John Allen Crosthwait v. State ( 2010 )


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  •                        COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NOS. 02-09-00375-CR
    02-09-00376-CR
    02-09-00377-CR
    02-09-00378-CR
    JOHN ALLEN                                                        APPELLANT
    CROSTHWAIT
    V.
    THE STATE OF TEXAS                                                     STATE
    ------------
    FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
    ------------
    MEMORANDUM OPINION1
    ------------
    I. Introduction
    In two points, Appellant John Allen Crosthwait appeals his convictions and
    punishment for possession of child pornography and possession with intent to
    1
    See Tex. R. App. P. 47.4.
    promote child pornography. See Tex. Penal Code Ann. § 43.26(a), (e) (Vernon
    2003). We affirm.
    II. Factual and Procedural History
    A tip from America Online (AOL) to the National Center for Missing and
    Exploited Children about an image of child pornography being transmitted from a
    Texas-based AOL account eventually led to a jury finding Crosthwait guilty of
    three counts of possession of child pornography and five counts of possession of
    child pornography with intent to distribute.2 The jury assessed punishment at ten
    years’ confinement for each possession conviction and twenty years’
    confinement for each possession-with-intent-to-distribute conviction.      The trial
    court sentenced him accordingly, setting the ten-year sentences to run
    concurrently with each other but consecutively to the twenty-year sentences,
    which run concurrently with each other. This appeal followed.
    III. Challenge to Facial Unconstitutionality
    In his first point, Crosthwait argues that penal code section 43.26 is facially
    unconstitutional because it is vague and overbroad, constituting a violation of the
    First Amendment.     However, he acknowledges that he did not challenge the
    facial constitutionality of the child pornography statute at trial. Contending that
    the court of criminal appeals’s statement in Karenev v. State, that “a defendant
    2
    Because Crosthwait complains that improper extraneous offense
    evidence admitted during the punishment phase of the trial had a substantial and
    injurious effect or influence on the jury’s verdict, we will review the record in
    greater detail below as part of our analysis.
    2
    may not raise for the first time on appeal a facial challenge to the constitutionality
    of a statute,” is dicta, 
    281 S.W.3d 428
    , 434 (Tex. Crim. App. 2009), he claims
    that he may now raise this challenge for the first time on appeal. See 
    id. We disagree.
    In Karenev, the majority expressly addressed the question
    of “whether a facial challenge to the constitutionality of the harassment statute
    may be raised for the first time on appeal” and expressly answered the question,
    “We hold that it may not.” 
    Id. at 429.
    And in a more recent case, the court cited
    to Karenev for this proposition. See, e.g., Estrada v. State, 
    313 S.W.3d 274
    , 306
    (Tex. Crim. App. 2010) (citing Karenev for the proposition that “defendant may
    not raise for first time on appeal a facial challenge to constitutionality of a statute”
    and re-emphasizing rule by observing that Estrada failed to preserve his facial
    constitutional challenges for review). Because we are bound by court of criminal
    appeals precedent, we conclude that Crosthwait failed to preserve his first point
    for our review. See Tex. R. App. P. 33.1; State v. Stevenson, 
    993 S.W.2d 857
    ,
    867 (Tex. App.—Fort Worth 1999, no pet.) (“Because a decision of the court of
    criminal appeals is binding precedent, we are compelled to comply with its
    dictates.”); see also Gonzales v. State, 
    190 S.W.3d 125
    , 130 n.1 (Tex. App.—
    Houston [1st Dist.] 2005, pet. ref’d) (“[A]s an intermediate appellate court, we
    must follow the binding precedent of the Court of Criminal Appeals.”), cert.
    denied, 
    549 U.S. 1000
    (2006). We overrule Crosthwait’s first point.
    3
    IV. Punishment Evidence
    In his second point, Crosthwait complains that the trial court abused its
    discretion by admitting evidence depicting bestiality during the punishment phase
    of his trial because the degree of unfair prejudice of the evidence substantially
    outweighed its probative value. Crosthwait argues that the bestiality evidence
    had no probative value, that it was inflammatory and inherently prejudicial, that it
    served to distract the jurors from the proper issue—punishment for his child
    pornography-related convictions—and that presenting evidence on actions
    unrelated to the charged offense was a waste of time. See Tex. R. Evid. 403.
