Kevin Brushae Goodman v. the State of Texas ( 2024 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
KEVIN BRUSHAE GOODMAN, § No. 08-24-00031-CR
Appellant, § Appeal from the
v. § 186th Judicial District Court
THE STATE OF TEXAS, § of Bexar County, Texas
Appellee. § (TC# 2019CR11578)
MEMORANDUM OPINION 1
A jury found Appellant Kevin Brushae Goodman guilty on 20 counts of possession of child
pornography, and the trial court assessed punishment at ten years’ confinement and a $10,000 fine
and $600 in court costs for each count. 2 In five issues on appeal, which we have reordered below,
Appellant asserts (1) the evidence is legally insufficient to support his conviction and the trial court
abused its discretion by denying his motion for a directed verdict, (2) he was not afforded his
statutory ten days to prepare for trial, (3) the trial court abused its discretion by allowing
1
The appeal was transferred to this Court from the Fourth Court of Appeals pursuant to a Texas Supreme Court docket
equalization order. Accordingly, we apply the Fourth Court of Appeals’ precedent to the extent it conflicts with our
own. See Tex. R. App. P. 41.3.
2
The sentences for counts I and II run consecutively, and the sentences for counts III through XX run concurrently.
The total fines and costs assessed for all 20 counts is $10,600, per the Bill of Cost.
speculative testimony, (4) the trial court abused its discretion by exceeding the scope of
information requested by the jury during its deliberations, and (5) the trial court improperly
assessed $12,000 in court costs and $200,000 in fines without an ability-to-pay hearing. For the
following reasons, we affirm.
I. BRIEF OVERVIEW
Appellant was originally indicted on 86 counts of possession of child pornography. On
October 27, 2023, and the State went to trial on 20 of the 86 counts, amending one after voir dire.
Each alleged offense was said to have occurred on or about April 4, 2017. As explained below,
several witnesses testified at trial, including San Antonio Police Department Detective Justin
Knox, the State’s sponsoring witness for exhibits of the pornographic images found on Appellant’s
cell phone. Detective Knox testified extensively about the Cellebrite computer program used to
extract all the data, both illegal and non-illegal, from Appellant’s phone. The data extracted by
Detective Knox was used by the State to show Appellant possessed child pornography on or about
April 4, 2017.
II. ARTICLE 27.11 TEN DAYS’ NOTICE
We address Appellant’s second issue first because resolving this issue in Appellant’s favor
would afford him the greatest relief if sustained. Lopez v. State, 615 S.W.3d 238, 248 (Tex. App.—
El Paso 2020, pet. ref’d). After voir dire concluded, but before the jury was selected and sworn,
the State sought to amend one of the counts, which described the pornographic image as “a picture
of a child making oral contact with a male child’s penis[.]” [Emphasis added.] The State asked to
waive the word “child’s” thereby rendering the final phrase “male penis.” In his second issue on
appeal, Appellant contends he was not afforded ten days to prepare for trial after the State amended
2
the indictment; therefore, he argues, this Court must reverse the trial court’s judgment and render
an acquittal. We disagree.
Article 27.11 of the Texas Code of Criminal Procedure provides that “[i]n all cases the
defendant shall be allowed ten entire days, exclusive of all fractions of a day after his arrest, and
during the term of the court, to file written pleadings.” Tex. Code Crim. Proc. Ann. art. 27.11. An
appellant is required to either formally or informally invoke the statutory ten days. See Oliver v.
State, 646 S.W.2d 242, 245 (Tex. Crim. App. 1983) (“[W]hen the provisions of Art. 27.11, . . . are
either formally or informally invoked, the statutory ten days must be afforded the accused.”).
“Under the terms of Art. 27.11, . . . a mandatory statute, there is no requirement that the defendant
show harm; he must merely show that he made an affirmative request for the allowed statutory
time, and such was refused.” Id. (Court found Article 27.11 had been “informal[ly]” invoked by
counsel’s statement that “due to the fact that the defense had already prepared its case and because
of the surprise in the State’s change in the information we would not be prepared to go to trial at
this time”).
Here, defense counsel objected as follows:
My client is objecting. He says that this is what the State is intending to go on and
that it’s too late for them to be changing even more stuff at that point. So we’re
objecting to the striking of the word “child’s.” I’ll argue that it’s essentially trying
to amend the . . . indictment before the jury is already in a jury trial.
. . .
