Jeffrey Shane Wise v. State ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00267-CR
JEFFREY SHANE WISE APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY
------------
OPINION
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I. Introduction
In two points, Appellant Jeffrey Shane Wise appeals his convictions for
four counts of sexual assault, one count of indecency with a child, and eleven
counts of possession of child pornography. We affirm in part and reverse and
render in part.
II. Background Facts
In the spring of 2007, when C.H. was sixteen years old, she began working
at a McDonald‘s restaurant in Wichita Falls.1 Wise, who was in his forties, was
her manager, and because she did not have a car and worked until late at night,
he occasionally gave her a ride home. Wise and C.H. began to talk on the
phone. One day, Wise took C.H. to his house, where they engaged in sexual
intercourse. Wise and C.H. then had many other sexual encounters at various
places on later dates. Also, C.H. took pictures of herself naked on a digital
camera and on Wise‘s cell phone and gave them to him.
When the police learned about Wise‘s relationship with C.H., she agreed to
let the police record a phone call from her to Wise.2 During the call, C.H. told
Wise that her parents had discovered her relationship with him and wanted to
talk to the police. She and Wise then talked about some details of their sexual
acts.
Wichita Falls Police Detective Alan Killingsworth obtained an arrest
warrant for Wise and a search warrant for Wise‘s house. When Detective
Killingsworth executed the search warrant a few days after he recorded Wise and
C.H.‘s phone call, he found Wise at the house. While other officers stayed at the
house, Detective Killingsworth arrested Wise and took him to the police station,
1
To protect C.H‘s identity, we use her initials.
2
C.H. also drew a diagram of Wise‘s house for the police and gave them a
love letter that Wise wrote to her; the letter was admitted into evidence at trial.
2
where he received admonishments about his constitutional rights and gave a
confession in an oral statement.3
During the search of Wise‘s house, officers seized, among other items, a
digital camera that contained a pornographic image of C.H., pornographic DVDs,
a laptop computer, a Gateway desktop computer tower, phone cards, condoms,
and a blindfold that Wise used during a sexual encounter with C.H. The police
took photographs of the inside of Wise‘s house and took the laptop and Gateway
tower to a forensics computer lab. Detective Killingsworth received a CD
containing images that had been copied from the Gateway tower.
A Wichita County grand jury indicted Wise for four counts of sexual assault
of C.H. (counts one through four of the indictment), eleven counts of possession
of child pornography (count five, based on a picture of C.H., and counts eight
through seventeen, based on images stored on the Gateway tower), and two
counts of indecency with a child concerning other complainants (counts six and
seven).4 Wise filed a motion to suppress the evidence that police found at his
house, contending that the warrant was not supported by an affidavit showing
3
Wise told Detective Killingsworth that C.H. came to his house and they
had sex in his bedroom more than twice, that he and C.H. performed oral sex on
each other, that he used a dildo on her, and that he anally penetrated her on two
occasions.
4
See Tex. Penal Code Ann. § 21.11(a) (Vernon Supp. 2010) (indecency
with a child), § 22.011(a)(2) (Vernon Supp. 2010) (sexual assault of a child);
§ 43.26 (Vernon 2003) (possession or promotion of child pornography).
3
probable cause. After the trial court denied the motion, Wise pleaded not guilty
to all counts.
The jury convicted Wise of committing sixteen of the seventeen acts
alleged in the indictment; it acquitted him of count seven, which concerned an
alleged sexual encounter in 1997. The jury assessed Wise‘s punishment, and
the trial court entered judgment on the verdict: counts one, two, and three—
eighteen years‘ confinement and a $10,000 fine for each count; count four and
six—twenty years‘ confinement and a $10,000 fine for each count; count five—
eight years‘ confinement and a $10,000 fine; and for counts eight through
seventeen—ten year‘s confinement and a $10,000 fine for each count. The trial
court ordered that each of Wise‘s sentences run consecutively. This appeal
followed.
III. Suppression
In his first point, Wise argues that the trial court erred by denying his
motion to suppress, contending that the facts recited in the search warrant
affidavit ―were insufficient from the totality of the circumstances‖ to show
probable cause for seizing the computers at his house.
A. Standard of Review
A search warrant cannot issue unless it is based on probable cause as
determined from the four corners of an affidavit. U.S. Const. amend. IV; Tex.
