Tallion Kyle Taylor v. The State of Texas

Austin, TX - Criminal defense attorney represented Tallion Kyle Taylor with a Possession or Promotion of Child Pornography charge.

After appellant's ex-wife reported to the police that appellant had threatened, via

a cell phone text message, to disclose an intimate photograph of her, see Tex. Penal Code

§ 21.16(c) (providing that person commits offense if "person intentionally threatens to disclose,

without the consent of the depicted person, visual material depicting another person with the

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person's intimate parts exposed” and "actor makes the threat to obtain a benefit”), the police

obtained an evidentiary search warrant and seized appellant's cell phone in December 2015.

After eight digital images that police believed to be child pornography were discovered on the

cell phone, the police obtained subsequent search warrants to search appellant's home and

vehicle. Pursuant to the warrants, the police seized additional electronic devices belonging to

appellant, including a laptop, a USB drive, and SD cards from his home and vehicle. The police

discovered over 300 digital images on the seized electronic devices that they believed were child

pornography. Appellant, who was an attorney, was arrested and charged by indictment with ten

counts of possession of child pornography. See id. § 43.26(a) (prohibiting possession of "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”).

During the pendency of the case, appellant brought two separate appeals from the

trial court's orders denying his pretrial applications for writ of habeas corpus. See Ex parte

Taylor, No. 03-18-00481-CR, 2018 Tex. App. LEXIS 9252 (Tex. App.—Austin Nov. 14, 2018,

no pet.) (mem. op., not designated for publication); Ex parte Taylor, No. 03-16-00689-CR,

2017 Tex. App. LEXIS 10008 (Tex. App.—Austin Oct. 26, 2017, pet. ref'd) (mem. op., not

designated for publication). Appellant sought habeas relief on the ground that section 21.16(c)

of the Texas Penal Code, "the revenge porn statute,” was facially unconstitutional and, therefore,

that the initial search warrant to seize his phone was invalid because it was based on that section.

See 2018 Tex. App. LEXIS 9252, at *9; 2017 Tex. App. LEXIS 10008, at *6. In both

appeals, we concluded that appellant's claim was not cognizable on a pretrial application

for writ of habeas corpus and affirmed the trial court's order denying habeas relief. See

2018 Tex. App. LEXIS 9252, at *16–18; 2017 Tex. App. LEXIS 10008, at *11–12.

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The State's case against appellant proceeded to a jury trial in December 2018.

The State's witnesses were a sergeant and a detective, who testified about their respective roles

in pursuing and investigating the case against appellant; appellant's former secretary, who

testified about appellant's law firm and office; and a pediatrician, who testified about the stages

of maturation of females generally and her opinions as to the maturation of the female children

depicted in the images that the police found on appellant's electronic devices. The evidence

showed that the pornographic images on appellant's electronic devices had been deleted but that

the police found them through forensic examination. The evidence showed that an image that is

deleted from a phone or other electronic device does not cease to exist but its status changes

from allocated to unallocated and that it continues to exist in unallocated space until it has been

overwritten. The evidence also showed that the collection of images across all the seized devices

was of underage girls who were around the same age and race, including multiple series of

images of the same girl in different poses.

As to the eight pornographic images on appellant's cell phone, the detective

testified that they were uploaded to appellant's phone with over 500 other photos within a

"three-minute span” around 5:00 a.m. on September 11, 2015, and that the other photos in this

upload were of appellant's family and selfies of appellant. The detective found the pornographic

images in the "thumbnail gallery” of photos on the phone, explaining that the images had been

saved to the phone and then deleted.

1

The detective further testified that he found one image of

child pornography and documents from legal proceedings connected to appellant on the SD card

that was seized from appellant's vehicle, "over 200 images” of child pornography on the USB

1 The detective explained that a thumbnail image is a smaller version of the actual photo

that "kind of presents it in a gallery format” and is created when the actual photo is downloaded

to the phone.

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drive that was seized from his home, and thirty-three images of child pornography on the SD

card that was seized from his home.

The sergeant testified about his investigation of appellant, including interviews of

appellant, the search warrants, and the seizure of appellant's electronic devices. When the

sergeant showed appellant one of the pornographic images recovered from appellant's cell

phone, appellant's "exact words were, 'Oh shit,'” and appellant agreed that the two girls in the

image "definitely appeared to be underage.” Appellant, however, denied knowing how the

images got on his phone and changed his explanation over time, providing various possibilities

to the sergeant for how they might have gotten on it, including that AT&T transferred them to

the phone at the time he purchased the phone, which was on September 4, 2015 (seven days

before the images were uploaded); that the images were from an SD card that he purchased on

Craigslist; or that his ex-wife or a client put the images on his phone. He also initially denied

that he had a computer at his home, but after the police seized his laptop, which was a MacBook,

he admitted that it belonged to him and provided the password.

Appellant's former secretary testified that appellant, his former law partner

Felix Rippy, and the secretary worked at the law office until it closed in November 2015. Rippy

and appellant were friends and law partners who spent a lot of time together prior to the firm

closing. Although her testimony was at times inconsistent, the secretary testified that:

(i) appellant told her that he destroyed a client's computer in April 2015 after the client raised

concerns about searches for child pornography on the computer, (ii) appellant took his laptop

back and forth from his home, (iii) Rippy had his own computer, (iv) she never saw Rippy or

anyone but appellant use appellant's laptop, (v) she did not know the password for appellant's

laptop, and (vi) appellant used USB drives on his own. The secretary also testified that, when

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she gave grand jury testimony in March 2016, she was talking to Rippy almost every day and, as

far as she knew, appellant and Rippy were no longer in contact; that Rippy moved out of state

shortly after the law office closed in November 2015; that remaining items from the office were

moved to appellant's home, including Rippy's furniture; and that Rippy did not help pack up the

office because he "had pretty much taken care of his stuff.”

