Opinion
No. 09-09-00525-CR
Submitted on September 29, 2010.
Opinion Delivered October 27, 2010. DO NOT PUBLISH.
On Appeal from the 221st District Court, Montgomery County, Texas, Trial Cause No. 09-03-03223-CR.
Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
MEMORANDUM OPINION
A jury convicted appellant Brandon Eugene Ford of eight counts of possession of child pornography, and the trial court sentenced him to three years of confinement for each count. Ford then filed this appeal, in which he argues that (1) the jury was not competent to distinguish actual child pornography from virtual child pornography without the aid of expert testimony, (2) the evidence was legally insufficient to show that he possessed the visual material, and (3) his convictions of counts four, five, six, and eight violate double jeopardy. We affirm the trial court's judgment.
THE EVIDENCE
John Rubincan, the account manager for Aaron's rental store in Conroe at the time in question, testified that on October 30, 2006, he repossessed a computer that Aaron's had rented to Ford. Ford rented the computer on July 31, 2006. Ford's account became delinquent, and Rubincan unsuccessfully attempted to contact Ford, so Rubincan decided to surprise Ford by attempting to retrieve the computer while driving his own vehicle. Rubincan testified that his wife, Valerie, was waiting at the store, so he decided to take her with him. Rubincan explained that he arrived at Ford's house between 7:00 and 7:30 p.m., and after Ford came to the door, Rubincan identified himself and stated the purpose of his visit. Rubincan and Ford exchanged words, and Ford told Rubincan to get away from his house. Rubincan testified that Ford threatened him. Rubincan told Ford that he was not leaving without the computer, and Ford's mother told Ford to give Rubincan the computer. Ford continued to argue with Rubincan, and Ford eventually went inside, but Rubincan remained at the front door. Ford came out of the house, and Ford began arguing with his mother. Rubincan testified that Ford's mother then "went in, disappeared for a minute, [and] came back with the computer in hand. They started struggling at the door. [Ford] said, `No, he's not getting it. I need . . . to clean it out.'" Rubincan continued to insist that Ford return the computer. Ford's mother eventually threw the computer out the door, and Rubincan caught the computer. According to Rubincan, Ford began to curse and got "really, really upset" and continued to argue with his mother. Rubincan informed Ford that he also wanted the case and charger that came with the computer. Rubincan testified that Ford reentered the house, returned to the door "a minute later[,] and threw the computer case and charger out." Rubincan got in his truck, handed the computer to Valerie and began to drive back to Aaron's. Valerie opened the laptop, which was still running, and told him "that there was something sick on it." Rubincan instructed Valerie to close the computer, and they immediately returned to the store. Upon arriving at the store, Rubincan and Valerie approached the general manager, Jim Wheeler, and Valerie told Wheeler what she had seen on the computer. Rubincan gave the computer to Wheeler. Rubincan testified that Wheeler opened the computer at the front counter and noticed that there were files minimized on it, and when Wheeler clicked on one of the minimized folders, they saw "a picture of a naked little girl" who was sitting on top of a man. Rubincan explained that they also saw another picture of a "little boy" lying next to an adult male. Rubincan testified that he has a child, and he knows a child when he sees one. Valerie offered the same version of events during her testimony. According to Rubincan, after he and Wheeler saw the pictures, they contacted the Conroe Police Department. The police arrived and asked where the computer was found, and after hearing the response, the officer instructed them to contact the Willis police. They decided to instead contact the Montgomery County District Attorney's Office the following day. While the officer was still present, Wheeler took the computer and put it in the safe, to which only Rubincan and Wheeler had access. Rubincan explained that the store's policy is to wipe the hard drive and restore computers to their original factory settings so that they can be rented to new customers. Laurie Allen testified that she rented a new laptop computer from Aaron's, and she returned the computer to the store in July of 2006, after her desktop computer was repaired. Allen explained that she used the computer for business purposes. She testified that her husband and children did not use the computer. According to Allen, she deleted files and uninstalled software, deleted files from the recycle bin, deleted her temporary internet files, and she used a clean up disk. Allen testified that the computer did not contain child pornography when she received it from Aaron's or when she returned it to Aaron's. Daniel Venezia, the general manager of Aaron's in Conroe, testified that he has access to and control over Aaron's records. Venezia also explained that when a renter returns a laptop to Aaron's, Venezia is responsible for restoring it. Venezia explained that he uses disks that restore a computer