding several books that Gerron had offered
into evidence; (9) the trial court erred by ordering that Gerron’s sentences be served
consecutively; and (10) the trial court abused its discretion by admitting an anime
drawing during the punishment phase.
We will affirm.
CONSTITUTIONALITY OF PENAL CODE SUBSECTION 43.25(a)(2)
We begin with Gerron’s second issue, which asserts that the trial court erred by
denying Gerron’s motion to quash the indictment, which asserted that the term “lewd
exhibition” of a child’s genitals in subsection 43.25(a)(2) of the Penal Code is vague,
rendering the statute facially unconstitutional. Section 43.26(b)(2) provides that “sexual
conduct” “has the meaning assigned by Section 43.25.” TEX. PENAL CODE ANN. §
43.26(b)(2). Subsection 43.25(a)(2) of the Penal Code provides:
“Sexual conduct” means sexual contact, actual or simulated sexual
intercourse, deviate sexual intercourse, sexual bestiality, masturbation,
Gerron v. State Page 2
sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any
portion of the female breast below the top of the areola.
TEX. PENAL CODE ANN. § 43.25(a)(2) (West 2011) (emphasis added). Gerron contends that
the portion of the statute’s subsection regarding “lewd exhibition” is facially
unconstitutional because, by not defining “lewd exhibition,” it fails to provide adequate
notice of what conduct is prohibited. Gerron also argues that the statute is void for
vagueness because it fails to define the criminal offense with sufficient definiteness that
ordinary people can understand what conduct is prohibited and in a manner that does
not permit arbitrary and discriminatory enforcement.
To prevail on a facial challenge to a statute, a party must establish that the statute
always operates unconstitutionally in all possible circumstances. State v. Rousseau, 396
S.W.3d 550, 557 (Tex. Crim. App. 2013). A facial challenge to a statute is the most difficult
challenge to mount successfully because the challenger must establish that no set of
circumstances exists under which the statute will be valid. Santikos v. State, 836 S.W.2d
631, 633 (Tex. Crim. App. 1992). Whether a statute is facially unconstitutional is a
question of law that we review de novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App.
2013). When the constitutionality of a statute is attacked, we begin with the presumption
that the statute is valid and that the legislature has not acted unreasonably or arbitrarily.
Id. at 14-15. The burden normally rests upon the person challenging the statute to
establish its unconstitutionality. Id. at 15. In the absence of contrary evidence, we will
presume the legislature acted in a constitutionally sound fashion. Rodriguez v. State, 93
S.W.3d 60, 69 (Tex. Crim. App. 2002).
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“A statute is void for vagueness if it fails to define the criminal offense with
sufficient definiteness that ordinary people can understand what conduct is prohibited
and in a manner that does not permit arbitrary and discriminatory enforcement.”
Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007). Because a party must show
that the law is impermissibly vague in all of its applications, “a plaintiff who engages in
some conduct that is clearly proscribed cannot complain of the vagueness of the law as
applied to the conduct of others. A court should therefore examine the complainant’s
conduct before analyzing other hypothetical applications of the law.” Village of Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S. Ct. 1186, 1191, 71 L. Ed. 2d
362 (1982).
Gerron does not argue that the statute is vague as to his conduct by challenging
the sufficiency of the evidence as it relates to the lewdness of the images that he was
convicted of possessing. Therefore, Gerron has not met his burden of establishing that
the term “lewd exhibition” is unconstitutional in all of its applications.
Additionally, a statute is not unconstitutionally vague merely because it fails to
define words or phrases. Engelking v. State, 750 S.W.2d 213, 215 (Tex. Crim. App. 1988).
Instead, undefined terms in a statute are to be given their plain and ordinary meaning.
Watson v. State, 369 S.W.3d 865, 870 (Tex. Crim. App. 2012). Words defined in dictionaries
and with meanings so well known as to be understood by a person of ordinary
intelligence are not considered vague and indefinite. Id.; see TEX. GOV’T CODE ANN. §
311.011(a) (West 2013) (providing that statutory “[w]ords and phrases shall be read in
context and construed according to the rules of grammar and common usage”). The term
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“lewd exhibition,” as used in the statute, is defined in dictionaries and is so well known
as to be understood by a person of ordinary intelligence. See Watson, 369 S.W.3d at 870;
see also Goodson v. State, No. 02-01-458-CR, 2003 WL 1894578, at *3 (Tex. App.—Fort Worth
Apr. 17, 2003, pet. ref’d) (mem. op., not designated for publication) (“lewd exhibition”
not unconstitutionally vague); Garay v. State, 954 S.W.2d 59, 63 (Tex. App.—San Antonio
1997, pet. ref’d) (same). Accordingly, the statute is not void for vagueness. We overrule
issue two.
SUFFICIENCY OF THE EVIDENCE
In his first issue, Gerron complains that the evidence was insufficient for the jury
to have found beyond a reasonable doubt that the females depicted in counts 1, 2, 5, 6, 8,
and 10 were under the age of 18. Because Gerron was found not guilty of count one, we
will not address that image.
The Court of Criminal Appeals has expressed our standard of review of a
sufficiency issue as follows:
In determining whether the evidence is legally sufficient to support a
conviction, a reviewing court must consider all of the evidence in the light
most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could
have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
13 (Tex. Crim. App. 2007). This “familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the testimony,
to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts.” Jackson, 443 U.S. at 319. “Each fact need not point directly
and independently to the guilt of the appellant, as long as the cumulative
force of all the incriminating circumstances is sufficient to support the
conviction.” Hooper, 214 S.W.3d at 13.
Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).
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If the record supports conflicting inferences, we must presume that the factfinder
resolved the conflicts in favor of the prosecution and therefore defer to that
determination. Jackson, 443 U.S. at 326. Further, direct and circumstantial evidence are
treated equally: “Circumstantial evidence is as probative as direct evidence in
establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to
establish guilt.” Hooper, 214 S.W.3d at 13. Finally, it is well established that the factfinder
is entitled to judge the credibility of witnesses and can choose to believe all, some, or none
of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex.