The State's exhibits included the pornographic images that were found on

appellant's electronic devices, audio recordings of the interviews with appellant, a quarantine log

from appellant's laptop,

2

and a report from the National Center for Missing and Exploited

Children (NCMEC) confirming that certain images found on the electronic devices were child

pornography of known victims.

3

Although the police did not find images of child pornography

on appellant's laptop, there was only one user "Tallion K,” "[a]ll the internet browsing history

had been deleted,” and the quarantine log documented events with the user name "Tallion K” of

over 1300 downloads from known child pornography websites on ninety-five different days

between November 12, 2012, and March 31, 2014. Pornographic images that were found on

appellant's other electronic devices corresponded to the child pornography websites in the

quarantine log.

4

2 The detective explained that the computer creates a quarantine log to protect itself

when something that is potentially harmful to the computer is downloaded.

3 The sergeant testified that the NCMEC confirms if the images are "confirmed images

of child victims through police agencies” by saying "'this victim was investigated by our agency,

and we confirm she is underage.'”

4 For example, pornographic images found on the SD cards and the USB drive contained

metadata that showed that the images were from the websites "jailbaits.in” and "xbbs.asia,”

which were websites that were in the quarantine log from appellant's laptop. The detective

testified that these websites are "places where people download child pornography.” The

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Referencing the State's exhibit containing the pornographic images found on

appellant's electronic devices, the detective and the pediatrician testified about their opinions

that the females in the images were underage. The detective explained the unique number

assigned to each image in the exhibit for identification purposes5

; testified that the images

appeared to be of underage girls; and referenced the unique number for particular images and

testified about those images, including that a particular image from the SD card found in

appellant's home was a lewd exhibition of a female child's breast and that it was confirmed by

NCMEC to be child pornography. He also testified that the image from the SD card found in

appellant's vehicle was a lewd exhibition of the female genitals, that the female in the image

appeared to be "well under the age of 18 with her legs spread open and the vagina being

displayed,” and that he saw over 200 similar images on appellant's electronic devices to the ones

he specifically testified about. The pediatrician similarly testified about particular images with

reference to their unique number in the exhibit, including an image of sexual intercourse

involving a prepubescent girl, and explained that she reviewed over 200 images and that most of

the images were of females in stages II and III of maturation. According to the pediatrician,

there are five stages of maturation from stage I, prepubescent, to stage V, full adult maturation.

The defense's theories at trial included that appellant was unaware of the

pornographic images on the electronic devices and that someone else—particularly, appellant's

metadata of a sampling of several images on the SD cards also showed that they were

downloaded using a "Safari” browser on an Apple operating system.

5 The detective explained that the four files in the State's exhibit containing the images

from appellant's electronic devices were grouped by the four electronic devices in which

pornographic images were found—the cell phone, the USB drive, and the two SD cards—and

each image had a unique number. For example, the images from appellant's cell phone were in

the file labeled "LG-H810 CP slideshow” and began with the letter "D” and then a number.

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former law partner Rippy—was responsible for the images being on the devices. The defense's

witnesses were an attorney who participated in an informal settlement conference at appellant's

law office in February 2015; a potential client, who visited the law office on April 5, 2013, at

noon to pick up paperwork; a digital forensic investigator, who did an acquisition of appellant's

cell phone; and the detective. The attorney testified that, on the day of the informal settlement

conference, there was a MacBook in the conference room and that Rippy used it. The

potential client testified that, when she arrived at the office to pick up her paperwork at noon on

April 5, 2013, only Rippy was there and he was in appellant's office using a computer. The

investigator testified that the State's version of what happened concerning the pornographic

images on the cell phone was possible but that, under its version, he would have expected the

actual images to be in the phone's "unallocated space” and not only in the thumbnail gallery

because of the amount of storage space available. He also testified that images do not have to be

downloaded for a thumbnail of the image to be made and that placing an SD card with child

pornography images into the cell phone could have created thumbnail images without saving the

images. The detective confirmed that the quarantine log for April 5, 2013—the day the potential

client saw Rippy in appellant's office around noon using a computer—showed "21 quarantine

events starting at 10:05 a.m. and ending at 11:52 a.m.”

The jury found appellant not guilty of seven counts6

and guilty of three counts—

Counts 3 (photograph depicting lewd exhibition of the female genitals), 7 (photograph depicting

6 Appellant was found not guilty of the following counts: Count 1 (photograph depicting

actual sexual intercourse), Count 2 (photograph depicting actual sexual intercourse), Count 4

(photograph depicting lewd exhibition of the anus), Count 5 (photograph depicting actual deviate

sexual intercourse), Count 6 (photograph depicting actual deviate sexual intercourse), Count 8

(photograph depicting actual deviate sexual intercourse), and Count 9 (photograph depicting

lewd exhibition of the female genitals).

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actual or simulated sexual intercourse or deviate sexual intercourse), and 10 (photograph

depicting lewd exhibition of the female breast below the top of the areola). See Tex. Penal Code

§ 43.26(a); see also id. § 43.25(a)(2) (defining "sexual conduct”). After hearing additional

evidence during the punishment phase of trial, the jury assessed appellant's sentence at 10 years'

confinement and a fine of $10,000 for Count 3; 10 years' confinement and a fine of $5,000 for

Count 7; and 10 years' confinement and a fine of $10,000 for Count 10. The jury also

recommended community supervision "of both the prison time and the fine” for Counts 3 and

10 and of the prison time only for Count 7. In accordance with the jury's verdicts, the trial court

thereafter signed judgments of conviction and suspended imposition of the sentences and fines,

except as to Count 7's fine of $5,000. This appeal followed.

ANALYSIS

Indictment

In his first point of error, appellant argues that the indictment did not give him

specific notice of the charges against him, "resulting in a constitutional violation which requires

automatic reversal.” Appellant complains about the State's failure to identify in the indictment

which specific images of child pornography that it sought to prove at trial and the trial court's

denial of his motion to quash the indictment, which was based on the same ground—the State's

failure to identify the specific images of child pornography in the indictment. The trial court

denied the motion to quash on October 19, 2016.