Okay. So my bill of exception is that the objection not being sustained affects the
strategy of the defense, in that in the indictment the striking of the word “child”
was an argument that we would be using to discredit the images. Now that the word
“child” has been removed, the State is free to argue that it’s an adult, thereby
impeding the defense’s strategy of arguing that it could not possibly be an adult in
the image. Therefore, the Court granting what’s essentially an amendment to the
indictment on the day of trial is prejudicial to my client and should not have been
granted.
3
Appellant did not request an additional ten days to prepare, nor did he contend he was
unprepared to go to trial on October 27, 2023. Because Appellant did not formally or informally
invoke the statutory ten days, we conclude the trial court did not err. See Macdonald v. State, No.
13-22-00123-CR, 2023 WL 2319363, at *4 (Tex. App.—Corpus Christi-Edinburg Mar. 2, 2023,
no pet.) (mem. op., not designated for publication) (defense counsel did not articulate any statutory
basis for his objection or request additional time to prepare, either explicitly or implicitly;
concluding “where no ‘affirmative request for the allowed statutory time’ was made,” appellant
did not formally or informally invoke Article 27.11); Carter v. State, No. 02-22-00009-CR, 2023
WL 3876759, at *6 fn.1 (Tex. App.—Fort Worth June 8, 2023, no pet.) (mem. op., not designated
for publication) (defense counsel did not seek additional time, but he also agreed to the trial
amendment and explicitly waived the ten-day period specified in Article 27.11; holding, “there
can be no error from granting the trial amendment in and of itself”). Accordingly, we overrule
Appellant’s second issue.
III. TESTIMONY OF DETECTIVE KNOX AND ADMISSION OF EXHIBITS
Before we address the sufficiency of the evidence, we consider Appellant’s third issue in
which he complains about the admission into evidence of certain testimony and exhibits. See
Lopez, 615 S.W.3d at 248 (allowing re-ordering of issues). On appeal, Appellant asserts that
Detective Justin Knox was not qualified as an expert and that his testimony about State Exhibits 1
through 4 was speculative because the Cellebrite computer program used to extract the data from
Appellant’s cell phone was not shown to be a valid and scientific form of theory. 3 We review a
3
Appellant also contends Detective Knox was not designated as an expert witness. However, he does not elaborate
on this contention; therefore, we do not address the merits of that particular complaint.
4
trial court’s decision to admit or exclude evidence for an abuse of discretion. Martinez v. State,
327 S.W.3d 727, 736 (Tex. Crim. App. 2010). The trial court abuses its discretion when its decision
lies outside the “zone of reasonable disagreement.” Id. We will uphold the trial court’s ruling if it
is correct under any theory of law applicable to the case. Foley v. State, No. 08-13-00039-CR,
2015 WL 4572123, at *4 (Tex. App.—El Paso July 29, 2015, pet. ref’d) (not designated for
publication).
Detective Knox testified that he had worked for six years in the Digital Forensics Unit.
Five of those years included serving on a U.S. Secret Service Electronic Crimes Task Force. He
also referenced his training using Cellebrite, which is a suite of forensics tools used to download
cellular phone data and produce a forensic report usable in court. 4 After Detective Knox testified
about his background and education, the State asked him about Cellebrite. He said he used the
Cellebrite program on approximately 200 phones from October 2022 to October 2023, and has
used Cellebrite for about six years. The State then asked to designate him as an expert. After
Appellant objected, Detective Knox testified further about Cellebrite, and the State again moved
to designate him as an expert in cell phone extractions. Appellant objected that the State had not
demonstrated Cellebrite was an accepted scientific protocol and argued it was merely “soft
science.” The trial court overruled the objection.
Detective Knox then testified about State Exhibits 1 through 4. He testified that after he
extracts data using Cellebrite, he creates a report. Exhibit 1 is a DVD he generated when he
processed Appellant’s cell phone; it contains a copy of the extraction, which includes everything
from Appellant’s cell phone. Exhibit 2 is a malware report he generated when he extracted data
4
“Cellebrite” is a computer application used to extract and read forensic data from digital devices. See Wright v. State,
618 S.W.3d 887, 890 (Tex. App.—Fort Worth 2021, no pet.). Detective Knox explained that Cellebrite extracts any
usable data from a cell phone, such as call logs, photos, videos, and text messages.
