David Markley Lance v. State of Texas ( 2002 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

David Markley Lance

Appellant

Vs.       Nos. 11-01-00154-CR, 11-01-00155-CR, 11-01-00156-CR, 11-01-00157-CR,

         11-01-00158-CR, 11-01-00159-CR, 11-01-00160-CR, 11-01-00161-CR, &

11-01-00162-CR B Appeals from Dallas County        

State of Texas

Appellee

In Cause Nos. 11-01-00154-CR, 11-01-00155-CR, 11-01-00156-CR, 11-01-00157-CR, 11-01-00158-CR, and 11-01-00159-CR, the trial court convicted appellant, upon his pleas of guilty, of possession of child pornography.  In Cause Nos. 11-01-00160-CR, 11-01-00161-CR, and 11-01-00162-CR, the trial court convicted appellant, upon his pleas of guilty, of aggravated sexual assault of a child.  No plea bargain agreements were entered.  The trial court assessed appellant=s punishment at confinement for 10 years in each of the child pornography convictions and confinement for life for each of the aggravated sexual assault convictions.  We affirm.

Appellant=s court-appointed counsel has filed a brief in which he conscientiously examines the entire record and analyzes the applicable law.  Counsel reviews the proceedings in the trial court and concludes that each indictment conferred jurisdiction on the trial court, that appellant properly waived his right to trial by jury, that the trial court properly admonished appellant concerning his pleas, that the State presented sufficient evidence, that trial counsel afforded reasonably effective assistance, and that the punishment was within the range authorized.  Counsel further concludes that appellant Areceived a fair trial free from reversible error.@ 

Counsel has furnished appellant with a copy of the brief and has advised appellant of his right to review the record and file a pro se brief.  A pro se brief has not been filed.  Counsel has complied with the procedures outlined in Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex.Cr.App.1991); High v. State, 573 S.W.2d 807 (Tex.Cr.App.1978); Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974); and Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969).

Following the procedures outlined in Anders, we have independently reviewed the record. Leroy Brantley, an officer with the Rowlett Police Department, testified that he began investigating appellant after 7-year old K.C., the victim in Cause No. 11-01-00162-CR, made an outcry. Appellant was arrested, and Officer Brantley obtained consent from appellant=s wife to search their home.  In a bedroom that had been converted to a computer room, Officer Brantley found pictures of nude females and nude males pinned to the walls. Behind the computer and beneath a sheet of white paper was a picture of a Ayoung girl, a child, performing oral sex on an adult male.@ In the closet in the computer room, Officer Brantley found two cardboard boxes stacked one on top of the other. A picture of another young child performing oral sex on an adult male was on top of the boxes.  Next to the picture was a bottle of personal lubricant and a Avariety of dildos.@  During his interviews with Officer Brantley, appellant admitted to fondling S.C., the victim in Cause Nos. 11-01-00160-CR and 11-01-00161-CR.^[1]  Appellant identified several of the photographs recovered from his residence as being photographs of S.C.  

Officer Brantley seized appellant=s computer.  Michael Flinchbaugh, a special agent assigned to the Federal Bureau of Investigation=s violent crime unit, secured a search warrant to retrieve data from the computer and from floppy disks and zip disks.  Special Agent Flinchbaugh testified that approximately 1400 pornographic pictures of children, 270 pictures that were borderline (meaning that because of the pose it was difficult to determine the age of the person), and 35 movies of child pornography were recovered. 

K.C. testified that she was eight years old at the time of trial.  She had known appellant for two years, and he would often play checkers with her.  K.C. thought appellant came over to her house almost every day.  When he did, he would talk to her.  Sometimes, he would come into her room and do things she did not like. K.C. stated that appellant had Abad pictures@ in his computer room of grownups without their clothes.  Appellant had shown her pictures on his computer of kids without their clothes on.  K.C. testified that appellant used his camera to take pictures of her without her clothes on and that he had made movies of her with her clothes off.  When she went to appellant=s house, they would watch@[ t]hose kind of movies,@ and sometimes appellant would have his clothes off Adown there.@ K.C. testified that sometimes appellant touched her Adown there@ with his finger.  K.C. stated that his finger would go inside her private part.  She also testified that appellant touched his private part on her private part. 