    Even if the trial court abused its discretion by admitting the bestiality
    images, which we do not hold,3 we hold that error, if any, was harmless.
    3
    Section 3(a)(1) of article 37.07 of the code of criminal procedure permits
    evidence to be offered during the punishment phase
    as to any matter the court deems relevant to sentencing including
    but not limited to . . . the circumstances of the offense for which
    [defendant] is being tried, and . . . any other evidence of an
    extraneous crime or bad act that is shown beyond a reasonable
    doubt by evidence to have been committed by the defendant or for
    which he could be held criminally responsible, regardless of whether
    he has previously been charged with or finally convicted of the crime
    or act.
    Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2010). A person
    commits an offense if, knowing its content and character, he promotes or
    possesses with intent to promote any obscene material. Tex. Penal Code Ann.
    § 43.23(c)(1) (Vernon Supp. 2010). “Obscene” means material that depicts
    patently offensive representations of ultimate sexual acts, including sexual
    bestiality. 
    Id. § 43.21(a)(1)(B)(i)
    (Vernon 2003).
    4
    In assessing harm for an evidentiary error, we review whether the error
    could have affected Crosthwait’s substantial rights. See Tex. R. App. P. 44.2(b);
    Solomon v. State, 
    49 S.W.3d 356
    , 365 (Tex. Crim. App. 2001). A substantial
    right is affected when the error had a substantial and injurious effect or influence
    in determining the jury=s verdict. King v. State, 
    953 S.W.2d 266
    , 271 (Tex. Crim.
    App. 1997) (citing Kotteakos v. United States, 
    328 U.S. 750
    , 776, 
    66 S. Ct. 1239
    ,
    1253 (1946)); Coggeshall v. State, 
    961 S.W.2d 639
    , 643 (Tex. App.—Fort Worth
    1998, pet. ref’d). Conversely, an error does not affect a substantial right if we
    have Afair assurance that the error did not influence the jury, or had but a slight
    effect.@ 
    Solomon, 49 S.W.3d at 365
    ; Johnson v. State, 
    967 S.W.2d 410
    , 417
    (Tex. Crim. App. 1998).
    In making this determination, we review the record as a whole, including
    any testimony or physical evidence admitted for the jury=s consideration, the
    nature of the evidence supporting the verdict, and the character of the alleged
    error and how it might be considered in connection with other evidence in the
    case. Motilla v. State, 
    78 S.W.3d 352
    , 355 (Tex. Crim. App. 2002). We may also
    consider the jury instructions, the State=s theory and any defensive theories,
    whether the State emphasized the error, closing arguments, and even voir dire, if
    applicable. 
    Id. at 355B56.
    A. Voir Dire and Guilt-Innocence Phase Opening Statements and Evidence
    There was no mention of bestiality during voir dire or either side’s opening
    statements. Rather, the State focused on what it referred to as Crosthwait’s
    5
    “dirty little secrets,” focusing exclusively on child pornography, and the defense
    encouraged the jury to “[k]eep your eye on what the State doesn’t know.”
    Dallas Police Detective Gregory Dugger testified that he received a tip,
    originating with AOL, about transmission of an image of child pornography. He
    executed a search warrant with AOL for its records, viewed the images,
    determined that they depicted a child under the age of eighteen, and determined
    that the transmitting account belonged to John Crosthwait, 431 East Lamar
    Boulevard, Arlington, Texas.      The billing address of the phone number
    associated with the account, 817-303-5159, was “John Crosthwait, 431 E. Lamar
    Blvd Apt 101, Arlington TX”; the service address was “Kat Smokey, 431 E. Lamar
    Blvd Apt 101, Arlington TX.”
    State’s Exhibits 1A, 1B, 1C, and 1D, containing excerpts of AOL records4
    and the images at issue, were admitted in evidence and published to the jury
    during Detective Dugger’s testimony, as was State’s Exhibit 2, Southwestern
    Bell’s records for Crosthwait’s account. Detective Dugger described the images
    of children who appeared to be under the age of eighteen: one contained two
    4
    Crosthwait had the following screen name subaccounts associated with
    his main AOL account: Crosthwait, LostNtheBranches, KScookiemonster,
    TXCaveCrawler,        DaRIA186,        Marianneupstairs,     Crusader78852,
    Houstonboundvet, BoredNaomi, Poiu5432, Doodlebug85586, Nfe4sAkPo9,
    KaNsAsCiTy1993, Daniel24Johnson, and Mudsucker87. The image attachment
    in State’s Exhibit 1B was sent from the KScookiemonster account to another
    AOL user, crazydancer2006, as were the images in State’s Exhibits 1C and 1D.
