James Doyle Collins, Jr. v. State ( 2018 )

Opinion issued December 6, 2018
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-17-00920-CR
NO. 01-17-00921-CR
NO. 01-17-00922-CR
———————————
JAMES DOYLE COLLINS, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 300th District Court
Brazoria County, Texas
Trial Court Case Nos. 76666-CR, 76667-CR, 76668-CR
MEMORANDUM OPINION
A jury found appellant, James Doyle Collins, Jr., guilty of three separate
offenses of possession of child pornography1 and assessed his punishment at
confinement for five years and a fine of $10,000, confinement for five years and a
fine of $10,000, and confinement for ten years and a fine of $10,000, to run
concurrently. It then recommended that his ten-year prison sentence be suspended
and he be placed on community supervision. The trial court, in accordance with the
jury’s recommendation, suspended appellant’s ten-year prison sentence and placed
him on community supervision for a period of ten years. In two issues, appellant
contends that the evidence is legally insufficient to support his convictions and the
trial court erred in denying his motion to suppress his statement.
We affirm.
Background
Pearland Police Department (“PPD”) Detective C. Arnold, a certified
cyber-crimes investigator with the Houston Metro Internet Crimes Against Children
Task Force (“ICACTF”), testified that he, through the use of computers in his office,
monitors certain file-sharing networks that “exist on the internet” in order to
1
See TEX. PENAL CODE ANN. § 43.26(a) (Vernon 2016); appellate cause no.
01-17-00920-CR; trial court cause no. 76666-CR (Offense I); appellate cause no.
01-17-00921-CR; trial court cause no. 76667-CR (Offense II); appellate cause no.
01-17-00922-CR; trial court cause no. 76668-CR (Offense III).
2
investigate the “distribution and receipt of child pornography.”2 Arnold receives “a
notification when someone [using a file-sharing network] uploads or downloads a
[known] child pornograph[y]” image or video, and upon receiving a notification, he
views the image or video to determine whether it constitutes child pornography.3
Arnold then obtains the location of the person using the file-sharing network based
on the IP address assigned to that person.
2
Peer-to-peer file sharing is a popular means of obtaining and sharing
files free of charge directly from other computer users who are
connected to the [i]nternet and who are also using peer-to-peer
file[-]sharing software. . . . Once peer-to-peer file[-]sharing software
has been downloaded and installed [on a computer] by the user, the
user may interface directly with other computers using the same
filing[-]sharing software and browse and obtain files that have been
made available for sharing. . . . File sharing occurs when one
computer, identified by an Internet Protocol (“IP”) address, initiates a
search for a responsive file by indicating the term or terms that it seeks
to find in the file’s name. This is called a ‘query’ and consists of key
words such as ‘child,’ ‘pornography,’ or ‘child
pornography.’ . . . Other computers that are using the same
file[-]sharing software and connected to the [i]nternet at the time will
respond to the query with a ‘query hit message.’ A query hit message
identifies the file or files available for sharing which have a word in
the file name that matches the search word in the query. . . . After a
query hit message is received, the computer user requesting the file
must affirmatively select it for download, generally by double
clicking on the file’s name.
U.S. v. Thomas, Nos. 5:12-cr-37, 5:12-cr-44, 5:12-cr-97, 2013 WL 6000484, at *2–
3 (D. Vt. Nov. 8, 2013) (order).
Detective Arnold explained that twenty-six file-sharing networks exist, including
“ARES, Limewire, [and] BearWare.”
3
The “alert” that Detective Arnold receives essentially tells him that in the
“geographic area that [he is] monitoring,” a particular IP address has “downloaded
or uploaded [a certain child-pornography] video[] and picture[].”
3
In regard to appellant, Detective Arnold testified that on March 6, 2015, his
computer “made a direct connection and download [of a known child-pornography
video] from an IP address in Pearland, [Texas].” When Arnold viewed the video,
he determined that it constituted child pornography. At the time, Arnold did not
know the identity of appellant, but based on the IP address associated with the
downloaded-child-pornography video, he obtained appellant’s physical address.
Arnold drove to appellant’s residence in Pearland, Brazoria County, Texas, and
determined that he had a secure internet connection.4 Arnold then obtained a search
warrant for appellant’s residence.5
On May 12, 2015, Detective Arnold, along with Homeland Security Special
Agents D. Lewis and L. Erickson, PPD Detectives D. Vlasek and J. Cox, and two
uniformed PPD patrol officers, served a search warrant on appellant at his residence.
Upon arriving at appellant’s home, Arnold, along with the other law enforcement
officers, “clear[ed] the house” and identified the individuals that were present.
4
Detective Arnold explained that with an “open internet connection . . . someone can
[park] in front of your house” and “us[e] your [W]ifi signal [to] access the internet.”
However, with a secure internet connection, “no one can . . . use your internet
connection without [knowing] your password.” This is important because if another
person can “log into your wireless [internet] signal,” then “it would show your IP
address and what they[, and not you, were] doing” on their computer.
5
The trial court admitted into evidence Detective Arnold’s affidavit and the search
warrant.
4
Arnold and Lewis then interviewed appellant, while Vlasek and Cox “examine[d]
and process[ed] all of the electronic[] [devices]” found in appellant’s home.6
Detective Arnold noted that when he and Agent Lewis spoke to appellant, he
was not in custody, was free to leave, and was not placed in handcuffs or in any type
of restraints. Despite the fact that appellant was not in custody, Arnold informed
him of his legal rights, and appellant waived them, agreeing to speak. Arnold did
not coerce appellant, threaten him, or make any promises to him. And he recorded
the interview with appellant.7
During his interview, which lasted approximately forty-five minutes,
appellant stated that he was the only person living in his home and he had
downloaded and used, on his electronic devices, certain file-sharing networks,8
6
Detective Arnold explained that Detectives Vlasek and Cox used a “forensic
recovery program” to “look[] for obvious signs of child pornography” on appellant’s
electronic devices. The other law enforcement officers present at appellant’s home
“split up doing searches in each of the rooms [in the house], looking for items that
[might have] contain[ed]” child pornography.
7
The trial court admitted into evidence State’s Exhibit 2, appellant’s audio-recorded
interview with Detective Arnold and Agent Lewis.
8
Detective Arnold explained that a file-sharing network “doesn’t do anything on its
own.” A person “ha[s] to tell it what [to] look[] for,” “ha[s] to tell it to download
files,” and “ha[s] to manually open files and view them.” And a file-sharing network
does not appear on a person’s computer unless he specifically “download[s] it.”
5
including “ARES,”9 “BearShare and Bear,”10 and “Limewire.”11 When Arnold
questioned appellant about certain terms that appellant may have used while
searching the file-sharing networks, including the search terms “Vicky”12 and
“PTHC,”13 appellant admitted that he had in fact viewed child pornography “out of
9
See Ferguson v. State, Nos. 09-15-00342-CR to 09-15-00345-CR, 2016 WL
4247956, at *1 (Tex. App.—Beaumont Aug. 10, 2016, pet. ref’d) (mem. op., not
designated for publication) (defendant used “ARES file[-]sharing network” to
download child pornography). Appellant admitted to using the “ARES” file-sharing
network in 2015.
10
See Wiand v. United States, Nos. 3:10-CV-1420-M, 3:07-CR-352-M, 2012 WL
1033623, at *1 (N.D. Tex. Jan. 17, 2012) (defendant “admitted he acquired . . . child
pornography using a file-sharing program called Bearshare”).
11
See Lubojasky v. State, No. 03-10-00780-CR, 2012 WL 5192919, at *16 n.14 (Tex.
App.—Austin Oct. 19, 2012, pet. ref’d) (mem. op., not designated for publication)
(“LimeWire is peer-to-peer file[-]sharing software that . . . is often used to
download images and videos of child pornography.”).
12
Detective Arnold explained that “Vicky is a common series in child pornography
that a lot of people that are seeking child pornography want to get. It [is] a video
series . . . [of] a[] 4-year old child[,] whose name is Vicky[,] up to about the age of
11. There are many, many videos over that time period that were made by her
stepfather as he was sexually abusing her.” See Gasper v. State, Nos.
01-16-00930-CR, 01-16-00931-CR, 01-16-00932-CR, 2017 WL 4249558, at *4
n.17 (Tex. App.—Houston [1st Dist.] Sept. 26, 2017, no pet.) (mem. op., not
designated for publication) (“‘Vicki’ is ‘a series of a child’ and a ‘common search
term[]’ for child pornography[.]”); Hicks v. State, Nos. 07-12-00256-CR to
07-12-00276-CR, 2013 WL 4711223, at *2 (Tex. App.—Amarillo Aug. 28, 2013,
no pet.) (mem. op., not designated for publication) (noting “the ‘Vicky’ series . . . [is
a] series [that is] readily recognized by those who investigate child[-]pornography
cases”).
13
Detective Arnold noted that “PTHC is an acronym [that] stands for Pre[-]Teen Hard
Core. It’s another common search term that people will use on a file[-]sharing
network when looking for child pornography.” See Gasper, 2017 WL 4249558, at
*3 n.8 (“‘PTHC’ is a ‘common search term[]’ for child pornography and stands for
‘preteen hard core[.]’”).
6
curiosity” and he had searched for “Vicky,” “PTHC,” and “Baby J”14 when looking
for pornography on file-sharing networks. (Internal quotations omitted.) When
appellant had searched for “Vicky” on a file-sharing network, “[a] whole bunch of
porn showed up.” (Internal quotations omitted.) And when Arnold asked appellant
if he had ever searched for a particular age while looking for pornography, appellant
stated that he had searched for “12.” (Internal quotations omitted). According to
Arnold, appellant had downloaded twenty-five child-pornography images and
videos over a four-month period from December 2014 until March 2015. Appellant
stated that he would download a child-pornography image or video “to see if the
children were real” and this would then “lead [him] to the next one.” (Internal
quotations omitted.) In other words, appellant admitted that he had downloaded,
viewed, and continued to search for child pornography.
