Opinion
Nos. 05-06-00174-CR,05-06-00175-CR
Opinion Filed March 19, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause Nos. F01-76212-RPI and F01-76213-RPI.
Before Justices O'NEILL, RICHTER, and LANG.
OPINION
Darrell Dewayne Savage appeals the trial court's judgments convicting him of possession of child pornography in two cases. The jury found Savage guilty. In trial court cause no. F01-76212-RPI, the jury assessed Savage's punishment at six years of imprisonment. In trial court cause no. F01-76213-RPI, the jury assessed his punishment at ten years of imprisonment, suspended for ten years of community supervision, and a $10,000 fine. Savage raises six issues on appeal, arguing: (1) the evidence is legally insufficient to support his convictions; (2) the evidence is factually insufficient to support his convictions; (3) the trial court erred when it denied his motion to suppress; (4) the trial court erred when it denied his motion to inspect evidence, requesting a copy of the computer hard drive; (5) the trial court erred when it overruled his objection to the testimony of computer forensics examiner Wills regarding Savage's truthfulness; and (6) the foregoing errors were harmful in their cumulative effect. We conclude the evidence is legally and factually sufficient to support Savage's convictions. Also, we conclude the trial court did not err when it denied Savage's motion to suppress or his motion to inspect. Further, Savage failed to preserve for appellate review his complaint that the trial court erred when it overruled his objection to the testimony of computer forensics examiner Wills regarding Savage's truthfulness. Finally, we conclude Savage has not shown cumulative harm. The trial court's judgments are affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
On March 28, 2001, Detective Gregory Dugger, computer forensics examiner Don Wills, and Officer J.D. Gardner followed-up on an investigation concerning Landslide, Inc., a Fort Worth company that verifies credit cards for websites. Landslide engaged in two types of verification: (1) AVS or adult verification service, which provided verification and access to 1,700 adult pornography websites; and (2) "keyz," which required an individual to select specific websites he wanted to purchase access to, verified the credit card information, and sent the purchaser a password to obtain access to 300 or more child pornography websites. Information obtained during the investigation of Landslide revealed Savage's credit card was used to purchase access to websites through "keyz." Detective Dugger, computer forensics examiner Wills, and Officer Gardner went to Savage's residence, knocked on the door, and Savage's father answered. They identified themselves as police officers and requested to speak with Savage. Savage came to the front door shortly afterward. Because Savage's parents were also present, Detective Dugger told Savage he was investigating a credit card purchase made to an internet website that had illegal content. Detective Dugger asked Savage if he had any credit cards issued in his name and Savage answered he had two credit cards. Then, Detective Dugger asked Savage if those credit cards had any issues involving fraudulent activity. Savage responded that one of the credit cards did have some fraudulent activity and he canceled it, but the other credit card was fine. Savage retrieved some records from his bedroom and showed them to Detective Dugger. Those records showed that one of the credit cards had been cancelled and the other was valid. Detective Dugger compared the credit card numbers to the Landslide data and determined the valid credit card matched the data from the Landslide investigation. As a result, Detective Dugger explained to Savage that his name showed up in the database and asked for Savage's consent to search his computers. Savage told the police his computers were in his bedroom and escorted Detective Dugger to the computers, while computer forensics examiner Wills and Officer Gardner went to get the equipment needed to conduct the search. Savage told Detective Dugger he was in the process of playing a computer game and asked if he could exit the game before allowing the police to search his computer. Detective Dugger said that was fine. He observed Savage exit a program, type a command to bring up the DOS prompt, and type "d-e-l," which he recognized as the command to delete something from the computer. Detective Dugger asked Savage why he was deleting something from his computer and Savage stopped, but did not answer the question. At that point, Detective Dugger told Savage he was investigating purchases into child pornography websites. Savage told Detective Dugger he remembered buying into a website that had the word "keyz," which Savage described as a Russian-Babylonian-type website with pictures of young girls, but no hardcore child pornography. Once computer forensics examiner Wills and Officer Gardner arrived, Detective Dugger produced the consent form. Detective Dugger went over the content of the consent form with Savage, then gave it to Savage to read. Savage signed the consent form, which was witnessed by Detective Dugger and Officer Gardner. Savage did not tell the police he changed his mind or was withdrawing his consent. After Savage signed the consent form, computer forensics examiner Wills began a search of Savage's computer. While computer forensics examiner Wills searched the computer, Savage told Detective Dugger he used a software program called Picture Agent to go to news groups and download content, and he had seen child pornography on his computer in the past, but he deleted it. Within a few minutes, computer forensics examiner Wills found an image that appeared to be child pornography. After Officer Gardner confirmed that it was child pornography, Detective Dugger told Savage they had found child pornography and were seizing the computer for a further search at the forensics laboratory. Detective Dugger asked Savage if there was anything else in the room that could have child pornography on it. Savage responded that some of the CD-ROMs and zip disks might have some child pornography on them. The police seized one personal computer, a loose hard drive, a digital hard drive, six CD-ROMs, and four zip disks. The next day, Detective Dugger received a message from Savage. He returned Savage's telephone call and Savage told Detective Dugger the name of the website involved with "keyz" he purchased into and that he wanted to cooperate in any way possible. After a search warrant was obtained, the items seized from Savage were taken to the forensics laboratory and searched. Several months later, Detective Dugger received from computer forensics examiner Wills a report and nine CD-ROMs of evidence relevant to the investigation. Detective Dugger reviewed the CD-ROMs and found an email confirming Savage's purchase into the "keyz" controlled European Lolitasex website. Also, he found a large quantity of child pornography images stored in an organized system and in different locations on the computer. The Picture Agent software on Savage's computer was set to look for and download images to the "PA download directory" as follows: erotica preteen; erotica children; erotica child male; erotica child female; erotica Disney; and erotica early teens. Images of child pornography were found in the "work" folder, in subfolders named "children" and "young," which had subfolders named "!