Karl Keith Noland v. State of Texas ( 2008 )

Opinion filed September 25, 2008

Opinion filed September 25, 2008

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-07-00018-CR       

                                                     __________

KARL KEITH NOLAND, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 142nd District Court

 Midland County, Texas

Trial Court Cause No. CR30880

                                              M E M O R A N D U M   O P I N I O N

The jury found Karl Keith Noland guilty of the offenses of aggravated sexual assault of a child and indecency with a child by contact as alleged in two counts of the indictment.  That jury assessed his punishment at confinement for twenty-five years and twenty years respectively and a $10,000 fine in each count.  The trial court ordered that the sentences run consecutively.  We affirm.

In his first two issues on appeal, Noland argues that the evidence is legally and factually insufficient to support the verdict on either offense.

To determine if the evidence is legally sufficient, an appellate court reviews all of the evidence in the light most favorable to the verdict and determines 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 (1979); Jackson v. State, 17 S.W.3d 664, 667 (Tex. Crim. App. 2000).  To determine if the evidence is factually sufficient, an appellate court reviews all of the evidence in a neutral light.  Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).  Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and perponderance of the conflicting evidence.  Watson, 204 S.W.3d at 414-15; Johnson 23 S.W.3d at 10-11.  The factfinder is the sole judge of the credibility of the witnesses and the weight to be given to their testimony.  Adelman v. State, 828 S.W.2d 418 (Tex. Crim. App. 1992).

Lloyd Malcolm McSpadon owned a computer shop in College Station.  In April 2005, Noland called McSpadon to see if he could bring his computer in to be repaired.  During that conversation, Noland asked McSpadon what would happen if it were discovered that he had something illegal on his computer.  McSpadon thought that Noland was talking about pornography, and he told Noland that it was not illegal to have pornography on his computer.  Noland replied, AWell, my pornography is.@  McSpadon told Noland, AWell, let=s just say that I won=t look.@  Noland took his computer to McSpadon the following day and told him that he needed to get it back as soon as possible.

While McSpadon was checking out the computer, he began to notice the names of some of the files on the computer.  The names of the files were names one would associate with child pornography, and McSpadon called the FBI.  Through the FBI, contact was made with the College Station Police Department, and Detective Brandy Norris with that department began an investigation.   From the information that had been given to her, Detective Norris was able to get a search warrant for Noland=s computer.  When Detective Norris originally seized the computer, she turned it over to Detective Nathan McCune, who was trained in computer forensics. Detective McCune copied files from Noland=s computer onto a disk; the computer contained A[v]ery hard core child pornography.@ Detective Norris looked at 1,503 computer files that involved children, sexual acts, and some animals.  Based upon the information discovered on the computer, Detective Norris obtained an arrest warrant for Noland.  She asked McSpadon to cooperate with them to conclude the case, and he agreed.  McSpadon called Noland and told him that his computer was ready and to come after it.  When Noland went to McSpadon=s shop, the police were there but were not visible.  Noland paid McSpadon and left the shop.  When Noland left the shop with his computer, the police arrested him.

Detective Norris questioned Noland about the child pornography.  At one point, Detective Norris asked Noland whether he had ever touched a child in a sexual manner. Noland said that he had: his sister, when she was young, and a niece.  In the course of the interview, Noland described events from 2002 that form the basis of the charges in this case.

The testimony shows that, sometime during Easter weekend 2002, Lenda Kay Robinson and her two daughters, W.R. and C.R., went from their home in Andrews to Midland to visit Theresa Williams, Lenda=s sister.  Lenda did not drive, and Theresa and her husband drove them from Andrews to Midland in their van.  Noland, who lived in Kosse and who was Lenda=s half-brother, was in the vehicle with them.  During the trip, Noland told W.R. to sit in his lap.  W.R. said that Noland put his hand between her legs; she moved it away more than once but he would put it back.  When they returned to Midland, they went to a restaurant.  Later, they began to look for a hotel to stay in for the night. They went back to Theresa=s house and visited for a while.  Noland, Lenda, and the girls returned to the hotel in Noland=s pickup.  Noland had rented only one room, and it was decided that Lenda and the two girls would sleep in one bed and Noland in the other.  W.R. instead laid on the floor to sleep.  At some point in time, Noland told W.R. to get in the bed with him.  W.R. testified that Noland asked her if he could take off his jeans.  He took them off and was wearing only his underwear.  W.R. described how Noland began to touch her under her panties and inside her Aprivates.@  He also put her hand on his penis inside his underwear and moved her hand Aback and forth.@ Later, W.R., who was ten years old at the time of the offense, got into bed with her mother.  Nothing was said about the incident until Lenda and her two daughters returned home to Andrews.  Although W.R. told her mother what her AUncle Keith@ had done to her, they decided not to tell W.R.=s father for fear of what he might do. 

