Savage v. State, No. 05-06-00174-CR (Tex. App. 3/19/2008)
| Decision Date | 19 March 2008 |
| Docket Number | No. 05-06-00174-CR.,No. 05-06-00175-CR.,05-06-00174-CR.,05-06-00175-CR. |
| Parties | DARRELL DEWAYNE SAVAGE, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause Nos. F01-76212-RPI and F01-76213-RPI.
Affirmed.
Before Justices O'NEILL, RICHTER, and LANG.
Darrell Dewayne Savage appeals the trial court's judgments convicting him of possession of child pornography in two cases. The jury found Savage guilty. In trial court cause no. F01-76212-RPI, the jury assessed Savage's punishment at six years of imprisonment. In trial court cause no. F01-76213-RPI, the jury assessed his punishment at ten years of imprisonment, suspended for ten years of community supervision, and a $10,000 fine.
Savage raises six issues on appeal, arguing: (1) the evidence is legally insufficient to support his convictions; (2) the evidence is factually insufficient to support his convictions; (3) the trial court erred when it denied his motion to suppress; (4) the trial court erred when it denied his motion to inspect evidence, requesting a copy of the computer hard drive; (5) the trial court erred when it overruled his objection to the testimony of computer forensics examiner Wills regarding Savage's truthfulness; and (6) the foregoing errors were harmful in their cumulative effect.
We conclude the evidence is legally and factually sufficient to support Savage's convictions. Also, we conclude the trial court did not err when it denied Savage's motion to suppress or his motion to inspect. Further, Savage failed to preserve for appellate review his complaint that the trial court erred when it overruled his objection to the testimony of computer forensics examiner Wills regarding Savage's truthfulness. Finally, we conclude Savage has not shown cumulative harm. The trial court's judgments are affirmed.
On March 28, 2001, Detective Gregory Dugger, computer forensics examiner Don Wills, and Officer J.D. Gardner followed-up on an investigation concerning Landslide, Inc., a Fort Worth company that verifies credit cards for websites. Landslide engaged in two types of verification: (1) AVS or adult verification service, which provided verification and access to 1,700 adult pornography websites; and (2) "keyz," which required an individual to select specific websites he wanted to purchase access to, verified the credit card information, and sent the purchaser a password to obtain access to 300 or more child pornography websites. Information obtained during the investigation of Landslide revealed Savage's credit card was used to purchase access to websites through "keyz."
Detective Dugger, computer forensics examiner Wills, and Officer Gardner went to Savage's residence, knocked on the door, and Savage's father answered. They identified themselves as police officers and requested to speak with Savage. Savage came to the front door shortly afterward. Because Savage's parents were also present, Detective Dugger told Savage he was investigating a credit card purchase made to an internet website that had illegal content. Detective Dugger asked Savage if he had any credit cards issued in his name and Savage answered he had two credit cards. Then, Detective Dugger asked Savage if those credit cards had any issues involving fraudulent activity. Savage responded that one of the credit cards did have some fraudulent activity and he canceled it, but the other credit card was fine. Savage retrieved some records from his bedroom and showed them to Detective Dugger. Those records showed that one of the credit cards had been cancelled and the other was valid. Detective Dugger compared the credit card numbers to the Landslide data and determined the valid credit card matched the data from the Landslide investigation. As a result, Detective Dugger explained to Savage that his name showed up in the database and asked for Savage's consent to search his computers. Savage told the police his computers were in his bedroom and escorted Detective Dugger to the computers, while computer forensics examiner Wills and Officer Gardner went to get the equipment needed to conduct the search.
Savage told Detective Dugger he was in the process of playing a computer game and asked if he could exit the game before allowing the police to search his computer. Detective Dugger said that was fine. He observed Savage exit a program, type a command to bring up the DOS prompt, and type "d-e-l," which he recognized as the command to delete something from the computer. Detective Dugger asked Savage why he was deleting something from his computer and Savage stopped, but did not answer the question. At that point, Detective Dugger told Savage he was investigating purchases into child pornography websites. Savage told Detective Dugger he remembered buying into a website that had the word "keyz," which Savage described as a Russian-Babylonian-type website with pictures of young girls, but no hardcore child pornography.
