COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-282-CR
RUBEN WENGER V A/K/A REUBEN V. WENGER APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
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OPINION
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I. Introduction
Appellant Ruben Wenger appeals his conviction on three counts of
promotion of child pornography and four counts of possession of child
pornography as alleged in the same indictment. Appellant argues that the
evidence is legally and factually insufficient to support his conviction on the
promotion counts and that the trial court abused its discretion in overruling his
hearsay objection and in admitting extraneous offense evidence of possession
of child pornography.
II. Factual and procedural background
Sergeant Ried, an agent with the Attorney General’s Cyber Crimes unit,
testified that on November 28, 2005, he used file-sharing software called
Shareaza to access the Internet through a covert access point in his office in
Austin. Shareaza is a peer-to-peer 1 file sharing software that allows a user to
search for music, movies, and image files and download them from other
Shareaza users’ computers. A Shareaza user can type exactly what he or she
is looking for via search terms, and a results list will appear with download links
for the user to choose from. The software also allows a user to select another
user’s Internet protocol (“IP”) address 2 and browse all files available from that
user’s collection. Downloads from Shareaza are automatically placed in a
“Shared” folder created by the software on the user’s computer. By default,
Shareaza automatically shares the items downloaded with other Shareaza users.
1
… Sergeant Ried defined “peer-to-peer” in this context as a “computer
to computer connection,” and as Detective Lawrence later explained, there is
“no central location”; rather, a file is “shared amongst all the computers hooked
up to the network at that time.”
2
… An IP address is a unique 32-bit-long code number that each computer
acquires automatically through its Internet access provider for connecting to the
Internet. http://www.businessdictionary.com/definition/IP-address.html (last
visited June 17, 2009).
2
For his investigation, Sergeant Ried used a special search term popular in
the child pornography community and discovered several results. Over
Appellant’s hearsay objection, the trial court allowed Sergeant Ried to testify
that he downloaded child pornography files from the IP address assigned to
Appellant by his Internet service provider. He stated that IP addresses are like
telephone numbers, assigned to only one person. Based on the child
pornography 3 Sergeant Ried downloaded from Appellant’s IP address, he
obtained a grand jury subpoena and a search warrant. Police executed the
warrant on Appellant’s residence on February 8, 2006. Sergeant Ried retrieved
a computer from the residence and took a statement from Appellant’s wife.
During trial, the State played an audio recording of a February 8, 2006
interview between Sergeant Ried, Sergeant Smith, and Appellant while they
were at the Fort Worth police substation after the warrant was executed.
Sergeant Ried testified that, before taking the statement, he read Appellant his
Miranda 4 rights and did not make any promises or threats regarding Appellant’s
making the statement. In the recording, Sergeant Ried read the Miranda rights,
3
… Sergeant Ried downloaded three files from Appellant’s IP address: one
file containing actual sexual intercourse, one file containing actual lewd
exhibition of female genitals, and one file containing actual sexual conduct.
4
… Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966); see Tex.
Code Crim. Proc. Ann. art. 38.22, §2 (Vernon 2005).
3
told Appellant that he was not under arrest, and informed Appellant that he
could ask to go home at any time. Appellant voluntarily waived his Miranda
rights and spoke with the officers.
After waiving his Miranda rights, Appellant confirmed that he was the
primary user of both the computer and the installed Shareaza software. He
claimed that a neighborhood child used the computer occasionally, along with
his son. He stated that he formerly used the file-sharing software Kazaa but
switched to Shareaza. He installed Shareaza and registered his name,
hometown, state, and zip code on the software’s user information section. He
registered his user name as “C.W.” because his nickname was Chip Wenger.
Appellant stated initially that he had only movies and “straight” pornographic
images on his computer. He denied having child pornography and stated that
he did not know how it came to be on his computer unless it was “clicked on
accidentally.” He stated that he “[tried] to view everything that gets
downloaded.” Appellant admitted that he had searched for files containing the
words “young” and “Lolita,” but denied having used other search terms
associated with child pornography.
After Sergeant Ried confronted Appellant by informing him that he had
personally downloaded child pornography from Appellant’s IP address, Appellant
admitted that the ages of the children in the videos on his computer were “very
4
early teens” and that the youngest child was “probably eight.” Appellant
described the video of the youngest child and said that the video was in his
“Shared” folder. He explained that he was curious about the visual material.
