Opinion
NO. 01-16-00930-CR NO. 01-16-00931-CR NO. 01-16-00932-CR
09-26-2017
CLINT DEAN GASPER, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court Harris County, Texas
Trial Court Case Nos. 1488021 , 1488022, 1488023
MEMORANDUM OPINION
A jury found appellant, Clint Dean Gasper, guilty of three separate offenses of possession of child pornography and assessed his punishment at confinement for six years, confinement for five years, and confinement for ten years and a fine of $10,000, respectively. It then recommended that his sentences be suspended, he be placed on community supervision, and his fine be probated. The trial court, in accordance with the jury's recommendation, suspended appellant's sentences, probated his fine, and placed him on community supervision for a period of six years, five years, and ten years, respectively, to run concurrently, with the added condition of 180 days confinement in county jail for each offense, to run consecutively. In his sole issue, appellant contends that the evidence is insufficient to support his convictions.
See TEX. PENAL CODE ANN. § 43.26(a) (Vernon 2017); appellate cause no. 01-16-00930-CR; trial court cause no. 1488021 (Offense I); appellate cause no. 01-16-00931-CR; trial court cause no. 1488022 (Offense II); appellate cause no. 01-16-00932-CR; trial court cause no. 1488023 (Offense III).
We affirm.
Background
La Porte Police Department ("LPPD") Officer J. Huckabee, an investigator with the Houston Metro Internet Crimes Against Children Task Force ("ICACTF"), testified that he, through an investigation, learned that someone using an Internet Protocol ("IP") address assigned to a house located at 4202 Dahlia Lane, Harris County, Texas (the "Dahlia Lane house") was sharing child pornography through a peer-to-peer file-sharing network. Beginning on October 12, 2015, Huckabee downloaded, "on 11 different occasions," electronic files containing child pornography from the IP address. In total, Huckabee downloaded "68 complete [child-pornography] files" and "54 incomplete [child-pornography] files." After reviewing the downloaded files, which consisted of "either a digital video or image . . . depict[ing] a child engaging in lewd exhibition of [his or her] genitals, anus, engaging in masturbation[,] or engaging in sexual acts," Huckabee obtained a warrant to search the Dahlia Lane house.
Although Officer Huckabee characterized some child-pornography files as "incomplete," he noted that he was still able to view them to determine that they constituted child pornography.
On November 10, 2015, Officer Huckabee, along with other members of the ICACTF, searched the Dahlia Lane house for child pornography. When law enforcement officers entered the house, appellant, his minor daughter, and two adult women were present. Huckabee noted that appellant, his daughter, and a roommate, Christopher Michie, lived in the house, although it was owned by neighbors who lived across the street. During their search, officers seized thirteen electronic devices, including a Hewlett Packard desktop computer (the "HP computer") from the main living area, a Toshiba laptop from the master-bedroom closet, and "a digital hard drive" (the "external hard drive") from the master bedroom. The HP computer, the Toshiba laptop, and the external hard drive contained child pornography.
Officer Huckabee noted that appellant told law enforcement officers that the master bedroom was his bedroom.
Officer Huckabee further testified that LPPD Detective A. Goonie performed, at the scene, "a forensic preview" of the thirteen electronic devices seized. Huckabee "review[ed] the forensic preview" at the scene and "observe[d] . . . files" that "contained images of children engaged in sexual acts and sexual conduct." Specifically, Huckabee viewed three videos that constituted child pornography and he described them in significant detail at trial.
The videos were titled "PTHCBOYLOVEBLUTO-2MANBOY2MPG," "PTHCWEBCAM9TO10YEARSOLD-10YEARSOLD . . . [KARIN]FROMESTONIA05.AVI," and "2010PTHCPENETRATIONWMV." See Lubojasky v. State, No. 03-10-00780-CR, 2012 WL 5192919, at *16 n.14 (Tex. App.—Austin Oct. 19, 2012, pet. ref'd) (mem. op., not designated for publication) ("PTHC" constitutes "[a] known child pornography search term[]" (internal quotations omitted)); Wenger v. State, 292 S.W.3d 191, 201 (Tex. App.—Fort Worth 2009, no pet.) ("PTHC" means "Pre-Teen Hard Core" (internal quotations omitted)).
Officer Huckabee explained that when he interviewed appellant on November 10, 2015, appellant admitted to downloading "porn packs" and using the computer program "BitTorrent." Appellant also admitted to "downloading child pornography," stating that he "would download [child-pornography files] and then delete them." Huckabee noted that it was not unusual for a person to "download child pornography intentionally or knowingly" and then "delete" the files because of "[s]hame and embarrassment" or because the files "didn't meet [that person's] sexual gratification." However, Huckabee, as a member of the ICACTF, had "never seen" a situation where a person had "accidentally download[ed] child pornography." Based on his conversations with appellant, Huckabee opined that appellant had "purposefully downloaded . . . child pornography."
Officer Huckabee testified that "BitTorrent" is a "[p]eer-to-peer" "file-sharing network." See generally Funimation Entm't v. Does 1 - 1,1427, No. 2:11-CV-00269, 2013 WL 5200453, at *1 (E.D. Tex. Sept. 16, 2013) (BitTorrent constitutes "a computer peer-to-peer file[-]sharing protocol" which "allows its users to download files more quickly and efficiently" because "users, or 'peers' . . . split a file up into pieces and download multiple pieces simultaneously from multiple peers"; "[o]nce a peer downloads a particular piece of the file in question, he or she automatically begins to share that piece with other peers"); see also United States v. Knapp, No. 16-3559, 2017 WL 2533390, at *1 (8th Cir. June 12, 2017) (defendant used BitTorrent to download child pornography); United States v. Ulbricht, 858 F.3d 71, 117 n.53 (2d Cir. 2017) ("BitTorrent is a peer-to-peer file[-]sharing service that is used to transfer large files without disrupting Internet servers. It has both legitimate and illicit purposes."). According to Huckabee, appellant was not aware of the "sharing" component of BitTorrent.