In the interview with Detective Norris, Noland said that W.R. Aresponded@ when he started touching her in that Midland hotel.  He told the detectives that she was the one who pulled her panties down and that he was rubbing up and down on her to Asee if she would respond.@  Noland said that, when W.R. said to quit, he quit.  Although he rubbed up and down on Ait,@ Noland stated that he never penetrated her.

Detective Norris told how she went about finding Lenda, W.R., and C.R.  After she had determined that Midland police had jurisdiction in this case, Detective Norris turned the investigation over to them.

Officer Richard Candelaria with the Midland Police Department was the officer whom Detective Norris contacted.  After that telephone call, he began an investigation.  One of the things that Officer Candelaria did was to set up an appointment between W.R. and personnel at the Child Advocacy Center in Midland. Based upon his investigation, the information furnished to him by Detective Norris B including Noland=s statements, and his observation of the interview between W.R. and the specialist at the Child Advocacy Center, Officer Candelaria obtained a warrant, and Noland was arrested.

When we review the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found the elements of both offenses beyond a reasonable doubt.  The evidence is legally sufficient.  When we review all of the evidence in a neutral light, we hold that the evidence supporting the verdict is not so weak that the verdict is clearly wrong and manifestly unjust.  Furthermore, the verdict is not against the great weight and preponderance of the conflicting evidence.  The evidence is factually sufficient.  Noland=s first two issues on appeal are overruled.

Noland next complains that the trial court erred when it overruled his motion to suppress and allowed the jury to consider two separate statements that he made to Detective Norris and when it admitted evidence of the child pornography found on his computer.  The trial court=s ruling on the motion to suppress is somewhat difficult to follow because, despite his own attorney=s efforts and those of the trial court, Noland continually interrupted the trial court, including during the trial court=s ruling on the motion to suppress. The trial court remained patient throughout Noland=s outbursts even after Noland said, AAnd I=m gonna be out some day, Your Honor, and I=ll look you up.@

First, Noland appears to argue that, when he was being questioned in College Station, he said he wanted a lawyer and that the police should not have questioned him further.  Noland testified at the hearing on the motion to suppress.  During his testimony, Noland said that he was aware of his right to have an attorney, but AI did not exercise that right at all.@ He said that he understood that he had the right to talk to an attorney first and that he was giving up that right.  He agreed to talk to the officers.  It had been determined that he was not indigent.  Noland had said that he was going to talk to a lawyer, that he had Alawyered-up,@ and that his main concern with talking to a lawyer was in regard to making bond.  He had not retained a lawyer.  Even after saying that he wanted to talk to an attorney, he agreed to talk to the officers.  He testified that both statements were free and voluntary statements.

When a trial court rules on a motion to suppress, we review that ruling for an abuse of discretion.  State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).  On appeal, an appellate court views the record in the light most favorable to the trial court=s ruling.  Id.  We will reverse the judgment only if the ruling is outside the zone of reasonable disagreement.  Id.  If the ruling is reasonably supported by the record and if it is correct on any theory of law applicable to the case, we will sustain it. Id.  We give almost total deference to a trial court=s determination of historical facts, and we review de novo the trial court=s application of the law to those facts.  Id. 