Appellant denied finding the material sexually arousing, but compared his
viewing of the pornographic images and videos to the “Taliban beheading
[video],” stating that “you’d watch it even though you find it disgusting, but
you are drawn to it.” He admitted he knew it was illegal.
When asked if he knew how many times he had “allowed people to
upload those videos of child pornography from [his] computer,” Appellant
replied that he “had no idea.” When asked if he was “aware that [it was
possible for] people [to] upload . . . [his] files,” Appellant stated, “I’m assuming
that it is, . . . but I think it says that it is—that’s part of Shareaza is that
[] . . . that’s your way to use it is that people pull files from members.”
Appellant then claimed that he “did not know how to not share and share and
separate those items out.” He ultimately admitted that there were “probably
300” videos of child pornography on his computer. Appellant described some
files as located in folders that had titles such as “extreme,” “amateur,” “group,”
5
“toy,” and “young.” He explained that after he obtained the files from
Shareaza, he would create “subfolders” and move the files.5
The State offered into evidence the files that Sergeant Ried downloaded
from Appellant’s IP address during his November investigation.6 Sergeant Ried
stated that the files included both videos and photo images of children under
eighteen, including the children’s genitalia and children engaging in sexual
activity. He testified that one can preview partially downloaded files on
Shareaza.
While Sergeant Ried testified about the steps of his investigative process
on November 28, 2005, the State offered into evidence an exhibit of Shareaza
screen captures 7 that showed a folder on a computer at Appellant’s IP address
with a list of labeled subfolders and 900 files that included file names
5
… Officers did not arrest Appellant at the time of the statement; they
arrested him four months later in June 2006.
6
… Exhibit 7 was a digital video with the file name “age6-3 (reelkiddymov
child abuse underage pre-teen kiddy r@ygold bond age rape molest).mpg.”
Exhibit 8 was also a video, and its file name was “2_p-e-d-o lolita R@ygold
PTHC incest 8 9 10 11 12 yo collection 053 (50).jpg.” Exhibit 9 was a
photograph, and its file name was “6 year old girl_finger in pussy_preteen child
underage pedo P-E-D-O baby incest reelkiddymov(1)(1)(1)(1).jpg.”
7
… Also called a “screen shot,” a screen capture is a reproduction of the
current display on a computer screen, saved as a graphics file. See
Dictionary.com, http://dictionary.reference.com/browse/screen%20shot (last
visited June 17, 2009).
6
graphically describing both adult and child pornography. After a rule 403
objection and lengthy voir dire, the trial court overruled the objection and
admitted the screen captures into evidence. The trial court gave Appellant a
running objection to that evidence.
Detective Lawrence testified that he worked in the Computer Crime Detail
of the Major Crimes section of the Fort Worth Police Department, where he
investigated computer crimes and conducted computer forensics. He
conducted a forensic examination on Appellant’s computer after it was seized.
He located the images alleged in the indictment on Appellant’s computer and
testified that, in his opinion, those images constituted child pornography.
Detective Lawrence explained that Appellant had stored his pornography
under the “My Documents” folder of a second hard drive, D:. He stated that
the terms used in the file names, such as “age 6-3 (reelkiddymov child abuse
underage preteen r@ygold bond age rape molest).mpg,” were common to his
child pornography investigations. He testified that one file was last accessed
on February 7, 2006. He also testified about the organization of the files on
the second hard drive and stated that they were “pretty well organized.” He
stated that, in his opinion, Appellant’s possession of the child pornography was
not inadvertent, based on the organizational structure of the files and the
number of files on the computer.
7
Detective Lawrence confirmed that he found on Appellant’s computer all
three of the files Sergeant Ried had downloaded via Shareaza on November 28,
2005. Detective Lawrence added that there were other child pornography
pictures found in several subfolders other than the “young” subfolder. He also
testified that unlike the default Shareaza installation, where downloaded files
are automatically shared, Appellant’s computer had separate folders for
downloaded and shared files and that files had to be moved from the
“Download” folder to the “Shared” folder to share the files in question. He
demonstrated how a person could make changes to his or her sharing settings
by simply selecting “Shareaza Settings.”
