Opinion
No. 05-07-01544-CR
Opinion issued March 27, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 199th Judicial District Court, Collin County, Texas, Trial Court Cause No. 199-80612-06.
Before Justices FRANCIS, LANG-MIERS, and MAZZANT.
OPINION
Ricky Don Dawes was convicted of two counts of possession of child pornography and sentenced to concurrent sentences of eight years in prison. In three issues, he claims the trial court erred in not defining the word "bestiality" in the jury charge and that the evidence is legally and factually insufficient to support the verdict. We affirm the trial court's judgment.
Background
Randy Penn is a Dallas Police detective assigned to the Internet Crimes Against Children Task Force. In September of 2004 he received a tip about a "questionable image" on Yahoo from the National Center for Missing and Exploited Children. Penn learned that the poster of the image was in North Texas. Penn obtained a search warrant for Yahoo in order to retrieve the internet protocol (IP) address associated with that image. The records from Yahoo showed that the IP address belonged to MCI Union and was registered to NetZero. Penn subpoenaed NetZero and obtained appellant's address and telephone number. After determining from the address and telephone number that it was a "Collin County case," Penn contacted the Collin County Sheriff's Department and spoke to Deputy Dale Ingram. After turning the case over to Ingram, Penn received a second tip involving the same IP address but a different screen name and image. Penn passed along this additional information to the Collin County Sheriff's Department. Both of the images associated with the screen names appeared to be child pornography. Using the information obtained from Penn, as well as additional information acquired through further investigation, Ingram obtained a search warrant for appellant's trailer home. Two computers were seized during this June 28, 2005 search, and the computers were turned over to the Secret Service for "forensic analysis." Appellant was interviewed shortly after the search. Ingram believed this conversation put appellant "on notice" about possession of child pornography. Analysis of the computers revealed several web pages that Ingram began to monitor and investigate. Most of the screen names and web pages that Ingram monitored were used by appellant, but one of the screen names and some of the web pages were used by another individual, A.S., who Ingram identified as a victim. After further investigation, Ingram eventually determined that A.S. was living in Irving, Texas. With the assistance of the Irving Police Department, he contacted A.S. in November 2006. After the police contacted A.S., both she and appellant changed the screen names they were using to communicate over the internet. A second search warrant was executed at appellant's residence on December 20, 2006. Ingram and the other officers entered the trailer and found various computer components and a police scanner, but the computer's central processing unit (CPU), or "tower," was missing. Ingram knew that appellant had been online only minutes before they arrived. After unsuccessfully searching for the missing CPU, he confronted appellant. Appellant eventually told him that the CPU was hidden in the yard underneath a bath tub. When officers found the CPU, it was dry even though the weather outside was "quite wet that morning." Ingram noted that a computer's CPU is not normally stored outside because it can be ruined by the weather. The CPU was transferred to the Irving Police Department for analysis because the department was working on a related case. Detective John Montegudo of the Irving Police Department analyzed the CPU recovered in the second search of appellant's trailer. Montegudo found a number of "thumbnail" images on the computer, including images 873, 877, 878, 879, and 882. Montegudo explained that a thumbnail picture is often left behind on a computer after the original image is deleted. Thumbnails can be enlarged, but the resolution is poor. The fact that the thumbnail images were found on appellant's computer indicated that the full-sized images had been present on the computer but at some point were deleted. In addition to analyzing appellant's computer, Montegudo also examined a digital camera and compact flash memory card obtained from A.S. During his testimony, Montegudo linked images recovered from A.S.'s compact flash card to the thumbnail pictures found on appellant's computer. Image 873 shows a dog with its muzzle in the pubic area of a female. Images 877 and 878 are similar to image 873. Image 879 shows A.S. nude with a dog on her belly looking towards A.S.'s pubic area. Image 882 shows A.S. nude with her breasts exposed. A.S. testified she was seventeen years old at the time of trial and her date of birth was March 26, 1990. She was a freshman in high school. She did not want to testify but admitted that, on March 25, 2005, she was contacted by someone who had seen her profile on "vampirefreaks.com." She permitted the contact and began communicating with appellant. They had regular online conversations throughout 2005. She had several different web pages that year, including her "Xanga" page that showed her real birth date. A.S. was not proud of what she had done and was embarrassed. After A.S. refused to testify further, the prosecutor read into evidence A.S.'s written statement to the police. In that statement, A.S. admitted sending nude photographs of herself to appellant on three occasions, that is, in April 2005, summer 2005, and during October through November 2005. Appellant specifically asked A.S. for pictures of her puppy licking her private area and for pictures of A.S licking the dog's private area. On one occasion, they arranged a meeting at a book store in Irving, but appellant did not "show up." Appellant also sent A.S. nude photographs of himself and his "private areas," but A.S. decided not to save those photos on her computer because she "didn't want to get in trouble." Appellant was convicted of possession of child pornography on images 879 and 882 and acquitted on the other images. He was sentenced by the court to concurrent sentences of eight years in prison on each count.Discussion
