                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         ______________________________

               No. 06-05-00041-CR
         ______________________________


           ORIAN LEE SCOTT, Appellant

                          V.

          THE STATE OF TEXAS, Appellee



    On Appeal from the Sixth Judicial District Court
                Lamar County, Texas
                Trial Court No. 20462




       Before Morriss, C.J., Ross and Carter, JJ.
          Opinion by Chief Justice Morriss
                                           OPINION

       As an employer, and benefactor, Orian Lee Scott seemed too good to be true. The three

teenaged boys Scott hired to perform household chores, such as yard work, painting, and bathing his

dogs, were paid extremely well—ten dollars per hour each—were occasionally given gifts, and

would often be treated to dinner and a movie after a day's work on the condition they get "cleaned

up" before going out. Many times over many months, the three boys complied and took showers in

Scott's guest bathroom, often masturbating while in the curtain-less shower.          Scott was so

openhanded that, while the boys were taking their showers, they were often still on the clock. Little

did they know, they were also being videotaped by a camera hidden in the bathroom clock.

       From this series of events, Scott was charged with, and convicted of, nine different

charges—three charges relative to each of the three boys. In each of three indictments, one per boy,

the State brought one count of inducing a sexual performance by a child, one count of producing or

promoting a sexual performance by a child, and one count of possession of child pornography.1

Overruling Scott's motion to sever the offenses, the trial court proceeded in a single prosecution.

Scott pled guilty to the three counts of possessing child pornography. A jury found him guilty of the

three charges of inducing a sexual performance by a child and of the three charges of producing or

promoting a sexual performance by a child. For each conviction of inducing a sexual performance,

Scott was sentenced to twenty years, a total of sixty years' confinement. For each production

       1
       See TEX . PEN . CODE ANN . §§ 43.25(b), 43.25(d) (Vernon Supp. 2004–2005), § 43.26
(Vernon 2003).

                                                 2
conviction, he was sentenced to ten years, a total of thirty years. Finally, for the three convictions

for possessing child pornography, he was sentenced to a total of ten years. The trial court stacked

the sentences, resulting in a combined sentence of 100 years. Scott now appeals, challenging the

sufficiency of the evidence to prove the "induce" element of the offenses charged, the consolidation

of the trial on all offenses, the reasonableness of the search yielding physical evidence against him,

and the stacking of the sentences.

       While we find the search valid and the physical evidence admissible, we reverse and render

Scott's conviction on Count One of each indictment, because we find the evidence legally

insufficient to prove Scott induced any of the boys to engage in sexual conduct. We reverse and

remand for a new trial Scott's conviction on Count Two of each indictment, and we reverse and

remand for a new punishment trial the charges for possession of child pornography, because we find

the trial court's refusal to sever the trial of each Count Two from Count Three, to which Scott had

pled "guilty," was harmful error—affecting the conviction on each Count Two and affecting the

punishment on each Count Three.

       Below, we (1) provide the factual background, (2) discuss the validity of the search,

(3) discuss the legal insufficiency of the evidence to prove Scott induced the boys' sexual conduct,

and (4) discuss the failure to sever each Count Two from its associated Count Three.




                                                  3
(1)    Factual Background

       A. H. and D. H., fourteen-year-old twin brothers, started working for Scott in August 2003,

initially helping him move in, and were each paid $10.00 per hour. After Scott was moved in, the

boys did other work around the house. Scott asked the brothers if they had a friend who could help

them. The brothers asked J. P., their fifteen-year-old friend, who agreed to work with them. After

summer ended, the three boys continued to work, mostly on weekends, about eight hours a day.

       Scott provided the boys swim trunks to work in so they would not "ruin" their clothes. Early

on, Scott began to suggest the boys shower after having bathed the dogs or spread ant poison. Scott

routinely offered to take the boys to dinner and a movie if they got "cleaned up" in the guest

bedroom.2 The boys took several showers during the months they worked for Scott, despite the fact

that there was no shower curtain.

       In March 2004, the boys were playing on Scott's computer—they said with his

permission—and discovered some photographs of young nude males in suggestive poses. The boys

went to authorities, and an investigation by the Lamar County Sheriff's Department ensued. Based

on his interviews with the complainants and the mother of two of the complainants, Detective Travis

Rhodes obtained a search warrant. The resulting search of Scott's house yielded child pornography




       2
         A. H. testified that he did think it was a bit strange to get paid so much and also get dinner
and a movie. Over the months, Scott also gave the boys small gifts such as binoculars, a camera, and
an air pistol.

                                                  4
on Scott's computer and also revealed that he had been secretly videotaping the boys' showers

through use of a camera hidden in a digital clock in the bathroom.