Const. art. I, § 9; Tex. Code Crim. Proc. Ann. art. 18.01(b) (Vernon Supp. 2010)
(―A sworn affidavit . . . establishing probable cause shall be filed in every instance
4
in which a search warrant is requested.‖); Nichols v. State, 877 S.W.2d 494, 497
(Tex. App.—Fort Worth 1994, pet. ref‘d). When reviewing a magistrate‘s
decision to issue a warrant, we apply a highly deferential standard in keeping
with the constitutional preference for a warrant. Rodriguez v. State, 232 S.W.3d
55, 60 (Tex. Crim. App. 2007) (―[E]ven in close cases we give great deference to
a magistrate‘s determination of probable cause to encourage police officers to
use the warrant process rather than making a warrantless search and later
attempting to justify their actions by invoking some exception to the warrant
requirement.‖); Swearingen v. State, 143 S.W.3d 808, 810–11 (Tex. Crim. App.
2004); Emenhiser v. State, 196 S.W.3d 915, 924–25 (Tex. App.—Fort Worth
2006, pet. ref‘d).
Under the Fourth Amendment and the Texas constitution, an affidavit
supporting a search warrant is sufficient if, from the totality of the circumstances
reflected in the affidavit, the magistrate was provided with a substantial basis for
concluding that probable cause existed. Swearingen, 143 S.W.3d at 810–11;
Nichols, 877 S.W.2d at 497. Probable cause exists to issue an evidentiary
search warrant if the affidavit shows facts and circumstances to warrant a person
of reasonable caution to believe that the criteria set forth in article 18.01(c) of the
code of criminal procedure have been met. Tolentino v. State, 638 S.W.2d 499,
501 (Tex. Crim. App. [Panel Op.] 1982); see Tex. Code Crim. Proc. Ann. art.
18.01(c). The affidavit must set forth facts establishing that (1) a specific offense
has been committed, (2) the item to be seized constitutes evidence of the offense
5
or evidence that a particular person committed the offense, and (3) the item is
located at or on the person, place, or thing to be searched. See Tex. Code Crim.
Proc. Ann. art. 18.01(c); Tolentino, 638 S.W.2d at 501.
A reviewing court should not invalidate a warrant by interpreting the
affidavit in a hypertechnical manner. See Rodriguez, 232 S.W.3d at 59;
Tolentino, 638 S.W.2d at 501 (explaining that ―[n]o magical formula exists‖ for an
affidavit‘s explanation of probable cause); Nichols, 877 S.W.2d at 498. Rather,
when a court reviews an issuing magistrate‘s determination, the court should
interpret the affidavit in a commonsense and realistic manner, recognizing that
the magistrate may draw reasonable inferences. See Rodriguez, 232 S.W.3d at
61 (―When in doubt, we defer to all reasonable inferences that the magistrate
could have made.‖); Davis v. State, 202 S.W.3d 149, 154 (Tex. Crim. App. 2006);
Nichols, 877 S.W.2d at 498. ―The issue is not whether there are other facts that
could have, or even should have, been included in the affidavit; we focus on the
combined logical force of facts that are in the affidavit, not those that are omitted
from the affidavit.‖ Rodriguez, 232 S.W.3d at 62; see Nichols, 877 S.W.2d at 498
(―A warrant is not invalid merely because the officer failed to state the obvious.‖).
The magistrate‘s determination should prevail in doubtful or marginal cases.
Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010).
6
B. Analysis
Wise argues that Detective Killingsworth‘s affidavit did not show that any
evidence related to the offenses against C.H. would be found on the computers
that the police seized from his house. The affidavit states in relevant part,5
1. There is in Wichita County, Texas a suspected place and
premises. . . .
2. Said suspected place and premises are in charge of and
controlled by . . . Jeffrey Shane Wise. . . .
3. It is the belief of the Affiant that a specific criminal offense
has been committed, and he hereby charges and accuses that:
Jeffrey Shane Wise did intentionally and knowingly commit the
offense of sexual assault of a child. . . .
4. There is at said suspected place and premises, property
and items concealed and kept, constituting evidence of said offense
. . . , described as follows: a) Computers. . . .
....
Affiant has probable cause for said belief by reason of the
following facts: . . . .
On 03-01-08 a sexual assault report was filed with the WFPD
alleging that Jeffery Shane Wise, a 41 year old male, had engaged
in sexual intercourse with a 16 year old female.
On 03-03-08 during a recorded statement the victim disclosed
information consistent with the offense of sexual assault of a child. . .