Since Miranda v. Arizona, 384 U.S. 436 (1966), an accused has enjoyed a Fifth and Fourteenth Amendment right to have counsel present during a custodial interrogation.  That right attaches only when affirmatively invoked by the accused.  See Miranda, 384 U.S. at 473‑74.  When one invokes that right, it must be clear and unambiguous; it takes more than the use of the words Aattorney@ or Alawyer@ to invoke the right to counsel.  Dinkins v. State, 894 S.W.2d 330, 351 (Tex. Crim. App. 1995).  An accused invokes the right to counsel when he indicates that he wants to speak to an attorney or that he wants to have an attorney present during questioning.  Lucas v. State, 791 S.W.2d 35, 45 (Tex. Crim. App. 1989).  In order to determine whether an accused=s statement is an invocation of the right to counsel, we look at the totality of the circumstances surrounding the interrogation and alleged invocation.  Dinkins, 894 S.W.2d at 351.  We make the determination from the standpoint of a reasonable officer.  The question is: Would a reasonable officer under similar circumstances have understood the accused=s statement as a request for an attorney or merely one that might be invoking the right to counsel?  Id.

Here, not only did Noland not ask for an attorney in connection with the giving of his statements, he affirmatively waived those rights and testified that he did.  The trial court did not err when it admitted the statements.  Issue on Appeal No. 3(a) is overruled.

Noland asserts that the search and seizure in connection with his computer and the child pornography violated his right to privacy and his rights under the Fourth Amendment to the United States Constitution as well as Article I, section 13 of the Texas Constitution.^[1]  Noland says that his specific argument is that McSpadon, the computer technician to whom Noland took his computer for repairs, was an agent for the State and that he is, therefore, entitled to the protections afforded by those constitutional provisions. 

Unreasonable searches and seizures are prohibited by the Fourth Amendment to the United States Constitution and by Article I, section 9 of the Texas Constitution.  The protections afforded against unreasonable searches and seizures do not apply when the search or seizure is purely private.  Dawson v. State, 106 S.W.3d 388, 391 (Tex. App.CHouston [1st Dist.] 2003, no pet.).  If a search or seizure is made by a private person, there are two factors to consider in determining whether that person is acting privately or as an agent of the State.  The first is whether the government knew of and acquiesced in the intrusive conduct.  The second factor for us to consider is whether the person intended to assist law enforcement or whether he intended to further his own cause.  Stoker v. State, 788 S.W.2d 1, 11 (Tex. Crim. App. 1989). 

McSpadon=s first discovery of the child pornography on Noland=s computer occurred before there were any law enforcement personnel involved. Therefore, the government did not know and did not acquiesce in his actions. Furthermore, McSpadon was not intending to assist law enforcement when he discovered the child pornography on Noland=s computer; he was trying to repair it as Noland had asked him to.  McSpadon was not acting as an agent of the State.  Because McSpadon was not acting as an agent of the government, the protections otherwise afforded by the  United States Constitution as well as Article I, section 9 of the Texas Constitution are not implicated.            Additionally, the purpose of the Fourth Amendment and Article I, section 9 of the Texas Constitution is to provide protection of a person=s Alegitimate expectation of privacy from unreasonable governmental intrusions.@   McArthur v. State, 1 S.W.3d 323, 329 (Tex. App.CFort Worth 1999, pet. ref=d). Even if McSpadon were an agent of the State, Noland must show that he had an actual, subjective expectation of privacy in the child pornography discovered on his computer and that his expectation of privacy was one that society would accept as reasonable.  Wilson v. State, 99 S.W.3d 767, 770 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d).  The Texas Court of Criminal Appeals has set out the following as a non-exhaustive list of relevant factors to consider when we determine whether society would accept the subjective expectation of privacy as reasonable: 

(1) whether the accused had a property or possessory interest in the place invaded;  (2) whether he was legitimately in the place invaded; (3) whether he had complete dominion or control and the right to exclude others; (4) whether, prior to the intrusion, he took normal precautions customarily taken by those seeking privacy;  (5) whether he put the place to some private use; and (6) whether his claim of privacy is consistent with historical notions of privacy.

Granados v. State, 85 S.W.3d 217, 223 (Tex. Crim. App. 2002).