Appellant also stated in his interview that he had deleted the child
pornography that he had found. And he had looked for “adult porn” or pornography
involving “adult women.” (Internal quotations omitted.) Further, when he had
14
Detective Arnold explained that “Baby J” is a “child porn[ography] series video
[involving] a toddler or an infant child, probably 2 to 3 years of age.” (Internal
quotations omitted.) Detective Cox testified that “Baby J is a common series of
child pornography.” (Internal quotations omitted). See Assousa v. State, No.
05-08-00007-CR, 2009 WL 1416759, at *2 (Tex. App.—Dallas May 21, 2009, pet.
ref’d) (mem. op., not designated for publication) (“Baby J series” constituted
“known child-porn series[,] involving an infant child.” (internal quotations
omitted)).
7
“tr[ied] to download movies,” appellant stated that “suddenly porn would [just]
come up.” (Internal quotations omitted.) Appellant also stated that he had not
realized that child pornography had actually been downloaded onto his computer.
However, appellant admitted to looking at child pornography from 2011–2014. And
at the end of his interview, he affirmed that he had “looked at child porn[ography],”
explaining that he was “done looking at it” because he was “no longer curious.”
(Internal quotations omitted.)
Detective Arnold further testified that law enforcement officers found child
pornography on more than one electronic device in appellant’s home. In fact, they
found over 900 child-pornography images and videos on appellant’s electronic
devices and discovered that appellant had been viewing and downloading child
pornography over “a four-year period.” Arnold opined that the large volume of child
pornography found on appellant’s electronic devices indicated that he had not been
accidentally downloading child pornography. One electronic device contained 727
child-pornography images, a second device contained sixteen child-pornography
images, and a third device contained 168 child-pornography images.
Detective Arnold explained that appellant had also been “distribut[ing] child
pornography,” noting that he had shared a child-pornography video with Arnold’s
computer. Specifically, on March 6, 2015, appellant had a child-pornography video
in his “unique share folder” on the “ARES” file-sharing network, Arnold’s computer
8
“connected to [appellant’s] share folder[,]” and Arnold “got the video from
[appellant].” Arnold did concede that he did not know who specifically was using
appellant’s computer at the time that the child-pornography video was shared.
However, appellant had told Arnold that he lived by himself and “[h]e was the one
searching and . . . looking at the[] [child-pornography] videos.”
Detective Cox, a computer forensic analyst with the ICACTF, testified that on
May 12, 2015, he, along with other law enforcement officers, served a search warrant
on appellant at his residence. Cox, as a computer forensic analyst, was responsible,
along with Detective Vlasek, for “preview[ing]” or “[t]riag[ing]” any electronic
devices found in appellant’s home, including “hard drives, laptops, flash drives,
[and] camera cards,” to determine whether they contained “any evidence of child
pornography.” “[E]vidence of child pornography” could include file-sharing
networks, “child[-]pornography files themselves,” and “link files which would show
any . . . files that [had been recently] opened on” a particular electronic device.
In regard to the electronic devices found in appellant’s home, Detective Cox
noted that, while “preview[ing]” or “[t]riag[ing],” he did not find any actual
child-pornography files on appellant’s devices, but he found “link files” with “titles
that were consistent with child[-]pornography files.”15 And Cox found file-sharing
15
See U.S. v. Brown, No. 10-20233, 2012 WL 5948085, at *2 (E.D. Mich. Nov. 28,
2012) (order) (in regard to offense of possession of child pornography, noting “the
Government presented evidence that someone viewed child pornography on the
9
networks on multiple electronic devices in appellant’s home. Although Cox did not
find actual child-pornography files while “[t]riag[ing]” appellant’s electronic
devices, he “found evidence that child porn[ography] had been on some of the
devices that [he was] look[ing] at.” Cox noted that law enforcement officers seized
several electronic devices from appellant’s home so that “full forensic[] [analysis
could be] done . . . at a later date by a forensic officer.”
Detective Vlasek, a former computer forensic analyst with the ICACTF,
testified that on May 12, 2015, he, along with other law enforcement officers, served
a search warrant on appellant at his residence. Vlasek and Detective Cox were
responsible for “preview[ing]” or “triag[ing]” the contents of the electronic devices
found in appellant’s home. And while “preview[ing]” or “triag[ing]” the devices,
he found “link files” and “quite a few” of “peer-to-peer [file-sharing] programs.”
Vlasek explained that “link files” and “linked to” “[a]nything that [a] user [of an
electronic device] has viewed, opened, [or] executed,” and based on the titles of the
“link files” found on appellant’s electronic devices, Vlasek determined that they
related to child pornography. Vlasek opined that the file-sharing networks and “link
files” “indicat[ed] that child pornography exist[ed]” on appellant’s electronic
desktop computer by way of a link file found on the . . . computer hard drive”);
United States v. Koch, No. 3:08-cr-0105-JAJ, 2009 WL 10697501, at *2–5 (S.D.
Iowa July 6, 2009) (order) (considering presence of “[l]ink files relating to child
pornography” in determining defendant’s guilt).
10
devices. And law enforcement officers seized electronic devices from appellant’s
home that day.
Following the seizure of appellant’s electronic devices, Detective Vlasek
completed a forensic analysis and found downloaded child pornography on three
electronic devices: (1) a “gray desktop computer,” (2) a “Dell desktop” computer,
and (3) a “PNY flash drive.” In total, he found “[r]oughly 900” child-pornography
images and videos on appellant’s electronic devices.
In regard to the “gray desktop computer,” Detective Vlasek testified that it
contained 168 downloaded child-pornography images and twenty-five
child-pornography videos.16 Vlasek viewed the child-pornography images and
videos and confirmed that they did indeed constitute child pornography. The
majority of the images and videos found on the “gray desktop computer” were “in
the thumbnail database,” which indicated that they had been viewed.
Detective Vlasek further noted that he had discovered, on the “gray desktop
computer,” the “ARES” file-sharing network. And he determined that the majority
of the child-pornography images and videos found on the “gray desktop computer”
16
The trial court admitted into evidence State’s Exhibit 4, a list of 366
child-pornography images and videos found on the “gray desktop computer.”
Detective Vlasek explained that some of the child-pornography images and videos
appear several times on the list because they had been downloaded several times.
State’s Exhibit 4 reveals that the child-pornography images and videos found on the
“gray desktop computer” had been downloaded in 2008, 2010, and 2011.
11
had been downloaded using that program. According to Vlasek, although the
child-pornography images and videos that he recovered from the “gray desktop
computer” had been deleted, the “ARES” file-sharing network had not.
Detective Vlasek further explained that he was able to recover the titles of the
child-pornography images and videos that had been downloaded on the “gray
desktop computer,” which included the following: “Six-year-old Larissa Fucked
124s 1,” “Ten-year-old LS Magazine Issue LSM,”17 “PTHV, Lolifuck, 10-year-old
Handjob,” “W18 Lolitas, Folladas”18 “Eight-year-old Real Child Porn Pre[-]Teen
Pedo PTHD kiddy incest anal cum,” and “Kid Sex, . . . PTHC, King Pass, hussyfan,
Baby J, Jenny, Baby shiv 2.”19 (Internal quotations omitted.) Vlasek also recovered
the “search terms” that had been “inputted” into the “ARES” file-sharing network
17
Detective Arnold testified that “LSM” was “an infamous photography studio in
Europe that specialized in child pornography.” The studio “would take series of
pictures of kids, usually between the ages of 4 years old up to about 15 [years old]
in various states of undress.” Arnold opined that “if you’re actually . . . searching
for the letters ‘LSM,’ you’re looking for this European company that filmed children
involved in sexual conduct.” Detective Cox further explained that “LSM” is “a
series of child pornography. See U.S. v. Laub, No. 12-40103-01-JAR, 2014 WL
1400669, at *1 & n.2 (D. Kan. Apr. 10, 2014) (“[L]sm” constitutes “a common label
or term present in files or documents containing images of child pornography”
(internal quotations omitted)).
18
See Gasper, 2017 WL 4249558, at *3 n.9 (“‘Lolita’ and ‘Loli’ are ‘common search
terms’ for child pornography.”).
19
See Solon v. United States, Nos. 2:11-CV-303-CAB, 07-CR-032-CAB, 2013 WL
12321956, at *14 n.10 (D. Wyo. May 24, 2013) (order) (video title containing
“Babyshivid,” among other terms, “le[ft] little doubt [that] the content relate[d] to
child pornography”).
12
on the “gray desktop computer,” which included the following: “Baby J,” “LSM,”
“Kiddie,”20 “Pedo,”21 “Kinderfuck,” “Kiddie Pedo,” “King Pass,”22 “Kiddie Porn,”
“Kids,” “[9]YO,”23 and “TPSF.”24 (Internal quotations omitted.) When asked
whether he found “those search terms . . . [on] computers seized out of [appellant’s]
home,” Vlasek responded, “Yes.”
Further, during Detective Vlasek’s testimony, the trial court admitted into
evidence State’s Exhibits 6 and 7, certain child-pornography images and videos that
were found on the “gray desktop computer” seized from appellant’s home.25 Vlasek
noted that these images and videos were indicative of the other child-pornography
images that he found on the other electronic devices seized from appellant’s home.
20
See Lubojasky, 2012 WL 5192919, at *16 n.14 (“[K]iddie” constitutes “[a] known
child pornography search term[]” (internal quotations omitted)).
21
See id. (“PEDO” constitutes “[a] known child pornography search term[]” (internal
quotations omitted)); Brackens v. State, 312 S.W.3d 831, 834 (Tex. App.—Houston
[1st Dist.] 2009, pet. ref’d) (“‘Pedo’ . . . short for pedophile or pedophilia.”).
22
Detective Cox testified that “King Pass” is “a term that [he] find[s] on many
child[-]pornography files,” and Detective Arnold explained that “King Pass” is a
“term that . . . [is] attached in commonly looked-for child[-]pornography videos.”
(Internal quotations omitted.)