       Each boy testified at trial, admitting to masturbating frequently while in the shower. Each,

however, made it clear that Scott never offered him money to masturbate in the shower, never

encouraged him to do so, never threatened or coerced him into doing so, and never even asked him

to do so. The boys testified that they did not know of the videotaping and that it was done without

their consent.

(2)    The Search Was Valid

       Scott filed a pretrial motion to suppress December 6, 2004. Asserting that the boys did not

have permission to be on the computer, Scott sought to suppress evidence found on his computer.3

He also argued that, since Rhodes already knew about the presence of safes on the premises, Rhodes

should have included such information in his affidavit. Since Rhodes did not, argues Scott, the

search warrant did not authorize search of the locked safe in the laundry room in which the officers

found the videotapes. The trial court heard and overruled Scott's motion.

       A search is unreasonable and violates the protections of the Fourth Amendment if it exceeds

the scope of the authorizing warrant. U.S. CONST . amend. IV; see Long v. State, 532 S.W.2d 591,

596 (Tex. Crim. App. 1975); DeMoss v. State, 12 S.W.3d 553, 558 (Tex. App.—San Antonio 1999,



       3
        While neither the federal nor the state constitution require exclusion of evidence obtained
by a private illegal search, Article 38.23 of the Texas Code of Criminal Procedure requires such
evidence be excluded. Cobb v. State, 85 S.W.3d 258, 270–71 (Tex. Crim. App. 2002).

                                                 5
pet. ref'd). While the scope of the search warrant is governed by its terms, the search may be as

extensive as is reasonably required to locate items described in the warrant. U.S. CONST . amend. IV;

Haynes v. State, 475 S.W.2d 739, 741–42 (Tex. Crim. App. 1971). A container that may conceal

the object of a search authorized by warrant may be opened immediately. See United States v. Ross,

456 U.S. 798, 823 (1982); see also United States v. Giwa, 831 F.2d 538, 543–44 (5th Cir. 1987)

("any container situated within residential premises which is the subject of a validly-issued warrant

may be searched if it is reasonable to believe that the container could conceal items of the kind

portrayed in the warrant").4

       If an appellant challenges the scope of the search because of the location where the items

were found, the officer must show that he or she was properly in the place where the item was found,

either on basis of the search warrant or under the authority of an exception to the warrant

requirement. Snider v. State, 681 S.W.2d 60, 62–63 (Tex. Crim. App. 1984); Swink v. State, 747

S.W.2d 53, 54 (Tex. App.—Texarkana 1988, no pet.). To illustrate what the record must show when

an appellant advances such a challenge, we look to DeMoss. In a search for an illegal cable box, the

officer executing the search warrant in DeMoss did not exceed the scope of the warrant when he

searched a shoebox found in a bedroom of the residence specified in the warrant and when he

       4
         In an unpublished case, the Corpus Christi Court of Appeals came to a similar conclusion
while reviewing convictions for aggravated sexual assault and possession of child pornography,
holding that "ammunition box was within the scope of the search warrant as it was reasonable to
believe that the box could contain photographs." Heileman v. State, Nos. 13-02-643-CR & 13-02-
644-CR, 2004 Tex. App. LEXIS 4521, at *6 (Tex. App.—Corpus Christi May 20, 2004, no pet.) (not
designated for publication).

                                                 6
testified that a smaller portion of the cable box could have fit into the box.5 DeMoss, 12 S.W.3d at

558.

       The search warrant issued to Rhodes authorized him to search "[a] single family dwelling

located at Rt. 1 Box 130-D Brookston, Texas . . . located on county road 34300 5/10 of a mile south

of FM38 on the eastside of the county road" including "all other buildings, structures, places and

vehicles on said premises and within the curtilage . . . which may reposit or secrete property which

is the object of the search requested herein." The search warrant authorized the search for "[a]ny still

photos, digital photos, videotapes, DVD'S [sic], MP3[,] or audio recordings" and "[a]ny device or

equipment capable of producing and/or storing still photos, digital photos[,] and video."

       Rhodes testified that D. H. did tell him there were two safes located in the house. Rhodes

further testified that he based his search for videotapes and recording devices on the complainants'

statements regarding Scott's comments to them about him secretly recording people in the past and

that the safe was a sufficient size to house videotapes. Regardless of whether Rhodes already knew

about the safe, the warrant authorized the search of the laundry room and, more specifically, the safe

found in the laundry room that contained the videotapes of the complainants taking showers.

Rhodes's testimony shows he was properly in the place where the item was found.



       5
        The shoebox did not contain a component of an illegal cable box. DeMoss, 12 S.W.3d at
558. Instead, the officer discovered pornographic pictures he believed to be child pornography, at
which time he left to procure a second warrant authorizing a search for those items relating to child
pornography. See id. Ultimately, DeMoss's convictions for aggravated sexual assault and inducing
sexual performance were affirmed. Id. at 561.