In criminal prosecutions, the accused has the constitutional right "to be informed

of the nature and cause of the accusation.” U.S. Const. amend. VI; see Tex. Const. art. I, § 10

(providing that accused in criminal prosecution "shall have the right to demand the nature and

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cause of the accusation against him, and to have a copy thereof”). An indictment "must be

specific enough to inform the accused of the nature of the accusation against him so that he may

prepare a defense.” State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004); see also Tex.

Code Crim. Proc. arts. 21.02 (listing requisites of indictment), .03 ("Everything should be stated

in an indictment which is necessary to be proved.”), .04 (stating that certainty "required in an

indictment is such as will enable the accused to plead the judgment that may be given upon it in

bar of any prosecution for the same offense”), .11 ("An indictment shall be deemed sufficient

which charges the commission of the offense in ordinary and concise language in such a manner

as to enable a person of common understanding to know what is meant, and with that degree of

certainty that will give the defendant notice of the particular offense with which he is charged,

and enable the court, on conviction, to pronounce the proper judgment. . . .”).

The question of whether an indictment provides sufficient notice of a charged

offense is a question of law. Hughitt v. State, 583 S.W.3d 623, 626 (Tex. Crim. App. 2019)

(citing Moff, 154 S.W.3d at 601). We therefore review de novo the trial court's denial of a

motion to quash that challenges the sufficiency of the evidence. Id.; Smith v. State, 309 S.W.3d 10,

13–14 (Tex. Crim. App. 2010). Further, when analyzing whether a charging instrument provided

adequate notice, we engage in a two-step analysis: (1) we identify the elements of the offense;

and (2) "whether the statutory language is sufficiently descriptive of the charged offense.” State

v. Zuniga, 512 S.W.3d 902, 907 (Tex. Crim. App. 2017). "Generally, an indictment that tracks

the language of the applicable statute will satisfy constitutional and statutory requirements.”

Hughitt, 583 S.W.3d at 626 (citing State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim. App. 1998));

see Moff, 154 S.W.3d at 602 (explaining that ordinarily, indictment is legally sufficient if it

tracks statutory language when "act constituting the offense is defined so that the accused is

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informed of the nature of the charge”). "The State need not allege facts that are merely

evidentiary in nature.” Smith, 309 S.W.3d at 14 (quoting Mays, 967 S.W.2d at 406).

Appellant argues that by failing to identify particular images, the indictment did

not give him sufficient notice of the charges against him, requiring him "to defend against over

300 images, rather than ten as alleged in the indictment, resulting in a constitutional violation.”

He maintains that he brought this problem to the trial court's attention during the motion to

quash by relating that "many of the individuals in the images did not appear to be children.” The

indictment, however, tracked the statutory language for the offense of possession of child

pornography and identified the specific "sexual conduct” for each count that the child was

alleged to have been engaging at the time of the image. See Tex. Penal Code § 43.26(b)

(defining "sexual conduct” to have meaning assigned by section 43.25). For example, the State

tracked the statutory language of the offense of possession of child pornography in Count 3 and

alleged that the child in the visual material was engaging in lewd exhibition of the

female genitals:

And it is further presented in and to said Court that the said Tallion Kyle

Taylor, in the County of Williamson and State aforesaid, on or about the 8th day

of December, 2015, did then and there, intentionally or knowingly, possess visual

material, to-wit: a disk, diskette, or other physical medium that allows an image to

be displayed on a computer or other video screen or any image transmitted to a

computer or other video screen by telephone line, cable, satellite transmission or

other method, 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: lewd exhibition of the

female genitals, . . .

See id. § 43.26(a), (b)(2) (defining "sexual conduct”), (b)(3) (defining "visual material”); see

also id. § 43.25(a)(2) (defining "sexual conduct” to include "lewd exhibition of the genitals”).

Similarly, Counts 7 and 10 tracked the statutory language: Count 7 alleged that the sexual

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conduct that the child was engaging was "actual or simulated sexual intercourse or deviate sexual

intercourse”; and Count 10 alleged "lewd exhibition of the female breast below the top of the

areola.” See id. § 43.25(a)(2) (defining "sexual conduct” to include "actual or simulated sexual

intercourse,” "deviate sexual intercourse,” and "lewd exhibition of . . . any portion of the female

breast below the top of the areola”).

We also observe that, when the State rested, appellant did not request that the

State elect the specific image on which it was relying as proof for each count. See Cosio v. State,

353 S.W.3d 766, 775–76 (Tex. Crim. App. 2011) (observing that defendant's decision to elect or

not elect is purely strategic choice made after weighing relevant considerations and that election

may be waived); Phillips v. State, 193 S.W.3d 904, 909–10 (Tex. Crim. App. 2006) (explaining

that before State rests, "trial court has discretion in directing State to make an election” but that

"once the State rests its case in chief,” trial court must require State to elect "on the timely

request of a defendant”); see also Cruz v. State, No. 11-17-00008-CR, 2019 WL 386537, at *2–3

(Tex. App.—Eastland Jan. 31, 2019, pet. ref'd) (mem. op., not designated for publication)

(overruling appellant's issue challenging trial court's denial of motion to quash indictment on

insufficiency ground and observing that appellant did not request State to elect which discrete

acts it was going to rely on for his three convictions).

Based on our review of the indictment, we conclude that it provided adequate

notice to appellant of the charges against him and that the trial court did not err when it denied

appellant's motion to quash the indictment. See Smith, 309 S.W.3d at 14 (observing that State

"need not allege facts that are merely evidentiary in nature” in charging instrument). We

overrule appellant's first point of error.

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Search Warrants

Appellant's second point of error challenges the validity of the search warrants in

this case on the ground that section 21.16(c) of the Texas Penal Code—the statute underlying the

initial search warrant to seize appellant's cell phone—is unconstitutional. In the probable cause

affidavit for the initial search warrant, the officer averred that he believed that appellant had

committed the offense of unlawful disclosure or promotion of intimate visual material by

threatening to disclose an intimate picture of his ex-wife and that evidence of the crime would be

found on appellant's cell phone. See Tex. Penal Code § 21.16(c). Appellant argues that his

"communications” that were set forth in the probable cause affidavit were "protected free

speech,” and, therefore, did not constitute a crime to establish probable cause. See U.S. Const.

amend. I; see also Tex. Code Crim. Proc. art. 18.01(b) (requiring "sworn affidavit setting forth

substantial facts establishing probable cause”).