23
See Laub, 2014 WL 1400669, at *1 (filename containing “9 yo” referenced age of
child and indicative of child pornography (internal quotations omitted)); Solon,
2013 WL 12321956, at *14 n.10 (video title containing “10yo and 9yo lolitas,”
among other terms, “le[ft] little doubt [that] the content relate[d] to child
pornography” (internal quotations omitted)).
24
The trial court admitted into evidence State’s Exhibit 5, a list of the search terms
inputted into the “ARES” file-sharing network on the “gray desktop computer.”
25
Detective Vlasek testified that State’s Exhibit 7 depicted “[a] little girl,” named
“Vicky.”
13
In regard to the “Dell desktop” computer, Detective Vlasek testified that it
contained sixteen “complete[ly] download[ed]” child-pornography images and the
“ARES” file-sharing network, all of which had been deleted. Vlasek recovered the
titles of certain images that had been downloaded to the “Dell desktop,” which
included the following: “King Pass,” “Old Cousin Fucks Little Cousin, Rare, New
divx 2,” “PTHC, valya 10-year, 2 Sound,” “Babyshivid, Five-year old,” “Webcam,
14-year Boy,” and “Way Fuck, PTHC, 3-year mom, dad Fuck.”26 (Internal
quotations omitted.)
In regard to the “PNY flash drive,” Detective Vlasek explained that it
contained 727 downloaded child-pornography images, which had been deleted, and
three file-sharing networks, i.e., “ARES,” “Limewire,” and “Vuze.”27 Vlasek
viewed the 727 child-pornography images to confirm that they indeed constituted
child pornography. The only items on the flash drive were child-pornography
images.
26
The trial court also admitted into evidence State’s Exhibit 3, a list of nine titles of
child-pornography images found on the “Dell computer.” State’s Exhibit 3 states
that these images were downloaded on July 25, 2014.
27
See United States v. Walley, Nos. 8:13-cr-304-T-23AEP, 8:15-cv-344-T-23AEP,
2018 WL 1519047, at *1 (M.D. Fla. Mar. 28, 2010) (order) (defendant admitted to
downloading “a couple hundred child[-]pornograph[y] images and a few
videos . . . through Vuze, a peer-to-peer [file-sharing] network” (internal quotations
omitted)).
14
Detective Vlasek conceded that he did not know who had specifically
downloaded the child-pornography images and videos that he found on the
electronic devices seized from appellant’s home. Nor could he testify as to who
specifically entered in the “search terms” into the file-sharing networks. Further,
every child-pornography image or video that he found on appellant’s electronic
devices had been “deleted” at some point.
However, Detective Vlasek also explained that there were no other persons in
appellant’s home when the search warrant was served, he was not aware that anyone
else lived in the home with appellant, and appellant was “in possession of” the “gray
desktop computer,” the “Dell computer,” and the “PNY flash drive” when the search
warrant was served. Further, Vlasek noted that appellant would have seen the title
of any file before he “click[ed] the button to download it.” And he opined, based on
the filenames, that it would not be surprising that the files would contain child
pornography. When Vlasek was asked whether he could “tell . . . that [appellant
had] actually looked at any of th[e] child pornography,” Vlasek responded “Yes,
actually, I can.”28
In his audio-recorded interview with Detective Arnold and Agent Lewis,
admitted into evidence as State’s Exhibit 2, appellant stated that he was the only
28
However, Detective Vlasek noted that he was unable to tell whether the
child-pornography image or video had been viewed for “one minute, ten seconds,
one second, or an hour.”
15
person living in his home29 and he owned several computers. Specifically, appellant
noted that he had a “Dell desktop” computer in the game room/den of his house and
a “homemade” desktop computer in his bedroom. He further admitted that he had
used certain file-sharing networks, including “Limewire,” “ARES,” and
“BearShare.” And he had primarily used the “ARES” file-sharing network on the
“Dell desktop” computer. Appellant conceded that he had “come across” child
pornography, while using the “ARES” file-sharing network, noting that “sometimes,
a whole bunch of stuff [would] just pop[] up” when he would generally search for
“porn.” Appellant admitted that he would actually see the titles of the files prior to
downloading them from the file-sharing network, and he would have to “click” on a
particular image or video in order to download it. Appellant stated that when he saw
a child-pornography file on the “ARES” file-sharing network, he would delete it.30
Further, during the interview, when Detective Arnold told appellant that he
had a child-pornography video in his share folder on the “ARES” file-sharing
network, appellant stated that it would have been “caught up in some other stuff”
that he had downloaded. And although appellant stated that he would “delete” any
child-pornography that appeared on the “ARES” file-sharing network, he also stated
29
Appellant noted that his two sons had previously lived with him, but they were now
married and living elsewhere. One son lives in Florida.
30
Appellant stated that he used the “ARES” file-sharing network between December
2014 and March 2015.
16
that he would delete it after he had “seen . . . what it was.” Further, appellant
admitted to “looking” for child pornography because he was curious about it. And
he confirmed that he had searched for “porn,” “PTHC,” “Vicky,” and the age of
“12.” According to appellant, when he had searched for “Vicky,” “a whole bunch
of” pornography involving “younger girls” appeared. And he searched for the age
of “12” to see if there was pornography involving “underage girls.”
Appellant also stated that “a lot” of the files that he saw said “young women,”
which he thought meant women who were nineteen or twenty years old. But, he also
recalled seeing child-pornography images or videos involving ten-year-old and
twelve-year-old children, and he wondered if they were real. This curiosity led
appellant to look at more child-pornography images and videos because he was
“wonder[ing].” When Arnold asked appellant if he had a “curiosity” for child
pornography in 2011, 2012, 2013, and 2014, appellant responded, “I guess so, just
every once in a while.” According to appellant, he would look at child pornography
and then stop. Appellant stated that he had used several different computers at
different times, and he did not know whether law enforcement officers would find
evidence of child pornography before 2011. According to appellant, he had
“satisfied” his curiosity related to child pornography.31
31
At the end of the interview, Detective Arnold told appellant that he could go back
inside of his house, sit downstairs, “relax,” and “hang out” while law enforcement
officers finished looking at his electronic devices. Arnold also told appellant that
17
Sufficiency of Evidence
In his second issue, appellant argues that the evidence is legally insufficient
to support his convictions because the State did not prove that he intentionally and
knowingly possessed child pornography.
We review the legal sufficiency of the evidence by considering all of the
evidence in the light most favorable to the jury’s verdict to determine whether any
“rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct. 2781, 2788–
89 (1979); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Our role
is that of a due process safeguard, ensuring only the rationality of the trier of fact’s
finding of the essential elements of the offense beyond a reasonable doubt. See
Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We give deference
to the responsibility of the fact finder to fairly resolve conflicts in testimony, weigh
evidence, and draw reasonable inferences from the facts. Williams, 235 S.W.3d at
750. However, our duty requires us to “ensure that the evidence presented actually
supports a conclusion that the defendant committed” the criminal offense of which
he is accused. Id.
officers would likely take some of his electronic devices “back [to] the station” so
that appellant did not have to “spend the entire day” with officers in his home.
Appellant was permitted to watch television while the officers were in his home.
He was not arrested on May 12, 2015, and the officers left his home at the conclusion
of their search.
18
We note that in reviewing the legal sufficiency of the evidence, a court must
consider both direct and circumstantial evidence, as well as any reasonable
inferences that may be drawn from the evidence. See Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007); see also Wise v. State, 364 S.W.3d 900, 903 (Tex.
Crim. App. 2012) (evidence-sufficiency standard of review same for both direct and
circumstantial evidence). Circumstantial evidence is just as probative as direct
evidence in establishing the guilt of an actor, and circumstantial evidence alone can
be sufficient to establish guilt. Clayton, 235 S.W.3d at 778; Hooper v. State, 214
S.W.3d 9, 13 (Tex. Crim. App. 2007). For evidence to be sufficient, the State need
not disprove all reasonable alternative hypotheses that are inconsistent with a
defendant’s guilt. See Wise, 364 S.W.3d at 903; Cantu v. State, 395 S.W.3d 202,
207–08 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). Rather, a court considers
only whether the inferences necessary to establish guilt are reasonable based upon
the cumulative force of all the evidence when considered in the light most favorable
to the jury’s verdict. Wise, 364 S.W.3d at 903; Hooper, 214 S.W.3d at 13.
Appellant argues that the State did not prove that he intentionally and
knowingly possessed child pornography because the “ARES peer-to-peer
[file-sharing] network” that he used “automatically download[ed] files to a shared
folder that other users of ARES could access” and “most users are not even aware
that the files are being shared from their computers”; he did not “possess[] . . . any
19
specialized software to recover deleted files”; “it is . . . possible for a person who
believes that he is viewing only adult pornography to inadvertently download child
pornography” or to be “redirected to a child pornography site without his
knowledge”; “there is no evidence . . . that . . . he was indeed the person who
accessed the [i]nternet files, knew that the[] files were being automatically
downloaded and saved to his hard drive”; the search of his home did not reveal any
“sexually explicit materials . . . depicting children”; and there is no evidence that he
“had [ever] corresponded or met with another person to share information and
identities of their victims,” “maintained or ran his own photographic production and
reproduction equipment,” rented or used a “safe deposit box[] or other storage
facility[y],” “collected, read, copied or maintained . . . lists of persons [with] similar
sexual interests,” “kept the names of any children he may have been involved with,”
“maintained diaries of any sexual encounters with children,” “cut pictures of any
children out of any . . . publications . . . [to] use as a means of fantasy relationships,”
“collected . . . writings on the subject of sexual activities with any children” or “on
the subject of sexual activity,” “used sexual aids . . . in the seduction of any victims,”
“used any drugs or alcohol as a means of inducement to get any child to a particular
location,” “maintained artifacts . . . which depicted any children . . . in nude poses
or sexual acts,” “kept mementoes,” “maintained any World Wide Web site,” or
“used many screen names.” Further, appellant asserts that “[t]he fact that every
20
single file depicting child pornography [that was found on appellant’s electronic
devices] had been deleted . . . evidences a lack of intent.”