.
The victim advised that Wise requested on several occasions
that she provide him with pictures of herself unclothed. The victim
said while working at McDonald‘s she took pictures of her breasts
5
We have changed the formatting of the text in the affidavit to make it more
readable.
7
and vagina with Wise‘s Motorola cellular phone in the bathroom.
She said each time this was done she would give the phone back to
Wise after taking the pictures. The victim said at some point Wise
provided her with a digital camera. The victim said this was possibly
a Kodak digital camera. . . . The victim said she took three pictures
of herself unclothed at her house with this camera. She said after
taking these pictures she gave the camera back to Wise. The victim
said Wise later advised her that he had saved these pictures on a
memory card. The victim advised that Wise does have a desk top
computer in his residence. She said she does not know if he saved
these pictures on this computer or on some other storage device.
The victim advised that during the time period she was talking to
Wise she does not believe he was connected to the internet,
however there was an occasion when he became [so] mad at her
that he threatened to post the above pictures of her on the internet.
The victim also advised that Wise had a lap top computer. However
she said that Wise told her that this lap top did not work and that he
needed to buy a part for it.
Wherefore, based on the . . . information noted in this
document, Affiant asks for the issuance of a warrant that will
authorize him to search said suspected place and premises for said
personal property and seize the same.
Contrary to Wise‘s argument, we have held that a search warrant affidavit
was sufficient to justify the seizure of a computer from a defendant‘s residence
when the affidavit stated that the defendant had sex with an underage girl, told
the girl that he had photos and a video of their sexual encounter, and threatened
to put the photos ―on the internet and show them to some people.‖ State v.
Duncan, 72 S.W.3d 803, 804–08 (Tex. App.—Fort Worth 2002, pet. ref‘d).
Likewise, the First Court of Appeals recently overruled a defendant‘s challenge to
the denial of a motion to suppress evidence of child pornography discovered on
computers seized from his home. See Eubanks v. State, 326 S.W.3d 231, 246–
49 (Tex. App.—Houston [14th Dist.] 2010, pet. ref‘d). In Eubanks, the detective
8
who drafted the search warrant affidavit stated that he had probable cause to
seize computer hardware because sexual assault victims had told someone that
the defendant had assaulted them and had ―made them pose for pictures in
which they were sometimes partially or totally nude.‖ Id. at 247. The detective
then wrote that he ―talked with League City evidence officer Thomas Garland and
he advised that on a digital camera, even if the image has been deleted, if it was
saved to the sim card or hard drive, then the deleted image would be
recoverable.‖ Id. The detective concluded his statement of probable cause,
averring:
Your affiant believes that the foregoing facts establish probable
cause that the offenses of sexual assault were committed on or
before October 11th, 2006, in Galveston County, Texas; that
pictures, video and DVD‘s, computers and related computer
equipment and storage devices, cameras and video recording
devices if found in the premises described above, constitute[]
evidence of said offense; and that the evidence to be searched for is
likely to be located in said premises.
Id. The court held that although these facts did not establish that the defendant
had a computer or digital pornographic images, they were sufficient to establish
probable cause for the seizure of the defendant‘s computer. Id. at 248. The
court reasoned,
[t]he affidavit was supported by the complainants‘ allegations that
appellant touched them inappropriately and they posed for
inappropriate photographs. Although neither complainant
specifically mentioned the use of a digital camera or a computer, it
was reasonable for the magistrate to infer from the information in the
affidavit that the complainants were photographed and that a digital
camera and computer could have been used in the process of taking
inappropriate photographs of the girls and could probably be found
9
on the premises to be searched. Furthermore, all of the information
in the affidavit indicated that all of the assaults and pictures of the
girls engaged in sexual conduct were taken at appellant‘s residence
and that [one of the complainants] saw appellant hide some of the
pictures in his bedroom. Thus, it was likewise reasonable for the
magistrate to conclude that any items like photographs, computer
equipment, or cameras used in the commission of the offenses
[were] located in appellant‘s home.
Id. (emphasis added and citations omitted).
This case is factually similar to Duncan, and the facts here more strongly
support probable cause for seizing Wise‘s computers than those in Eubanks.
Here, after the affidavit recited details about Wise‘s sexual assaults of C.H., it
explained that Wise had digital pictures of C.H. on two devices, that he had
saved some of those pictures on a memory card, that he had a desktop computer
in his house, and that he threatened to post the pictures of C.H. on the internet,
which would likely have required the photos to be stored or transferred to a
computer.