    AOL terminated Crosthwait’s account based on the transmission of child
    pornography.
    6
    girls engaged in the lewd exhibition of their genitals and four more contained
    lewd exhibitions of a child’s or children’s genitals. The file name of the image
    associated with State’s Exhibit 1B was YN-023.jpg. State’s Exhibit 1C contained
    file names YN-003.jpg, YN-004.jpg, and YN-006.jpg.            State’s Exhibit 1D
    contained file name YN-021.jpg.5        Detective Dugger cross-referenced the
    Southwestern Bell phone records, which showed that on December 9, 2007, the
    phone line was used for three hours, starting at 10:29 p.m., with the AOL
    records, which showed that KScookiemonster was logged in to AOL using phone
    number 817-303-5159 during that time and that this was also when the emails in
    State’s Exhibits 1B, 1C, and 1D were sent.
    Arlington Police Detective Huey Nguyen, a certified computer forensic
    examiner, testified that he received the file from Detective Dugger, confirmed
    Crosthwait’s address and phone number, and then acquired and executed a
    search warrant for Crosthwait’s apartment.          Upon entering Crosthwait’s
    apartment, he saw a laptop computer in the living room, surrounded by
    numerous pieces of digital media—floppy disks, CDs, DVDs. Crosthwait told the
    police that the laptop was his, that he had a dial-up internet connection, and that
    he lived alone. When asked about his subaccount names, Crosthwait admitted
    to his main account and to LostNtheBranches, his genealogy account, but not the
    5
    These are the file names associated with Crosthwait’s indictments for
    possession of child pornography with intent to promote by dissemination.
    7
    others. The police seized Crosthwait’s laptop, external floppy drive, and floppy
    disks, which were entered in evidence.
    Detective Nguyen analyzed the computer hard drive and found the AOL
    emails, admitted as State’s Exhibits 12, 13, and 14.6 He testified that emailing
    out images of child pornography is a way of promoting child pornography by
    dissemination, and he concluded, from finding the images in the AOL area of the
    computer, that the images were stored in and sent from that computer. He found
    additional images of child pornography on the computer, stored under the user
    profile of “Owner/P folder; subfolder, lesbians,” which were admitted as State’s
    Exhibit 15 and published to the jury.7 Other subfolders in Crosthwait’s laptop’s P
    folder were named “animal,” “nude,” and “clothed.” This is the first mention of the
    “animal” subfolder.
    6
    Detective Nguyen explained that the exhibits were from the computer’s
    hard drive file path, which showed
    within the latest installation of AOL, . . . in the backup under the
    screen name personal file cabinet or the folder for the screen name,
    there’s a deleted message stored there. That deleted message was
    sent from KScookiemonster to crazydancer2006 on the date of 12-9-
    2007.
    The recovered emails contained the attachments of the images at issue in this
    case.
    7
    Detective Nguyen testified that State’s Exhibit 15 depicted underage
    females engaged in sexual acts: one image depicted a child engaging in
    masturbation and one showed two girls kissing. He also found personal images
    of Crosthwait in the owner profile.
    8
    With regard to the floppy disks, Detective Nguyen testified that State’s
    Exhibit 16, file 6.bmp, contained what appeared to be a child under the age of
    eighteen and the lewd exhibition of the child’s breast below the top of the
    areolae. This file appeared on the laptop around five times.
    Crosthwait went to the Arlington police station for an interview on May 29,
    2008, which was videotaped and published to the jury as State’s Exhibit 18. In
    the video, Crosthwait confirmed his address, expressed that he did not know
    what was going on, and repeatedly denied any knowledge of KScookiemonster,
    stating “It’s not mine.”   He stated that the only “graphic content” he could
    remember was a video someone sent him called “The Camel Toe Song.” He
    asked several times to see the images recovered from his emails and from the
    laptop, and he asserted several times that none of the images on the laptop, to
    his knowledge, involved anyone under age eighteen. He stated that if they were
    younger than eighteen, he was sorry, but he did not look at them much and they
    did not appear younger than co-eds to him. And he stated that a stranger gave
    him a compact disk of photos (a “party disk”) when he lived in Austin, around
    eight years ago. After the police left the interview room, Crosthwait stated, “What
    a mess. Kansas City Cookiemonster, geez. . . . It ain’t mine. . . . I don’t know
    who that is. Who the fuck is creating these screen names and shit. Damn it,
    damn it, damn it . . . It’s causing me a lot of headaches.”