Crim. App. 1991).
Our review of “all of the evidence” includes evidence that was both properly and
improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001).
Dr. Jayme Coffman, the State’s expert in child anatomy, testified that she could not
make a determination that the females portrayed in counts (and exhibits) 5, 6, 8, and 10
were under the age of 18.1 Because of this testimony, Gerron contends that if an expert
could not determine the age of the females in those photographs, a jury could not
determine beyond a reasonable doubt that the females were under the age of 18 when the
photographs were taken.
Dr. Coffman was the medical director of the Care Team, which is a child-abuse
program at Cook Children’s Medical Center in Fort Worth. Dr. Coffman testified as a
1Given Gerron’s reason for appealing the age issue for exhibits 5, 6, 8, and 10—Dr. Coffman’s inability to
determine if the pictured females were under the age of 18—we are puzzled by Gerron’s sufficiency
challenge to count 2 because Dr. Coffman testified about it as follows: “This one I thought was under the
age of 18.” We will nevertheless address exhibit 2, the image for count 2.
Gerron v. State Page 6
medical expert in identifying the age range of a female child using, as a guide, the four
levels of puberty pertaining to breast and genitalia development: pre-puberty (or no
signs of puberty); early puberty; late puberty; and adult body style. Of the ten
photographs that Gerron was on trial for, Dr. Coffman testified that, in her opinion, the
girls depicted in exhibits 2, 3, 4, 7, and 9 were under the age of 18. Dr. Coffman testified
that she could not make a determination from the images whether the girls in exhibits 1,
5, 6, 8, or 10 were under the age of 18,2 but she did not testify that she believed that the
girls depicted in any of the images were over the age of 18.
Determination of the age of a child in a possession of child pornography case is a
fact issue for the factfinder to decide. Carter v. State, No. 05-05-01424-CR, 2006 WL
3628889, at *5-6 (Tex. App.—Dallas Dec. 14, 2006, pet ref’d) (mem. op., not designated for
publication); TEX. PENAL CODE ANN. § 43.25(g). The factfinder may make this
determination by any of several methods: (1) personal inspection of the child; (2)
inspection of the photograph or motion picture that shows the child engaging in the
sexual performance; (3) oral testimony by a witness to the sexual performance as to the
age of the child based on the child’s appearance at the time; (4) expert medical testimony
based on the appearance of the child engaging in the sexual performance; or (5) any other
method authorized by law or by the rules of evidence at common law. TEX. PENAL CODE
ANN. § 43.25(g). The factfinder may also use common sense and apply common
2 Because Gerron was found not guilty of possessing the image in Count 1, Gerron’s inclusion of it in this
issue is also puzzling, and we will not address it. We note, however, that Dr. Coffman explained that she
could not make a medical determination on the age range for the female in exhibit 1 because “the image is
very pixelated so it’s kind of blurred, so it makes it difficult. So when I’m trying to look at the breast
contour to see if there is breast tissue, due to the shadows and the pixelation, for me it was difficult to say.”
Gerron v. State Page 7
knowledge, observation, and experience gained in the ordinary affairs of life when giving
effect to the inferences that may reasonably be drawn from the evidence. See Carter, 2006
WL 3628889, at *5 (citing Griffith v. State, 976 S.W.2d 686, 690 (Tex. App.—Tyler 1997, pet.
ref’d)).
Expert testimony is not required to determine a child’s age in a child-pornography
possession case. See TEX. PENAL CODE ANN. § 43.25(g). The purpose of expert testimony
is to assist the jury, and an expert’s opinion is not determinative of an ultimate fact
question. See TEX. R. EVID. 702. The jury is free to accept or reject some or all of the
testimony of an expert witness. See Carter, 2006 WL 3628889, at *5 (citing McGalliard v.
Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986) (judgments and inferences of experts not
conclusive on jury or trier of fact); and SAS & Assocs., Inc. v. Home Mktg. Serv’g, Inc., 168
S.W.3d 296, 300 (Tex. App.—Dallas 2005, pet. denied)).
Additionally, Bjorn Ludvigsen, a law-enforcement officer with the National
Criminal Police of Norway, testified that he was involved in an investigation of two girls
from Norway named Maria and Ellen. Ludvigsen testified that Maria and Ellen were the
girls depicted in exhibits 5, 8, 9, and 10 and that their ages were 10 and 11 when the
photographs were taken in Norway.3 Ludvigsen had seen those images numerous times
in his investigations of child exploitation and said that exhibits 5 and 10 were
photographs of Ellen and exhibits 8 and 9 were photographs of Maria. The computer-
forensic expert testified that the images in exhibits 5, 8, and 10 were entitled
3 We discuss Ludvigsen’s testimony in greater detail in issue three.
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“HotArtChildModels.”
Except for exhibit 8, all of the photographs show the subject female’s face and most
of her body; exhibit 8 is a close-up photograph of a female’s anus and vagina from a
posterior view. Regarding exhibit 8, Dr. Coffman said that she could not make an age-
range determination because the labia majora was closed. As mentioned above, Dr.
Coffman testified that the girl depicted in exhibit 9 (Maria, according to Ludvigsen) was
under the age of 18, and Ludvigsen said that exhibit 8 is also a photograph of Maria.