                                                   7
        Likewise, the seizure of Scott's computer was authorized by the search warrant. The boys

told Rhodes they did have permission to be on the computer when they discovered the photographs

of nude boys. A. H. testified they were allowed to use it "many" times. Scott failed to prove the

boys were not rightfully on the computer when they discovered the materials. Therefore, he failed

to support his position that the material found on the computer should have been excluded. See TEX .

CODE CRIM . PROC. ANN . art. 38.23 (Vernon 2005). We conclude that the seizure of the items in

question pursuant to the search warrant was lawful and that the trial court properly overruled Scott's

motion to suppress.

(3)     The Evidence Was Legally Insufficient To Prove that Scott Induced Sexual Conduct

        Scott contends the evidence is legally and factually insufficient to prove he induced the boys

to engage in sexual conduct. He concedes that he induced the boys to take showers, but maintains

that such inducement is insufficient to constitute an offense under Section 43.25 of the Texas Penal

Code. Because a legal sufficiency challenge, if sustained, results in an acquittal rather than a retrial,

we must consider this issue first. See Clewis v. State, 922 S.W.2d 126, 132 (Tex. Crim. App. 1996)

(en banc); State v. Mercier, 164 S.W.3d 799, 812 (Tex. App.—Corpus Christi 2005, no pet.).

        A person commits an offense if, knowing the character and content thereof, he or she

employs, authorizes, or induces a child younger than eighteen years of age to engage in sexual

conduct or a sexual performance. TEX . PEN . CODE ANN . § 43.25(b).6 "Sexual conduct" means

        6
        An offense under Section 43.25(b) is a second-degree felony. TEX . PEN . CODE ANN .
§ 43.25(c) (Vernon Supp. 2004–2005).

                                                   8
sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality,

masturbation, 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 . PEN . CODE ANN . § 43.25(a)(2) (Vernon Supp.

2004–2005); Alexander v. State, 906 S.W.2d 107, 109 (Tex. App.—Dallas 1995, no pet.). "Sexual

performance" means any performance or part thereof that includes sexual conduct by a child younger

than eighteen years of age. TEX . PEN . CODE ANN . § 43.25(a)(1) (Vernon Supp. 2004–2005);

Alexander, 906 S.W.2d at 109.

       The State charged Scott with allegations of inducing a sexual performance by the three

complainants:

       did then and there intentionally or knowingly, knowing the character and content
       thereof, induced a child younger than 18 years of age, to-wit: [each complainant], to
       engage in sexual conduct or a sexual performance, to-wit actual lewd exhibition of
       the genitals or the anus, or masturbation.

(Emphasis added.)

       In the absence of a statutory definition, words are to be taken and understood in their

common and ordinary meanings. Williams v. State, 674 S.W.2d 315, 322 (Tex. Crim. App. 1984);

Alexander, 906 S.W.2d at 111. Since the term "induce" is not defined by the Texas Penal Code, we

must adopt the word's meaning in common usage. TEX . GOV 'T CODE ANN . § 311.011(a) (Vernon

2005). To "induce" is "to lead or move by persuasion or influence, as to some action or state of

mind" or "to bring about, produce, cause." RANDOM HOUSE DICTIONARY                 OF THE   ENGLISH

LANGUAGE 975 (2d ed. 1987). Black's Law Dictionary defines "inducement" as "[t]he act or process


                                                  9
of enticing or persuading another to take a certain course of action." BLACK'S LAW DICTIONARY 790

(8th ed. 2004). We now turn to look at cases which illustrate the term "induce."

       One induces a child to engage in sexual conduct if he or she instructs the child to disrobe and

engage in simulated sexual intercourse with a nude female child. Foty v. State, 755 S.W.2d 195

(Tex. App.—Houston [14th Dist.] 1988, no pet.). Foty photographed the two children in various

sexual positions and in a variety of settings both inside and outside his house. Id.

       Another man admitted taking photographs of a young girl nude from the waist down with her

legs spread and a close-up photograph of the girl's genitalia, but he argued that he had taken the

photographs to document suspected sexual abuse of the girl, a defense which the jury rejected. See

Garay v. State, 954 S.W.2d 59, 62 (Tex. App.—San Antonio 1997, pet. ref'd). The appellate court

held that the admissions and photographs alone were sufficient evidence to support the inducement

charges. Id. at 66.

       Still another individual challenged the sufficiency of the State's proof of the inducement

element of this offense. Dorval v. State, No. 03-03-00570-CR, 2004 Tex. App. LEXIS 6813, at *2–3

(Tex. App.—Austin July 29, 2004, no pet.) (not designated for publication). The appellate court held

that a rational trier of fact could conclude beyond a reasonable doubt that the complainant was

persuaded or prevailed on to engage in the sexual performance by Dorval's repeated requests, his

promise not to touch her, and his assurance that the videotape would belong to her. Id.