Detective Goonie, a mobile computer forensic examiner associated with the ICACTF, testified that he participated in the November 10, 2015 search of the Dahlia Lane house for child pornography. At the scene, he conducted "a forensic preview" of the electronic devices seized by law enforcement officers from the home. During the "forensic preview," Goonie identified several electronic devices that contained "files of interest," "illegal images," or "evidence related to . . . [a] crime." And he determined that three devices, namely, the HP computer, the Toshiba laptop, and the external hard drive, contained child pornography. Goonie later conducted a "full analysis" on these three devices and noted that one of them had been "operate[d] in . . . private . . . or incognito mode," which somewhat affected his ability to "recover search terms" used to find and access child-pornography files.
Detective Goonie noted that law enforcement officers seized thirteen electronic devices on November 10, 2015. An additional external hard drive was brought to him "some days after."
In regard to the HP computer, Detective Goonie explained that he found "a number of files that[, based on his] training and experience," he identified as child pornography. In total, he found 283 images and 253 videos constituting child pornography. Goonie also found appellant's resume and the "peer-to-peer" file-sharing software BitComet on the computer. When asked, "Did you find any evidence on the [HP] computer that [appellant] had downloaded child pornography images or videos onto that computer?," Goonie responded, "Yes," explaining that he had found "a number of [child-pornography] files . . . on the [computer's] hard drive" and "a number of files with file names indicative or associated with child pornograph[y]" when he "look[ed] at the download history" of the peer-to-peer file-sharing software BitComet. Specifically, when looking at the files that had been recently downloaded to the HP computer through BitComet, Goonie noted that the names of the files, such as "LTV46PTHC2012, Best of 2010-2011 Compilation Volume 1," "New PTHC, June, 2014," "Loli Compilation 11-year," "Japan Lolita, PTHC," "Loli Pack," "Pedo, Russian, Two Little Lolitas, 11-year-old and 12-year-old," and "Kids, Teens, Women, Porno, Lolitas, Preteens, Real Kiddie," are consistent with child pornography. (Internal quotations omitted.) And in his experience, in order to download files such as these, a person would "have to search for the file" and specifically "click on the file name." In other words, a person would not be able to download a file without first seeing its title, which would then indicate to him that the file constitutes child pornography. When asked, "[W]ithout going into all the download[ed] [files on the HP computer], did you see . . . multiple files that had titles that were consistent with child pornography?," Goonie responded, "Yes." He further agreed that most of the files that he observed on the HP computer had titles relating to "incest and bestiality, e-mails, movies[,] and child pornography."
Detective Goonie explained that BitComet is a "sharing application," "no different" than BitTorrent, and it constitutes "a torrent [software] client" "used to download torrent files." See generally Scott Burger, Eradication of a Secondary Infringer's Safe Havens: The Need for a Multilateral Treaty Addressing Secondary Liability in Copyright Law, 18 MICH. ST. J. INT'L L. 143, 146 & n.13 (2009) (noting BitComet constitutes "a BitTorrent software client" and explaining "[a] person seeking a [file] . . . must have a BitTorrent software client installed on his computer and then must search for a torrent file on a website. The user downloads the torrent file and opens it using the BitTorrent client. The client then uses the tracker to locate [peers], which have either the entire . . . file or pieces of the . . . file. The client proceeds to download pieces of the . . . file from the [peers] until the entire [file] is downloaded. The client also simultaneously uploads pieces of the file already downloaded to other peers seeking that file." (internal quotations omitted)).
Officer Huckabee explained that "PTHC" is a "common search term[]" for child pornography and stands for "preteen hard core." (Internal quotations omitted). See Lubojasky, 2012 WL 5192919, at *16 n.14 ("PTHC" constitutes "[a] known child pornography search term[]" (internal quotations omitted)); Wenger, 292 S.W.3d at 201 ("PTHC" means "Pre-Teen Hard Core" (internal quotations omitted)).
This file was downloaded on October 1, 2015. Officer Huckabee and Detective Goonie explained that "Lolita" or "Loli" are "common search terms" for child pornography. (Internal quotations omitted). See Rogers v. State, 113 S.W.3d 452, 455 (Tex. App.—San Antonio 2003, no pet.) ("Lolita" is website terminology for child pornography).
This file was downloaded on October 1, 2015.
This file was downloaded on October 1, 2015. See Lubojasky, 2012 WL 5192919, at *16 n.14 ("PEDO" constitutes "[a] known child pornography search term[]" (internal quotations omitted)); Brackens v. State, 312 S.W.3d 831, 834 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd) ("'Pedo' . . . short for pedophile or pedophilia.").
See Lubojasky, 2012 WL 5192919, at *16 n.14 ("[K]iddie" constitutes "[a] known child pornography search term[]" (internal quotations omitted)).
During his testimony, Detective Goonie listed numerous other file names that were consistent with child pornography and noted that child-pornography files had also been downloaded to the HP computer on October 2, 4, 5, 6, 16, and 31. And Goonie stated that numerous files, with titles "indicative . . . of child pornography," had been "accessed" or "opened," using Microsoft Internet Explorer, within the three weeks prior to law enforcement officers' search of the Dahlia Lane house.
Moreover, Detective Goonie noted that there is evidence that appellant had deleted or attempted to delete certain images and videos constituting child pornography from the HP computer. However, there are also "files of child pornography that had not been deleted or attempted to be deleted." Specifically, there are forty-six files and three videos constituting child pornography that remain in "allocated space." Goonie further described in significant detail, and the jury viewed, several child-pornography videos found on the HP computer. When asked if there was "definite[ly] child porn[ography] on the [HP] computer," Goonie responded, "Yes."
