Owens v. State
| Decision Date | 18 August 2011 |
| Docket Number | NO. 02-10-00071-CR,NO. 02-10-00070-CR,02-10-00070-CR,02-10-00071-CR |
| Parties | MARK GREGORY OWENS APPELLANT v. THE STATE OF TEXAS STATE |
| Court | Texas Court of Appeals |
FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
In six points, Appellant Mark Gregory Owens appeals the trial court's judgments convicting him of possession of child pornography and aggravated sexual assault of a child. We affirm.
The State charged Owens with possession of child pornography and aggravated sexual assault of a child and sought to enhance punishment on both charges with prior felony convictions. The trial court consolidated the cases.
The evidence at trial reflected that Owens had moved in with his niece Megan and Megan's two-year-old child H.G. in October 2008, after his daughter Kristie moved to Florida. Kristie left her two-year-old child K.L. with Kristie's mother, and K.L. would stay with Owens on the weekends.
On October 31, 2008, Megan took H.G. trick-or-treating. At some point either that day or the next, she and Owens spoke about Halloween and about H.G.'s and K.L.'s costumes. Owens handed his cell phone to Megan to show her some photos of K.L. wearing a Cinderella costume. But Megan flipped too far through Owens's cell phone photos and saw a photo of "[a] little girl with her legs open" and a man wearing pink panties, with his penis on the little girl's vagina. She could not see the little girl's face, and she did not know if the photo was of her daughter or K.L. Megan testified that she was in shock and that she just closed the phone and gave it back to Owens, who was standing across from her and could not see what she had seen.
The next day, while Owens was bathing K.L., Megan picked up his phone from the coffee table in the living room and looked through his photos again to confirm what she had seen. She saw the original photo and two more like it, then woke her boyfriend, took H.G., and went to her mother's house. Megan told hermother and stepfather what she had seen, and they called the police. Megan's mother, Megan, and H.G. went to a park near Megan's house to meet the police. Megan's stepfather, George Green, went to Megan's house by himself because he worried that Owens might leave before the police could arrive.
George stalled Owens, chatting, until the police arrived. Corporal Rusty Arnold of the Parker County Sheriff's Office knocked on the door, told Owens that the police were there because of allegations that he was in possession of a phone containing child pornography, and asked Owens where his cell phone was. Owens first said that he had loaned his phone to his brother, who was in Dallas, but after the corporal told him that they would detain him until a search warrant could be obtained for the phone, Owens said, Corporal Arnold testified that he explained to Owens that he and another officer would be escorting him inside the residence, and the corporal explained at trial that they did this to preserve the evidence by preventing Owens from deleting any photos from the phone.
Owens went into the kitchen, removed a phone from a drawer, and gave it to the officers. Owens told the officers that they could look through the phone, although he later refused to sign a consent-to-search form for it, and an officer took the phone outside. Corporal Arnold said that this phone did not match the description of the phone that Megan had given him. Megan and her mother were waiting outside when a deputy emerged from the house with a cell phone.Megan told the deputy that the phone he held was not Owens's phone with the photos but rather one that she kept in the kitchen junk drawer because it did not work.
George testified that Owens's phone was in plain sight in the living room, resting on the end table next to where George sat and that while Owens was in the kitchen with the deputy, Owens turned his body so that the deputy could not see his face and motioned to George to take the phone, mouthing, "My phone . . . take my phone and leave." George said, "[I]t was clear that he wanted me to take the phone." Then Owens asked if George could leave, and the deputy said, "Yes." George grabbed the phone from the end table as if it was his and walked outside.
Once outside, George handed Owens's phone to Corporal Arnold, who was talking with Megan. The jury heard an audio recording taken immediately after George left the house with the phone, in which George told Corporal Arnold that Owens had motioned for him to take the phone and to break it. At some point, George or Megan told the police that the phone George gave to Corporal Arnold was the one containing the photos.