-9," "A-B," "C-F," "G-K," "L-M," "N-S," "R-Z." The work folder was on both the personal computer and the loose hard drive. Also, images and videos of child pornography were found in the "pics" folder, in a subfolder named "adult," which had subfolders named "cum," "bandage," "lez," "men," "women," and "vid." Further, images of child pornography were found on the zip disks. One thousand six hundred of the child pornography images found were identified on the national exploited missing children database of known victims, which means the image matches a picture of a known underage victim. Detective Dugger contacted Savage to discuss the images found because it was inconsistent with Savage's statement that there might be some deleted child pornography on the computer. Savage voluntarily met with Detective Dugger, who advised Savage of his Miranda rights and confronted him regarding the amount of child pornography found on his computer. Savage admitted he knew there was child pornography on his computer and stated the images were downloaded by him from news groups using Picture Agent, he did not create or trade any of the images, and he had downloaded the images for personal use only. Savage was arrested and charged with possession of child pornography. In trial court cause no. F01-76212-RPI, Savage was indicted for intentionally and knowingly possessing child pornography depicting a child, younger than 18 years of age at the time the image was made, engaged in actual and simulated sexual intercourse. In trial court cause no. F01-76213-RPI, Savage was indicted for intentionally and knowingly possessing child pornography depicting a child, younger than 18 years of age at the time the image was made, engaged in actual and simulated deviate sexual intercourse. The jury found Savage guilty. In trial court cause no. F01-76212-RPI, the jury assessed Savage's punishment at six years of imprisonment. In trial court cause no. F01-76213-RPI, the jury assessed his punishment at ten years of imprisonment, suspended for ten years of community supervision, and a $10,000 fine.II. LEGAL AND FACTUAL SUFFICIENCY
In issues one and two, Savage argues the evidence is legally and factually insufficient to support his convictions. He argues the evidence contradicting his testimony was insufficient to disprove his reasonable alternative hypotheses, explaining how the child pornography came to be on his computer without his intent or knowledge. Also, Savage argues he did not flee, which is consistent with innocence. The State responds that the jury could infer Savage's intent or knowledge from the facts and circumstances. Also, the State argues that Savage's attempt to delete the files is similar to flight and is evidence of a guilty conscience.A. Standards of Review
Differences exist between a legal sufficiency and factual sufficiency review of the evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Lee v. State, 186 S.W.3d 649, 654 (Tex.App.-Dallas 2006, pet. ref'd). However, a factual sufficiency review is barely distinguishable from a legal sufficiency review. Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied, 128 S.Ct. 87 (2007). The primary difference between the two standards is that a legal sufficiency review requires an appellate court to defer to the jury's credibility and weight determinations while a factual sufficiency review permits the appellate court to substitute its judgment for the jury on these questions, albeit to a very limited degree. See id.1. Legal Sufficiency
The legal sufficiency of the evidence will be viewed in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000); Lee, 186 S.W.3d at 654. A review of the evidence for legal sufficiency does not involve a reweighing of the evidence or a substitution of the jury's judgment. See Marshall, 210 S.W.3d at 625; King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000); Lee, 186 S.W.3d at 654. The jury is the exclusive judge of witness credibility, the determiner of the weight accorded to witness testimony, and the reconciler of conflicts in the evidence. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996); Lee, 186 S.W.3d at 654. In addition, when reviewing the evidence for legal sufficiency, the evidence is not weighted as favorable and nonfavorable, nor is the appellant's version of the facts adopted. See Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim.App. 2000); Lee, 186 S.W.3d at 654. Further, all evidence, whether properly or improperly admitted, will be considered when reviewing the evidence for legal sufficiency. See Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); Marshall, 210 S.W.3d at 625; Johnson v. State, 967 S.W.2d 410, 411 (Tex.Crim.App. 1998); Lee, 186 S.W.3d at 654.2. Factual Sufficiency