A person commits the offense of possession of child pornography if he
knowingly or intentionally possesses visual material that visually depicts a child,
younger than eighteen years of age at the time the image of the child was made, who
is engaging in sexual conduct, and the person knows that the material depicts the
child in this manner. TEX. PENAL CODE ANN. § 43.26(a) (Vernon 2016); Wise, 364
S.W.3d at 903; Krause v. State, 243 S.W.3d 95, 110 (Tex. App.—Houston [1st Dist.]
2007, pet. ref’d). A person acts “intentionally” or with intent “with respect to the
nature of his conduct or to a result of his conduct when it is his conscious objective
or desire to engage in the conduct or cause the result.” TEX. PENAL CODE ANN.
§ 6.03(a) (Vernon 2011). A person acts “knowingly” or with knowledge of the
nature of his conduct or circumstances “when he is aware of the nature of his conduct
or that the circumstances exist.” Id. § 6.03(b).
“Possession” means “actual care, custody, control, or management.” Id.
§ 1.07(a)(39) (Vernon Supp. 2018) (internal quotations omitted). A defendant
commits a possession offense only if he voluntarily possesses the contraband. Id.
§ 6.01(a) (Vernon 2011). Possession is voluntary “if the possessor knowingly
obtains or receives the [contraband] possessed or is aware of his control of the
[contraband] for a sufficient time to permit him to terminate his control.” Id.
21
§ 6.01(b); see also Williams v. State, 313 S.W.3d 393, 397 (Tex. App.—Houston
[1st Dist.] 2009, pet. ref’d). Proof of a culpable mental state almost invariably
depends on circumstantial evidence, and a trier of fact can infer knowledge from all
the circumstances, including the acts, conduct, and remarks of the accused. See
Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991); Dillon v. State,
574 S.W.2d 92, 94–95 (Tex. Crim. App. 1978).
If contraband is not found on a person or is not in a location that is under the
exclusive control of a single person, mere presence at the location where the
contraband is found is insufficient by itself to establish actual care, custody, or
control of the contraband. See Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim.
App. 2006). “However, presence or proximity, when combined with other evidence,
either direct or circumstantial . . . , may well be sufficient to establish [possession]
beyond a reasonable doubt.” Id. Accordingly, a fact finder may infer that a
defendant intentionally or knowingly possessed contraband not in his exclusive
possession if there are sufficient independent facts and circumstances justifying such
an inference. Tate v. State, 500 S.W.3d 410, 413–14 (Tex. Crim. App. 2016). In
other words, evidence that links the defendant to the contraband suffices for proof
that he possessed it knowingly. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim.
App. 1995); Wilson v. State, 419 S.W.3d 582, 587–88 (Tex. App.—San Antonio
2013, no pet.). It is not the number of links that is important, but rather the logical
22
force the links have in establishing the elements of the offense. Evans, 202 S.W.3d
at 162.
In Wise, the Texas Court of Criminal Appeals noted the “peculiarities of
determining knowing or intentional possession of computer pornography” and
concluded that “each case must be analyzed on its own facts.” 364 S.W.3d at 904–
05. Thus, the court held that in computer-pornography cases, “like all criminal cases,
a court must assess whether the inferences necessary to establish guilt are reasonable
based upon the cumulative force of all the evidence considered in the light most
favorable to the verdict.” Id. at 905.
Sufficient evidence to support a jury’s determination that a defendant had
knowledge of child pornography on his electronic devices may include evidence:
(1) the child pornography was found in different computer files, showing that the
images or videos had been copied or moved; (2) the child pornography was found
on an external hard drive or a removable storage device, which would indicate that
the images or videos were deliberately saved on the external device; (3) the
child-pornography stored on the computer and the external hard drive were stored in
similarly named folders; (4) the names of the folders containing child pornography
necessarily were assigned by the person saving the files; or (5) numerous images or
videos of child pornography were recovered from the defendant’s electronic devices.
See Ballard v. State, 537 S.W.3d 517, 523 (Tex. App.—Houston [1st Dist.] 2017,
23
no pet.); Krause, 243 S.W.3d at 111–12; see also Savage v. State, Nos.
05-06-00174-CR, 05-06-00175-CR, 2008 WL 726229, at *5 (Tex. App.—Dallas
Mar. 19, 2008, pet. ref’d) (not designated for publication).
Detective Arnold testified on March 6, 2015, his computer, which
“monitor[ed] file[-]sharing networks for the transmission of child pornography,”
“made a direct connection and download[ed]” a child-pornography video “from an
IP address in Pearland, [Texas].” Based on the IP address, Arnold determined that
the downloaded child-pornography video had originated from appellant’s residence,
which had a secure internet connection.
On May 12, 2015, Detective Arnold and other members of the ICACTF
searched appellant’s home for evidence of child pornography. There, law
enforcement officers found child pornography on more than one electronic device.
In fact, they found over 900 child-pornography images and videos on appellant’s
electronic devices. And forensic analysis of the devices showed that appellant had
been viewing and downloading child pornography over “a four-year period.”
According to Arnold, one electronic device found in appellant’s home contained 727
child-pornography images, a second electronic device contained sixteen
child-pornography images, and a third electronic device contained 168
child-pornography images. See Ballard, 537 S.W.3d at 523–24 (evidence sufficient
where electronic devices seized from defendant’s residence contained “several
24
hundred [child-pornography] videos”); Savage, 2008 WL 726229, at *7 (evidence
sufficient where “numerous images of child pornography were recovered from
[defendant’s] computer”); Krause, 243 S.W.3d at 111–12 (evidence sufficient where
defendant owned “CD’s, computers, and hard drives that stored images of children
engaged in sexual conduct”). Arnold opined that the large volume of child
pornography on appellant’s electronic devices indicated that he had not accidentally
downloaded child pornography. See Gasper v. State, Nos. 01-16-00930-CR,
01-16-00931-CR, 01-16-00932-CR, 2017 WL 4249558, at *7 (Tex. App.—Houston
[1st Dist.] Sept. 26, 2017 no pet.) (mem. op., not designated for publication)
(evidence sufficient where law enforcement officer opined defendant had not
accidentally downloaded child pornography).
Detective Arnold explained that appellant had also been “distribut[ing] child
pornography,” noting that he had actually shared a child-pornography video with
Arnold’s computer. Specifically, on March 6, 2015, appellant had a
child-pornography video in his “unique share folder” on the “ARES” file-sharing
network, Arnold’s computer “connected to [appellant’s] share folder[,]” and Arnold
“got the video from [appellant].” Although Arnold did not know who specifically
was using appellant’s computer at the time that the child-pornography video was
shared with Arnold’s computer, appellant had told Arnold that he lived by himself
and “[h]e was the one searching and . . . looking at the[] [child-pornography]
25
videos.” See Gasper, 2017 WL 4249558, at *7 (evidence sufficient where electronic
devices found in home owned by defendant and he owned and used devices);
Ballard, 537 S.W.3d at 523–24 (evidence sufficient where defendant “primary user”
of computer).
Further, during his interview Detective Arnold and Agent Lewis, appellant
stated that he had downloaded and used certain file-sharing networks, including
“ARES,”32 “BearShare and Bear,”33 and “Limewire,”34 on the electronic devices in
his home.35 See Gasper, 2017 WL 4249558, at *7 (evidence sufficient where
defendant admitted to using peer-to-peer file-sharing network “that c[ould] be used
to obtain child pornography”); Lubojasky v. State, No. 03-10-00780-CR, 2012 WL
5192919, at *16 n.14 (Tex. App.—Austin Oct. 19, 2012, pet. ref’d) (mem. op., not
designated for publication) (peer-to-peer file-sharing network “often used to
download images and videos of child pornography”). And when Arnold questioned
appellant about certain terms that he may have searched for on a file-sharing
32
See Ferguson, 2016 WL 4247956, at *1. Appellant admitted to using “ARES” in
2015.
33
See Wiand, 2012 WL 1033623, at *1.
34
See Lubojasky 2012 WL 5192919, at *16 n.14.
35
Detective Arnold explained that a file-sharing network “doesn’t do anything on its
own.” A person “ha[s] to tell it what [to] look[] for,” “ha[s] to tell it to download
files,” and “ha[s] to manually open files and view them.” And a file-sharing network
does not appear on a person’s computer unless he specifically “download[s] it.”
26
network, including “Vicky”36 and “PTHC,”37 appellant admitted that he had in fact
viewed child pornography “out of curiosity” and he had searched for “Vicky,”
“PTHC,” and “Baby J.”38 See Gasper, 2017 WL 4249558, at *11 (evidence
sufficient where defendant “admitted to seeing certain child-pornography terms
while searching for pornography, and he knew the meaning of the[] terms”); see also
Wenger v. State, 292 S.W.3d 191, 200–01 (Tex. App.—Fort Worth 2009, no pet.)
(evidence sufficient to support defendant intentionally or knowingly disseminated
child pornography where he admitted to searching by inputting search terms like
“young” and “Lolita” (internal quotations omitted)). According to appellant,
searching for “Vicky” on a file-sharing network prompted “[a] whole bunch of porn
[to] show[] up.” (Internal quotations omitted.) And when Arnold asked appellant
36
Detective Arnold explained that “Vicky is a common series in child pornography
that a lot of people that are seeking child pornography want to get. It [is] a video
series . . . [of] a[] 4-year old child[,] whose name is Vicky[,] up to about the age of
11. There are many, many videos over that time period that were made by her
stepfather as he was sexually abusing her.” See Gasper, 2017 WL 4249558, at *4
n.17; Hicks, 2013 WL 4711223, at *2.
37
Detective Arnold noted that “PTHC is an acronym [that] stands for Pre[-]Teen Hard
Core. It’s another common search term that people will use on a file[-]sharing
network when looking for child pornography.” See Gasper, 2017 WL 4249558, at
*3 n.8.