For instance, Detective Goonie explained that 241 of the files that he found constituting child pornography on the HP computer are in "free space." See Wise v. State, 364 S.W.3d 900, 902 n.1 (Tex. Crim. App. 2012) ("When a file is deleted by a user, it is not completely wiped from the computer's hard drive. It is, however, inaccessible to an ordinary user. . . . The image or file still exists in the free space of the computer's hard drive, where it will remain until the file[] [is] written over." (internal quotations omitted)).
Detective Goonie defined "allocated space" as "space that is currently being used by [a computer's] operating system." See United States v. Kim, 103 F. Supp. 3d 32, 40 (D.D.C. 2015) ("Allocated space, in general, means space in your hard drive where . . . files are living, files that you see on your desktop . . . . Unallocated space refers to space that's not currently being used . . . . And when you delete a file, it goes into unallocated space. . . ." (first and third alterations in original) (internal quotations omitted)); United States v. Beckham, Nos. H-05-484, H-08-3426, 2009 WL 2615817, at *6 (S.D. Tex. Aug. 24, 2009) (noting child pornography found "in [both] the unallocated space of the computer" and "the allocated space of the computer, which is the saved portion of the computer").
The child-pornography videos that Detective Goonie described, and the jury viewed during his testimony, are the same videos that Officer Huckabee had previously described to the jury.
In regard to the Toshiba laptop, Detective Goonie found 3,494 images and two videos constituting child pornography on the device. He also found appellant's resume, "an athlete contract," and other documents containing appellant's name and the "peer-to-peer" file-sharing software BitComet. Although Goonie noted that there is evidence that appellant "had deleted or attempted to delete images and videos [constituting] child pornography" from the Toshiba laptop, he also found "files of child pornography that had not been deleted or attempted to be deleted." Specifically, "[o]n the laptop, there [are] 759 files" and "two videos" constituting child pornography that remain in "allocated space" on the device. Goonie also found installed on the Toshiba laptop, an "anti-forensic tool[]," "CCleaner," which could be used to "purge" an electronic device's files, "internet history," or "search history" or to "overwrite . . . deleted files" on a particular electronic device.
Detective Goonie noted that files named "LSGmodels.com-Tammy" and "Vicki03.1," which are indicative of child pornography, had been downloaded onto the Toshiba laptop through BitComet. Officer Huckabee testified that "Vicki" is "a series of a child" and a "common search term[]" for child pornography. (Internal quotations omitted.) See Hicks v. State, Nos. 07-12-00256-CR to 07-12-00276-CR, 2013 WL 4711223, at *2 (Tex. App.—Amarillo August 28, 2013 no pet.) (mem. op., not designated for publication) (noting "the 'Vicky' series . . . [is a] series [that is] readily recognized by those who investigate child pornography cases"). And according to Goonie, "LSGmodels.com-Tammy" "is a series of photographs . . . produced in . . . European countries," which contain "young children in various stages of being nude."
For instance, Detective Goonie testified that 416 files constituting child pornography were recovered from the Toshiba laptop's "free space." See Wise, 364 S.W.3d at 902 n.1.
See Kim, 103 F. Supp. 3d at 40; Beckham, 2009 WL 2615817, at *6.
In regard to the external hard drive, Detective Goonie found two videos constituting child pornography. He also found appellant's "2014 Federal tax return" and resume. Goonie explained that, at one time, the external hard drive had been connected to the HP computer and two child-pornography files had actually been transferred from the HP computer to the external hard drive.
Based on his analysis of the electronic devices seized from the Dahlia Lane house, Detective Goonie opined that whomever had been using the HP computer, the Toshiba laptop, and the external hard drive, had been "seeking out child pornography." And when asked whether it was "common" for "an[] individual to accidentally download child porn[ography]," Goonie explained: "It's very hard to find child porn[ography] files. You have to actively go out there and find [them]. . . . I've done examinations on a number of devices where there [has been] a lot of adult porn[ography], but you don't see child pornographic images unless there's a general interest in [them]."
Michie, appellant's roommate, testified that he moved into the Dahlia Lane house in October 2015 and, while living with appellant, he did not use the HP computer, did not own an external hard drive, and did not download any child pornography.
In his interview with Officer Huckabee, which the trial court admitted into evidence, appellant stated that he lived at the Dahlia Lane house with his minor daughter and a roommate, Michie. In regard to the electronic devices in the home, he stated that he owned and used the HP computer located in the main living area and he owned the purportedly "broke[n]" Toshiba laptop located in his bedroom, i.e., the master bedroom. According to appellant, only himself or Michie would have had access to and used the HP computer in the months prior to law enforcement officers' search of the Dahlia Lane house. And he noted that he had never seen Michie download any pornography onto the HP computer.
Appellant noted that his resume was on the HP computer.
Appellant further stated that he was familiar with BitTorrent and knows how it "work[s]." He had, in the past, "used" BitTorrent, which was installed on the HP computer. In fact, he had used it on the night prior to law enforcement officers' search of the Dahlia Lane house. However, appellant noted that he did not fully understand the sharing component of BitTorrent.
In regard to whether he had in fact downloaded child pornography, appellant, at times during his interview, stated that he had "never downloaded child porn[ography]." However, he did admit to generally downloading pornography, including "mega pack[s]" and "big movie pack[s]," which contained "everything." (Emphasis added.) According to appellant, it was "possible" that by downloading general pornography in "mega pack[s]" or "movie pack[s]," he may have "picked up [some] child pornography." And he did admit to seeing certain child-pornography terms, such as "LOL" and "PTHC," while searching for pornography, and he knew the meaning of these terms.
Further, appellant, during his interview, stated that if he had, in the past, downloaded a general pornography "mega pack" or "movie pack" and determined that it contained child-pornography files, he deleted those files. However, he also stated: "Yeah, I've downloaded [pornographic] movies; yes, I've downloaded movie packs; yes, I've seen certain things that I have deleted." (Emphasis added.) Appellant further admitted to "open[ing]" files constituting child pornography and "look[ing] at" them. And he acknowledged that he had searched for "teen porn," downloaded pornography involving "teens" and containing "young[er] girls," and "looked at" such pornography. According to appellant, although he does not like child pornography, he has downloaded it repeatedly and did not think about what would happen if he were to be caught.