    In the video, Crosthwait said he was burglarized three times in a year,
    explaining that this was why he had the laptop for only a few months, and he
    9
    theorized that he must have been hacked—that someone probably obtained his
    password and created the subaccounts. However, as the video showed, and as
    Detective Nguyen testified, Crosthwait was unable to point to anything realistic
    that would show his computer had been hacked, based, among other things, on
    the type of internet connection he had. Specifically, Detective Nguyen testified
    that it is almost impossible to hack a dial-up modem,8 and he did not find
    anything in the AOL records to show that Crosthwait had ever made a complaint
    about hacking.
    State’s Exhibit 19 shows Crosthwait’s AOL screen, with some of
    Crosthwait’s different user names:             Crosthwait, LostNtheBranches, and
    KScookiemonster. Additionally, the “buddy list” in the main Crosthwait account
    matched the “buddy list” in the KScookiemonster subaccount.9 Detective Nguyen
    testified that emailing child pornography is called collecting or trading. State’s
    Exhibit    21,   an   AOL   record   of   an    email   from   KScookiemonster    to
    crazydancer2006 on December 9, 2007, states, “it’s a trade. don’t know her. im
    8
    Detective Nguyen explained,
    To be hacked, you have to have some kind of connection to the
    computer before you can have a connection coming out. So if dial-
    up is his only connection to the Internet, there’s no way that any kind
    of hacker would have accessibility to that computer until it was dialed
    up and some sort of connection. Also the numbers for going out on
    dial-up all return to Mr. Crosthwait, the 817-303-5159 number.
    9
    Crosthwait’s       “buddies”    included    Xxxhottie138,    Ohellzbellz,   and
    Chavezfour.
    10
    [sic] sorry,usually i do first. very pretty.” This email was sent around the same
    time as the child pornography emails.
    B. Closing Arguments—Guilt-Innocence Phase
    During closing arguments, the State argued that the evidence showed that
    Crosthwait possessed and promoted child pornography via email, stating, “[I]t’s
    not this defendant’s dirty little secret anymore because we all know about it.”
    Defense responded that there was no direct evidence that he was the only
    person who ever had control over the computer, that there was no evidence that
    he knew some of the images were of children, and that the police did a bad job of
    investigating.
    C. Punishment Phase Evidence
    After the jury found Crosthwait guilty on all counts, Detective Nguyen
    testified during the punishment phase about the additional images that he found
    on Crosthwait’s laptop and in Crosthwait’s apartment: images from the subfolder
    “lesbians,” which were admitted as State’s Exhibit 22; additional images found on
    the floppy disk that contained child pornography, admitted as State’s Exhibit 23;
    “child erotica” in the form of clothed images of children, from the P folder on
    Crosthwait’s laptop, in the subfolder labeled “clothed,” admitted as State’s Exhibit
    24; various VHS cassettes and DVDs with names that referred to underage or
    teen participants, including “Bald Beavers,” “My First Sex,” “Amateur Lesbians,”
    “Barely Learning,” and “Learning to Lick”; and additional images of child
    11
    pornography    recovered   from    AOL’s     records    of   email   sent   from   the
    KScookiemonster subaccount.
    Detective Nguyen then testified that he found “pornographic images
    involving what you would call bestiality, humans having sexual intercourse with
    animals,” in folder P, subfolder “animals.”     These images were admitted as
    State’s Exhibit 25 over Crosthwait’s objections. This was the only mention of the
    bestiality images, and it was followed by additional testimony by Detective
    Nguyen that he recovered approximately 300 images of child pornography on
    Crosthwait’s laptop and found around 176 images of adult pornography on the
    laptop.