We conclude that a magistrate could reasonably conclude from these facts
that the police had probable cause to believe that pictures of C.H. were located
on Wise‘s computers. See Rodriquez, 232 S.W.3d at 60 (stating that probable
cause is a ―flexible and nondemanding‖ standard and that it exists when ―there is
a ‗fair probability‘ that contraband or evidence of a crime will be found at the
specified location‖); see also McKissick v. State, 209 S.W.3d 205, 212 (Tex.
App.—Houston [1st Dist.] 2006, pet. ref‘d) (holding that an affidavit was sufficient
to show probable cause for searching a defendant‘s computer when the affidavit
10
said that the defendant had taken inappropriate photographs of young females
and that he had previously downloaded similar pictures onto his home computer);
Porath v. State, 148 S.W.3d 402, 408–09 (Tex. App.—Houston [14th Dist.] 2004,
no pet.) (concluding that a search warrant affidavit was sufficient to allow seizure
of the defendant‘s personal computer when the affidavit outlined the defendant‘s
sexually-oriented communications with an underage boy over the internet).
Therefore, we hold that the trial court did not err by denying Wise‘s motion to
suppress, and we overrule his first point.
IV. Evidentiary Sufficiency
In his second point, Wise contends that the evidence is insufficient to
support the jury‘s verdict for possession of child pornography stored on the
Gateway tower as alleged in counts eight through seventeen of the indictment.6
Wise concedes in his appellate brief that the images taken from the tower
constitute child pornography. However, he argues that the State failed to prove
that he intentionally or knowingly possessed the images.
A. Standard of Review
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the
prosecution to determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
6
The Gateway computer also contained images of ―child erotica,‖ which an
officer described as legal but flirtatious pictures of children wearing panties or a
brassiere.
11
443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007).7 This standard gives full play to the
responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778.
The trier of fact is the sole judge of the weight and credibility of the
evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Brown v.
State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075
(2009). Thus, when performing an evidentiary sufficiency review, we may not re-
evaluate the weight and credibility of the evidence and substitute our judgment
for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim.
App. 2007). Instead, we Adetermine whether the necessary inferences are
reasonable based upon the combined and cumulative force of all the evidence
when viewed in the light most favorable to the verdict.@ Hooper v. State, 214
S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We must presume that the factfinder
7
Wise challenges legal and factual sufficiency. But after Wise filed his
brief, the court of criminal appeals held that there is ―no meaningful distinction
between the . . . legal-sufficiency standard and the . . . factual-sufficiency
standard, and these two standards have become indistinguishable.‖ Brooks v.
State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (overruling Clewis v. State,
922 S.W.2d 126 (Tex. Crim. App. 1996)). Thus, the Jackson standard is the
―only standard that a reviewing court should apply in determining whether the
evidence is sufficient to support each element of a criminal offense that the State
is required to prove beyond a reasonable doubt. All other cases to the contrary .
. . are overruled.‖ Id. at *14. Accordingly, we apply the Jackson standard of
review to Wise‘s sufficiency complaints.
12
resolved any conflicting inferences in favor of the prosecution and defer to that
resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at
778. The standard of review is the same for direct and circumstantial evidence
cases; circumstantial evidence is as probative as direct evidence in establishing
the guilt of an actor. Clayton, 235 S.W.3d at 778; Hooper, 214 S.W.3d at 13. In
determining the sufficiency of the evidence to show an appellant=s intent, and
faced with a record that supports conflicting inferences, we Amust presume—
even if it does not affirmatively appear in the record—that the trier of fact
resolved any such conflict in favor of the prosecution, and must defer to that
resolution.@ Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). If an
appellate court finds the evidence insufficient under this standard it must reverse
the judgment and enter an order of acquittal. Woodard v. State, No. 01-09-
00133-CR, No. 01-09-00134, 2010 WL 5093848, at *3 (Tex. App.—Houston [1st
Dist.] Dec. 9, 2010, no pet. h.).