Standard of Review
We review the legal sufficiency of the evidence by considering all of the evidence in the light most favorable to the jury's verdict to determine whether any "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89 (1979); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Our role is that of a due process safeguard, ensuring only the rationality of the trier of fact's finding of the essential elements of the offense beyond a reasonable doubt. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We give deference to the responsibility of the fact finder to fairly resolve conflicts in testimony, weigh evidence, and draw reasonable inferences from the facts. Williams, 235 S.W.3d at 750. However, our duty requires us to "ensure that the evidence presented actually supports a conclusion that the defendant committed" the criminal offense of which he is accused. Id.
We note that in reviewing the legal sufficiency of the evidence, a court must consider both direct and circumstantial evidence, as well as any reasonable inferences that may be drawn from the evidence. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); see also Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012) (evidence-sufficiency standard of review same for both direct and circumstantial evidence). Circumstantial evidence is just as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Clayton, 235 S.W.3d at 778; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). For evidence to be sufficient, the State need not disprove all reasonable alternative hypotheses that are inconsistent with a defendant's guilt. See Wise, 364 S.W.3d at 903; Cantu v. State, 395 S.W.3d 202, 207-08 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd). Rather, a court considers only whether 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 jury's verdict. Wise, 364 S.W.3d at 903; Hooper, 214 S.W.3d at 13.
Sufficiency of Evidence
In his sole issue, appellant argues that the evidence is legally insufficient to support his convictions because the State did not prove that he "intentionally and knowingly possessed child pornography." He asserts that he "was not in exclusive possession of the place where" the HP computer, Toshiba laptop, and external hard drive "were found"; "[a]t least one of the [electronic devices] was not password-protected"; "anyone in [his] house could have accessed and downloaded [the child-pornography] files"; the State did not rebut his "claim that he had deleted [any child pornography] once he became aware that it depicted children engaging in sexual activity"; and the evidence "d[id] not show a link between" him and child pornography or that he had "downloaded" child pornography, "stored it," or "deliberately searched" for it.
A person commits the offense of possession of child pornography if he knowingly or intentionally possesses visual material that visually depicts a child, younger than eighteen years of age at the time the image of the child was made, who is engaging in sexual conduct, and the person knows that the material depicts the child in this manner. TEX. PENAL CODE ANN. § 43.26(a) (Vernon 2017); Wise, 364 S.W.3d at 903; Krause v. State, 243 S.W.3d 95, 110 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd). 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." TEX. PENAL CODE ANN. § 6.03(a) (Vernon 2011). A person acts "knowingly" or with knowledge of the nature of his conduct or circumstances "when he is aware of the nature of his conduct or that the circumstances exist." Id. § 6.03(b).
"Possession" means "actual care, custody, control, or management." Id. § 1.07(a)(39) (Vernon Supp. 2016) (internal quotations omitted). A defendant commits a possession offense only if he voluntarily possesses the contraband. Id. § 6.01(a) (Vernon 2011). Possession is voluntary "if the possessor knowingly obtains or receives the [contraband] possessed or is aware of his control of the [contraband] for a sufficient time to permit him to terminate his control." Id. § 6.01(b); Williams v. State, 313 S.W.3d 393, 397 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd).
When contraband is not found on a person or is not in a location that is under the exclusive control of a single person, mere presence at the location where the contraband is found is insufficient by itself to establish actual care, custody, or control of the contraband. See Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006). "However, presence or proximity, when combined with other evidence, either direct or circumstantial . . . , may well be sufficient to establish [possession] beyond a reasonable doubt." Id. Accordingly, a fact finder may infer that a defendant intentionally or knowingly possessed contraband not in his exclusive possession if there are sufficient independent facts and circumstances justifying such an inference. Tate v. State, 500 S.W.3d 410, 413-14 (Tex. Crim. App. 2016). In other words, evidence that links the defendant to the contraband suffices for proof that he possessed it knowingly. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995); Wilson v. State, 419 S.W.3d 582, 587-88 (Tex. App.—San Antonio 2013, no pet.). It is not the number of links that is important, but rather the logical force the links have in establishing the elements of the offense. Evans, 202 S.W.3d at 162.
In Wise, the Texas Court of Criminal Appeals noted the "peculiarities of determining knowing or intentional possession of computer pornography" and concluded that "each case must be analyzed on its own facts." 364 S.W.3d at 904-05. Thus, the court held that in computer-pornography cases, "like all criminal cases, a court must assess whether the inferences necessary to establish guilt are reasonable based upon the cumulative force of all the evidence considered in the light most favorable to the verdict." Id. at 905.
Sufficient evidence to support a jury's determination that a defendant had knowledge of child pornography on his electronic devices may include evidence: (1) the child pornography was found in different computer files, showing that the images or videos had been copied or moved; (2) the child pornography was found on an external hard drive or a removable storage device, which would indicate that the images or videos were deliberately saved on the external device; (3) the child-pornography stored on the computer and the external hard drive were stored in similarly named folders; (4) the names of the folders containing child pornography necessarily were assigned by the person saving the files; or (5) numerous images or videos of child pornography were recovered from the defendant's electronic devices. See Ballard v. State, No. 01-15-00275-CR, --- S.W.3d ---, 2017 WL 3140033, at *4 (Tex. App.—Houston [1st Dist.] July 25, 2017, no pet. h.); Krause, 243 S.W.3d at 111-12; see also Savage v. State, Nos. 05-06-00174-CR, 05-06-00175-CR, 2008 WL 726229, at *5 (Tex. App.—Dallas Mar. 19, 2008, pet. ref'd) (not designated for publication).