38
Detective Arnold explained that “Baby J” is a “child porn[ography] series video
[involving] a toddler or an infant child, probably 2 to 3 years of age.” (Internal
quotations omitted.) Detective Cox testified that “Baby J is a common series of
child pornography.” (Internal quotations omitted). See Assousa, 2009 WL
1416759, at *2.
27
whether he had ever searched for a particular age when looking for pornography,
appellant stated that he had searched for “12.” (Internal quotations omitted).
Further, appellant told Detective Arnold that he would download a
child-pornography image or video “to see if the children were real” and this would
then “lead [him] to the next one.” (Internal quotations omitted.) In other words,
appellant admitted that he had downloaded, viewed, and continued to search for
child pornography. Appellant further admitted that he had looked at child
pornography from 2011–2014. And at the end of his interview, appellant affirmed
that he had “looked at child porn[ography],” explaining that he was “done looking
at it” because he was “no longer curious.” (Internal quotations omitted.) See
Gasper, 2017 WL 4249558, at *11 (evidence sufficient where defendant admitted
to “‘open[ing]’ files containing child pornography and ‘look[ing] at’ them”
(alterations in original)); Wilson, 419 S.W.3d at 590 (evidence sufficient where
defendant, in his interview, stated he “inadvertently viewed [child-pornography]
images and would quickly ‘back out,’” “just clicked on [certain] images to ‘verify’
that they were of underage children,” “viewed images he knew were of underage
children because he was ‘curious,’” and “looked at [child-pornography] images out
of sympathy for the children”); Bethards v. State, No. 10-09-00016-CR, 2011 WL
2937875, at *6 (Tex. App.—Waco July 20, 2011, no pet.) (mem. op., not designated
for publication) (evidence sufficient where defendant admitted to “intentionally
28
search[ing] for child pornography . . . because he was curious and was looking for
information on whether the websites were legal”).
Detective Vlasek, a former computer forensic analyst with the ICACTF,
testified that on May 12, 2015, he, while “preview[ing]” or “triag[ing]” the contents
of the electronic devices found in appellant’s home, found “link files” and “quite a
few” of “peer-to-peer [file-sharing] programs.” See Gasper, 2017 WL 4249558, at
*8–9 (evidence sufficient where forensic analysis of electronic devices revealed
peer-to-peer file-sharing network and child-pornography images and videos);
Lubojasky, 2012 WL 5192919, at *16 n.14 (peer-to-peer file-sharing network “often
used to download images and videos of child pornography”). Vlasek explained that
“link files” are “linked to” “[a]nything that the user [of the electronic device] has
viewed, opened, [or] executed,” and based on the titles of the “link files,” Vlasek
was able to determine that they related to child pornography. 39 Vlasek opined that
the file-sharing networks and “link files” found on appellant’s electronic devices
“indicat[ed] that child pornography exist[ed].”
Detective Vlasek completed a full forensic analysis of the electronic devices
seized from appellant’s home, and he found downloaded child pornography on three
devices: (1) a “gray desktop computer,” (2) a “Dell desktop” computer, and (3) a
“PNY flash drive.” In total, he found “[r]oughly 900” child-pornography images
39
See Brown, 2012 WL 5948085, at *2; Koch, 2009 WL 10697501, at *2–5.
29
and videos on appellant’s electronic devices. See Gasper, 2017 WL 4249558, at *8–
10 (evidence sufficient to establish defendant intentionally or knowingly possessed
child pornography where full forensic analysis revealed large amount of child
pornography on electronic devices seized from defendant’s home); Ballard, 537
S.W.3d at 523–24 (evidence sufficient where electronic devices seized from
defendant’s residence contained “several hundred [child-pornography] videos”);
Krause, 243 S.W.3d at 111–12 (evidence sufficient where defendant owned “CD’s,
computers, and hard drives that stored images of children engaged in sexual
conduct”); see also Bogany v. State, Nos. 14-10-00138-CR to 14-10-00146-CR,
2011 WL 704359, at *4–6 (Tex. App.—Houston [14th Dist.] Mar. 1, 2011, pet.
ref’d) (mem. op., not designated for publication) (size of child-pornography
collection on defendant’s computer “large enough to be obvious to the owner of the
computer”).
In regard to the “gray desktop computer,” Detective Vlasek testified that it
contained 168 downloaded child-pornography images and twenty-five
child-pornography videos.40 See Ballard, 537 S.W.3d at 523–24 (“[T]he fact that
40
State’s Exhibit 4, admitted into evidence, constituted a list of 366 child-pornography
images and videos found on the “gray desktop computer.” Detective Vlasek
explained that some of the images and videos appear several times on the list
because they had been downloaded several times. State’s Exhibit 4 reveals that the
child-pornography images and videos found on the “gray desktop computer” had
been downloaded in 2008, 2010, and 2011.
30
hundreds of files of child pornography were recovered from [defendant’s] computer
is . . . circumstantial evidence that he knowingly possessed child pornography.”);
Savage, 2008 WL 726229, at *7 (evidence sufficient where “numerous images of
child pornography were recovered from [defendant’s] computer”); see also Bogany,
2011 WL 704359, at *4–6 (size of child-pornography collection on defendant’s
computer “large enough to be obvious to the owner of the computer”). Vlasek
viewed the child-pornography images and videos found on the “gray desktop
computer” and confirmed that they did indeed constituted child pornography. And
he explained that the majority of the images and videos found on the “gray desktop
computer” were “in the thumbnail database,” indicating that the image or video had
been viewed.
Detective Vlasek further noted that he had discovered, on the “gray desktop
computer,” the “ARES” file-sharing network. And he determined that the majority
of the child-pornography images and videos found on the “gray desktop computer”
had been downloaded using that program. See Zaratti v. State, No.
01-04-01019-CR, 2006 WL 2506899, at *6 (Tex. App.—Houston [1st Dist.] Aug.
31, 2006, pet. ref’d) (mem. op., not designated for publication) (evidence sufficient
where computer expert located several child-pornography files in peer-to-peer
file-sharing database). According to Vlasek, the child-pornography images and
videos that he recovered from the “gray desktop computer” had been deleted, but the
31
“ARES” file-sharing network had not. See Gasper, 2017 WL 4249558, at *7, *9–
11 (evidence sufficient although defendant had deleted or attempted to delete
child-pornography files); Assousa v. State, No. 05-08-00007-CR, 2009 WL
1416759, at *4 (Tex. App.—Dallas May 21, 2009, pet. ref’d) (not designated for
publication) (“Logically, one cannot destroy what one does not possess and control.
Indeed, the ability to destroy is definitive evidence of control.” (internal quotations
omitted)); Fridell v. State, Nos. 09-04-200 CR, 09-04-201 CR, 2004 WL 2955227,
at *3 (Tex. App.—Beaumont Dec. 22, 2004, pet. ref’d) (mem. op., not designated
for publication) (“[A]ttempts to erase [child-pornography] material from the
computer . . . show[s] that [defendant’s] possession of child pornography was
knowing or intentional.”).
Detective Vlasek further explained that he was able to recover the titles of the
child-pornography images and videos that had been downloaded on the “gray
desktop computer,” which included the following: “Six-year-old Larissa Fucked
124s 1,” “Ten-year-old LS Magazine Issue LSM,”41 “PTHV, Lolifuck, 10-year-old
41
Detective Arnold testified that “LSM” was “an infamous photography studio in
Europe that specialized in child pornography.” The studio “would take series of
pictures of kids, usually between the ages of 4 years old up to about 15 [years old]
in various states of undress.” Arnold opined that “if you’re actually . . . searching
for the letters ‘LSM,’ you’re looking for this European company that filmed children
involved in sexual conduct.” Detective Cox further explained that “LSM” is “a
series of child pornography. See Laub, 2014 WL 1400669, at *1 & n.2.
32
Handjob,” “W18 Lolitas, Folladas,”42 “Eight-year-old Real Child Porn Pre[-]Teen
Pedo PTHD kiddy incest anal cum,” and “Kid Sex, . . . PTHC, King Pass, hussyfan,
Baby J, Jenny, Baby shiv 2.”43 (Internal quotations omitted.) See Ballard, 537
S.W.3d at 523–24 (“explicit titles” of child-pornography files found on defendant’s
computer suggested knowing possession of child pornography); Wenger, 292
S.W.3d at 201 (noting “explicitly descriptive names of the . . . files themselves” in
determining sufficiency of evidence). Vlasek also recovered the “search terms” that
had been “inputted” into the “ARES” file-sharing network on the “gray desktop
computer,” which included the following: “Baby J,” “LSM,” “Kiddie,”44 “Pedo,”45
“Kinderfuck,” “Kiddie Pedo,” “King Pass,”46 “Kiddie Porn,” “Kids,” “[9]YO,”47 and
“TPSF.”48 (Internal quotations omitted.) When asked whether he found “those
search terms . . . [on] computers seized out of [appellant’s] home,” Vlasek
42
See Gasper, 2017 WL 4249558, at *3 n.9.
43
See Solon, 2013 WL 12321956, at *14 n.10.
44
See Lubojasky, 2012 WL 5192919, at *16 n.14.
45
See id.; Brackens, 312 S.W.3d at 834.
46
Detective Cox testified that “King Pass” is “a term that [he] find[s] on many
child[-]pornography files,” and Detective Arnold explained that “King Pass” is a
“term that . . . [is] attached in commonly looked-for child[-]pornography videos.”
(Internal quotations omitted.)
47
See Laub, 2014 WL 1400669, at *1; Solon, 2013 WL 12321956, at *14 n.10.
48
State’s Exhibit 5, admitted into evidence, constituted a list of the search terms
inputted into the “ARES” file-sharing network on the “gray desktop computer.”
33
responded, “Yes.” And he noted that appellant would have seen the title of any file
before he would have “click[ed] the button to download it.”
Further, during Detective Vlasek’s testimony, the trial court admitted into
evidence State’s Exhibits 6 and 7, certain child-pornography images and videos that
were found on the “gray desktop computer” seized from appellant’s home.49 Vlasek
noted that these images and videos were indicative of the other child-pornography
images that he found on the other electronic devices seized from appellant’s home.