The trial court admitted, over Gerron’s objections, extraneous-offense evidence
offered by the State to prove that Gerron knew that, for the ten images for which he was
indicted, those images depicted females under the age of 18. The extraneous-offense
evidence consisted of: (1) 491 photographs that were images of girls under the age of 18
in sexually provocative poses and were a mixture of child pornography and “erotica”
(clothed children who are provocatively posed); (2) testimony that approximately 11,000
images found on Gerron’s computer were of children; and (3) a 64-page log of files that
Gerron purportedly downloaded and that contained many downloads with titles that
specifically referred to young girls and sexual conduct.4
Here, the jury, as the factfinder, reviewed the images and other evidence and
determined that the girls depicted in exhibits 2 through 10 were under the age of 18 at
the time that the images were made. Viewing the evidence in the light most favorable to
the judgment, we conclude that the evidence is sufficient to support the jury’s guilty
4 We discuss this extraneous-offense evidence in greater detail in issues five, six, and seven.
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findings. We overrule issue one.
ADMISSION OF EXTRANEOUS-OFFENSE EVIDENCE
We now move to issues five through seven. In issue five, Gerron complains that
the trial court abused its discretion by admitting 491 images that were found on his
computer because they were not admissible under Rules of Evidence 403 and 404(b). In
issue six, Gerron complains that the trial court abused its discretion by allowing
testimony that approximately 11,000 images depicting children and child pornography
were found on his computer because they were not admissible under rules 403 and
404(b). In issue seven, Gerron complains that the trial court abused its discretion by
admitting a 64-page download log from Gerron’s computer because it was not admissible
under rules 403 and 404(b).
Photographs and Testimony
Gerron complains that the trial court abused its discretion by admitting 491 images
that were found on Gerron’s computer. All of the photographs depicted girls under the
age of 18 in sexually provocative poses, but only some of the photographs constitute child
pornography. The rest of the photographs were described as “erotica”—clothed children
who are provocatively posed. The trial court ruled that the images were admissible and
relevant to Gerron’s intent and knowledge.
Gerron also complains of the admission of testimony regarding approximately
11,000 images of children that were found on Gerron’s computer during a search by the
State’s computer-forensic expert. Gerron argues that there was no basis under Rule
404(b) for the photographs or the testimony regarding the 11,000 images to be admissible
Gerron v. State Page 10
as extraneous-offense evidence. Alternatively, Gerron argues that even if the images and
testimony were admissible under Rule 404(b), they were unfairly prejudicial under Rule
403 and should have been excluded.
Rule 404(b)
We review a trial court’s ruling on the admissibility of extraneous-offense
evidence for an abuse of discretion. Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim.
App. 2009). As long as the trial court’s ruling is not outside the “zone of reasonable
disagreement,” there is no abuse of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex.
Crim. App. 2010); see also Newton v. State, 301 S.W.3d 315, 317 (Tex. App.—Waco 2009,
pet. ref’d) (citing De La Paz v. State, 279 S.W.3d 336, 343-44 (Tex. Crim. App. 2009)).
Gerron contends that the photographs and the testimony regarding the
approximately 11,000 images of children were inadmissible under Rule 404(b). Evidence
offered, however, to prove, among other things, intent, knowledge, or absence of mistake
or accident, is not barred by Rule 404(b). TEX. R. EVID. 404(b)(2); Santellan v. State, 939
S.W.2d 155, 168 (Tex. Crim. App. 1997). Extraneous-offense evidence may also be
admitted to rebut a defensive theory. Id. at 169.
The State was required to prove that Gerron possessed the offending pictures
intentionally or knowingly. See TEX. PENAL CODE ANN. § 43.26(a). It is not uncommon
that the culpable mental state required by a penal statute is proved by circumstantial
evidence. See Krause v. State, 243 S.W.3d 95, 111 (Tex. App.—Houston [1st Dist.] 2007,
pet. ref'd).
During trial, Gerron’s counsel consistently argued that there was insufficient
Gerron v. State Page 11
evidence about the age of the girls depicted in some of the exhibits as described in his
first issue. The extraneous photographs were all images of girls under the age of 18 and
included a series of approximately forty photographs of a child in progression from being
clothed to ultimately revealing genitals and breasts. The testimony was that the
approximately 11,000 images found on Gerron’s computer were of children. This
supports the State’s theory that Gerron knew that he possessed photographs of girls
under the age of 18 and that the extraneous pictures and testimony are admissible for that
reason.
Gerron’s trial argument that claimed a lack of knowledge that the materials were
child pornography—visual material depicting a child under age 18 engaging in sexual
conduct (lewd exhibition)—as shown by his contention to law enforcement that he
believed the images were lawful to possess, was an avenue for the admission of the
extraneous materials. See Johnson v. State, 932 S.W.2d 296, 302 (Tex. App.—Austin 1996,
pet. ref'd). The possession of similar types of material—photographs of girls under the
age of 18, whether they constituted child pornography or child “erotica”—is a
circumstance that the jury was entitled to consider as circumstantial evidence of Gerron’s
culpable mental state. Therefore, we conclude that the trial court did not abuse its
discretion in admitting the extraneous photographs and the testimony regarding the
approximately 11,000 images as exceptions under Rule 404(b).
Rule 403
Gerron further argues that the evidence was inadmissible under Rule 403. Thus,
we must now consider whether or not the evidence, although relevant and therefore,
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admissible, should have been disallowed because its probative value was substantially
outweighed by the danger of unfair prejudice. TEX. R. EVID. 403.
In its seminal decision in Montgomery v. State, the Court of Criminal Appeals
identified four non-exclusive factors to be considered in determining
whether evidence should be excluded under Rule 403. Those factors were:
(1) the probative value of the evidence; (2) the potential to impress the jury
in some irrational, yet indelible, way; (3) the time needed to develop the
evidence; and, (4) the proponent’s need for the evidence.
More recently, the Court has looked to the language of Rule 403 and
restated the pertinent factors.
[A] trial court, when undertaking a Rule 403 analysis, must balance
(1) the inherent probative force of the proffered item of evidence along
with (2) the proponent’s need for that evidence against (3) any
tendency of the evidence to suggest decision on an improper basis, (4)
any tendency of the evidence to confuse or distract the jury from the
main issues, (5) any tendency of the evidence to be given undue
weight by a jury that has not been equipped to evaluate the probative
force of the evidence, and (6) the likelihood that presentation of the
evidence will consume an inordinate amount of time or merely repeat
evidence already admitted. Of course, these factors may well blend
together in practice.
Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006)
(footnotes omitted).
Newton, 301 S.W.3d at 319 (footnote and citations omitted); see also Casey v. State, 215
S.W.3d 870, 880 (Tex. Crim. App. 2007).
There is a presumption that evidence that is deemed to be relevant is admissible.
Casey, 215 S.W.3d at 879. Further, “’probative value’ refers to the inherent probative force
of an item of evidence—that is, how strongly it serves to make more or less probable the
existence of a fact of consequence to the litigation—coupled with the proponent’s need
for that item of evidence.” Id. Unfair prejudice refers not to the fact that the evidence
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injures a party’s case or position, as virtually all evidence offered by one party will
prejudice the opponent’s case or position. Id. at 883. Evidence is unfairly prejudicial
when it tends to have some adverse effect upon the defendant beyond tending to prove
the fact or issue that justifies its admission into evidence. Id.
The first matter to consider is the inherent probative force of the evidence. Id. at
879. Regarding the photographs, the various pictures of girls under the age of 18 in
sexually provocative poses were highly probative of the fact that Gerron had a fascination
or preoccupation with younger girls in a sexual manner. The testimony regarding the
discovery of the approximately 11,000 photographs of children also demonstrates the
same. Because one of Gerron’s defensive theories was the lack of proof of the very issue
these items tended to prove, that being that the girls depicted in the photographs for
which he was indicted were under the age of 18, the probative force of the evidence in
question is significant.
Next, the proponent’s need for the evidence must be examined. Id. at 888. As
pointed out previously, Gerron’s trial position was that the State’s evidence was
insufficient to show that some of the pictures portrayed girls actually under the age of 18.
Therefore, Gerron’s knowledge of, and preoccupation with, pictures of younger girls,
both those that might be termed pornographic and otherwise, was critical to proving the
State’s case. This consideration would heavily favor the admission of the evidence. From
the aspect of the subject matter of the trial, we do not believe that the evidence in question
distracted the jury from their main inquiry, nor did the evidence create a situation where
the jury gave undue credence to this evidence. See id. This is because many of the
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photographs that Gerron complains about were less graphic than most of the
photographs for which he was tried, and there was little discussion as to the content of
the approximately 11,000 images found on Gerron’s computer. These factors favor the
admission of the evidence.
The evidence of the actual images or the testimony regarding the images did not
seem to take an inordinate amount of time to introduce. The photographs were admitted
during the State’s computer-forensic expert’s testimony and were offered in one large
group. The photographs were shown to the State’s expert, who testified that the females
depicted in the photographs were under the age of 18. The testimony about the images
that were found during the forensic examination of Gerron’s computer was likewise brief
and not particularly detailed regarding the substance of the images beyond that they
depicted children. This factor also favors admission. We therefore cannot say that the
trial court abused its discretion in admitting the 491 photographs or the testimony
regarding the images found during the search of Gerron’s computer. Accordingly,
Gerron’s fifth and sixth issues are overruled.
Download Log
In his seventh issue, Gerron complains that the trial court abused its discretion by
admitting a 64-page log of files that Gerron purportedly downloaded from a file-sharing
server called Azureus. Gerron argues that the log should have been excluded under
Rules 404(b) and 403. The log was from a file-sharing system and showed that Gerron
had downloaded images and videos, some of which were clearly not unlawful. The log,
however, contained many downloads with titles that specifically referred to young girls
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and sexual conduct.
Rule 404(b)
The log was used by the State to show that Gerron was actively downloading
images and videos that depicted young girls and were sexual in nature. Two of Gerron’s
defensive theories at trial were that the images for which he was indicted did not
constitute a lewd exhibition of the genitals and that he believed that the images were
lawful because they were merely images of nude girls. The log was admissible to show
Gerron’s intent and knowledge as well as absence of mistake. The trial court did not
abuse its discretion by admitting the log under Rule 404(b)(2).
Rule 403
Gerron further argues that the log should have been excluded because its
probative value, if any, was greatly outweighed by unfair prejudice. We first consider
the inherent probative force of the evidence. There was no testimony that the actual
photographs or videos on the log were found on Gerron’s computer. The log, however,
was important for the State to establish that Gerron did not download the photographs
of the girls for which he was indicted because of a mistaken belief as to their lawfulness.
Additionally, because Gerron was challenging the lack of evidence of the age of the girls,
the fact that he specifically searched for young girls engaging in sexual conduct was
important for the State to show intent and knowledge. Because of this, there is probative
force of the evidence in question.
Next, the proponent’s need for the evidence must be examined. Because one of
Gerron’s trial positions was that the State’s evidence was insufficient to show that he
Gerron v. State Page 16
knew that the images constituted a lewd exhibition of the genitals, Gerron’s specific
searches for photographs and videos of younger girls engaging in sexual conduct was
critical to proving that element of the State’s case. This consideration would favor the
admission of the evidence. Further, we do not believe that the download log distracted
the jury from their main inquiry, nor did the evidence create a situation where the jury
gave undue credence to this evidence because the list of the files was just that—a list. The
log was far less prejudicial than the actual photographs of the girls under the age of 18,
which we have previously found to be admissible. These factors favor the admission of
the evidence.
The introduction of the log did not seem to take an inordinate amount of time to
introduce after the State’s computer-forensic expert explained how the download log was
discovered and the general purpose of file-sharing servers by individuals who obtain
child pornography. The log was offered as one document and only a few selections were
read to the jury during the trial. This factor also favors admission. We thus cannot say
that the trial court abused its discretion when it admitted the download log. We overrule
issue seven.
