Jon Russell Whitson v. the State of Texas ( 2024 )

Affirm and Opinion Filed July 18, 2024
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01094-CR
No. 05-22-01095-CR
JON RUSSELL WHITSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 443rd District Court
Ellis County, Texas
Trial Court Cause Nos. 46632CR & 46633CR
MEMORANDUM OPINION
Before Justices Molberg, Reichek, and Smith
Opinion by Justice Molberg
Appellant Jon Russell Whitson pleaded guilty to promotion of child
pornography in trial court cause number 46632CR and ten counts of possession of
child pornography in trial court cause number 46633CR. The jury assessed
punishment at twenty years’ confinement for promotion of child pornography, two
years for each of the first three counts of possession, and four years for each of
possession counts four through ten.1 On appeal, appellant contends the trial court
1
The first possession sentence was ordered to begin when the promotion sentence ended, while
counts two and three were ordered to run concurrently with the promotion sentence. The final
abused its discretion when it limited the cross-examination of one of the State’s
witnesses pursuant to a Touhy2 letter and violated his rights under the Confrontation
Clause. For the reasons explained below, we affirm in this memorandum opinion.
Background
After appellant pleaded guilty, a punishment trial before the jury was held.
Detective Elizabeth Glidewell of the Waxahachie Police Department testified she
secured search warrants for Internet service provider Charter Communications and
Instagram after receiving a child pornography tip. She determined appellant was the
subscriber attached to the IP address and accounts in question. Glidewell received
680 pages of records, and they included images of child pornography. She testified,
among other things, she determined appellant had conversations with other
Instagram users in which he asked them how old they were. He continued
conversations with users who responded they were thirteen or fourteen years old. In
one such conversation, the other user asked him to support her by donating, and
appellant responded, “How special are the pics?” He received an image of child
pornography in response. He responded, “Maybe some extra special ones?” In
seven possession sentences were ordered to begin when the sentence in the first count ceased to
operate. Additionally, the final seven possession counts’ sentences of confinement were
suspended, and appellant would be placed on community supervision for ten years.
2
See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951) (reversing contempt order
against FBI agent who had refused, under instructions from U.S. Attorney General, to produce
certain records called for in a subpoena duces tecum, and holding that federal agency heads are
authorized by law to prescribe regulations and it is appropriate for them to exercise that authority
to limit release of official information).
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another conversation, appellant asked for a sample of what he would be buying, he
negotiated a price, and he purchased multiple images of child pornography. In
another, a user stated she would sell ten images for $20 or twenty for $30 and said,
“Me masturbating playing with tits and ass.” Appellant responded, “What if I wanna
be generous because you’re so cute and do 50?” Appellant asked the same user,
“You really 13?” When she responded affirmatively, appellant said, “Damn, def got
me going a lot.” In another conversation, someone asked appellant “the youngest
age he liked.” Appellant responded, “10 to 14” but a few seconds later stated, “Well,
8 to 14, lol.” The State published to the jury ten images obtained from appellant’s
Instagram account, and Glidewell affirmed that each image contained child
pornography.
After receiving these records, Glidewell secured a search warrant for
appellant’s home, where she discovered and seized appellant’s phone. She also
spoke with appellant and learned he had created a new Instagram account, and she
again secured a warrant and obtained records from this account.
In one conversation found in those records, appellant asked a user, “What do
you need baby girl?” The user responded, “X-box card.” Appellant stated, “And in
return?” She said, “25 for 4 pics, 50 for pics and videos, 100 for video chat for 30
minutes.” He said, “Give me a little bit and I’ll get you that $50 code.” After
receiving two images, appellant told the user, “No way you’re the age you say.” She
responded she was about to be fourteen. Appellant said, “Damn.” In a conversation
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with another Instagram user, appellant sent an image of child pornography and told
the user the child in the image was fourteen years old. In another conversation,
appellant told a user he believed they liked the same type of things, “plus I have a
real-life story.” He told the user that when he was seventeen and his sister was
thirteen, she “came and sat in my lap one day and started grinding on me and I got
hard, and she got really wet and let me finger her.” The user shared that he
“remember[ed] cumming on my goddaughter’s volleyball shorts and panties when
she was 14.” Appellant responded, “Yummy!” and then shared that he had “done
that to my daughter and she wore them all wet too.” He said his daughter was
thirteen and had “the cutest butt too.” Appellant said he had a “pic of her in the
shower” and then sent an image. Glidewell testified she confirmed the child in the
image was not, in fact, appellant’s daughter. Appellant asked yet another Instagram
user whether the user takes his or her own pictures. The user responded, “Yes, I do
usually while I’m working,” and later, “There is a gym next door and I’m hoping it
picks up soon now that it’s reopened. A lot of nice sites come from there.” Appellant
responded, “Younger the better always.” To another user, appellant said, “I’ll show
you my sister, lol, I snuck a pic”—“she was in the shower too.” Appellant sent the
user the same shower image he previously had falsely identified as his daughter to
another user.