                                                 10
       The Corpus Christi Court of Appeals recently addressed the limits of the term "induce" as

used by Section 43.25(b). See Dornbusch v. State, 156 S.W.3d 859, 866–68 (Tex. App.—Corpus

Christi 2005, no pet.). That court determined that Section 43.25(b)'s use of the term "induce" was

not unconstitutionally vague as applied to Dornbusch's alleged conduct. Id. at 867. The record

showed that Dornbusch held a position of authority at the complainant's school, that Dornbusch

provided the complanaint with alcohol, that he took her to a motel out of town during the school day,

and that he made unsolicited sexual advances while at the motel jacuzzi. Id. Since the complainant

was supposed to be at school and was, instead, miles away having consumed alcohol, the court

concluded Dornbusch had put her in a position in which she found it almost impossible to deny a

sexual advance. Id. Such conduct, held the court, fell within the common understanding of the term

"induce." Id. The Dornbusch court concluded that the evidence established Dornbusch used

persuasion and influence to bring about the complainant's sexual conduct and, thus, was legally

sufficient to prove inducement. Id. at 868. The evidence was also held to be factually sufficient to

support the jury's verdict. Id. The complainant's testimony that she was not offered money or grades

in exchange for sexual conduct, that she was not intoxicated, that she was not threatened, and that

she knowingly consented to the sexual conduct did not outweigh the evidence that Dornbusch

induced the sexual conduct by putting the complainant in the above-detailed situation. Id. The

statute does not require that any benefit be provided in exchange for the sexual conduct, nor does

the common meaning of the term "induce" require such an exchange. Id. Similarly, neither the



                                                 11
statute nor the generally understood meaning of "induce" requires that the inducement be verbal and

explicit. Id. Dornbusch was careful to distinguish the term "induce" from the term "force." Id.

       We review the legal sufficiency of the evidence by viewing the relevant evidence in the light

most favorable to the verdict and determining whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. See Johnson v. State, 23 S.W.3d 1, 7

(Tex. Crim. App. 2000). While the evidence shows that the boys' masturbation7 would have fallen

into the definition of sexual performance, on this record, there is no direct link between any

inducement from Scott—requests, good wages, dinner, entertainment, and gifts—and the boys'

masturbation. All three boys testified that Scott never coerced, encouraged, or even asked them to

masturbate in the shower. Scott did encourage them to take a shower, but he did not encourage them

to masturbate. In the relatively few cases addressing this offense, most, if not all, have involved

sexual conduct or a sexual performance of which the child victim was aware. The boys testified

they were unaware they were being videotaped while in the shower.

       The State argues that, since Scott had already videotaped the boys in the shower and knew

that they were likely to engage in masturbation, Scott's encouragement and bribery of the boys to

take a shower is the functional equivalent of inducing the actual act of masturbation. It would appear

that there has been an increasing reach of this provision from Foty to Dornbusch, but finding the




       7
        The State, in its argument, concedes that, absent the masturbation, there would be no sexual
conduct contained in the videotapes. We limit our discussion to the masturbation.

                                                 12
evidence sufficient here would expand the statute beyond its plain meaning and beyond our

understanding of the Legislature's intent in passing it.

        Scott's inducement must relate to the specific sexual conduct at which the statute is aimed.

That is, inducing the boys to take a shower does not violate the statute. Indeed, it is the masturbation

that satisfies the sexual conduct element of the offense. It is this specific conduct which must be

induced in order to violate the statute. Put another way, when looking at whether the facts of any

given case constitute "inducement" in its ordinary meaning, the focus must be on what, if anything,

Scott did to bring about, persuade, or encourage the boys' masturbation.

        It is contrary to the ordinary meaning of the word "induced" to conclude that Scott used

"persuasion or influence" to"lead" the boys to masturbate when there was no direct inducement and

the boys were not aware they were being observed. By all accounts, the boys did not know Scott was

videotaping them while they were in the shower. Each testified that Scott never mentioned

masturbation to them, and A. H. testified that he would have refused any request by Scott to

masturbate.

        Scott did induce the boys to take a shower and then capitalized on the boys' tendencies to

masturbate by recording them for his own gratification. We do not minimize the wrong committed

against these young people; the record clearly supports a finding that Scott wronged these boys.