Appellant's first issue
In his first issue, appellant argues that the trial court erred in not defining the word "bestiality" in the jury charge. As explained in the jury charge, a person commits the offense of possession of child pornography if he knowingly or intentionally possesses visual material that visually depicts, and which the accused knows visually depicts, a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct. Tex. Penal Code Ann. §§ 43.26(a) (Vernon 2003). "Visual material" includes "any disk, diskette, or any other physical medium that allows an image to be displayed on a computer or other video screen and any image transmitted to a computer or other video screen by telephone line, cable, satellite transmission, or other method." Id. § 43.26(b)(3). "Sexual conduct" includes, among other things, "sexual bestiality . . . or lewd exhibition of the genitals . . . or any portion of the female breast below the top of the areola." Id. § 43.25(a)(2). A person possesses a thing when he exercises actual care, custody, control, or management over the thing. Id. § 1.07(a)(39). The word "bestiality" is not statutorily defined. In evaluating alleged jury charge error, we first determine whether error occurred and then determine whether the error caused sufficient harm to warrant reversal of the conviction. Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex.Crim.App. 1994) (en banc). If, as in this case, the defendant timely objected to the charge error, we reverse the conviction if the defendant suffered some actual harm as a result of the error. Id. at 732; Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984) (op. on reh'g). In evaluating whether the defendant suffered some actual harm, we consider the entire jury charge as given, the evidence, counsel's arguments, and any other relevant information in the record. Almanza, 686 S.W.2d at 171. The trial judge must submit to the jury "a written charge distinctly setting forth the law applicable to the case not expressing any opinion as to the weight of the evidence, not summing up the testimony, discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury." Tex. Code. Crim. Proc. Ann. art. 36.14 (Vernon 2007). If a phrase, term, or word is statutorily defined, the trial court must submit the statutory definition to the jury. Alexander v. State, 906 S.W.2d 107, 111 (Tex.App.-Dallas 1995, no pet.). Words that are not statutorily defined are to be given their common, ordinary, or usual meaning. Tovar v. State, 165 S.W.3d 785, 790 (Tex.App.-San Antonio 2005, no pet.); Roise v. State, 7 S.W.3d 225, 242 (Tex.App.-Austin 1999, pet. ref'd). As a general rule, no specific instruction is required for such undefined words in the jury charge, and jurors may give them any meaning that is acceptable in "common parlance." See Medford v. State, 13 S.W.3d 769, 771-72 (Tex.Crim.App. 2000). But words or terms that do not have a common meaning that the jurors can be fairly presumed to know as well as words or terms with technical legal meanings may need to be defined in the charge. See Middleton v. State, 125 S.W.3d 450, 454 (Tex.Crim. App .2003); Medford, 13 S.W.3d at 772. A trial court has broad discretion in submitting proper definitions and explanatory phrases to the jury. Rosie, 7 S.W.3d at 242. In this case, "bestiality" is not a word that has any special technical or legal meaning. It is, in fact, commonly understood to mean sexual relations between a human being and an animal. See Webster's Third New International Dictionary 208 (1981). Black's Law Dictionary notes that the more common definition of bestiality is "sexual activity between a human and an animal." See Black's Law Dictionary 170 (8th ed. 2004). Accordingly, since the word bestiality has a common understanding and no special technical or legal meaning, the trial court did not err when it refused to define it in the jury charge. See Druery v. State, 225 S.W.3d 491, 509 (Tex.Crim.App. 2007) ("Where terms used are words simple in themselves, and are used in their ordinary meaning, jurors are supposed to know such common meaning and terms and under such circumstances such common words are not necessarily to be defined in the charge to the jury"). In addition, even if we were to conclude that the trial court erred, appellant suffered no harm. The jury charge authorized conviction for possession of child pornography as charged in count five of the indictment if the jury found that appellantdid then and there intentionally or knowingly possess visual material that visually depicted, and which the defendant knew visually depicted a child who was younger than 18 years of age at the time the image of the child was made, engaging in sexual conduct, to-wit: actual sexual bestiality or lewd exhibition of the genitals. . . .See Tex. Penal Code Ann. § 43.25(a)(2), 43.26(a)(1) (Vernon 2003). Error in submitting a theory of guilt in the jury charge is harmless if the evidence supports another theory of guilt submitted to the jury. See Ladd v. State, 3 S.W.3d 547, 564-65 (Tex.Crim.App. 1999) (error in charging jury on law of parties harmless because evidence supported guilt as primary actor). Although appellant claims that image 879, which was the basis for count five of the indictment, does not depict bestiality, he does not dispute that it contains a lewd display of A.S.'s genitals. Thus, even if the trial court erred in refusing to define the word "bestiality," a conclusion we do not reach in this case, appellant was not harmed. We overrule appellant's first issue. Appellant's second and third issues In his second and third issues, appellant claims the evidence is legally and factually insufficient to establish that (1) A.S.'s breasts were displayed in a lewd manner in image 882, (2) image 879 depicts bestiality, or (3) appellant knew A.S. was under the age of eighteen. The original indictment contained six counts. Count one was quashed by the court before trial. Appellant was acquitted on counts two, three, and four and convicted on counts five and six. The State prosecuted image 879 under count five of the indictment and image 882 under count six. Count five, as noted previously, alleged that appellant possessed an image in which the child was engaged in "actual sexual bestiality and lewd exhibition of the genitals." Count six alleged that appellant possessed an image in which the child was engaged in an "actual lewd exhibition of female breast below the top of the areola." 