S.C. testified that she was 11 years old at the time of trial.  She had met appellant because her mother knew appellant=s wife. Sometimes appellant would come to S.C.=s house, and sometimes she would go to his.  When she would be in the computer room at his house, appellant would sometimes do Abad things.@ He would touch her Atop private@ and her Abottom private@ with his hand.  He would also touch her Abottom private@ with his mouth.  S.C. testified that the Abottom private@ was Athe part you go pee pee from.@  Appellant would also show her his private.  One time when appellant was painting at her house, S.C, asked if she could paint.  Appellant told her that she could if she Adid something.@  Appellant Astuck his private into@ hers.  S.C. said that it felt cold when he did that and that she got to paint afterwards.

Appellant testified that pornography was an obsession for him and that he had Aa specific attraction to seven to nine year old girls.@  He admitted to touching K.C. with sexual intent.  He testified that he had had sexual contact with S.C. for over a year and a half.  He also stated that he had a Agenuine affection@ for both girls, that he had a Agreat friendship@ with them, that he knew at the time he was doing wrong, and that he felt Aterrible.@ Appellant stated that he had had no other victims other than these two girls and that Ait  began@ with S.C. and Ait ended@ with K.C.  With S.C., appellant stated that he quit having sexual contact with her after the incident at her house.  Appellant said that he was not sure why he stopped but he Afelt uncomfortable@ and A[m]aybe she just wasn=t appealing to [him] anymore.@  Appellant identified several of the State=s exhibits as being pictures he took of S.C.  Two of the pictures were of S.C.=s anus and vagina.  Appellant identified another picture as Aa picture of [S.C.] bending over showing her private parts and me with my penis on top of the photograph.@  Appellant admitted to possessing over 1400 pictures of child pornography and about 300 pictures of adult pornography.  Appellant testified as to his alcohol problem and the troubles that he had had with depression.

The evidence is both factually and legally sufficient.  Jackson v. Virginia, 443 U.S. 307 (1979);   Johnson v. State, 23 S.W.3d 1 (Tex.Cr.App.2000); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996). The record does not reflect that counsel=s representations were not within the range of competence demanded of attorneys in criminal cases or that there is a reasonable probability that, but for counsel=s error, appellant would have not pleaded guilty but would have insisted on going to trial.  Hill v. Lockhart, 474 U.S. 52 (1985); Ex parte Morrow, 952 S.W.2d 530 (Tex.Cr.App.1997).  Trial counsel provided reasonably effective assistance. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App.1999).  Appellant=s plea for rehabilitation and the State=s request that all the sentences be stacked were reject by the trial court who then assessed punishment within the range authorized by the legislature.^[2]  We agree that the appeals are without merit.

The judgments of the trial court are affirmed.

PER CURIAM

July 18, 2002

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

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^[1]The record reflects that K.C. and S.C. were not related.

^[2]TEX. PENAL CODE ANN. ' 43.26 (Vernon Supp. 2002) defines the offense of possession of child pornography and declares it to be a second degree felony.  TEX. PENAL CODE ANN. '12.33 (Vernon 1994) provides that a person convicted of a second degree felony shall be confined for a term of not more than 20 years and not less than 2 years.  An option fine not to exceed $10,000 is also authorized.  TEX. PENAL CODE ANN. ' 22.021 (Vernon Supp. 2002) defines the offense of aggravated sexual assault of a child and declares it to be a first degree felony.  TEX. PENAL CODE ANN. ' 12.32 (Vernon 1994) provides that a person convicted of a first degree felony shall be imprisoned for life or for a term of not more than 99 years and not less than 5 years.  An optional fine not to exceed $10,000 is also authozied.