When Investigator Sammy Slatten arrived, Corporal Arnold released the phones to him and told him how he had obtained them. Investigator Slatten took both phones back inside the house and asked Owens if the phone that he had given to the police was his phone. Owens said, "Yes." When InvestigatorSlatten next asked whether the other phone—the one George had given to the police—was his, Owens said, "No."
Investigator Slatten testified that Megan described to him the photos she had seen, which phone they were on, and whose phone it was. Investigator Slatten asked Megan "to go to the photograph that she had observed so that [he] could physically see the photograph that she had observed," and she did so.
Outside the jury's presence, Investigator Slatten testified that when he made the decision to look at the phone, it was his understanding that Owens was saying, "That phone is not mine," and that Owens had told George to take the phone and to break it. Investigator Slatten said that he had some doubt—albeit, not much—as to whether the phone in question was actually Owens's. Owens moved to suppress the photos found during the search of his phone, and the trial court denied this motion.
Before the jury, Investigator Slatten admitted that he did not have a search warrant or Owens's consent when he viewed the images on the phone, and he admitted that nothing prevented him from getting a search warrant before he looked at the phone's contents. He secured a search warrant for the phone before Detective Troy Lawrence performed a forensic examination of it. Investigator Slatten stated to the jury that Owens had denied that the phone was his, that he had been told that Owens told George to take the phone and break it, and that Megan was the one who scrolled through the phone to show him the photos. Investigator Slatten agreed that Owens was inside the house, in thecustody of either Corporal Arnold or Sergeant King or both when he viewed the photos. Corporal Arnold testified that Investigator Slatten did not tell him to put Owens under arrest until after Investigator Slatten viewed the photos on the phone.
Megan testified that besides the photo of the man's penis touching the little girl's genitals, the phone also contained a photo of just a close-up of the little girl's genitals. All three photos focused on the genital area. Megan clarified that by "baby," she meant a child with the size and shape of a two-year-old. Investigator Slatten described the same photos that Megan described, clarifying that the photo of the nude male with the nude toddler straddling him appeared to have been taken in a mirror,2 and adding that the phone also had a photo of a toddler in a Halloween princess dress. Megan told Investigator Slatten that the three pornographic photos appeared to have been taken in Owens's bedroom.
Detective Lawrence performed the forensic examination of Owens's phone, and State's Exhibits 13 through 17 were admitted through his testimony.3 Detective Lawrence testified that the photos of the child wearing a Cinderella costume and the sexually explicit photos of the naked female child were taken with Owens's phone, and the last Cinderella photo was taken within thirty-seven minutes of the first of the child pornography photos. The other two child pornography photos were taken just a few minutes later—all of them were taken within six minutes of each other.
Investigator Slatten interviewed Owens on November 2, 2008, after Owens was arrested, and he interviewed Owens again the next day. The trial court denied Owens's motion to suppress his statements made during his interviews, admitted portions of these recorded statements as State's Exhibits 8 and 9 over Owens's objections, and allowed them to be published to the jury.
State's Exhibit 8 began taping at 5:45 p.m. and ended around an hour later. Owens entered the interview room in jail clothes. Investigator Slatten read Owens his rights while Owens read along and initialed each to show that he understood each one. After Owens received his warnings, he asked theinvestigator for something to drink, and Investigator Slatten got some water for him. Owens waived his rights and told the investigator that he took photos of K.L. in her Cinderella costume with his phone, but he denied that he knew how the pornographic photos ended up on his phone, that he took them, and that he would have done anything to hurt K.L. or Megan's child. Owens stated that only he and Megan had been with K.L. that weekend. He also stated that he recalled telling George to take the phone but that he did not tell George to break it. Owens stated that he did not know why the police wanted his phone when they came to the house and asked him for it and that he thought it might have been because he might have threatened someone. Investigator Slatten told Owens that he would come and speak with Owens again and bring the photos once he had had them developed.
State's Exhibit 9 began taping at 6:09 p.m. and ended around thirty minutes later....
To continue reading
Request your trial