Opinion
No. 05-08-00007-CR
Opinion issued May 21, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 219th Judicial District Court, Collin County, Texas, Trial Court Cause No. 219-82443-04.
Before Justices BRIDGES, O'NEILL, and FITZGERALD.
OPINION
Mark Andrew Assousa was convicted of possession of child pornography and sentenced by the court to five years of confinement, which was probated for eight years. In two issues, he claims the evidence is legally and factually insufficient to support the conviction. As modified, we affirm the trial court's judgment.
Background
In January 2004, appellant was investigated by his employer, Samsung, for viewing pornography on a work computer. He subsequently told Samsung's human resources manager, Kristie Maschmann, that he "accidentally came across pornography while doing internet searches." Appellant said that he "looked at some of the adult stuff" and "accidentally clicked on some kids, probably looked at it too long, but tried to quickly get out." Samsung terminated appellant's employment and contacted the police. On October 14, 2004, officers from the Plano police department, along with two FBI agents, went to appellant's house in Collin County to conduct a follow-up investigation based on the referral from Samsung. The officers knocked on appellant's front door and conducted what is commonly known as a "knock and talk" visit. Appellant invited the officers into his home and consented (both orally and in writing) for them to search his computer. One of the officers asked appellant if he had any child pornography on the computer and appellant "said he did not." While talking with appellant, officers used a search tool known as a "pre-search" (a program that scans the computer's hard drive for non-deleted images) to search the computer for child pornography. Appellant told one of the officers that he had been involved in looking "at child pornography for quite some time" but that he was trying "to eliminate it out of his life." Appellant said he had recently purchased "some new equipment" and "was trying to keep any of the child pornography images off of his new equipment." He also "specifically mentioned that he wanted to keep it out of his house altogether." As the conversation continued, several pornographic images retrieved by the "pre-search" appeared on the computer screen. Appellant was directed to these images and asked how old the girls appeared to be. He said the girls seemed to be "between 10 and 12 years old." When one of the officers asked appellant if he was the only person who had access to the computer, appellant said the computer "was his" and was "for his sole use." Appellant told the officers he had last accessed "child porn images" "[a]pproximately one week prior" and that he had specifically looked for "[i]mages of juvenile females." Officers confiscated appellant's Dell laptop computer and appellant sat down at the dining room table and wrote out the following statement, which was admitted into evidence:I started looking at pornographic sites out of curiosity. Images collected were incidental in that I had never intended to keep the images. I've had an interest in images for about 18 months. These sites often feature images of children. Images on the Dell had images of girls possibly as young as 10 years.
I had hoped to discontinue looking at such images upon receiving new equipment and "starting clean." I have also striven to keep child pornography "out of the house." I most recently viewed such images about 1-2 weeks ago.
I have never created such images, purchased such images, or had or sought inappropriate contact with a minor. Images stored on the system were incidental to viewing. I believed I'd gotten rid of the material.An FBI forensic examiner, Donald F. Wills, examined appellant's computer after it was seized. Wills said he found approximately 500 deleted images on the computer using what he called a "CAR process," which is a forensic tool that attempts to recover deleted images. Wills' written examination report and an attached CD-R containing copies of all of the images recovered from appellant's computer were admitted into evidence. He described the "CAR process" as follows:
[W]hen you delete images off your computer for whatever reason, and that space becomes available for the computer to use, it may or may not use that space. This was a 10-gig hard drive, which isn't a lot of computer space, a lot of disk space. So that becomes available. That picture is still there and able to be recovered by a signature. It's a file header signature, which is what the CAR process does.In addition to the images recovered through the "CAR process," Wills found fifty child porn images in the computer's internet browser "cache" file, which is where the internet browser automatically downloads and stores pictures from web images so they can be uploaded more quickly upon later visits to the web page. The computer user must visit the web page in question for the images to be downloaded and stored in the cache file. Among the images recovered from the cache file were State's exhibits three and four, which are pictures of nude pre-teen girls. Wills testified that the images found in the cache file are "similar in kind" to State's exhibits three and four. Wills also found traces of two child-porn movies on appellant's computer that were from what Wills called the "Vicky" series. One of these films shows two nude girls in a bathroom and the other shows "a young girl, probably 8 or 9-years-old, dancing for the camera" and then performing a sexual act on "an obvious adult male behind the camera." The file folder that held these movies could not be recovered but Wills explained that the computer program "Real Player," which appellant was using, maintains a file-link "history" of what computer