Appellant was charged by indictment with promotion of child pornography
by disseminating visual material on counts one through three of the indictment
and possession of child pornography on counts four through seven. The jury
returned a verdict of guilty on all counts and assessed a punishment of fifteen
years for each promotion count and ten years for each possession count, with
some of the sentences consecutive and others concurrent.
III. Legal and factual sufficiency of the evidence for intentional promotion by
dissemination
Appellant argues that there was insufficient evidence to prove he actually
and intentionally disseminated child pornography or that he had specific
8
knowledge that the material was child pornography prior to dissemination
because there was no proof that he saw the three files alleged to have been
shared or that he intended to share the same.
a. Legal sufficiency: standard of review
In reviewing the legal sufficiency of the evidence to support a conviction,
we view all the evidence in the light most favorable to the prosecution in order
to determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007).
This standard gives full play to the responsibility of the trier of fact to
resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at
319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the
sole judge of the weight and credibility of the evidence. See Tex. Code Crim.
Proc. Ann. art. 38.04 (Vernon 1979); Brown v. State, 270 S.W.3d 564, 568
(Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075 (2009). Thus, when
performing a legal sufficiency review, we may not re-evaluate the weight and
credibility of the evidence and substitute our judgment for that of the factfinder.
Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied,
9
529 U.S. 1131 (2000). Instead, we “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.” Hooper
v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We must presume
that the factfinder resolved any conflicting inferences in favor of the
prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct.
at 2793; Clayton, 235 S.W.3d at 778.
b. Factual sufficiency: standard of review
When reviewing the factual sufficiency of the evidence to support a
conviction, we view all the evidence in a neutral light, favoring neither party.
Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008); Watson v. State,
204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We then ask whether the
evidence supporting the conviction, although legally sufficient, is nevertheless
so weak that the factfinder’s determination is clearly wrong and manifestly
unjust or whether conflicting evidence so greatly outweighs the evidence
supporting the conviction that the factfinder’s determination is manifestly
unjust. Lancon v. State, 253 S.W.3d 699, 704 (Tex. Crim. App. 2008);
Watson, 204 S.W.3d at 414–15, 417. To reverse under the second ground,
we must determine, with some objective basis in the record, that the great
10
weight and preponderance of all the evidence, though legally sufficient,
contradicts the verdict. Watson, 204 S.W.3d at 417.
In determining whether the evidence is factually insufficient to support a
conviction that is nevertheless supported by legally sufficient evidence, it is not
enough that this court “harbor a subjective level of reasonable doubt to
overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly
wrong or manifestly unjust simply because we would have decided differently
than the jury or because we disagree with the jury’s resolution of a conflict in
the evidence. Id. We may not simply substitute our judgment for the
factfinder’s. Johnson v. State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000); Cain
v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Unless the record
clearly reveals that a different result is appropriate, we must defer to the jury’s
determination of the weight to be given contradictory testimonial evidence
because resolution of the conflict “often turns on an evaluation of credibility
and demeanor, and those jurors were in attendance when the testimony was
delivered.” Johnson, 23 S.W.3d at 8. Thus, unless we conclude that it is
necessary to correct manifest injustice, we must give due deference to the
factfinder’s determinations, “particularly those determinations concerning the
weight and credibility of the evidence.” Id. at 9. Our deference in this regard
safeguards the defendant’s right to a trial by jury. Lancon, 253 S.W.3d at 704.
11
An opinion addressing factual sufficiency must include a discussion of the most
important and relevant evidence that supports the appellant’s complaint on
appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
c. Applicable law
The offense of promotion of child pornography is described under penal
code section 43.26(e), which provides that “a person commits an offense if:
(1) the person knowingly or intentionally promotes or possesses with intent to
promote material described by Subsection (a)(1); and (2) the person knows that
the material depicts the child as described by Subsection (a)(1).” Tex. Penal
Code § 43.26(e) (Vernon 2003). Section (a)(1) of the statute describes the
offense of possession of child pornography: “[a] person commits an offense if:
(1) 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. Id. § 43.26(a).
The term “promote,” as defined under section 43.25(a) of the penal code,
means “to procure, manufacture, issue, sell, give, provide, lend, mail, deliver,
transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit,
or advertise or to offer or agree to do any of the above.” Id. § 43.25(a)(5)
(Vernon 2007). 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
12
objective or desire to engage in the conduct or cause the result. Id. § 6.03(a)
(Vernon 2003). 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 or when
he is aware that his conduct is reasonably certain to cause the result. See id.
