No. 05-03-00486-CR
Opinion filed January 14, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 380th Judicial District Court, Collin County, Texas, Trial Court Cause No. 380-81069-02.
Before Justices MOSELEY, FITZGERALD, and LANG.
Opinion by Justice DOUGLAS S. LANG.
On a plea of not-guilty, Kyle DeWayne Kupper was convicted by a jury of four counts of aggravated sexual assault of K.B., a child under the age of fourteen, and sentenced to thirty-eight years' confinement for each count. The sentences run concurrently. In seven issues, Kupper challenges the admissibility of certain evidence, the trial court's denial of a motion for continuance, and the legal and factual sufficiency of the evidence to support the verdict. For the reasons stated below, we resolve Kupper's issues against him and affirm the trial court's judgment.
Factual Context
In April 2002, Kupper's former wife found child pornography on Kupper's home computer. She also suspected that Kupper was sexually involved with a middle school-aged girl. Kupper's former wife discussed her suspicions with Scott Stowers, a city of Wylie police detective. Then, she downloaded some files onto a disk and gave the disk to Stowers. She also gave Stowers a phone number which she retrieved from Kupper's cell telephone. Stowers determined it was K.B.'s telephone number. Kupper's home computer was forensically searched. Evidence was also retrieved from Kupper's work computer and from K.B.'s computer. Kupper was arrested on an unrelated warrant. Stowers interviewed Kupper regarding the child pornography and relationship with K.B., and Kupper made a written voluntary statement. Stowers also interviewed K.B. Before the guilt/innocence phase, Kupper moved to suppress the written statement. After a hearing, the trial court admitted a redacted version of the written statement. At trial, evidence was admitted, over objection, showing that K.B. and Kupper exchanged e-mails. The jury also heard testimony about their meetings and sexual intercourse. Admissibility of Evidence A. Context
In his first issue, Kupper challenges the admissibility of State's Exhibits 1, 2, and 3. Exhibit 1 consists of e-mail messages retrieved from Kupper's deleted files on his work computer. Exhibit 2 consists of an e-mail message and a photograph retrieved from the temporary internet files on Kupper's work computer. Exhibit 3 consists of a "story" and a photograph retrieved from K.B.'s computer. At trial, Kupper objected to the admission of Exhibits 1, 2, and 3 on grounds of lack of proper predicate as to "chain of custody" and authentication. Specifically, he referred to Leonard's testimony regarding a three-day lapse in her comparison of the exhibits with documents she had given Stowers. Although Leonard stated that the exhibits appeared to be the same, without alteration or deletion, she agreed that she could not say "for sure" that nothing had been altered or deleted. On appeal, Kupper makes additional specific arguments. We cannot conclude that Kupper preserved error as to all his arguments on appeal. See Tex.R.App.P. 33.1. Since all of Kupper's arguments relate to authentication and chain of custody issues, we address them in the interest of justice. B. Authorities
The ruling as to admissibility of evidence is within the discretion of the trial court and will not be overturned as long as the trial court's ruling was within the zone of reasonable disagreement. Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim. App. 2003). Texas Rule of Evidence 901(a) provides: "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Tex. R. Evid. 901(a). An example of authentication or identification pursuant to rule 901(a) is "[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances." Tex. R. Evid. 901(b)(4). A chain of custody must be established when: (1) there is a possibility of commingling the item with items similar in appearance, (2) the sponsoring witness has not marked with distinctive markings an item not having distinctive characteristics, or (3) there is a suggestion the evidence has been tampered with or changed in some manner. Ennis v. State, 71 S.W.3d 804, 808 (Tex. App.-Texarkana 2002, no pet.). The chain of custody is conclusively established if an officer testifies he or she seized the item of physical evidence, tagged it, placed an identifying mark on it, placed it in evidence storage, and retrieved the item for trial. Id. (citing Lagrone v. State, 942 S.W.2d 602, 617 (Tex.Crim.App. 1997)). However, proof of chain of custody goes to the weight rather than the admissibility of the evidence. Id. Absent evidence of tampering or commingling, theoretical breaches in the chain of custody do not affect the admissibility of evidence. Id. C. Discussion
