                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                        No. 07-12-00256-CR through 07-12-00276-CR


                            JOHN MARK HICKS, APPELLANT

                                            V.

                           THE STATE OF TEXAS, APPELLEE

                          On Appeal from the 223rd District Court
                                     Gray County, Texas
                          Trial Court No. 7439, 8524 through 8543,
              Honorable Lee Waters and Honorable Phil N. Vanderpool, Presiding

                                     August 28, 2013

                             MEMORANDUM OPINION
                 Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Appellant John Mark Hicks appeals his convictions for one charge of indecency

with a child1 and twenty charges of sexual performance by a child2 and the resulting

sentences of twenty years of imprisonment for the indecency offense and ten years for

each charge of sexual performance, all to be served consecutively.           Through five




      1
          Tex. Penal Code Ann. § 21.11 (West 2012).
      2
          Tex. Penal Code Ann. § 43.25 (West 2012).
issues, appellant contends the trial court erred. For the reasons that follow, we will

reverse and remand in part and affirm in part.


                                       Background


       Appellant was indicted in November 2006 for indecency with a child, alleged to

have occurred in June 2006. The indictments alleging twenty instances of sexual

performance by a child, also alleged to have occurred in June 2006, were brought in

February 2010.     Appellant plead not guilty to all the charges.     The matters were

consolidated on the State‟s motion and tried to a jury.


       Appellant does not challenge the sufficiency of the evidence supporting his

convictions. We relate only those facts necessary to disposition of his appellate issues.

The victim of the indecency charge was appellant‟s daughter. She was three years old

in June 2006, nine years old by the time of trial. The mother of the child testified that

while she was getting her children ready for school one morning, the child told her

“Daddy showed me how to do something last night and told me not to tell you.” The

child then told her “Daddy had showed her how to lick him all over, up and down,

around and round” on his “private area.” At trial, the child testified appellant “made me

lick his private part…two times.”


       Based initially on information provided by the child‟s mother, police took

possession of their home computer for analysis of its hard drive.        The hard drive

contained numerous images of child pornography.




                                            2
                                        Analysis


Consolidation for Trial


       We begin with appellant‟s second issue, by which he contends the trial court

erred by consolidating for trial the sexual performance cases with the indecency case.


       A trial court's denial of a defendant's motion for severance is reviewed for abuse

of discretion. Salazar v. State, 127 S.W.3d 355, 365 (Tex.App.—Houston [14th Dist.]

2004, pet. ref'd).   A trial court abuses its discretion when its decision is arbitrary,

unreasonable or made without reference to guiding rules or principles. Montgomery v.

State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991) (op. on reh'g).


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

out of the same criminal episode. Tex. Penal Code Ann. § 3.02(a) (West 2012).

"Criminal episode" means the commission of two or more offenses, regardless whether

the harm is directed toward or inflicted upon more than one person, if the offenses were

committed pursuant to the same transaction or pursuant to two or more transactions

that are connected to or constitute a common scheme or plan, or if the offenses are the

repeated commission of the same or similar offenses. Tex. Penal Code Ann. § 3.01

(West 2012).


       When two or more offenses have been joined for trial under section 3.02, the

defendant generally has the right to insist on separate trials. Tex. Penal Code Ann. §

3.04(a) (West 2012). That general rule is limited, however, in the case of prosecutions

of offenses described by Penal Code § 3.03(b), in which case the right of severance

does not apply unless the trial court determines that the defendant or the State would


                                            3
be unfairly prejudiced by joinder of the offenses. Tex. Penal Code Ann. § 3.04(c) (West

2012); Lane v. State, 174 S.W.3d 376, 380 (Tex.App.—Houston [14th Dist.] 2005, pet.

ref‟d); Hayes v. State, 166 S.W.3d 899, 901 (Tex.App.—Amarillo 2005, pet. ref‟d);

Salazar, 127 S.W.3d at 365. The offenses described by § 3.03(b) include the offenses

with which appellant was charged.