§ 6.03(b).
Circumstantial evidence can be used to prove intent and knowledge. See
Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004); Dillon v. State,
574 S.W.2d 92, 94 (Tex. Crim. App. 1978); Krause v. State, 243 S.W.3d 95,
111 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). The trier of fact may
infer intent and knowledge from the acts, words, and conduct of the accused.
Guevara, 152 S.W.3d at 50; Dues v. State, 634 S.W.2d 304, 305 (Tex. Crim.
App. 1982).
d. Analysis
Appellant challenges the sufficiency of the evidence on three grounds.
Appellant argues that the evidence is insufficient to prove (1) that he actually
disseminated the child pornography; (2) if he disseminated the child
pornography, that the dissemination was intentional or knowing; and (3) that
he knew the files in question contained child pornography before Sergeant Ried
13
downloaded them from his computer. We will address each ground separately
in our analysis.
1. Actual dissemination
In the first part of his sufficiency challenge, Appellant argues that the
evidence is insufficient to prove that he actually “disseminated” child
pornography. Implicit in his argument is the question of whether sharing digital
files through peer-to-peer software like Shareaza constitutes “dissemination.”
Several courts have held that making child pornography available for
others to access and download through peer-to-peer file-sharing software
qualifies as “distribution” or “delivery” to others. See United States v. Sewell,
513 F.3d 820, 822 (8th Cir.) (stating that, in the context of file-sharing
software Kazaa, “placing a file in a shared folder with descriptive text is clearly
an offer to distribute the file”), cert. denied, 128 S. Ct. 2517 (2008); United
States v. Carani, 492 F.3d 867, 876 (7th Cir. 2007) (holding that making
pornography available on file-sharing software qualifies as “distribution”), cert.
denied, 128 S. Ct. 932 (2008); United States v. Shaffer, 472 F.3d 1219, 1223
(10th Cir. 2007) (concluding that Shaffer distributed child pornography in the
sense of having “delivered,” “transferred,” “dispersed,” or “dispensed” it to
others via his computerized stash of images and videos within his Kazaa file-
sharing software).
14
In United States v. Shaffer, the 10th Circuit Court of Appeals analogized
the making available of child pornography through peer-to-peer file sharing
software to a self-serve gas station. See Shaffer, 472 F.3d at 1223. At a self-
serve station, while there may be a roadside sign directing motorists to fill up
their own tanks and the owner or attendants may not be present at the station,
there is “no doubt that the owner is in the business of distributing, transferring
or dispersing gasoline.” Id. at 1223–24. Much like the gas station owner, the
defendant in Shaffer “welcomed people to his computer and was happy to let
them take child pornography from it.” Id. at 1224. Thus, just as the owner of
a self-serve gas station “distributes” gasoline, one who shares files on a peer-
to-peer network “distributes” those files. See id.
Shaffer and the other cases cited above analyzed the term “distribution,”
but in the context of peer-to-peer file sharing, there is no significant difference
between “distribution” and “dissemination.” “Distribute” means, among other
things, to spread out; to scatter; to give or deliver, especially to members of a
group. Webster’s Ninth New Collegiate Dictionary 368 (1987).
“Dissemination” means to spread; to disperse throughout. Id. at 366. Because
the terms “distribute” and “dissemination” have similar meanings, the cases
holding that peer-to-peer file sharing is “distribution” persuasively answer the
question of whether the same activity constitutes “dissemination.” Mindful that
15
penal code section 43.25(a) defines “promote” to mean both “distribute” and
“disseminate,” we hold that making digital files available to others through peer-
to-peer file sharing software like Shareaza is “dissemination” within the
meaning of section 43.25(a).
The jury heard ample evidence regarding Appellant’s dissemination of the
child pornography files to Sergeant Ried on November 28, 2005. Sergeant Ried
and Detective Lawrence both testified about how their investigations resulted
in finding child pornography files stored in subfolders within Appellant’s
“Shared” folder on his computer. Sergeant Ried explained his process of
searching for child pornography on Shareaza and described how he retrieved the
indicted files from Appellant’s computer by downloading them to his computer
in Austin. Detective Lawrence confirmed that, in February 2006, his forensic
investigation revealed that Appellant’s seized computer contained the same files
and user-created subfolders discovered by Sergeant Ried’s November
investigation. Thus, the evidence was legally and factually sufficient to prove
that Appellant actually disseminated child pornography. See Sewell, 513 F.3d
at 822; Carani, 492 F.3d at 876; Shaffer, 472 F.3d at 1223.