In regard to the “Dell desktop” computer, Detective Vlasek testified that it
contained sixteen “complete[ly] download[ed]” child-pornography images and the
“ARES” file-sharing network. See Gasper, 2017 WL 4249558, at *8–9; Lubojasky,
2012 WL 5192919, at *16 n.14; Savage, 2008 WL 726229, at *7; Krause, 243
S.W.3d at 111–12.
However, the sixteen child-pornography images and the file-sharing network
recovered from the “Dell desktop” had been deleted. See Gasper, 2017 WL
4249558, at *7, *9–11; Assousa, 2009 WL 1416759, at *4; see also Fridell, 2004
WL 2955227, at *3. Vlasek explained that he was able to recover titles of certain
images that had been downloaded to the “Dell desktop,” which included the
following: “King Pass,” “Old Cousin Fucks Little Cousin, Rare, New divx 2,”
49
According to Detective Vlasek, State’s Exhibit 7 depicted “[a] little girl” named
“Vicky.”
34
“PTHC, valya 10-year, 2 Sound,” “Babyshivid, Five-year old,” “Webcam, 14-year
Boy,” and “Way Fuck, PTHC, 3-year mom, dad Fuck.”50 (Internal quotations
omitted.) See Ballard, 537 S.W.3d at 523–24 (“explicit titles” of child-pornography
files found on defendant’s computer suggested knowing possession of child
pornography); Wenger, 292 S.W.3d at 201 (noting “explicitly descriptive names of
the . . . files themselves” in determining sufficiency of evidence).
In regard to the “PNY flash drive,” Detective Vlasek testified that it contained
727 downloaded child-pornography images, which had been deleted, and three
file-sharing networks, i.e., “ARES,” “Limewire,” and “Vuze.”51 See Gasper, 2017
WL 4249558, at *7, *9–11; Assousa, 2009 WL 1416759, at *4; Fridell, 2004 WL
2955227, at *3; see also Lubojasky, 2012 WL 5192919, at *16 n.14. Vlasek viewed
the 727 child-pornography images to confirm that they indeed constituted child
pornography. See Gasper, 2017 WL 4249558, at *8–9; Savage, 2008 WL 726229,
at *7; see also Bogany, 2011 WL 704359, at *4–6 (size of child-pornography
collection on defendant’s computer “large enough to be obvious to the owner of the
computer”). The only items on the flash drive were child-pornography images. See
50
State’s Exhibit 3, admitted into evidence, constituted a list of nine titles of
child-pornography images found on the “Dell computer.” State’s Exhibit 3 states
that these images were downloaded on July 25, 2014. Detective Vlasek noted that
appellant would have seen the title of a file before “click[ing] the button to download
it.”
51
See Walley, 2018 WL 1519047, at *1.
35
Ballard, 537 S.W.3d at 524 (“[E]vidence supports an inference that [defendant]
possessed child pornography knowingly because it . . . [was] saved deliberately to
the[] external devices.”); Savage, 2008 WL 726229, at *6 (child-pornography
images found on “loose hard drive” and “zip disks,” indicating “deliberately saved
on the external devices”); Krause, 243 S.W.3d at 111–12 (child pornography found
on external hard drive, indicating images “deliberately saved to the[] external
device[]”).
Although Detective Vlasek conceded that he did not know who had
specifically downloaded the child-pornography images and videos that he found on
the electronic devices seized from appellant’s home or who had entered in the
“search terms” into the file-sharing networks, he explained that there were no other
persons in appellant’s home when the search warrant was served, he was not aware
that anyone else lived in the home with appellant, and appellant was “in possession
of” the “gray desktop computer,” the “Dell computer,” and the “PNY flash drive”
when the search warrant was served.
In his audio-recorded interview with Detective Arnold and Agent Lewis,
appellant stated that he was the only person living in his home and he had a “Dell
desktop” computer in the game room/den of his house and a “homemade” desktop
computer in his bedroom. He admitted that he had used certain file-sharing
networks, including “Limewire,” “ARES”, and “BearShare.” And he had primarily
36
used the “ARES” file-sharing network on the “Dell desktop” computer. See Gasper,
2017 WL 4249558, at *7 (evidence sufficient where defendant admitted to using a
peer-to-peer file-sharing network “that c[ould] be used to obtain child
pornography”); Lubojasky, 2012 WL 5192919, at *16 n.14. Appellant stated that he
had “come across” child pornography, while using the “ARES” file-sharing network,
noting that “sometimes, a whole bunch of stuff [would] just pop[] up” when he
would generally search for “porn.”52 See Gasper, 2017 WL 4249558, at *11
(evidence sufficient where defendant stated “it was ‘possible’ that by downloading
pornography in ‘mega pack[s]’ or ‘movie pack[s],’ he had ‘picked up child
pornography’” (alterations in original)); Wilson, 419 S.W.3d at 590 (evidence
sufficient where defendant, in his interview, stated he “inadvertently viewed
[child-pornography] images”); Zaratti, 2006 WL 2506899, at *5–6 (evidence
sufficient even though defendant argued because “his computer contained
considerably more files of legal adult pornography than unlawful child pornography,
it was possible that he could have downloaded the child pornography
unintentionally”). Appellant admitted that he would actually see the titles of the files
prior to downloading them from the file-sharing network, and he would have to
“click” on a particular image or video in order to download it. Appellant stated that
52
Appellant conceded that he had used the “ARES” file-sharing network between
December 2014 and March 2015.
37
when he saw a child-pornography file on the “ARES” file-sharing network, he would
delete it. See Gasper, 2017 WL 4249558, at *7, *9–11; Assousa, 2009 WL 1416759,
at *4; Fridell, 2004 WL 2955227, at *3.
Further, during appellant’s interview, Detective Arnold told him that he had a
child-pornography video in his share folder on the “ARES” file-sharing network,
and appellant stated that it would have been “caught up in some other stuff” that he
had downloaded. See Gasper, 2017 WL 4249558, at *11; Wilson, 419 S.W.3d at
590; Zaratti, 2006 WL 2506899, at *5–6. Although appellant stated that he would
“delete” the child-pornography that appeared on the “ARES” file-sharing network,
he also stated that he would delete it after he had “seen . . . what it was.” Further,
appellant admitted to “looking” for child pornography because he was curious about
it. See Gasper, 2017 WL 4249558, at *11 (evidence sufficient where defendant
admitting to “‘open[ing]’ files containing child pornography and ‘look[ing] at’
them” (alterations in original)); Wilson, 419 S.W.3d at 590 (evidence sufficient
where defendant, in his interview, stated he “inadvertently viewed [child
pornography] images and would quickly ‘back out,’” “just clicked on [certain]
images to ‘verify’ that they were of underage children,” “viewed images he knew
were of underage children because he was ‘curious,’” and “looked at [child
pornography] images out of sympathy for the children”); Bethards, 2011 WL
2937875, at *6 (evidence sufficient where defendant admitted to “intentionally
38
search[ing] for child pornography . . . because he was curious and was looking for
information on whether the websites were legal”). And he confirmed that he had
searched for “porn,” “PTHC,” “Vicky,” and the age of “12.” According to appellant,
when he searched for “Vicky,” “a whole bunch of” pornography involving “younger
girls” appeared. And he searched for the age of “12” to see if there was pornography
involving “underage girls.” See Gasper, 2017 WL 4249558, at *11 (evidence
sufficient where defendant “admitted to seeing certain child-pornography terms
while searching for pornography, and he knew the meaning of the[] terms”); see also
Wenger, 292 S.W.3d at 200–01 (evidence sufficient to support defendant
intentionally or knowingly disseminated child pornography where he admitted to
searching by inputting search terms like “young” and “Lolita” (internal quotations
omitted)). Appellant also stated that “a lot” of the files that he saw said “young
women,” which he thought meant women who were nineteen or twenty years old.
But, he recalled seeing child-pornography images or videos involving ten-year-old
and twelve-year-old children, and he wondered if they were real. This curiosity led
appellant to look at more child-pornography images and videos because he was
“wonder[ing].”
Further, when Detective Arnold asked appellant if he had a “curiosity” for
child pornography in 2011, 2012, 2013, and 2014, appellant responded, “I guess so,
just every once in a while.” Appellant explained that he would look at child
39
pornography and then stop, and he had used several different computers at different
times. According to appellant, he had “satisfied” his curiosity related to child
pornography.
To the extent that appellant asserts that a person other than himself could have
been responsible for downloading the child-pornography images and videos found
on the electronic devices seized from his home, we note that the State need not
disprove all reasonable alternative hypotheses that are inconsistent with appellant’s
guilt. See Gasper, 2017 WL 4249558, at *11; Wise, 364 S.W.3d at 903; Ballard,
537 S.W.3d at 522, 524. Further, to the extent that appellant, at times, in his
interview with Detective Arnold and Agent Erickson, may have denied downloading
child pornography, it was for the jury to determine his credibility and the weight to
be given such evidence. See Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim.
App. 2011); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). And
appellant’s assertion that “[t]he fact that every single file depicting child
pornography [that was found on appellant’s electronic devices] had been
deleted . . . evidences a lack of intent,” is simply incorrect. See Gasper, 2017 WL
4249558, at *7, *9–11; Assousa, 2009 WL 1416759, at *4; Fridell, 2004 WL
2955227, at *3.
Viewing all of the evidence and inferences in the light most favorable to the
jury’s verdict, we conclude that the evidence is sufficient for a rational fact finder to
40
have found beyond a reasonable doubt that appellant knowingly or intentionally had
care, custody, control, or management of the child pornography found on the
electronic devices seized from his house. Accordingly, we hold that the evidence is
legally sufficient to support appellant’s convictions.
We overrule appellant’s second issue.
Suppression of Statement
In his first issue, appellant argues that the trial court erred in denying his
motion to suppress State’s Exhibit 2, his audio-recorded interview with Detective
Arnold and Agent Lewis, because “a reasonable and prudent person would [have]
believe[d]” that he was “under arrest” at the time of his interview and his
“[s]tatements [w]ere the [r]esult of [i]nterrogation.”
