Nos. 05-09-00762-CR, 05-09-00763-CR
Opinion Filed May 4, 2011. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the 429th Judicial District Court, Collin County, Texas, Trial Court Cause Nos. 401-80137-07 and 401-82473-06.
Before Justices O'NEILL, FITZGERALD, and LANG.
Opinion By Justice O'NEILL.
A jury convicted appellant John Preston Creech of aggravated sexual assault of a child, indecency with a child, and five counts of possession of child pornography. The trial court sentenced him to five ten-year sentences, one twenty-year sentence, and a life sentence to run concurrently. He challenges the sufficiency of the evidence to support his convictions for aggravated sexual assault of a child, indecency with a child, and possession of child pornography. He further challenges the admission of alleged hearsay testimony from a witness who was not the State's designated outcry witness. Lastly, he claims the trial court erred in admitting unauthenticated images retrieved from his work and home computers. We affirm the trial court's judgment.
Background
Appellant taught human sexuality at Collin County Community College (CCCC). On August 21, 2006, he reported to the IT department that his computer keyboard was not working and his computer was performing slowly. Rob Hurst, a hardware/software technician for CCCC, responded to appellant's issues. While performing standard procedures to update the system, Hurst noticed files with suspicious names. He notified his supervisor that he may have found pornographic images on a computer. Shane Ammons, the executive director of academic technologies and network services for CCCC, removed the computer from appellant's office. He later copied images from appellant's hard drive and put them in a separate folder on the computer's desktop. He then copied the folder onto a flash drive. He showed Kim Russell, the vice president of human resources, print outs of some of the images and she contacted the president of CCCC. College administrators met with appellant on August 23, 2006 and he admitted the images were on his computer and provided a "fairly lengthy explanation of his rationale," including looking at pornography to desensitize himself and researching to determine the line between legal and illegal images. CCCC terminated appellant's employment. CCCC notified the Frisco police department regarding the child pornography on appellant's work computer. Officer Nelson Walters conducted a search of appellant's home looking for additional evidence of child pornography. He seized appellant's home computer, which also had images of child pornography. Officer Walters noticed several pictures in the home of appellant with a young girl. He wanted to determine the girl's identity and contact the family because he had concerns appellant may have victimized her. Before he determined her identity, he received a phone call from Annette Cameron, the mother of the girl in the pictures. Cameron's sister was appellant's girlfriend. They were all close, and appellant often spent time alone with Cameron's daughter, A.R. When Cameron learned appellant was being investigated for child pornography, she became concerned he may have acted inappropriately with A.R. Officer Walters scheduled an initial interview at the Collin County Children's Advocacy Center for September 12, 2006. A.R. did not make an outcry or describe any abuse during this interview. The next day, A.R. met with Dr. Sharlaw Bhargava, a child psychiatrist, because she had been experiencing seizures. During her appointment, Dr. Bhargava explained sexual abuse and A.R. told "just a little" of what happened with appellant. On the way home, she told her mother appellant touched and kissed her breasts and vagina on two separate occasions: one while in the bathroom of appellant's home in Allen and a second time while she was changing into her swimsuit at the Don Rodenbaugh Natatorium. Cameron called Officer Walters again and a second forensic interview was scheduled for September 21, 2006. During this interview, A.R. disclosed to Erica Stanley that appellant's mouth touched her sexual organ and breasts. A.R. provided sensory details of the abuse, and there was no indication she was coached. Appellant was charged with aggravated sexual assault of a child, two counts of indecency with a child, and five counts of possession of child pornography. The court granted appellant's motion for directed verdict on one of the counts of indecency with a child. A jury found him guilty of the remaining charges, and the trial court sentenced him to five ten-year sentences, one twenty-year sentence, and a life sentence to run concurrently. This appeal followed. Sufficiency of the Evidence to Support Aggravated Sexual Assault of a Child and Indecency With a Child