Glidewell testified on cross-examination that, among other things, she had no
knowledge appellant had “ever sexually touched any child” and that, in particular,
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appellant’s children had not made any outcry of sexual abuse. She set up forensic
interviews for the children, and none of them reported sexual abuse. Glidewell
agreed that the crimes to which appellant pleaded guilty were “online crimes” and
“fantasy.” Glidewell said her investigation showed appellant believed he was
communicating with children younger than seventeen years old, but she was unable
“to fully identify the children he was talking to” and had no concrete evidence the
people he communicated with were really the ages they stated they were.
Glidewell also testified that appellant did not take any of the photographs or
videos in question and he did not make any of the child pornography. On redirect,
she agreed she did not know who took any of the pictures appellant exchanged on
Instagram.
Elisa Del Valle, a computer forensic analyst with the U.S. Department of
Homeland Security, testified within the limits provided in a U.S. Department of
Homeland Security Touhy letter provided to the court and admitted in evidence.
According to the letter, she was authorized to discuss (1) her background, training,
experience, and qualifications as a computer forensics analyst; (2) identification of
the phone involved in the case and its chain of custody; (3) the process used to
access, extract, and examine the phone; (4) identification of records and materials
retrieved from the phone; (5) identification and explanation of any forensic reports
she generated from the examination; and (6) her interactions with other law
enforcement officers during the course of the investigation and the exchange of
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investigative information. Del Valle was “not to answer any questions asked beyond
the scope authorized” in the letter and was specifically prohibited from discussing
“the existence of any ongoing investigations” and “the identity of any other
individuals who are the targets of any ongoing [Homeland Security] criminal
investigations.” The letter also observed, “As defense counsel failed to seek any
Touhy authorization, they are not permitted to venture beyond the scope of questions
asked by the prosecutor on direct examination.”
Before Del Valle testified, defense counsel argued to the trial court he was
concerned the limitations would prohibit appellant from exercising his Sixth
Amendment confrontation right to ask whether the federal government was
investigating who the “actual creators of these photos and videos are.” He argued
such a line of questioning was important to the defense to differentiate between the
creation of pornography and its possession, and to deflect anger from appellant to
those with culpability in their creation. Counsel stated he thought “more
consideration to who [appellant] is may be given if they understand that the creators
of these horrific images are being investigated by the federal government.” The
State responded by arguing that, among other things, there had been “no impression
left by us or by the detective or by anyone that he created these things.” The trial
court asked Del Valle what her answer would be if asked whether appellant had any
knowledge whether appellant created any of the pornography in question; she
responded that she could not definitively say if he created any of them and she could
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not exclude him as a creator. The trial court overruled appellant’s objections, noting
that “[e]verybody understands there is no way this court has the power to make this
federal officer testify about what you’re asking.”
Del Valle testified she was contacted by the Waxahachie Police Department
to assist with a dump and forensic examination of appellant’s phone. She ran
Cellebrite software on the phone to acquire the phone’s data, extracted the data, and
successfully dumped the data in a readable format. Del Valle said the phone
contained over twelve dozen photos and videos, some of which contained images of
child pornography. Fifteen of those images of child pornography were admitted in
evidence, and a few were published to the jury. She said she found the images in an
application on the phone called Telegram. The images involved children both
performing and receiving sexual acts, and some images depicted sadomasochistic
child abuse. The data indicated appellant looked at the images often.
Appellant’s adoptive mother, Cindy Whitson, testified appellant came into the
custody of the State after his biological mother and her girlfriend abandoned him.
His biological mother had lived over a bar and would regularly leave appellant in
the apartment by himself while she was at the bar. Cindy and her husband started
caring for appellant when he was ten months old. They noticed immediately he was
uncomfortable with human touch and did not want to be held in a rocking chair.
They never knew the identity of appellant’s father. Cindy said appellant was fun
and loving, he loved other people, and he was embraced by her family and the other
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foster kids. But she said he was fearful, as well, which she attributed to his early
childhood. She said once when appellant was thirteen, she found him looking at
pornography on the computer. Afterwards, she “would take the cords from the
computer to where he could not” access it when she was not home. She also said
appellant once ordered pornography through the mail. She was upset with him and
ripped it up and told him such material was forbidden. Cindy did not think appellant
should go to prison, but said he needed help and knew God could heal him.