        The Legislature, under § 3.03(b), placed together all offenses under Penal Code

sections 21.02, 21.11, 22.011, 22.021, 25.02, and 43.25 committed against a victim

younger than 17 years of age at the time of its commission. Tex. Penal Code Ann. §

3.03(b) (West 2012). These offenses are similar by virtue of the sexual nature of the

crimes against young victims. According to Professors Dix and Schmolesky, § 3.03(b)

reflects the Legislature‟s belief that these offenses are particularly likely to be repeatedly

committed against a child victim or to be committed against multiple child victims. 43

George E. Dix & John M. Schmolesky, Texas Practice: Criminal Practice and Procedure

§ 38:35 (3d ed. 2011). And the court in Casey v. State, 349 S.W.3d 825 (Tex.App.—El

Paso 2011, pet. ref‟d), cited legislative history of § 3.04(c) indicating that subsection

“was intended to „restrict defendants‟ right to multiple trials for serious sex offenses

committed against children so that child victims cannot be forced to undergo multiple

trials.‟” Id. at 832 n.8. (citation omitted).


       Here, after the State moved to consolidate the causes for trial, and appellant

objected, the court held a hearing to address the motion. The hearing was brief. No

evidence was taken. The State argued the indecency and sexual performance charges

“arose out of the same transaction.”        Arguing for severance, appellant objected to the

consolidation of the trials, arguing the crimes had different manners of commission,


                                                4
differing elements and differing degrees of severity, and urged there was no direct

linkage between them. The court later granted the State‟s motion.


      Based on the scant information provided the trial court at its hearing on the

State‟s consolidation motion, we must conclude the trial court abused its discretion by

finding the offenses were properly consolidated for trial.   Other than the facts the

offenses both are listed in § 3.03(b) and occurred during the same time frame in the

same residence, they have little connection.


      Although indicted as violations of the prohibition of sexual performance by a

child, the gravamen of the twenty charges was appellant‟s possession on his computer

of downloaded pornographic images of children. At trial, the State‟s computer forensic

expert testified that some of the images were copies of images often seen in child

pornography cases.3 He identified some from the “Baby J” series and some from the

“Vicky” series, and testified both series were readily recognized by those who

investigate child pornography cases.4


      Appellant‟s daughter was the victim of his indecency, but not of the sexual

performance offenses.    None of the downloaded images in evidence were of the

daughter, and no one suggests appellant took any of the pictures or knew any of the

children depicted in them. There was no risk here that a child victim would be required

to undergo multiple trials. See Casey, 349 S.W.3d at 832 n.8. Reiterated, based on the
      3
         Several of the images supporting the twenty sexual performance charges were
identical, a circumstance that forms the basis for appellant‟s first appellate issue
asserting violation of his Double Jeopardy rights. We do not address that issue.
      4
         Appellant has not challenged the sufficiency of the evidence supporting his
convictions, and we do not intend our brief description here to be taken as an
expression of opinion on the adequacy of the State‟s proof of sexual performance.

                                           5
scant information related to the trial court by the State at the hearing on consolidation,

we must conclude the trial court‟s grant of the motion was an abuse of discretion.


      Severance error is subject to a harm analysis. Llamas v. State, 12 S.W.3d 469,

470 (Tex.Crim.App. 2000); Tovar v. State, 165 S.W.3d 785, 795 (Tex.App.—San

Antonio 2005, no pet.).    Appellant contends that he was harmed in his defense of the

sexual performance charges by the jury‟s knowledge of the indecency with his

daughter.5 He makes no contention that joinder of the offenses for trial caused him

harm in his defense of the indecency charge. With regard to harm, the State argues

that evidence of the presence of child pornography on appellant‟s computer likely would

have been admissible if the indecency case had been tried alone, and we agree. See

Tovar, 165 S.W.3d at 795 (reaching similar conclusion in harm analysis). But we agree

with appellant that requiring him to defend against the indecency charge before the

same jury hearing the sexual performance charges affected his substantial rights in

those cases. Tex. R. App. P. 44.2(b). Accordingly, we find the trial court‟s erroneous

joinder of the cases for trial was reversible as to the twenty sexual performance

charges, but not as to the indecency with a child offense.        We sustain appellant‟s

second issue, as to the sexual performance charges.


Restriction of Testimony During Punishment Phase


      Through appellant‟s fourth issue, he asserts the trial court abused its discretion

during the punishment phase of the trial by restricting him from eliciting testimony from a

defense witness, appellant‟s mother, regarding his suitability for community supervision.