to its factory settings and erases the internet history. According to Venezia, Aaron's records indicate that when the computer was new, the first renter was Laurie Allen, and when Allen returned it, the next renter was Ford, who rented the computer on July 31, 2006. Ford's mother, Rebecca Howard, testified that Ford rented a computer from Aaron's for his own use. Howard explained that Ford became delinquent with his payments, and Rubincan came to their home and had a heated conversation with Ford. Howard told Ford to return the computer to Rubincan, but Ford continued to argue with Rubincan. Howard testified, "[A]t some point I know I went to the bedroom where [Ford] slept and got the computer. I don't know if it was open or closed. Went to the front door and tossed it out and asked the man to please leave and get off my property." When asked whether anyone other than Ford used the computer, Howard testified,No. Not that I know of. . . . He was very protective of it. It was mainly just his. . . . He did — I guess let my daughter use it. But not without him sitting there. No one else that I know of used it. I didn't use it. My husband wasn't a computer person. The little boys didn't use it.Howard denied that she, her husband, her young children, or her daughter downloaded child pornography. Howard explained that no one but Ford could have been looking at the computer before she got it from Ford's room. Joshua Merillat, a former employee of Aaron's, testified that on October 30, 2006, he was preparing to close the store when Rubincan and Valerie entered with the laptop. Merillat saw the still photograph on the computer of the young boy lying next to an adult male. The trial court admitted the photograph into evidence. Merillat explained that he was "extremely upset" and "knew something needed to be done[,]" so "we contacted the Conroe [Police Department]." When asked whether anyone from Aaron's put child pornography on the computer, Merillat testified, "No, sir. There would be no way." John Stephenson, an investigator with the Montgomery County District Attorney's Office, testified that he took possession of the computer after receiving a telephone call from Merillat. Stephenson understood that the computer contained child pornography, so Stephenson decided to begin an investigation. After reviewing the lease order form and speaking with witnesses, Stephenson identified Ford as a suspect. Stephenson secured the computer at the district attorney's office in a locked file cabinet, to which only he had access, until the computer could be forensically examined. Stephenson eventually took the computer to the Montgomery County Sheriff's Office for forensic examination. Chris Smith, chief investigator with the Montgomery County District Attorney's Office, learned that the computer belonged to Aaron's and had been rented by Ford. Smith testified that he obtained a search warrant to access the computer, and he then retrieved the computer from the sheriff's office. Smith then delivered the computer to the regional computer forensics (RCFL) lab in Houston. Smith explained that he never turned the computer on or manipulated it in any way. Smith testified, "really I just waited until the forensics lab was through with their part of the process where they would then provide me with the information I needed to review and to determine if there w[ere] actual images of child pornography or videos on the computer." During Smith's testimony, the Court admitted into evidence two CDs containing images of child pornography. Smith testified that the district attorney's office received the CAIR (Case Agent Investigative Review) drive, which is a mirror image of the hard drive, on November 6, 2007. Smith testified that he reviewed the CAIR drive, and he saw "an extensive amount of pornographic material[, t]he majority of which was homosexual in nature. And also there were images of child pornography that were found as well." Smith explained, "I just marked [nine] images that were apparent to me to be that of child pornography." Smith testified that the images were still pictures. According to Smith, he also bookmarked eight videos that were clear images of child pornography. Smith identified State's exhibits six and seven as final report CDs generated by the regional computer forensics lab, and he testified that the discs contain images of child pornography. When the photographs were admitted into evidence, defense counsel stated, "I have no objection to these still photos of those photograph images." Smith testified that each instance of having an image that constitutes child pornography is an offense. Smith testified, "my basic responsibility was just to search what was provided to me and identify images of child pornography." Smith explained that he reviewed the pictures and videos, selected the ones he believed to be child pornography, and copied those images into a bookmark on the CAIR drive. Smith identified certain images as child pornography. According to Smith, the subject in one of the videos "appears to be a female child. . . ." After Smith received the disks and gathered the evidence from the computer, he completed his case file and presented it to the district attorney's office. Leonard Keiser, an FBI computer forensics examiner