Muhammed v. State

• Decision Date: 11 January 2011
• Docket Number: No. 14–09–00290–CR.,14–09–00290–CR.
• Citation: Muhammed v. State , 331 S.W.3d 187 (Tex. App. 2011)
• Parties: Sabina MUHAMMED, Appellantv.The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

331 S.W.3d 187

Sabina MUHAMMED, Appellant

v.The STATE of Texas, Appellee.

No. 14–09–00290–CR.

Court of Appeals of Texas, Houston (14th Dist.).

Jan. 11, 2011.

Winston E. Cochran, Jr., Houston, TX, for Appellant.

Michelle R. Townsend, Houston, TX, for the State.Panel consists of Justices ANDERSON, FROST, and BROWN.

OPINION

JOHN S. ANDERSON, Justice.

Appellant, Sabina Muhammed, appeals her conviction of the offense of breach of computer security. See Tex. Penal Code Ann. § 33.02 (West 2003). The trial court assessed appellant's punishment at 180 days' confinement in the Harris County Jail, probated for two years. On appeal, appellant brings four issues challenging her conviction. We affirm.

Factual and Procedural Background

Appellant and the complainant, Heber Saravia, an engineering student, both attended the University of Houston (“UH”). At the end of the spring 2004 semester, Saravia received an email in one of his UH accounts from an unknown Yahoo account, which contained his social security number. This was the beginning of a series of incidents involving Saravia's UH account. These included one incident in the fall of 2004, when Saravia discovered that someone had hacked into his UH account, changed his password, and had deleted all of his engineering work stored there. The incidents began to escalate in 2006 when Saravia started receiving emails inquiring about his personal life. One of these provided a hint as to who the sender might be: the email mentioned “their name started with an ‘S.’ ” Another incident involved Saravia receiving a notice from the UH College of Business indicating he had requested to change his major. Saravia testified this was not correct as he was “in the middle of [his] engineering degree” and was passing all of his classes.

In addition to incidents involving his UH account, Saravia testified he noticed appellant waiting for him outside his classrooms, observing him at the Metro bus stop, and following him around the UH campus. Saravia also testified that appellant sent him a “friend request” on Facebook. In addition, Saravia testified that transcripts of other UH students were mailed to his home address. During the spring of 2007, the UH Police Department notified Saravia that someone had been using his e-mail address to conduct fraudulent activities. Saravia testified he never granted appellant permission to access his UH account or any of the information contained therein.

David Canales, a UH alumnus, also testified at appellant's trial. Canales testified that he had encountered problems with his UH account similar to those experienced by Saravia. Canales also testified that he had witnessed appellant following him around the UH campus as well. After Canales reported to the UH Police Department that someone had hacked into his UH account and made changes, Officer Russell Lyman of the UH Police Department began investigating.

The UH information technology (“IT”) department provided Officer Lyman with IP addresses that were used to access UH students' information.¹ Most of these IP addresses were located at UH, however one was located at Lone Star College (“LSC”).² Officer Lyman then looked for a connection between the two schools. He discovered that appellant, a UH student, worked at LSC as a tutor and had access to the computers located on the LSC campus. Officer Lyman requested that the LSC police monitor appellant's computer use.

During trial, the State called Officer Pervaiz Parker, an LSC police officer, to the stand. Officer Parker testified that he knew appellant only worked at LSC on Saturdays. He then testified that on Saturday, February 24, 2007, he spotted appellant in the LSC computer lab. Officer Parker walked behind appellant while she was using one of the computers in the LSC computer lab. Officer Parker noticed that appellant was accessing the UH website. Officer Parker also saw the name “Vargas” on appellant's computer screen. Officer Parker testified that he had been notified that Vargas was one of the six names associated with UH accounts that had been improperly accessed.

At that point, Officer Parker contacted an information technician at the LSC IT department, Wesley Parker. Officer Parker asked Mr. Parker to remotely monitor appellant's computer. Mr. Parker proceeded to remotely access appellant's computer and determined she was on the UH website. Mr. Parker, and later his supervisor Celeste Burkards, captured images of the computer screens as appellant accessed various UH student accounts for approximately forty minutes. During this time period, appellant accessed Saravia's student account as well as the accounts of other UH students. After appellant finished browsing, she deleted her browsing history and cookies. The images of appellant's activities that had been captured by Mr. Parker and Ms. Burkards were printed, turned over to Officer Lyman, and admitted into evidence during appellant's trial.