Here, Officer Huckabee testified that beginning on October 12, 2015, he was able to download, "on 11 different occasions," electronic files containing child pornography from the IP address located at the Dahlia Lane house. In total, he downloaded "68 complete [child-pornography] files" and "54 incomplete [child-pornography] files," which consisted of "either a digital video or image . . . depict[ing] a child engaging in lewd exhibition of [his or her] genitals, anus, engaging in masturbation[,] or engaging in sexual acts."
On November 10, 2015, as Officer Huckabee and other members of the ICACTF searched the Dahlia Lane house for child pornography, he learned that appellant, his minor daughter, and a roommate, Michie, lived in the house. Of the thirteen electronic devices seized during the search, officers found on the HP computer from the home's main living area, the Toshiba laptop from appellant's bedroom closet, and the external hard drive from appellant's bedroom, child pornography. See Bell v. State, Nos. 05-12-00151-CR, 05-12-00152-CR, 2013 WL 6047564, at *2 (Tex. App.—Dallas Nov. 14, 2013, no pet.) (mem. op., not designated for publication) (evidence sufficient to support defendant knowingly possessed child pornography where laptop containing child-pornography photographs seized from defendant's room); Zavadil v. State, No. 13-12-00229-CR, 2013 WL 3326030, at *2-3 (Tex. App.—Corpus Christi June 27, 2013, no pet.) (mem. op., not designated for publication) (circumstantial evidence sufficient to show defendant knowingly or intentionally promoted or possessed child pornography where images found in "an area [of defendant's home] that [he had] reserved for himself"); Wilson, 419 S.W.3d at 590 (evidence sufficient to support defendant intentionally and knowingly possessed child pornography where he slept in room where computer containing child pornography located). "[A] forensic preview" conducted at the scene revealed that files on the HP computer, the Toshiba laptop, and the external hard drive "contained images of children engaged in sexual acts and sexual conduct." Specifically, Huckabee viewed three videos that constituted child pornography, and he described them in significant detail at trial.
The videos were titled "PTHCBOYLOVEBLUTO-2MANBOY2MPG," "PTHCWEBCAM9TO10YEARSOLD-10YEARSOLD . . . [KARIN]FROMESTONIA05.AVI," and "2010PTHCPENETRATIONWMV." See Lubojasky, 2012 WL 5192919, at *16 n.14 ("PTHC" constitutes "[a] known child pornography search term[]" (internal quotations omitted)); Wenger, 292 S.W.3d at 201 ("PTHC" means "Pre-Teen Hard Core" (internal quotations omitted)).
Officer Huckabee further testified that when he interviewed appellant, appellant admitted to using BitTorrent, a peer-to-peer file-sharing network that can be used to obtain child pornography. See United States v. Knapp, No. 16-3559, 2017 WL 2533390, at *1 (8th Cir. June 12, 2017) (defendant used BitTorrent to download child pornography); see also United States v. Ulbricht, 858 F.3d 71, 117 n.53 (2d Cir. 2017) ("BitTorrent is a peer-to-peer file[-]sharing service that is used to transfer large files without disrupting Internet servers. It has both legitimate and illicit purposes."); Lubojasky v. State, No. 03-10-00780-CR, 2012 WL 5192919, at *16 n.14 (Tex. App.—Austin Oct. 19, 2012, pet. ref'd) (mem. op., not designated for publication) (peer-to-peer file-sharing software "often used to download images and videos of child pornography"). Appellant also admitted to "downloading child pornography," stating that he "would download [child pornography files] and then delete them." See Assousa v. State, No. 05-08-00007-CR, 2009 WL 1416759, at *4 (Tex. App.—Dallas May 21, 2009, pet. ref'd) (not designated for publication) ("Logically, one cannot destroy what one does not possess and control. Indeed, the ability to destroy is definitive evidence of control." (internal quotations omitted)). Huckabee noted that it was not unusual for a person to "download child pornography intentionally or knowingly" and then "delete" the files later because of "[s]hame and embarrassment" or because the files "didn't meet [his] sexual gratification." Huckabee, however, as a member of the ICACTF, had "never seen" a situation where a person had "accidentally download[ed] child pornography." And based on his conversations with appellant, he opined that appellant had "purposefully downloaded . . . child pornography."
Detective Goonie testified that he conducted, at the scene, "a forensic preview" of the electronic devices seized from the Dahlia Lane house and he determined that three devices, namely, the HP computer, the Toshiba laptop, and the external hard drive, contained child pornography. Goonie later conducted a "full analysis" on these three devices, which also revealed that they contained child pornography. See Ballard, 2017 WL 3140033, at *5 ("[T]he fact that hundreds of files of child pornography were recovered from [defendant]'s computer is . . . circumstantial evidence that he knowingly possessed child pornography."); Savage, 2008 WL 726229, at *7 ("[N]umerous images of child pornography were recovered from [defendant]'s computer."); Krause, 243 S.W.3d at 111-12 (evidence sufficient where defendant owned "CD's, computers, and hard drives that stored images of children engaged in sexual conduct").
In regard to the HP computer, Detective Goonie found 283 images and 253 videos constituting child pornography, appellant's resume, and the "peer-to-peer" file-sharing software BitComet. See Ballard, 2017 WL 3140033, at *5 (evidence sufficient to support defendant knowingly possessed child pornography where child-pornography videos found on computer alongside defendant's work documents); Krause, 243 S.W.3d at 111-12 (evidence sufficient where child pornography found on electronic device alongside defendant's personal documents); see also Bogany v. State, Nos. 14-10-00138-CR to 14-10-00146-CR, 2011 WL 704359, at *4-5 (Tex. App.—Houston [14th Dist.] Mar. 1, 2011, pet. ref'd) (mem. op., not designated for publication) (noting size of child-pornography collection on defendant's computer "large enough to be obvious to the owner of the computer"). According to Goonie, BitComet is a "[file-]sharing application," "no different" than BitTorrent, and it constitutes "a torrent [software] client" "used to download torrent files." See Knapp, 2017 WL 2533390, at *1 (defendant used BitTorrent to download child pornography); see also Ulbricht, 858 F.3d at 117 n.53 ("BitTorrent is a peer-to-peer file[-]sharing service that . . . has both legitimate and illicit purposes."); Lubojasky, 2012 WL 5192919, at *16 n.14 (peer-to-peer file-sharing software "often used to download images and videos of child pornography").