We review a trial court’s denial of a motion to suppress evidence under a
bifurcated standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim.
App. 2013). We review the trial court’s factual findings for an abuse of discretion
and the trial court’s application of the law to the facts de novo. Id. The trial court
is the sole and exclusive trier of fact and judge of the witnesses’ credibility and may
choose to believe or disbelieve all or any part of the witnesses’ testimony. Maxwell
v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); State v. Ross, 32 S.W.3d 853,
855 (Tex. Crim. App. 2000). If, as in this case, the trial court makes express findings
of fact, we review the evidence in the light most favorable to the trial court’s ruling
41
and determine whether the evidence supports the fact findings. See Valtierra v.
State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). A trial court’s findings on a
motion to suppress may be written or oral. See State v. Cullen, 195 S.W.3d 696, 699
(Tex. Crim. App. 2006); State v. Groves, 837 S.W.2d 103, 105 n.5 (Tex. Crim. App.
1992). We give almost total deference to the trial court’s determination of historical
facts, particularly when the trial court’s fact findings are based on an evaluation of
credibility and demeanor. Valtierra, 310 S.W.3d at 447.
We review the trial court’s legal ruling de novo unless its explicit findings that
are supported by the record are also dispositive of the legal ruling. State v. Kelly,
204 S.W.3d 808, 818 (Tex. Crim. App. 2006). We will sustain the trial court’s ruling
if it is reasonably supported by the record and is correct on any theory of law
applicable to the case. Valtierra, 310 S.W.3d at 447–48. In determining whether
the trial court’s ruling on a motion to suppress is supported by the record, we
generally consider only the evidence adduced at the hearing on the motion unless
the suppression issues have been consensually relitigated by the parties during the
trial on the merits. Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996).
Prior to trial, appellant moved to suppress “[a]ny statements . . . allegedly
made by [him]” or “[a]ny video and/or audio recordings made of [him]” “[a]t the
time of any conversations between [him] and law enforcement officers,” i.e.,
appellant’s audio-recorded interview with Detective Arnold and Agent Lewis.
42
Following a suppression hearing, the trial court denied appellant’s motion,
and, orally, on the record, issued the following findings of fact and conclusions of
law53:
Under Article 38.22 of the Texas Code of Criminal Procedure, I’ll find
under Subsection 5 that the statement that has been provided was not a
statement that was given or stems from custodial interrogation.
I will find that [appellant] at that time who was not arrested was not
physically deprived of his freedom of action in any significant way; that
he was not told he could not leave; and that although there were a
number of officers there who were there as was presented by Detective
Arnold for purposes of evaluating those items that would need to be
seized and/or searched and the other officers that were there for officer
safety, that presence did not create a situation that would lead a
reasonable person to believe that his freedom of movement had been
significantly restricted. In fact, there was no indication that he was
restricted from leaving at all.
Further, I will find that if there is any indication, and there’s not, that
there was a custodial interrogation, I will further find that the [legal]
warnings were complied with as provided for in 38.22; that there was
an electronic recording that was not visual but was audio only; that prior
to any statements being provided that [appellant] was provided with his
[legal] warnings as set out in 38.22, and as he just testified that he freely
and voluntarily knowingly waived his rights and began to visit with
Detective Arnold.
53
See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6 (Vernon Supp. 2018) (“If [a]
statement has been found to have been voluntarily made and held admissible as a
matter of law and fact by the court in a hearing in the absence of the jury, the court
must enter an order stating its conclusion as to whether or not the statement was
voluntarily made, along with the specific finding of facts upon which the conclusion
was based, which order shall be filed among the papers of the cause.”); Urias v.
State, 155 S.W.3d 141, 142 (Tex. Crim. App. 2005). A trial court may dictate its
findings and conclusions into a reporter’s record that is included in the appellate
record. See Mbugua v. State, 312 S.W.3d 657, 668 (Tex. App.—Houston [1st Dist.]
2009, pet. ref’d).
43
The recording is capable of making an accurate recording. The operator
was competent and the recording hasn’t been altered in any respect. All
of the voices on the recording are identified and that prior to 20 days of
the date of these proceedings that audio was provided to counsel for
review and listening.
And as such, even if there had been custodial interrogation, it would
be -- it would not be suppressed and would be permitted to be admitted.
But as I indicated, I’m finding under Subsection 5 that this does not
stem from custodial interrogation and, therefore, is admissible.
Appellant first argues that he was “under arrest” at the time of his interview
with Detective Arnold and Agent Lewis because “[a] large number of law
enforcement officers entered [his] residence early in the morning and exercised
physical control over [him]”; the officers “sought out [a]ppellant and escorted him
outside [of] his home and into a police vehicle waiting in the street”; “he was
accompanied by at least two detectives who interrogated him for nearly an hour”; he
was “aware [that] he was the focal point of the investigation”; he testified that “he
believed [that] he was in custody”; he was “denied access to food, drink, and a
restroom break while in the police vehicle”; and “[a] reasonably prudent person
would certainly believe [that he] w[as] about to be transported to jail” and “would
not feel [that he] would be able to invoke [his] constitutional right to counsel, to
remain silent, or [to] terminate the interrogation.”
The United States Constitution prohibits the use of statements made by a
criminal defendant against himself if they are obtained through custodial
44
interrogation without the necessary procedural safeguards to secure the Fifth
Amendment right against self-incrimination. Miranda v. Arizona, 384 U.S. 436,
444, 86 S. Ct. 1602, 1612 (1966); Jones v. State, 119 S.W.3d 766, 772 (Tex. Crim.
App. 2003). Similarly, the Texas Code of Criminal Procedure precludes the State’s
use of the statements of a criminal defendant against himself obtained through a
custodial interrogation without compliance with procedural safeguards. TEX. CODE
CRIM. PROC. ANN. art. 38.22 (Vernon Supp. 2018). Notably, however, an
individual’s Fifth Amendment rights do not come into play if the person is not in
custody and any investigation is not yet custodial, and neither Miranda nor article
38.22 warnings are required before questioning. Herrera v. State, 241 S.W.3d 520,
526 (Tex. Crim. App. 2007); Melton v. State, 790 S.W.2d 322, 326 (Tex. Crim. App.
1990); White v. State, 395 S.W.3d 828, 834 (Tex. App.—Fort Worth 2013, no pet.).
“Custody” for purposes of article 38.22 is consistent with the meaning of
“custody” for purposes of Miranda. Gardner v. State, 433 S.W.3d 93, 98 (Tex.
App.—Houston [1st Dist.] 2014, pet. ref’d). The appropriate inquiry as to whether
a person is in “custody,” for purposes of their right to receive legal warnings, is
“whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree
associated with a formal arrest.” California v. Beheler, 463 U.S. 1121, 1125, 103 S.
Ct. 3517, 3520 (1983) (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct.
711, 714 (1977)); see also Gardner v. State, 306 S.W.3d 274, 293–94 (Tex. Crim.
45
Ohio App. 2009). A “custodial interrogation” is “questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise
deprived of his freedom . . . in any significant way.” See Herrera, 241 S.W.3d at
525. The determination of custody is made on a case-by-case basis considering all
the surrounding circumstances. Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim.
App. 1996). A person is in custody only if, under the circumstances, an objectively
reasonable person would believe that his freedom of movement was restrained to the
degree associated with a formal arrest. Id. at 254.
Generally, a person’s detention may constitute custody for purposes of
Miranda and article 38.22: (1) when an individual is physically deprived of his
freedom of action in any significant way; (2) when a law enforcement officer tells
the person that he is not free to leave; (3) when a law enforcement officer creates a
situation that would lead a reasonable person to believe that his freedom of
movement has been significantly restricted; and (4) there is probable cause to arrest
the person and law enforcement officers do not tell the person that he is free to leave.
Id. at 255. In the first three situations, the restriction upon freedom of movement
must amount to the degree associated with an arrest rather than an investigative
detention. Id. Under the fourth situation, the existence of probable cause must be
manifested to the person. Id. Such a concession, however, does not automatically
establish a custodial interrogation; rather, it is a factor to consider, together with
46
other circumstances, to determine whether a reasonable person would believe that
he is under restraint to a degree associated with an arrest. Id.
Additional circumstances to consider in determining whether an interrogation
is custodial include whether the criminal defendant arrived at the interrogation place
voluntarily, the length of the interrogation, any request by the defendant to see
relatives or friends, and the degree of control exercised over him. Gardner v. State,
433 S.W.3d at 98; Ervin v. State, 333 S.W.3d 187, 205 (Tex. App.—Houston [1st
Dist.] 2010, pet. ref’d). We may also examine such things as “the location of the
questioning, statements made during the interview, the presence or absence of
physical restraints during the questioning, and the release of the [defendant] at the
end of the questioning.” Howes v. Fields, 565 U.S. 499, 509, 132 S. Ct. 1181, 1189
(2012) (internal citations omitted); see also Copeland v. State, No. 06-17-00193-CR,
2018 WL 1801324, at *5 (Tex. App.—Texarkana Apr. 17, 2018, no pet.) (mem. op.,
not designated for publication).
Simply because an interrogation begins as “noncustodial” does not preclude
custody from arising later if the conduct of law enforcement officers causes “a
consensual inquiry to escalate into [a] custodial interrogation.” Dowthitt, 931
S.W.2d at 255. A defendant bears the burden at trial of proving that his statements
were the product of a custodial interrogation. Herrera, 241 S.W.3d at 526.
47
At the suppression hearing, Detective Arnold testified that on May 12, 2015,
he and Agent Lewis interviewed appellant in a silver Dodge Durango sport utility
vehicle (“SUV”) that was parked outside of appellant’s residence. In addition to
Arnold and Lewis, Detectives Vlasek and Cox, Agent Erickson, and two uniformed
PPD law enforcement officers were present at appellant’s home that day to aid in the
serving of a search warrant on appellant. These additional individuals did not
participate in appellant’s interview. Instead, they secured the scene and searched for
electronic devices or “anything tending to show that child pornography was present”
in appellant’s home.