However, on these facts, the offense was not one of inducement of a sexual performance or sexual




                                                  13
conduct as contemplated by Section 43.25(b).8 As D. H. testified, "he induced me to be around the

environment to do that." While probably an accurate statement, it does not amount to the offense

charged here. We sustain Scott's first point of error, concluding that, on these facts, the evidence was

legally insufficient to prove that Scott induced the boys to masturbate. We reverse the judgment of

conviction and render a judgment of acquittal on Count One of each indictment. See Flores v. State,

139 S.W.3d 61, 64 (Tex. App.—Texarkana 2004, pet. ref'd).

        Having concluded that the evidence was legally insufficient to support the conviction, we

proceed to Scott's other points of error, with the understanding that Scott is subject to conviction only

for the remaining offenses: production or promotion of a sexual performance by a child and

possession of child pornography.9

(4)     As to Each Indictment, Refusal To Sever Count II from Count III Was Harmful Error

        On November 22, 2004, more than thirty days before trial, the State filed its notice of

consolidation. See TEX . PEN . CODE ANN . § 3.02(b) (Vernon 2003). Before trial, Scott responded


        8
         We note the unpublished case of Goodson v. State, Nos. 2-01-458-CR, 2-01-459-CR, 2-01-
460-CR, 2-01-461, CR, 2003 Tex. App. LEXIS 3404 (Tex. App.—Fort Worth Apr. 17, 2003, pet.
ref'd) (not designated for publication), involving a hidden camera used to tape two girls taking
showers. The facts are somewhat analogous, and Goodson, like Scott, was charged with an offense
under Section 43.25(b). Id. at *6. While he challenged the limits of "induce" by way of a motion
to quash the indictment, the Goodson case is procedurally distinguishable because Goodson pled
guilty. Thus, Goodson was not entitled to a review of the sufficiency of the evidence. Id. at *9.
        9
        When a reversal rests on the ground that the State has failed to produce sufficient evidence
to prove its case, the Double Jeopardy Clause bars the State from making a second attempt at
conviction. Tibbs v. Florida, 457 U.S. 31, 42 (1982); see Greene v. Massey, 437 U.S. 19, 24 (1978);
Moff v. State, 131 S.W.3d 485, 489 (Tex. Crim. App. 2004).

                                                   14
and filed a motion to sever Count III from Counts I and II in each indictment.10 After hearing

arguments, the trial court denied the motion to sever and allowed the State to proceed on the

consolidated causes.

       A defendant may be prosecuted in a single criminal action for all offenses arising out of the

same criminal episode. TEX . PEN . CODE ANN . § 3.02 (Vernon 2003); see also TEX . CODE CRIM .

PROC. ANN . art. 21.24 (Vernon 1989). The accused may rely on Section 3.04, however, and seek

a severance of the offenses:

              (a) Whenever two or more offenses have been consolidated or joined for trial
       under Section 3.02, the defendant shall have a right to a severance of the offenses.

              (b) In the event of severance under this section, the provisions of Section 3.03
       do not apply, and the court in its discretion may order the sentences to run either
       concurrently or consecutively.

               (c) The right to severance under this section does not apply to a prosecution
       for offenses described by Section 3.03(b)(2) unless the court determines that the
       defendant or the state would be unfairly prejudiced by a joinder of offenses, in which
       event the judge may order the offenses to be tried separately or may order other relief
       as justice requires.

TEX . PEN . CODE ANN . § 3.04 (Vernon 2003). When a defendant timely requests severance under

Section 3.04(a), his or her right to a severance is absolute and severance is mandatory. See Coleman

v. State, 788 S.W.2d 369, 371 (Tex. Crim. App. 1990). A motion to sever must be raised before

trial. See Thornton v. State, 986 S.W.2d 615, 617 (Tex. Crim. App. 1999).

       10
        Scott also moved to sever Counts I and II and to have a separate trial as to each
complainant. But the most important portion of the motion moves the trial court to sever Count
III—to which Scott pled guilty—from Counts I and II, in each case.

                                                 15
        By its own terms, Section 3.04(a) does not apply to offenses falling under Section 3.03(b)(2),

including offenses involving sexual performance by a child under Section 43.25. Therefore, Scott

was not entitled to a mandatory severance of Count I from Count II. Since Counts I and II involve

Section 3.03(b)(2) offenses, Scott would bear the burden of showing that he "would be unfairly

prejudiced by a joinder of offenses." See TEX . PEN . CODE ANN . § 3.04(c). Section 3.04(c)'s

exception does not, however, apply to an offense under Section 43.26 for possession of child

pornography. Therefore, on his timely request, Scott was entitled to a mandatory severance of Count

III from Counts I and II in each indictment. See TEX . PEN . CODE ANN . § 3.04(a); Coleman, 788

S.W.2d at 371.

        Error surrounding a trial court's failure to grant a mandatory severance under Section 3.04(a)

is subject to harm analysis. Llamas v. State, 12 S.W.3d 469, 470 (Tex. Crim. App. 2000). We must

disregard any error that does not affect Scott's substantial rights. See TEX . R. APP . P. 44.2(b).

