Bradley Wayne Dixon v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-01-00459-CR

Bradley Wayne Dixon, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
NO. CR-01-171, HONORABLE MICHAEL J. MCCORMICK, JUDGE PRESIDING

Appellant Bradley Wayne Dixon was a dormitory director at a San Marcos boarding

school. Over the course of several months, he committed a number of sex and sex-related offenses against

the boys in his charge. Based on this evidence, a jury found him guilty of two counts of aggravated sexual

assault of a child,1 four counts of indecency with a child by contact,2 one count of sexual performance by a

child,3 and two counts of assault.4 In four points of error, appellant contends the trial court erred by refusing

1
Tex. Pen. Code Ann. ' 22.021(a)(1)(B)(iii), (2)(B) (West Supp. 2002). The jury assessed
punishment for each count at imprisonment for seventy-five years and a $10,000 fine.
2
Tex. Pen. Code Ann. ' 21.11(a)(1) (West Supp. 2002). The jury assessed punishment for
three of these counts at imprisonment for twenty years and a $10,000 fine. For the fourth count, the
jury assessed a ten-year prison term and a $10,000 fine.
3
Tex. Pen. Code Ann. ' 43.25(b) (West Supp. 2002). The jury assessed punishment for
this offense at imprisonment for ten years and a $10,000 fine.
4
Tex. Pen. Code Ann. ' 22.01(a)(3) (West Supp. 2002). The jury assessed a $500 fine for
each count.
to order the State to provide impeachment evidence to the defense, by denying the defense access to

evidence in the court=s possession, and by admitting at the punishment stage evidence that was unlawfully

seized and of which proper notice had not been given. We overrule these points and affirm the judgment of

conviction.

Juvenile records

In point of error two, appellant contends his due process and confrontation rights were

violated when the court refused to order the State to Aprovide the juvenile records (if any) of the minor

witnesses the State intended to call during trial.@ See U.S. Const. amends. V, VI, XIV. More specifically,

appellant argues that the court should have granted his request for an order directing the State to search

juvenile court records to determine if any of its intended witnesses had been found to have engaged in

delinquent conduct involving acts of moral turpitude. The court refused this request, saying it was Anot

ordering the prosecutor to go seek and search out every record possession of the State of Texas.@ The

court did order the prosecution to make available to the defense any evidence in its possession bearing on

the credibility of its witnesses.

2
 No Sixth Amendment violation is shown. The right to confrontation is a trial right

implicated, for example, when a defendant=s cross-examination of a prosecution witness is unduly limited by

the trial court. See Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987) (plurality op.); Thomas v. State,

837 S.W.2d 106, 111 (Tex. Crim. App. 1992). Appellant does not complain that he was denied the

opportunity to use a witness=s juvenile record for impeachment, but rather that he was denied the

opportunity to learn if any such records exist. In effect, appellant urges that he did not receive a fair trial

because he was denied discovery. This does not raise a Confrontation Clause issue, but rather a due

process issue under the Fourteenth Amendment. Ritchie, 480 U.S. at 56; Thomas, 837 S.W.2d at 112.

Under the Due Process Clause, the State has an affirmative duty to disclose evidence in its

possession that is favorable to the accused and material either to guilt or punishment. Brady v. Maryland,

373 U.S. 83, 87 (1963); Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000). Impeachment

evidence is included within the scope of the Brady rule. United States v. Bagley, 473 U.S. 667, 676

(1985). Brady does not require disclosure of information that the State does not have in its possession and

that is not known to exist. Hafdahl v. State, 805 S.W.2d 396, 399 n.3 (Tex. Crim. App. 1990);

Thompson v. State, 612 S.W.2d 925, 928 (Tex. Crim. App. 1981).

In this case, the prosecutor told the court that the State did not have any juvenile court

records involving the complainant-witnesses. Appellant asserts that the prosecutor was merely claiming that

she did not personally possess such records, and that the trial record demonstrates that the State=s

Aprosecuting team@ did have the records. See Giglio v. United States, 405 U.S. 150, 154 (1972); Ex

parte Adams, 768 S.W.2d 281, 291-92 (Tex. Crim. App. 1989) (Brady applies to evidence possessed

3
by any member of Aprosecution team,@ including both investigators and prosecutors); see also Kyles v.

