ANTHONY BRUCE CARTER, Appellant v. THE STATE OF TEXAS, Appellee

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AFFIRM; Opinion Filed December 14, 2006.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-05-01424-CR
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ANTHONY BRUCE CARTER, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 422nd Judicial District Court
Kaufman County, Texas
Trial Court Cause No. 22691-422
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MEMORANDUM OPINION
Before Justices Wright, O'Neill, and Lang-Miers
Opinion By Justice Lang-Miers
        Anthony Bruce Carter was convicted of four counts of possession of child pornography. See Tex. Pen. Code Ann. § 43.26(e) (Vernon 2003). The jury assessed punishment at eight years' confinement and a fine of $1500 on each count. On the jury's recommendation, the trial court suspended the imposition of confinement on each count and placed appellant on community supervision for eight years. Appellant challenges the legal and factual sufficiency of the evidence to support the convictions. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We affirm the trial court's judgments.
 
 
Background
 
        On October 2, 2003, Sgt. Jolie Stewart, an investigator in the crimes against persons division of the Kaufman County Sheriff's Office, received an anonymous tip about appellant's participation in an internet chat room. Sgt. Stewart contacted Gregory Dugger, a detective assigned to the internet crimes against children task force in the Dallas Police Department's child exploitation unit, for assistance in her investigation. On October 10, 2003, Sgt. Stewart, Detective Dugger, and two other detectives assigned to the task force went to appellant's home to execute a warrant for his computer. After talking with appellant and his wife, the officers obtained appellant's voluntary consent to search his home and seize his computer. An analysis of appellant's computer revealed several images depicting child pornography.
        The State charged appellant with seven counts of possession of child pornography. Each count was associated with a particular image retrieved from appellant's computer. At trial, these images were admitted as State's exhibits 8 through 14.
        Appellant testified he received the images depicted in exhibits 8, 9, and 10 in one closed file as an attachment to an email. He said the email was not addressed to him, contained no title in the subject line, and he had no reason to believe the attachment contained pornographic images of children. He received the email following his visit to an internet chat room, which he was visiting for the purpose of trading adult pornography. Appellant testified his practice was to download all email attachments to his My Documents folder. He said that is what he did with the email attachment containing the images in exhibits 8, 9, and 10.
        The evidence showed appellant's computer created files containing the images depicted in exhibits 8, 9, and 10 on October 9, 2003, the day before his computer was seized. Appellant said he opened all three images at the same time and, when he realized they contained child pornography, he immediately deleted them. He explained there were about three ways to delete a file and that he used one method to delete the image depicted in exhibit 8 and a different method to delete the images depicted in exhibits 9 and 10. Appellant later testified he inadvertently saved the image depicted in exhibit 8 to My Documents and sent the other two images directly to the recycle bin. He testified he believed he had permanently deleted all three images and was unable to access them.
        Appellant saved the images depicted in exhibits 11, 12, 13, and 14 to his My Documents folder on September 19 and 20, 2003. Appellant testified he did not believe exhibit 12 depicted a child under 18 because his wife's body has a similar shape to the female in the image and the female wore a wedding ring. He said the female depicted in exhibit 13 appeared to be 25 years old, and the female depicted in exhibit 14 did not appear to be a child because of her breasts. He was not asked why he did not delete the image depicted in exhibit 11.
        In his voluntary written statement given to police the day they seized his computer, appellant stated he “received and reviewed some child porno in the past but all has been deleted. All this happened on the Net. In AOL Chat is where this all took place.” He testified he was referring to the images depicted in exhibits 8, 9, and 10, the images he deleted.
        Lt. George York with the Kaufman County Sheriff's Office testified he is the information technology director for Kaufman County and is responsible for performing forensic analyses of computers for the sheriff's office. Lt. York explained his use of EnCase software to make an exact duplicate of appellant's hard drive, including deleted files. Although Lt. York testified he did not know when the images depicted in exhibits 8, 9, and 10 were first received onto appellant's computer, he testified EnCase showed they were saved to the My Documents folder on appellant's computer on October 9, 2003 around 12:47 a.m. He said these three images were deleted that same date and were not retrievable without special software. But he noted that before exhibit 9 was deleted, it was renamed from “Suck Dad with Sis Watching” to “Dc20.”   See Footnote 1 
        Lt. York testified appellant made the decision to place the images in the My Documents folder, rather than leaving them in the temporary internet files folder. He testified the EnCase analysis cannot determine how the images were received by the computer, whether by email, an internet search, or from a disk, but regardless of the method by which the images were received, appellant saved the images in exhibits 8, 9, and 10 to his My Documents folder before deleting them. And the images in exhibits 11, 12, 13, and 14 had not been deleted. Lt. York testified the EnCase analysis did not tell him how long appellant had the images in exhibits 9 and 10 before he placed them in the recycle bin.
        Lt. York testified he found hundreds of thousands of images on appellant's computer and these seven images were the ones isolated as containing child pornography. He testified the children depicted in the images are “likely under the age of 18” because they appeared to him to be under age 18 but he did not know the children or their dates of birth to testify definitively. Detective Dugger testified he could not determine whether the females depicted in exhibits 9, 11, 12, 13, and 14 were under the age of 18.
        Lt. York testified he also ran an EnCase analysis on appellant's computer to look for internet search queries. Using the key word “pedophile,” he found several queries that had been run from appellant's computer, including “pedophile sex stories,” “pedophile,” “free pedophile sex,” and “pedophile stories.”
        The State abandoned count four (exhibit 11) during trial. The jury acquitted appellant of counts six and seven (exhibits 13 and 14) and convicted him of counts one, two, three, and five (exhibits 8, 9, 10, and 12). Appellant challenges the sufficiency of the evidence to show he knowingly or intentionally possessed the images in exhibits 8 and 10. He challenges the sufficiency of the evidence to show the images in exhibits 9 and 12 depict a child under age 18.
 