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.). In a factual sufficiency review, we view all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007); Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App. 2008). Beginning with appellant's first contention, we note that, in determining whether a visual depiction of a child is lewd, courts should consider whether (1) the focal point of the visual depiction is the child's genitalia, (2) the place or pose of the child in the photograph is sexually suggestive, (3) the child is depicted in an unnatural pose or inappropriate attire, (4) the child is fully or partially clothed or nude, (5) the visual depiction suggests sexual coyness or a willingness to engage in sexual activity, or (6) the visual depiction is intended or designed to elicit a sexual response in the viewer. See Alexander v. State, 906 S.W.2d 107, 110 (Tex.App.-Dallas 1995, no pet.); see also Tovar v. State, 165 S.W.3d 785, 791 (Tex.App.-San Antonio 2005, no pet.). Image 882 shows A.S. from her lower rib cage to the top of her forehead. She is nude and both of her breasts are visible in the picture. She is looking directly at the camera and appears to be speaking on a telephone. She also appears to be lying on a bed and the lighting is subdued. The focal point of the picture is A.S.'s breasts, which appear near the center of the frame, and the expression on her face does not indicate shock or surprise. The overall effect of the picture is sexual and not inadvertent, artistic, or technical. A rational jury could conclude that this image contains a lewd exhibition of female breasts and, therefore, constitutes child pornography. Appellant claims that the image is a mere "display" of a breast and is insufficient to sustain the conviction. We disagree. Although it is true that section 43.26 requires more than a mere display to justify a conviction, we conclude that A.S.'s deliberate pose, facial expression, as well as the setting and the lighting indicate that image 882 was a lewd sexual image and not documentary or artistic in nature. Turning to appellant's second argument, he claims that image 879 does not depict bestiality because it shows no sexual contact between A.S. and the dog. Appellant calls our attention to Montegudo's testimony on cross-examination, where he admitted that there was "no sexual contact of any kind between the dog and [A.S.]" in image 879. Appellant claims that, even under the "broadest interpretation of bestiality, some sexual contact should be present." We need not address this argument. Even if the evidence is insufficient to show that image 879 depicted bestiality, a conclusion we do not reach in this case, the evidence is sufficient to establish that it contains a lewd exhibition of A.S.'s genitals. We must sustain a conviction if the evidence is sufficient to prove any of the alleged manners and means by which the image was unlawful. See McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App. 1997); Roberson v. State, 16 S.W.3d 156, 159 n. 3 (Tex.App.-Austin 2000, pet. ref'd); Reyna v. State, 846 S.W.2d 498, 500 (Tex.App.-Corpus Christi 1993, no pet.). Here, image 879 shows A.S. posing on a bed, fully nude, with her legs spread apart and her knees raised. Her vagina and one of her breasts are visible, and A.S.'s genitals are pointed directly at the camera and are centered on the frame. A small dog is standing on A.S.'s belly with its snout pointed at A.S.'s genitals. A rational trier of fact could conclude that image 879 contains a lewd exhibition of A.S.'s genitals. Appellant also claims that the evidence is insufficient to show that he knew A.S. was under eighteen years of age. According to the record, while A.S. listed her age as eighteen on some of her web pages, she listed her true date of birth on a "Xanga" web page. Appellant's web history indicated that he logged onto the Xanga page several times. In addition, appellant was interviewed by Ingram after the execution of the first search warrant and Ingram testified that appellant was "on notice" after this conversation about possession of child pornography. Furthermore, the jury could have reasonably inferred appellant's knowledge that A.S. was under the age of eighteen from his efforts to hide his CPU when Ingram and the other officers served the second search warrant. The jury could likewise have inferred knowledge from the fact that appellant and A.S. changed their screen names after the second search warrant was executed. Finally, the jury could reasonably infer from the photos themselves, which show a female of high school age who lacks the full facial and physical features of an adult, that appellant knew A.S. was under the age of eighteen. As the finders of fact, the jurors were the exclusive judges of the witnesses' credibility and the weight to be given to their testimony. The jury was allowed to use its common sense and apply its common knowledge, observation, and experience gained from the ordinary affairs of life when giving effect to the inferences that may reasonably be drawn from the evidence. Griffith v. State, 976 S.W.2d 686, 690 (Tex.App.-Tyler 1997, pet. ref'd). They were free to accept or reject any or all of the evidence presented by either side. Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000); Krause v. State, 243 S.W.3d 95, 110 (Tex.App.-Houston [1st Dist.] 2007, pet. ref'd). After carefully reviewing the record, we believe a rational trier of fact could conclude that appellant knew A.S. was under eighteen years of age. Thus, the evidence is legally and factually sufficient to support the conviction. We overrule appellant's second and third issues. We affirm the trial court's judgment.