TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00077-CR
Tallion Kyle Taylor, Appellant
v.
The State of Texas, Appellee
FROM THE 368TH DISTRICT COURT OF WILLIAMSON COUNTY
NO. 15-2925-K368, THE HONORABLE LLOYD DOUGLAS SHAVER, JUDGE PRESIDING
MEMORANDUM OPINION
A jury convicted appellant Tallion Kyle Taylor of three counts of possession of
child pornography. See Tex. Penal Code § 43.26(a). In six points of error, appellant complains
about the indictment and search warrants in this case, challenges the sufficiency of the evidence
to sustain his convictions, and argues that he was deprived of his right to present a full defense
and improperly denied a jury instruction on the lesser-included offense of attempted possession
of child pornography. For the following reasons, we affirm the judgments of conviction.
BACKGROUND
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
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.
2
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.
3
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
4
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
5
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.
6
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).
7
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
8
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
9
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
10
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.
11
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”).7
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.
7
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))).
12
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
13
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
14
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,
15
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.
16
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)).
17
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
18
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.
19
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.
20
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
21
(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.
22
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
23
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
24
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
25
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,
26
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,
27
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.
28
“[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 lesser-
included 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
29
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.
CONCLUSION
Having overruled appellant’s points of error, we affirm the judgments
of conviction.
__________________________________________
Melissa Goodwin, Justice
Before Justices Goodwin, Kelly, and Smith
Affirmed
Filed: February 10, 2021
Do Not Publish
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