ADMISSION OF LUDVIGSEN’S HEARSAY TESTIMONY
In issues three and four, Gerron complains that Ludvigsen’s hearsay testimony
about the ages of the girls in exhibits 5, 8, 9, and 10 was inadmissible and violated his
Sixth Amendment right to confrontation, respectively. The trial court conducted a
hearing outside of the presence of the jury to determine whether Ludvigsen’s testimony
would be admissible after Gerron had objected.
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We review the trial court’s decision to admit or exclude evidence for an abuse of
discretion. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005).
Ludvigsen is an investigator in the area of child sexual exploitation for the
National Criminal Police of Norway, an agency equivalent to the FBI. Ludvigsen testified
that in 2007 he was involved with an investigation surrounding the photographs that
served as the basis for counts 5, 8, 9, and 10. Ludvigsen testified that the photographs
were taken by two girls in Norway named Maria and Ellen and that the girls had taken
the photographs themselves. Ludvigsen testified that Maria and Ellen were the girls
depicted in exhibits 5, 8, 9, and 10 and that their ages were 10 and 11, respectively, when
the photographs were taken in Norway.
Ludvigsen related that, in his investigation surrounding the photographs that
served as the basis for counts 5, 8, 9, and 10, he had received a total of 55 photographs of
the two girls, and those four photographs were a part of the series of 55 photographs.
When he began his investigation, the girls had already been identified, and the crime he
was investigating was the identity of the person who had groomed the girls to take the
photographs of themselves and to send them on the internet. According to Ludvigsen,
Maria and Ellen had been communicating on the internet through a chat program with a
person who they thought was a ten-year old girl and who suggested that, if they wanted
to be photo models, they needed to take and send photographs that were similar to a
series of child pornography images that the person sent to Maria and Ellen.
Ludvigsen said that the Maria and Ellen series of 55 photographs was similar to
another series called the Tori series, which he was familiar with. He testified that the Tori
Gerron v. State Page 18
series was what had been sent to Maria and Ellen for them to mimic and that exhibit 7,
which he was familiar with, was a photograph from the Tori series. Regarding exhibit 7,
which was in the group of photographs that Dr. Coffman thought was under the age of
18, she testified: “On this one she doesn’t have any breast tissue.”5 Dr. Coffman next
explained that a girl with no breast tissue or breast development would be considered a
prepubescent child.
Ludvigsen’s investigation was based on his review of official police reports as to
the girls’ identities, ages, and how and when the photographs were taken and distributed.
Exhibits 5 and 10 were of Ellen, and exhibits 8 and 9 were of Maria. According to
Ludvigsen’s records, the girls’ parents were the source of the birth dates for the girls in
the original investigation. Ludvigsen was not involved in the original investigation.
Ludvigsen had never met or personally seen the girls or their parents, although he knew
where they were in Norway.
Ludvigsen testified that in preparation for his testimony in Gerron’s trial, he
reviewed the passport records of the two girls. Both girls had passports issued around
the same time that the photographs in counts 5, 8, 9, and 10 were taken and had
subsequently updated their passports. Ludvigsen compared the passport photographs
with the photographs in counts 5, 8, 9, and 10 and believed that they were the same girls.
Ludvigsen had copies of the passport records with him at trial and showed them to the
trial court during the hearing outside the presence of the jury. The records were in
5 Gerron did not challenge the sufficiency of the evidence as to exhibit 7.
Gerron v. State Page 19
Norwegian, so Ludvigsen translated them. The passport records were not offered or
admitted into evidence and were returned to Ludvigsen after the trial court looked at
them.
The trial court ruled that Ludvigsen’s testimony on the ages of the girls at the time
of the photographs was admissible and overruled Gerron’s hearsay and confrontation
objections.
Preservation
The State argues that Gerron did not preserve his hearsay and confrontation
objections because he did not object every time potentially inadmissible hearsay
testimony was given before the jury. Because the trial court conducted a hearing outside
of the presence of the jury to determine the admissibility of Ludvigsen’s testimony,
Gerron’s hearsay and confrontation objections to Ludvigsen’s testimony at the hearing
outside the presence of the jury were sufficient to preserve his complaint for appeal. See
TEX. R. EVID. 103(a)(1); Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991).
Public Records
The State contended at oral argument for the first time that Ludvigsen’s testimony
about the ages of the girls depicted in counts 5, 8, 9, and 10 was admissible under the
public-records exception to the hearsay rule. See TEX. R. EVID. 803(8). The version of Rule
803(8) in effect at the time of Gerron’s trial provided that the following is not excluded by
the hearsay rule, even though the declarant is available as a witness:
(8) Public Records and Reports. Records, reports, statements, or data
compilations, in any form, of public offices or agencies setting forth (A) the
activities of the office or agency; (B) matters observed pursuant to duty
Gerron v. State Page 20
imposed by law as to which matters there was a duty to report, excluding
in criminal cases matters observed by police officers and other law
enforcement personnel; or (C) in civil cases as to any party and in criminal
cases as against the state, factual findings resulting from an investigation
made pursuant to authority granted by law; unless the sources of
information or other circumstances indicate lack of trustworthiness.
TEX. R. EVID. 803(8).
In support of this contention, the State cites Butler v. State, 872 S.W.2d 227 (Tex.
Crim. App. 1994), where a medical examiner who was also a custodian of records testified
as an expert witness about the substance of an autopsy report, although the autopsy
report was not admitted into evidence and the autopsy had not been performed by the
medical examiner. The defendant objected on the basis of hearsay. The Court of Criminal
Appeals held:
We find that the autopsy of [the victim] would have been admissible into
evidence under the public records exception to the hearsay rule. TEX. R.
EVID. 803(8)(B). … Therefore we also hold that [the medical examiner’s]
testimony concerning some of the contents of the autopsy report was not
subject to a hearsay objection.
Id. at 238.