Everything in the court reporter's record is data from which we can analyze harm. See Llamas, 12

S.W.3d at 471. The Texas Court of Criminal Appeals has directed Texas courts "[t]o judge the

likelihood that harm occurred [by] consider[ing] everything in the record including all the evidence

admitted at trial, the closing arguments, and, in this case, the jurors' comments during voir dire." Id.

        The State relies on Dominguez v. State, 62 S.W.3d 203, 206–08 (Tex. App.—El Paso 2000,

pet. ref'd), to support its position that error, if any, in failing to sever the trial on all counts was

harmless. The Dominguez trial court refused to sever the trial on allegations of unlawful possession



                                                  16
of a controlled substance and failure to stop and render aid, offenses which are markedly different

than those before us.11 Id. at 205. The appellate court recognized that, on his timely request,

Dominguez was entitled to a severance of the offenses and that the trial court erred by refusing to

grant the severance. Id. at 206. The court concluded, however, that evidence of each of the crimes

would have been admissible in a separate trial of the other offense as "same transaction contextual

evidence." Id. at 208 (citing Rogers v. State, 853 S.W.2d 29, 32–34 (Tex. Crim. App. 1993 ).) Since

the jury would have heard "the same evidence regardless of whether the offenses were tried

separately in different trials or together in one," the court concluded it was harmless error to refuse

to sever the offenses. Id.

        The Waco Court of Appeals recently decided a case similar in some respects to the one

before us. See Wheat v. State, 160 S.W.3d 631, 634 (Tex. App.—Waco 2005, no pet.). Wheat was

charged with two counts of indecency with a child against two complainants and one count of sexual

assault of one of those complainants. Id. at 632. Wheat pled "guilty" to both counts of indecency

        11
          In terms of analysis, we note that Dominguez is more relevant to the questions presented
here than some other cases regarding the issue of severance of multiple sexual offenses committed
against children. See Matthews v. State, 152 S.W.3d 723, 726 (Tex. App.—Tyler 2004, no pet.);
Salazar v. State, 127 S.W.3d 355, 358 (Tex. App.—Houston [14th Dist.] 2004, pet. ref'd). All
allegations pending against Matthews and against Salazar were specifically included in Section
3.03(b)(2), meaning that severance of these offenses was discretionary under Section 3.04(c). See
Matthews, 152 S.W.3d at 730; Salazar, 127 S.W.3d at 364. Therefore, Matthews and Salazar had
to show that joinder caused "unfair prejudice" and that the trial court abused its discretion in refusing
to sever the trial. See Matthews, 152 S.W.3d at 730; Salazar, 127 S.W.3d at 364. Here, allegations
of possession of child pornography under Section 43.26 does not fall within Section 3.03(b)(2) and,
therefore, was not subject to discretionary severance. Rather, as we will discuss, severance in the
instant case was mandatory under Section 3.04(a).

                                                   17
with a child and "not guilty" to the allegations of sexual assault of a child. Id. Each offense was a

Section 3.03(b)(2) offense, meaning Section 3.04(c) would require Wheat to prove he was "unfairly

prejudiced" by the joinder of the three offenses. The court held that the trial court abused its

discretion by refusing to sever the counts to which Wheat pled "guilty." Id. at 637. Wheat was

unfairly prejudiced on the sexual assault allegation by the unauthorized bifurcated trial on the two

"guilty" pleas. Id. at 636–37; see also TEX . CODE CRIM . PROC. ANN . art. 26.14 (Vernon 1989);

Ricondo v. State, 634 S.W.2d 837, 841 (Tex. Crim. App. 1982). The court pointed out that the

consolidation affected what defensive theory Wheat could advance at trial. Wheat, 160 S.W.3d at

636. The court also suggested the possibility that defense counsel could have prevailed on objections

to the admission of any evidence relating to those two offenses in a separate trial on the sexual

assault charges. Id.

       Relying on the principles expressed in Dominguez, the State argues that, even if trial of the

allegations in each Count III should have been severed in the instant cases, any error is harmless

since all evidence related to Count III would probably have been admissible in trial of Counts I and

II either as "same transaction contextual evidence" or as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident under TEX. R. EVID . 404(b).

See Dominguez, 62 S.W.3d at 208 (citing Rogers, 853 S.W.2d at 32–34); see also Tovar v. State, 165

S.W.3d 785, 795 (Tex. App.—San Antonio 2005, no pet.).




                                                 18
       Dominguez does not address all of our concerns in the case at bar, however, since that case

involved joinder of only offenses to which the defendant had pled "not guilty." Here, of course, the

trial proceeded on charges to which Scott had pled "guilty" and others to which he pled "not guilty."

Dominguez does remain helpful in its illustration of the harm analysis required when dealing with

a trial court's refusal to grant a motion for mandatory severance under Section 3.04(a).

