Wise v. State

• Citation: 364 S.W.3d 900
• Decision Date: 25 April 2012
• Docket Number: No. PD–0473–11.,PD–0473–11.
• Parties: Jeffrey Shane WISE, Appellant, v. The STATE of Texas.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

364 S.W.3d 900

Jeffrey Shane WISE, Appellant,

v.The STATE of Texas.

No. PD–0473–11.

Court of Criminal Appeals of Texas.

April 25, 2012.

Rick Mahler and Todd Greenwood, Wichita Falls, for Appellant.

John W. Brasher, Asst.Crim. D.A., Wichita Falls, Lisa C. McMinn, State's Attorney, Austin, for State.

OPINION

ALCALA, J., delivered the opinion of the Court in which KELLER, P.J., and PRICE, WOMACK, JOHNSON, KEASLER, HERVEY, and COCHRAN, JJ., joined. MEYERS, J., not participating.

In this petition for discretionary review, the State contends the court of appeals erred in finding the evidence insufficient to support convictions against appellant, Jeffrey Shane Wise, for ten counts of possession of child pornography. See Wise v. State, 340 S.W.3d 818 (Tex.App.-Fort Worth 2011). The ten counts were for ten images of unknown children discovered in the “free space” ¹ of appellant's computer. SeeTex. Penal Code § 43.26 (possession or promotion of child pornography).² The majority opinion held that the State failed to prove that appellant knowingly or intentionally possessed the images because the images could possibly have gotten on the hard drive innocently without appellant having ever seen or accessed them. See Wise, 340 S.W.3d at 826. Chief Justice Livingston dissented. See id. at 827–30 (Livingston, C.J., dissenting). The State's petition for discretionary review challenges the majority opinion by asserting that the “Court of Appeals failed to properly apply the Jackson v. Virginia standard of review, and thereby erred in holding that the evidence was legally insufficient to prove that the appellant knowingly possessed the child pornography images found in ‘free space’ on the hard drive of his computer.” See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The State contends that the majority opinion erroneously applied the “reasonable hypothesis analytical construct” rejected in Geesa v. State, 820 S.W.2d 154, 156 (Tex.Crim.App.1991). We conclude the majority opinion misapplied the standard of review for sufficiency by focusing on the possible alternative explanations, rather than determining whether the jury's inference was reasonable based upon the cumulative force of all the evidence when considered in the light most favorable to the verdict. See Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App.2010); Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007). We reverse the judgment of the court of appeals and render a judgment affirming the trial court.

I. Applicable Law for Sufficiency of Evidence of Possession of Child Pornography

In determining whether the evidence is sufficient, a reviewing court views all the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 318, 99 S.Ct. 2781;Brooks, 323 S.W.3d at 895. When the record supports conflicting inferences, a reviewing court must “presume that the factfinder resolved the conflicts in favor of the prosecution” and defer to that determination. Jackson, 443 U.S. at 326, 99 S.Ct. 2781. The factfinder exclusively determines the weight and credibility of evidence. See id. at 319, 99 S.Ct. 2781;Wirth v. State, 361 S.W.3d 694, 697–98 (Tex.Crim.App.2012) (not yet reported).

The evidence-sufficiency standard of review is the same for both direct and circumstantial evidence. Hooper, 214 S.W.3d at 13. For the evidence to be sufficient, the State need not disprove all reasonable alternative hypotheses that are inconsistent with the defendant's guilt. See Geesa, 820 S.W.2d at 156;Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App.1999); Brown v. State, 911 S.W.2d 744, 746 (Tex.Crim.App.1995). Rather, a court considers only whether the inferences necessary to establish guilt are reasonable based upon the cumulative force of all the evidence when considered in the light most favorable to the verdict. Hooper, 214 S.W.3d at 13.

A person commits possession of child pornography if he “knowingly or intentionally possesses visual material that visually depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct” and he “knows that the material depicts the child” in this manner. Tex. Penal Code § 43.26(a). A person acts “intentionally” or with intent “with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.” Id. § 6.03(a). A person acts knowingly or with knowledge of the nature of his conduct or circumstances “when he is aware of the nature of his conduct or that the circumstances exist.” Id. § 6.03(b). The Texas Penal Code defines “possession” of contraband as “actual care, custody, control, or management.” Id. § 1.07(a)(39).

