Michael Ray Peterson-Lisembee v. State of Texas ( 2009 )

Opinion filed April 2, 2009
In The
Eleventh Court of Appeals
___________
No. 11-07-00209-CR
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MICHAEL RAY PETERSON-LISEMBEE, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 9th District Court
Montgomery County, Texas
Trial Court Cause No. 06-06-06258-CR
MEMORANDUM OPINION
The jury convicted Michael Ray Peterson-Lisembee of twelve counts of possession and two
counts of promotion of child pornography. The jury assessed his punishment at five years for each
of the possession offenses and at twenty years for both of the promotion offenses. We affirm.
I. Background Facts
Law enforcement officials received a tip from America Online (AOL) that suspected child
pornography had been e-mailed from one of their user’s accounts. Sergeant Michelle Stern, a
criminal investigator with the Texas Attorney General’s Office, was asked to conduct an
investigation. Sergeant Stern determined that child pornography had been e-mailed, and she
subpoenaed records from AOL. These records identified appellant as the account holder.
Sergeant Stern obtained a search warrant for appellant’s residence. Appellant was not home
when the search warrant was executed, but he was located and was asked to meet Sergeant Stern for
an interview. Appellant agreed to do so. During the course of that interview, appellant admitted to
receiving unsolicited child pornography via e-mail but claimed that he deleted it. He also admitted
to trading pornography over the internet but denied trading child pornography. Appellant
acknowledged that there was some child pornography saved on his computer. Sergeant Stern
showed him the two images that AOL had identified as possible child pornography that were sent
from his e-mail account. Appellant admitted that one of the pictures was on his computer, and he
said that the second one might be there as well.
Law enforcement officers seized a generic desktop computer and two CDs from appellant’s
bedroom when they executed the search warrant. Sergeant Lannes Hilboldt, an investigator in the
Texas Attorney General’s Computer Forensic Unit, analyzed two hard drives removed from
appellant’s computer and two CDs removed from his bedroom. Sergeant Hilboldt testified that he
found child pornography on one of the hard drives and on both of the CDs.
Appellant moved to suppress. Appellant argued that the search warrant affidavit was
insufficient because it relied upon unsworn information from AOL and because, according to his
expert, appellant’s computer was not online when the child pornography was allegedly sent from his
account. The trial court denied the motion.
II. Issues
Appellant challenges his conviction with a single issue, contending that his trial counsel was
constitutionally ineffective.
III. Standard of Review
To determine if trial counsel rendered ineffective assistance, we must first determine whether
appellant has shown that counsel’s representation fell below an objective standard of reasonableness
and, if so, then determine whether there is a reasonable probability that the result would have been
different but for counsel’s errors. Strickland v. Washington, 466 U.S. 668 (1984). We must indulge
a strong presumption that counsel’s conduct fell within the wide range of reasonable professional
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assistance, and appellant must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy. Stafford v. State, 813 S.W.2d 503, 508-
09 (Tex. Crim. App. 1991). An allegation of ineffective assistance must be firmly founded in the
record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v.
State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). Under normal circumstances, the record on direct
appeal will not be sufficient to show that counsel’s representation was so deficient and so lacking
as to overcome the presumption that counsel’s representation was reasonable and professional. Bone
v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).
IV. Analysis
Appellant argues that his counsel was physically impaired and essentially asks us to make
a medical diagnosis by evaluating counsel’s conduct through our review of the trial transcript. We
cannot do this for a number of reasons, including the fact that appellant introduced no medical
evidence through a motion for new trial or otherwise.
Appellant next identifies several specific actions that he alleges demonstrate ineffective
assistance: the lack of a plausible defensive theory, persistently arguing that no search warrant
existed even though one was introduced into evidence, repeatedly making inexplicable chain of
custody objections, having limited knowledge of computers and the internet but not enlisting the help
of an expert, and expressing his disdain for appellant’s actions. Many of these are unfair
characterizations of counsel’s actions, but nonetheless Appellant presents nothing for our review
because there is no attempt to address Strickland’s second prong.
Appellant makes no argument that, but for his counsel’s allegedly deficient performance, the
results of the trial would have been any different. Indeed, he acknowledges that the State had
overwhelming evidence of his guilt – including his own admissions to law enforcement officials.
This evidence forecloses appellant’s claim of ineffective assistance. See Washington v. State, 771
S.W.2d 537, 545-46 (Tex. Crim. App. 1989) (even if counsel’s failure to object was outside the
range of professional competent assistance, overwhelming evidence of defendant’s guilt made this
error harmless).
We note that appellant is critical of his counsel’s objections to the State’s evidence.
However, had counsel not challenged the search warrant or objected to the State’s evidence,
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appellant would surely contend that this was ineffective assistance, and appellant offers no better
objection or challenge now. We also note that counsel did attempt to develop a defense consistent
with his client’s testimony. Appellant testified that he could not have transmitted the pornography
as alleged because of his work schedule and that he admitted to having child pornography on his
computer during his interview with Sergeant Stern because he thought they would leave him alone
if he told them what they wanted to hear. Counsel tried to show how the pornography could have
been unwittingly downloaded while file sharing, or when opening an unsolicited e-mail, or through
a virus or Trojan Horse. Finally, counsel established that if someone else knew appellant’s AOL
account and password, they could log in as appellant and make it appear that he had sent an e-mail.
Appellant offers no alternative theory. Appellant’s issue is overruled.
V. Holding
The judgments of the trial court are affirmed.
RICK STRANGE
JUSTICE
April 2, 2009
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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