Standards of Review
 
        We apply well-known standards when reviewing legal and factual sufficiency challenges. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (legal sufficiency); Watson v. State, 204 S.W.3d 404, 416-17 (Tex. Crim. App. 2006) (factual sufficiency). Under both standards, the fact finder is the sole judge of the witnesses' credibility and the weight to be given their testimony, and is free to accept or reject any or all of the evidence presented by either side. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003); Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). We may not substantially intrude on the jury's role as sole judge of the weight and credibility given to witness testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). The jury is free to accept or reject any or all of the evidence presented by either side. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). And reconciling conflicting testimony is within the exclusive province of the jury. Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001). We measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. See Fuller v. State, 73 S.W.3d 250, 252 (Tex. Crim. App. 2002); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). And we will only reverse a jury's verdict if the record clearly shows a different result is required to prevent a manifest injustice. See Watson, 204 S.W.3d at 416-17; see also Johnson v. State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000).
 
Applicable Law
 
        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 the material depicts such a child. Tex. Pen. Code Ann. § 43.26(a). Visual material includes any physical medium that allows an image to be displayed on a computer and any image transmitted to a computer by telephone line, cable, satellite transmission, or other method. Id. § 43.26(b)(3). “Sexual conduct” includes sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, and lewd exhibition of the genitals. Tex. Pen. Code Ann. § 43.25(a)(2) (Vernon Supp. 2006).
Possession of the Photographs
 