This Court has never addressed whether a person can knowingly or intentionally possess child pornography that exists only in the free space of that individual's computer hard drive. This subject has rarely been discussed in intermediate courts in Texas, which have only briefly mentioned the subject. See Lancaster v. State, 319 S.W.3d 168, 173 (Tex.App.-Waco 2010) (“[Appellant's] attempted deletion did not dispossess him of the recording.”); Carter v. State, No. 05–05–01424–CR, 2006 WL 3628889, *3–5, 2006 Tex.App. LEXIS 10687, *7–12 (Tex.App.-Dallas 2006, pet ref'd) (not designated for publication) (discussing whether pornographic images at issue were accidentally downloaded); Assousa v. State, No. 05–08–00007–CR, 2009 WL 1416759, *4 n. 3, 2009 Tex.App. LEXIS 3500, *12 n. 3 (Tex.App.-Dallas 2009, pet. ref'd) (not designated for publication) (noting appellant's extensive knowledge of computer technology when discrediting his claim that he was unaware of images' existence on his hard drive).

Although courts in Texas have rarely addressed criminal intent in computer pornography, courts throughout the nation have discussed the peculiarities of determining knowing or intentional possession of computer pornography. Courts generally take two approaches to framing sufficiency analysis in cases involving child-pornography images discovered in a computer's cache or free space.³See Ty E. Howard, Don't Cache Out Your Case: Prosecuting Child Pornography Possession Laws Based on Images Located in Temporary Internet Files,19 Berkeley Tech. L.J. 1227, 1253–54 (2004). Under the first approach, termed a present-possession approach, a court will analyze the sufficiency of the evidence to determine whether a defendant had the knowledge and ability to access the files in their present format. Id. at 1254–55. In the context of deleted files, if an ordinary computer could not access files that have been deleted by a user or an automatic computer program, then the defendant could not presently have care, custody, control, or management of the images. See Deanna M. Rice, Note: Child Pornography, the Internet, and the Challenge of Updating Statutory Terms, 122 Harv. L.Rev.. 2206, 2215–16 (2009).⁴ Although images in a computer's cache without other supporting evidence have been determined to be insufficient in some cases, courts following this first approach note that the evidence would be sufficient when there is other evidence establishing that the images were presently knowingly or intentionally possessed.⁵

Under a second general approach, used by courts nationally, evidence of pornography found in a computer cache could be sufficient to support a conviction because the presence of the images in the cache is evidence that, at some earlier point, a defendant knowingly or intentionally possessed the images by viewing them online. See Howard, supra, at 1255. Under this framework, a defendant need not be aware that the image continued to exist on the computer, and the present accessibility of the image is not pertinent. See id. at 1259 (stating that, under “evidence of” approach, “the deletion of a temporary internet file has no bearing on the legal analysis of knowing possession”). Instead, the pertinent inquiry is whether a defendant had knowingly or intentionally possessed a pornographic image at a prior point in time. See id. Part of the difficulty using the second approach is that files lose some of their information upon deletion, such as when the image was created or how it came to be. See Moreland, 665 F.3d at 142 n. 2. A forensic expert might not be able to tell whether the image, for example, was saved from an email attachment or perhaps was only a temporary internet file or the result of a virus on the computer. See id. (“Files found in the disk slack space are sometimes called ‘orphan files,’ as it is difficult or impossible to trace their origin or date of download.”).

Although these two general approaches are instructive in explaining the difficulties of establishing criminal intent in the possession of computer pornography, we conclude that each case must be analyzed on its own facts. For computer-pornography cases, like all criminal cases, a court must assess whether the inferences necessary to establish guilt are reasonable based upon the cumulative force of all the evidence considered in the light most favorable to the verdict. See Hooper, 214 S.W.3d at 13.

II. Analysis

As accurately observed by the Second Court of Appeals's majority opinion, the evidence in the record shows that appellant, who did not have technical skills in computer programming, was presently unable to access the deleted files that were in the free space of the computer. As the computer expert explained at trial, the deletion of the file made them inaccessible to anyone but a highly skilled computer specialist. Because appellant was not presently able to access the images, the jury would have had to determine that, before the images were deleted, appellant knowingly or intentionally had care, custody, control, or management of the images. S...