2. Intentional or knowing dissemination
Next, Appellant argues that there was insufficient evidence to prove he
intentionally or knowingly disseminated the files in question. Appellant
16
highlights the testimony that under Shareaza’s default settings, the program will
share a user’s downloaded files automatically. Although Detective Lawrence
testified that Appellant had changed the default settings sometime before the
State seized his computer so that Appellant had to manually move downloaded
files from the “downloads” folder to the “Shared” folder before Shareaza would
share them with other users, he was unable to testify that Appellant had so
modified the default settings before Detective Ried downloaded the indicted
files from Appellant’s computer three months earlier. And State’s Exhibit
11—the screen captures Detective Ried made when he downloaded the
files—indicates that Appellant’s shared files were in the default “downloads”
folder, not a separate “Shared” folder. Thus, argues Appellant, there is no
evidence that he intentionally or knowingly disseminated child pornography
because Shareaza automatically shared his downloaded files with other users,
including Detective Ried.
But other evidence tends to show that Appellant intentionally or
knowingly shared his downloaded files. Most significantly, in his recorded
interview, Appellant admitted that he knew Shareaza shared his files: he said
that he assumed users downloaded files from him and that the purpose of
Shareaza was to allow users (like Detective Ried) to “pull files from members”
(like Appellant). Although Appellant claimed in the interview that he did not
17
know “how to not share and share and separate those items out,” Detective
Lawrence’s testimony shows that Appellant did at some point—before the State
seized his computer and before the interview—change the default Shareaza
settings so that the program did not automatically share Appellant’s
downloaded files. This shows that—contrary to his claim in the recorded
interview—Appellant did know how to “not share and share” files. Detective
Lawrence also explained why a Shareaza user like Appellant might want to
share files, namely, because Shareaza rewards a user for allowing others to
download files from his computers: “[T]he more files you share, the faster you
can download other files.”
A jury could reasonably infer from this evidence that Appellant knew
Shareaza was sharing his downloaded files and knew how to prevent Shareaza
from sharing his downloaded files. Thus, the evidence is legally and factually
sufficient to show that Appellant intentionally or knowingly disseminated the
indicted files despite his argument that Shareaza shared the files automatically
and without his knowledge or intent.
3. Knowledge of the actual content of files
Finally, Appellant argues that the evidence is insufficient to show that he
knew the files in question contained child pornography when Sergeant Ried
downloaded them.
18
There is no direct evidence that Appellant viewed the files in question
before Sergeant Ried downloaded them from Appellant’s computer; both
Sergeant Ried and Detective Lawrence admitted that they had no such proof.
But Appellant said in his recorded interview that he “tried” to view everything
he downloaded. Sergeant Ried testified that Shareaza allows a user to
“preview” files even before the download is complete. Appellant admitted that
he searched for and downloaded child pornography by inputting search terms
like “young” and “Lolita” (he denied that “Lolita” yielded any “matches,” but
one of the indicted images has the term “Lolita” in its file name). He manually
organized his child-pornography collection in folders with names like “young.”
It appears from State’s Exhibit 11 that the “young” folder existed on
Appellant’s computer when Sergeant Ried downloaded the indicted files, and
Detective Lawrence testified that he found those same files in the “young”
folder on Appellant’s computer.
Most telling are the explicitly descriptive names of the indicted files
themselves, which included the terms “age6-3,” “kiddy”, “child abuse,”
“underage,” “rape,” “molest”, “p-e-d-o,” “Lolita,” “PTHC” (Pre-Teen Hard
Core), “8 9 10 11 12 yo,” “6 year old,” and “baby incest.” Detective
Lawrence testified that he knew what the files depicted from the file names
alone before he viewed them. There was testimony that descriptive file names
19
can be inaccurate or misleading, but in his recorded interview, Appellant
volunteered that sometimes, the names are accurate: “[I]t says, ‘young teens,’
and you pull it up, and it’s a 35-year-old woman . . . but some of the stuff does
come up that . . . is real.” The record shows that the descriptive file names of
the indicted files were indeed accurate. Finally, the record shows that
Appellant deliberately selected the descriptively-named files for downloading;
as Detective Ried explained, Shareaza does not randomly download files.