In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the jury's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007), cert. denied, 128 S.Ct. 282 (2007); Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). Evidence that is legally sufficient to support a verdict of guilt may still be factually insufficient when the verdict seems clearly wrong or manifestly unjust, or it is against the great weight and preponderance of the evidence. Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 417. When conducting a factual sufficiency review, an appellate court considers all of the evidence, both direct and circumstantial. See Marshall, 210 S.W.3d at 625; see also King, 29 S.W.3d at 565; Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999); Lee, 186 S.W.3d at 655; Smith v. State, 895 S.W.2d 449, 452 (Tex.App.-Dallas 1995, pet. ref'd). Also, an appellate court gives due deference to the findings of the fact-finder, but the appellate court may substitute its judgment for the jury's credibility and weight determinations to a very limited degree. See Roberts, 220 S.W.3d at 524; Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 416-17; see also Johnson, 23 S.W.3d at 9 (factual sufficiency review requires reviewing court to afford "due deference" to jury's determinations); Clewis v. State, 922 S.W.2d 126, 135 (Tex.Crim.App. 1996) (factual sufficiency review requires "deferential standards of review applied" to jury verdicts). However, the existence of contrary evidence is not enough to support a finding of factual insufficiency. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001); Lee, 186 S.W.3d at 655. An appellate court cannot declare a conflict in the evidence justifies a new trial simply because it disagrees with the jury's resolution of that conflict. See Watson, 204 S.W.3d at 417. Reversal for factual insufficiency occurs only when: (1) the evidence supporting the verdict is so weak the verdict seems clearly wrong and manifestly unjust; or (2) there is some objective basis in the record that shows the great weight and preponderance of the evidence contradict the jury's verdict. See Roberts, 220 S.W.3d at 524; Watson, 204 S.W.3d at 417; see also Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002); Johnson, 23 S.W.3d at 11; Clewis, 922 S.W.2d at 129.B. Applicable Law
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 18 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. Pen. Code Ann. § 43.26(a) (Vernon 2003); see also Krause v. State, 243 S.W.3d 95, 110 (Tex.App.-Houston [1st Dist.], pet. ref'd). Visual material includes any disk, diskette, other 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. Tex. Pen. Code Ann. § 43.26(b)(3)(B); see also Krause, 243 S.W.3d at 110. "Sexual conduct" includes sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, and lewd exhibition of the genitals or anus. Tex. Pen. Code Ann. §§ 43.25(a)(2), 43.26(b)(2) (Vernon 2003 Supp. 2007); see also Krause, 243 S.W.3d at 110-11. A person possesses a thing when he exercises actual care, custody, control, or management over the thing. Tex. Pen. Code Ann. § 1.07(a)(39); see also Krause, 243 S.W.3d at 111. A person acts intentionally when it is his conscious objective or desire to engage in the conduct or to cause the result. Tex. Pen. Code Ann. § 6.03(a) (Vernon 2003). 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 on circumstantial evidence. Krause, 243 S.W.3d at 111 (citing see Hernandez v. State, 819 S.W.2d 806, 810 (Tex.Crim.App. 1991)). A jury can infer knowledge from all the circumstances, including the acts, conduct, and remarks of the defendant and the surrounding circumstances. Krause, 243 S.W.3d at 111 (citing see Dillon v. State, 574 S.W.2d 92, 94 (Tex.Crim.App. 1978)). Sufficient evidence to support a jury's determination that the defendant had knowledge of the images of child pornography on his computer may include the following evidence: (1) the images of child pornography were found in different computer files, showing the images were copied or moved; (2) the images of child pornography were found on an external hard drive or CD, which indicates the images were not downloaded by an internet virus, but deliberately saved on the external devices; (3) the images stored on the computer and the external hard drive were stored in similarly named folders; (4) the names of the folders containing the images of child pornography had to have been assigned by the person saving the file; or (5) the recovery of numerous images of child pornography from the defendant's computer. See Krause, 243 S.W.3d at 111-12.C. Application of the Law to the Facts
During the trial, Savage did not dispute that the images found on his computer, hard drives, and zip disks were child pornography, but denied intentionally or knowingly possessing these images. Savage contends he offered reasonable alternative hypotheses, explaining how the child pornography came to be on his computer without his intent or knowledge. He stated the Picture Agent settings could have been altered by a computer virus or hacker and he participated in LAN parties where several people could have accessed his computer. Savage claims the State failed to disprove these explanations. He also denied attempting to delete something from his computer. Viewing the evidence in the light most favorable to the verdict, there was evidence that Savage intentionally or knowingly possessed child pornography. First, the images of child pornography were found in different computer files, showing the images were copied or moved. See Krause, 243 S.W.3d at 111-12. Savage stated it was his practice to download the images to the "PA download directory," transfer them from the loose hard drive to his computer, and move them into his "work" folder without looking at the images. Then, once he looked at the images he moved them to his "pics" folder. Detective Dugger stated the child pornography images were categorized and organized in subfolders in both the "work" and "pics" folders. Further, there was evidence that some of the child pornography images that were part of a series of images had been deleted, but others in the series were not. Second, Detective Dugger stated the images of child pornography were found on Savage's computer, loose hard drive, and zip disks, which indicates the images were not downloaded by an internet virus, but deliberately saved on the external devices. See Krause, 243 S.W.3d at 112. Also, computer forensics examiner Wills testified he checked Savage's computer for viruses and found a common Word document micro virus that would send an email to the addresses in his address book with the subject "unknown" and the message saying "don't open this." However, he found no other viruses on Savage's computer. Further, he stated he has not heard of a virus that goes into a program like Picture Agent and changes the settings, viruses do not typically target smaller, unheard of programs like Picture Agent, and such a virus would be unusual. In addition, computer forensics examiner Wills stated spam usually directs you to a website and stores those files in a cache or a temporary internet storage file, but no child pornography images on Savage's computer were found in those locations. Savage stated he purchased Picture Agent in 1998 or 1999 and was not aware of any problems with the program. Third, the images stored on the computer and the loose hard drive were stored in similarly named folders. See Krause, 243 S.W.3d at 112. Computer forensics examiner Wills