       In Wheat, we see another distinction: Wheat was convicted of three offenses, all of which

fell under Section 3.04(c)'s discretionary severance provision as well. In the instant case, since

Counts III, alleging possession of child pornography, did not fall under Section 3.03(b)(2),

discretionary severance under Section 3.04(c) is not the issue as it was in Wheat. The allegations

pending against Scott put him squarely within the mandatory severance provision of Section 3.04(a)

with respect to Count III. That being the case, on Scott's timely request for severance, the trial court

was required to sever each Count III. However, Wheat remains valuable to our discussion in that it

analyzes the impact or prejudice of trying a defendant for an offense to which he or she pled "guilty"

with an offense to which he or she pled "not guilty."

       After reviewing the entire record to determine whether the appellant was harmed by the

failure to grant mandatory severance, the Llamas court noted the record in that case showed that, no

less than five times during voir dire, veniremembers commented in front of the entire jury panel that

they were concerned that Llamas had two charges against him. Llamas, 12 S.W.3d at 472 (quoting

and affirming the observations of the intermediate appellate court in Llamas v. State, 991 S.W.2d



                                                  19
64, 69 (Tex. App.—Amarillo 1998)). The court pointed out that these concerns constitute "exactly

the type of harm that [S]ection 3.04 allows a criminal defendant, in his sole and absolute discretion,

to choose to avoid." Id. (again quoting the observations of the lower court). That being the case, the

court could not be sure that the error in refusing mandatory severance did not have a substantial or

injurious effect on the jury's verdict. Id.

        Similarly, we note the comments made during voir dire by defense counsel when the panel

learned of Scott's plan to plead "guilty" to possession of child pornography:

                [DEFENSE COUNSEL]:            Does anybody here had [sic] a son, daughter,
                grandson or granddaughter that has been the victim of any type of sexual
        assault r sexual abuse that might make you feel like you could not serve on this jury?
        What's your number?

                JUROR:          18.

                [DEFENSE COUNSEL]:             Could you tell me about that?

                JUROR:          Family members.

                [DEFENSE COUNSEL]:             Was that your son or daughter?

                JUROR:          Yes.

                [DEFENSE COUNSEL]:             The fact that that happened to you, are
                you going to hold that against Mr. Scott?

                JUROR:          Well, I got to ask you a question.

                [DEFENSE COUNSEL]:             Yes, sir.

                JUROR:        You announced that he             had possession of
                pornographic material.


                                                  20
                [DEFENSE COUNSEL]:              Yes, I did say that.

                JUROR:          And that could entice young kids into an act.

                [DEFENSE COUNSEL]:              You're right.

                JUROR:          So, it is extremely hard to be able to stay focused on
                it without hearing all the facts. But that one statement was awful
                strong for the D.A. in my opinion.

                [DEFENSE COUNSEL]:              What number are you?

                JUROR:          28.

While the record is somewhat unclear as to which statements are attributable to Juror No. 18 and

which are attributable to Juror No. 28,12 it seems reasonably clear that both made similar comments

regarding the guilty plea. At a minimum, some veniremembers expressed some ideas associating

Scott's guilty plea with his guilt on the other charges, thereby exposing the entire panel to such ideas.

We point out also that Juror No. 18 was on the convicting jury; Juror No. 28 was not. At any rate,

we find these comments likely indicative of the impact that a guilty plea may have on a juror

deliberating closely-related allegations.

        We add that an admission to possession of the videotapes of the showering boys bears

significantly on the allegations of production and promotion of a sexual performance of a child. In



        12
          The exchange also could illustrate that Juror No. 18 was interrupted when Juror No. 28
asked, "Well, I got to ask you a question," in which case Juror No. 18 did not express any notion that
Scott's plea of "guilty" had any bearing on his guilt of the other charges. We think this is the least
likely reading of the passage, but possible. Nevertheless, the comments, no matter who made them,
posed "the very threat" Section 3.04 permits a defendant to avoid. See Llamas, 12 S.W.3d at 472.

                                                   21
its opening statement, the State seized on both the guilty plea itself and its close relation to the

production or promotion charges:

        He's already pled guilty to possession of child pornography, the videotapes of the
        boys that he made. According to what I heard on voir dire, it doesn't really seem that
        he has an argument over production of a sexual performance because he's the one that
        made the videotapes, he's the one that did everything. He hasn't pled guilty to it but
        I think the evidence is going to show that that is pretty strong.

The State similarly mentions the guilty plea during its closing argument to the jury: "Without

question he has pled guilty to possessing child pornography, so you sign that. Now, if you go to

count two, he hasn't really pled guilty to that, but he has conceded it under all the facts." The State

refers to Scott's guilty plea twice more in its rebuttal, at one point clearly associating the guilty plea

to the inducement charges as well:

        He's already pled that he knew what was on these tapes. That's knowledge, that's
        intent, that's conduct on his part to induce. Make no mistake about it. There is no
        question about it.