In his first argument, Kupper contends that the State did not show that Exhibits 1 and 2 came from a computer that Kupper actually used. The gist of Kupper's argument is that Kupper's work computer was one of many computers at his workplace, and because the computers may have been "commingled," the State did not show that the documents in the exhibits were actually retrieved from Kupper's computer. Kupper also argues that because computers were not given identifying marks, the copies made from the hard drives were improperly admitted. Sherry Leonard, a Dallas police detective, testified that she was the computer forensics officer assigned to Kupper's case. Leonard testified that she "imaged," or made copies of, the hard drives of both computers. She then made copies of documents on the duplicate hard drives. The documents in the exhibits were copies of the copies she made from the hard drives. Leonard testified that Stowers brought K.B.'s computer to the forensics laboratory, where Leonard imaged the hard drive. She testified that she went to Kupper's workplace, and Stowers pointed to a computer and told her to image it. According to Leonard, she placed the mark "Q4" on the documents that she recovered from Kupper's work computer. The documents in Exhibits 1 and 2 are marked "Q4." The documents in Exhibit 3 are marked as being from K.B.'s computer. The computers themselves were not offered as exhibits. Rather, Leonard testified that she "imaged" the computer Stowers pointed out to her as Kupper's work computer. There is no evidence that Leonard imaged a computer at the workplace that was not Kupper's. Leonard testified that she placed identifying marks on the documents copied from the hard drives and gave the copies to Stowers. She testified that the exhibits appeared to be the same as the documents she gave Stowers. Moreover, the text of documents in the exhibits contain the names "kyle" or kkupper." We reject Kupper's contention that the State did not show that Exhibits 1 and 2 were from Kupper's work computer. Next, Kupper argues that the contents of Exhibit 1 were obtained from deleted files, and thus the hard drive had been altered or tampered with by the State. Leonard testified that the documents were downloaded or "recovered" as a deleted file from the hard drive. Kupper does not explain how retrieving a document from a "deleted" file on a hard drive by downloading or recovering it alters either the hard drive or the document itself. As evidence of tampering, Kupper also points to Leonard's testimony that she was not sure if the exhibits had been "changed, altered, or deleted" between Friday, when she compared the exhibit with the original copy, and Monday of trial. However, Leonard testified that the exhibits appeared to be the same, and she did not know if anything had been "deleted or added" to the exhibits. We cannot conclude that this testimony is a suggestion the evidence has been tampered with or changed in some manner. See id. Leonard's testimony merely establishes that the exhibits appeared to be the same as the documents Leonard gave Stowers, but she could not say so with absolute certainty. Importantly, Kupper offers no evidence of any alteration or deletion in the documents themselves or points to any evidence on the documents themselves of alteration or deletion. In his final argument, Kupper argues that several of the documents in the exhibits appear to be e-mails, although there was testimony that they were never sent as e-mails. However, the issue is whether the documents are authenticated or identified as documents from Kupper's and K.B.'s computers, not whether any e-mail was sent or received by either party. The documents include Kupper's and K.B.'s names and K.B.'s e-mail address, and contain similar fact scenarios. We reject Kupper's arguments and conclude that Leonard's testimony established that the appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with the circumstances, authenticated Exhibits 1, 2, and 3. There is no evidence raising chain of custody issues. See Tex. R. Evid. 901; Ennis, 71 S.W.3d at 808; see also United States v. Siddiqui, 235 F.3d 1318, 1322-23 (11th Cir. 2000) (applying identical federal rule of evidence 901(a) and considering e-mail addresses, facts, and names in authentication of e-mails). Accordingly, we conclude the trial court did not abuse its discretion in admitting these exhibits and resolve Kupper's first issue against him. In his second and third issues, Kupper challenges the admissibility of a portion of his written "Wylie Police Department Voluntary Statement." Specifically, Kupper contends that the statement that he "need[ed] help for sexual addiction" was irrelevant pursuant to rule of evidence 404(a), and, even if relevant, it failed the balancing test of rule 403. See Tex. Rs. Evid. 403, 404(a). The State responds that any error was harmless. Even assuming the trial court abused its discretion in admitting the statement, unless the error affected