at the RCFL, testified that he examined the computer Ford rented from Aaron's. According to Keiser, the computer's time was inaccurate by one hour; that is, the time shown on the computer was one hour less than the true time. Keiser used a forensic toolkit to analyze the contents of the computer, and Keiser found photographs and videos of "[p]repubescent children" who were younger than twelve or thirteen years of age. Keiser testified that he has children, and the images were clearly children engaged in sexual acts. During cross-examination, Keiser testified that he did not have formal medical training to determine age or body circumference from picture or video files. According to Keiser, the pictures were last accessed on October 30, 2006, at 9:38 p.m., and he opined that it could have been accessed either by employees of Aaron's or by the Morpheus peer-to-peer file-sharing application running in the background. Keiser explained that the images that contained child pornography were stored in the computer's "My Pictures" directory, which was not a default download directory; rather, the user had intentionally placed the images there. In addition, Keiser testified that the username "Brad Ford" was associated with one of the file-sharing applications, and that child pornography was downloaded by e-mail using a username and password that belonged to Ford. According to Keiser, Ford used the search term "preteen." Keiser's examination revealed that the videos were played with Windows Media Player and Real One Player during the dates the computer was in Ford's possession. During Keiser's testimony, the trial court admitted State's exhibits eleven and twelve, which contained lists of the images on the CDs that had previously been admitted as exhibits six and seven. State's exhibits eleven and twelve contained names of pornographic files contained on the computer, and many of the file names included references to both underage participants and sexual conduct. Keiser also testified that it is "possible" that someone else could have viewed the images or played the videos while Ford rented the computer. The State rested at the conclusion of Keiser's testimony. Ford called computer forensic examiner Gary Huestis, who testified that the restoration disks used by Aaron's did not actually wipe a computer's hard drive clean and prevent pre-existing items from being accessed. According to Huestis, nothing from his review of the computer's hard drive directly connects Ford to the images. On cross-examination, Huestis testified that Keiser's testimony was not inaccurate. The defense rested at the conclusion of Huestis's testimony.
ISSUES ONE AND TWO
In his second issue, Ford contends the evidence was legally insufficient to show that he possessed the visual material charged in each of the indictment's eight counts. In his first issue, Ford contends the jury was incompetent to distinguish real child pornography from virtual child pornography without the aid of expert testimony. We interpret Ford's first issue as a challenge to the legal sufficiency of the evidence. Accordingly, we address issues one and two together. "In assessing the legal sufficiency of the evidence to support a criminal conviction, we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). A person commits the offense of possession of child pornography if he "(1) . . . knowingly or intentionally possesses visual material that 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" and "(2) the person knows that the material depicts the child as described by Subdivision (1)." Tex. Penal Code Ann. § 43.26 (West 2003). Counts one and eight of the indictment alleged that Ford possessed visual material depicting a child engaging in lewd exhibition of the genitals. Count two of the indictment alleged possession of visual material that depicted a child engaging in actual sexual intercourse. Counts three, four, five, and six of the indictment alleged that Ford possessed visual material depicting a child engaging in deviate sexual intercourse. Count seven of the indictment alleged possession of visual material that depicted a child engaging in masturbation. In his brief, Ford does not argue that the visual materials charged in each count do not depict the alleged conduct. Instead, Ford argues that the State did not prove that the images were of "real" children rather than "virtual" children, and that the State did not establish that he possessed the materials. The jury heard evidence that when the laptop was new, Aaron's rented it to Allen. Allen testified that she was the only person in her household who used the computer, that she used the computer for business purposes, and that the computer did not contain child pornography when she received it or when she returned it to Aaron's. The jury also heard evidence that when computers were returned to the store, it was the policy of Aaron's to clean the hard drive and to restore the original factory settings. The jury heard evidence that the next renter of the computer was Ford. When Rubincan went to Ford's home to repossess the computer, Howard retrieved the computer while Ford was arguing with Rubincan, and Ford became upset and said he needed to "clean it out" first. The jury heard evidence that Howard threw the computer out the