From Appellant’s admission that he “tried” to view everything he
downloaded, from the fact that he organized the indicted files in a folder labeled
“young,” and from the descriptive names of the files, a jury could reasonably
infer that Appellant knew the indicted files depicted child pornography when he
disseminated them to Sergeant Ried, despite the lack of direct evidence that
Appellant actually viewed the files’ contents before that date.
e. Conclusion
Viewing the evidence in a light most favorable to the prosecution, a
rational jury could have determined beyond a reasonable doubt (1) that
Appellant actually disseminated the images, (2) that he acted intentionally and
knowingly, and (3) that he knew that the computer images in question depicted
children under 18 years of age engaging in sexual conduct. We hold that the
20
evidence is legally sufficient to support the jury’s verdict. See Jackson, 443
U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778.
Viewing the evidence in a neutral light, we cannot say that the evidence
is so weak that the jury’s determination that Appellant intentionally or
knowingly disseminated child pornography is clearly wrong or manifestly unjust.
We also cannot say that conflicting evidence greatly outweighs evidence
supporting conviction so that the jury’s determination is manifestly unjust. See
Lancon, 253 S.W.3d at 704; Watson, 204 S.W.3d at 414–15, 417. We
therefore hold that the evidence is factually sufficient to support the jury’s
verdict, and we overrule Appellant’s first point.
IV. Admission of hearsay testimony
In his second point, Appellant argues that the testimony identifying his
IP address and Internet service provider constituted hearsay and should not
have been admitted because it was an out-of-court computer-stored statement
offered for the truth of the matter asserted. Appellant objected to Sergeant
Ried’s initial statements regarding the IP address but did not obtain a running
objection. Further, toward the end of Sergeant Ried’s testimony and when
Detective Lawrence testified, Appellant did not object when the State elicited
additional IP address testimony. Sergeant Ried confirmed without objection the
existence of the IP address when describing Exhibit 11 and testified that the
21
address was assigned to Appellant. Detective Lawrence recited the numbers
in the IP address without any objection and stated that it came from Appellant’s
computer and matched the submitted IP address from the Attorney General’s
office.
To preserve a complaint for our review, a party must have presented to
the trial court a timely request, objection, or motion that states the specific
grounds for the desired ruling if they are not apparent from the context of the
request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983
S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S.
1070 (1999). A party must continue to object each time the objectionable
evidence is offered. Fuentes v. State, 991 S.W.2d 267, 273 (Tex. Crim. App.),
cert. denied, 528 U.S. 1026 (1999); Ethington v. State, 819 S.W.2d 854,
858–59 (Tex. Crim. App. 1991). A trial court’s erroneous admission of
evidence will not require reversal when other such evidence was received
without objection, either before or after the complained-of ruling. Leday v.
State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998); Johnson v. State, 803
S.W.2d 272, 291 (Tex. Crim. App. 1990), cert. denied, 501 U.S. 1259 (1991),
overruled on other grounds by Heitman v. State, 815 S.W.2d 681 (Tex. Crim.
App. 1991). This rule applies whether the other evidence was introduced by
the defendant or the State. Leday, 983 S.W.2d at 718.
22
Because Appellant did not obtain a running objection for his hearsay
objection during Ried’s testimony or specifically object to the IP address
testimony elicited from Detective Lawrence, he did not preserve error for our
review. Fuentes, 991 S.W.2d at 273. We must therefore overrule Appellant’s
second point.
V. Evidence of Extraneous Offenses
In his third point, Appellant argues that the trial court’s admission of the
exhibit showing a list of subfolders and 900 file names from his “Shared” folder
of Shareaza in addition to the files with which he was charged was improper
because it included both adult as well as child pornography, thus constituting
improper extraneous offense evidence that was unduly prejudicial under Texas
Rules of Evidence 403 and 404(b). The State argues that because Appellant
admitted his guilt at punishment, he is estopped from raising this point unless
he can show that admission of this evidence implicated a fundamental right.8
8
… See Leday, 983 S.W.2d at 724 (limiting the doctrine announced in
DeGarmo v. State, 691 S.W.2d 657, 661 (Tex. Crim. App.), cert. denied, 474
U.S. 973 (1985)), and holding that when an appellant admitted his guilt at
punishment, appellate court must determine if appellant asserts fundamental
rights or guaranties—which he cannot be estopped from asserting—or whether
the truth-finding function prevails to estop him from asserting nonfundamental
complaints).