5
from Appellant’s cell phone. 5 Exhibit 3 is a USB flash drive that contains a condensed version of
his original Cellebrite extraction. Exhibit 3 includes “things . . . tagged as evidence relevant to the
case,” but not anything believed to be irrelevant to the case or private. Exhibit 4 is a USB flash
drive that contains the full version of his Cellebrite report, which comprises the same information
as Exhibit 1.
Though all exhibits were admitted in evidence over Appellant’s objections, only Exhibit 3
was published to the jury. Exhibit 3 contains, among other data, information that identified the cell
phone from which data had been extracted, tagging three calls, 28 message chains, various internet
searches, and 374 images with time stamps showing when the image was created or accessed on
the phone. 6 Not all of the images were published to the jury using Exhibit 3.
The State next introduced Exhibit 5, a USB flash drive containing a PowerPoint with all of
the child pornography images. Appellant affirmatively stated, “no objection” to admitting Exhibit
5. Exhibit 5 also contains data related to emails, Facebook posts, and other images not related to
child pornography but tending to show the phone belonged to Appellant. The State solicited
Detective Knox’s testimony about the multiple images.
On appeal, Appellant contends Detective Knox was not qualified to express his opinion
about the extraction of data from a cell phone, and there was no showing that Cellebrite was a
“valid and scientific form of theory.” 7 Appellant concludes that because Detective Knox’s
5
Detective Knox testified there was no indication the malware brought child sexual assault material or related
searches on the phone.
6
Detective Knox said the 28 message chains could contain hundreds of messages. He also tagged 5,388 internet
searches, 89 downloads, 886 searched items, five webbed bookmarks, and 4,408 items related to the history. He said
the phone’s search history revealed “[l]ots of teen [and] young female/male information.”
7
On appeal, Appellant cites Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993) (“trial judge
must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable”) and Kelly v.
State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992) (en banc) (“trial court’s first task is to determine whether the
6
testimony and Exhibits 1 through 4 were the only evidence offered by the State to support its claim
that he possessed child pornography, the judgment should be reversed and the case remanded for
a new trial. We disagree with both of Appellant’s arguments.
Detective Knox testified that he is a Certified Cellebrite Operator and is certified in
computer forensic training. He has testified as an expert in cell phone extraction. Detective Knox
teaches a course to detectives and district attorneys on how to use the Cellebrite reader, which
enables them to read the report generated after data is extracted from a phone.
Detective Knox stated Cellebrite is “widely known throughout the industry as a tool [used]
to download data from cell phones and things to get a forensic report that’s usable in court.” He
also described Cellebrite as a company that has “various software tools that aid in extracting data
from devices and then process[es] them into a usable format that’s understandable [to read].” He
said Cellebrite is accepted in the law enforcement industry and is “pretty easy” to use once a person
has received training—“you [just] follow the prompts.” When asked how he knew if a cell phone
extraction was successful, he replied:
When the extraction is performed, it will provide a document that will show it was
successful. And it will also hash the extraction, which is a way to identify that
particular set of data at a later time, if needed, to show that it hasn’t been altered in
any way.
A similar issue was considered in Wright, where the appellant challenged the reliability of
the expert testimony through which the State sponsored messages and photos extracted from the
appellant’s cell phone. Wright v. State, 618 S.W.3d 887, 890 (Tex. App.—Fort Worth 2021, no
pet.). He asserted the State failed to establish the reliability of Cellebrite, which the State’s expert
testimony is sufficiently reliable and relevant to help the jury in reaching accurate results”). However, neither at trial
nor on appeal does Appellant elaborate on his contention that Cellebrite is not reliable under Daubert and Kelly. As
explained below, we conclude there was no need to do so in this case.
7
used to extract the data from the phone. Id. The court of appeals concluded that “for such a basic
technique [as Cellebrite], the State was not required to establish a Kelly-style reliability predicate
through expert testimony,” and it was therefore “immaterial whether the State’s effort to lay such
a predicate was deficient.” Id. The court determined that it did not need to decide whether the State
laid an adequate reliability predicate because it was convinced that Kelly and Daubert did not
govern. Id. at 892.
Relying on its prior opinion in Washington v. State, 8 the Wright Court noted “that unlike
other technologies, a simple data transfer was ‘amenable to precise independent corroboration or
confirmation by untrained lay witnesses [and] proper application by an untrained judge or jury
without supporting expert testimony.’” Id. at 892–93 (quoting Washington, 2015 WL 505172, at
*4). “And because the witnesses’ corroboration ‘empirically showed that the extractions accurately
copied and displayed text-message exchanges,’ [the Washington Court] held that no expert
testimony was required to demonstrate whatever reliability was necessary.” Id. (quoting
Washington, 2015 WL 505172, at *4).
