(2) the person knows that the material depicts the child as described by Subdivision (1). Tex. Penal Code Ann. § 43.26(a) (West Supp. 2012). Possession is defined by the Penal Code as “actual care, custody, control, or management.” Id. § 1.07(a)(39).
Wilson first argues there is insufficient evidence that he possessed the images at issue. He emphasizes that he was not in exclusive possession of his computer and contends that there is no evidence affirmatively linking him to the images found on his family’s computer. We disagree.
When contraband is not found on a person or is not in a location that is under the exclusive control of a person, mere presence at the location where the contraband is found is insufficient by itself to establish actual care, custody, or control of the contraband. See Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006). However, presence or proximity, when combined with other evidence, either direct or circumstantial (e.g. “links”), may be sufficient to establish possession beyond a reasonable doubt. Id. Evidence that links the defendant to the contraband suffices for proof that he possessed it knowingly. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995); Santiesteban-Pileta v. State, No. 10-12-00154-CR, 2013 WL 3122431, at *1 (Tex. App.— Waco June 20, 2013, pet. ref’d). It is not the number of links that is dispositive, but rather the logical force of all of the evidence, direct and circumstantial. Evans, 202 S.W.3d at 162. This “affirmative links” rule protects the innocent bystander from conviction merely because of his or her fortuitous proximity to someone else’s contraband. Id.
In Wise v. State, 364 S.W.3d 900, 904 (Tex. Crim. App. 2012), the Texas Court of Criminal Appeals noted the “peculiarities of determining knowing or intentional possession of computer pornography.” In reviewing cases from other jurisdictions, the court of criminal appeals explained that other courts have generally taken “two approaches to framing sufficiency analysis in cases involving child-pornography images discovered in a computer’s cache or free space.”[1] Id.
The court of criminal appeals explained that courts in jurisdictions using the first approach, termed a “present-possession approach, ” 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. In contrast, courts in those jurisdictions using the second approach do not consider whether a defendant had the knowledge and ability to access the files in their present format. Id. Instead, those courts would hold evidence of child pornography found in a computer cache to 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.” Id. at 905. Under this second approach, “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.” Id. “Instead, the pertinent inquiry is whether a defendant had knowingly or intentionally possessed a pornographic image at a prior point in time.” Id.
After considering both approaches, the court of criminal appeals concluded that “[a]lthough these two general approaches are instructive in explaining the difficulties of establishing criminal intent in the possession of computer pornography, ” “ each case must be analyzed on its own facts.” Id. Thus, the court held that in 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.” Id.
The court of criminal appeals then considered whether there was sufficient evidence to support the appellant’s conviction for possession of child pornography found in the “free space” of appellant’s computer. Id. at 902. The court of appeals had reversed the appellant’s conviction, holding that the State had failed to prove that the 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. Id. At the court of criminal appeals, the State criticized the court of appeals for erroneously applying the “reasonable hypothesis analytical construct, ” which was rejected by the court of criminal appeals in Geesa v. State, 820 S.W.2d 154, 156 (Tex. Crim. App. 1991).[2] The court of criminal appeals agreed with the State that the court of appeals had erroneously focused on two alternative hypotheses that the images could have been placed on the computer without appellant’s knowledge either through (1) a virus; or (2) a previous owner of the computer. Wise, 364 S.W.3d at 905.
With regard to a virus, the court of criminal appeals noted that while the State’s computer expert acknowledged there were several viruses on the computer and that some viruses are capable of placing images on a computer without a user’s knowledge, the expert also testified that it was unlikely the presence of viruses would explain the presence of the images in the free space of a computer. Id. at 905-06. Thus, the court of criminal appeals criticized the court of appeals for “credit[ing] appellant’s suggestion that viruses on his computer could have placed the images there, ” explaining that “ [b]ecause the placement of a pornographic image on the free space of a computer would be inconsistent with the purpose for placing a virus on a computer, the jury could have reasonably disregarded that explanation for the presence of the images.” Id. at 906.
