Judge Ben Woodward Shows Mercy, Saves a Family

A 31-year-old former U.S. Marine firefighter instructor, Brandon Lee Berry, and the future of his family were at the mercy of Judge Ben Woodward Thursday afternoon in district court as he decided the ex-military man’s fate. Berry pleaded guilty of recording, by electronic means, his 15-year-old stepdaughter in a bathroom in his home, invading her privacy. He was facing six months to two years in prison and a $10,000 fine.

The Grand Jury did not charge the former Marine with anything sexual, though he did video the minor girl when she was exiting the shower according to court testimony. His excuse was that he was attempting to get his stepdaughter to cease wasting water by taking two-hour showers.

After the guilty plea, Woodward heard the punishment phase of the trial with Assistant District Attorney Meagan White leading the prosecution and attorney Frank D. Brown leading the defense.

White put San Angelo Police Department Detective Jeremy Cannady on the stand. Cannady said his investigation started when a fellow officer summoned him to the Central High School counselor’s office right after the 15-year-old girl made an outcry.

From there, Cannady said he proceeded to Goodfellow AFB’s Office of Special Investigations (OSI) and met with Agent Brandt Latimer. The agent summoned the Marine and Cannady questioned him. Cannady said Berry told him his intent was to “play a prank” on his stepdaughter to teach her to stop wasting water. He surrendered his old iPhone 5 and his new Android cellphone along with his laptop.

The videos were recorded on the old iPhone, and the OSI agent conducted a forensic download and restoration of the data, as the videos had been erased prior to the outcry.

In Cannady’s investigation, he confirmed the videos were of the stepdaughter and four of them contained nudity. The videos were recorded in February and April 2015, Cannady said.

White called OSI Agent Latimer to the stand. He explained the process the OSI used to recover data forensically from the iPhone. He also said the OSI did not investigate Berry’s laptop or newer Android phone.

On cross-examination, the defense stressed the condition of the old iPhone. The screen was shattered, testimony revealed, rendering the iPhone useless for re-watching the videos. The defense’s strategy seemed to be to stress that Berry had no sexual intent. He recorded the videos and left them, or forgot about them, the defense suggested.

The defense put the child victim on the stand. She stated that she never intended for her stepfather to go to jail. She pleaded with the court to allow their family to get back together. Sure, she said, knowledge of the recordings left her “a little concerned.” She didn’t learn of the videos until mid-September just before she made the outcry. The defense stressed at the time of the outcry, her suggestion made in the Central High counselor’s office that day was therapy. The teen clarified. She wanted family therapy, “so we can stay together.”

Berry’s wife, who emigrated from South America in 2011 with her military husband, was emphatic that she wanted her family back together. In addition to the now 16-year-old daughter, they have a one-year-old daughter together. Living apart was difficult, she said. The conditions of the bond were that Berry could not live with his stepdaughter. The condition forced Berry to pay rent on two residences. His wife, who spoke in court through a translator, said she was trained as a lawyer in Bolivia. In San Angelo, she works at a local restaurant.

Berry’s wife also said she discovered the videos on the old iPhone when she was looking for pictures she had long ago taken on the old phone. She showed the videos to her daughter, she said.

Berry was the last to take the stand. Since the charges were made, Berry was kicked out of the Marines on an “other than honorable” discharge. He went searching for a job, but a background check denied him most employment opportunities. After 30 or 40 applications, he landed a job on the back of a trash truck at Republic Services six days per week. He landed a second job working at Home Depot at nights. In all, Berry testified, he works 75-80 hours per week.

“It was a selfish, stupid thing I did,” Berry said on the stand. He added that he has apologized to his wife. Because of the bond conditions, he cannot talk to his stepdaughter, but said he wanted desperately to apologize.

The defense argued for redemption via deferred adjudication.

“The mother and the stepdaughter want this case dismissed,” Brown said. Brown stressed the allegations were not sexual, and even if they were, viewing the videos on the old iPhone 5 was difficult, if not impossible, because of the shattered screen. There was no evidence Berry copied the videos onto his laptop or his newer phone. The investigators did not inspect the data on either. “If you give him deferred adjudication, you’ll never see him again,” he concluded.

DA White’s closing argument was the offense had nothing to do with sexual intent. However, the act of secretly recording the stepdaughter violated the words of the statutes. Her privacy was violated. White argued for jail time.

Woodward agreed with White’s closing argument, but also showed mercy for the former Marine and his family. While there was intent to violate the girl’s privacy, and the evidence was clear this was an invasion of privacy, he stated that deferred adjudication was best for the welfare of all involved, including the stepdaughter.

“There was no inappropriate contact, and there is no connection between the pictures and behavior, experts have noted,” he said.

Woodward gave Berry deferred adjudication with two years probation. He added that he will restrict Berry’s residence to Tom Green County for the duration of the probation.