23
Because we hold the evidence was admissible and not unduly prejudicial, we
need not address this contention.
We review a trial court’s evidentiary ruling for abuse of discretion.
Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000);
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on
reh’g). A trial court abuses its discretion only when the decision lies outside
the zone of reasonable disagreement. Green v. State, 934 S.W.2d 92, 101–02
(Tex. Crim. App. 1996), cert denied, 520 U.S. 1200 (1997). The trial court
has wide latitude to admit or exclude evidence of extraneous offenses.
Montgomery, 810 S.W.2d at 390; Sanders v. State, 255 S.W.3d 754, 760
(Tex. App.—Fort Worth 2008, pet. ref’d.). We give great discretion to the trial
court in matters of admissibility of evidence if correct under any theory of law,
even if the trial court’s underlying reason was wrong. See Romero v. State,
800 S.W.2d 539, 543–45 (Tex. Crim. App. 1990).
Texas Rule of Evidence 404(b) prohibits admission of evidence of
extraneous offenses to prove that, on the occasion in question, the defendant
acted in conformity with the character shown by other bad acts. Tex. R. Evid.
404(b); see Santellan v. State, 939 S.W.2d 155, 168 (Tex. Crim. App. 1997);
Jones v. State, 119 S.W.3d 412, 418 (Tex. App.—Fort Worth 2003, no pet.).
However, evidence offered to prove motive, opportunity, intent, preparation,
24
plan, knowledge, intent, or absence of mistake or accident is not barred by Rule
404(b). Santellan, 939 S.W.2d at 168. When the defendant objects under
Rule 404(b), the State must satisfy the trial court that the extraneous offense
has relevance apart from its character-conformity value. See Rankin v. State,
974 S.W.2d 707, 718 (Tex. Crim. App. 1998) (op. on reh’g); Montgomery,
810 S.W.2d at 387.
An extraneous offense has noncharacter-conformity relevance when it
has any tendency to make the existence of a fact that is of consequence to the
determination of the action more or less probable than it would be without the
evidence. See Tex. R. Evid. 401; Powell v. State, 63 S.W.3d 435, 438 (Tex.
Crim. App. 2001). Extraneous offense evidence that tends to rebut a defensive
theory is relevant beyond its character-conformity value. Bass v. State, 270
S.W.3d 557, 563 (Tex. Crim. App. 2008); Montgomery, 810 S.W.2d at
386–87; Jones, 119 S.W.3d at 419. The State argues that the trial court did
not abuse its discretion in admitting the list of subfolders and file names
because it was admissible to rebut Appellant’s defensive theory, to show his
knowledge and intent to possess and promote the indicted images and his plan
to store and share those images, and to show that his possession and
promotion of those images was not a result of accident or mistake.
25
Appellant’s defensive theory that he sought to develop on cross-
examination of the officers was that, if any child pornography was downloaded
onto his computer, it must have been accidental, and that it may have been
shared with others before he viewed the content and without his knowledge.
On cross-examination of Sergeant Ried, Appellant created an impression that
he had only one file available for downloading and that that file could have been
downloaded by others and “shared” before he became aware of it. The State’s
exhibit showing an extensive list of subfolders and file names tended to show
that Appellant was experienced in searching for both child and adult
pornography, that he had numerous files of both kinds available for sharing, and
that he organized his pornography collection by type of image, including
creating a special subfolder entitled “young.” His creation—or retention—of the
highly descriptive as well as offensive and lurid file names, along with their
organization, not only made them easily searchable by other users but was also
relevant to show that he was aware of the illegal nature of his conduct and that
the presence of the indicted images on his computer was not accidental. The
evidence was relevant to the issues of motive, intent, plan, knowledge, and
lack of mistake or accident. We agree with the State that the exhibit had
relevance apart from evidence of character-conformity. See Tex. R. Evid.
404(b).