In his first two issues, appellant challenges the legal and factual sufficiency of the evidence to support his conviction for aggravated sexual assault of a child and indecency with a child. He contends the evidence is insufficient to establish he intentionally or knowingly contacted complainant's sexual organ with his mouth and that he intentionally or knowingly contacted her breast with the intent to arouse or gratify his sexual desire. The State responds A.R.'s testimony alone is sufficient to support his convictions. In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). We defer to the jury's credibility and weight determinations because it is the sole judge of the witnesses' credibility and the weight to be given their testimony. Id. at 326. Appellant argues A.R.'s testimony that he "kissed the part that when you get older you get hair on" is too broad to support a finding that he committed aggravated sexual assault. However, appellant ignores A.R.'s testimony in which she said appellant touched her breasts and vagina with his lips on two separate occasions: once while in the bathroom at appellant's home when she was undressing to take a shower and a second time while she was changing into her swimsuit in the family changing room at the Don Rodenbaugh Natatorium. She provided sensory details such as body positions, how appellant ran his hands up her sides, told her she was beautiful, and how he kissed her directly on the skin rather than over her clothes. Thus, her testimony alone established appellant intentionally contacted her breast and sexual organ with his mouth. See Tear v. State, 74 S.W.3d 555, 560 (Tex. App.-Dallas 2002, pet. ref'd) (child's testimony alone is sufficient to support conviction for aggravated sexual assault). However, the jury did not hear only her testimony. It also heard testimony from Erica Stanley, the forensic interviewer with Collin County Children's Advocacy Center. She stated A.R. disclosed during a second interview that appellant's mouth touched her sexual organ and his mouth and hand contacted her breast. The jury also heard similar testimony from A.R.'s mother. Thus, the evidence is sufficient to support his convictions for aggravated sexual assault and indecency with a child. In reaching this conclusion, we reject appellant's argument that A.R. did not testify with specificity regarding contact with her sexual organ. "Female sexual organ" is a more general term than "vagina" and refers to the entire female genitalia, including both the vagina and the vulva. Karnes v. State, 873 S.W.2d 92, 97 (Tex. App.-Dallas 1994, no pet.). The vagina refers to the genital canal in the female, extending from the uterus to the vulva. Everage v. State, 848 S.W.2d 357, 358 (Tex. App.-Austin 1993, no pet.). The vulva is defined as "the external parts of the female genital organs, including the labia majora, the labia minora, mons veneris, clitoris, perineum, and the vestibule or entrance to the vagina." Breckenridge v. State, 40 S.W.3d 118, 124 (Tex. App.-San Antonio 2000, pet. ref'd) (citing the Simplified Medical Dictionary for Lawyers (2d ed. 1951)). Therefore, even if A.R.'s testimony regarding appellant contacting the part of the body that gets hair on it when a woman gets older does not fall within the definition of vagina, it falls within the definition of vulva, which is part of the female sexual organ. Thus, her testimony is sufficient to support appellant's conviction of contacting her sexual organ with his mouth. We overrule appellant's first and second issues. Hearsay Testimony
In his third issue, appellant argues the trial court abused its discretion by allowing complainant's mother, Annette Cameron, to testify about statements A.R. made to her regarding the abuse because Cameron was not the designated outcry witness. As such, her statements were inadmissible hearsay. He further argues A.R.'s outcry was patently unreliable and should not have been admitted. Lastly, he contends if the State intended Cameron to be the designated outcry witness, he failed to receive proper notice. The State responds appellant waived his right to receive notice regarding the outcry witness. Further, Cameron was the proper outcry witness, and he waived his argument regarding reliability by failing to object in the trial court. We agree with the State that appellant waived his right to receive notice regarding the outcry witness. Article 1.14 of the Texas Code of Criminal Procedure provides a "defendant . . . may waive any rights secured him by law. . . ." Tex. Code Crim. Proc. Ann. art. 1.14(1) (West 2005). Appellant and his attorney signed a discovery agreement in which appellant agreed to waive "any and all rights set forth" in article 38.072, the outcry statute, in exchange for the State providing an open file. Further, when Cameron testified, appellant did not object to the lack of article 38.072 notice; therefore, any error was waived.See Tex. R. App. P. 33.1; Garcia v. State, 05-03-00001-CR, 2004 WL 1068153, at *9 n. 1 (Tex. App.