        Issues one and two assert the evidence is legally and factually insufficient to establish appellant knowingly or intentionally possessed the images in counts one and three (State's exhibits 8 and 10). In his brief, appellant asserts the State failed to prove he exercised actual care, custody, control, or management over these images because he deleted the files immediately when he realized they contained pornographic images of children. In oral argument, appellant refined his argument. He now contends the evidence is insufficient to show he knowingly or intentionally possessed the images because the State offered no evidence of the amount of time the images were on his computer before they were deleted. And he contends his connection to these images was merely fortuitous.
        We first address the meaning of the terms. A person possesses a thing when he exercises actual care, custody, control, or management over the thing. Tex. Pen. Code Ann. § 1.07(a)(39) (Vernon Supp. 2006). A person acts intentionally when it is his conscious objective or desire to engage in the conduct or to cause the result. Tex. Pen. Code Ann. § 6.03(a) (Vernon 2003). A person acts knowingly when he is aware of the nature of his conduct or that the circumstances exist or when he is aware that his conduct is reasonably certain to cause the result. Id. § 6.03(b). Proof of a culpable mental state almost invariably depends upon circumstantial evidence. See Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991). A jury can infer knowledge from all the circumstances, including the acts, conduct, and remarks of the accused and from the surrounding circumstances. See Dillon v. State, 574 S.W.2d 92, 94 (Tex. Crim. App. 1978).
        The evidence shows appellant testified inconsistently about his receipt and deletion of the images in exhibits 8 and 10. At one point, he said he saved these images to his My Documents folder. At another point, he testified he inadvertently saved exhibit 8 to his My Documents folder and sent exhibits 9 and 10 directly to the recycle bin. In his written statement, he stated “all this happened” on an internet chat room, but he testified he received the images through email. Appellant also admitted he reviewed the images, although he testified he deleted them immediately upon realizing they contained child pornography.
        The computer analysis shows that appellant chose to save the images in My Documents. Otherwise, according to Lt. York, the images would have been retrieved from his temporary internet files folder. And the evidence showed appellant renamed exhibits 9 and 10 before deleting them. Further, several internet search queries using the word “pedophile” were found on appellant's computer. Appellant did not deny making these searches; he said he did not remember making them. And in his statement, appellant admitted he had reviewed child pornography in the past, although he testified he was referring to the images in exhibits 8, 9, and 10, which he claimed he immediately deleted.
        Appellant does not cite any authority to support his argument that the State must prove the length of time the images were on appellant's computer. The penal code states that possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control. Id. § 6.01(b). The jury was free to believe some, all, or none of appellant's testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). And the jury has the exclusive duty of reconciling conflicts in the evidence. See Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). We conclude the jury could have reasonably concluded appellant knowingly or intentionally possessed the images depicted in exhibits 8 and 10 under either theory of possession.
        Having reviewed the evidence under the appropriate standards, we conclude it is both legally and factually sufficient to show appellant knowingly or intentionally possessed child pornography depicted in State's exhibits 8 and 10. We overrule appellant's first and second issues.
 
Child Younger than 18 Years of Age
 
        Issues three and four assert the evidence is legally and factually insufficient to support appellant's conviction under counts two and five (State's exhibits 9 and 12) because the evidence shows the State's expert was unable to determine whether the females depicted in these images were under the age of 18.
        Detective Dugger testified that in his work he has reviewed close to a million images of children. He said, regarding the females depicted in exhibits 9 and 12, “[T]o me the child could be 18 or could be under. I'm just not able to give a firm decision on that.” Detective Dugger testified similarly regarding the females depicted in exhibits 13 and 14, and the jury acquitted appellant of the counts related to those images.
        Appellant argues the jury “obviously accepted” the expert's opinion on two of the images, but “totally replaced” the expert's opinion with their own on the other two images. He asks us to conclude that when the only testimony of the child's age is from the State's expert who testified he could not determine the age, the evidence is factually insufficient. We decline to do so.
        Determination of the age of a child in a possession of child pornography case is a fact issue. See Tex. Pen. Code Ann. § 43.25(g) (Vernon 2003). The fact finder may make this determination by any of several 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. Id. The fact finder may also use common sense and apply common knowledge, observation, and experience gained in the ordinary affairs of life when giving effect to the inferences that may reasonably be drawn from the evidence. See Griffith v. State, 976 S.W.2d 686, 690 (Tex. App.-Tyler 1997, pet. ref'd).
        The penal code does not require expert testimony to determine a child's age in a possession of child pornography case. See Tex. Pen. Code Ann. § 43.25(g). A jury is free to accept or reject the testimony of an expert witness. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986) (judgments and inferences of experts not conclusive on jury or trier of fact); SAS & Associates, Inc. v. Home Marketing Servicing, Inc., 168 S.W.3d 296, 300, (Tex. App.-Dallas 2005, pet. denied). And Detective Dugger did not testify the females depicted in exhibits 9 and 12 are age 18 or over; he testified he could not give a firm decision about whether they were under age 18. Additionally, Detective Dugger's testimony is not the only evidence of the age of the children depicted in the images. Lt. York testified exhibits 8 through 14 are the images he retrieved from appellant's computer that represented child pornography.
        Here, the jury reviewed the images and determined the girls depicted in exhibits 9 and 12 were under the age of 18 at the time the images were made. We have found nothing in the record that requires us to reverse that finding. We conclude the evidence is both legally and factually sufficient to support the jury's verdict. We overrule appellant's issues three and four.
 
 
 
        We affirm the trial court's judgments.
 
 
                                                          
                                                          ELIZABETH LANG-MIERS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
051424f.u05
 
Footnote 1 Although Lt. York did not so testify, a review of the record shows that exhibit 10 also was renamed, from “Suck Deep” to “Dc19,” before it was deleted.

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