NUMBER 13-12-00229-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
KENNETH TIMOTHY ZAVADIL, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 377th District Court
of Victoria County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Longoria
Memorandum Opinion by Justice Rodriguez
Appellant, Kenneth Timothy Zavadil, challenges his convictions on three counts of
promotion of child pornography. See TEX. PENAL CODE ANN. § 43.26(e) (West Supp.
2011). By one issue, appellant argues that the evidence at trial was insufficient to
support a conviction on each count. We affirm.
I. BACKGROUND
In April 2009, appellant’s wife, Sara, approached her neighbor, Constable James
Caloway, in Victoria, Texas, because she wanted to prevent her son from having access
to her husband’s pornographic material.1 Constable Caloway presented the information
to the Texas Department of Public Safety (DPS). DPS then conducted an investigation,
led by Sergeant Donald Druesedow. Sergeant Druesedow interviewed Sara, and she
provided a written statement and drew a diagram of the family’s residence.
Sergeant Druesedow became convinced that appellant was in possession of child
pornography, and he obtained a search warrant for appellant’s home. Sergeant
Druesedow and other officers executed the search on May 7, 2009. During the search,
officers seized seven CPU units, over 6,000 floppy disks, compact disks, as well as a
VHS tape, and notebooks. Some of the items came from an area of appellant’s home
that he and his family referred to as “Happy Land.” Several witnesses testified to “Happy
Land” as being part of appellant’s home, which the family designated as appellant’s area.
Appellant kept his guitars, computers, disks, and pornography in “Happy Land.” Sara
testified that appellant would go to the area when he was in a bad mood; however, the
rest of the family, as well as visitors, had access to the area.
The officers turned the evidence over to a digital examiner, Kenneth Patterson, at
the Corpus Christi Police Department. Patterson testified that he found child
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At trial, Constable Caloway testified that Sara told him appellant’s pornographic material included
child pornography. In her testimony, Sara denied this, stating that she only informed Constable Caloway
that appellant possessed adult pornography. The jury had the responsibility of resolving this issue, and we
presume the jury did so in favor of the verdict. See Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App.
2012). Further, this particular testimony is not relevant to this appeal.
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pornography on one of the compact disks, but the officers did not know which part of
appellant’s home the disk came from. Patterson also found eleven child pornography
images on a floppy disk, which officers seized from “Happy Land.” Additionally,
Patterson found child pornography on two of the CPU units.
The State indicted appellant on eighteen counts of possession of child
pornography and three counts of promotion of child pornography. See id. Appellant
pleaded not guilty to all counts. The jury found appellant guilty on counts 19, 20, and
21. 2 The jury imposed a sentence of twenty years’ imprisonment and assessed a
$10,000.00 fine for each count.
II. STANDARD OF REVIEW AND APPLICABLE LAW
When reviewing the sufficiency of the evidence, a court will examine the evidence
in the light most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307, 319 (1979);
see also Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2011). The critical
inquiry is whether the evidence would support a rational fact-finder determining that the
defendant is guilty beyond a reasonable doubt. Jackson, 443 U.S. at 319. The
fact-finder may support its verdict with reasonable inferences drawn from the evidence.
Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). The fact-finder decides
which inferences are the most reasonable. Id.
The reviewing court measures the sufficiency of the evidence by the elements of
the offense as defined by a hypothetically correct jury charge. Villarreal v. State, 286
S.W.3d 321, 327 (Tex. Crim. App. 2009). A hypothetically correct jury charge is
2
The State dismissed the remaining counts and did not submit them to the jury.
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authorized by the indictment, accurately sets out the law, does not unnecessarily
increase the State’s burden of proof or restrict the State’s theories of liability, and
adequately describes the particular offense in question. Malik v. State, 953 S.W.2d 234,
239 (Tex. Crim. App. 1997). To support a conviction for promotion of child pornography,
the evidence must show that appellant (1) knowingly or intentionally promoted or
possessed with intent to promote materials that visually depicted a child, younger than
eighteen years of age at the time the image of the child was made, who was engaging in
sexual conduct, and (2) knew the material depicted a child younger than eighteen
engaging in sexual conduct. See TEX. PENAL CODE ANN. § 43.26(e).
The State does not have to provide direct evidence to prove the defendant’s guilt.
See Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); Kuciemba v. State, 310
S.W.3d 460, 462 (Tex. Crim. App. 2010). “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.” Hooper, 214 S.W.3d at 13. The fact-finder may
infer a defendant’s intent from his words, acts, and conduct. Patrick v. State, 906
S.W.2d 481, 487 (Tex. Crim. App. 1995). Thus, intent and knowledge are fact questions
and are usually proven through the circumstances surrounding the crime. Robles v.
State, 664 S.W.2d 91, 94 (Tex. Crim. App. 1984).
III. DISCUSSION
By one issue, appellant argues that the evidence was insufficient to prove that he
downloaded child pornography. Specifically, appellant contends that several people had
access to the computer where the images were found, and anyone could have been
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responsible for downloading and saving the files.
We agree with appellant that the State did not provide direct evidence to show that
he downloaded the images himself. However, the State provided sufficient
circumstantial evidence to show that appellant committed the offense. The State
showed that the child pornography was found in appellant’s home and some of the
images were found in “Happy Land,” an area that appellant reserved for himself in the
family home. Further, each of the witnesses testified to not downloading the
pornography onto the computers in appellant’s home. Moreover, Patterson testified that
the creation date of the images was January 1999. This date precedes the dates which
the witnesses recalled seeing other people using appellant’s computer. Additionally,
Patterson found identical versions of the same images of children in various locations, for
example, on both compact disks and a hard drive. Finally, appellant executed a
stipulation indicating that the handwriting on a floppy disk, which contained child
pornography, was his own.
We conclude that the foregoing circumstantial evidence shows that appellant
knowingly or intentionally promoted or possessed, with intent to promote, materials that
visually depicted a child, younger than eighteen years of age at the time the image of the
child was made, who was engaging in sexual conduct. See TEX. PENAL CODE ANN. §
43.26(e); see also Hooper, 214 S.W.3d at 13. A rational fact-finder could have found the
essential elements of the crime based on the foregoing evidence; therefore, the evidence
was sufficient. See Jackson, 443 U.S. at 319. Appellant’s sole issue is overruled.
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IV. CONCLUSION
We affirm the judgment of the trial court.
NELDA V. RODRIGUEZ
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
27th day of June, 2013.
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