Whitley, 514 U.S. 419, 438 (1995) (prosecutor=s failure to disclose Brady material in possession of police

not excused by lack of personal knowledge). Appellant does not refer us to any portion of the record

supporting this assertion, and our review discloses no evidence that any investigator or prosecutor was in

possession of any undisclosed juvenile court record of any witness.

Appellant relies on the opinion in Thomas. In that case, a capital murder defendant sought

the production of crime stoppers information pertaining to the offense, including the names of informants and

a tape recording of a telephone call. Thomas, 837 S.W.2d at 108. The trial court denied the request,

citing statutes providing that crime stoppers reports are privileged and confidential. Id. at 108-09; see Tex.

Gov=t Code Ann. '' 414.007, .008 (West Supp. 2002). The court of criminal appeals, however,

concluded that the defendant had a due process right to the production of the material he sought that was in

the possession of the local crime stoppers program, the crime stoppers advisory counsel, or the district

attorney=s office. Thomas, 837 S.W.2d at 113-14. The court went on to prescribe a procedure by which

the crime stoppers information was to be inspected by the trial court in camera to determine if it contained

Brady material. Id. at 114.

Appellant urges that the procedure outlined in Thomas should have been employed by the

trial court in this cause. There is, however, a crucial distinction between Thomas and the case before us. In

Thomas, the information sought by the defendant was known to exist; it was a matter of record that crime

stoppers tips had been received, and that one person in particular had spoken to a crime stoppers operator

for fifteen minutes. Id. at 108. In this case, on the other hand, there was no showing that any potential

4
State witness had been adjudicated delinquent. The court of criminal appeals did not hold in Thomas, as

appellant would have us hold here, that the prosecutor was obligated to search for information not known to

exist.

Brady does not require the State to seek out evidence for the defendant=s use. Palmer v.

State, 902 S.W.2d 561, 563 (Tex. App.CHouston [1st Dist.] 1995, no pet.). The district court did not

violate appellant=s due process rights by refusing to order a search for juvenile records that were not in the

State=s possession and were not shown to exist. Point of error two is overruled.

Counselor=s notes

Appellant raises another Brady-related claim in his fourth point of error. On the day

testimony was scheduled to begin, appellant secured the issuance of a subpoena duces tecum directing the

school counselor, Jan Millard, to appear and bring with her Aall notes or statements concerning [her]

investigation and interviews of the students concerning the alleged sexual abuse by [appellant].@ Millard

moved to quash the subpoena on the ground that the notes were privileged. At a hearing on the motion, it

was determined that Millard had three pages of notes memorializing conversations she had with boys at the

school regarding the accusations against appellant. It was agreed by all parties that Millard=s notes would

be given to the trial court for in camera inspection. It was further agreed that if the court determined during

the course of the trial that any portion of the notes was relevant to the credibility of a witness, the notes

would be made available to both appellant and the State. Otherwise, the notes would remain sealed.

5
 During the trial testimony of a boy sexually assaulted by appellant, the jury was retired and

an unrecorded meeting in chambers took place. After the judge and attorneys returned to the courtroom,

the judge announced:

THE COURT: I want the record to reflect I have reviewed matters delivered to me
for in camera inspection from Dr. Jan Millard at a hearing held this
morning on a motion to quash subpoena, materials delivered to me,
part of them relate to this witness. I have examined those documents.
I have shown them to counsel for the defense and it=s my opinion that
those documents are not inconsistent with the testimony that=s been
given here and there=s nothing exculpatory in those matters and they
will remain sealed and delivered to the Appellate Court if and when it
becomes necessary.

[Defense counsel]: . . . I feel, looking at the notes by Ms. Millard on one page you
allowed me to look at, that there is insufficient data for you to make a
ruling on exactly what was said and context of it. Therefore, without
me having the ability to take that piece of paper and ask [the witness]
what exactly happened and to supply the context for those notes we
will never know if it=s either exculpatory, inconsistent with prior
statement or exculpatory. I=m asking for the Court the ability to
question this witness who these notes were about to put them in a
proper context with, where the Court can make an educated ruling.