The State's several references to and reliance on the guilty plea in its argument to the jury would

serve only to reinforce any of the ideas that the jurors had regarding the impact of Scott's guilty pleas

to Counts III. As did the Texas Court of Criminal Appeals in Llamas, we conclude the trial court's

failure to grant Scott's timely request for mandatory severance affected Scott's substantial rights.

        We also find persuasive the Waco court's analysis in Wheat because, although that case

involved discretionary severance under Section 3.04(c), it specifically addresses the impact of failure

to sever allegations to which a defendant pled "guilty." The court in Wheat was called on to



                                                   22
determine whether failure to grant discretionary severance of three counts, to two of which Wheat

pled "guilty," caused "unfair prejudice." Our inquiry is somewhat similar in that we must determine

whether the trial court's error in refusing mandatory severance of Counts III to which Scott pled

"guilty" had a "substantial or injurious effect on the jury's verdict." See Llamas, 12 S.W.3d at 472.

        Since here, as in Wheat, we cannot determine what strategy defense counsel would have

taken, we cannot conclude the trial court's failure to sever Scott's guilty pleas to each Count III is

harmless error. Now, it is not unheard of for defense counsel to utilize a strategy like the one defense

counsel here was forced to employ. That is, there may be a tactical advantage in admitting to the jury

that the appellant did commit some offense, but that the appellant is not guilty of another, often more

serious offense. Here, however, it seems clear from defense counsel's attempts to sever the child

pornography allegations that he would not have opted to employ such a strategy.

        While we acknowledge that there is evidence of Scott's guilt of the allegations of production

or promotion of a sexual performance by a child, we bear in mind at least two substantial rights—the

presumption of Scott's innocence and his right to a fair trial on Count II of each indictment—both

substantial rights in terms of harm analysis. Both of these substantial rights were most likely

compromised by the trial court's failure to sever each Count III. Therefore, we sustain Scott's point

of error and reverse and remand for a new trial as to each Count II. See TEX . CODE CRIM . PROC.

ANN . art. 44.29(a) (Vernon Supp. 2004–2005). In connection with each Count III, Scott's "guilty"




                                                  23
plea is unaffected by the failure to sever.13 He is, however, entitled to a new trial on punishment14

relating to his "guilty" pleas. See TEX . CODE CRIM . PROC. ANN . art. 26.14; art. 44.29(b) (Vernon

Supp. 2004–2005); Wheat, 160 S.W.3d at 637.

Conclusion

       The search was valid and the physical evidence was admissible. But, since there is legally

insufficient evidence to sustain Scott's conviction for inducing a sexual performance of a child, we

reverse the trial court's judgment of conviction and render a judgment of acquittal as to Count I in

each indictment. Since we cannot disregard the trial court's error in its failure to sever each Count

III pursuant to the mandatory severance provision of Section 3.04(a), we reverse the convictions as

to each Count II, sever each Count III from the associated Count II, and remand the cause for a new



       13
          The law in this State is well settled that a guilty plea entered without benefit of a plea
agreement waives all nonjurisdictional defects occurring before entry of the plea. See Helms v. State,
484 S.W.2d 925, 927 (Tex. Crim. App. 1972), overruled in part, Young v. State, 8 S.W.3d 656, 666
(Tex. Crim. App. 2000); Stahle v. State, 970 S.W.2d 682, 694 (Tex. App.—Dallas 1998, pet. ref'd).
The Helms rule applies to pleas of "guilty" before a jury as well as those before the judge. See King
v. State, 687 S.W.2d 762, 765–66 (Tex. Crim. App. 1985); Splawn v. State, 949 S.W.2d 867, 870
(Tex. App.—Dallas 1997, no pet.).
       14
            Specifically, the Texas Code of Criminal Procedure provides the following:

               Where a defendant in a case of felony persists in pleading guilty or in entering
       a plea of nolo contendere, if the punishment is not absolutely fixed by law, a jury
       shall be impaneled to assess the punishment and evidence may be heard to enable
       them to decide thereupon, unless the defendant in accordance with Articles 1.13 or
       37.07 shall have waived his right to trial by jury.

TEX . CODE CRIM . PROC. ANN . art. 26.14.

                                                 24
guilt/innocence trial on each Count II and a new punishment trial on each Count III. TEX . CODE

CRIM . PROC. ANN . art. 44.29; see Wheat, 160 S.W.3d at 637.



                                                   Josh R. Morriss, III
                                                   Chief Justice

Date Submitted:       July 13, 2005
Date Decided:         September 8, 2005

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