With regard to prior owners of the computer, the court of criminal appeals explained “the court of appeals erred by crediting appellant’s suggestion that the images could have been placed on the computer by a prior owner of the computer and finding that to be an alternative hypothesis inconsistent with guilt.” Id. Although the testimony that appellant bought the computer at a flea market was uncontroverted, the jury could reasonably reject the testimony. Id. The court explained that “[u]ncontroverted evidence does not necessarily equate to credible evidence, particularly when the State could not readily controvert the evidence because of the lack of detail.” Id.
Therefore, the court of criminal appeals held that “[b]y focusing on the alternative hypotheses premised on the possibility of viruses or a prior owner placing the images on the free space of the computer, the court of appeals used a sufficiency standard that [was] abrogated by [this] Court” in Geesa. Wise, 364 S.W.3d at 906. The court of criminal appeals also explained that the court of appeals “erred by implicitly examining the evidence in the light favorable to appellant, focusing on the fact that he could not access the images in the free space of the computer and the absence of computer evidence to establish exactly when the images were placed on, accessed, or deleted from the computer.” Id. The court of criminal appeals explained that the court of appeals should have viewed the evidence in the light favorable to the verdict. Id. Viewing the evidence in the appropriate light, the court of criminal appeals held a jury “could have reasonably rejected appellant’s claims that the images were due to a virus or former computer owner and instead determined that appellant had a history of and present sexual attraction to children and that he intended to possess the pornographic images of the children that were in the free space of his computer.” Id. at 907-08.
Here, Wilson emphasizes that his former wife had access to the family’s computer, that she had figured out his password, and that she had a motive for placing the images on the computer as Wilson was refusing to give her a divorce. Wilson also points to the time-stamp of the images on the computer and argues that he was not present at home when the images were viewed but was instead at church and shopping with his children. However, in making this argument, Wilson is asking this court to focus on an alternative hypothesis and view the evidence in the light most favorable to him, not to the verdict. As explained, pursuant to Geesa, 820 S.W.2d at 156, the State need not disprove all reasonable alternative hypotheses that are inconsistent with the defendant’s guilt. Thus, we do not focus our inquiry on the alternative hypothesis of Wilson’s former wife possibly being responsible for the images found in the cache under Wilson’s profile. See Wise, 364 S.W.3d at 906. Instead, we view all the evidence in the light most favorable to the jury’s verdict and determine whether a jury could have reasonably rejected Wilson’s claim that the images were due to his former wife and could have instead determined that Wilson intended to possess the pornographic images of the children found in the computer’s cache under his user profile. See id. at 907-08.
In looking at all the evidence in the light most favorable to the verdict, a reasonably jury could have rejected Wilson’s argument that his former wife was responsible for the images and could have instead determined that Wilson intentionally and knowingly possessed the images. There was evidence at trial that (1) the images were found under Wilson’s profile; (2) Wilson’s profile was password protected; (3) Wilson had moved into the room where the computer was located and was sleeping in the room; (4) Wilson was addicted to pornography and started acting differently after the family purchased a computer; (5) Wilson placed towels and clothing around the computer so that one could not see the computer’s monitor; (6) Wilson would try to prevent anyone from viewing the computer’s monitor; and (7) Wilson owned a book about how to “clean” his computer. Most importantly, there was Wilson’s own videotaped interview with police where he admitted that he had viewed, at least ten times, images he knew were child pornography on his computer. During the interview, he first claimed to the officer that he had inadvertently viewed images and would quickly “back out” when he saw something questionable. Then, he stated that he just clicked on the images to “verify” that they were of underage children. When he was told how many images were found on the computer, Wilson stated that he had viewed images he knew were of underage children because he was “curious.” Then, he stated he looked at the images out of sympathy for the children. He spoke in particular of a Russian website where he saw underage girls and admitted to having continued to look at images on the website even after seeing underage images because the next image may not be one of an underage girl.