In response, Gerron does not contend that the passport records are not a public
record. Gerron, however, did object on hearsay and confrontation grounds to
Ludvigsen’s testimony relating to the identity and investigation of Maria and Ellen in
addition to the evidence of their ages when the photographs were taken. The majority of
Ludvigsen’s testimony described how the identities of the girls in the photographs in
counts 5, 8, 9, and 10 were discovered and his role in investigating the distribution of the
photographs. Ludvigsen testified that he did not have personal knowledge of the
Gerron v. State Page 21
identities of Maria and Ellen or the investigation surrounding the creation and initial
dissemination of the photographs. All of Ludvigsen’s information came from other
investigators and their offense reports, which are generally not admissible. See TEX. R.
EVID. 803(8)(B). The State has limited its arguments on appeal to Gerron’s preservation
of his complaints and to the public-records exception; the State did not present any
hearsay exceptions in response to the objection to the remainder of Ludvigsen’s
testimony. We thus find that the trial court abused its discretion in the admission of
Ludvigsen’s hearsay testimony. We also find that the admission of Ludvigsen’s hearsay
testimony violated Gerron’s confrontation rights. See Coronado v. State, 351 S.W.3d 315,
323-29 (Tex. Crim. App. 2011); see also Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354,
158 L. Ed. 2d 177 (2004).
Harm
We next address harm. The erroneous admission of hearsay evidence such as this
is non-constitutional error and will result in reversal only if that error affected a
substantial right of the defendant. See TEX. R. APP. P. 44.2(b). A substantial right is
affected when the evidence, viewed in light of the record as a whole, had a substantial
and injurious influence in determining the jury’s verdict. King v. State, 953 S.W.2d 266,
271 (Tex. Crim. App. 1997).
[N[on-constitutional error must be disregarded unless it affects the
defendant’s substantial rights. This court “will not overturn a criminal
conviction for non-constitutional error if the appellate court, after
examining the record as a whole, has fair assurance that the error did not
influence the jury, or influenced the jury only slightly.” In considering the
potential to harm, the focus is not on whether the outcome of the trial was
proper despite the error, but whether the error had a substantial or
Gerron v. State Page 22
injurious effect or influence on the jury’s verdict. A conviction must be
reversed for non-constitutional error if the reviewing court has grave doubt
that the result of the trial was free from the substantial effect of the error.
“Grave doubt” means that “in the judge’s mind, the matter is so evenly
balanced that he feels himself in virtual equipoise as to the harmlessness of
the error.” “[I]n cases of grave doubt as to harmlessness the petitioner must
win.”
Barshaw v. State, 342 S.W.3d 91, 93-94 (Tex. Crim. App. 2011) (footnoted citations omitted).
Because a violation of the Sixth Amendment right of confrontation constitutes
constitutional error, we must reverse a trial court’s judgment when Confrontation Clause
error is present unless we can determine beyond a reasonable doubt that the error did
not contribute to the conviction. TEX. R. APP. P. 44.2(a); see McClenton v. State, 167 S.W.3d
86, 94 (Tex. App.—Waco 2005, no pet.); see also Langham v. State, 305 S.W.3d 568, 582 &
n.42 (Tex. Crim. App. 2010).
In determining specifically whether constitutional error under
Crawford may be declared harmless beyond a reasonable doubt ... the
following factors are relevant: 1) how important was the out-of-court
statement to the State’s case; 2) whether the out-of-court statement was
cumulative of other evidence; 3) the presence or absence of evidence
corroborating or contradicting the out-of-court statement on material
points; and 4) the overall strength of the prosecution’s case. … [T]he
emphasis of a harm analysis pursuant to Rule 44.2(a) should not be on “the
propriety of the outcome of the trial.” That is to say, the question for the
reviewing court is not whether the jury verdict was supported by the
evidence. Instead, the question is the likelihood that the constitutional error
was actually a contributing factor in the jury’s deliberations in arriving at
that verdict—whether, in other words, the error adversely affected the
integrity of the process leading to the conviction. In reaching that decision,
the reviewing court may also consider, in addition to the factors listed
above, inter alia, the source and nature of the error, to what extent, if any,
it was emphasized by the State, and how weighty the jury may have found
the erroneously admitted evidence to be compared to the balance of the
evidence with respect to the element or defensive issue to which it is
relevant. With these considerations in mind, the reviewing court must ask
itself whether there is a reasonable possibility that the Crawford error moved
Gerron v. State Page 23
the jury from a state of non-persuasion to one of persuasion on a particular
issue. Ultimately, after considering these various factors, the reviewing
court must be able to declare itself satisfied, to a level of confidence beyond
a reasonable doubt, that the error did not contribute to the conviction before
it can affirm it.
Langham, 305 S.W.3d at 582.
Of the four exhibits that were the subject of Ludvigsen’s testimony, we begin with
exhibit 9, which Ludvigsen said is a photograph of Maria when she was age 10.
Regarding the girl in exhibit 9, Dr. Coffman testified: “This one I also thought she had
not started puberty yet due to having no breast tissue.” Dr. Coffman had earlier
explained, regarding the image in exhibit 3, that a girl with no breast tissue or breast
development would be considered a prepubescent child. Furthermore, the jury itself was
able to inspect the image to determine if the person in it was under the age of 18. TEX.
PENAL CODE ANN. § 43.25(g)(2). From our examination of the entire record and our
review of the image in exhibit 9, which is undoubtedly a prepubescent girl, we conclude
that the trial court’s error in allowing Ludvigsen’s testimony about the age of the girl in
exhibit 9 did not have a substantial or injurious effect or influence on the jury’s verdict.
Likewise, after considering the constitutional-error factors, we conclude beyond a
reasonable doubt that the confrontation error regarding Ludvigsen’s testimony about the
age of the girl in exhibit 9 did not contribute to the conviction on count 9.
We next turn to exhibits 5 and 10, which Ludvigsen said are photographs of Ellen
when she was age 11, and to exhibit 8, which Ludvigsen said is a photograph of Maria.
