Nasipak v. State
| Decision Date | 18 November 2022 |
| Docket Number | 03-21-00464-CR |
| Parties | Jose Antonio Nasipak, Appellant v. The State of Texas, Appellee |
| Court | Texas Court of Appeals |
Do Not Publish
FROM THE 453RD DISTRICT COURT OF HAYS COUNTY NO. CR-19-2739-E, THE HONORABLE SHERRI TIBBE, JUDGE PRESIDING
Before Justices Goodwin, Baker, and Kelly
Jose Antonio Nasipak was charged with thirty counts of possession with intent to promote child pornography. See Tex Penal Code § 43.26. Before trial, the State abandoned two of the counts. At the end of the guilt-innocence phase the jury found Nasipak guilty of all twenty-eight remaining counts. Nasipak elected to have the trial court assess his punishment, and the trial court sentenced him to twenty years' imprisonment for each count, divided the convictions into four groups with the convictions in each group being served concurrently, and ordered the punishments for the four groups to be served consecutively. See id. §§ 12.33, 43.26(g); Tex. Code Crim. Proc art. 42.08. In two issues on appeal, Nasipak contends that the trial court erred by admitting extraneous-offense evidence. We will affirm the trial court's judgments of conviction.
The National Center for Missing and Exploited Children (the "Center") received a tip from an internet-service provider that two known images of child pornography had been uploaded. Like all digital images, the two images had a unique identifying number called a hash value that could not be altered. After verifying that the flagged material contained child pornography, the Center identified the IP address, name, and email for the individual who allegedly uploaded the images, and the individual associated with the images was Nasipak. The Center forwarded the information to a task force with the Attorney General. After verifying that the images were child pornography, the task force sent the information to the Hays County Sheriffs Office for further investigation.
A Sheriffs Office detective obtained a search warrant to search Nasipak's home. When the search warrant was executed, the investigating officers seized Nasipak's cellphone. While the search warrant was being executed, Nasipak told some of the officers that he would like to talk to them. One of the officers drove Nasipak to the Sheriffs Office, and two detectives interviewed him. The interview was recorded and admitted into evidence at trial. During the interview Nasipak admitted that he started collecting and sharing child pornography two years before the interview and that he viewed the images and videos on his cellphone. Nasipak stated that the majority of his collected child pornography was stored on his account with Dropbox, which is an online file-storage service. Nasipak sorted the images and videos into folders named as follows: all, preteen 10, little little, young, and sexy. Nasipak told the officers that he "received child pornography from individuals" and "distributed it to" others by using two social-media applications.
Following the interview, the investigating officers searched Nasipak's cellphone and his Dropbox account and found child pornography in both. Nasipak was charged with possessing with intent to promote twenty-eight images or videos of child pornography that were in his Dropbox account. The indictment listed the unique hash value for each image or video.
During the trial, several law-enforcement officers from two law-enforcement agencies testified regarding information that they received from the Center and regarding their investigation in this case. In addition, the recording of Nasipak's interview was admitted into evidence and played for the jury. During a hearing held outside the presence of the jury, the State explained that it was going to go through the images and videos serving as the basis for the indictment but also explained that it wanted to introduce into evidence approximately 150 other images and several videos that were discovered on Nasipak's Dropbox account and on his cellphone. Although the State explained that it wanted to introduce these additional images and videos, it related that it would only publish three items: one redacted image and two videos, including one referred to as video record three. Nasipak objected and argued that the prejudicial value of the evidence outweighed any probative value and that he had not received proper notice, as requested, of the State's intent to introduce the images and videos. After considering the parties' arguments, the trial court overruled Nasipak's objections.
One of the investigating officers testified regarding the contents of Nasipak's cellphone and his Dropbox account and explained that some of the items were child pornography and that others were not technically child pornography but depicted children in sexualized manners. During the officer's testimony, images and portions of ten videos serving as the basis for the counts in the indictment were published for the jury. Next, the officer discussed how the investigating officers discovered other images and videos of child pornography on Nasipak's Dropbox account and cell phone and also discovered images and videos that did not contain child pornography but did depict children in sexualized manners. The officer explained that the images and videos are on exhibits that were admitted into evidence. During the officer's testimony, the State published a redacted image in which a penis penetrated a child and published two videos containing child pornography, including video record three. The officer described video record three as an aggressive sexual assault of "a young female" and described the other video as showing "an erect penis . . . sexually assaulting orally a four-year-old child."
Nasipak did not testify or call any witnesses. After considering the evidence presented, the jury found Nasipak guilty of all twenty-eight counts of possession with intent to promote child pornography. Following the punishment phase, the trial court rendered its judgments of convictions. Nasipak appeals the trial court's judgments of conviction.
On appeal, Nasipak challenges evidentiary rulings by the trial court. Appellate courts review a trial court's ruling regarding the admission or exclusion of evidence for an abuse of discretion. See Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). Under that standard, a trial court's ruling will only be deemed an abuse of discretion if it is so clearly wrong as to lie outside "the zone of reasonable disagreement," Lopez v. State, 86 S.W.3d 228, 230 (Tex. Crim. App. 2002), or is "arbitrary or unreasonable," State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). Moreover, the ruling will be upheld provided that the trial court's decision "is reasonably supported by the record and is correct under any theory of law applicable to the case." Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005). In addition, an appellate court reviews the trial court's ruling in light of the record before the court "at the time the ruling was made." Khoshayand v. State, 179 S.W.3d 779, 784 (Tex. App.-Dallas 2005, no pet.).
In his two issues on appeal, Nasipak contends that the trial court erred by overruling his Rule 403 and Rule 404 objections and admitting into evidence video record three, which he describes as "much worse than any other evidence admitted." See Tex. R. Evid. 403, 404. However during trial, Nasipak objected to the admission of all of the images and videos of child pornography that were not listed in the indictment, and the trial court ruled on the admissibility of all of that evidence together without making any specific ruling regarding video record three. In addressing Nasipak's issues, we will address the arguments as they pertain to the admission of all of the evidence but will address video record three separately where appropriate. Cf. Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012) ().
Regarding Rule 403, Nasipak contends in his first issue that the State did not need video record three and that the video had "little, if any, probative value" because the trial court allowed the State to introduce between 100 and 150 images and videos not listed in the indictment to show his intent to promote child pornography. Additionally, Nasipak argues that video record three was much worse than any of the images and videos listed in the indictment because it is a recording of a violent sexual assault of a young girl and could do "nothing but inflame the jury," and he points to a comment by the trial court stating that Nasipak had made a good argument regarding the prejudicial value of the video because "[i]t's just really bad" and "so horrific that it's just going to horrify" the jury. Similarly, Nasipak asserts that because the video depicting the violent sexual assault was played in an unredacted form, it had the potential to cause the jury to make its decision on an improper emotional basis. Relatedly Nasipak urges that video record three was different from the other videos and images shown to the jury and notes that the trial court commented that none of the other videos had the "exact kind" of content present on video record three. Accordingly, Nasipak asserts that the jury could have given additional weight to that video and been confused from the main issue. For these reasons, Nasipak contends that the trial court erred by denying his Rule 403 objection and that the admission harmed him by affecting his substantial rights.
Rule of Evidence 403 specifies that relevant evidence may be excluded "if its...
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