Further, when asked, "Did you find any evidence on the [HP] computer that [appellant] had downloaded child pornography images or videos on th[e] computer?," Detective Goonie responded, "Yes," explaining that he had found "a number of [child-pornography] files . . . on the [HP computer's] hard drive" and "a number of files with file names indicative or associated with child pornograph[y]" when he "look[ed] at the download history" of the peer-to-peer file-sharing software BitComet. See Ballard, 2017 WL 3140033, at *5 ("[T]he fact that hundreds of files of child pornography were recovered from [defendant]'s computer is . . . circumstantial evidence that he knowingly possessed child pornography."); Savage, 2008 WL 726229, at *7 ("[N]umerous images of child pornography were recovered from [defendant]'s computer."); Krause, 243 S.W.3d at 111-12 (evidence sufficient where defendant owned "CD's, computers, and hard drives that stored images of children engaged in sexual conduct"); Zaratti v. State, No. 01-04-01019-CR, 2006 WL 2506899, at *6 (Tex. App.—Houston [1st Dist.] Aug. 31, 2006, pet. ref'd) (mem. op., not designated for publication) (evidence sufficient where computer expert testified he located several child-pornography files in peer-to-peer file-sharing database). Specifically, when looking at the files that had been recently downloaded through BitComet onto the HP computer, Goonie noted that the names of the files, such as "LTV46PTHC2012, Best of 2010-2011 Compilation Volume 1," "New PTHC, June, 2014," "Loli Compilation 11-year," "Japan Lolita, PTHC," "Loli Pack," "Pedo, Russian, Two Little Lolitas, 11-year-old and 12-year-old," and "Kids, Teens, Women, Porno, Lolitas, Preteens, Real Kiddie," are consistent with child pornography. (Internal quotations omitted.) And in his experience, in order to download files such as these, a person would "have to search for the file" and specifically "click on the file name." In other words, a person would not be able to download a file without first seeing that its title was indicative of child pornography. By way of example, Goonie explained that it would be "reasonable to assume . . . that a user . . . [would have] see[n] [a] title [indicative of child pornography, such as] 'PTHC2012[,]'" before he would have downloaded a file. See Zaratti, 2006 WL 2506899, at *6 (evidence sufficient to show defendant knowingly possessed child pornography where computer expert testified "numerous files" with titles indicative of child pornography found on defendant's computer and "title of the [file] would have been displayed before [defendant] decided he wanted to download it"). And when asked, "[W]ithout going into all the download[ed] [files on the HP computer], did you see . . . multiple files that had titles that were consistent with child pornography?" Goonie responded, "Yes." Goonie also explained that most of the files on the HP computer had titles relating to "incest and bestiality, e-mails, movies[,] and child pornography."
As Officer Huckabee explained, "PTHC" is a "common search term[]" for child pornography and stands for "preteen hard core." (Internal quotations omitted). See Lubojasky, 2012 WL 5192919, at *16 n.14 ("PTHC" constitutes "[a] known child pornography search term[]" (internal quotations omitted)); Wenger, 292 S.W.3d at 201 ("PTHC" means "Pre-Teen Hard Core" (internal quotations omitted)).
Officer Huckabee and Detective Goonie explained that "Lolita" or "Loli" are "common search terms" for child pornography. (Internal quotations omitted). See Rogers, 113 S.W.3d at 455 ("Lolita" is website terminology for child pornography).
See Lubojasky, 2012 WL 5192919, at *16 n.14 ("PEDO" constitutes "[a] known child pornography search term[]" (internal quotations omitted)); Brackens, 312 S.W.3d at 834 ("'Pedo' . . . short for pedophile or pedophilia.").
See Lubojasky, 2012 WL 5192919, at *16 n.14 ("[K]iddie" constitutes "[a] known child pornography search term[]" (internal quotations omitted)).
During his testimony, Detective Goonie listed the names of numerous other files that were recently downloaded and whose names were consistent with child pornography. Goonie further stated that numerous files, with titles "indicative . . . of child pornography," had been "accessed" or "opened" using Microsoft Internet Explorer within the three weeks prior to law enforcement officers' search of the Dahlia Lane house.
Moreover, Detective Goonie noted that although there is evidence that appellant had deleted or attempted to delete images and videos containing child pornography from the HP computer, there are also "files of child pornography that had not been deleted or attempted to be deleted." See Assousa, 2009 WL 1416759, at *4 ("Logically, one cannot destroy what one does not possess and control. Indeed, the ability to destroy is definitive evidence of control." (internal quotations omitted)). Specifically, there are forty-six files and at least three videos constituting child pornography that remain in "allocated space" on the HP computer. Goonie further described in significant detail, and the jury viewed, several child-pornography videos found on the HP computer. When asked if there was "definite[ly] child porn[ography] on the [HP] computer," Goonie responded, "Yes." See Ballard, 2017 WL 3140033, at *5; Savage, 2008 WL 726229, at *7; Krause, 243 S.W.3d at 111-12.
For instance, Detective Goonie explained that 241 of the files that he found containing child pornography on the HP computer are in "free space." See Wise, 364 S.W.3d at 902 n.1, 907-08 (defining "free space" and holding evidence sufficient to support defendant "intended to possess the pornographic images of . . . children that were in the free space on his computer" (internal quotations omitted)).
See Kim, 103 F. Supp. 3d at 40; Beckham, 2009 WL 2615817, at *6.