B. Applicable Law
A person acts intentionally with respect to the nature of the conduct when
the person has a conscious objective or desire to engage in the conduct; a
person acts knowingly when he is aware of the nature of his conduct. Tex. Penal
Code Ann. § 6.03(a), (b) (Vernon 2003). Possession means actual care,
custody, control, or management of the thing possessed. Id. § 1.07(a)(39)
(Vernon Supp. 2010); Liggens v. State, 50 S.W.3d 657, 659 (Tex. App.—Fort
Worth 2001, pet ref‘d). Proof of a culpable mental state almost invariably
13
depends upon circumstantial evidence. Krause v. State, 243 S.W.3d 95, 111
(Tex. App.—Houston [1st Dist.] 2007, pet. ref‘d); see also Hernandez v. State,
819 S.W.2d 806, 810 (Tex. Crim. App. 1991), cert. denied, 504 U.S. 974 (1992).
C. Evidence
At trial, Amy Trippel, the digital forensics examiner who searched the
Gateway tower, testified that she was asked to look for evidence of ―pornography
and chat logs and [that the police] were specifically looking for pictures of [C.H.].‖
Trippel found ten child pornography images in the computer‘s free space, which
is unallocated space that is marked as available for use. Trippel indicated that
files go into the free space upon deletion; she described free space as being
like a card catalog in a – in a library. If I take the card out of the card
catalog and throw it away, the library book is still there, but I just
don‘t know where to go get it. And that‘s the same concept. If I
delete a file, the file is still there, the operating system just doesn‘t
know where to get it.
Trippel explained that there was no way to know where the image files
came from, how they were placed on the computer (for example, whether they
were viewed intentionally or popped up automatically while a user was looking at
another website), or when they were created, modified, or viewed. Trippel
indicated that the Gateway tower contained various viruses and that some
viruses could make it possible for pornography to be stored on a computer
without the user‘s knowledge; that anyone using a virus to place the images in
free space would not be able to access them; that files placed into free space
remain there until they are written over by other files; and that when a cached
14
temporary internet file is deleted, it goes into free space, at which time a forensic
examiner cannot tell when the file was viewed. Wise‘s brother testified that Wise
purchased the computer at a flea market in August 2006.
D. Analysis
Wise argues that the evidence is insufficient because the images in
question were stored in free space ―and the [S]tate failed to show that he had
ever seen them or had any access to them.‖ To support his argument, Wise
distinguishes this court‘s previous decision affirming possession of child
pornography when images were found in the free space on the defendant‘s
computer. See Perry v. State, No. 02-06-00378-CR, 2008 WL 3877303, at *1–4
(Tex. App.—Fort Worth Aug. 21, 2008, pet. ref‘d) (mem. op., not designated for
publication). We agree that Perry is factually distinct from the present case. In
Perry, Perry affirmatively uploaded pornographic images of children onto the
internet, his computer did not harbor any viruses that could covertly place images
on Perry‘s computer, and there was no evidence that the computer was
purchased second-hand, leaving little doubt that Perry accessed and then
deleted the pornographic images of children found in his computer‘s free space.
Id. at *1, 3, 5.
Here, the uncontroverted testimony that Wise bought the computer
second-hand at a flea market and the State‘s own expert witness‘s testimony
admitting that the computer contained viruses capable of covertly placing images
on the computer; that Wise could not access the images; and that it was
15
impossible to determine when the images were placed on to, accessed, or
deleted from, the computer, do not meet the State‘s burden to prove beyond a
reasonable doubt that Wise knowingly or intentionally possessed the images.
See Lancaster v. State, 319 S.W.3d 168, 173 (Tex. App.—Waco 2010, pet.
ref‘d). We conclude that this evidence, even when viewed in the light most
favorable to the verdict, could not lead a rational jury to find that Wise
intentionally or knowingly possessed the child pornography images found in the
free space of his computer. See U.S. v. Kain, 589 F.3d 945, 949 (8th Cir. 2009)
(―The presence of Trojan viruses and the location of child pornography in
inaccessible internet and orphan files can raise serious issues of inadvertent or
unknowing possession.‖). Thus, we hold that the evidence is insufficient to
support Wise‘s convictions in counts eight through seventeen of the indictment,
and we sustain Wise‘s second point.
16
V. Conclusion
Having overruled Wise‘s first point and sustained his second point, we
affirm the trial court‘s judgment on counts one through six and reverse the trial
court‘s judgment with respect to counts eight through seventeen and render a
judgment of acquittal on those counts.
BOB MCCOY
JUSTICE
PANEL: LIVINGSTON, C.J.; MCCOY and MEIER, JJ.
LIVINGSTON, C.J. filed a concurring and dissenting opinion.
