Wilson v. State, No. 09-07-00589-CR (Tex. App. 1/14/2009)
| Decision Date | 14 January 2009 |
| Docket Number | No. 09-07-00589-CR.,09-07-00589-CR. |
| Parties | JAMES ROBERT WILSON, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the Criminal District Court, Jefferson County, Texas, Trial Cause No. 90765.
AFFIRMED.
Before McKEITHEN, C.J., KREGER and HORTON, JJ.
A jury convicted appellant James Robert Wilson of felony possession of child pornography, and the trial court sentenced him to five years of confinement. Wilson then filed this appeal, in which he raises five issues for our consideration. We affirm the trial court's judgment.
Fatai Oyejobi, the network services manager for the Lamar University campus, testified that Wilson was employed as a senior network analyst in the IT department, and one of Oyejobi's duties was to supervise Wilson. According to Oyejobi, Wilson at one time had a flight simulation program on his computer, and Oyejobi instructed Wilson to remove that software because it violated university policy. On March 4, 2003, Oyejobi was working late, and he needed to enter Wilson's office to back up files Oyejobi had developed during the day, and at that time, Wilson's computer was the only one that had a CD writer on it. Upon entering Wilson's office, Oyejobi was unable to back up the files because when he attempted to log on to Wilson's computer, he discovered that Wilson's computer was not on the Lamar domain. Oyejobi explained that none of his department's computers should have been isolated from the Lamar domain.
As Oyejobi pondered why Wilson's computer was not on the Lamar domain, he recalled the previous issue concerning Wilson's flight simulation software, and he decided to determine whether Wilson's computer contained that unauthorized software by searching the computer for picture files such as "J-Peg . . . that you use for . . . taking video to pictures, or M-Peg for video pictures, or B-Map for . . . video digital pictures." Oyejobi did not find the flight simulation software; however, he found various folders that contained either a bitmap, JPEG, or MPEG files. One such folder was labeled "New Folder," and when Oyejobi opened that folder, he discovered pictures of "naked children" and "obscene pictures of male and female intercourse."
Oyejobi testified that the computer was owned by the university, issued to Wilson, and was not assigned to anyone else. According to Oyejobi, the computer tower assigned to Wilson was never changed and was never borrowed by anyone else. Oyejobi testified that Wilson never complained of anyone else accessing or using his tower or his laptop, or of any remote attack on his computer. Oyejobi explained that he decided to reboot Wilson's computer to see if he could back up the files as he had intended to do. Upon rebooting Wilson's computer, Oyejobi discovered that the computer required a power-on (BIOS) password, which was "only known to the person who operates the computer[,]" and activating a power-on password was against the IT department's policy. Oyejobi explained that Wilson's computer was connected to the network, but not the server.
The next morning, Oyejobi discussed the matter with the director of the department. Ultimately, a meeting was conducted with various department heads, as well as representatives from human resources and the Lamar Police Department, and Oyejobi explained what had transpired the night before. Oyejobi then returned to the IT department with the police chief, and they went to Wilson's office with Lieutenant Daniel Bowden and Chief Dale Fontenot. Lieutenant Bowden escorted Wilson out of his office, and Oyejobi located the pornographic images on Wilson's computer. After securing Wilson's office by changing the lock and giving the only key to Chief Fontenot, Oyejobi and the officers left Wilson's computer tower and laptop computer in the office.
On cross-examination, Oyejobi testified that data cannot be placed in a computer without the user knowing it if no one is using the computer. Oyejobi also testified that viruses can sometimes destroy certain data on computers. However, Oyejobi explained that information could be placed on a computer without the user's knowledge while the user is surfing the internet. In addition, Oyejobi testified that in 2002, "[t]he only firewall [Lamar] had . . . was on the edge, that is where all the computers on the campus connect to the internet."