The child-pornography videos described by Detective Goonie, and viewed by the jury during his testimony, are the same videos that Officer Huckabee had described to the jury.
In regard to the Toshiba laptop, Detective Goonie found 3,494 images and two videos constituting child pornography on the device. See Ballard, 2017 WL 3140033, at *5 ("[T]he fact that hundreds of files of child pornography were recovered from [defendant]'s computer is . . . circumstantial evidence that he knowingly possessed child pornography."); Savage, 2008 WL 726229, at *7 ("[N]umerous images of child pornography were recovered from [defendant]'s computer."); Krause, 243 S.W.3d at 111-12 (evidence sufficient where defendant owned "CD's, computers, and hard drives that stored images of children engaged in sexual conduct"); see also Bogany, 2011 WL 704359, at *4-5 (noting size of child-pornography collection on defendant's computer "large enough to be obvious to the owner of the computer"). He also found appellant's resume, "an athlete contract," and other documents containing appellant's name and the "peer-to-peer" file-sharing software, BitComet. See Ballard, 2017 WL 3140033, at *5 (evidence sufficient to support defendant knowingly possessed child pornography where child-pornography videos found on computer alongside defendant's work documents); Krause, 243 S.W.3d at 111-12 (evidence sufficient where child pornography found on electronic device alongside defendant's personal documents); see also Knapp, 2017 WL 2533390, at *1 (defendant used BitTorrent to download child pornography); Ulbricht, 858 F.3d at 117 n.53 ("BitTorrent is a peer-to-peer file[-]sharing service that . . . has both legitimate and illicit purposes."); Lubojasky, 2012 WL 5192919, at *16 n.14 (peer-to-peer file-sharing software "often used to download images and videos of child pornography").
Detective Goonie noted that files named "LSGmodels.com-Tammy" and "Vicki03.1," which are indicative of child pornography, had been downloaded onto the Toshiba laptop through BitComet. Officer Huckabee testified that "Vicki" is "a series of a child" and a "common search term[]" for child pornography. (Internal quotations omitted.) See Hicks, 2013 WL 4711223, at *2 (noting "the 'Vicky' series . . . [is a] series [that is] readily recognized by those who investigate child pornography cases"). According to Goonie, "LSGmodels.com-Tammy" "is a series of photographs . . . produced in . . . European countries," which contain "young children in various stages of being nude."
Although Detective Goonie noted that there is evidence that appellant "had deleted or attempted to delete images and videos [constituting] child pornography" from the Toshiba laptop, he also found "files of child pornography that had not been deleted or attempted to be deleted." See Assousa, 2009 WL 1416759, at *4 ("Logically, one cannot destroy what one does not possess and control. Indeed, the ability to destroy is definitive evidence of control." (internal quotations omitted)). Specifically, "[o]n the laptop, there [are] 759 files" and "two videos" constituting child pornography that remained in "allocated space." See Bogany, 2011 WL 704359, at *4-5 (noting size of child-pornography collection on defendant's computer "large enough to be obvious to the owner of the computer"). Goonie also found installed on the Toshiba laptop, an "anti-forensic tool[]," "CCleaner," which could be used to "purge" an electronic device's files, "internet history," and "search history" or to "overwrite . . . deleted files" on a particular electronic device. See Wilson, 419 S.W.3d at 590 (evidence sufficient to show defendant intentionally and knowingly possessed child pornography where he "owned a book about how to 'clean' his computer"); Fridell v. State, Nos. 09-04-200-CR, 09-04-201-CR, 2004 WL 2955227, at *2-3 (Tex. App.—Beaumont Dec. 22, 2004, pet. ref'd) (mem. op., not designated for publication) (evidence sufficient to support defendant knowingly or intentionally possessed child pornography where he "used [a] washer program on his computer").
For instance, Detective Goonie testified that 416 files constituting child pornography were recovered from the Toshiba laptop's "free space." See Wise, 364 S.W.3d at 902 n.1, 907-08 (defining "free space" and holding evidence sufficient to support defendant "intended to possess the pornographic images of . . . children that were in the free space on his computer" (internal quotations omitted)).
See Kim, 103 F. Supp. 3d at 40; Beckham, 2009 WL 2615817, at *6.
In regard to the external hard drive, Detective Goonie found two videos constituting child pornography. He also found appellant's "2014 Federal tax return" and resume. See Ballard, 2017 WL 3140033, at *5 (evidence sufficient to support defendant knowingly possessed child pornography where child-pornography videos found on computer alongside defendant's work documents); Krause, 243 S.W.3d at 111-12 (evidence sufficient where child pornography found on electronic device alongside defendant's personal documents). And Goonie explained that the external hard drive had been connected to the HP computer at one point, allowing two child-pornography files to be transferred from the HP computer to the external hard drive. See Ballard, 2017 WL 3140033, at *5 ("[E]vidence supports an inference that [defendant] possessed child pornography knowingly because it . . . [was] saved deliberately to the[] external [hard] drive[]."); Zavadil, 2013 WL 3326030, at *2-3 (circumstantial evidence sufficient to show defendant knowingly or intentionally promoted or possessed child pornography where "identical versions of the same images of children" found "on both compact disks and a hard drive"); Savage, 2008 WL 726229, at *5-7 (evidence sufficient to support defendant intentionally or knowingly possessed child pornography where "images of child pornography were found in different computer files, showing the images were copied or moved"); Krause, 243 S.W.3d at 111-12 (child pornography found on external hard drive, indicating images "deliberately saved to the[] external device[]").
Detective Goonie further opined that whomever had been using the HP computer, Toshiba laptop, and the external hard drive had been "seeking out child pornography," explaining that it was not "common" for a person to "accidentally download" child-pornography files. See Zaratti, 2006 WL 2506899, at *6 (computer expert testified user "would '[p]robably not' click on, or download, files with names like those found on [defendant]'s computer if he did not want to download child pornography" (first alteration in original)).