The Wright Court then noted that “[o]ne purpose served by the reliability requirement is to
ensure that complex or unfamiliar systems and ideas—those that ‘require significant expertise to
interpret’ or that are ‘based on scientific theory’—do not lead the lay fact-finder astray.” Id. at 893.
The court held, “[r]ather than advancing those aims, the drift of our reasoning in Washington was
nearly the opposite: that this sort of data-transfer evidence was so simple and familiar to any
computer user, so plainly verifiable and free of scientific variability, that a lay witness’s
8
In Washington, a detective used “UFED Cellebrite” to extract data from a cell phone and copy it to another location.
No. 02-13-00526-CR, 2015 WL 505172, at *2–5 (Tex. App.—Fort Worth Feb. 5, 2015, pet. ref’d) (mem. op., not
designated for publication). The detective explained that he knew the process was successful because the program
confirmed it and because the program copied a report of the extracted data onto a memory stick. Id. at *2.
8
corroboration of the results based on personal knowledge would sufficiently guard against
misleading the fact-finder, even without an expert or a reliability predicate.” Id. “[A] lay witness’s
corroboration that a process yielded accurate results usually serves the goal of authentication, not
reliability; Rule 901 provides that evidence about a process or system may be authenticated by
‘describing a process or system and showing that it produces an accurate result.’” Id. (quoting
Tex. R. Evid. 901(b)(9)). The Wright Court concluded that its “opinion in Washington suggest[ed]
that so long as the data extracted from the cellphone is properly authenticated by lay testimony, no
reliability predicate or expert testimony is required.” Id.
Similar to the facts in Wright, Detective Knox’s testimony rested on his Cellebrite training,
his experience using Cellebrite, and his ability to authenticate the data extracted from the phone
based on a report generated by Cellebrite. “To the extent that his testimony featured any opinions
at all, they were based upon his perceptions and his training in using the software, not on anything
that would require significant expertise or scientific acumen.” See id. “No ‘specialized knowledge’
was required to see that the extraction produced intact photos” and other data from Appellant’s
phone. Id. Thus, we conclude, as did the court in Wright and Washington, “that this case calls for
a similar result[:] it is enough that the extracted data was authenticated by lay testimony, even
without a reliability predicate properly laid by an expert.” Wright, 618 S.W.3d at 894 9 ;
Washington, 2015 WL 505172, at *4; see also Villareal-Garcia v. State, 671 S.W.3d 791, 792–93
(Tex. App.—Dallas 2023, no pet.) (adopting reasoning in Wright). We conclude that Detective
9
After examining the holdings in other cases, the Wright Court concluded “copying data using Cellebrite is like the
common exercise of using a thermometer, though it is perhaps even more like bagging up evidence at a crime scene.”
Id. at 895. “But ordinarily, we do not require expert testimony to establish the reliability of these aspects of the process
[of bagging evidence] before there may be simple testimony that an officer took evidence, preserved it in a bag, and
initialed it for authentication purposes.” Id. The court concluded, “[i]n the same way, Detective Kiser effectively used
a digital tool to ‘bag up’ digital evidence.” Id.
9
Knox’s testimony sufficiently authenticated the extracted data to satisfy Rule 901(b)(9). See
Tex. R. Evid. 901(a), (b)(9).
Furthermore, Appellant did not object to Exhibit 5, which contained images linking the
phone to Appellant and images of child pornography. A party must object every time the allegedly
inadmissible evidence is offered or obtain a running objection to the admission of the evidence.
Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003). Any error in the admission of
evidence is cured when the same evidence comes in elsewhere without objection. Id. “Thus, a
party may not complain on appeal about improperly admitted evidence if the same or similar
evidence is admitted without objection at another point in the trial, either before or after the
admission of the disputed evidence.” Farias v. State, No. 08-23-00234-CR, 2024 WL 3349079, at
*14 (Tex. App.—El Paso July 9, 2024, no pet.) (mem. op., not designated for publication). We
conclude that even if the trial court erred in admitting either the testimony of Detective Knox or
Exhibits 1 through 4, the alleged error was cured because Appellant did not object to the admission
of Exhibit 5.