testified the images of child pornography were stored in folders with the same name, in two different locations, the computer and the loose hard drive. Savage stated he kept a back-up of the "work" and "pics" folders on the loose hard drive. Fourth, the names of the folders containing the images of child pornography had to have been assigned by the person saving the file. See Krause, 243 S.W.3d at 112. Computer forensics examiner Wills stated tools such as Picture Agent allow users to create directories, but they do not create them on their own. Detective Dugger stated the subfolders contained images consistent with the folder name, e.g., a file named "Lo-08," depicting an image of child pornography, was stored in the subfolder "L-M," in the subfolder "young," which was in the folder "work." Savage stated he created the subfolder "young," but denied creating the subfolder "children." Also, there was an email confirming Savage's purchase into the "keyz" controlled European Lolitasex website and the Picture Agent software was set to look for and download images as follows: erotica preteen; erotica children; erotica child male; erotica child female; erotica Disney; and erotica early teens. Finally, numerous images of child pornography were recovered from Savage's computer. See Krause, 243 S.W.3d at 112. Computer forensics examiner Wills stated 1,600 of the child pornography images found on Savage's computer were identified on the national database of exploited missing children. Also, Detective Dugger stated he found thirteen child pornography videos on Savage's computer in the subfolder "vid," in the subfolder "adult,", which was in the folder "pics." Further, Detective Dugger testified that when he confronted Savage about the volume of child pornography found on his computer, Savage stated he knew there was child pornography on his computer, the images were downloaded from news groups using Picture Agent, he did not create or trade any of the images, and he had downloaded them for his personal use. Viewing the evidence in a neutral light, we conclude there is sufficient evidence from which a fact-finder could rationally conclude beyond a reasonable doubt that Savage intentionally or knowingly possessed child pornography. The great weight and preponderance of the evidence do not contradict the jury's verdict. After reviewing all of the evidence under the appropriate standards of review, we conclude the evidence is legally and factually sufficient to support Savage's convictions. Issues one and two are decided against Savage.III. MOTION TO SUPPRESS
In issue three, Savage argues the trial court erred when it denied his motion to suppress. He argues the police did not comply with traditional knock-and-talk procedure. Also, he argues his consent was not voluntary, but induced by police duplicity and constructive coercion. The State responds that Savage consented to the search and, even if the police employed deception, it did not render Savage's consent invalid.A. Standard of Review
Whether a specific search or seizure was reasonable is a mixed question of law and fact. St. George v. State, 237 S.W.3d 720, 725 (Tex.Crim.App. 2007). A bifurcated standard of review is applied to a trial court's ruling on a motion to suppress evidence. See St. George, 237 S.W.3d at 725; Randolph v. State, 152 S.W.3d 764, 769 (Tex.App.-Dallas 2004, no pet.). This standard of review gives almost total deference to a trial court's determination of historical facts and applies a de novo review of a trial court's application of the law to those facts. See St. George, 237 S.W.3d at 725; Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997); Randolph, 152 S.W.3d at 769. A trial court is the sole trier of fact, the judge of witness credibility, and the determiner of the weight given to witness testimony. St. George, 237 S.W.3d at 725; Randolph, 152 S.W.3d at 769. When a trial court does not make explicit findings of fact, an appellate court reviews the evidence in a light most favorable to the trial court's ruling. Howard v. State, 227 S.W.3d 794, 797 (Tex.App.-Dallas 2006, pet. ref'd). An appellate court reviews the trial court's application of search and seizure law to the historical facts de novo. See Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); Guzman, 955 S.W.2d at 89; Howard, 227 S.W.3d at 797. The appellate court reviews the record to determine whether the trial court's ruling is supported by the record and correct under some theory of law applicable to the case. See St. George, 237 S.W.3d at 725; Armendariz v. State, 123 S.W.3d 401, 404 (Tex.Crim.App. 2003). Generally, an appellate court limits its review of a trial court's ruling on a motion to suppress to the record produced at the suppression hearing. See Gutierrez, 221 S.W.3d 680, 687 (Tex.Crim.App. 2007). However, when the parties subsequently re-litigate the suppression issue at the trial on the merits, an appellate court will consider all evidence from both the pretrial hearing and the trial, in its review of the trial court's determination. See id. The defendant alleging a Fourth Amendment violation bears the burden of producing some evidence that rebuts the presumption of proper police conduct. Amador v. State, 221 S.W.3d 666, 672 (Tex.Crim.App. 2007). A defendant meets his initial burden of proof by establishing a search or seizure occurred without a warrant. Amador, 221 S.W.3d at 672. The State shoulders the burden to prove an exception to the warrant requirement applies. Guitierrez, 221 S.W.3d at 685. The federal constitution requires the State to prove voluntary consent by a preponderance of the evidence. Montanez v. State, 195 S.W.3d 101, 105 (Tex.Crim.App. 2006). However, article I, section 9 of the Texas Constitution requires the state to prove voluntary consent by clear and convincing evidence. Montanez, 195 S.W.3d at 105.B. Knock-and-Talk
Savage argues the police did not comply with traditional knock-and-talk procedure. He claims the police failed to inform him that he was a suspect and "all but barged" into his home.1. Applicable Law