Kupper's substantial rights, it must be disregarded as harmless. See Tex.R.App.P. 44.2(b). Kupper argues the error was harmful "given the nature of the statement and the type of charges in this case." However, the record shows the statement was also admitted without objection during Stowers's testimony on cross-examination by Kupper's counsel. In addition, the record shows the State referred to the statement in opening argument at the guilt/innocence phase, but did not refer to it in the opening argument at the punishment phase. In light of the record evidence of Kupper's sexual conduct and the argument, we conclude that Kupper has failed to show harm. See id. We resolve Kupper's second and third issues against him. In his fourth issue, Kupper contends that, in light of Lawrence v. Texas, 123 S.Ct. 2472 (2003), and rule of evidence 403, Tex. R. Evid. 403, the trial court committed harmful error in admitting into evidence in the punishment phase of the trial, photographs of Kupper engaging in homosexual activity. The State responds that Kupper waived error. When a defendant challenges the admissibility of certain evidence in a hearing outside the presence of the jury, he need not renew his objection when the evidence is offered at trial in order to preserve his complaint for review. Welch v. State, 993 S.W.2d 690, 694 (Tex. App.-San Antonio 1999, no pet.) (citing Tex. R. Evid. 103(a)(1)); see Moody v. State, 827 S.W.2d 875, 889 (Tex.Crim.App. 1992). However, if at trial the defendant states he has "no objection" when the evidence is offered, he waives his admissibility complaint. Welch, 993 S.W.2d at 694; see Moody, 827 S.W.2d at 889. Here, Kupper argued at a hearing outside the presence of the jury that the photographs were not admissible because they were irrelevant and the probative value was outweighed by the prejudicial effects. When the photographs were offered before the jury, Kupper's counsel asked the witness, on voir dire, if the photographs had been changed or altered. The witness replied in the negative. Kupper's counsel then stated, "No objection." Nothing in the record shows that "no objection" meant something other than that Kupper had no objection to the admission of the photographs. Consequently, the response of "no objection" waived Kupper's claim to inadmissibility of the challenged evidence. See Moody, 827 S.W.2d at 889; Welch, 993 S.W.2d at 694. We resolve Kupper's fourth issue against him. Motion for Continuance A. Context
In his fifth issue, Kupper contends the trial court erred in denying Kupper's motion for continuance. He claims that his counsel was not prepared for trial based on the State's prior representation that the case would be continued. The State responds that Kupper has failed to show in the record that he was actually prejudiced by the denial of a continuance. B. Authorities
A motion for continuance in a criminal case is regulated by statute. Wright v. State, 28 S.W.3d 526, 532 (Tex.Crim.App. 2000). "A criminal action may be continued on the written motion of the State or of the defendant, upon sufficient cause shown; which cause shall be fully set forth in the motion." Tex. Code Crim. Proc. Ann. art. 29.03 (Vernon 1989). Granting or denying such a motion is within the sound discretion of the trial court. Wright, 28 S.W.3d at 532; see Tex. Code Crim. Proc. Ann. art. 29.06(6) (Vernon 1989). In order to establish an abuse of the trial court's discretion, an appellant must show that the denial of his motion resulted in actual prejudice. Wright, 28 S.W.3d at 532. C. Discussion
Kupper was arrested in April 2002. On November 1, 2002, after being reset for trial three times, the case was set for trial on March 10, 2003. In February 2003, there were unsuccessful plea bargain discussions. On March 10, Kupper filed a motion for continuance. Kupper's counsel claimed that, on February 27, 2003, he and an assistant district attorney, who did not try the case, agreed that neither attorney was prepared to proceed to trial. Kupper's counsel relied on the assistant district attorney's alleged representation that the State would agree to continue the case to a later date. However, according to the motion, on March 5, the State told counsel it would be ready to proceed to trial regardless of any previous discussions with the State and counsel's reliance on them. The trial court heard the motion and orally denied it. On appeal, Kupper contends he was prejudiced by the denial of the motion for continuance because he was unprepared to cross examine Leonard in that he had not had the opportunity to review the computer files or Leonard's findings. Kupper also contends that his counsel was not prepared to cross examine Stowers because he had not obtained or reviewed Stowers's reports and findings. Moreover, counsel did not have the computer files examined by his own expert to look for