Exhibit 5 depicts a girl on her hands and knees, facing away from the camera, but with
the girl’s head turned to look at the camera. Dr. Coffman said of exhibit 5: “She looked
Gerron v. State Page 24
like she has quite a bit of breast tissue. Her areola contour with the breast tissue, it’s
difficult to tell. It looks confluent, although it’s kind of hard to tell. But I just thought
there was too much breast tissue for me to be able to really say.”
Exhibit 10 is a slightly similar pose to exhibit 5, but is closer up and the girl is
wearing a bra. Regarding exhibit 10, all that Dr. Coffman said was: “I could not make a
determination on her.”
Disregarding Ludvigsen’s testimony that the person in exhibits 5 and 10 are the
same girl, it is obvious that they are photographs of the same girl taken on the same bed.
Both photographs also depict no pubic hair and undoubtedly depict an early
prepubescent girl.
Exhibit 8 is a close-up photograph of a female’s anus and vagina from a posterior
view. There is a total absence of pubic hair, and the image is undoubtedly one of a
prepubescent or early pubescent girl. Regarding exhibit 8, Dr. Coffman said that she
could not make an age-range determination for that photograph because the labia majora
was closed.
From our review of the images in exhibits 5, 8, and 10 and the record as a whole,
including the State’s two brief references to Ludvigsen in closing argument and the vast
amount of evidence pertaining to Gerron’s obvious fetish for child pornography,6 we
6
This evidence includes the images of the obviously underage and prepubescent girls in exhibits 3, 4, and
7, counts on which Gerron did not challenge the sufficiency of the evidence on age, along with the images
of the obviously underage and either prepubescent or early pubescent girls in the State’s extraneous-offense
evidence. Cf. Cox v. State, --- S.W.3d ---, ---, 2016 WL 4254151, at *5 (Tex. App.—Houston [1st Dist.] Aug.
11, 2016, no pet. h.) (“Appellant’s possession of child pornography constitutes some proof that Appellant
intended to solicit more child pornography. … Appellant’s possession of pornography was some proof
that he is sexually attracted to prepubescent girls.”). It further includes the download log, which contains
Gerron v. State Page 25
conclude that the trial court’s error in allowing Ludvigsen’s testimony about the ages of
the girls did not have a substantial or injurious effect or influence on the jury’s verdict.
Likewise, after considering the constitutional-error factors, we conclude beyond a
reasonable doubt that the confrontation error regarding Ludvigsen’s testimony about the
ages of the girls in exhibits 5, 8, and 10 did not contribute to the conviction on those
counts. We overrule issue three.
EXCLUSION OF EVIDENCE
In issue eight, Gerron complains that the trial court abused its discretion by
excluding several books that Gerron contends contain images similar to those for which
he was being tried and that could be lawfully obtained at a public bookstore such as
Barnes and Noble. Nine books were admitted at a pretrial hearing for the limited purpose
of Gerron’s challenge to the constitutionality of the statute.
During trial, a law-enforcement officer was asked whether she was familiar with
several books that Gerron’s trial counsel had presented to her. At that time, Gerron’s trial
counsel was asking the officer whether or not she knew of the existence of those types of
books and whether she believed that they contained child pornography. When Gerron’s
trial counsel asked the officer to look through the books and show which ones she
believed constituted child pornography, the State objected that the books were not
relevant, and the trial court sustained the objection. Gerron later made an offer of proof
titles such as: “Preteen art”; “Young Model Hall of Fame”; “15yo Jessy Gets … By Old Perv”; “More
Pictures of Sexy Young Teens!”; “anita_12y”; “Child Models”; “Very Young Chick Stripping On Poker
Table”; “HOT 14 year old girl taking picture of herself in the mirror”; “14yo Girl Has A Crazy Orgasm!”;
“Anna 12yo”; “Jailbait-lover.com”; and “47 Pictures of Very Young Girl.”
Gerron v. State Page 26
of four of the books. The officer was questioned as to whether she was familiar with the
four books, and she testified that she was not familiar with them. The State further
argued that the books were not admissible because the officer had never seen them.
Evidence that is not relevant is inadmissible. TEX. R. EVID. 402; see Montgomery v.
State, 810 S.W.2d 372, 386 (Tex. Crim. App. 1990) (op. on reh’g). Relevant evidence is
“evidence having any tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable than it would be
without the evidence.” TEX. R. EVID. 401.
Gerron argues that his defensive theory was to argue that the images on his
computer did not portray a lewd exhibition of genitals. Gerron contends that the books
were vital to show that the images in the books were not lewd, and therefore the images
he possessed were not lewd because they were “strikingly similar.” Because the law-
enforcement officer had testified that she believed the images for which Gerron was being
tried showed a lewd exhibition, Gerron sought the introduction of the books and the
ability to question the officer on what she would define as lewd.
We agree with the trial court that the books were not relevant to the determination
of whether the ten images for which Gerron was being tried portrayed a lewd exhibition
of genitals. The images in the excluded books are not “strikingly similar” to all but
potentially one of the ten images. And even if the photographs in the books were similar,
there was no evidence or showing that the books had any relation to Gerron. Gerron did
not possess the books, and there was no evidence that he had ever seen them or otherwise
knew of their existence. The books do not make the photographs for which Gerron was
Gerron v. State Page 27
being tried to be more probable or less probable to portray a lewd exhibition of the
genitals than it would be without the admission of the books. Thus, the trial court did
not abuse its discretion by refusing to admit the four books. We overrule issue eight.
CUMULATION ORDER
In his ninth issue, Gerron complains that the trial court erred by ordering that his
sentences be cumulated because there was insufficient evidence that the offenses
occurred after September 1, 2005 and because the trial court’s oral pronouncement was
insufficient.