-Dallas May 13, 2004, pet. ref'd) (not designated for publication) (noting failure to object to lack of notice waived complaint). We now turn to whether the trial court erred in allowing Cameron to testify as the outcry witness. The out-of-court statement of a child sexual assault victim is hearsay when it is offered for the truth of the matter asserted unless an exception applies. Dorado v. State, 843 S.W.2d 37, 38 (Tex. Crim. App. 1992). Article 38.072 of the code of criminal procedure creates an exception to the hearsay rule when a statement is made by a child victim under the age of fourteen. Tex. Code Crim. Proc. Ann. art. 38.072. This exception only applies, however, to the first person to whom the child victim makes an outcry statement who is over the age of eighteen. Id. To qualify as a proper outcry, the child must have described the alleged offense in some discernible way and must have more than generally insinuated sexual abuse occurred. Sims v. State, 12 S.W.3d 499, 500 (Tex. App.-Dallas 1999, pet. ref'd); Tear, 74 S.W.3d at 559. A trial judge has broad discretion in determining the proper outcry witness. Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990). An appellate court will not reverse the trial judge's decision to admit testimony from an outcry witness if it is within the zone of reasonable disagreement. Tear, 74 S.W.3d at 558. A.R. testified she told Dr. Bhargava "just a little" about the abuse and then told her mother more on the way home. She further stated she told Dr. Bhargava she had been sexually abused after Dr. Bhargava told her what it meant. A.R. told her appellant "kissed me in places, number one and number two." Based on this testimony, appellant argues Dr. Bhargava was the proper outcry witness, and the trial court abused its discretion in finding otherwise. We do not agree. Reference to "the first person" to whom a child makes an outcry under article 38.072 has been interpreted to mean the "first adult who can remember and relate at trial the child's statement that in some discernable manner describes the alleged offense." See Foreman v. State, 995 S.W.2d 854, 859 (Tex. App.-Austin 1999, pet. ref'd); Anderson v. State, 831 S.W.2d 50, 54 (Tex. App.-Fort Worth 1992, pet. ref'd) (concluding mother was not proper outcry witness when she denied under oath any outcry from her daughter). Dr. Bhargava testified she had no independent recollection of what A.R. told her during their one meeting over two and a half years prior to trial. Her notes from the session did not indicate A.R. disclosed any inappropriate touching. She also testified "she did not make an outcry to me." Because Dr. Bhargava specifically testified A.R. did not make an outcry to her and she did not remember nor document one, she was not the appropriate outcry witness. Thus, the first adult A.R. described details of the abuse was her mother. A.R. told her appellant touched and kissed her breasts and "ginee" in the bathroom in his home in Allen and at the natatorium. The trial court could have reasonably determined A.R.'s statements to Cameron regarding how, when, and where appellant touched her satisfied the statutory requirements under article 38.072 and was more than a general allusion to sexual abuse. See, e.g., Sims, 12 S.W.3d at 500. Accordingly, we conclude the trial court did not abuse its discretion in allowing Cameron to testify as the outcry witness. Finally, appellant argues A.R.'s outcry was patently unreliable; therefore, the trial court abused its discretion in admitting the testimony. Appellant failed to object to the outcry testimony on the basis of reliability. As such, he failed to preserve this issue for review. See Duran v. State, 163 S.W.3d 253, 256 (Tex. App.-Fort Worth 2005, no pet.) (concluding appellant waived argument regarding reliability of outcry when not raised to the trial court). We overrule appellant's third issue. Authentication of Images on Appellant's Computers
In his fourth issue, appellant contends the trial court abused its discretion by admitting unauthenticated images allegedly retrieved from his work and home computers. Because members of CCCC's IT department accessed appellant's work computer and allegedly downloaded numerous images of child pornography as part of their "investigation," he claims the State failed to prove the images shown to the jury were what they purported to be: the true contents of appellant's computer hard drives before the hard drives were removed from his custody and control. Whether the trial court erred in admitting evidence is reviewed under an abuse of discretion standard and will not be overturned as long as the court's ruling was within the zone of reasonable disagreement. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). Texas Rule of Evidence 901(a) states, "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Tex. R. Evid. 901(a). An example of authentication or identification pursuant to rule 901(a) is "appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances." Tex. R. Evid. 901(b)(4). A chain of custody must be established when: (1) there is a possibility of commingling the item with items similar in appearance, (2) the sponsoring witness has not marked with distinctive markings an item not having distinctive characteristics, or (3) there is a suggestion the evidence has been tampered or changed in some manner. Ballard v. State, 23 S.W.3d 178, 183 (Tex. App.