Opinion
05-22-00213-CR 05-22-00218-CR
06-13-2023
LYLE JEFFREY SCHOEN, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 219th Judicial District Court Collin County, Texas Trial Court Cause Nos. 219-83253-2020 & 219-83524-2020
Before Justices Reichek, Nowell, and Garcia
MEMORANDUM OPINION
ERIN A. NOWELL JUSTICE
Following a bench trial, Lyle Jeffrey Schoen was convicted of three counts of promotion of child pornography (trial court cause number 219-83253-2020). In the same proceeding, appellant pleaded guilty to six counts of possession of child pornography (trial court cause number 219-83524-2020). In two issues, appellant argues the evidence is insufficient to support the conviction for promotion of child pornography and requests we order a new sentencing hearing for the possession case. We reverse the trial court's judgment in trial court cause number 219-83253-2020 and render a verdict of acquittal. We affirm the trial court's judgment in trial court cause number 219-83524-2020.
A. Sufficiency of the Evidence
Appellant seeks to challenge the legal and factual sufficiency of the evidence. However, in 2010, the court of criminal appeals concluded that the factual-sufficiency standard had become "indistinguishable from the Jackson v. Virginia legal-sufficiency standard." Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Because there was no longer any meaningful difference between the two, the Brooks court abolished the factual-sufficiency standard. See id. at 911; see also Butcher v. State, 454 S.W.3d 13, 20 (Tex. Crim. App. 2015) (explaining Brooks "abolished the factual-sufficiency review as it applies to criminal convictions"). Texas now recognizes "only one standard" in evaluating whether the evidence is sufficient to support a criminal conviction beyond a reasonable doubt: the Jackson v. Virginia legal-sufficiency standard. See Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013).
In his first issue, appellant argues the evidence is insufficient because: (1) the State failed to prove he intentionally or knowingly promoted any child pornography while he was downloading the images; (2) the State failed to prove he intentionally or knowingly possessed the indicted images with the intent to promote them; (3) there is no evidence that, at the time of downloading and allegedly promoting the indicted images, he knew any of those images depicted a child engaged in sexual contact; and (4) he took affirmative steps to ensure the indicted images were not accessible to anyone else after he had possession of them.
When reviewing the sufficiency of the evidence to support a conviction, we consider the evidence in the light most favorable to the verdict. Edward v. State, 635 S.W.3d 649, 655 (Tex. Crim. App. 2021). The verdict will be upheld if any rational trier of fact could have found all the essential elements of the offense proven beyond a reasonable doubt. Id. "This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson v. Virginia, 443 U.S. 307, 319 (1979). The finder of fact is the sole judge of the weight and credibility of the evidence. Edward, 635 S.W.3d at 655. When considering a claim of evidentiary insufficiency, we must keep in mind that the finder of fact may choose to believe or disbelieve all, some, or none of the evidence presented. Id. The evidence is sufficient to support a conviction if "the inferences necessary to establish guilt are reasonable based upon the cumulative force of all the evidence when considered in the light most favorable to the verdict." Id. at 655-56 (quoting Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012)). When faced with conflicts in the evidence, a reviewing court shall presume that the fact finder resolved those conflicts in favor of the verdict and defer to that determination. Id.
We measure the sufficiency of the evidence against the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The "hypothetically correct jury charge accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Alfaro-Jimenez v. State, 577 S.W.3d 240, 244 (Tex. Crim. App. 2019). "As authorized by the indictment" means the statutory elements of the offense as modified by the charging instrument. Id.; see also Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (the "law as authorized by the indictment" consists of the statutory elements of the offense and those elements as modified by the factual details and legal theories contained in the indictment). This sufficiency standard "can uniformly be applied to all trials, whether to the bench or to the jury." Malik, 953 S.W.2d at 240.
The indictment charged that appellant did "intentionally and knowingly possess with intent to promote visual material that visually depicted and that 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" in three different ways. Tex. Penal Code § 43.26(g). "Promote" means "to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise or to offer or agree to do any of the above." See id. §§ 43.25, 43.26(b)(1). A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct "when it is his conscious objective or desire to engage in the conduct or cause the result." Id. § 6.03(a).
Two witnesses testified at trial: Lee McMillian of the Collin County Sherriff's Office for the State and Trent Forbes, a licensed private investigator and certified forensics examiner, for the defense. Both testified about the functionality of BitTorrent, a peer-to-peer file-sharing software.
In October 2020, McMillian determined appellant was using BitTorrent to download child pornography. He explained that BitTorrent users agree to share files with other users. When a user is downloading files with BitTorrent, the user also uploads files to other users; the files being downloaded may simultaneously be uploaded to other users. A computer screen will show a user's download and upload speeds. McMillian testified that most users know that they must share files with other users when they are downloading. Forbes explained that, when installing BitTorrent on a computer, BitTorrent sets up a folder that "the torrent goes into." BitTorrent users can only download files from someone else if those files remain in the assigned BitTorrent folder. Forbes testified that, when downloading files with BitTorrent, there is nothing a user can do to prevent BitTorrent from allowing someone else to upload the files.