With regard to whether his former wife was one who placed the images on the computer, the jury could have believed his former wife’s testimony and rejected Wilson’s testimony. The jury could have reasonably believed his former wife’s testimony that she found the images in Wilson’s temporary internet history while Wilson was in the bathroom and that she figured out his password only once the police arrived. As to the computer’s time-stamp of the images, there was testimony that a user can change the clock on the computer. Thus, the jury could have reasonably concluded that the time of creation of the images on the computer did not necessarily correspond to real time. Finally, the jury could have reasonably rejected Wilson’s testimony that he was not present when the images were viewed on the computer. The jury could have further reasonably rejected his daughter’s testimony. His daughter testified that she really was not sure if the events she remembered occurred on the weekend in question. See Wise, 364 S.W.3d at 906 (explaining that “[u]ncontroverted evidence does not necessarily equate to credible evidence”). In looking at all this evidence in the light most favorable to the verdict, a jury could have reasonably inferred that Wilson knew about the child pornography on his computer and was in possession of it.
We note that Wilson cites United States v. Moreland, 665 F.3d 137 (5th Cir. 2011), for support. However, Moreland is factually distinguishable from this case. In Moreland, 665 F.3d at 140, the Fifth Circuit considered whether the evidence was sufficient to rationally support a jury finding beyond a reasonable doubt that the appellant knowingly possessed images found on two computers in the computers’ disk slack space.[3] The two computers were owned by appellant and his wife, and were used by appellant, his wife, and appellant’s terminally ill father. Id. Appellant’s terminally ill father slept in the living room and frequently used the computers late at night while appellant and his wife were sleeping, and during the day while appellant was at work. Id. Appellant, his father, and his wife all had access to, and free use and control of appellant’s username, password, and Yahoo! account on both computers. Id. Appellant’s father was never interviewed or investigated by police before his death in January 2008. Id. In May 2008, appellant was indicted with knowing possession of child pornography and was later convicted by a jury. Id.
In viewing all the evidence, the Fifth Circuit held that the evidence was insufficient for a rational juror to have concluded that appellant knowingly possessed child pornography. Id. at 154. The officer who testified about the two computers was not offered, qualified, or accepted as an expert in child pornography or in forensic computer technology. Id. at 144. “Because of the lack of information in the computers, [the officer] said he could not testify as to where the images had come from, when they were received or deleted, or who was operating the computer at those times; also, he testified that he could not express an opinion as to whether any particular image was child pornography.” Id. The officer could not recover information pertaining to where the images had come from or when they entered the computer. Id. at 145. The officer did find usage patterns showing that a user of the computers in 2007 had visited a website that might have contained child pornography shortly after or shortly before visiting the Yahoo! website where the user checked email or played dominoes. Id. at 145-46. Appellant’s wife testified that appellant “was always logged on” from both computers to his Yahoo! account on the internet. Id. at 146. Thus, she did not need a password to access his account, and she used his Yahoo! email account to check and send email. Id. She testified that appellant “had the same password for everything” and she knew the password. Id. Both appellant and his wife testified that they had never looked at child pornography and that appellant’s father would use the computers late at night while they were sleeping and would log in under appellant’s name. Id. Appellant’s brother testified that when appellant’s father learned the computers were being searched for child pornography, appellant’s father asked him to bring the computer owned by appellant’s father to the residence he was staying. Id. at 147. Appellant’s father then asked appellant’s brother to destroy the computer. Id. Appellant’s brother refused and testified that as far as he knew, his father destroyed the computer. Id. The wife of appellant’s brother corroborated this story. Id. Both appellant’s brother and the wife of appellant’s brother testified that after appellant’s father died, they cleaned out his house and found a large amount of pornographic material. Id.
In holding the evidence was insufficient, the Fifth Circuit emphasized that the only evidence in support of appellant possessing child pornography was the fact that the images were found on his profile. See id. at 151-53. However, the evidence showed that everyone in the home used appellant’s profile. See id. at 151-52. Further, there was strong evidence that appellant’s father was the perpetrator. See id. Unlike in Moreland, in this case there was evidence that (1) Wilson was living and sleeping in the room where the computer was located; (2) Wilson’s profile was password protected; (3) Wilson was addicted to pornography and started acting differently after the family purchased a computer; (4) Wilson placed towels and clothing around the computer so that one could not see the computer’s monitor; (5) Wilson would try to prevent anyone from viewing the computer’s monitor; (6) Wilson owned a book about how to “clean” his computer; and (7) in his videotaped statement to police, Wilson admitted he had viewed child pornography on the computer.