-Waco 2000, no pet.). Proof of chain of custody goes to the weight of the evidence rather than the admissibility of the evidence. Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997). Absent evidence of tampering or commingling, theoretical breaches in the chain of custody do not affect the admissibility of evidence. Id. During a mid-trial motion to suppress hearing, appellant presented expert testimony from Timothy Hanners, a computer forensic analyst. He testified the IT department did not use the best practices for securing appellant's work hard drive because they should have created a binary copy of the hard drive and worked from it. He stated they worked for over twelve hours on the computer before it was secured and during that time, they changed dates on approximately sixteen thousand files, created or modified over six thousand files, and installed applications that would have deleted older files. He further testified there were viruses that could create links within a user's favorite links. On cross-examination, Hanners could not say with certainty appellant's work computer contained any viruses that would put images on the hard drive, in the computer's cookies, or on appellant's list of favorites. He also acknowledged all the images had a created, modified, and accessed date, and by simply viewing a file on August 21, 2006, the IT staff could not give an image an earlier created date. During the State's case-in-chief, Hurst and Ammons testified they did not add any pornography to appellant's work computer. While both men admitted to opening some files, which changed the accessed date, these actions only affected files already on the computer rather than adding new files. In fact, Hurst specifically testified he did not change the created dates and to make such changes would require specialized software not installed on appellant's work computer. Ammons admitted that while he did not use the best practices for securing appellant's work computer, he created a new folder in the middle of the desktop named FOUND 8/21 of `06 and copied questionable images from the temporary internet files and put them in the new folder. He made an exact copy of images in the temporary internet files because he did not want to change the created date of the image. He testified nothing in the process would have added pornography that was not already present on appellant's work computer. While he admitted to using appellant's work computer to access images that would have been saved in the temporary internet files, the access date would have been August 21 or August 22. Rod Gregg, a digital forensic examiner, confirmed there were images viewed on appellant's work computer prior to August 21, 2006 and some files were viewed repeatedly. The images and files accessed prior to August 21 were not put on appellant's work computer by Hurst or Ammons. He said while it was more complicated, it was not impossible for him to sort through what the IT staff did to appellant's work computer prior to him examining it. He specifically testified all the information on State's Exhibit 20, a CD containing images of child pornography, were retrieved from appellant's work computer. Accordingly, after considering the evidence, the trial court acted within its discretion in determining Hurst and Ammons did not tamper or change the contents of appellant's work hard drive in such a manner that the State failed to properly authenticate the images as coming from appellant's computer. See Tex. R. Evid. 901(a) (" . . . the matter in question is what its proponent claims"). Thus, the trial court properly admitted State's Exhibit 20. Further, despite allegations of tampering with appellant's work computer, appellant's home computer was properly seized by Officer Walters during a search of his home and transferred to the Regional Forensic Computer Laboratory operated by the FBI in Dallas where it was logged in and bar coded. Gregg examined the computer and discovered child pornography. The IT staff never had possession of appellant's home computer; therefore, they did not, nor has appellant alleged, they tampered or altered the hard drive of his home computer. Accordingly, the State presented evidence sufficient to support a finding that "the matter in question is what its proponent claims." See Tex. R. Evid. 901(a). Thus, the trial court did not abuse its discretion by admitting State's Exhibit 21. Finally, appellant argues even if the State authenticated the images, any potential relevance of showing the images to the jury was outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. The