files it has played and this history is "not erased." By checking that file history, Wills determined the "Vicky" video files had been played on appellant's computer "sometime in September of `04." The Real Player file history on appellant's computer also "showed a history of playing what's known as a Baby J series," which Wills described as a "known child-porn series" "involving an infant child" that is difficult to find on the internet. Wills noted that appellant's "Real Player history file" contained "a folder under My Documents called Other," and there were "a lot" of "Baby J files" in that folder. This folder was "totally gone" and "not recoverable" through the investigative methods then available to Wills. But he observed that to amass that amount of "Baby J" material "takes some work." The "Real Player history" showed that someone had been accessing child pornography on appellant's computer for "a couple of years' span." Analysis of appellant's computer also showed that he subscribed to various internet "newsgroups" pertaining to child pornography or erotica. However, no other evidence was presented regarding these newsgroups or appellant's participation, if any, in newsgroup discussions or activities. Wills testified that it was clear someone had attempted to delete some of the child pornography from the computer. He could not determine when the deletions actually took place. Wills agreed it was possible that a "normal" computer user would believe a deleted image is "gone forever." Appellant's expert, Wayne Marney, a computer forensic consultant, examined the same evidence as the State's expert and agreed that, "sometime prior to seizure," images of child pornography were "stored" on the computer and then subsequently deleted. Marney added that the deleted "images of child pornography were beyond the reach of an average person." Regarding the fifty images recovered from the internet browser cache, he claimed the images in the browser cache would not necessarily have been seen by the computer user, that is, the browser would store all of the images on the page even if the user did not scroll down to view or "click on" those images. Marney testified that "the minute the browser touches" an image, "the first thing that starts occurring is that cookies start being put on the drive and . . . the objects within that page start being downloaded." "They could be in the form of something else and — not know what's down, they don't scroll down to be able to see." According to Marney, "just because it's in the cache, yes, the browser went there," but that does not mean the image "was viewed." Appellant waived a jury trial and did not testify in his defense. On October 31, 2007, the court found him guilty of the offense of possession of child pornography and assessed punishment at five years of confinement, which was probated for eight years. Appellant was fined $1,000 and ordered to register as a sex offender. This appeal followed.
Discussion
Legal Sufficiency In his first issue, appellant claims the evidence is legally insufficient to support the judgment. Appellant argues he did not intentionally or knowingly possess the child pornography because (1) he believed he had deleted the material and (2) the child porn images could have been automatically downloaded, or "cached," by the computer's internet browser even if he never actually saw those images. In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004). The fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). A person commits the offense of possession of child pornography if the person knowingly or intentionally possesses material that visually depicts a child, younger than eighteen years of age at the time that the image of the child was made, who is engaging in sexual conduct and the person knows that the material depicts such a child. Tex. Penal Code Ann. § 43.26(a) (Vernon 2003). Visual material includes any physical medium that allows an image to be displayed on a computer and any image transmitted to a computer by telephone line, cable, satellite transmission, or other method. Id. § 43.26(b)(3). "Sexual conduct" includes sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, and lewd exhibition of the genitals. Id. § 43.25(a)(2). Possession of child pornography is a third-degree felony. Id. § 43.26(d). A person possesses a thing when he exercises actual care, custody, control, or management over the thing. Id. § 1.07(a)(39). A person acts intentionally when it is his conscious objective or desire to engage in the conduct or to cause the result. Id. § 6.03(a). A person acts knowingly when he is aware of the nature of his conduct or that the circumstances exist or when he is aware that his conduct is reasonably certain to cause the result. Id. § 6.03(b). Proof of a culpable mental state almost invariably depends upon circumstantial evidence. See Hernandez v. State, 819 S.W.2d 806, 810 (Tex.Crim.App. 1991). A trier of fact can infer knowledge from all the circumstances, including the acts, conduct, and remarks of the accused. See Dillon v. State, 574 S.W.2d 92, 94 (Tex.Crim.App. 1978). Beginning with the deleted images, the evidence shows that appellant admitted he searched for child pornography on the internet. He claimed his initial discovery of child pornography was an accident but in his written statement he admitted that he consciously looked at images of child pornography for eighteen months, and the forensic examination showed that someone had been accessing child pornography on appellant's computer for "a couple of years' span." Moreover, appellant told the police the computer was "for his sole use," and no evidence was presented that anyone other than appellant ever had access to the computer. There were efforts to delete the child pornography images and some of