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As support for his challenge to the constitutionality of section 21.16(c), appellant

analogizes section 21.16(c) to other provisions of the Texas Penal Code that courts have found to

be unconstitutional because they violated the First Amendment. See Ex parte Lo, 424 S.W.3d 10,

19–20 (Tex. Crim. App. 2013) (applying First Amendment overbreadth doctrine and concluding

that section 33.021(b) of Texas Penal Code, which criminalizes communicating online in

sexually explicit manner with minor, was facially unconstitutional because it was overbroad and

punished constitutionally protected speech or speech that was already prohibited by other

statutes); Ex parte Jones, No. 12-17-00346-CR, 2018 Tex. App. LEXIS 3439, at *14–16 (Tex.

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See also State v. Duarte, 389 S.W.3d 349, 354 (Tex. Crim. App. 2012) ("Probable

cause exists when, under the totality of the circumstances, there is a 'fair probability' that

contraband or evidence of a crime will be found at the specified location.” (citing Illinois

v. Gates, 462 U.S. 213, 238 (1983); State v. McLain, 337 S.W.3d 268, 272 (Tex. Crim.

App. 2011))).

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App.—Tyler May 16, 2018, pet. granted) (mem. op., not designated for publication) (concluding

that section 21.16(b), which criminalizes disclosure of visual materials depicting person's

intimate parts without consent, was facially unconstitutional in violation of Free Speech clause of

First Amendment because it was "an invalid content-based restriction and overbroad in the sense

that it violates rights of too many third parties by restricting more speech than the Constitution

permits”); but see Ex parte Lopez, No. 09-17-00393-CR, 2019 Tex. App. LEXIS 2375, at *11–

13 (Tex. App.—Beaumont Mar. 27, 2019, no pet.) (mem. op., not designated for publication)

(rejecting challenge based on First Amendment to facial constitutionality of section 21.16(b)).

In the context of this case, however, we need not determine the constitutionality

of section 21.16(c) because even if we were to conclude that it is unconstitutional, we would

conclude that the good-faith exception to the exclusionary rule applies. See Tex. Code Crim.

Proc. art. 38.23(b) (providing that evidence may be used that "was obtained by a law

enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral

magistrate based on probable cause”); McClintock v. State, 541 S.W.3d 63, 72–73 (Tex. Crim.

App. 2017) (explaining good-faith exception to exclusionary rule); Siller v. State, 572 S.W.3d 339,

344 (Tex. App.—Eastland 2019, no pet.) (applying directives from McClintock on remand and

concluding that good-faith exception applied to warrant that was based on criminal offense that

was declared unconstitutional after search and arrest warrant had been obtained and executed

because "objectively reasonable officer preparing the affidavit and executing the warrant in this

case would have believed that the warrant was not tainted by an element that would ultimately be

declared to be unconstitutional”); see also Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim.

App. 2009) ("Statutes are presumed to be constitutional until it is determined otherwise.”). In

this case, an objectively reasonable law enforcement officer would have been acting in good

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faith reliance on the initial search warrant to seize appellant's cell phone. See Tex. Code Crim.

Proc. art. 38.23(b); McClintock, 541 S.W.3d at 72–73; Siller, 572 S.W.3d at 344. On this basis,

we overrule appellant's second point of error.

Search of Appellant's Home

In his third point of error, appellant argues that "the search warrant for his home

did not authorize the search of his home.” Appellant does not dispute that the probable cause

affidavit identified his home with particularity as the place to be searched but argues that the

search warrant itself failed to do so, resulting in an unlawful search and seizure in violation of

the U.S. and Texas Constitutions and the Texas Code of Criminal Procedure. See U.S. Const.

amend. IV (requiring description of place to be searched to be "particularly” described in

warrant); Tex. Const. art. I, § 9 (requiring description of place to be searched to be "as near as

may be” in warrant); Tex. Code Crim. Proc. arts. 1.06 ("No warrant to search any place or to

seize any person or thing shall issue without describing them as near as may be, . . . .”), 18.04(2)

(requiring search warrant to identify "as near as may be, the person, place, or thing to

be searched”).

Appellant cites the language in the search warrant that identifies the place to be

searched as "the suspected mobile/cellular telephone” to argue that "the search of a cell phone,

rather than a residence, is not a simple error in grammar or an ambiguity of any kind.” Appellant

also relies on the sergeant's testimony during a pretrial hearing on appellant's motion to suppress

the evidence that was seized during the search of appellant's home. In his testimony, the

sergeant explained that he mistakenly referenced the place to be searched in the warrant. As to

the nature of the mistake, the sergeant testified that he "[didn't] know if you can call it a

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typographical error, but it certainly [was] an error that [he] missed that word in there,” and he

agreed that a defendant handed the search warrant "wouldn't be on notice of what was

being searched.”

The search warrant, however, "incorporated herein” the attached affidavit "for all

purposes,” and appellant does not dispute that the affidavit identified his home with particularity

as the place to be searched. "It is well settled when the affidavit is attached to the warrant, these

documents should be considered together as defining the place to be searched, but the description

in the affidavit controls over language in the warrant itself.” Long v. State, 132 S.W.3d 443, 446

& n.11 (Tex. Crim. App. 2004) (citing Riojas v. State, 530 S.W.2d 298, 303 (Tex. Crim. App.

1975)). Further, a search warrant's incorporation of an affidavit that describes the place to be

searched with particularity "would be sufficient to make the description of the place to be

searched a part of the warrant itself.” See Phenix v. State, 488 S.W.2d 759, 764 (Tex. Crim.

App. 1972).