THE COURT: Denied.

Appellant asserts that the district court abridged his due process and confrontation rights by

denying him access to Millard=s notes regarding her conversation with this witness.5 The record reflects,

however, that appellant was not denied access to the notes. As suggested by the opinion in Thomas on

5
Appellant does not contend he was denied access to notes relevant to any other witness=s
testimony.

6
which appellant relies, Millard=s notes were delivered to the trial court for in camera inspection. Thomas,

837 S.W.2d at 113-14. Going beyond the procedure suggested in Thomas, the trial court showed defense

counsel Millard=s notes regarding her conversation with the witness even though the court had determined

that the notes were not inconsistent with the boy=s testimony and hence were not material. See id. at 114.

From his remarks to the court, it is obvious that counsel also found nothing in the notes inconsistent with the

witness=s testimony. He did not dispute the court=s conclusion that the notes were immaterial on their face.

Because the notes were produced, examined by counsel, and found to be immaterial, no due process

violation is shown. Because the notes had no value as impeachment, appellant=s confrontation right was not

violated.

Millard=s sealed notes are not included in the appellate record. Appellant=s counsel

states in his brief that he has made Aconsiderable effort@ to locate the notes and that they are

apparently lost.6 He urges that appellant is thus entitled to a new trial pursuant to rule 34.6(f). Tex.

R. App. P. 34.6(f). The State argues that the notes are not necessary to the appeal=s resolution. Id. rule

34.6(f)(3); see Gomez v. State, 35 S.W.3d 746, 749 (Tex. App.CHouston [1st Dist.] 2000, pet. ref=d).

We have already explained that the record before us shows that appellant=s trial counsel was given the

opportunity to examine the relevant notes and did not dispute the trial court=s determination that they had no

impeachment value and were immaterial. Under the circumstances, we are unpersuaded by appellant=s

6
Counsel states that he contacted the district clerk, the court reporter, and the Clerk of this
Court in an effort to locate the notes.

7
argument that an examination of the notes is necessary to properly resolve this point of error. Point of error

four is overruled.

Punishment evidence

Appellant=s computer was seized in January 2000 by police executing a warrant to search

his residence at the boarding school. A large quantity of child pornography was found stored in the

computer. Also seized during this search was a videotape showing one of the boys at the school

masturbating. In October 2000, employees of the school discovered over one hundred floppy disks in the

ceiling of what had been appellant=s residence. These disks also contained child pornography. During the

punishment stage of appellant=s trial, the videotape and a sampling of the pornographic images, movies, and

obscene stories found stored in appellant=s computer and on the floppy disks were introduced in evidence

by the State. Appellant challenges the admission of some of this evidence in his two remaining points of

error.

1. Probable cause

Appellant contends that insofar as it authorized the seizure of his computer (and the images

stored therein) and the videotape, the search warrant was not supported by probable cause.7 A warrant to

seize evidence of a crime must be based on an affidavit showing probable cause to believe that (1) a specific

7
Although appellant=s brief does not draw this distinction, the record shows that half of the still
images and the two obscene stories introduced in evidence were taken from the disks discovered in
October. The validity of the search warrant is immaterial to the admissibility of this evidence, to
which appellant did not object at trial.

8
offense has been committed, (2) the property to be searched for and seized constitutes evidence of that

offense or that a particular person committed that offense, and (3) the property to be searched for and

seized is located at the place to be searched. Tex. Code Crim. Proc. Ann. art. 18.01(c) (West Supp.

2002); see id. art. 18.02(10). Probable cause to support the issuance of a search warrant exists when the

facts submitted to the magistrate are sufficient to justify a conclusion that the object of the search is probably

on the premises at the time the warrant is issued. Cassias v. State, 719 S.W.2d 585, 587 (Tex. Crim.

App. 1986); State v. Bradley, 966 S.W.2d 871, 873 (Tex. App.CAustin 1998, no pet.). We do not

conduct a de novo review of a search warrant affidavit. Instead, we give the issuing magistrate=s

determination of probable cause great deference and will sustain that determination so long as the magistrate

had a substantial basis for concluding that a search would uncover evidence of wrongdoing. Bradley, 966

S.W.2d at 873 (citing Illinois v. Gates, 462 U.S. 213, 236 (1983)).