We overrule Appellant’s third issue.
IV. SUFFICIENCY OF THE EVIDENCE
Appellant phrases his first issue on appeal as a challenge to both the legal and factual
sufficiency of the evidence. However, the substance of his complaint is that the trial court erred by
denying his motion for a directed verdict because the State “did not provide a scintilla of evidence
at trial that [he] knowingly or intentionally possessed child pornography.” He contends the only
evidence offered to support mens rea was “junk science,” which does not amount to legally
sufficient evidence. Therefore, we review Appellant’s issue under the standard applicable to a trial
court’s ruling on a motion for a directed verdict.
10
A. Standard of review and applicable law
We review a trial court’s ruling on a motion for directed verdict as a challenge to the legal
sufficiency of the evidence. See Richardson v. State, No. AP-75200, 2008 WL 217973, at *2
(Tex. Crim. App. Jan. 23, 2008) (not designated for publication) (“Because a challenge to a . . .
decision to overrule a motion for a directed verdict presents an attack to the legal sufficiency of
the evidence, we will review the . . . ruling while considering the legal sufficiency of the
evidence”); Fragoso v. State, No. 08-22-00182-CR, 2023 WL 4295855, at *3 (Tex. App.—El Paso
June 30, 2023, pet. ref’d) (mem. op., not designated for publication) (same).
In a legal-sufficiency challenge, we focus solely on whether the evidence, when viewed in
the light most favorable to the verdict, would permit any rational jury to find the essential elements
of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks
v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (establishing legal sufficiency under
Jackson v. Virginia as the only standard for review of the evidence). We defer to the trier of fact
to resolve conflicts in testimony, weigh the evidence, and draw reasonable inferences from basic
facts to ultimate facts. See Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); see also
Nisbett v. State, 552 S.W.3d 244, 262 (Tex. Crim App. 2018).
Thus, in analyzing the legal sufficiency of the evidence, we determine whether the jury’s
inferences necessary to establish guilt are reasonable based on the combined force of the evidence
when viewed in the light most favorable to the verdict. Orellana v. State, 381 S.W.3d 645, 653
(Tex. App.—San Antonio 2012, pet. ref’d); Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App.
2012). “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. “Circumstantial evidence is as probative as direct evidence
11
in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish
guilt.” Id. “On appeal, the same standard of review is used for both circumstantial and direct
evidence cases.” Id.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); and
(2) the person knows that the material depicts the child as described by Subdivision
(1).
Tex. Penal Code Ann. § 43.26(a) (emphasis added). “Possession” is defined as “actual care,
custody, control, or management.” Id. § 1.07(39). Appellant’s argument on appeal focuses on
“possession.”
B. Background
Raul Castillo testified that on April 7, 2017, he was walking home from work when he
found a broken cell phone. Believing he could discover the phone’s owner, he tried to find contact
information for the owner or someone who knew the owner but was unsuccessful. Once he reached
his apartment, his roommate, Justin Brachey, began looking through the phone. Brachey showed
Castillo what he saw on the phone, which Castillo described as “video thumbnails depicting young
boys . . . doing sex acts.” Castillo and Brachey contacted the police, who came to collect the phone
and take statements.
San Antonio Police Detective Ray Saenz testified that he found a cell phone number on the
incident report, which was later identified as belonging to Appellant. After obtaining a search
warrant to look for evidence of child pornography, Detective Saenz took the phone and the warrant
12
to the technical surveillance unit to be forensically searched. Detective Saenz later obtained a
forensic report, confirmed for himself that the phone contained child pornography, and confirmed
the that images had been downloaded from November 16, 2016, through April 4, 2017. He also
stated that he saw other non-illegal images on the phone between those dates, such as Facebook
photos.
Detective Knox testified about how he extracted the data from Appellant’s cell phone and
produced the forensic report reviewed by Detective Saenz. He stated that he extracted everything
from Appellant’s phone.
Appellant testified on his own behalf at trial. He did not deny that the phone belonged to
him or that it contained images. But, he stated that Javon—someone with whom he was in the
business of selling marijuana—occasionally used his phone. He denied going to any websites for
pornography involving underage children and said he did not know any images or such website
searches were on his phone. He assumed Javon was doing this to him to “take out the competition.”
He denied having possession of the phone when the images were downloaded.