At trial, McMillian testified extensively about how users acquire files using BitTorrent; because most of that testimony is not relevant to our consideration of this appeal, we do not recount that portion of his testimony in detail. See Tex. R. App. P. 47.1.
When McMillian determined that appellant was downloading child pornography, he connected to appellant's computer using a single-source download. By doing so, McMillian connected only to appellant's computer, and he was able to download portions of the files containing child pornography from appellant's computer at the same time appellant's computer was downloading the files from other sources.
Appellant's computer disconnected from BitTorrent after successfully downloading the files containing child pornography. As a result, McMillian's single-source download was interrupted, and McMillian received only portions of the files. McMillian found the "timing odd that shortly after, within the minute of getting the last piece, we're all of a sudden disconnected."
Forbes testified that when a user is connected to BitTorrent, "something has to occur in order for you to disconnect" from someone else. "And in this case it could be the user or the user software initiated this disconnection." Disconnection requires user action; it is not an automated process. Forbes explained that McMillian would have been disconnected if appellant stopped sharing the file or moved the file and closed the computer.
A user can change BitTorrent's default settings, which appellant did. Appellant changed the settings to slow the speed at which another user could download from him, which could make his computer a less attractive option for others to download files from. Appellant did not, however, change the default rate at which he could download files. McMillian testified that people who are trying to thwart law enforcement can change the settings, "like we see in the Defendant's case, where it's so low that the upload speed would make it difficult for anyone to get much."
When interviewed, appellant told McMillian he works as a "parts man" at a body shop. McMillian was not aware of appellant having specialized training in computers or IT. Nothing suggested appellant "is a sophisticated IT mind." Rather, he seemed "average."
McMillian believed appellant promoted the files containing child pornography because BitTorrent was on appellant's computer. He agreed there is no evidence appellant disseminated the files by any means other than BitTorrent. However, McMillian testified: "Using BitTorrent in and of itself is sharing child pornography." Forbes also found no evidence indicating that, after acquiring the files at issue, appellant took any actions to send them to another user, share them, advertise them, or publicize them; the only evidence of sharing was through the automatic function of BitTorrent. Forbes reviewed the images and videos on appellant's computer, and he did not see any of the images or videos in the directory for the BitTorrent client; "[a]nd I didn't see anywhere else that they were being promoted, discussed or talked about in any other format." There was no evidence that anyone other than McMillian ever uploaded the file from appellant.
Forbes testified:
Q. Okay. Now, is it completely possible that since the detective, with his tools for trying to find the dissemination of child porn, found a hash value being downloaded, connects with the IP address and specifically targeted that IP address to pull from that search?
A. Yes.
Q. Okay. So, but for that, it's completely possible that Lyle Schoen could have downloaded the file, no one ever intercepted, it would have just gone to him, it would have just moved to his folder for his personal enjoyment?
A. Yes.
Q. Okay. Is the action of modifying the upload speed consistent with that sort of behavior?
A. It is consistent with that behavior of somebody that's not willing to share that particular folder in your BitTorrent, because that's the only one you're sharing is that one folder. You're not sharing your entire computer with the world; you're just sharing that one folder.
. . .
Q. . . . But if I still have BitTorrent software on my computer and I move the files I downloaded to a different directory, BitTorrent doesn't share everything off your computer if somebody searches [filename], et cetera, et cetera, correct?
A. Correct.
Q. Okay. The only way a user using BitTorrent would ever inadvertently connect to Mr. Schoen is they search for that same file that he downloaded, correct?
A. Correct.
Q. Okay. And so even that process is not intentional but it's automated as to who that person would then connect to, correct?
A. Correct.
Q. Okay. So there's no promotion or communication between these other uses hypothetically, these hypothetical users?
A. Correct.
Appellant's computer also included movies and video games he had downloaded using BitTorrent.
After hearing testimony from McMillian and Forbes and the arguments of counsel, the trial court found appellant guilty of possession with the intent to promote child pornography. Based on the evidence, appellant argues, among other things, there is no evidence to show he possessed the images with the intent to promote them. We agree.
The evidence shows that appellant was not a sophisticated computer user; McMillian described him as "average." While we can infer appellant knew that, as part of downloading files using BitTorrent, he was required also to upload material, the evidence does not show appellant intended to upload the pornographic images at issue while he was downloading them or at any other time. Rather, the evidence shows appellant took steps not to share the pornographic material at issue. After appellant finished downloading the pornographic material, he stopped sharing the files or moved them out of his BitTorrent folder. As a result, McMillian's single-source download was interrupted. Appellant changed the default BitTorrent settings to slow any uploads from his computer to others, thus making his computer an unattractive source for uploading. When Forbes reviewed appellant's computer, he did not see any of the pornographic material at issue in the directory for the BitTorrent client. Other than McMillian, who received portions of the files from appellant while appellant was downloading the files, there is no evidence appellant sent or attempted to send the files to another person using BitTorrent or any other means. This evidence does not show appellant intentionally promoted the images.