Rani Wheat testified she was appellant’s older sister and was also adopted by
Cindy and her husband. She said she was glad appellant had been arrested because
she thought he needed help; she said she knew he had issues with pornography in
the past. Wheat asked the jury to have grace and see appellant as a broken person
like anyone else and said that redemption and restoration can happen.
James Whitson, appellant’s adoptive father, also testified. He said, among
other things, he wanted to use his experience as a prison chaplain helping inmates
with addiction issues to play a big part in helping appellant overcome his problems.
On cross-examination, he agreed redemption can be found in prison. He also agreed
that not everyone who experiences early trauma ends up a sex offender.
Dr. Aaron Pierce, a psychologist who treats offenders involved in the criminal
justice system, testified for appellant. He said he had treated over 4,000 sex
offenders over twenty-seven years. Pierce said the general consensus is that
addiction is a disease and that “a mixture of things play into addictions and how they
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develop.” He said trauma can play a role: when we are young, our brains are
growing and changing and connections are being made; if someone experiences
trauma, or a severe stress, the development of the brain is impacted. Pierce said
there was no doubt in his mind appellant experienced early childhood trauma. He
said trauma can manifest behaviorally and in relationships and can lead to substance
abuse, different addictions, and psychiatric illnesses, including attachment disorder.
He described attachment disorder as arising when a child fails to make attachments
and bonds when very young—something is missing developmentally, and the child’s
brain does not form and grow in a healthy way. Pierce said avoiding touch can be a
signpost of attachment disorder. He said, hypothetically, if a child were born and
not held, even when crying, this could cause trauma and lead to attachment disorder.
Although he stopped short of formally diagnosing appellant as having this disorder,
he said “there’s symptoms there that would suggest the presence of it.”
Pierce said addiction develops when the brain seeks out something it has
experienced as pleasurable. The brain “wants to feel good and it wants us to feel
good,” and “so if we identify something through some experience, however we get
there, whatever pathway that works, the brain likes it, the brain wants us to move
toward that, and it’ll encourage us to move toward that.” Pierce said pornography
addiction is real and that “we see a prevalence of it in the population.” People begin
looking at pornography and then “have a great difficulty stopping, just like people
who use drugs and alcohol or other things.” He said a typical offender begins
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looking at adult pornography, they look at it more and more frequently, they discover
new sites and more extreme forms of pornography, and “it can eventually make its
way into something like child pornography.” Pierce agreed that a twelve- or
thirteen-year-old boy could be traumatized by being shamed for looking at
pornography.
Pierce evaluated appellant using a sex offender risk assessment test and
determined his score to be “0.” Appellant “didn’t hit on anything” and thus he was
in a “low-risk category” and was “low risk for future sex offending behavior.”
Pierce said this was important for treatment and it should inform supervision
departments on the level of supervision required. On cross-examination, he
acknowledged that using child pornography as a coping mechanism could be a sign
of poor impulse control. He denied that the level of severity of images viewed by
the offender affects the offender’s risk to reoffend, saying that “in terms of risk,
there’s nothing in the literature that separates” different kinds of sexually deviant
images. Pierce evaluated appellant for psychopathy and said he scored a three out
of a possible forty on his evaluation.
Pierce said people who suffer trauma sometimes do bad things, but that should
not be the end of the story because people can be treated. With regard to child
pornography addiction, he said he sees “a lot of positive change in this group” with
treatment. He said he has seen successful treatment for child pornography offenders
who “are able to avoid falling back into these behaviors, maintain good control,
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develop healthier lifestyles, develop healthier lives, be very productive members of
society and be safe.” In his experience, child pornography offenders on probation
are held accountable by probation officers. Pierce said his treatment involved
working on behavioral controls, making environmental changes, incorporating
family members to remove secrecy and increase accountability, and prescribing
medicine to reduce libido. He said an important part of treatment is accepting
responsibility.
Pierce described the difference between hands-off and hands-on offenders.
The latter are those who have direct contact with a minor or person, while a hands-
off offender has committed an “online offense,” like appellant. The recidivism rate
for hands-on offenders being treated, he said, is between about five and twelve
percent. For hands-off offenders, the recidivism rate is between one and four
percent. On cross-examination, he agreed that one study, however, noted there may
be a significant underestimation of child pornography reoffenders, given that they
are not necessarily being monitored.