Date of Offenses
Penal Code section 3.03 provides for the cumulation of sentences for certain
offenses. See TEX. PENAL CODE ANN. § 3.03 (West Supp. 2014). In 2005, subsection
3.03(b)(3) was amended to allow the trial court to cumulate sentences for child-
pornography convictions; the amended statute became effective on September 1, 2005
and includes only offenses on which every element was committed on or after September
1, 2005. Act of May 23, 2005, 79th Leg., R.S., ch. 527, §§ 1, 3, 2005 Tex. Gen. Laws 1429,
1430.
The trial judge has discretion to cumulate sentences under subsection 3.03(b)(3) if
there is “some evidence” that the offenses occurred after September 1, 2005. See Bonilla
v. State, 425 S.W.3d 811, 817 (Tex. Crim. App. 2014) (setting forth “some evidence”
standard under subsection 3.03(b)(2)(A)). The photographs for which Gerron was tried
were found on his computer after it was seized on June 8, 2009.
Gerron v. State Page 28
Gerron came to the attention of law enforcement as part of a nationwide
investigation of a company that was operating websites where customers could purchase
subscriptions to access various child-pornography websites. Gerron was identified as a
customer having purchased a thirty-day subscription in 2006 to a website called “LS
Land,” which is commonly known for child pornography.
When confronted by law enforcement, Gerron admitted purchasing the images
from LS Land and from Low Mania, another website similar to LS Land. Additionally,
the Azureus log indicated that Gerron had searched for and downloaded videos and
photographs that appeared to likely constitute child pornography in 2007. There was no
evidence that the images were downloaded before 2006.
Although there was no evidence of the exact dates that the images for which
Gerron was tried were downloaded, we conclude that the evidence is sufficient to
support the trial court’s conclusion that the images were downloaded after September 1,
2005. We do not find that the trial court erred or abused its discretion in cumulating the
sentences on this basis.
Oral Pronouncement of Cumulation Order
Gerron further argues that the trial court’s pronouncement of the cumulation
order was insufficient. When the trial court announced its intention to cumulate the
sentences, the trial court stated:
As part of the judgment, I hereby order that all 9 sentences run
consecutively, that is one after the other.
The defendant is to receive one day credit for jail time served. Therefore,
the defendant will be [sic] begin serving the nine-year prison sentence
Gerron v. State Page 29
assessed as to Count Two. When that’s completed, he’ll begin serving the
nine-year prison sentence assessed as to Count Three. When that’s finished,
he’ll begin serving the prison sentence of nine years as to Count Four and
likewise until all counts have been served, all 81 years.
The trial court entered one judgment that included counts two through ten, and
the punishment assessed in the judgment states: “9 years TDCJID on each count (counts
two thru [sic] ten inclusive) shall be served consecutively, one after the other, for a total
of 81 years.”7
Gerron contends that the trial court’s oral pronouncement was insufficient because
it did not cite the number of any of the convictions, the name of the convicting court, or
the conviction date. The State replies that the cases relied on by Gerron to support his
contention apply to sentences that were stacked upon prior sentences from prior
convictions, not multiple counts that were all before the trial court at the same time. See,
e.g., Ex parte Davis, 506 S.W.2d 882, 883-84 (Tex. Crim. App. 1974) (dealing with stacking
a sentence on prior conviction from another court but also noting that those requirements
are “not absolute.”); Phillips v. State, 488 S.W.2d 97, 98-100 (Tex. Crim. App. 1967) (noting
that purpose of specificity is to allow Department of Corrections to carry out court’s
7
The Court of Criminal Appeals has recommended five requirements for cumulation orders: (1) the trial
court number of the prior conviction, (2) the correct name of the court where the prior conviction was taken,
(3) the date of the prior conviction, (4) the term of years of the prior conviction, and (5) the nature of the
prior conviction. Ward v. State, 523 S.W.2d 681, 682 (Tex. Crim. App. 1975). It is well settled that inclusion
of all of the recommended elements is not mandatory. See Banks v. State, 708 S.W.2d 460, 461 (Tex. Crim.
App. 1986); Williams v. State, 675 S.W.2d 754, 764 (Tex. Crim. App. 1984) (op. on reh’g). To be valid, a
cumulation order “should be sufficiently specific to allow the Texas Department of Criminal Justice—
Institutional Division … to identify the prior with which the newer conviction is cumulated.” Ex parte San
Migel, 973 S.W.2d 310, 311 (Tex. Crim. App. 1998).
Gerron v. State Page 30
orders). We agree with the State, conclude that the oral pronouncement was adequately
specific, and therefore overrule issue nine.
ADMISSION OF ANIME IMAGE DURING PUNISHMENT PHASE
In his tenth issue, Gerron complains that the trial court abused its discretion in the
admission of an anime image that depicted an adult male ejaculating into the mouth of a
very young child. The image was one of many that had been found on Gerron’s
computer. The trial court had excluded the image during the guilt-innocence phase but
admitted it during punishment. Gerron argues that the image should have been excluded
under Rule 403.
We assume without deciding that the trial court erred by admitting the anime
image. An erroneous admission of evidence such as this will result in reversal only if that
error affected a substantial right of the defendant. See TEX. R. APP. P. 44.2(b). A
substantial right is affected when the evidence, viewed in light of the record as a whole,
had a substantial and injurious influence in determining the jury’s verdict. King, 953
S.W.2d at 271. Viewing the record as a whole, including voir dire, the evidence, including
the extraneous-offense evidence of over 11,000 photographs of actual children in Gerron’s
possession, the arguments of counsel, and the jury charge, we conclude that the
admission of this one computer-generated image did not have a substantial and injurious
influence in determining Gerron’s punishment. We overrule issue ten.
CONCLUSION
Having overruled all of Gerron’s issues, we affirm the trial court’s judgment of
conviction.
Gerron v. State Page 31
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
(Chief Justice Gray dissenting)
Affirmed
Opinion delivered and filed October 26, 2016
Publish
[CRPM]
Gerron v. State Page 32