On cross-examination, the State asked Appellant if he had possession of his phone on April
4, 2017, the date the images were downloaded. He replied, “on that day no, I did not, because I
was not the one that did it.” The State then asked Appellant to explain all the child pornography
websites that had been frequented since November 2016. By way of explanation, he claimed he
allowed “other people” to use his phone. Appellant also admitted he visited Facebook both before
and after the date the images were downloaded, but said he did not use his phone for anything
illegal.
At the close of evidence, Appellant moved for a mistrial on the ground that the State did
not satisfy its burden to show Appellant had “possession of any type” of child pornography. The
13
State countered that it produced sufficient evidence through Detective Knox and the Cellebrite-
extracted data to provide the links. The trial court overruled Appellant’s motion.
C. Analysis
The evidence viewed in the light most favorable to the verdict shows there was no dispute
Appellant owned the phone and the phone contained numerous images of child pornography and
data showing internet searches of websites with such images. We conclude that the circumstantial
evidence was probative of whether Appellant possessed the child pornography found on his phone.
See Hooper, 214 S.W.3d at 13; Tex. Penal Code Ann. § 1.07(39) (defining “possession”).
Detective Saenz testified that he confirmed the images of child pornography had been downloaded
from November 16, 2016, through April 4, 2017. Detective Saenz also stated that other non-illegal
images were on the phone between those same dates. Although Appellant contended “other
people” used his phone and denied having possession of his phone when the images were
downloaded, he admitted he used the phone both before and after the date the images were
downloaded. From this evidence, the jury could have inferred Appellant downloaded the child
pornography images to his cell phone. Based on the combined force of the circumstantial evidence
when viewed in the light most favorable to the verdict, such an inference was reasonable. See
Orellana, 381 S.W.3d at 653; Nisbett, 552 S.W.3d at 262. Furthermore, although Appellant denied
knowledge of the images and internet searches, it was the jury’s prerogative to not believe him.
See Covington v. State, No. 08-23-00176-CR, 2024 WL 1599211, at *4 (Tex. App.—El Paso Apr.
12, 2024, pet. ref’d) (mem. op., not designated for publication) (jury is the sole judge of witnesses’
credibility and weight to be given their testimony).
14
We conclude the evidence was legally sufficient to support the jury’s verdict; therefore,
the trial court did not err in denying Appellant’s motion for a directed verdict. Accordingly, we
overrule his first issue.
V. JURY’S REQUEST TO VIEW CERTAIN TEXT MESSAGES
During the jury’s deliberations, the jury requested text messages and image downloads
with timestamps between April 4 and April 6, 2017. In an attempt to comply with the request, the
State downloaded onto a laptop computer Appellant’s text messages and created a 1,620-page PDF
that included all text messages ever sent by Appellant “from the beginning of time,” but did not
contain images of child pornography. The State explained that extracting only the April 4 and April
6, 2017 texts would take one or more days. Appellant’s only objection at trial was that providing
all the text messages exceeded the scope of the jury’s request. After confirming the text messages
had all been admitted into evidence and overruling Appellant’s objection, the trial court sent the
computer containing the text messages to the jury.
In his fourth issue on appeal, Appellant asserts the trial court improperly exceeded the
scope of the jury’s inquiry and his conviction should be reversed. He asserts, without explanation,
that the trial court’s error bolstered the State’s case against him. In support of his argument,
Appellant relies on Texas Code of Criminal Procedure Article 36.28 and Pugh v. State, 376 S.W.2d
760 (Tex. Crim. App. 1964).
Article 36.28 states:
In the trial of a criminal case in a court of record, if the jury disagree as to the
statement of any witness they may, upon applying to the court, have read to them
from the court reporter’s notes that part of such witness testimony or the particular
point in dispute, and no other; but if there be no such reporter, or if his notes cannot
be read to the jury, the court may cause such witness to be again brought upon the
stand and the judge shall direct him to repeat his testimony as to the point in dispute,
and no other, as nearly as he can in the language used on the trial.
15
Tex. Code Crim. Proc. Ann. art. 36.28. Article 36.28 applies when there is a dispute about a
witness’s testimony. See Stredic v. State, 663 S.W.3d 646, 654–55 (Tex. Crim. App. 2022)
(“Article 36.28 dictates when testimony can be repeated to the jury (if there is a dispute), what
testimony can be repeated to the jury (the testimony in dispute), and how testimony can be repeated
to a jury (by reading it back, or if that is not possible, by having the witness repeat the testimony).”).