Federal and state laws provide that a police officer may approach a citizen in a public place or knock on a door to ask questions or seek consent to search. Florida v. Bostick, 501 U.S. 429, 434 (1991); State v. Perez, 85 S.W.3d 817, 819 (Tex.Crim.App. 2002); Hunter v. State, 955 S.W.2d 102, 104 (Tex.Crim.App. 1997). Courts have defined a knock-and-talk as a noncustodial procedure in which the officer identifies himself and asks to talk to the home occupant, and then eventually requests permission to search the residence. Hardesty v. Hamburg Tp., 461 F.3d 646, 658 (6th Cir. 2006); United States v. Chambers, 395 F.3d 563, 568 n. 2 (6th Cir. 2005). The knock-and-talk strategy is a reasonable investigative tool. See United States v. Lewis, 476 F.3d 369, 381 (5th Cir. 2007), cert. denied, Thompson v. United States, 127 S.Ct. 2893 (2007); see also Hardesty, 461 F.3d at 658 (legitimate effort to obtain a suspect's consent to search). The purpose of a knock-and-talk is not to create a show of force, make demands on occupants, or to raid a residence. United States v. Gomez-Moreno, 479 F.3d 350, 355 (5th Cir. 2007). Instead, the purpose of a knock-and-talk approach is to make investigatory inquiry or, if officers reasonably suspect criminal activity, to gain the occupant's consent to search. Gomez-Moreno, 479 F.3d at 355. A police officer need not have reasonable suspicion or a basis for suspecting a particular person to simply ask questions of that individual or request consent to search, so long as the officer does not indicate compliance with his request is required. See Bostick, 501 U.S. at 434-35; Hunter, 955 S.W.2d at 104; Perez, 85 S.W.3d 819. Such an encounter is a consensual interaction, which the citizen is free to terminate at any time. Hunter, 955 S.W.2d at 104. The encounter is not considered a seizure, triggering Fourth Amendment scrutiny or constitutional analysis, unless it loses its consensual nature. See Bostick, 501 U.S. at 434; Hunter, 955 S.W.2d at 104. Only when the officer, by means of physical force or show of authority, has restrained the liberty of a citizen may a court conclude that a seizure has occurred. Bostick, 501 U.S. at 434.2. Application of the Law to the Facts
Savage and the State presented very different versions of the police entry into Savage's home. During the hearing on Savage's motion to suppress, Savage testified he did not invite Detective Dugger to his bedroom, rather Detective Dugger followed him. Savage's mother stated the police spoke with Savage in her living room, and "It was okay for [the police] to be in [her] living room. . . . Because they were [t]here to get the people that put the things on [her] credit card." Both of Savage's parents testified they did not hear Savage invite the police into his bedroom. Also, Savage's mother stated she knocked on her son's bedroom door, asked if she should call a lawyer, and the police told her "no, ma'am, we are just talking." Conversely, Detective Dugger stated he knocked on the door, Savage's father answered, and he identified himself as a police officer and asked to speak with Savage. Also, computer forensics examiner Wills stated when Detective Dugger and Officer Gardner initially knocked on the Savages' door, he remained approximately five feet back. Detective Dugger stated they were invited into the front living area of the house while Savage's father went to get his son. Detective Dugger did not tell Savage's parents the reason the police wished to speak with their son. Savage came to the front living area within thirty seconds to one minute. Detective Dugger explained to Savage they were there to discuss purchases made with his credit card to websites that contained "illegal content." Detective Dugger stated he used the phrase "illegal content," rather than "child pornography," because Savage's parents were present. Detective Dugger asked if they could search any computers Savage owned. Savage told the police his computers were in his bedroom and escorted Detective Dugger there, while computer forensics examiner Wills and Officer Gardner went to their vehicle to get the equipment necessary to conduct the search. Further, computer forensics examiner Wills stated Savage's mother did not knock on the bedroom door or ask if she should call a lawyer. Savage relies on a footnote in the Texas Court of Criminal Appeals's opinion in Gale to support his argument that the police did not follow proper knock-and-talk procedure. See Gale v. State, 998 S.W.2d 221, 223 n. 2 (Tex.Crim.App. 1999). That footnote in its entirety states:A "knock-and-talk" involves police knocking at a suspect's door, identifying themselves as police officers and explaining to the person that they are a suspect in a narcotics investigation. The officers then advise the suspect of his rights and ask the suspect for consent to search his residence or to further discuss the allegations against them.Id. Savage cites to this footnote in Gale as if it expressly established the proper procedure for a knock-and-talk. We disagree with Savage that Gale established a specific procedure, creating a duty to inform an individual he is a suspect. It is not a requirement that a person be a suspect for the police to conduct a knock-and-talk. The United States Supreme Court and the Texas Court of Criminal Appeals in subsequent opinions have stated that a police officer need not have reasonable suspicion or a basis for suspecting a particular person to simply ask questions of that individual or request consent to search, so long as the officer does not indicate compliance with his request is required. See Bostick, 501 U.S. at 434-35; Hunter, 955 S.W.2d at 104; Perez, 85 S.W.3d 819. A knock-and-talk is a consensual encounter or a noncustodial procedure where the officer identifies himself, asks to talk to the home occupant, and requests permission to search the residence. See Hardesty, 461 F.3d at 658; Chambers, 395 F.3d at 568 n. 2. The citizen is free to terminate this encounter at any time. See Hunter, 955 S.W.2d at 104. The footnote Savage claims created this procedure corresponds to the portion of the opinion under the heading "Facts." Gale, 998 S.W.2d at 223 n. 2. The Texas Court of Criminal Appeals described in the footnote what occurred during the knock-and-talk in that case. No authorities were cited in the footnote in Gale and the issue raised in Gale was not one which addressed a "knock-and-talk" encounter. Id. at 224 (question faced by Court was whether evidence was sufficient to find mere possession of firearms facilitated associated felony). Savage does not argue or point us to any authority showing the Texas Court of Criminal Appeals has diverged from the United States Supreme Court with respect to the law regarding a knock-and-talk. We conclude the police did not violate proper knock-and-talk procedure when they failed to inform Savage he was a suspect. Also, although Savage disputed he consented to the police entry into his home and bedroom, we presume the trial court resolved this factual dispute against him. See Guitierrez, 221 S.W.3d at 687.
