     TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-03-00603-CR




                                David Travis Scott, Appellant

                                               v.

                                 The State of Texas, Appellee




      FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
            NO. 53,691, HONORABLE JOE CARROLL, JUDGE PRESIDING



                           MEMORANDUM OPINION


              Appellant David Travis Scott pleaded guilty to indecency with a child by contact. See

Tex. Pen. Code Ann. § 21.11 (West 2003). The court adjudged him guilty and imposed a twenty-

year prison sentence. By two points of error, appellant contends the court erred by failing to

determine if he knowingly waived his right to a jury trial and by admitting evidence that he

possessed child pornography. We will overrule these contentions and affirm the conviction.

              Before he entered his plea, appellant was questioned by the court:


       THE COURT:               Okay. Have you had time to meet with Mr. Kreimeyer,
                                your lawyer, and talk to him about your case?

       THE DEFENDANT:           Yes, Your Honor, I have.
THE COURT:       Okay. Mr. Kreimeyer, do you think he is mentally
                 competent?

MR. KREIMEYER:   I do, Your Honor.

THE COURT:       Do you believe he understands the nature and
                 consequences of the case?

MR. KREIMEYER:   I believe he does.

THE COURT:       All right, sir. I think he does, too. We will go ahead and
                 have his trial this afternoon. I just wanted to be sure he
                 knew what he was doing.

                 Mr. Scott, you have a paper here. It says no plea bargain
                 recommendation has been reached. There is no plea
                 recommendation, and that means that your punishment
                 range in this case could be anything within the range of
                 payment [sic] of 2 to 20 and up to a $10,000 fine, and that
                 if you wanted to, you could ask a jury to set your
                 punishment instead of the judge. Do you understand that?

THE DEFENDANT:   Yes, Your Honor.

THE COURT:       Okay. You know what a jury is?

THE DEFENDANT:   Negative.

THE COURT:       Okay. All right. You have a waiver document that says
                 waiver of jury, agreement to stipulate upon a plea of guilty,
                 and it appears to be signed by you and Mr. Kreimeyer
                 indicating you want to waive your rights and plead guilty
                 and make a confession.

THE DEFENDANT:   Yes, Your Honor.

THE COURT:       All right, sir. Mr. Kreimeyer, he seems to understand
                 everything.

MR. KREIMEYER:   I believe he does, Judge.

THE COURT:       All right, sir. I will accept your waivers of your rights.

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Appellant urges that because he answered, “Negative,” when asked if he knows what a jury is, the

court should not have accepted his waiver of jury trial without making a further inquiry into whether

he was intelligently waiving that right.

                Contrary to appellant’s contention, the trial court did make a further inquiry into

whether he was knowingly waiving his right to a jury. After appellant seemingly indicated that he

did not know what a jury is, the court referred him to the written waiver of jury trial contained in the

record. See Tex. Code Crim. Proc. Ann. art. 1.13 (West Supp. 2004). In this document, appellant

stated that he “understood my right to trial by jury” and waived that right. The written waiver was

also signed by appellant’s counsel, who stated therein that he had advised appellant of his rights and

approved the waiver. Appellant acknowledged before the court that he made this waiver. The court

then obtained defense counsel’s oral confirmation that appellant “seems to understand everything.”

The court also had been informed that appellant was a twenty-six-year-old high school graduate, and

that he had served in the military for five years prior to his arrest. The court also had the benefit of

seeing appellant in court and observing his demeanor.

                Appellant waived his right to a jury trial in the manner prescribed by statute.

Although some further clarification may have been indicated, considering the record as a whole, we

hold that the trial court adequately inquired into the voluntariness of this waiver and did not err by

accepting it. Point of error one is overruled.

                After further admonishments, the trial court accepted appellant’s guilty plea and

judicial confession and announced that it found the evidence sufficient to convict. The court then

proceeded to hear punishment evidence. In his second point of error, appellant contends the court



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erred by admitting in evidence six images taken from his computer that appear to show children

engaged in sexual acts.

               The police officer through whom the exhibits were offered testified in answer to

questions by defense counsel that it was not possible to conclusively distinguish between actual child

pornography and virtual child pornography. The latter term refers to computer-generated images that

appear to depict children, but which are produced without their actual participation. See Ashcroft

v. Free Speech Coalition, 535 U.S. 234, 239 (2002). Appellant objected to the introduction of the

exhibits “because he can’t say if they’re virtual images or real images, and based on that we will

object.”

               In his brief to this Court, appellant asserts that Texas does not prohibit the possession

of virtual child pornography. See Tex. Pen. Code Ann. § 43.25 (West Supp. 2004), § 43.26 (West

2003). Even if this assertion is true, appellant does not explain why the officer’s inability to state

whether the images were real or virtual, in itself, rendered them inadmissible.

               Appellant now argues that the exhibits were inadmissible character conformity

evidence. See Tex. R. Evid. 404(b). Appellant further argues that the exhibits were not admissible

as punishment evidence under article 37.07 because, at the time they were admitted, he had not been

adjudged guilty. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (West Supp. 2004). Neither

of these contentions was presented to the trial court, and thus they were not preserved for review.

See Tex. R. App. P. 33.1(a).

               Even if these arguments were properly before us, no error is shown. A bifurcated

procedure is required only in trials before a jury on a plea of not guilty. Tex. Code Crim. Proc. Ann.



                                                  4
art. 37.07, § 2(a) (West Supp. 2004); Barfield v. State, 63 S.W.3d 446, 449 (Tex. Crim. App. 2001).

When a defendant waives trial by jury and enters a plea of guilty before the court, the proceedings

become unitary and the issues of guilt and punishment are submitted at the same time. Lopez v.

State, 96 S.W.3d 406, 412 (Tex. App.—Austin 2002, pet. ref’d). To determine the appropriate

punishment, evidence may be offered as to any matter the court deems relevant to sentencing. Tex.

Code Crim. Proc. Ann. art. 37.07, § 3(a)(1). In this trial for indecency with a child by contact,

evidence that appellant possessed child pornography, real or virtual, was relevant to sentencing.

Point of error two is overruled.

               The judgment of conviction is affirmed.




                                             __________________________________________

                                             David Puryear, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: July 15, 2004

Do Not Publish




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