In Pugh, the jury asked for the time and date the defendant was picked up by a highway
patrolman. 376 S.W.2d at 761. Though the date shown by the evidence was stipulated to, the trial
court, on its own volition and over the appellant’s objection, recalled the jury and had the court
reporter read to them the patrolman’s testimony. Id. The Court of Criminal Appeals determined
that the former version of Article 36.28 controlled and limited the reading of testimony to the jury
during deliberations; therefore, the trial court’s action was not authorized and tended to bolster the
State’s case. Id. The Court concluded the appellant was deprived of a fair and impartial trial,
reversed the judgment, and remanded the cause. Id.We conclude that neither Article 36.28 nor Pugh apply here because the evidence requested
by and given to the jury was not testimony. Instead, it was text messages, all of which had
previously been admitted into evidence. Accordingly, we apply Article 36.25, which applies to
written evidence.
Article 36.25 requires the trial court to “furnish[] to the jury upon its request any exhibits
admitted as evidence in the case.” Tex. Code Crim. Proc. Ann. art. 36.25. “Compliance with this
statute is mandatory, and a trial court’s failure to do so constitutes harmful error.” Pena v. State,
No. 08-16-00236-CR, 2019 WL 1374152, at *12 (Tex. App.—El Paso Mar. 27, 2019, pet. ref’d)
(mem. op., not designated for publication) (trial court did not abuse its discretion by ordering bailiff
16
to briefly display requested evidence in deliberation room). However, “[a]lthough it is not in strict
compliance with art. 36.25 for the trial court to submit evidence to the jury without request, to do
so does not amount to reversible error.” Saenz v. State, 879 S.W.2d 301, 306 (Tex. App.—Corpus
Christi-Edinburg 1994, no pet.).
In this case, the alleged error focuses on the trial court’s decision to send back all the text
messages. At trial, Appellant’s only objection was that sending all the text messages to the jury
exceeded the scope of their request. Even if we were to assume that the trial court erred by sending
back all the text messages, any such error did not result in reversible harm. See Tex R. App. P.
44.2(b) (“Any other error, defect, irregularity, or variance that does not affect substantial rights
must be disregarded.”).
At trial, Appellant did not contend that sending all the text messages to the jury would harm
him. On appeal, he contends, without explanation, that sending all the text messages bolstered the
State’s case. See Cohn v. State, 849 S.W.2d 817, 819–20 (Tex. Crim. App. 1993) (en banc)
(bolstering is “any evidence the sole purpose of which is to convince the factfinder that a particular
witness or source of evidence is worthy of credit, without substantively contributing ‘to make the
existence of [a] fact that is of consequence to the determination of the action more or less probable
than it would be without the evidence.’”) (quoting Tex. R. Evid. 401)).
We conclude that nothing in the record supports Appellant’s contention that the jury used
the text messages for an improper purpose. See Smith v. State, 232 S.W. 497, 503 (1921) (“Unless
it is made to appear that the articles which are in evidence, and taken to the jury room, were used
by the jury in any different manner than accorded with the testimony, or that some new fact hurtful
to appellant was thereby discovered, the matter will not be revised on appeal.”); Jabben v. State,
No. 02-23-00210-CR, 2024 WL 3897994, at *7–8 (Tex. App.—Fort Worth Aug. 22, 2024, no pet.)
17
(mem. op., not designated for publication) (holding no reversible error even if error is assumed
where the appellant objected at trial and argued that providing all the exhibits in response to jury
asking about the manufacture date of guns constituted a comment on the age of the guns). On this
record, we cannot conclude the alleged error affected Appellant’s substantial rights.
Therefore, we overrule Appellant’s fourth issue.
VI. FINES AND COURT COSTS
The trial court assessed a $10,000 fine on each count as well as $600 in court costs on each
count. 10 In his fifth and final issue, Appellant asserts the trial erred by failing to conduct an on-
the-record hearing regarding his ability to pay in violation of Texas Code of Criminal Procedure
Article 42.15. He contends the judgment is void because the imposition of fines and court costs
without the statutorily required hearing is a defect that cannot be cured.
Under Article 42.15, “during or immediately after imposing a sentence in a case in which
the defendant entered a plea in open court[,] a court shall inquire on the record whether the
defendant has sufficient resources or income to immediately pay all or part of the fine and costs.”