We contrast this case to Mason v. State, No. 12-19-00006-CR, 2020 WL 975362 (Tex. App.-Tyler Feb. 28, 2020, no pet.) (mem. op., not designated for publication), in which our sister court found the evidence sufficient to support Mason's conviction for possession of child pornography with the intent to promote. In that case, Mason used Limewire, a peer-to-peer file sharing program, see id. at *2, and two experts testified Mason possessed some level of technical sophistication, see id. at *4. The digital videos depicting child pornography that formed the basis of the indictment were located in the shared Limewire folder, which made the images accessible to other Limewire users to download. See id. at *4 (citing Wenger v. State, 292 S.W.3d 191, 199 (Tex. App.-Fort Worth 2009, no pet.) (citing United States v. Sewell, 513 F.3d 820, 822 (8th Cir. 2008) ("placing a file in a shared folder [in a peer to peer filing program] with descriptive text is clearly an offer to distribute the file"); United States v. Carani, 492 F.3d 867, 876 (7th Cir. 2007) (making pornography available on file-sharing software qualifies as "distribution"); United States v. Shaffer, 472 F.3d 1219, 1223 (10th Cir. 2007) (defendant distributed child pornography to others via his computerized stash))).
Similarly, in Leita v. State, No. 13-14-00567-CR, 2016 WL 6541843 (Tex. App.-Corpus Christi-Edinburg Aug. 25, 2016, pet. ref'd) (mem. op., not designated for publication), the court of appeals affirmed Leita's conviction for promotion of child pornography. Leita used Shareaza, a peer-to-peer sharing software with a default protocol set to share files, to download child pornography. See id. at *1. Leita was "technologically savvy." See id. at *4. Shareaza, as configured on Leita's computer, was set to allow peers to download files from his computer. See id.at *2. Leita possessed a "very large amount of child pornography, which, according to the testimony, is consistent with someone who is sharing and trading the material." Id. at *4. Leita kept the majority of the child pornography files in his download folder, thus making those files available to other Shareaza users. See id.at *2, 4. Police found notes with passwords in Leita's residence, and two officers testified that people interested in child pornography trade passwords and links with other people who want that material; because Leita had such notes, the officers believed Leita was trading child pornography. Id.at *4. The court concluded that the circumstantial evidence in that case supported "the reasonable inference that Leita knowingly shared the significant amount of child pornography he downloaded from Shareaza with others." See id. at *5.
We also note the Leita court concluded Leita acted knowingly whereas we are considering whether the evidence shows appellant acted intentionally. Compare Tex. Penal Code § 6.03(b) (definition of knowingly) with Tex. Penal Code § 6.03(a) (definition of intentionally).
Unlike Mason and Leita, appellant was not a sophisticated computer user and he did not leave the images in his BitTorrent file for others to download. Instead, he took steps to preclude others from downloading them. There also was no testimony he had a large amount of child pornography and there was no other indication he shared the images, as there was in Leita. Applying the relevant standard of review, we cannot conclude any rational trier of fact could have found appellant had the conscious objective or desire to promote child pornography. We sustain appellant's first issue to this extent.
In light of our conclusion that the evidence is insufficient to support the verdict on this ground, we need not consider appellant's other arguments in his first issue. See Tex. R. App. P. 47.1.
B. Sentencing
In his second issue, appellant requests we order the trial court to conduct a new sentencing proceeding. Appellant appears to argue the conviction in the promotion case impacted the trial court's sentencing determination in the possession case; appellant cites nothing in the record to support this theory, and we have not found anything. At sentencing, the judge stated: "Mr. Schoen, if you can please rise. Under 219-83253-2020 I sentence you to 15 years. To 219-83254-2020 I sentence you to 10 years all to run concurrently. You're taken into custody. Thank you." The judge also stated appellant would be required to register as a sex offender and ordered his computer devices to be forfeited.
Appellant concedes the sentence in trial court cause number 219-83524-2020 is within the statutory range, and he does not argue the sentence violates any statutory or constitutional provisions. Accordingly, having reviewed the record, we see no basis on which to remand trial court cause number 219-83524-2020 for a new sentencing proceeding based on our resolution of trial court cause number 219-83253-2020.
C. Conclusion
We reverse the trial court's judgment in trial court cause number 219-83253-2020 and render a verdict of acquittal. We affirm the trial court's judgment in trial court cause number 219-83524-2020.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is REVERSED and the appellant is hereby ACQUITTED.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.