Wilson next argues there is insufficient evidence that the images were actually of children under eighteen years of age or that he knew the images depicted children under eighteen years of age. First, the images themselves constitute evidence from which a rational juror could have concluded beyond a reasonable doubt that the images depicted children less than eighteen years of age. The Texas Penal Code does not require expert testimony to determine a child’s age in a possession of child pornography case. Section 43.25(g) provides that when it becomes necessary for purposes of section 43.26 to determine whether a child who participated in sexual conduct was younger than eighteen years of age, the court or jury may make such a determination by any of the following methods:
(1) personal inspection of the child;
(2) inspection of the photograph or motion picture that shows the child engaging in the sexual performance; (3) oral testimony by a witness to the sexual performance as to the age of the child based on the child’s appearance at the time; (4) expert medical testimony based on the appearance of the child engaging in the sexual performance; or (5) any other method authorized by law or by the rules of evidence at common law. Tex. Penal Code Ann. § 43.25(g) (West 2011) (emphasis added).
The images at issue have been filed under seal in this Court. After viewing these images, we conclude that the jury could have reasonably found beyond a reasonable doubt that the images depicted underage children. Moreover, in his videotaped interview with police, Wilson admitted that he knew certain images he had viewed on his computer were of children less than eighteen years of age. Lastly, Detective Stark testified that based on his twelve years of experience working on child pornography cases, he determined that the images were of “very young males and females.” Thus, the jury could have rationally concluded that the images were of children less than eighteen years of age and that Wilson knew they were less than eighteen years of age.
Other Images Admitted in Evidence
Wilson also argues that the trial court erred in admitting images in addition to those described in the indictment into evidence without giving a limiting instruction. Wilson emphasizes that when evidence of extraneous offenses are admitted for a limited purpose, a defendant is entitled, upon timely request, to an instruction by the trial court to the jury limiting the jury’s consideration of the extraneous offenses to those purposes for which they are admitted. The State responds that Wilson has not preserved this issue for review because when he made the request, the trial court was not admitting the evidence for a limited purpose.
When the State first offered the images, defense counsel objected based on relevancy and Rule 403.[4] After a discussion, the following occurred:
Court: In light of what – in light of my objection to – or excuse me, my overruling your objection to relevancy, in light of what the State has proffered is going to be testimony offered.
Defense: And as we said – Court: Evidence offered, I should say. Defense: — the 403 balancing test, you also denied that, and are going to – and then you’re admitting it for all purposes. If you’re admitting it for a limited purpose, then we would ask for an instruction to the jury. Court: Okay. And I’m not doing that at this point. (emphasis added). Thus, according to the trial court, at that point in the proceedings, it was admitting the images for all purposes, not just for a limited purpose. Wilson has made no complaint on appeal about the trial court admitting the images for all purposes or that the images were inadmissible pursuant to Texas Rule of Evidence 403. Further, we note that in his statement of the issue, Wilson refers to “testimony regarding appellant’s addiction to adult pornography” being admitted without a limiting instruction. However, Wilson never explains in his brief what testimony he is referring to or where in the record he made a request for a limiting instruction with regard to such testimony. See Tex. R. App. P. 33.1; 38.1(i). Finally, we note that the additional photographs at issue were same transaction contextual evidence. See Delgado v. State, 235 S.W.3d 244, 253 (Tex. Crim. App. 2007). And, the court of criminal appeals has held that a limiting instruction is not required when evidence is admitted as same-transaction contextual evidence. See Devoe v. State, 354 S.W.3d 457, 471 (Tex. Crim. App. 2011).