exculpatory evidence. Eleven months elapsed between Kupper's arrest and trial. Kupper makes no showing that this was an inadequate length of time for preparation. See Duhamel v. State, 717 S.W.2d 80, 83 (Tex.Crim. App. 1986) (concluding no abuse of discretion in denial of motion for continuance when actual trial preparation time was at least two months). There is no showing that Kupper was surprised by Leonard's or Stowers's testimony, that any of the evidence was unavailable, or that the State refused Kupper's request to review or examine any evidence or information or prevented him from such review. The only evidence in the record as to availability of evidence is the State's testimony at the hearing that the State offered Kupper its entire file the Friday before the Monday trial. At that time, Kupper's counsel took copies the State had made of some evidence, and certain other evidence, but did not read the rest of the evidence for which copies were not provided. Moreover, Kupper did not make any record to show the evidence he would have elicited on cross examination or the exculpatory evidence he could have found. Instead, he relies only on the trial record to show prejudice. See Heiselbetz v. State, 906 S.W.2d 500, 511-12 (Tex.Crim.App. 1995) (concluding no abuse of discretion in overruling motion for continuance because "bare assertion" of inadequate time to interview potential prosecution witnesses or to adequately investigate records for potential mitigating evidence not enough to establish "any specific prejudice"). Because Kupper has not carried his burden to show that the denial of his motion resulted in actual prejudice, we conclude he has not shown the trial court abused its discretion in denying his motion for continuance. See Wright, 28 S.W.3d at 532. Accordingly, Kupper's fifth issue is resolved adversely to him. Sufficiency of the Evidence A. Context
In his sixth and seventh issues, Kupper challenges the legal and factual sufficiency of the evidence to support the verdict. Specifically, Kupper argues that K.B. "changed her story repeatedly" and there is no physical evidence indicating that sexual activity took place. He claims that the only evidence of guilt was K.B.'s testimony. B. Authorities
In reviewing the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the verdict, 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, 318-19 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). In analyzing whether the evidence is factually sufficient to support the verdict, we must determine "whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). In conducting this analysis, the appellate court must defer to the trier of fact's determination concerning the weight given contradictory evidence. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). We must set the verdict aside only if it is so factually insufficient, that is, if (1) it is so weak as to be clearly wrong and manifestly unjust or (2) the adverse finding is against the great weight and preponderance of the available evidence. Johnson, 23 S.W.3d at 11; Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). A person commits the offense of aggravated sexual assault of a child if he intentionally and knowingly (1) causes the penetration of the sexual organ of a child younger than fourteen by the defendant's sexual organ or by any other means or (2) causes the sexual organ of a child younger than fourteen to contact the mouth of the defendant. Tex. Pen. Code Ann. § 22.021(a)(1)(B), (2)(B) (Vernon Supp. 2004). C. Discussion
K.B. testified variously that she and Kupper engaged in sexual intercourse several times beginning when she was twelve years old. Some of the documents in Exhibits 1 through 3 describe sexual activity between K.B. and Kupper. K.B. testified that she had previously denied the extent of the sexual activity. However, the credibility of witnesses is ultimately a decision for the jury. See Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim. App. 1981). We must defer to the trier of fact's determination concerning the weight given contradictory evidence. See Johnson, 23 S.W.3d at 11; Cain, 958 S.W.2d at 407. Viewing the evidence in the light most favorable to the verdict, we conclude a rational jury could have found the essential elements of aggravated sexual assault beyond a reasonable doubt. Accordingly, we conclude the evidence is legally sufficient to support the verdict, and we resolve Kupper's sixth issue against him. Further, we conclude that Kupper's conviction is neither against the great weight and preponderance of the evidence nor clearly wrong and manifestly unjust. Accordingly, we conclude that the evidence is factually sufficient to support Kupper's conviction. We resolve Kupper's seventh issue against him. Conclusion
Having resolved Kupper's issues against him, we affirm the trial court's judgment.