Noland asked McSpadon to repair his computer.  He placed no restrictions on what McSpadon could do, just that he wanted it back as soon as possible.  Further, Noland did not take any precautions that would customarily be taken by one seeking privacy.  To the contrary, he told McSpadon that there was illegal material on the computer.  We also note that society would not accept as objectively reasonable an expectation of privacy in that which Noland voluntarily turned over to a third party.  See Rogers v. State, 113 S.W.3d 452, 457-58 (Tex. App.CSan Antonio 2003, no pet.).  Noland=s Issue on Appeal No. 3(b) is overruled.

In his fourth issue on appeal, Noland maintains that the trial court abused its discretion when it ordered that his sentences be served consecutively. Specifically, Noland argues that his punishment was cruel and unusual in violation of the Eighth Amendment to the United States Constitution and Article I, section 13 of the Texas Constitution. 

Noland makes this claim for the first time on appeal.  He did not object to the sentences allegedly violating his state or federal constitutional rights when he was sentenced or in posttrial motions.  The issue is not preserved for appellate review.  See Hergert v. State, 197 S.W.3d 394, 399 (Tex. App.CBeaumont 2006, no pet.); see also Tex. R. App. P. 33.1. 

Even if Noland had preserved his complaint, he could not succeed.  In this case, Tex. Penal Code Ann. ' 3.03(b)(2)(A) (Vernon Supp. 2008) provides for consecutive sentences.  See also Tex. Code Crim. Proc. Ann. art. 42.08 (Vernon 2006).  Under the facts of this case, the trial court is given the option of choosing whether the sentences run concurrently or consecutively for convictions for multiple acts arising out of the same criminal episode.  Citing to Solem v. Helm, 463 U.S. 277, 292 (1983), the court in Williamson analyzed a grossly disproportionate sentencing claim by examining A(1) the gravity of the offenses and the harshness of the penalty, (2) the sentences imposed on other criminals in the same jurisdiction, and (3) the sentences imposed for commission of the same crime in other jurisdictions.@  Williamson v. State, 175 S.W.3d 522, 525 (Tex. App.CTexarkana 2005, no pet.).  We do not examine the last two factors unless we find that the sentence is grossly disproportionate to the offenses for which convictions were had.  Id.  Under the evidence presented in this case, we cannot say that the Astacking@ of the sentences results in grossly disproportionate punishment for the offenses for which the jury convicted Noland.  Moreover, Noland presented no evidence of how his sentences compared with others in connection with like offenses in the same or other jurisdictions.  Noland has not shown that the Astacking@ of his sentences resulted in grossly disparate sentences, and his fourth issue on appeal is overruled.

In his fifth issue on appeal, Noland raises the Fifth Amendment and the Fourteenth Amendment to the United States Constitution claims and asserts that the trial court violated those provisions when it ordered that his sentences would be served consecutively.  In making this claim, Noland cites us to Apprendi v. New Jersey, 530 U.S. 466 (2000).  Apprendi stands for the proposition, among others, that any fact that increases the punishment for a crime beyond the maximum punishment statutorily provided for that crime must be submitted to the factfinder and proved beyond a reasonable doubt.  Apprendi, 530 U.S. at 490.  Apprendi is not violated in those situations where a trial court orders the cumulation of sentences, each of which lies within the statutory range of punishment, but in which the cumulative total exceeds the statutory maximum for any single offense.  Marrow v. State, 169 S.W.3d 328, 330 (Tex. App.CWaco 2005, pet. ref=d). This court also has so held in an unpublished opinion.  See Bray v. State, Nos. 11‑03‑00364‑CR & 11-03-00365-CR, 2005 WL 283549, at *4 (Tex. App.CEastland Jan. 31, 2005, no pet.) (not designated for publication).  Each of the sentences lies within the statutory range of punishment, and the trial court did not err when it cumulated Noland=s sentences. We overrule Noland=s fifth issue on appeal.

We affirm the judgment of the trial court.

JIM R. WRIGHT

CHIEF JUSTICE

September 25, 2008

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.

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^[1]We will assume that Noland=s claim was inadvertently and unintentionally stated as being made under Article I, section 13 of the Texas Constitution rather than Article I, section 9.