Texas Cases June 30, 2023: Womack v. State

Case Description

1

Do Not Publish TEX. R. APP. P. 47.2(B)

On Appeal from the 219th Judicial District Court Collin County, Texas Trial Court Cause Nos. 219-82489-2021 &219-82490-2021

Before Justices Partida-Kipness, Reichek, and Miskel, J.

MEMORANDUM OPINION

AMANDA L. REICHEK JUSTICE.

Colin Tyler Womack appeals the trial court's assessment of punishment following his pleas of guilty to the offenses of online solicitation of a minor and ten counts of possession of child pornography. Bringing two issues, appellant asserts the trial court abused its discretion in failing to consider mitigating evidence and in stacking his sentences. We affirm the trial court's judgments.

2

Factual Background

During the punishment phase of appellant's trial, Detective Chris Meehan testified he encountered appellant online during an Internet Crimes Against Children task force sting operation. Meehan posed as a thirteen year old girl named "Addy" and began chatting with appellant on various messaging platforms. Appellant was twenty-nine years old at the time.

The messages between appellant and "Addy" became sexual in nature, and appellant sent a picture of himself in his underwear. They discussed "Addy" losing her virginity, and he arranged to meet her to take her to a hotel. When appellant arrived at the designated meeting place, he was arrested. A search revealed appellant had a bottle of whiskey, a bong, marijuana, lubricating jelly, condoms, and a gun in his possession.

Officers obtained a warrant to search appellant's phone. The data extracted included approximately five hundred and eighty images and videos of child pornography. The majority of the images depicted children in the age range of three to six years old.

Police also discovered messages between appellant and an adult woman. The conversation was sexually explicit and concerned acts of bestiality. In addition, appellant discussed having sex with an underage relative. At one point, appellant asked the woman, "If we had a daughter, would you let me have sex with her?" When the woman asked appellant if he was "pulling her leg," appellant responded

3

he would not "penetrate her" until she was six or seven years old, but he would like to engage in other sexual acts with the child before that.

The defense called Stacy Dupler, a licensed sex offender treatment provider, to testify on appellant's behalf. Dupler opined that appellant was unusually forthcoming in his meetings with her, and she felt he was a good candidate for community supervision and treatment. Appellant testified he had never had sex with a minor. Regarding the conversations he had with people online and in text messages, he said he was simply voicing his fantasies. He further said that, at the time he was arrested, he was about to leave because he had decided not to go through with his plans to meet with "Addy." Appellant's parents testified they were shocked by his actions, but stated they would support him and believed he could successfully complete treatment.

After hearing the evidence, the trial court sentenced appellant to eighteen years in prison for the charge of online solicitation of a minor. The court further sentenced appellant to ten years in prison for counts one through nine of possession of child pornography. Appellant was sentenced to an additional ten years' confinement, probated for ten years, for the tenth count of possession of child pornography. The court ordered the sentences for the possession charges to run consecutively, meaning appellant's probationary period would not begin until he was released from prison after serving his sentence for counts one through nine. Appellant timely appealed.

4

Analysis

In his first issue, appellant contends the trial court erred by "failing to consider the mitigating evidence or hav[ing] a sentence established before hearing the evidence." It is a denial of due process for the court to arbitrarily refuse to consider the evidence and impose a predetermined sentence." Jefferson v. State , 803 S.W.2d 470, 471 (Tex. App.-Dallas 1991, pet. ref'd). In the absence of a clear showing to the contrary, however, we presume the trial court acted properly and considered the evidence presented and the full range of punishment. Brumit v. State , 206 S.W.3d 639, 645 (Tex. Crim. App. 2006). As a general rule, as long as a sentence is within the proper range of punishment, it will not be disturbed on appeal. Jackson v. State , 680 S.W.2d 809, 814 (Tex. Crim. App. 1984) (en banc). "The discretionary assessment of punishment within the legislatively prescribed boundaries has long been ingrained and accepted in American jurisprudence." Barrow v. State , 207 S.W.3d 377, 381 (Tex. Crim. App. 2006).

Appellant fails to point to anything in the record that would indicate the trial court refused to consider the mitigating evidence presented or assessed a predetermined sentence. He concedes the sentences imposed are within the statutory range, but suggests the lengths of the sentences were based on "fear rather than research." In making this assertion, appellant relies largely on public policy arguments based on evidence well outside the record in this appeal.

5

Appellant also suggests the sentences imposed were excessive because his crimes were "victimless." The fact that there was no victim of appellant's online solicitation was due to good police work, however, and not the nature of the offense appellant was attempting to commit. As for the possession offenses, the "integral part of the offense of possession of child pornography is the harm to each individual child." Vineyard v. State , 958 S.W.2d 834, 840 (Tex. Crim. App. 1998) (en banc). Possession of child pornography is not a victimless crime.

Approximately half of the punishment hearing consisted of testimony from witnesses called by the defense. Nothing indicates the trial court failed to consider this evidence or made a determination concerning sentencing before the evidence was introduced. We presume the trial court acted properly and resolve appellant's first issue against him. See Brumit , 206 S.W.3d at 645.

In his second issue, appellant contends his guilty plea was involuntary because he was not given notice by either the State or the trial court that his sentences for the ten counts of possession of child pornography could be "stacked." But the trial court's discretion to order sentences to run consecutively rather than cumulatively is statutorily granted and does not require either notice or a motion by the State. See TEX. CODE CRIM. PROC. ANN. ART. 42.08(A); TEX. PENAL CODE ANN. § 3.03(B)(3); Strahan v. State , 306 S.W.3d 342, 351 (Tex. App.-Fort Worth 2010, pet. ref'd). Nor was the trial court required to warn appellant about the possibility it would order his sentences to run consecutively when it admonished him about the consequences

6

of his plea. See Simmons v. State , 457 S.W.2d 281, 283 (Tex. Crim. App. 1970); McGrew v. State , 286 S.W.3d 387, 391 (Tex. App.-Corpus Christi-Edinburg 2008, no pet.) (imposition of consecutive sentences not direct consequence of plea and failure to warn does not render plea involuntary). Because the discretion to stack sentences is statutorily authorized, the statutes themselves provided appellant with notice of the possibility before he entered his plea. Strahan , 306 S.W.3d at 351.

Appellant additionally appears to argue the stacking of his sentences was illegal because all of the counts of possession were included in a single indictment. Article 21.24 of the Texas Code of Criminal Procedure authorizes the State to charge a defendant with multiple offenses in a single indictment and obtain separate convictions for each offense. Tex. Code Crim. Proc. Ann. art. 21.24; Martinez v. State , 225 S.W.3d 550, 554 (Tex. Crim. App. 2007). Pursuant to section 3.03(b)(3) of the Texas Penal Code, sentences imposed for multiple convictions of possession of child pornography may be ordered to run consecutively. Tex. Penal Code Ann. § 3.03(b)(3). The sentences in this case, therefore, are not illegal. We resolve appellant's second issue against him, and affirm the trial court's judgment.

JUDGMENT

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED .