Thomas Peter Higgins v. State ( 2019 )

Affirm; Opinion Filed November 12, 2019
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-01497-CR
THOMAS PETER HIGGINS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 296th Judicial District Court
Collin County, Texas
Trial Court Cause No. 219-84142-2017
MEMORANDUM OPINION
Before Justices Pedersen, III, Reichek, and Carlyle
Opinion by Justice Pedersen, III
Appellant Thomas Peter Higgins was charged with ten counts of possession of child
pornography. Appellant signed a judicial confession and pled guilty before the trial court without
an agreement on punishment. At the conclusion of the trial on punishment, the trial court found
him guilty on counts one through five, and sentenced him to five years’ confinement in the Texas
Department of Criminal Justice, Institutional Division. On counts six through ten, the court
deferred adjudication and placed him on ten years’ community supervision. In one issue on appeal,
appellant asserts that the trial court’s consideration of certain evidence violated his constitutional
and statutory rights to a fair trial. We affirm.
A person commits possession of child pornography if he 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 he knows that the material
depicts the child in this manner. TEX. PENAL CODE § 43.26(a); see also Wise v. State, 364 S.W.3d
900, 903 (Tex. Crim. App. 2012). Possession of child pornography is a third-degree felony. TEX.
PENAL CODE § 43.26(d). Appellant does not challenge the guilt–innocence portion of his trial.
Indeed, he pled guilty to ten counts of possession of child pornography. His challenge is limited
to the sentencing portion of his trial. Appellant complains that his constitutional and statutory
rights to a fair sentencing trial were violated, and he asks that we reverse his sentence and remand
this case to the trial court for a new punishment hearing.
Appellant argues that the trial court abused its discretion and violated his constitutional and
statutory rights to a fair trial by considering evidence that was not presented at trial. He claims
that evidence of child pornography file sharing was not presented at trial and therefore, should not
have been considered by the trial judge. Every person accused of a crime is entitled to a fair trial.
Hajjar v. State, 176 S.W.3d 554, 565 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d). However,
in this case, appellant faces three obstacles to the success of his argument. First, he failed to raise
his fair trial issue to the trial court, and therefore, it is not preserved for our review. See TEX. R.
APP. P. 33.1(a); see also Hajjar, 176 S.W.3d at 566. Second, evidence that appellant was engaged
in child pornography file sharing was presented at trial. However, because appellant failed to
object to the admissibility of State’s Exhibit 3 during trial, he failed to preserve his objection to
such evidence. See TEX. R. APP. P. 33.1(a). Third, appellant failed to adequately brief his stated
issue. See TEX. R. APP. P. 38.1(i). Appellant was charged and convicted of possession of child
pornography, TEX. PENAL CODE § 43.26(a), a third-degree felony, id. at (d), and was assessed
punishment in accordance with the statutory sentencing range for a third-degree felony, TEX.
PENAL CODE § 12.34. He was not charged with promoting, or possessing with intent to promote,
child pornography, a second-degree felony. TEX. PENAL CODE § 43.26 (e), (g). Child pornography
file sharing is not an element of the offense of possession of child pornography. See id. § 43.26(a).
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Appellant’s brief presents no argument to show why or how his issue on appeal has any relevance
to his punishment for possession of child pornography.
At trial, the State offered State’s Exhibit 3, a portion of the offense report describing the
investigation and facts of the case, and State’s Exhibit 4, a DVD containing the child pornography
for which appellant was indicted. Defense counsel did not object to the admissibility of either
exhibit, and the trial court admitted the exhibits into evidence. Thus, the contents of the offense
report were properly before the trial court and available for its consideration for any purpose.
In State’s Exhibit 3, Plano Police Department Detective Jeff Rich described a joint, multi-
jurisdictional investigation, Operation Medusa, that was implemented to combat child
pornography on the internet. Using peer-to-peer software, Detective Jeff Rich discovered a
computer on a file-sharing network that was participating in the sharing of child pornography.1 He
identified the IP address of the sharing computer, reviewed the files that were being made available
by that IP address, and determined that the files were child pornography. He then made a direct
connection to the computer at the identified IP address and downloaded videos that the computer
made available. After reviewing the downloaded files and confirming that the files contained child
pornography, officers obtained subscriber information for the identified IP address—appellant’s
name and address. The officers obtained a search warrant for appellant’s residence and computer.
During the search, appellant was asked how he stored the pornography he liked. According to the
offense report, he told Detective Tony Godwin that “he used the default folder structure for eMule
and would move them from a shared folder quickly after downloading to folders he created.” In
summary, the offense report showed that appellant acquired much of his collection of pornography
through peer-to-peer file-sharing software, that the pornography on his own computer was
1
See Wenger v. State, 292 S.W.3d 191, 198 (Tex. App.—Fort Worth 2009, no pet.) (“Several courts have held that making child pornography
available for others to access and download through peer-to-peer file-sharing software qualifies as ‘distribution’ or ‘delivery’ to others.”) (internal
citations omitted).
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available to others to download through peer-to-peer file-sharing software, and that appellant was
well aware of this fact. We therefore conclude that the record contained evidence that at least
some of appellant’s child pornography files were shared.
Defense witness, F. Liles Arnold, M.S., a licensed professional counselor, testified
regarding his evaluation of appellant. Defendant’s Exhibit 1, a report authored by Arnold, was
admitted into evidence without objection. In his report, Arnold noted that when he spoke to
appellant about the police report, appellant admitted that for the most part, the police report was
accurate. Arnold also noted that one discrepancy between appellant’s account of his behavior and
the police report is that appellant claims he never distributed child pornography to anyone.
During closing argument, defense counsel argued that appellant’s collection of child
pornography was a “deep, dark secret that he had kept hidden.” The trial court interjected as
follows:
COURT: He didn’t. He shared it with other people. Maybe he kept it hidden from
the people in his household, but he freely shared it with others.
MR. KNAPP: Your Honor, if I may interject, which may be a little bit off the
record, I don’t - - I believe this system he is a part of, it is automatic sharing. This
isn’t anything that - -
COURT: I have read the offense report.
MR. KNAPP: Yes sir. It is not - - it is not a thing where he is going in and
broadcasting it. He - - as the Court is aware, we got an investigator because he
wanted to know how did this get broadcast. Well, it is because it is the system. It
is not a conscious decision on his part.
COURT: Well, you know when you get on the system that they shared all of their
files together.
Appellant complains that the trial judge’s comment, “Well, you know when you get on the system
that they shared all of their files together,” clearly shows that the court was considering evidence
not supported by the record. We disagree. The offense report clearly described the manner in
which Detective Rich discovered appellant’s computer on a file-sharing network that was
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participating in the sharing of child pornography. Furthermore, in response to the trial judge’s
comment, defense counsel responded “I believe this system he is a part of, it is automatic sharing.”
As the fact finder, the trial court was the exclusive judge of the witnesses’ credibility and
weight to be given to their testimony. See Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App.
2000). Thus the court could consider State’s Exhibit 3 (the offense report) and conflicting
statements in Defendant’s Exhibit 1 (Arnold’s report), and judge the weight and credibility of the
evidence. It was free to accept or reject any or all of the evidence presented by either side. See
Krause v. State, 243 S.W.3d 95, 110 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d).
To the extent that any of appellant’s arguments were preserved for our review, we conclude
the trial court did not abuse its discretion by considering evidence that was properly admitted,
without objection, at trial. We affirm the trial court’s judgment.
/Bill Pedersen, III//
BILL PEDERSEN, III
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
181497f.u05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
THOMAS PETER HIGGINS, Appellant On Appeal from the 296th Judicial District
Court, Collin County, Texas
No. 05-18-01497-CR V. Trial Court Cause No. 219-84142-2017.
Opinion delivered by Justice Pedersen, III.
THE STATE OF TEXAS, Appellee Justices Reichek and Carlyle participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 12th day of November, 2019.
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