In closing argument, defense counsel, among other things, reiterated that
Glidewell testified appellant did not make any of the child pornography. Counsel
argued appellant did not photograph the images and he did not know the children
depicted. Counsel further argued, “And you know the evidence is clear, he did not
photograph those. He did not set them up, there was testimony about that. He does
not know these children.” Counsel also focused on appellant’s early childhood
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trauma and argued the State published images of child pornography to distract the
jury from considering appellant’s difficult story. Counsel encouraged the jury to
believe in redemption and recovery and asked it to recommend community
supervision.
Discussion
We will assume without deciding appellant’s confrontation rights were
violated and evaluate any error for harm. A Confrontation Clause violation is
constitutional error analyzed under Texas Rule of Appellate Procedure 44.2(a). TEX.
R. APP. P. 44.2(a); Haggard v. State, 612 S.W.3d 318, 328 (Tex. Crim. App. 2020).
Under that rule, “we must reverse a judgment of conviction unless we determine
beyond a reasonable doubt that the error did not contribute to the conviction or
punishment.” TEX. R. APP. P. 44.2(a); Holmes v. State, 323 S.W.3d 163, 173–74
(Tex. Crim. App. 2009). The question for the reviewing court is not whether the
verdict was supported by the evidence but focuses instead on the likelihood the
constitutional error was actually a contributing factor in the fact finder’s
deliberations in arriving at its verdict. Wells v. State, 611 S.W.3d 396, 410 (Tex.
Crim. App. 2020). In making this determination, factors we consider include, but
are not limited to, the nature of the error, whether the error was emphasized by the
State, the probable implications of the error, and the weight the fact finder would
likely have assigned to the error in the course of its deliberations. Id. Factors more
specific to the limitation of cross-examination include the importance of the
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witness’s testimony in the prosecution’s case, whether the testimony was
cumulative, the presence or absence of evidence corroborating or contradicting the
testimony of the witness on material points, the extent of cross-examination
otherwise permitted, and the overall strength of the prosecution’s case. Haggard,
612 S.W.3d at 329.
We conclude beyond a reasonable doubt that any error did not contribute to
appellant’s punishment. To reiterate, appellant argues he should have been
permitted to ask Del Valle whether any evidence showed appellant created the
pornography and whether her agency was investigating the creators of the
pornography. Appellant was charged with and pleaded guilty to both possessing and
promoting—sending an image via Instagram—child pornography. The evidence
showed he acquired images online in exchange for money or he traded images with
others, and no evidence showed or indicated that appellant created the images and
videos. On the contrary, Glidewell testified appellant did not make any of the child
pornography, and appellant emphasized that testimony before the jury. Del Valle
indicated her response would have been she did not know but could not exclude
appellant as a creator of the pornography, which was more equivocal than
Glidewell’s testimony on the same question. The record does not reveal what Del
Valle’s testimony would have been regarding any further investigations—she was
prohibited from so testifying. Even supposing her answer would have been that the
department was investigating any creators of the images and videos, we conclude
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such information would not have changed the jury’s verdict. The State presented
compelling evidence of the egregious nature of the charged crimes, and appellant
presented significant evidence in mitigation of punishment. All of this evidence
related to the charged crimes and to appellant’s role and culpability in them. We
cannot conclude one line of testimony stating that the federal government was
investigating others for other crimes—even if related—would have made a
difference in the jury’s verdict. Such testimony’s importance to the defense is
particularly limited here given that the evidence showed appellant obtained many of
the images of child pornography at issue from individuals he believed to be young
girls, who were presumably the creators of the images. Accordingly, we conclude
beyond a reasonable doubt any error did not contribute to appellant’s punishment.
See TEX. R. APP. P. 44.2(a).
Conclusion
We affirm the trial court’s judgments.
/Ken Molberg/
Do Not Publish KEN MOLBERG
TEX. R. APP. P. 47.2(b). JUSTICE
221094F.U05
221095F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JON RUSSELL WHITSON, On Appeal from the 443rd District
Appellant Court, Ellis County, Texas
Trial Court Cause No. 46632CR.
No. 05-22-01094-CR V. Opinion delivered by Justice
Molberg. Justices Reichek and Smith
THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered July 18, 2024
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JON RUSSELL WHITSON, On Appeal from the 443rd District
Appellant Court, Ellis County, Texas
Trial Court Cause No. 46633CR.
No. 05-22-01095-CR V. Opinion delivered by Justice
Molberg. Justices Reichek and Smith
THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered July 18, 2024
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