Jury Charge
In his fourth and fifth issues, Wilson argues that the trial court, in its charge, commented on the weight of the evidence by instructing the jury that the images in the indictment were of children. The State responds that the trial court did not comment on the weight of the evidence as the application paragraph clearly first instructed the jury “if you find from the evidence beyond a reasonable doubt that” and then just tracked the language of the indictment. For example, Count I of the indictment alleged the following:
on or about 27th Day of October 2008 SCOTT EDWARD WILSON, hereinafter referred to as defendant, did intentionally and knowingly possess visual material that visually depicted, and which the defendant knew visually depicted a child, who was younger than 18 years of age at the time the image of the child was made, engaging in sexual conduct, to wit: actual sexual intercourse, namely, Documents and Settings\scott\Local Settings\Temporary Internet Files\content.IE5\UX@JQF6Z\qI1986[1].jpg, which depicts a nude female child with her legs spread sitting on a male’s groin.
The application paragraph of the jury charge provided the following with respect to Count I:
Now, if you find from the evidence beyond a reasonable doubt that on or about the 27th Day of October 2008, in Bexar County, Texas, the defendant, Scott Edward Wilson, did intentionally or knowingly possess visual material that visually depicted, and which the defendant knew visually depicted, a child, who was younger than 18 years of age at the time the image of the child was made, engaging in sexual conduct, to wit: actual sexual intercourse, namely, Documents and Settings\scott\LocalSettings\Temporary internet Files\content.IE5\UX2JQF6Z\qI986[1].jpg which depicts a nude female child with her legs spread sitting on a male groin, then you will find the defendant guilty of Possession of Child Pornography as charged in Count I of the indictment. If you do not so believe, or if you have reasonable doubt thereof, you will find the defendant not guilty in Count I of the indictment.
(emphasis added).
At the charge conference, defense counsel stated the following:
Your Honor, I’m concerned about some of the language on pages four through thirteen. Each one of the charge that lists out the charge – the offense, right after the line right after the long series of numbers and letters it says: which depicts a nude female child. Well, the fact that [] either [it] is or isn’t a child is certainly one of the major issues in this case. And even though I know that is the language that’s taken off the indictment, it appears that the way it’s framed here and the flow of the information appears to be a judgment by the Court stating that this is definitely a child. Either I would ask that the word child be deleted from that in each of the paragraphs or that we have some sentence after that stating that the use of the word child in the previous paragraph does not indicate any judgment by the Court or any intent to tell you that it is definitely a photo of a child. That that is for the jury to decide.
The trial court overruled the defense’s objection and denied the defense’s request for an instruction. On appeal, Wilson argues that the language “which depicts a nude female child” was an improper comment by the trial court that the image was of a child.
Article 36.14 of the Texas Code of Criminal Procedure requires that a trial court provide a jury charge “distinctly setting forth the law applicable to the case” and must not express “any opinion as to the weight of the evidence.” Tex. Code Crim. Proc. Ann. art. 36.14. The charge must contain an accurate statement of the law and must set out all the essential elements of the offense. Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995). A charge that “assumes the truth of a controverted issue” is an improper comment on the weight of the evidence. Whaley v. State, 717 S.W.2d 26, 32 (Tex. Crim. App. 1986).
Here, the application paragraph instructed the jury to first find every fact listed beyond a reasonable doubt: “Now, if you find from the evidence beyond a reasonable doubt that ….” See Coplin v. State, 585 S.W.2d 734, 736 (Tex. Crim. App. [Panel Op.] 1979) (holding that a jury charge that tracked the language of the indictment after the phrase “if you find and believe” was not a comment on the weight of the evidence). Additionally, using the word “child” was not a comment on the weight of the evidence, as section 43.26(a) of the Penal Code provides that a person commits an offense if he knowingly or intentionally possesses visual material that “visually depicts a child younger than 18 years of age.” See Tex. Penal Code Ann. § 43.26(a) (West Supp. 2012) (emphasis added). In Casey v. State, 215 S.W.3d 870 (Tex. Crim. App. 2007), the court of criminal appeals held that an application paragraph, which used the word “victim” but tracked the language of the relevant statute, was not a comment by the trial court on the evidence. In Casey, the application paragraph provided,
Now if you find from the evidence beyond a reasonable doubt that . . . [appellant], acting alone or as a party, did . . . knowingly or intentionally cause penetration of the female sexual organ of [K.T.], without the consent of [K.T.], by . . . the sexual organ of [appellant], and [appellant], acting alone or as a party, did administer or provide a drug, namely: [GHB] to [K.T.], the victim of the offense, with the intent of facilitating the commission of the offense, then you will find the defendant guilty of aggravated sexual assault, as charged in the indictment.