Considering the warrant that "incorporated herein” the attached affidavit and the

affidavit together, we conclude that the search warrant, despite the mistaken description of the

place to be searched, authorized the search of appellant's home. See id.; State v. Saldivar,

798 S.W.2d 872, 873 (Tex. App.—Austin 1990, no pet.) (explaining that generally "warrant and

the attached affidavit should be considered together as defining the place to be searched, but the

description in the affidavit controls over the language of the warrant itself”); see, e.g., Strange

v. State, 446 S.W.3d 567, 572–73 (Tex. App.—Texarkana 2014, no pet.) (determining scope of

search warrant by examining warrant and affidavit and concluding that warrant that mistakenly

identified "vehicle” as place to be searched authorized search of residence because affidavit that

was "incorporated herein” described residence as place to be searched); Rios v. State,

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901 S.W.2d 704, 706–08 (Tex. App.—San Antonio 1995, no pet.) (finding that discrepancy

between affidavit, which described residence as place to be searched, and warrant, which

incorporated affidavit but identified "the suspected vehicle” as place to be searched, to be

"inadvertent mistake” that did not invalidate search warrant as to residence). We overrule

appellant's third point of error.

Legal Sufficiency of the Evidence

In his fourth point of error, appellant contends that the evidence was insufficient

to support his convictions for Counts 3, 7, and 10 because the State failed to prove "intentional

or knowing possession of any child pornography images” and "we do not know which images

Appellant was convicted of possessing or if the individual(s) in the photograph was under the

age of eighteen years.”

Standard of Review

Due process requires that the State prove, beyond a reasonable doubt, every

element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 316–17 (1979); Lang v. State,

561 S.W.3d 174, 179 (Tex. Crim. App. 2018). When reviewing the sufficiency of the evidence

to support a conviction, we consider all the evidence in the light most favorable to the verdict to

determine whether, based on that evidence and the reasonable inferences therefrom, any rational

trier of fact could have found the essential elements of the offense beyond a reasonable doubt.

Jackson, 443 U.S. at 319; Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). We

assume that the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew

reasonable inferences in a manner that supports the verdict. Jackson, 443 U.S. at 319.

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The trier of fact is the sole judge of the weight and credibility of the evidence.

See Zuniga v. State, 551 S.W.3d 729, 733 (Tex. Crim. App. 2018); Blea v. State, 483 S.W.3d 29,

33 (Tex. Crim. App. 2016); see also Tex. Code Crim. Proc. art 36.13 (stating that "the jury is the

exclusive judge of the facts”). When the record supports conflicting reasonable inferences, we

presume that the factfinder resolved the conflicts in favor of the verdict, and we defer to that

resolution. Zuniga, 551 S.W.3d at 733; Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App.

2016) (citing Jackson, 443 U.S. at 326).

"For the evidence to be sufficient, the State need not disprove all reasonable

alternative hypotheses that are inconsistent with the defendant's guilt.” Wise v. State,

364 S.W.3d 900, 903 (Tex. Crim. App. 2012); see Tate v. State, 500 S.W.3d 410, 413 (Tex.

Crim. App. 2016) (explaining that "State's burden does not require it to disprove every

conceivable alternative to a defendant's guilt”). Further, "[i]t is not necessary that the evidence

directly proves the defendant's guilt; circumstantial evidence is as probative as direct evidence in

establishing the guilt of the actor, and circumstantial evidence alone can be sufficient to establish

guilt.” Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013) (citing Hooper v. State,

214 S.W.3d 9, 13 (Tex. Crim. App. 2007)).

Our standard of review is the same for direct and circumstantial evidence cases.

Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016) (citing Hooper, 214 S.W.3d at

13); Wise, 364 S.W.3d at 903. We must "determine whether the necessary inferences are

reasonable based upon the combined and cumulative force of all the evidence when viewed in

the light most favorable to the verdict.” Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.

2015) (quoting Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)).

18

Possession of Child Pornography

A person commits the offense of possession of child pornography if the person

"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 "the person knows that the material depicts the child” in this manner. Tex. Penal

Code § 43.26(a). "'Possession' means actual care, custody, control, or management,” id.

§ 1.07(a)(39), and "sexual conduct” includes "actual or simulated sexual intercourse, deviate

sexual intercourse,” and "lewd exhibition of the genitals . . . or any portion of the female breast

below the top of the areola,” id. § 43.25(a)(2); see id. § 43.26(b)(2) (defining "sexual conduct” to

have meaning assigned by section 43.25). "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, with respect to the nature of his conduct or to circumstances surrounding his

conduct when he is aware of the nature of his conduct or that the circumstances exist.”

Id. § 6.03(b).

Appellant argues that the evidence was legally insufficient to support his

convictions based on the State's failure to identify which images on the State's exhibit "it was

submitting to the jury to prove its case” and the pediatrician's testimony that she could not

determine the age of a person based on a picture "but could only determine what state of

maturation they were in.” Appellant also cites the sergeant's testimony that he did not know

who put the images on the electronic storage devices, when they were put on and deleted from

those devices, or if appellant viewed the images to argue that the State failed to prove

"intentional or knowing possession of any child pornography images.” The sergeant admitted

19

that it was possible for someone to possess the storage devices in this case and be unaware that

there was child pornography on them.

As the Texas Court of Criminal Appeals has observed, there are "difficulties of

establishing criminal intent in the possession of computer pornography” and "peculiarities of

determining knowing or intentional possession of computer pornography.” Wise, 364 S.W.3d at

903–05; see id. (discussing two approaches to framing sufficiency analysis in cases involving

child-pornography images discovered in computer's cache or free space). Types of evidence that

courts have found to be sufficient to support a jury's determination that a defendant had

knowledge of child pornography on his computer include evidence that the images were found in

different files, "showing the images were copied or moved,” or on external storage devices and

evidence showing "the recovery of numerous images of child pornography from the defendant's

computer.” See Ballard v. State, 537 S.W.3d 517, 523 (Tex. App.—Houston [1st Dist.] 2017,

pet. ref'd). But "each case must be analyzed on its own facts.” Wise, 364 S.W.3d at 905. "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.” Id. (citing Hooper, 214 S.W.3d at 13).