C. Knowing and Voluntary Consent to Search
Savage argues his consent to search his computer was not voluntary because: (1) the police were duplicitous about their reason for wanting to speak with Savage; (2) the police did not inform him they would leave if he did not consent; (3) although he was no longer a minor and possessed some advanced education, he was immature as evidenced by a person of his age playing video games; (4) the police distracted him while he was trying to read the consent form; and (5) he did not complete his signature on the consent form. Savage argues a reasonable person would not have felt free to withhold his consent under these circumstances.1. Applicable Law
The Fourth Amendment to the United States Constitution and Article I, section 9 of the Texas Constitution guarantee the right to be secure against unreasonable searches. U.S. Const. amend. IV; Tex. Const. art. I, § 9. Article 38.23 of the Texas Code of Criminal Procedure forbids the admission of evidence seized by any person or officer when that evidence has been obtained in violation of the federal or state constitutions or in violation of federal and state laws. See Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 2005); Krause, 2007 WL 2004940 at *5. There is a strong preference for searches to be administered pursuant to a warrant. Guitierrez, 221 S.W.3d at 685. Under the Fourth Amendment, a search conducted without a warrant issued on probable cause is per se unreasonable unless it falls within one of the well-established exceptions to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); Guitierrez, 221 S.W.3d at 685; Reasor v. State, 12 S.W.3d 813, 817 (Tex.Crim.App. 2000). Consent to search is one of the well-established exceptions to the constitutional requirements of both a warrant and probable cause. Carmouche, 10 S.W.3d at 331 (citing Schneckloth, 412 U.S. at 219). To be valid, a consent to search must be positive and unequivocal, and must not be the product of duress or coercion, either express or implied. Montanez, 195 S.W.3d at 105; Reasor, 12 S.W.3d at 818; Allridge v. State, 850 S.W.2d 471, 493 (Tex.Crim.App. 1991). Consent is not established by showing no more than acquiescence to a claim of lawful authority. Montanez, 195 S.W.3d at 105. The voluntariness of the consent is to be determined from the totality of the circumstances. See Schneckloth, 412 U.S. at 219. When determining voluntariness, courts consider various factors, including: the age of the defendant; the education of the defendant; the intelligence of the defendant; whether the defendant was in custody; whether he was arrested at gunpoint; whether he had the option of refusing consent; the constitutional advice given to the defendant; the length of the detention; the repetitiveness of the questioning; and the use of physical punishment. See Reasor, 12 S.W.3d at 818. A warning that an individual does not have to consent to a search and has the right to refuse is not required or essential. See Meeks v. State, 692 S.W.2d 504, 510 (Tex.Crim.App. 1985). However, a showing that a suspect has been warned he does not have to consent to the search and has a right to refuse is of evidentiary value in determining whether a valid consent was given. See Allridge, 850 S.W.2d at 493; Meeks, 692 S.W.2d at 510; see also Graham v. State, 201 S.W.3d 323, 330 (Tex.App.-Houston [14th Dist.] 2006, pet. ref'd).2. Application of the Law to the Facts
The issue of consent was hotly contested. Before trial, Savage filed a motion to suppress, arguing the warrantless search and seizure of his computer, hard drives, CD-Roms, and zip disks was unlawful because he did not voluntarily and knowingly consent to the search and seizure. During the trial, the State raised the issue of consent again. Savage and the State presented very different versions of the events relating to Savage's consent to the search of his computer. Savage stated Detective Dugger asked him to sign a consent form, but distracted him by talking while he was trying to read it. Savage believed he was giving consent for the police to look on his computer for credit card fraud, but stopped signing his last name when he heard Detective Dugger mention child pornography. Then, Savage stated Detective Dugger took the consent form, even though he had not completed his signature. Also, he maintained the police did not fill in portions of the consent form until after he signed it. Savage claimed he would not have signed the consent form if he had known the police were looking for child pornography, he never consented to a search for child pornography, and the police never advised him that he could withdraw his consent. However, during cross examination, Savage admitted that he saw and understood the portion of the consent form that stated he had the right to refuse the search. He also admitted that, before computer forensics examiner Wills began the search, Detective Dugger stated he believed Savage's credit card was used to purchase websites involving child pornography. Specifically, he stated:STATE:
Okay. So before [computer forensics examiner] Wills even did anything to your computer, Detective Dugger is telling you that they believe your credit card was used to purchase websites involving child pornography?
SAVAGE:
That's correct.Savage's parents testified the police stated they were investigating credit card fraud. Detective Dugger testified that, while he initially told Savage he was investigating the purchase of illegal content over the internet with Savage's credit card, once he was in Savage's bedroom, he explained he was investigating the purchase of child pornography and Savage's involvement in the matter. He presented Savage with the consent form, told him they wanted to search for child pornography, asked Savage to read the form, and explained that Savage could withdraw his consent to search. Detective Dugger stated Savage did not appear to have any hesitation in signing the consent form. Computer forensics examiner Wills stated he heard Detective Dugger tell Savage they were investigating the use of a credit card to purchase child pornography and wanted to search his computer to ensure it was not Savage. He also stated he did not observe that Savage had any problem with or hesitancy regarding Detective Dugger's explanation or signing the consent form. Further, he stated Savage appeared to be cooperative and working well with Detective Dugger. The consent form states Savage has a "Constitutional right not to have a search made and/or have evidence seized . . . without a warrant, and . . . right to refuse such a search and/or seizure." Also, the consent form states Savage is authorizing the police to "Search the contents of personal computer(s) and/or media under [his] control (hardware and/or software) and view any and all programs, files, images, etc. contained within." Further, the consent form states, "This permission is being given by [Savage] to the above named officer(s) voluntarily and without threats or promises of any kind and is given with [Savage's] full and free consent." At trial, Savage testified he consented to the search of his computers, signed the consent form, never withdrew his consent, and the police told him they were looking for illegal content on his computers. Specifically, Savage stated:
STATE:
Let's talk about what the police said when they came. You agree that you showed the credit card to [Detective] Dugger voluntarily, right?
