Appeals court overturns 2019 child sexual assault conviction

After being convicted of aggravated sexual assault of a child in 2019, the Second Court of Appeals, for the second time, reversed the 50-year sentence of Jimmie Hance and ordered a new trial.

Hance, who is confined in the James V. Allred Unit in Wichita Falls, was found guilty of aggravated sexual assault of a child under 6 years old by a jury in April 2019.

The opinion issued Thursday, Feb. 27 by the appeals court reversed the judgment and remanded the case back to the 90th Judicial District Court for a new trial.

The opinion stated the trial court abused its discretion by initially granting a continuance for a defense expert to examine a laptop hard drive, and then “before the defense expert could perform an examination of the laptop, unilaterally” withdrew that continuance.

The appeals court cited Ake v. Oklahoma, which is the constitutional harm standard for federal due-process errors, to determine the errors of the court. The case law concerns a defendant's federal due-process right to have expert assistance with his defense.

The trial was presided over by former Young County District Judge Stephen Bristow. Young County District Attorney Dee Peavy and Assistant District Attorney Phillip Gregory made up the prosecution, while Bruce Harris, of Wichita Falls, represented Hance.

“I’m very disappointed in the opinion and will just go forward,” Peavy said about the opinion.

The prosecution presented two witnesses on the first day of testimony, April 8, 2019, who testified about Google search history on a computer and certain websites Hance visited.

A witness related to the victim testified that they saw the Google search history on the witness’ phone in February or March 2017 via a shared email address that would sync between devices.

The testimony inferred that the searches came from another device, which could have been the laptop, which the witness stated they had turned over to YCSO around Aug. 3, 2017.

Retired YCSO Deputy Tim Bay testified as the captain in charge of investigations during the period of Hance’s arrest. During cross-examination, Bay initially denied having obtained a search warrant for the laptop but later testified that the laptop was brought to him personally after Hance’s arrest and that he had obtained a search warrant for its contents.

He said the computer and Hance’s phone were possibly sent to the Texas Department of Public Safety along with the cell phone for digital forensic examination. Bay later testified that he did not know where the computer was at the time of the trial.

Defense counsel confronted Bay with the YCSO evidence records and Bay confirmed he had placed the laptop into YCSO’s evidence locker in August 2017. Bay said that former Chief Deputy John Orr may have taken the laptop “to the lab” based on notes that Orr had checked the laptop out of the evidence locker.

Bay testified that he did not recall receiving a report about the computer’s contents from DPS or any other lab and confirmed the evidence records noting only Hance’s cell phone was returned from DPS.

Before trial continued the next day, April 9, 2019, Hance filed a motion seeking a dismissal, mistrial or continuance. He stated the state contacted his counsel at 6:15 p.m. after the first day of testimony to inform him the laptop and a digital forensic examination report from the Irving Police Department Electronic Evidence Unit (Irving PD EEU) “had been found at the YCSO”.

Both the prosecution and the defense were unaware the laptop was in law enforcement’s possession until after the jury heard evidence related to the device and its contents.

Hance’s defense argued he was not able to conduct a detailed examination of the laptop to impeach the testimony of various witnesses on the first day of testimony.

As an alternative to a dismissal or mistrial, Hance sought a continuance and the appointment of an expert to assist the defense counsel in evaluating the laptop evidence withheld by the prosecution.

Defense counsel named a digital forensic expert in Fort Worth who estimated it would take 10-14 days to examine the computer. Bristow granted Hance a 14-day continuance to examine the computer the following day, April 10, 2019.

Bristow initially gave Hance a chance to address the issue and ordered the prosecution to produce the computer while providing time for a digital forensic examination. Three days later, the state withheld the computer on allegations that it contained child pornography.

“Nothing in the record suggests that between April 9 and April 15 the State even informally offered to facilitate the digital forensic examination ordered by the trial court by producing the laptop to Hance’s court-appointed expert,” the opinion states.

Rather than turning over the computer and related materials as ordered, the prosecution team re-examined the laptop for child pornography, which the court of appeals decision stated they had presented no evidence to support. Based on the state’s examination of the laptop, they were concerned they could not produce it due to the possible presence of child pornography.

The Texas Code of Criminal Procedures forbids the production of any materials containing child pornography to defendants except when made available for inspection at state-controlled facilities.

The prosecution then sent the laptop’s mirrored hard drive to the Irving PD EEU the weekend of April 13, 2019, for a second look to confirm their suspicions about the presence of child pornography.

“Five days later, the trial court followed suit and reversed its Ake appointment without any evidence or a showing from the state that Hance’s interest in an accurate proceeding would be unaffected, that Hance’s previous need for an expert was somehow negated or diluted by the possible presence of child pornography on the hard drive, or that Hance could investigate the Google-search allegation without a digital forensic examination,” the appeal court stated in its February 2025 opinion.

During a status conference April 15, 2019, Bristow began by acknowledging its awareness of certain communications between the prosecution and defense counsel concerning the prosecution’s failure to produce the laptop.

Due to a juror’s scheduling conflict, Bristow decided that trial should resume the next day, April 16, 2019, instead of allowing the remainder of the continuance previously granted. The court recessed the status conference “for about an hour” to allow defense counsel to review evidence the prosecution team obtained from the laptop.

The defense stated it had attempted to review the evidence produced, which contained hundreds of thousands of files. Peavy reiterated that the state did not intend to offer the evidence made available to the defense counsel during the remainder of the trial.

“(Peavy) again offered no evidence of any child pornography found on the mirrored hard drive, nor did (Peavy) challenge defense counsel’s assertion that the ‘IEF Refined Results’ he had viewed were those originally obtained by the YCSO’s investigative team from the Irving PD EEU instead of those purportedly obtained during the weekend forensic examination,” the opinion states.

Bristow concluded the status hearing by overruling Hance’s objections, finding the laptop evidence immaterial and forbidding its introduction into evidence for the remainder of the trial. The trial was then reconvened the next morning.

In the original 2022 opinion from the appeals court, they determined the trial court abused its discretion by continuing the trial rather than giving Hance the opportunity to examine the computer’s hard drive.

“Because evidence of (Hance’s) proclivities featured heavily in the trial, and at the time of the laptop’s discovery the defense could not unring the bell as to what the jury had already heard, the trial court should have concluded that (Hance) had been prejudiced and granted (his) new-trial motion,” the appeals court states in its 2022 opinion.

The state filed a motion for rehearing due to Hance’s counsel withdrawing his motion for a new trial at the hearing and to re-evaluate the harm to Hance by not being able to access the computer. The appeals court withdrew their opinion and judgment and issued one in its place.

The appeals court is set to issue a mandate April 23, 2025, which will advise the trial court and Hance of the next steps in the appeals process.