In this case, the evidence showed that all of the images of child pornography were

found on appellant's cell phone and other electronic devices in appellant's possession and,

although the pornographic images had been deleted, appellant did not dispute that they remained

on the cell phone and other electronic devices when the police seized them. When asked by the

police, appellant did not dispute that the laptop and cell phone belonged to him and provided the

password for the laptop. The external storage devices—the SD cards and the USB drive that

were seized from his vehicle and home—also contained numerous images of child pornography.

20

The detective testified that there were over 200 images of child pornography on the USB drive

and thirty-three images of child pornography on the SD card found in appellant's home. See,

e.g., Ballard, 537 S.W.3d at 523 (including "numerous images” among types of evidence that

may be sufficient to establish knowledge of child pornography). The detective further testified

that the SD card that was found in appellant's vehicle and had an image of child pornography

also had documents from legal proceedings connected to appellant, and the secretary testified

that appellant used USB drives on his own.

Concerning the images of child pornography on appellant's cell phone, the

detective testified that (i) those images had been uploaded to the phone with over 500 other

images within a "3-minute span” on September 11, 2015, at around 5:00 a.m., which was about

one week after appellant purchased the cell phone; (ii) the other images in this upload were

pictures of appellant's family and selfies of appellant; and (iii) the pornographic images had been

saved to the phone and then deleted. See, e.g., id. (including evidence that images were moved

or saved among types of evidence that may be sufficient to establish knowledge of child

pornography). The sergeant testified that when he showed one of the images of child

pornography that was on the cell phone to appellant, appellant's "exact words were 'Oh shit'”

and appellant agreed that the females in the image "definitely appeared to be underage.” Further,

as to appellant's laptop, although no child pornography was found on it, the detective testified

that there was only one user "Tallion K,” the internet browsing history on the laptop had been

deleted, and the quarantine log documented events with the user name "Tallion K” of over

1300 downloads on ninety-five days between November 12, 2012, and March 31, 2014, from

known child pornography websites.

21

The jury also heard evidence that (i) specified images—identified by the unique

number in the State's exhibit—were of underage females engaging in actual sexual intercourse

and lewd exhibition of female genitals and breasts; (ii) most of the females in the images across

all of the devices were of a similar age and race; (iii) there were images that were confirmed by

NCMEC to be of child pornography; and (iv) images found on the SD cards and USB drive

contained metadata that showed that the images were from the websites "jailbaits.in” and

"xbbs.asia,” which were websites that were in the quarantine log from appellant's laptop.

Further, the jury was able to personally inspect the images. See Tex. Penal Code § 43.25(g)(2)

(authorizing jury to make determination whether child who participated in sexual conduct was

younger than eighteen years of age by personally inspecting photograph).

We again observe that to the extent appellant complains about the sufficiency of

the evidence because the State did not identify the particular images on which it was relying for

each count, appellant did not choose to elect after the State rested. See Cosio, 353 S.W.3d at 775

(explaining that defendant's decision to elect is purely strategic and that defendant may choose

not to elect because "the State is jeopardy-barred from prosecuting on any of the offenses that

were in evidence”); Phillips, 193 S.W.3d at 909–10 (explaining that trial court must require State

to elect "once the State rests its case in chief on the timely request of defendant”). And the jury

was instructed that it was "required to agree unanimously on which specific act on the part of the

defendant, if any, and which image, if any, provide[d] the basis for your guilty verdict for each

count.” See Casio, 353 S.W.3d at 776 (explaining that when defendant's decision is not to elect,

"jury must be instructed that it must unanimously agree on one incident of criminal conduct (or

unit of prosecution), based on the evidence, that meets all of the essential elements of the single

charged offense beyond a reasonable doubt”); see also Vineyard v. State, 958 S.W.2d 834, 838

22

(Tex. Crim. App. 1998) (concluding that possession of each image of child pornography is

"allowable unit of prosecution” under section 43.26 of Texas Penal Code).

Although there was no direct evidence that appellant viewed the images before

they were deleted from the electronic devices and the record does not establish which of the

images that the jury based its guilty verdicts for Counts 3, 7, and 10, we conclude that the jury

reasonably could have inferred from the cumulative force of all of the evidence that appellant

intentionally or knowingly possessed an image of an underage female engaging in the lewd

exhibition of female genitals, an image of an underage female engaging in actual or simulated

sexual intercourse or deviate sexual intercourse, and an image of an underage female engaging in

the lewd exhibition of the female breast below the top of the areola. See Wise, 364 S.W.3d at

905. Thus, considering the evidence in the light most favorable to the verdict, we conclude that

the evidence was sufficient to support appellant's convictions for Counts 3, 7, and 10. We

overrule appellant's fourth point of error.

Right to Present Defense

In his fifth point of error, appellant argues that he was deprived of his right to

present a full defense because the trial court excluded evidence that appellant sought to offer to

show that appellant's former law partner Rippy "was actually the one who possessed the images

of child pornography in this case.”

Applicable Law and Standard of Review

The United States Constitution guarantees criminal defendants "a meaningful

opportunity to present a complete defense.” Holmes v. South Carolina, 547 U.S. 319, 324

(2006) (quoting Crane v. Kentucky, 476 U.S. 683, 689-90 (1986)); see also U.S. Const. amends.

23

VI (compulsory process and confrontation of witnesses), XIV (due process). Showing that

someone else committed the crime falls within that right. See Wiley v. State, 74 S.W.3d 399, 406

(Tex. Crim. App. 2002) (explaining that "defendant obviously has a right to attempt to establish

his innocence by showing that someone else committed the crime”). However, "evidentiary

rulings rarely rise to the level of denying the fundamental constitutional rights to present a

meaningful defense.” Williams v. State, 273 S.W.3d 200, 232 (Tex. Crim. App. 2008) (quoting

Potier v. State, 68 S.W.3d 657, 663 (Tex. Crim. App. 2002)); accord Wiley, 74 S.W.3d at 405.