During trial, appellant took the stand and insisted that mismanagement of the UH computer accounts was responsible for the breach of security on Saravia's UH account. Appellant maintained she did not know Saravia and had never noticed him on the UH campus. Appellant further testified that she was always either in class, at work, or at home studying, and therefore could not have been in the same places as Saravia. Appellant testified to this effect even though Saravia had not testified as to specific dates and times when he had seen appellant following him. When asked about the State's screen captures, appellant did not recall seeing any of the screen images and implied that the images had been fabricated as they appeared “copied and pasted.”

Following the close of the evidence, the jury found appellant guilty of the misdemeanor offense of breach of computer security. The trial court assessed appellant's punishment at confinement for 180 days in the Harris County Jail plus a fine, but placed appellant on community supervision for two years.

Appellant filed a motion for new trial. During the hearing, appellant called Uche Okafor to testify with regard to the authenticity of the State's screen shots. Mr. Okafor testified that he is the founder of Iseek4 Computer Consulting, an IT support company, which provides small businesses with an “IT platform.” Mr. Okafor also testified that his company deals with networking, database management, computer surveillance, software management, and other similar activities. He also testified that he had discovered discrepancies in the State's screen shots. For instance, Mr. Okafor noted that several of the State's exhibits simultaneously displayed the alleged hacking from appellant's remotely-accessed computer with the computer clock showing the date and time. Mr. Okafor opined that when an individual accesses a remotely-accessed computer, such as the one used by appellant, it is impossible for that person to “pull up the clock from the computer to show the time and date.” Mr. Okafor also insisted the UH system had “very good security policies” where it was “impossible ... that a student can access the [UH] e-mail account without being the actual student or knowing the user credentials.”

Appellant argued Mr. Okafor's testimony during the hearing constituted “new evidence.” However, the trial judge pointed out that appellant could have subpoenaed Mr. Okafor to testify at trial and, therefore, Mr. Okafor's testimony was not “newly-discovered evidence.” The trial court then denied appellant's motion for new trial. This appeal followed.

Discussion

Appellant raises four issues on appeal: (1) the evidence is insufficient to establish appellant knew she was acting without Saravia's consent when she accessed his UH computer account; (2) if section 33.02 of the Texas Penal Code does not require that appellant knew she lacked consent, the statute is unconstitutional under the overbreadth doctrine; (3) the trial court erred in “defining proof beyond a reasonable doubt as a decision based on ‘common sense;’ ” and (4) the trial court erred by denying the motion for new trial.

I. Is the evidence sufficient to support appellant's conviction?

In her first issue, appellant contends the evidence adduced at trial by the State was insufficient to support her conviction. We disagree.

A. The standard of review.

Even though appellant does not specify in her first issue whether she is challenging the legal or factual sufficiency of the evidence, appellant cites the Jackson v. Virginia standard of review and in her prayer appellant asks this court to reverse her conviction and order a judgment of acquittal. Accordingly, we construe this as a challenge to the legal sufficiency of the evidence. See Jackson v. Virginia, 443 U.S. 307, 311–12, 99 S.Ct. 2781, 2785, 61 L.Ed.2d 560 (1979) (appellant raised legal sufficiency claim); Flores v. State, 139 S.W.3d 61, 64 (Tex.App.-Texarkana 2004, pet. ref'd) (“If the evidence is legally insufficient, the appropriate remedy is to reverse the conviction and render a judgment of acquittal.”); Rischer v. State, 85 S.W.3d 839, 842–43 (Tex.App.-Waco 2002, no pet.) (court analyzed appellant's claim under legal sufficiency standard because appellant requested a reversal and acquittal even though he did not specify whether he was challenging a legal or factual sufficiency); Gutierrez v. State, 71 S.W.3d 372, 376 (Tex.App.-Amarillo 2001, pet. ref'd).

Making this distinction has recently become less significant because a majority of the judges of the Texas Court of Criminal Appeals has determined that “the Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.” Brooks v. State, 323 S.W.3d 893, 894 (Tex.Crim.App.2010) (plurality op.).³ Therefore, regardless of whether a criminal defendant challenges ...