26
Evidence relevant under Rule 404(b) may nevertheless be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury or by undue delay or needless
presentation of cumulative evidence. Tex. R. Evid. 403. “Probative value”
refers to the inherent probative force of an item of evidence—that is, how
strongly it serves to make more or less probable the existence of a fact of
consequence to the litigation—coupled with the proponent’s need for that
evidence. Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App.
2006). “Unfair prejudice” refers to a tendency to suggest a decision on an
improper basis, commonly although not necessarily an emotional one. Id. Only
unfair prejudice provides the basis for exclusion of relevant evidence.
Montgomery, 810 S.W.2d at 389.
The relevant criteria in performing a rule 403 balancing test include (1)
the inherent probative force of the proffered item of evidence along with (2) the
proponent’s need for that evidence, balanced against (3) any tendency of the
evidence to suggest conviction on an improper basis, (4) any tendency of the
evidence to confuse or distract the jury from the main issues, (5) any tendency
of the evidence to be given undue weight by a jury that is not equipped to
evaluate the probative force of the evidence, and (6) the liklihood that
presentation of the evidence will consume an inordinate amount of time or
27
merely repeat evidence already admitted. Gigliobianco, 210 S.W.3d at
641–42.
We presume that the probative value substantially outweighs the danger
of unfair prejudice. Montgomery, 810 S.W.2d at 389. It is therefore the
defendant’s burden to demonstrate that the danger of unfair prejudice
substantially outweighs the probative value. Hinojosa v. State, 995 S.W.2d
955, 958 (Tex. App.—Houston [14th Dist.] 1999, no pet.); Poole v. State, 974
S.W.2d 892, 897 (Tex. App.—Austin 1998, pet. ref’d). It is not incumbent on
the trial court to perform the balancing test on the record. Yates v. State, 941
S.W.2d 357, 367 (Tex. App.—Waco 1997, pet. ref’d). In reviewing the trial
court’s balancing test determination, we are to reverse the trial court’s
judgment “rarely and only after a clear abuse of discretion.” Mozon v. State,
991 S.W.2d 841, 847 (Tex. Crim. App. 1999).
As discussed above, the first two factors weigh in favor of admitting the
extraneous offense evidence. The evidence was probative to rebut Appellant’s
defensive theory that he did not intentionally or knowingly possess or promote
the indicted images; many of the images listed in the State’s exhibit 11, like the
indicted images, contain labels including terms such as “teen,” “child,” and
“kiddy” and make it more likely that he was fully aware of the specific nature
of the material that he downloaded. The evidence was needed by the State to
28
show that Appellant organized, stored, and shared the downloaded images as
described by their titles and that his doing so was not the result of mistake or
accident.
The third, fourth, and fifth criteria of the balancing test do not weigh
heavily in favor of exclusion. In contrast to the items with which Appellant was
charged with possessing and promoting, the exhibit of which he complains
consists only of a list of written titles; the corresponding images were never
shown to the jury. Hence, the exhibit did not have a definite tendency to
suggest a decision on an improper basis, to unduly confuse or distract the jury
from the main issues regarding the indicted images, or to invite the jury to give
undue weight to that evidence. Moreover, presentation of the evidence did not
consume an inordinate amount of time nor merely repeat evidence already
admitted.
Appellant complains of the offensive and repulsive nature of the titles
shown and points to testimony that some of the titles may have been
misleading or incorrect, but he acknowledges that many, if not most, were
“real.” Moreover, there was evidence that he selected the descriptively-titled
files for downloading. Thus, we agree with the State that the exhibit listing the
titles was the best and least prejudicial method of rebutting Appellant’s
29
defensive theory that he may have downloaded images of child pornography
accidentally or shared them without knowledge of their content.
Additionally, we note that the jury charge contains a proper reasonable
doubt instruction. The jury was instructed not to consider evidence of
Appellant’s commission of any crimes, wrongs, or acts other than the offenses
alleged in the indictment unless it found such commission beyond a reasonable
doubt. We hold that the trial court did not abuse its discretion in admitting the
State’s exhibit because the probative value of that evidence was not
substantially outweighed by the danger of undue prejudice. We overrule
Appellant’s third point.
VII. Conclusion
Having overruled Appellant’s three points, we affirm the trial court’s
judgment.
ANNE GARDNER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.
PUBLISH
DELIVERED: June 25, 2009
30
Ruben Wenger v. A/K/A Reuben v. Wenger v. State
Combined Opinion