And, when evidence comes in an objectionable form, neither the Texas nor the United States

Constitutions require its admission. See Davis v. State, 313 S.W.3d 317, 329 n.26 (Tex. Crim.

App. 2010) (observing that constitutional right to "meaningful opportunity to present a complete

defense” is "qualified by requirement that the evidence be relevant and not excluded by an

established evidentiary rule”); Renteria v. State, 206 S.W.3d 689, 697 (Tex. Crim. App. 2006)

(concluding that admission of constitutionally relevant evidence is not required if it is otherwise

objectionable under state law); see also Crane, 476 U.S. at 690 (explaining that "we have never

questioned the power of States to exclude evidence through the application of evidentiary rules

that themselves serve the interests of fairness and reliability—even if the defendant would prefer

to see that evidence admitted”).

We review a trial court's decision to admit or exclude evidence for an abuse of

discretion. Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016); Sandoval v. State,

409 S.W.3d 259, 297 (Tex. App.—Austin 2013, no pet.). This standard applies even when the

accused complains, as appellant does here, that the exclusion of evidence denied him his

constitutional right to a meaningful opportunity to present a defense. See Miller v. State,

36 S.W.3d 503, 507 (Tex. Crim. App. 2001). An abuse of discretion does not occur unless the

24

trial court acts "arbitrarily or unreasonably” or "without reference to any guiding rules and

principles.” State v. Hill, 499 S.W.3d 853, 865 (Tex. Crim. App. 2016) (quoting Montgomery

v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)). Further, we may not reverse the trial

court's ruling unless the determination "falls outside the zone of reasonable disagreement.”

Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016); see Henley, 493 S.W.3d at 83

("Before a reviewing court may reverse the trial court's decision, 'it must find the trial court's

ruling was so clearly wrong as to lie outside the zone within which reasonable people might

disagree.'” (quoting Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008))). An

evidentiary ruling will be upheld if it is correct on any theory of law applicable to the case.

Henley, 493 S.W.3d at 93; Sandoval, 409 S.W.3d at 297.

Excluded Evidence

Among the defense's theories at trial, appellant contended that Rippy was the

perpetrator of the alleged offense—the one who possessed the images of child pornography in

this case. Evidence in support of this theory included that Rippy had access to and used

appellant's laptop when no one else was at the office, he moved out of state shortly after the

office closed and did not have further contact with appellant, and remaining items in the office,

including Rippy's furniture, were moved to appellant's home when the office closed in

November 2015. Appellant, however, contends that he was denied the opportunity to present

this defense because the trial court disallowed other evidence that he sought to offer about Rippy.

In particular, appellant complains about the exclusion of: (i) testimony from the sergeant

concerning Rippy's reputation in the community, (ii) testimony from the detective about what

Rippy told the detective during an interview that occurred in November 2017, and (iii) evidence

25

that Rippy contributed $5,000 to the then District Attorney's re-election campaign a few months

before he moved. He argues that "all of this evidence should have been admitted based on the

testimony of [the potential client], who put Rippy behind Appellant's computer during one of the

dates and times that the images of child pornography were allegedly downloaded in this case.”

The trial court sustained the State's objection to the sergeant's testimony about

Rippy's reputation on relevancy and improper-character grounds, and we cannot conclude that

the trial court abused its discretion in doing so. On voir dire examination outside the presence of

the jury, the sergeant testified that he was aware of Rippy's reputation as a "womanizer” and that

he was known for taking pictures of his "conquests” and showing those pictures and that Rippy

"would have been the first one [he] would have talked to” if all he knew about the case was that

child pornography had been found at the law office. Rippy's reputation of being a womanizer,

however, does not have any tendency to make it more or less probable that Rippy was the

possessor of the child pornography in this case. See Tex. R. Evid. 401 (stating test for relevant

evidence). The sergeant testified that Rippy's reputation was regarding consenting adults. The

trial court also reasonably excluded the evidence as improper character evidence. See id.

R. 404(a) (generally prohibiting evidence of person's character or character trait to prove that on

particular occasion person acted in accordance with character or trait).

Concerning the detective's testimony about what Rippy told him during the

interview in November 2017, the trial court sustained the State's objection on hearsay grounds.

See id. R. 801 (defining hearsay). On voir dire examination outside the presence of the jury, the

detective testified that Rippy told him during the interview that Rippy was no longer practicing

law but studying cyber security, and defense counsel asked him questions about what Rippy said

about "ten other empty chairs in this case,” "other tenants in his law firm,” "clients who smashed

26

computers in that office,” and "one client [who] even set fire to a computer.” The detective

testified that he did not believe that he asked Rippy for the names of tenants or the "ten other

empty chairs,” but he did remember Rippy telling him that a client had set a computer on fire and

"mentioned someone smashing a computer.”

Appellant argues he was not offering this testimony for the truth of the matter

asserted but to show that the detective "had knowledge that Rippy identified other suspects in

this case, but did not investigate them.” See id. R. 801(d). But even if the trial court erred in

excluding the detective's testimony for the limited purpose of showing his allegedly incomplete

investigation in this case or in excluding the testimony about Rippy no longer practicing law and

studying cyber security, appellant has not shown how the exclusion of this testimony violated his

constitutional rights by preventing him from presenting his defense that Rippy was the

perpetrator of the crime. See Wiley, 74 S.W.3d at 408 (observing that trial court's evidentiary

ruling "did effectively preclude appellant from presenting some of his evidence that perhaps

[another person] was somehow involved in the commission of the [offense]” but concluding that

appellant failed to show how ruling was "so clearly erroneous that it violated his constitutional

rights”); see, e.g., Segundo v. State, 270 S.W.3d 79, 101–102 (Tex. Crim. App. 2008)

(concluding that appellant's constitutional rights to present defense were not violated by trial

court's exclusion of hearsay evidence where appellant "could present his defense without resort

to unreliable hearsay”).