State responds appellant failed to object on this basis; therefore, nothing is preserved for our review. Further, even if the argument was preserved, the evidence was not more prejudicial than probative. During the motion to suppress hearing, in addition to arguing the IT staff tampered with appellant's work computer, defense counsel also argued "the evidence is so prejudicial to this defendant, that they're going to show them pictures that the college staff actually brought down and put on the computer." He later emphasized, "it's extremely prejudicial." Thus, appellant raised his argument to the trial court, and we will address it accordingly. Appellant argues the images had a tendency to confuse or distract the jury from the main issues in the case. However, appellant was charged with possession of child pornography. The State had to prove appellant "knowingly or intentionally possess[ed] visual material that visually depicts a child younger than 18 . . . engaging in sexual conduct." Tex. Penal Code Ann. 43.26(a) (West 2003). The images retrieved from his computers were highly relevant to establishing the elements of the crime; therefore, they did not confuse or distract the jury from the main issue. Further, while both sides admit the images were horrifying, "when the power of the visible evidence emanates from nothing more than what the defendant has himself done we cannot hold that the trial court has abused its discretion merely because it admitted the evidence." See Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995); Irvin v. State, 05-04-01661-CR, 2006 WL 1461138, at *3 (Tex. App.-Dallas May 30, 2006, no pet.) (not designated for publication) (admitting photographs of child pornography was not more prejudicial than probative when it reflected what appellant had done). Thus, the trial court did not abuse its discretion by admitting the exhibits over appellant's objection. Appellant's fourth issue is overruled. Sufficiency of the Evidence to Support Possession of Child Pornography
In his fifth issue, he challenges the legal and factual sufficiency of the evidence to support his conviction for possession of child pornography. He argues even if the court did not err by admitting the images from his computers, their lack of integrity renders the evidence insufficient to support a finding he intentionally possessed child pornography. The State responds, despite any alleged questions regarding the IT staff's treatment of appellant's work computer, the evidence is sufficient. In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319. We defer to the jury's credibility and weight determinations because it is the sole judge of the witnesses' credibility and the weight to be given their testimony. Id. at 326. As previously stated, the State had to prove appellant (1) intentionally or knowingly (2) possessed visual material (3) that depicts a child younger than eighteen (4) who is engaging in sexual conduct. Tex. Penal Code Ann. § 43.26(a). Here, appellant's computers contained numerous images of prepubescent girls in a variety of sexual poses. His temporary internet files on his work computer contained links referencing "young lolitas and teens." Under his favorites tab, he had created a folder called SXLTY that contained links with names such as young nebules, young angels, and lolita kingdom. Ammons testified some of the links in his favorites matched those in his temporary internet files. Ammons further testified spyware and viruses do not add files or folders to computers. Gregg also testified he did not know of any viruses that put images on a computer and spread them out over months and years. Rather, most viruses and spyware are used to gather information about the user, not put something on a computer. Gregg testified he was able to determine what actions the IT staff took prior to appellant's work computer coming into his possession. He was confident child pornography existed on the computer prior to August 21, 2006. Kim Russell testified appellant admitted the images were on his work computer and provided a "fairly lengthy explanation of his rationale" for them. He did not seem surprised when the college administration confronted him about them. In fact, appellant later admitted he looked at pornography to desensitize himself and to determine the line between legal and illegal images. However, CCCC never provided permission (nor would they) for a professor to engage in illegal activity for research or class preparation. Finally, Annette Cameron testified appellant told her about some of the content on his computer. It included men masturbating and ejaculating on infants and female circumcision of young girls. Examining the evidence in the light most favorable to the verdict, the jury could have found appellant intentionally possessed child pornography. Appellant's fifth issue is overruled. Conclusion
Having overruled appellant's issues, we affirm the trial court's judgment.