Tex. Code Crim. Proc. Ann. art. 42.15(a–1). “If the court determines that the defendant does not
have sufficient resources or income to immediately pay all or part of the fine and costs, the court
shall determine whether the fine and costs should be[,]” among other options, “required to be paid
at some later date[.]” Id. art 42.15(a–1)(1).
Here, at the conclusion of the sentencing hearing, the trial court stated it would impose a
$10,000 fine on each count. The court did not conduct an Article 42.15 hearing before doing so,
but Appellant did not request such a hearing or object to the lack of a hearing. Recently, the Court
10
The Bill of Cost specifies that Appellant would only have to pay $10,600 in total.
18
of Criminal Appeals held that the right to an Article 42.15 hearing is a forfeitable right. See Cruz
v. State, No. PD-0628-23, 2024 WL 4031525, at *3, (Tex. Crim. App. Sept. 4, 2024). The Cruz
Court explained:
An ability-to-pay inquiry is not fundamental to the adjudicatory system; it is a post-
trial procedure that has nothing to do with adjudication; it does not ensure a jury, a
fair trial, a correctly informed sentencing judge, or a defendant’s ability to
understand the proceedings against him. It does not implicate “the integrity of
judicial sentencing proceedings” or “the criminal adjudicatory process[.]” [citation
omitted] Requesting it would not likely be futile, and its post-trial timing forecloses
the possibility that asking for it would expose the jury to the judge’s bias. [citation
omitted] Requiring an objection to enforce it would not undermine “the public’s
perception of the fairness of our judicial system” or engender “suspicions” about
the system’s “fairness and accuracy.” [citation omitted] In short, an ability-to-pay
inquiry made during or right after sentencing bears no consequence to the
adjudicatory process.
Id. We are bound by the Court of Criminal Appeals’ holding in Cruz. See Martell v. State, 656
S.W.3d 647, 652 (Tex. App.—El Paso 2022, pet. ref’d). Therefore, because Appellant forfeited
his right to an ability-to-pay inquiry on the record by failing to request a hearing or object to the
lack of a hearing, he failed to preserve error. See Cruz, 2024 WL 4031525, at *3; Tex. R. App. P.
33.1(a).
The Cruz Court also held that “missing out on [a hearing] would not doom a defendant to
undue hardship” because “[t]he same relief from fine and costs offered by Article 42.15(a–1)(1)–
(4)—delayed or periodic payments, community service, and/or fine-and-costs waiver—is
available forever after sentencing.” Cruz, 2024 WL 4031525, at *3. In this case, each judgment
contained the same language: “[t]he Court ORDERS Defendant to pay all fines, court costs, and
restitution as indicated above” and “[t]he Court ORDERS that upon release from confinement,
Defendant proceed immediately to the Bexar County District Clerk. Once there, the Court
ORDERS Defendant to pay, or make arrangements to pay, any remaining unpaid fines, court costs,
19
and restitution as ordered by the Court above.” Thus, consistent with Article 42.15(a–1)(1), the
final judgments included the assessment of fines and court costs, but allowed Appellant to pay any
remaining unpaid fines, court costs, and restitution upon his release from confinement. 11
Upon his release, if Appellant is unable to pay the fines and court costs, he can seek relief
from the trial court at that time. See Sloan v. State, 676 S.W.3d 240, 242 n.2 (Tex. App.—Tyler
2023, no pet.). If he notifies the court that he has difficulty paying fines and costs in compliance
with the judgment, “the court shall hold a hearing to determine whether that portion of the
judgment imposes an undue hardship on the defendant.” Tex. Code Crim. Proc. Ann. art.
43.035(a). “If the court determines at the hearing under Subsection (a) that the portion of the
judgment regarding fines and costs imposes an undue hardship on the defendant, the court shall
consider whether fines and costs should be satisfied through one or more methods listed under
Article 42.15(a–1).” Id. art. 43.035(c). The trial court retains jurisdiction for the purposes of
making such a determination. See id. art. 43.035(e). Appellant does not assert the trial court’s
determination that he should pay fines and court costs at some later date amounted to an abuse of
discretion.
We overrule Appellant’s fifth issue on appeal.
VII. CONCLUSION
For the reasons stated above, we affirm the trial court’s judgment.
LISA J. SOTO, Justice
11
The Bill of Cost specifies that Appellant must pay “within . . . 120 days of [his] release from TDC.”
20
October 29, 2024
Before Alley, C.J., Palafox and Soto, JJ.
(Do Not Publish)
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