PUBLISH
DELIVERED: March 3, 2011
17
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00267-CR
JEFFREY SHANE WISE APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY
------------
DISSENTING AND CONCURRING OPINION
------------
Today, the majority holds that when defendants possess illegal
pornographic images on their computers but delete them and send them to their
hard drives‘ free space before the police discover them, the State cannot prove
intentional or knowing possession of the images. Majority op. at 15–16.
Because the circumstantial evidence is sufficient to support the jury‘s
determination to convict appellant for ten counts of possession of child
pornography, I dissent to the portions of the majority‘s opinion and judgment that
acquit him of those charges. I concur with the majority‘s decision to affirm
appellant‘s other convictions.
The standard for evidentiary sufficiency explained by Jackson v. Virginia1
and Clayton v. State2 is included but incorrectly applied in the majority‘s opinion,
so it bears repeating here. See Majority op. at 11–13. The relevant question in
an evidentiary sufficiency review is whether, after viewing the evidence in the
light most favorable to the prosecution, ―any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.‖3 Clayton, 235
S.W.3d at 778. Viewing the evidence in the light most favorable to the verdict
―means that the reviewing court is required to defer to the jury‘s credibility and
weight determinations because the jury is the sole judge of the witnesses‘
credibility and the weight to be given their testimony.‖ Brooks v. State, 323
S.W.3d 893, 899 (Tex. Crim. App. 2010). One product of the jury‘s lone role of
assessing witnesses‘ credibility is that the jury ―is free to believe or disbelieve the
testimony of any witness, to reconcile conflicts in the testimony, and to accept or
reject any or all of the evidence of either side.‖ Bottenfield v. State, 77 S.W.3d
1
443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979).
2
235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
3
Thus, the State is not required to prove guilt beyond all doubt. See Turro
v. State, 950 S.W.2d 390, 397 (Tex. App.—Fort Worth 1997, pet. ref‘d) (op. on
remand) (explaining that in a ―circumstantial evidence case . . . , it is
unnecessary for the circumstances to exclude, to a moral certainty, every other
feasible hypothesis‖).
2
349, 355 (Tex. App.—Fort Worth 2002, pet. ref‘d), cert. denied, 539 U.S. 916
(2003). The jury‘s freedom to reject testimony applies even when the testimony
is uncontroverted. Wilkerson v. State, 881 S.W.2d 321, 324 (Tex. Crim. App.
1994).
The majority holds that the evidence is insufficient to show that appellant
intentionally or knowingly possessed the illegal images found on his Gateway
tower because
the computer contained ―viruses capable of covertly placing images‖;
appellant could not access the images he was convicted for;
the evidence did not show when the images were placed on, accessed, or
deleted from the computer; and
appellant‘s brother, Kerry, testified that appellant bought the computer at a
flea market.
Majority op. at 15–16.
The majority mischaracterizes the evidence about the viruses on
appellant‘s computer. Amy Trippel, the State‘s digital forensic examiner, testified
that the computer had several viruses and then said that some viruses,
hypothetically, are capable of remotely accessing a computer and storing images
on it. Trippel did not say that the viruses found on appellant‘s computer served
such a purpose. She did explain, however, that the probability of a malicious
outsider using a virus to store child pornography in the free space of another
computer is low:
3
[THE STATE:] Okay. Hypothetically, let‘s say a bad guy
wants to store child porn on your computer to view later on, okay?
And if he put it in your free space, he would have no way of
retrieving those images of child porn to view because they‘re not
linked to a specific number, code or other identifying number or
code; is that correct?
A. Well, there would be no file allocation to --
Q. That‘s correct?
A. -- to show where the pointer was to where that file was.
Q. Okay. So if I‘m a bad guy and I put porn on your
computer, the last place I would put it would be on your free space,
because I couldn‘t retrieve it to view it?
A. I don‘t see how you could.
Therefore, the jury could have rationally rejected the notion that the illegal
images were placed on appellant‘s computer through a virus.
The jury could have also rationally disbelieved Kerry‘s second-hand
testimony about appellant‘s buying the Gateway computer at a flea market.4
Kerry described appellant as his ―hero‖ and protector. Furthermore, during the
State‘s questioning, Kerry hesitated to condemn appellant‘s sexual assault of a
girl who was about twenty-five years younger than appellant was. Thus, the jury
could have inferred that Kerry‘s testimony was biased. Next, the jury could have
recognized that Kerry‘s claim to have specific knowledge about the Gateway
computer seemed to be at odds with his unawareness about other parts of
4
Kerry did not claim to have witnessed the purchase; he said, ―I‘d stopped
by [appellant‘s] house on my -- it was a week or so around my birthday, he took
me to get a hamburger. He had gotten . . . it from a flea market.‖
4
appellant‘s life, such as the name of appellant‘s former wife, the fact that
appellant had sexually assaulted underage females, and information about other
computers that appellant owned.