Once computer forensics examiner Wills and Officer Gardner arrived, Detective Dugger produced the consent form. Detective Dugger went over the content of the consent form with Savage, then gave it to Savage to read. Savage signed the consent form, which was witnessed by Detective Dugger and Officer Gardner. Savage did not tell the police he changed his mind or was withdrawing his consent. After Savage signed the consent form, computer forensics examiner Wills began a search of Savage's computer. While computer forensics examiner Wills searched the computer, Savage told Detective Dugger he used a software program called Picture Agent to go to news groups and download content, and he had seen child pornography on his computer in the past, but he deleted it. Within a few minutes, computer forensics examiner Wills found an image that appeared to be child pornography. After Officer Gardner confirmed that it was child pornography, Detective Dugger told Savage they had found child pornography and were seizing the computer for a further search at the forensics laboratory. Detective Dugger asked Savage if there was anything else in the room that could have child pornography on it. Savage responded that some of the CD-ROMs and zip disks might have some child pornography on them. The police seized one personal computer, a loose hard drive, a digital hard drive, six CD-ROMs, and four zip disks.
The next day, Detective Dugger received a message from Savage. He returned Savage's telephone call and Savage told Detective Dugger the name of the website involved with "keyz" he purchased into and that he wanted to cooperate in any way possible.
After a search warrant was obtained, the items seized from Savage were taken to the forensics laboratory and searched. Several months later, Detective Dugger received from computer forensics examiner Wills a report and nine CD-ROMs of evidence relevant to the investigation. Detective Dugger reviewed the CD-ROMs and found an email confirming Savage's purchase into the "keyz" controlled European Lolitasex website.1 Also, he found a large quantity of child pornography images stored in an organized system and in different locations on the computer. The Picture Agent software on Savage's computer was set to look for and download images to the "PA download directory" as follows: erotica preteen; erotica children; erotica child male; erotica child female; erotica Disney; and erotica early teens. Images of child pornography were found in the "work" folder, in subfolders named "children" and "young," which had subfolders named "!-9," "A-B," "C-F," "G-K," "L-M," "N-S," "R-Z." The work folder was on both the personal computer and the loose hard drive. Also, images and videos of child pornography were found in the "pics" folder, in a subfolder named "adult," which had subfolders named "cum," "bandage," "lez," "men," "women," and "vid." Further, images of child pornography were found on the zip disks. One thousand six hundred of the child pornography images found were identified on the national exploited missing children database of known victims, which means the image matches a picture of a known underage victim.
Detective Dugger contacted Savage to discuss the images found because it was inconsistent with Savage's statement that there might be some deleted child pornography on the computer. Savage voluntarily met with Detective Dugger, who advised Savage of his Miranda rights and confronted him regarding the amount of child pornography found on his computer. Savage admitted he knew there was child pornography on his computer and stated the images were downloaded by him from news groups using Picture Agent, he did not create or trade any of the images, and he had downloaded the images for personal use only.
Savage was arrested and charged with possession of child pornography. In trial court cause no. F01-76212-RPI, Savage was indicted for intentionally and knowingly possessing child pornography depicting a child, younger than 18 years of age at the time the image was made, engaged in actual and simulated sexual intercourse. In trial court cause no. F01-76213-RPI, Savage was indicted for intentionally and knowingly possessing child pornography depicting a child, younger than 18 years of age at the time the image was made, engaged in actual and simulated deviate sexual intercourse. The jury found Savage guilty. In trial court cause no. F01-76212-RPI, the jury assessed Savage's punishment at six years of imprisonment. In trial court cause no. F01-76213-RPI, the jury assessed his punishment at ten years of imprisonment, suspended for ten years of community supervision, and a $10,000 fine.
In issues one and two, Savage argues the evidence is legally and factually insufficient to...
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