Chief Fontenot of the Lamar University Police Department testified that after participating in a meeting with various Lamar department heads concerning the incident with Wilson, he went to Wilson's office with Oyejobi. Lieutenant Bowden met Chief Fontenot at Wilson's office to offer assistance if needed. Oyejobi accessed some of the folders on Wilson's desktop computer, and upon viewing the photographs, Chief Fontenot "quickly noticed that they . . . appeared to be child pornography and that we had a violation of [the] Penal Code." Chief Fontenot asked Lieutenant Bowden to escort Wilson to the police department's office. The next day, Chief Fontenot and Lieutenant Bowden returned to Wilson's office to recover evidence, and Lieutenant Bowden searched the office and took both Wilson's computer tower and laptop into custody.
Lieutenant Daniel Bowden testified that he met Chief Fontenot and accompanied him to Wilson's office. While searching Wilson's desk, Lieutenant Bowden found pornographic photographs, some of which depicted child pornography. Lieutenant Bowden obtained from Wilson the passwords to Wilson's desktop computer and laptop, and he relayed that information to Oyejobi. Lieutenant Bowden testified that he seized Wilson's desktop computer and laptop. Lieutenant Bowden delivered the computers to Detective Jeffery Curl of the Beaumont Police Department, who analyzed the computers and subsequently returned them to Lieutenant Bowden. On cross-examination, Lieutenant Bowden testified that while Wilson was at the Lamar Police Department's office, Wilson told him that Wilson's computer contained pornographic pictures, but that the pictures were not illegal because he had taken the pictures from a student's computer as evidence. Lieutenant Bowden testified that he was unable to match Wilson's account regarding taking the pictures from a student to any report that Wilson had made to the Lamar Police Department regarding such an incident. When Lieutenant Bowden specifically asked Wilson whether the computer contained child pornography, Wilson said it did not.
Sean Patrick Stewart of the Lamar University Department of Data, Voice, and Video, testified that Oyejobi is his supervisor. Stewart explained that he discovered that Wilson's computer was hooked into the network, but was not part of the domain, and Stewart described the set-up of Wilson's computer as "completely outside . . . what the department was doing as a whole. . . ." Stewart testified that Wilson's computer was basically walled off unless Wilson allowed access to it. Stewart also testified that the use of a power-on (BIOS) password on a State-owned machine "absolutely . . . should not have been done." Stewart explained that on some occasions when he visited Wilson's office, Wilson would show him "mainstream pornography[,]" and the situation made Stewart uncomfortable. Stewart testified that on one occasion, Wilson showed him a photograph depicting a female and asked Stewart whether he thought the female was "hot," and when Stewart responded that he thought the female was cute, Wilson said, and laughed.
According to Stewart, Lamar University had a two-tiered system of firewalls in place in 2003. Stewart explained that unless authorization had been granted, no one could go through the firewall and share files without authorization from the person whose terminal was being accessed. Stewart also testified that for someone from outside to access Wilson's system, such a person would have to penetrate five levels of defenses: two firewall appliances, the local antiviral software on Wilson's machine, Wilson's turn-on password, and Wilson's administrative password to his operating system. Furthermore, Stewart explained that viruses and bots are basically destructive to computers; they do not generally inject information files into a computer.
When later called as a witness by the defense, Stewart testified that from 2002-2003, Stewart also testified that a computer on Lamar University's campus had been found to have multiple files placed on it by a "remote attacker," meaning the files came from a different machine, but it could have been a machine at the university. Stewart also testified concerning various work orders involving computers on campus that were infected with viruses, and that the viruses were usually the result of either users not properly updating their machines' virus protection, or visiting inappropriate websites. The defense stipulated that none of the work orders involved Wilson's computers. Stewart explained that there were no virus reports concerning computers assigned to Wilson. Furthermore, Stewart explained that Wilson was a member of the intrusion detection team, so if there had been a problem with frequent attacks from outside the firewall, Wilson would have been aware of it and would have known how to protect his own machines.
Detective Jeffery Curl testified that he is a forensic computer examiner with the Beaumont Police Department, and that his job involves extracting evidence from computers and digital media seized by officers and presenting the evidence in court....
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