SAVAGE:
That's correct.
STATE:
And you gave the police consent to search your computers, right?
SAVAGE:
That's correct.
STATE:
You signed the consent form, right?
SAVAGE:
Yes.
STATE:
You never said, I don't consent, right?
SAVAGE:
No.
STATE:
They told you that they were looking for illegal content on your computer, right?
SAVAGE:
That's correct.
STATE:
So you knew what they were looking for?
SAVAGE:
I knew that they were looking for illegal content, yes.Although Savage's version of events differs from Detective Dugger's and computer forensic examiner Wills's version, we presume the trial court resolved this factual dispute against Savage. See Guitierrez, 221 S.W.3d at 687. The record shows Savage was twenty-seven years old when the police came to his house, he has one year of college and a certification in Novell, he works in tech support for a banking company, he read and understood the consent form, he was advised he had the right to refuse his consent, he knew the police were searching for child pornography before he signed the consent form, he did not refuse or withdraw his consent, and he was not under arrest when he consented. Further, the record suggests Savage was cooperative. See id. at 688. We conclude the State satisfied its burden of proving, by clear and convincing evidence, that Savage's consent was voluntary. Issue three is decided against Savage.
IV. INSPECTION OF COMPUTER HARD DRIVE
In issue four, Savage argues the trial court erred when it denied his motion to inspect, requesting a copy of the computer hard drive. He contends the trial court's order, denying his motion to inspect evidence, denied him the expert of his choice because the expert he retained wanted a copy of the computer hard drive so he could examine it in his office and was unwilling to take his equipment to the North Texas Regional Forensics Laboratory to examine the computer hard drive there. The State responds the expert Savage retained testified that, while he was unwilling to move his equipment to the North Texas Regional Forensics Laboratory to examine the computer hard drive, there were experts in his field willing to do so. The State argues it was Savage's failure to retain an independent expert willing to examine the computer hard drive at the North Texas Regional Forensics Laboratory that resulted in his lack of an expert, not the trial court's order denying him a copy of the computer hard drive.A. Standard of Review
The decision of what is discoverable is left to the sound discretion of the trial court. McBride v. State, 838 S.W.2d 248, 250 (Tex.Crim.App. 1992). An appellate court will not disturb a trial court's decision under article 39.14 of the Texas Code of Criminal Procedure absent an abuse of discretion. Id.B. Applicable Law
Article 39.14 of the Texas Code of Criminal Procedure gives the defendant, on a showing of good cause, the right to require the State to produce any written statements made by the defendant and any photographs or other tangible items in the State's possession that are material to the case. Tex. Code Crim. Proc. Ann. art. 39.14(a) (Vernon Supp. 2007). The trial court is required to permit discovery if the evidence sought is material to the defense. McBride, 838 S.W.2d at 250. However, even if article 39.14 requires the State to produce any photographs or other tangible items in the State's possession that are material to the case, the State's offer to make those materials that contain child pornography available for inspection, but not to allow them to be copied is reasonable. Rogers v. State, 113 S.W.3d 452, 459 (Tex.App.-San Antonio 2003, no pet.) (trial court did not abuse discretion in denying motion to dismiss in child pornography case because defense counsel and expert allowed to examine hard drive at sheriff's office). But see Taylor v. State, 93 S.W.3d 487, 503-04 (Tex.App.-Texarkana 2002, pet. ref'd) (failure to provide defense with copy of hard drive in child pornography case harmed defendant, contributing, with other harmful error, to reversal).C. Application of the Law to the Facts
Savage filed a motion to inspect evidence, requesting "a forensically clean duplicate image or copy of the computer hard drive in order to have an expert inspect the alleged photographs contained thereon." In April 2004, after a hearing, the trial court granted Savage's motion to inspect, ordering the Dallas Police Department and Dallas District Attorney to deliver to Savage's counsel, for the purpose of making a copy, Savage's computer hard drives, "CD Rs," zip disks, and all other computer equipment seized. On the State's oral motion to withdraw the trial court's order, the trial court set the matter for a pretrial hearing. On June 24, 2004, the trial court heard argument on the State's oral motion and entered an order invalidating its earlier order. On April 27, 2005, Savage filed a motion for discovery and inspection. On July 14, 2005, the trial court held a pretrial hearing on that motion. During that hearing, Savage again argued his expert needed a copy of the computer hard drive. Ronald Russ, the expert retained by Savage, testified at the hearing he believed he could accomplish only ten percent of his analysis using the forensics lab's software and facilities, he was unwilling to take his equipment to the forensics lab, he has seven different servers at his facility he uses to run his analysis, and he has been provided copies of hard drives in other child pornography cases, but did not recall the specific cases where that was allowed. Russ also agreed there are experts in this field who will examine the computers at the government forensics laboratory. On July 15, 2005, the trial court entered its second amended order granting Savage's request for a copy of the computer hard drives. On July 21, 2005, the trial court continued its pretrial hearing on Savage's motion to inspect, requesting a copy of the computer hard drive. During the hearing, Michael Morris, F.B.I. Supervisory Special Agent and director of the North Texas Regional Forensics Lab, testified he spoke with his staff and ascertained they have never provided child pornography to defense counsel. Also, he stated the