Before interviewing appellant, Detective Arnold identified himself, as did
Agent Lewis, and Arnold told appellant that he was not under arrest. Although
appellant was not “in custody,” Arnold “read him his [legal] rights,” including
informing him that he had a “right to remain silent” and “anything [that] he said
c[ould] and w[ould] be used against him in a [c]ourt of law.” Arnold did not tell
appellant that he was recording their conversation. At the time of the interview,
Arnold did not know whether appellant had child pornography on any electronic
devices in his home; he only knew that “child pornography [had] c[o]me from an IP
address that returned to [appellant’s] physical [home] address.” In other words, at
the time of appellant’s interview, Arnold was “not a hundred precedent sure that
48
[appellant] even possessed child pornography.” During the course of the interview,
appellant admitted to possessing child pornography.
Following appellant’s interview, Detective Arnold and Agent Lewis walked
appellant back inside his home. They, along with Detectives Vlasek and Cox, Agent
Erickson, and the two uniformed PPD law enforcement officers, then remained at
appellant’s home “[s]till searching, identifying . . . electronic evidence,” and
“triaging th[at] evidence,” in order to “eliminate” those electronic devices in
appellant’s home that did not contain child pornography. As the officers searched
his home, appellant, following his interview, sat in “a common area” of the home
with a uniformed PPD officer. According to Arnold, however, that officer was “not
sitting on top of [appellant]”54 and he was free to leave the home. In fact, the law
enforcement officer sat with appellant for safety purposes only, specifically to
prevent appellant from “run[ning] around the house,” “access[ing] . . . weapons,” or
“interfer[ing] with the piles of electronic evidence that [were] being processed by
the forensic analysts.” After officers completed their search of appellant’s home and
seized certain electronic devices, they left appellant at his home. Appellant was not
54
The other uniformed PPD officer stood at the front door of appellant’s home “to
prevent people coming back into the house once they [had] le[ft].”
49
arrested that day, and at no point, during the entirety of the time that law enforcement
officers were at his home, was appellant ever placed in handcuffs.55
Appellant testified that on May 12, 2015, law enforcement officers arrived at
his residence “early in the morning” to search his home pursuant to a search warrant.
Appellant spoke with Detective Arnold that day, although he did not know, at the
time, that Arnold was recording his interview. Appellant’s interview lasted
thirty-five to forty minutes, he was “read . . . [his] rights” prior to the interview, and
he chose to speak to Arnold. Appellant was not threatened or coerced into speaking
with Arnold, but he felt intimated. During the interview, appellant informed law
enforcement officers that there were firearms in his home.
After his interview, appellant did not feel that he could leave his home because
a law enforcement officer sat next to him by the pool table in his house and he was
told “to sit there . . . and not to move.” However, only one officer stayed with
appellant, while the other officers searched the home. None of the law enforcement
officers told appellant that he could leave, but appellant received water when
55
Appellant’s audio-recorded interview further reveals that at the end of the interview,
Detective Arnold told appellant that he could go back inside of his house, sit
downstairs, “relax,” and “hang out” while law enforcement officers finished looking
at his electronic devices. Arnold also told appellant that officers would likely take
some of his electronic devices “back [to] the station” so that he did not have to
“spend the entire day” with officers in his home. Law enforcement officers
permitted appellant to watch television, did not arrest him on May 12, 2015, and left
his home at the conclusion of their search.
50
requested. And although he never asked to use the restroom, he knew that he could
do so. Appellant believed that he was under arrest. However, he was not placed in
handcuffs, and he was not told that he “under arrest” that day. (Internal quotations
omitted.)
The question we must determine in regard to custody is whether, under the
circumstances, an objectively reasonable person would believe that his freedom of
movement was restrained to the degree associated with a formal arrest. Dowthitt,
931 S.W.2d at 254; Wilson v. State, 442 S.W.3d 779, 784 (Tex. App.—Fort Worth
2014, pet. ref’d). Initially, we note that appellant’s subjective belief that he was
“under arrest” is irrelevant. See Bartlett v. State, 249 S.W.3d 658, 669 (Tex. App.—
Austin 2008, pet. ref’d); Hernandez v. State, No. 01-13-00245-CR, 2014 WL
3607849, at *9 (Tex. App.—Houston [1st Dist.] July 22, 2014, no pet.) (mem. op.,
not designated for publication). Further, here, after law enforcement officers arrived
at him home to execute a search warrant, appellant voluntarily agreed to speak with
Detective Arnold and Agent Lewis.
The interview, which lasted approximately thirty-four minutes, took place in
a silver Dodge Durango SUV that was parked outside of appellant’s residence with
only Detective Arnold and Agent Lewis present. Cf. Ervin, 333 S.W.3d at 208
(“[T]he four hour period of time at the police station does not constitute a length of
time that would cause a reasonable person to believe she was in custody . . . .”); see
51
also Copeland, 2018 WL 1801324, at *6 (facts tending to show interrogation
noncustodial included short length of interview). Appellant was never placed in
handcuffs or restrained in any way before, after, or during his interview, and Arnold
told appellant that he was not being arrested. See Taylor v. State, 509 S.W.3d 468,
481 (Tex. App.—Austin 2015, pet. ref’d) (defendant not in custody where he
voluntarily agreed to interview and told not being arrested); Ervin, 333 S.W.3d at
211 (defendant not in custody where she voluntarily gave statements to law
enforcement officers and remained unhandcuffed throughout statements); Gardner,
433 S.W.3d at 99 (defendant not in custody when he willingly accompanied law
enforcement officers to patrol car and never handcuffed). The entire interview was
conducted in a non-confrontational manner, and appellant was not pressured or
coerced into speaking with Arnold and Lewis. See Copeland, 2018 WL 1801324, at
*6 (facts tending to show interrogation noncustodial included “only one law
enforcement officer present during the questioning,” interview conducted in
“non-confrontational tone,” and officer “did not pressure or coerce confession” from
defendant).
Although appellant was not offered water or access to the restroom during the
interview, he also did not request either. See id. (facts tending to show interrogation
noncustodial included defendant making no requests to leave room for any reason);
State v. Perez, No. 14-16-00690-CR, 2017 WL 5505855, at *7 (Tex. App.—Houston
52
14th Dist.] Nov. 16, 2017, no pet.) (mem. op., not designated for publication)
(considering defendant “did not ask for food or drink”); Gardner, 433 S.W.3d at 99
(defendant did not ask to use telephone and officers did not refuse to allow defendant
to use telephone). Upon reentering his home after his interview, appellant requested
water, which he received. And appellant admitted that he knew that he would be
permitted to use the restroom if he had needed to do so. See Colvin v. State, 467
S.W.3d 647, 658–59 (Tex. App.—Texarkana 2015, pet. ref’d) (defendant not denied
food, water, or other facilities tended to show interrogation noncustodial); Johnson
v. State, 299 S.W.3d 491, 495 (Tex. App.—Tyler 2009, no pet.) (defendant’s
“requests for water and breaks were heeded”).
Further, prior to his interview, Detective Arnold was “not a hundred percent
sure that [appellant] even possessed child pornography.” See Nickerson v. State, 478
S.W.3d 744, 754–55 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (defendant not
in custody where he voluntarily agreed to give statement, treated fairly, and officers
not certain he committed offense prior to interview). And although appellant
admitted to possessing child pornography during the course of his interview, this is
not dispositive of the custody determination. See Trejos v. State, 243 S.W.3d 30,
46–47 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (defendant not in custody
although he “admitted . . . his role in [complainant’s] death,” officer considered him
to be suspect, and his statements made during interview provided sufficient probable
53
cause to arrest him); Garcia v. State, 106 S.W.3d 854, 858–59 (Tex. App.—Houston
[1st Dist.] 2003, pet. ref’d) (defendant not in custody, despite statements giving
officers probable cause to arrest him).
Following appellant’s interview, he was walked back inside his home. See
Taylor, 509 S.W.3d at 481 (defendant not in custody where not arrested and left at
conclusion of interview); Ervin, 333 S.W.3d at 211 (defendant not in custody where
she returned home after making statement). And Detective Arnold told appellant
that he could sit downstairs, “relax,” and “hang out” while officers finished
examining his electronic devices. Because, at the time, law enforcement officers
were still searching the home and collecting evidence, appellant sat in “a common
area” of the home with a uniformed PPD officer for safety purposes and to avoid any
interference with the officers’ search. See Gardner, 433 S.W.3d at 99 (defendant
not in custody although “officers escorted [him] to avoid any interference with the
officers executing the search warrant”); cf. Turner v. State, 252 S.W.3d 571, 580
(Tex. App.—Houston [14th Dist.] 2008, pet. ref’d) (placing defendant in handcuffs
for officer safety purposes did not mean in custody). Appellant had, after all,
informed law enforcement officers that he had firearms in his home.
According to Detective Arnold, appellant, at all times, was free to leave.
Arnold informed appellant that law enforcement officers would likely seize some
the electronic devices found in the home so that appellant did not have to “spend the
54
entire day” with officers. Officers permitted appellant to watch television while they
searched the home, did not arrest appellant on May 12, 2015, and left appellant at
his home at the conclusion of their search. See Gardner, 433 S.W.3d at 99
(“[O]fficers left [defendant’s] home after executing the warrant and did not arrest
[defendant] until several weeks later . . . . This fact weighs heavily in favor of
finding that [defendant] was not in custody [at the time of his interview].”).
Having examined the totality of the circumstances, we conclude that there is
nothing in the record to suggest a restraint of appellant’s freedom of movement of
the degree associated with a formal arrest. Accordingly, we hold that the trial court
did not err in denying appellant’s motion to suppress his statement.
We overrule appellant’s first issue.
Conclusion
We affirm the judgments of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Higley, and Massengale.
Massengale, J., concurring solely in the judgment.
Do not publish. TEX. R. APP. P. 47.2(b).
55