Even if believed, however, Kerry‘s testimony did not foreclose appellant‘s
possession of the images but only presented the jury with a choice of who
possessed them. Likewise, the fact that Trippel could not say when the images
were placed on, accessed, or deleted from the computer did not preclude
appellant‘s possession of them; Trippel‘s testimony only meant that there was no
direct evidence that he did so. But circumstantial evidence alone may be
sufficient to establish guilt. Orr v. State, 306 S.W.3d 380, 395 (Tex. App.—Fort
Worth 2010, no pet.) (citing Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.
2007)). Thus, possession, intent, and knowledge may be proved by
circumstantial evidence. See Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim.
App. 2006); Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004);
Richardson v. State, 328 S.W.3d 61, 66–68 (Tex. App.—Fort Worth 2010, pet.
ref‘d). In fact, proof of a culpable mental state almost invariably depends upon
circumstantial evidence. Krause v. State, 243 S.W.3d 95, 111–12 (Tex. App.—
Houston [1st Dist.] 2007, pet. ref‘d) (holding that various items of circumstantial
evidence showed that the defendant intentionally or knowingly possessed child
pornography); cf. James v. State, 264 S.W.3d 215, 221 (Tex. App.—Houston [1st
Dist.] 2008, pet. ref‘d) (holding that ―circumstances [were] sufficient for the jury to
5
infer that appellant knowingly possessed the firearm that was found near his
feet‖).
The jury could infer appellant‘s intentional or knowing possession of the
child pornography from the following circumstantial evidence:
the Gateway tower was found in appellant‘s home, and the record does not
contain evidence that anyone other than appellant lived at the home or had
recently used that computer;
the Gateway tower contained adult pornography and ―child erotica,‖ which
Trippel described as legal pictures of children who are either partially
clothed or nude;
the child erotica was located in the My Documents folder of the computer
within another folder named ―childmodelsites.com‖;
the Gateway tower contained, as temporary internet files that were viewed
or created in 2007 or 2008 (after appellant‘s alleged purchase of the
computer at a flea market), a file called youngpornandteensex
@youngzilla.com and another file relating to a ―hickey preteen model‖;
appellant admitted while giving his statement to police that he visited
pornographic websites and had seen pictures of ―all different‖ ages of girls
(but denied that there were pictures of underage females);
Trippel also found ―child erotica or suspected child porn‖ on a laptop
computer, which apparently belonged to another person but was seized
from appellant‘s house;
appellant possessed other child pornography on a digital camera in his
home;
the State substantiated appellant‘s specific sexual interest in children
through testimony of sexual assault victims; and
the State showed appellant‘s general interest in pornography by proving
that the police found pornographic DVDs at his house.
6
The majority‘s opinion ignores these facts and seems to hold that because
there was no direct evidence that appellant possessed the illegal images and
there were alternate hypotheses to his possession of them, the State failed to
meet its burden.5 Majority op. at 15–16. But a lack of direct evidence and the
existence of alternative hypotheses will be common features of many cases in
which illegal images have been deleted and reside in a computer‘s free space.
These features should not prevent a conviction where a rational jury may
nonetheless rely on circumstantial evidence to find the elements of the crime
beyond a reasonable doubt. See Clayton, 235 S.W.3d at 778; Orr, 306 S.W.3d
at 395.
I would affirm the convictions in counts eight through seventeen of
appellant‘s indictment; I dissent from the majority‘s decision to reverse them.
TERRIE LIVINGSTON
CHIEF JUSTICE
PUBLISH
DELIVERED: March 3, 2011
5
The circumstantial evidence supporting intentional or knowing possession
in this case at least equals the evidence that we held to be sufficient to support a
conviction for possession of child pornography in Perry v. State, No. 02-06-
00378-CR, 2008 WL 3877303, at *1–4 (Tex. App.—Fort Worth Aug. 21, 2008,
pet. ref‘d) (mem. op., not designated for publication). Perry established that
intentional or knowing possession of images is provable even when the images
are stored in free or unallocated space. Id. at *3–4.
7