door, and she testified that when she went to Ford's room to get the computer, no one but Ford could have been using it. The jury heard evidence that Ford was "very protective" of the computer, and no one in the household used the computer without Ford's supervision. In addition, the jury heard evidence that the computer was still running when Rubincan received it from Howard, and that when Rubincan and Valerie returned to Aaron's, they saw images of child pornography in some folders that had been minimized. The jury heard evidence that Rubincan has a child, and he believed that the materials depicted children. Merillat testified that he saw on the computer the still photograph that was admitted into evidence as State's Exhibit 1. Moreover, the State introduced into evidence two CDs containing images of child pornography that came from the computer. The jury further heard evidence from Keiser that the computer contained photographs and videos of prepubescent children who were younger than twelve or thirteen years of age, and the images had been intentionally placed in the computer's "My Pictures" directory, and the videos had been played using Windows Media Player and Real One Player during the time Ford was renting the computer. The jury heard evidence that the username "Brad Ford" was associated with one of the file-sharing applications, and that child pornography was downloaded by e-mail using a username and password that belonged to Ford. Furthermore, the jury heard evidence that Ford had used the search term "preteen," and many of the file names of pictures and videos from the computer included references to both underage participants and sexual conduct. In analyzing the issue of whether expert testimony is required for a jury to distinguish "real" children from "virtual" children, the Fourteenth Court of Appeals held that "the trial court is capable of reviewing the evidence, without the benefit of expert testimony, to determine whether the State met its burden to show the images depicted real children as opposed to "virtual children." Porath v. State, 148 S.W.3d 402, 417 (Tex. App.-Houston [14th Dist.] 2004, no pet.). We adopt the well-reasoned opinion of our sister court of appeals in Porath and conclude that the jury could determine, without the benefit of expert testimony, whether the images depicted actual children. See id. In addition, viewing the evidence in the light most favorable to the verdict, we conclude that a rational jury could have found the essential elements of the offense beyond a reasonable doubt. See Hooper, 214 S.W.3d at 13. Accordingly, we overrule issues one and two.ISSUE THREE
Ford argues in issue three that his convictions on counts four, five, six, and eight violate double jeopardy. See U.S. Const. amends. V, XIV; Tex. Const. art. I, § 14. Ford asserts that "Count 1 of the indictment is word-for-word identical to Count 8[,]" but the instructions on counts seven and eight "are identical and require the same proof." Ford complains that there was nothing in the instructions explaining that a conviction on counts one, seven, and eight had to be based on different acts. Ford then cites Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932) and Gonzales v. State, 304 S.W.3d 838, 845 (Tex. Crim. App. 2010). The State asserts that any error in the charge did not egregiously harm Ford. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Ford does not cite Almanza or any other authorities pertaining to charge error. We therefore interpret Ford's issue as a claim that the jury punished him multiple times for the same conduct. Ford did not object to the indictment or the charge on double jeopardy grounds before the charge was submitted to the jury. "[A] potential multiple-punishment double-jeopardy claim may be forfeited if a defendant does not properly preserve that claim." Langs v. State, 183 S.W.3d 680, 686 (Tex. Crim. App. 2006). The Court of Criminal Appeals has explained as follows:Our case-law on preservation of double jeopardy claims is not a model of clarity. The overriding principles expressed by this case-law are that, because of the fundamental nature of double jeopardy protections, a double jeopardy claim may be raised for the first time on appeal . . . when the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record and when enforcement of usual rules of procedural default serves no legitimate state interests.Id. n. 22 (quoting Gonzalez v. State, 8 S.W.3d 640, 642-43 (Tex. Crim. App. 2000)). The Court of Criminal Appeals has held that requiring a defendant to timely raise his multiple-punishment double jeopardy claim in the trial court serves legitimate state interests because "[t]imely raising the matter in the trial court would have provided the trial court and the prosecution an opportunity to remove the basis of the objection. . . ." Gonzalez, 8 S.W.3d at 645-46. Applying the preservation rule set forth in Langs and Gonzalez to the facts of this case, we conclude that by failing to raise his double-jeopardy complaint before the case was submitted to the jury, Ford has failed to preserve the issue for appeal. See Langs, 183 S.W.3d at 686; see generally Tex. R. App. P. 33.1(a)(1)(A). Accordingly, we overrule Ford's third issue and affirm the trial court's judgment. AFFIRMED.