In his interview with Officer Huckabee, appellant stated that he lived at the Dahlia Lane house and he owned and used the HP computer located in the main living area and the Toshiba laptop located in the master bedroom, i.e., his bedroom. See Ballard, 2017 WL 3140033, at *5 ("[T]he fact that hundreds of files of child pornography were recovered from [defendant]'s computer is . . . circumstantial evidence that he knowingly possessed child pornography."); Savage, 2008 WL 726229, at *7 ("[N]umerous images of child pornography were recovered from [defendant]'s computer."). According to appellant, only he and Michie, his roommate, would have had access to and used the HP computer in the months prior to law enforcement officers' search of the Dahlia Lane house. Appellant, however, had not seen Michie download pornography onto the HP computer, and Michie testified at trial that he had never used the HP computer and did not download any child pornography while living with appellant. See Ballard, 2017 WL 3140033, at *5 (evidence sufficient to support defendant knowingly possessed child pornography where defendant "primary user" of computer); Zavadil, 2013 WL 3326030, at *2-3 (circumstantial evidence sufficient to show defendant knowingly or intentionally promoted or possessed child pornography where other witnesses testified they did not "download[] the pornography onto the computers in [defendant]'s home"); Krause, 243 S.W.3d at 111-12 (evidence sufficient where other alleged user of electronic devices testified "he did not save any photographs to any of [defendant]'s computers or his external hard drive").
Appellant further stated in his interview that he was familiar with the computer program BitTorrent and knows how it "work[s]." He had, in the past, "used" BitTorrent, which was installed on the HP computer, including on the night prior to the search of the Dahlia Lane house. See Knapp, 2017 WL 2533390, at *1 (defendant used BitTorrent to download child pornography); Ulbricht, 858 F.3d at 117 n.53 ("BitTorrent is a peer-to-peer file[-]sharing service that . . . has both legitimate and illicit purposes."); Lubojasky, 2012 WL 5192919, at *16 n.14 (peer-to-peer file-sharing software "often used to download images and videos of child pornography").
Although appellant, during his interview with Officer Huckabee, at times denied that he had ever downloaded child pornography, he did admit to generally downloading pornography, including "mega pack[s]" and "big movie pack[s]," which contained "everything." (Emphasis added.) According to appellant, it was "possible" that by downloading pornography in "mega pack[s]" or "movie pack[s]," he had "picked up child pornography." See Wilson, 419 S.W.3d at 590 (evidence sufficient to support defendant intentionally and knowingly possessed child pornography where he, in his interview with law enforcement officers, claimed he "inadvertently viewed [child-pornography] images"); Zaratti, 2006 WL 2506899, at *5-6 (evidence sufficient to support defendant knowingly possessed child pornography even though he argued because "his computer contained considerably more files of legal adult pornography than unlawful child pornography, it was possible that he could have downloaded the child pornography unintentionally"). And he admitted to seeing certain child-pornography terms while searching for pornography, and he knew the meaning of these terms.
Further, appellant stated that if he downloaded a general pornography "mega pack" or "movie pack" and determined that it contained a file containing child pornography, he deleted it. However, he also stated: "Yeah, I've downloaded [pornographic] movies; yes, I've downloaded movie packs; yes, I've seen certain things that I have deleted." (Emphasis added.) See Assousa, 2009 WL 1416759, at *4 ("Logically, one cannot destroy what one does not possess and control. Indeed, the ability to destroy is definitive evidence of control." (internal quotations omitted)). And appellant admitted to "open[ing]" files containing child pornography and "look[ing] at" them. He further acknowledged that he had searched for "teen porn," downloaded pornography involving "teens" and containing "young[er] girls," and "looked at" such pornography. According to appellant, although he does not like child pornography, he has downloaded it repeatedly. See Wilson, 419 S.W.3d at 590 (evidence sufficient where defendant, during interview with law enforcement officers, stated he "inadvertently viewed [child-pornography] images and would quickly 'back out," "just clicked on [certain] images to 'verify' that they were of underage children," "viewed images he knew were underage children because he was 'curious,'" and "looked at [child-pornography] images").
Appellant argues that a person other than himself could have been responsible for downloading the child pornography found on the electronic devices seized from the Dahlia Lane house because he "was not in exclusive possession of the place" where the devices "were found," one of the devices was not "password-protected," and "anyone in [his] house could have accessed and downloaded [the child-pornography] files." However, as noted previously, the State need not disprove all reasonable alternative hypotheses that are inconsistent with appellant's guilt. See Wise, 364 S.W.3d at 903; Ballard, 2017 WL 3140033, at *4-5. And the jury reasonably could have rejected the alternative hypotheses raised by appellant to explain how child pornography was downloaded on the electronic devices that he owned in his home. See Wise, 364 S.W.3d 906-08; Ballard, 2017 WL 3140033, at *5; Wilson, 419 S.W.3d at 590-91; see also Bell, 2013 WL 6047564, at *2 ("[J]ury could have reasonably believed [that the other people in the home] were not responsible for placing the [child-pornography] images on [defendant]'s computer."). Further, although appellant, at times, in his interview with Officer Huckabee denied ever having downloaded child pornography, it was for the jury to determine his credibility and the weight to be given such evidence. See Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).
Viewing all of the evidence and inferences in the light most favorable to the jury's verdict, we conclude that the evidence is sufficient for a rational fact finder to have found beyond a reasonable doubt that appellant knowingly or intentionally had care, custody, control, or management of the child pornography found on the electronic devices seized from the Dahlia Lane house. See Wise, 364 S.W.3d at 906-08; Ballard, 2017 WL 3140033, at *3-5. Accordingly, we hold that the evidence is legally sufficient to support appellant's convictions.
We overrule appellant's sole issue.
Conclusion
We affirm the judgments of the trial court.
Terry Jennings
Justice Panel consists of Justices Jennings, Bland, and Brown. Do not publish. TEX. R. APP. P. 47.2(b).