The supporting affidavit in this case was executed by Officer Mark Graves of the Hays

County Sheriff=s Department. In the affidavit, Graves stated his belief that appellant had committed the

offense of indecency with a child and that evidence of that offense, including photographs, videotapes, and

computer files showing sexual activities involving children, might be found in appellant=s residence at the

boarding school. As probable cause for this belief, Graves cited:

$ His seven years of experience as a peace officer, including Aspecialized training and
experience in the investigation of sexual assault and child abuse.@

$ Information received on January 15, 2000, from the executive vice president of the
boarding school to the effect that students had reported acts of improper sexual
conduct by appellant.

9
 $ His subsequent investigation, during which he received five written statements by
students (who were named in the officer=s offense report) who said that appellant Ahad
either touched their penis or masturbated their penis, some to the point of ejaculation.@
These acts were said to have been committed Afrom 1998 through late 1999.@

$ His discovery Athrough interviews with victims and witnesses that pornography
confiscated by [appellant] from boarding school students and/or shown by [appellant]
to boarding school students was common information between the victims and
witnesses interviewed by the Affiant.@

$ Information received from appellant=s roommate that appellant Amaintains a computer
system in his bedroom@ and that he Aroutinely keeps his bedroom door locked.@

$ Certain Acharacteristics@ of persons whose Asexual objects@ are children, which Graves
said he had learned Athrough his training and experience, along with published
information by noted author Seth L. Goldstein who wrote a practical guide to the
assessment, investigation and intervention titled >The Sexual Exploitation of Children.=@
Among these characteristics were the collection and preservation of sexually explicit
photographs and videotapes, including photographs of the child victims, and the
keeping of name lists and diaries describing sexual encounters.

Appellant first argues that the listed characteristics common to sexual abusers of children

were merely conclusory statements not shown by the affidavit to be reliable. Appellant refers us to opinions

discussing the evaluation of information received from anonymous informers. See Gates, 462 U.S. at 238-

39; Johnson v. State, 803 S.W.2d 272, 288 (Tex. Crim. App. 1990). None of the information in the

challenged affidavit was from an anonymous source. The listing of characteristics to which appellant directs

his complaint were not merely the conclusions of the affiant or anonymous allegations, but were the product

of Graves=s training and experience in the investigation of sexual assault and child abuse cases, which

10
included the review of a published article by a named author. Appellant refers us to no authority holding

that such information cannot be relied on in making the probable cause determination.

Appellant further argues that the affidavit did not state probable cause to believe that the

items to be searched for and seized could be found at appellant=s residence at the time the warrant issued.

The affidavit was presented to the magistrate and the warrant issued on January 17, 2000. The alleged acts

of indecency were said to have occurred Afrom 1998 through late 1999.@ Appellant asserts that the affidavit

does not assert any facts that would justify an inference that evidence of these crimes would still be found in

appellant=s residence. This argument ignores the statements in the affidavit that sexual abusers of children

commonly collect and keep pornography, the names of their victims, and diaries describing their unlawful

activities.

Considering the affidavit as a whole and the reasonable inferences it supports, we believe

that the issuing magistrate had a substantial basis for concluding that a search of appellant=s residence at the

school would uncover evidence tending to show that appellant was guilty of acts of sexual indecency with

children, including videotapes and computer files. The district court did not err by overruling appellant=s

challenge to the adequacy of the probable cause affidavit. Point of error three is overruled.

2. Notice

Appellant also sought to exclude the videotape on the ground that he was not given proper

notice of the State=s intent to use it as evidence.8 Upon request, the State must notify the accused of the

8
At trial, defense counsel described the tape as follows: AWhat the tape shows was [appellant]

11
evidence it intends to introduce at the punishment stage of trial, including evidence of extraneous crimes or

bad acts. Tex. Code Crim. Proc. Ann. art. 37.07, ' 3(g) (West Supp. 2002). Appellant asserts that he

was not notified that the State intended to introduce the videotape in question, and therefore the district

court erred by admitting the videotape in evidence over his objection.

and a boy at the school, basically. [Appellant] and the boy come in. He sits the boy down, hands
him lotion. They speak and he proceeds to leave and the camera records the boy masturbating.@
According to the prosecutor, the boy did not know he was being videotaped.