As to the trial court's denial of appellant's request to offer evidence that Rippy

made a political contribution to the District Attorney's re-election campaign four months before

moving out of town, appellant objected to the trial court's ruling "under the Sixth Amendment

right to put on a full defense.” Appellant argued to the trial court that this evidence was relevant,

27

but the trial court disagreed with him and denied its admission, and we cannot conclude that the

trial court abused its discretion in doing so. See Tex. R. Evid. 401. The fact that Rippy made a

campaign contribution before leaving town does not have any tendency to make it more likely

that he was the person who possessed the child pornography that was found on appellant's

electronic devices.

In this case, appellant was not prevented from presenting the substance of his

defense that Rippy was the perpetrator of the offense of possession of child pornography. Thus,

even if we were to conclude that the trial court abused its discretion in excluding any of

appellant's proffered evidence, we cannot conclude that his constitutional right to present a

defense was violated. See Wiley, 74 S.W.3d at 408; Potier, 68 S.W.3d at 665 (holding that "the

exclusion of a defendant's evidence will be constitutional error only if the evidence forms such a

vital portion of the case that exclusion effectively precludes the defendant from presenting a

defense”). We overrule appellant's fifth point of error.

Jury Instruction on Lesser-Included Offense of Attempted Possession

In his sixth point of error, appellant argues that he was improperly denied a jury

instruction on the lesser-included offense of attempted possession of child pornography because

the evidence reflected that the images had been deleted from the electronic devices and that they

were not viewable without an extraction tool.

Standard of Review

We review alleged jury charge error in two steps: first, we determine whether

error exists; if so, we then evaluate whether sufficient harm resulted from the error to require

reversal. Arteaga v. State, 521 S.W.3d 329, 333 (Tex. Crim. App. 2017); Ngo v. State,

28

175 S.W.3d 738, 743 (Tex. Crim. App. 2005). The degree of harm required for reversal

depends on whether the jury charge error was preserved in the trial court. Marshall v. State,

479 S.W.3d 840, 843 (Tex. Crim. App. 2016); see Almanza v. State, 686 S.W.2d 157, 171 (Tex.

Crim. App. 1985) (op. on reh'g) (setting forth procedure for appellate review of claim of jury

charge error).

Determining whether a defendant is entitled to a lesser-included-offense

instruction also is a two-part analysis. Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App.

2011); Hall v. State, 225 S.W.3d 524, 528 (Tex. Crim. App. 2007). We first consider whether

the offense contained in the requested instruction is a lesser-included offense of the charged

offense. Rice v. State, 333 S.W.3d 140, 144 (Tex. Crim. App. 2011); Hall, 225 S.W.3d at 535.

The first step of the analysis is a question of law, and it does not depend on the evidence to be

produced at trial. Rice, 333 S.W.3d at 144; see Hall, 225 S.W.3d at 535 (adopting pleadings

approach for first step: "the elements and the facts alleged in the charging instrument are used to

find lesser-included offenses”). "An offense is a lesser-included offense if . . . it consists of an

attempt to commit the offense charged or an otherwise included offense.” See Tex. Code Crim.

Proc. art. 37.09(4).

The second step of the analysis requires us to decide whether the admitted

evidence supports the instruction. Goad, 354 S.W.3d at 446; Rice, 333 S.W.3d at 144. We must

determine whether there is some evidence in the record that would permit a jury to rationally find

that, if the defendant is guilty, he is guilty only of the lesser-included offense. Rice, 333 S.W.3d

at 145; Guzman v. State, 188 S.W.3d 185, 188–89 (Tex. Crim. App. 2006). "The evidence must

establish the lesser-included offense as 'a valid, rational alternative to the charged offense.'”

Rice, 333 S.W.3d at 145 (quoting Hall, 225 S.W.3d at 536); Segundo, 270 S.W.3d at 91.

29

"[T]here must be some evidence directly germane to the lesser-included offense for the finder of

fact to consider before an instruction on a lesser-included offense is warranted.” Goad,

354 S.W.3d at 446 (quoting Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003)).

We consider all of the evidence admitted at trial, not just the evidence presented by the

defendant. Id. (citing Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993)).

"'Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser

charge.'” Goad, 354 S.W.3d at 446 (quoting Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim.

App. 1994)). We may not consider "'[t]he credibility of the evidence and whether it conflicts

with other evidence or is controverted.'” Id. at 446–47 (quoting Banda v. State, 890 S.W.2d 42,

60 (Tex. Crim. App. 1994)).

Attempted Possession of Child Pornography

The State concedes that attempted possession of child pornography is a lesserincluded offense of possession of child pornography. See Tex. Code Crim. Proc. art. 37.09(4);

see also Tex. Penal Code § 15.01(a) ("A person commits an offense if, with specific intent to

commit an offense, he does an act amounting to more than mere preparation that tends but fails

to effect the commission of the offense intended.”). Thus, the dispositive question is whether

there is some evidence in the record that would permit a jury to rationally find that, if appellant

was guilty, he was guilty only of attempted possession. See Rice, 333 S.W.3d at 145.

Appellant relies on the evidence that the images were deleted from the electronic

devices and not viewable without extraction tools as support for his position that the trial court

was required to instruct the jury on the lesser-included offense of attempted possession of child

pornography. There was no evidence, however, that appellant attempted but failed to possess the

30

images on his cell phone or other electronic devices. In order to attempt to access images on his

electronic devices, appellant would have to had known that they were on the devices. The

defense theory to the jury was that he was unaware of the images. If appellant was unaware of

the images, he did not knowingly or intentionally possess them. Alternatively, if he was aware

that the images were on his cell phone or other electronic devices, his possession of the cell

phone or other devices completed the offense of possession of child pornography. Thus, on this

record, there was no evidence that would have permitted the jury to rationally find that, if he was

guilty, he was guilty only of attempted possession of child pornography. See id. We overrule

appellant's sixth point of error.

Having overruled appellant’s points of error, we affirm the judgments

of conviction.