the files, the child pornography images from the "Vicky" and "Baby J" series, were deleted so thoroughly they could not be recovered. "Logically, one cannot destroy what one does not possess and control. Indeed, the ability to destroy is definitive evidence of control." United States v. Tucker, 150 F. Supp. 2d 1263, 1267 (D. Utah. 2001). As for appellant's suggestion that he did not intentionally or knowingly possess the "cached" images which were downloaded by his computer's internet browser, the record does not suggest that the "internet" was some mysterious force that suddenly and unexpectedly took possession of appellant's computer. See Tucker, 150 F. Supp. 2d at 1268. The evidence, in fact, shows that appellant had extensive training and experience as a computer software programmer, and that he consciously sought out and looked at images of child pornography on the internet. Since a computer user must visit a web page in order for images to be downloaded, the fact finder could have reasonably concluded that the images in question would never have been stored in the cache file on appellant's computer had he not visited web sites offering access to child pornography. Furthermore, even though we doubt a computer programmer did not know the images in question were stored on his computer, the "cached" images were not the only evidence against appellant. The evidence shows that appellant admitted he spent eighteen months searching for and accessing child pornography over the internet; subscribed to various internet "newsgroups" pertaining to child pornography or erotica; told investigators he had searched for child pornography within two weeks prior to their "knock and talk" visit to his home on October 14, 2004; assured those same investigators that the computer was "for his sole use"; and had on his computer over 500 deleted images of pre-teen to infant children, including the "Vicky" series and the difficult-to-find "Baby J" series. Thus, we conclude the evidence is legally sufficient to support the verdict. We overrule appellant's first issue. Factual Sufficiency Appellant's second issue complains that the evidence is factually insufficient to show that he knowingly or intentionally possessed either the deleted or "cached" images recovered from his computer. In a factual-sufficiency review, we consider whether, after viewing the evidence in a neutral light, a rational trier of fact was justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App. 2006). We "must be cognizant of the fact that a jury has already passed on the facts and must give due deference to the determinations of the jury." Lancon v. State, 253 S.W.3d 699, 704-05 (Tex.Crim.App. 2008). "A verdict should be set aside only if the evidence supporting the verdict is so weak as to render the verdict clearly wrong or manifestly unjust." Id. at 705. Therefore, we will not reverse a judgment on a factual sufficiency challenge unless we can say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the verdict. Watson, 204 S.W.3d at 417. Appellant's factual sufficiency argument focuses, as before, on his claim that he believed he had deleted the material in question and his expert's testimony that the "cached" images could have been automatically downloaded by the computer's internet browser even if appellant never actually viewed the images. As the finder of fact, the trial court was the exclusive judge of the witnesses' credibility and the weight to be give to their testimony. See Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). It was free to accept or reject any or all of the evidence presented by either side. See Krause v. State, 243 S.W.3d 95, 110 (Tex.App.-Houston [1st. Dist.] 2007, pet. ref'd). Moreover, as we discussed previously, appellant admitted to investigators that he spent eighteen months searching for and accessing child pornography on the internet. Appellant also told investigators that he had searched for child pornography within two weeks prior to their "knock and talk" visit to his home, and that the computer was "for his sole use." The evidence further shows that appellant subscribed to various internet "newsgroups" pertaining to child pornography or erotica, and that investigators found over 500 deleted images of pre-teen to infant children on appellant's computer, including the "Vicky" series and the "Baby J" series. We find no objective basis in the record that would allow us to say that the great weight and preponderance of the evidence contradicts the verdict or that the verdict is clearly wrong or manifestly unjust. Viewing the evidence in a neutral light, but recognizing that the trier of fact has already passed on the facts and giving its determinations appropriate deference, we conclude the evidence was factually sufficient to sustain the verdict. We therefore overrule appellant's second point of error. Reformation of Judgment The State points out that the trial court's judgment incorrectly states that appellant pleaded guilty and was sentenced according to a plea bargain agreement. Under the heading "Terms of Plea Bargain," the judgment states:Five(5) years confinement in the Correctional Institutions Division, TDCJ probated for Eight (8) years; Restitution $0; Fine $1,000.00; Court costs; Waive right to appeal and right to file or urge any motion for new trial.According to the record, after waiving his right to a jury trial appellant was found guilty by the trial court and sentenced to five years' confinement, which was probated for eight years. There was no plea agreement. Therefore, the trial court's judgment will be modified to reflect a plea of not guilty and the portion of the judgment entitled "Terms of Plea Bargain" will be deleted. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd). As modified, we affirm the trial court's judgment.