12
 Eighteen days before trial began, the State filed its written Aanswer to defendant=s motion to

disclose evidence of other crimes, wrongs or bad acts.@9 Among other things, this notice informed appellant

that the State intended to offer evidence that A[d]uring his employment at the [boarding school], [appellant]

did commit the offense of POSSESSION OF CHILD PORNOGRAPHY, as alleged in the indictment in

CR01-171.@ This was a reference to the indictment in this cause, which at the time the notice was filed

included two counts accusing appellant of possessing child pornography. See Tex. Pen. Code Ann. '

43.26 (West Supp. 2002). These counts were later severed from the indictment on appellant=s motion.10

See Tex. Pen. Code Ann. ' 3.04 (West Supp. 2002). One of the severed counts alleged that appellant, on

or about January 16, 2000:

knowingly and intentionally possess[ed] visual material that visually depicted a child, whose identity
is unknown to the Grand Jury, younger than 18 years of age at the time the image of the child was
made, who was engaging in sexual conduct, to wit: videotapes and computer images, and the said
[appellant] knew that the material depicted the said child engaging in sexual conduct.

9
The motion does not appear in the record, but we infer from the State=s response that it was an
omnibus motion requesting notice pursuant to article 37.07, section 3(g) and rules 404(b) and 609(f).
See Tex. Code Crim. Proc. Ann. art. 37.07, ' 3(g) (West Supp. 2002); Tex. R. Evid. 404(b) (notice
of intent to introduce extraneous misconduct in State=s case-in-chief), 609(f) (notice of intent to use
evidence of conviction for impeachment).
10
The motion to sever was granted on the day jury selection began.

13
 At the time the State filed its notice, appellant=s possession of the videotape was not an

extraneous offense subject to either rule 404(b) or section 3(g). An extraneous offense is any act of

misconduct that is not alleged in the charging instrument. Rankin v. State, 953 S.W.2d 740, 741 (Tex.

Crim. App. 1996). Evidence that appellant possessed a videotape showing a boy under the age of eighteen

masturbating was primary evidence of the offense alleged in the count quoted above. The videotape

became evidence of an extraneous offense only on the day trial began, when the court granted appellant=s

motion to sever the child pornography counts. Thus, the question presented is whether appellant had

sufficient notice that with the child pornography counts severed out of the case, the State would introduce

the videotape as punishment evidence pursuant to article 37.07, section 3.

The purpose of the section 3(g) notice requirement is to enable the defendant to prepare to

meet the extraneous offense evidence offered by the State at the punishment stage. Roethel v. State, 80

S.W.3d 276, 282 (Tex. App.CAustin 2002, no pet.). Until the court granted the severance motion on the

day trial began, appellant and his attorney had every reason to expect the State to introduce the videotape in

question as evidence in its case-in-chief: appellant was under indictment for possessing child pornography in

the form of videotapes, and defense counsel was given a copy of the videotape several months before trial

began as part of discovery. Even before the motion to sever was granted, the State advised appellant in its

response to his request for notice that it intended to introduce evidence of his possession of child

pornography pursuant to rule 404(b) and section 3(g). Under the circumstances, we agree with the trial

court that the defense had ample time and opportunity to prepare for the introduction of the videotape either

14
as primary evidence in the State=s case-in-chief or as extraneous offense evidence at the punishment stage.

Even if we were to hold that article 37.07, section 3(g) was not fully satisfied, we would find from the

circumstances that the admission of the videotape did not affect appellant=s substantial rights. See id. at

382-83; Tex. R. App. P. 44.2(b) (harmless error). Point of error one is overruled.

The judgment of conviction is affirmed.

__________________________________________

Jan P. Patterson, Justice

Before Justices Kidd, Patterson and Puryear

Affirmed

Filed: October 3, 2002

Do Not Publish

15