North Texas Regional Forensics Lab is affiliated with the F.B.I. and works both federal and state cases, and because it is against federal law to possess child pornography, they have never given it to defense counsel. Further he stated the forensics lab is independently accredited by the American Society Crime Laboratory Directors and if they violated this policy, it would affect their accreditation. Finally, he stated the forensics lab provides a separate review room for defense experts where they are permitted to bring their own equipment and forensic tools or use computers provided by the forensics lab to review copies of the hard drive. However, defense experts are not permitted to make copies of the child pornography and remove it from the forensics lab. At the conclusion of the hearing, the trial court rescinded its order of July 15, 2005. The record shows the State has made the materials available for inspection and examination at the North Texas Regional Forensics Laboratory. See Rogers, 113 S.W.3d at 458-59. Further, the testimony of Savage's expert demonstrated other experts in the field will examine computers at government labs. The record does not show Savage was unable to retain another expert who was willing to examine the computer hard drive at the forensics laboratory. This case is distinguishable from Taylor, a case where the court of appeals concluded the trial court's ruling was harmful error when it determined the State was not required to provide a copy of the original hard drive to the defendant. In Taylor, the hard drive was contaminated or partially destroyed, and a question existed as to whether the reproduced photographs came from the defendant's hard drive. See Taylor, 93 S.W.3d at 499-500, 503. Consistent with Rogers, we conclude the trial court did not abuse its discretion when it denied Savage's request for a copy of the computer hard drives. See Rogers, 113 S.W.3d at 459. Issue four is decided against Savage.V. EVIDENCE OF TRUTHFULNESS
In issue five, Savage argues the trial court erred when it overruled his objection to computer forensics examiner Wills's testimony regarding Savage's truthfulness. He argues that, although Texas Rule of Evidence 702 prohibits an expert from testifying whether the complainant is truthful, the State improperly asked computer forensics examiner Wills whether he had seen evidence suggesting that Savage was not telling the truth about what occurred and the trial court overruled his objection. The State responds Savage failed to preserve his complaint for appellate review because, after Savage objected, the State reworded its question and Savage failed to make a specific, timely objection to that reworded question, which elicited the complained of testimony. Also, the State argues computer forensics examiner Wills did not testify as to Savage's credibility, but stated, during his investigation, he observed certain facts that were inconsistent with Savage's testimony.A. Preservation of Error
To preserve an issue for appellate review, a party is required to show: (1) a timely and specific request, objection, or motion bringing the issue to the trial court's attention; and (2) the trial court ruled on the party's request, objection, or motion, or the trial court refused to rule and the party objected to that refusal. Tex. R. App. P. 33.1(a); Haley v. State, 173 S.W.3d 510, 516 (Tex.Crim.App. 2005); Geuder v. State, 115 S.W.3d 11, 13 (Tex.Crim.App. 2003). A timely and specific objection must be made each time inadmissible evidence is offered and pursued to an adverse ruling. See Haley, 173 S.W.3d at 517; Geuder, 115 S.W.3d at 13.B. Application of the Law to the Facts
The record shows the State asked computer forensics examiner Wills if he thought Savage was telling the truth. Savage objected to the question on the basis that it called for speculation and the trial court sustained the objection. Then, the State asked computer forensics examiner Wills if he saw any evidence suggesting Savage was not telling the truth. Savage objected to that question on the basis that computer forensics examiner Wills was not a judge and the trial court overruled the objection. However, before computer forensics examiner Wills answered the question, the State reworded its question, asking computer forensics examiner Wills if he saw any evidence contrary to Savage's testimony. Savage did not object to the State's reworded question. In response to that question, computer forensics examiner Wills answered that the volume of pictures and the fact that they were moved to different directories caused him to believe the Dallas Police Department had a case against Savage. Specifically, the following occurred:STATE:
After listening to [Savage's] testimony, do you think he's telling the truth about what happened?
DEFENSE:
Objection, Your Honor. That is speculation. And if he wants to testify to something like that, I want to take him on voir dire.
COURT:
I'll sustain the objection.
STATE:
Do you have-have you seen any evidence that suggests to you that the defendant is not telling-is not telling the truth about what happened?
DEFENSE:
Again, I object, Your Honor. Detective Wills, although apparently a good expert, is not a judge in this case.
COURT:
Overruled.
STATE:
What evidence is contrary, if any, to what [Savage] said that you saw in this case?
WILLS:
The moving of images without looking at them when he says he moves them from the work directory to the pic [sic] directory. Some of those images that are in the picture directory are child porn. And if he did look at them, he didn't delete them. He was saving them.Just the sheer number of images in the news groups that he was pointing to would lead me to believe that the Dallas Police Department had a case. We conclude Savage did not preserve this issue for appeal. Savage did not make a timely and specific objection to the State's reworded question. Also, Savage's objection at trial differs from his argument on appeal. At trial, Savage objected on the basis that Detective Wills was not a judge, but on appeal he argues the question was improper based on Texas Rule of Evidence 702. Issue four is decided against Savage.