Id. at 886 (alterations in original). The court of criminal appeals noted that section 22.021(a)(1)(A)(i)(2) provides that a person commits aggravated sexual assault if he “administers or provides flunitrazepam, otherwise known as rohypnol, [GHB], or ketamine to the victim of the offense with the intent of facilitating the commission of the offense.” Id. (emphasis in original). Thus, the charge in using the term “victim” was tracking the language of the statute. Id. at 886-87. The court was “not persuaded that the charge as written assumed the truth of a controverted issue or that the appearance of the word ‘victim’ in the charge without the modifier ‘alleged’ is a comment by the trial court which assumes the truth of a controverted issue – the issue of consent.” Id. at 887 (quotations omitted). Thus, the court of criminal appeals concluded that “[b]ecause the jury charge tracked the language of the statute, the trial court did not abuse its discretion by including the word ‘victim’ in the charge.” Id.
Finally, the phrase complained of by Wilson merely described the visual material at issue and tracked the language of the indictment. Generally, an application paragraph that tracks the pertinent language of the charging instrument is permissible. See Andrews v. State, 652 S.W.2d 370, 374 (Tex. Crim. App. 1983). In looking at the paragraph as a whole, it is clear the complained of phrase was merely describing the image and was not a comment by the trial court that the image depicted a child.
Conclusion
For the reasons explained, we affirm the judgments of the trial court.[5]
CONCURRING OPINION
Rebeca C. Martinez, Justice
This case raises issues surrounding the prosecution of possession of child pornography based on images found in temporary Internet files. Multiple courts have taken varying approaches to determine whether images in a computer’s temporary cache are sufficient to show knowing or intentional possession. Those that have chosen to view the “possession” in a cache as sufficient evidence of possession involved a defendant’s admitted history and practice of viewing child pornography, along with evidence of the defendant’s exercise of control over the images, i.e., copying to a hard drive, zooming in on the images, and purposeful deletion from the computer cache file. Such telling facts of possession are not found in Wilson’s case. Wilson does, however, admit to having viewed images of child pornography while viewing adult pornography. Because we are to view the evidence in the light most favorable to the verdict, the jury was free to reject Wilson’s claims and to determine that he intended to possess the child pornography images that were found in the computer’s temporary cache. Had Wilson not made such admissions, I believe the record would not support the jury’s finding without additional evidence of Wilson’s intent to, at a minimum, view and manipulate the illicit images for which he was charged.
For example, there was no evidence of usage patterns under Wilson’s user name to indicate a history of visiting child pornography websites, or behavior that indicates an intent to view or otherwise manipulate child pornography. Wilson relies on Moreland[1] for the Fifth Circuit’s position that where possession is evident only from temporary images found under the appellant’s computer profile, with nothing more indicated by the appellant’s behavior, the evidence is insufficient to show intent to possess child pornography.
Here, without Wilson’s admissions contained in the videotape, there are no facts to evidence an intent to possess the illicit images of children found in the computer’s temporary internet cache, and in particular, no evidence from which the jury could determine that Wilson had a history of and present sexual attraction to children. Both the small number of images (ten) and the brief time frame (five hours in one day) within which the illicit images were automatically stored in the temporary cache are by themselves insufficient to prove intentional possession of child pornography without any further definitive “action” on Wilson’s part. That he did not destroy or attempt to destroy or conceal said images is significant when deciding whether Wilson intended to possess and control any unlawful image. Further, there is no evidence that Wilson purposefully visited or subscribed to Internet sites for the express purpose of viewing child pornography, or otherwise behaved in such a way to indicate voluntary conduct leading to the images being stored in the cache in his computer.
I believe that without Wilson’s admissions, the inferences necessary to establish his guilt are not reasonable based on the lack of cumulative force of all the evidence considered in the light most favorable to the verdict. Accordingly, I respectfully decline to join the majority opinion, but I concur in the court’s judgment.
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