      5
          Appellant argued at trial that others had access to the computer.

                                             6
The State argues the court‟s ruling was within the zone of reasonable disagreement.

See Montgomery, 810 S.W.2d at 391. We agree with the State, and overrule the issue.


       Regardless whether the judge or the jury assesses punishment, the prosecution

and the defense may offer evidence on "any matter the court deems relevant to

sentencing." Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (West 2012). Admissibility

of evidence at the punishment phase of a non-capital trial is a function of policy, not a

question of logical relevance. Ellison v. State, 201 S.W.3d 714, 719 (Tex.Crim.App.

2006). Relevancy in this context is "a question of what is helpful to the jury in

determining the appropriate sentence for a particular defendant in a particular case." Id.

(quoting Rogers v. State, 991 S.W.2d 263, 265 (Tex.Crim.App. 1999)). Evidence of a

defendant's suitability for community supervision is admissible when a defendant seeks

community supervision. Ellison, 201 S.W.3d at 722.


       There is no question that appellant‟s counsel was entitled to ask appellant‟s

mother questions pertaining to appellant‟s ability to adhere to conditions that might be

placed on him if he were placed on community supervision. Appellant concedes on

appeal that he was able to ask some questions pertaining to community supervision but

asserts his examination was cut short.


       The record shows that, some thirteen pages into her testimony, counsel asked

appellant‟s mother: “Are you aware that if this jury decided to grant probation and if your

son returned to live with you, the probation officers would be permitted to go out to the

ranch and visit any time?” Appellant‟s mother said “Oh, yes.” Counsel asked a few

follow-up questions and then said, “And I have a few questions about work.”           The

prosecutor objected, “Your Honor, I'm going to object to this questioning with regards to

                                            7
possible probation. Those are set by the Court and under the Court's discretion. So any

further questioning I think is irrelevant with regards to this witness.” The court sustained

the State‟s objection.


       But appellant‟s counsel continued to ask appellant‟s mother questions

concerning his suitability for probation. He ascertained that, considering the “good and

bad” of her son‟s life, she believed he warranted probation; that he had “positive

potential,” despite his conviction; that she understood there were things “he may not be

able to do”; that from his time in the Army, he was able to follow orders; that he was

accountable to others; that he lived up to his responsibilities; and that she considered

him capable of following orders that would prevent him from being a danger to others.

All of that questioning, coming after the court sustained the State‟s objection, related to

appellant‟s suitability for community supervision.


       After the prosecutor cross-examined appellant‟s mother, and after one question

of redirect examination, and further cross-examination, the witness was excused from

the witness stand.       Appellant then raised the issue with the trial court, outside the

presence of the jury, arguing there were additional questions concerning potential

probation that he wanted to ask her.


       From our review of the record, it is unclear to us that appellant would have been

unable to ask the additional questions of appellant‟s mother that he listed for the court.

It seems apparent from his examination of his mother after the objection was sustained

that neither the prosecutor nor the court considered appellant foreclosed from

exploration of the subject of community supervision.       And, earlier in her testimony,

appellant‟s mother testified to appellant‟s service in the Army, including deployment to

                                              8
Saudi Arabia during hostilities, and his employment with Halliburton, as a guard in the

Texas prison system and as a sheriff's deputy. She also testified to his support over the

years, both financial and emotional in nature.


      Considering the witness‟s testimony as a whole, and the uncertainty from the

record of the extent of any limitation imposed by the court‟s ruling, we cannot say the

trial court abused its discretion when it sustained the State‟s objection. We resolve

appellant‟s fourth issue against him.


Other issues


      Appellant‟s other three appellate issues relate to trial of the sexual performance

charges. He asserts (1) violation of his Double Jeopardy rights; (2) jury charge error;

and (3) an impermissibly disproportionate 220-year sentence resulting from the stacking

of the one second-degree felony and twenty instances of third-degree felonies. Given

our reversal of his convictions on the sexual performance charges, we need not address

any of these others. Tex. R. App. P. 47.1.


                                         Conclusion


      The trial court‟s judgment in its cause number 7439, convicting appellant of

indecency with a child, is affirmed. The judgments in trial court cause numbers 8524

through 8543, convicting appellant of sexual performance of a child, are reversed and

the causes are remanded to the trial court for further proceedings.




                                                       James T. Campbell
                                                           Justice

Do not publish.
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