    Detective Nguyen further testified about deleted emails recovered from
    Crosthwait’s laptop from Crosthwait’s KScookiemonster, KaNsAsCiTy1993, and
    Nfe4sAkPo9 accounts. These emails were admitted as State’s Exhibit 37. They
    were sent to or received from Xxxhottie138, Ohellzbellz, and others on
    Crosthwait’s buddy list. All of these emails had attachments. Message 128,
    received by Crosthwait from Ohellzbellz, included the message “Here’s a little
    taste of my step-daughter . . . .”         Message 196, sent by Crosthwait to
    xxxhottie138, asked, “How young you got?”              And Message 341, sent by
    Crosthwait to Chavezfour, stated, “She’s an adult, but cute.”
    Crosthwait testified that, with regard to his possession of the child
    pornography images, “Some of the stuff was off the party disk, I don’t remember
    all of them. The rest were from people who wanted to trade with me, and I guess
    12
    it just snowballed.” He stated that he thought the people who sent him pictures
    were his friends, that he did not have a lot of friends, and that he had never met
    any of the people who sent the images to him in “real life.”10 He stated that he
    had never been with any of the children in real life and that he did not and would
    not take any of the pictures of children.
    Crosthwait admitted on cross-examination that KScookiemonster and the
    other subaccounts were his. He stated that he did not think, at the time, that the
    photographs were of children but acknowledged that some of the photographs
    contained individuals that were definitely underage.         On cross-examination,
    Crosthwait gave the following testimony:
    Q. So you were actively seeking images of child pornography over
    the Internet; isn’t that right?
    A. No. What I prefer are coeds.
    Q. What you collected was children; isn’t that true?
    A. Some of them are evidently, yes, and I’m deeply sorry.
    Q. 300 images, correct?
    A. If he’s right, yes.
    Q. Sir, are you aware of the fact that someone is taking those
    pictures somewhere in the world?
    A. I guess they are, yes, okay.
    10
    In addition to his testimony during the punishment phase, Crosthwait
    brought his former leasing agent to testify that Crosthwait had been a good
    resident and did volunteer work and a Tarrant County probation officer to testify
    about how community supervision would work.
    13
    Q. Are you aware that real little children, real little children are being
    harmed by that?
    A. I’ve never thought about that.
    D. Closing Arguments—Punishment Phase
    During closing arguments, the State argued that Crosthwait was only sorry
    that he had been caught, that 300 images of child pornography warranted the
    maximum for each conviction, and that Crosthwait was not a good candidate for
    community supervision. Defense responded that Crosthwait was an excellent
    candidate for community supervision, that some of the images were not children,
    that Crosthwait was just the end-user, and that just because he was sorry that he
    was caught did not also mean that he was not sorry that he did it. The jury
    assessed the maximum punishment for each conviction.
    E. Analysis
    Given the volume of child pornography-related evidence considered by the
    jury in this case and the lack of emphasis that the State placed on the bestiality
    images from Crosthwait’s laptop, we cannot say that the error, if any, had a
    substantial and injurious effect or influence in determining the jury=s verdict. See
    
    King, 953 S.W.2d at 271
    ; 
    Coggeshall, 961 S.W.2d at 643
    . That is, the evidence
    during guilt-innocence overwhelmingly supported the jury’s determination that
    Crosthwait possessed and promoted child pornography.            Because Crosthwait
    testified during the punishment phase, the jury had the opportunity to directly
    judge his credibility, his admission that the subaccounts at issue were his, and
    14
    his excuses for his behavior. And by the time the single exhibit containing the
    bestiality images was admitted, the jury had already been forced to endure a
    significantly greater amount of child pornography images throughout the guilt-
    innocence phase and during the punishment phase. See 
    Motilla, 78 S.W.3d at 355
    .
    Furthermore, the trial court included an extraneous offense instruction in
    the punishment charge, ordering the jury that it could not consider extraneous
    offense testimony for any purpose unless it found and believed “beyond a
    reasonable doubt that the defendant committed such other acts.” And the State’s
    overall theory (Crosthwait had “dirty little secrets” and was not a good candidate
    for community supervision) did not address the bestiality images. Finally, the
    State did not mention their presence in its closing arguments. See 
    id. at 355B56.
    Therefore, we conclude that, on these facts, Crosthwait’s substantial rights could
    not have been violated, and we overrule his second point.
    V. Conclusion
    Having overruled both of Crosthwait’s points, we affirm the trial court’s
    judgments.
    PER CURIAM
    PANEL: MCCOY, MEIER, and GABRIEL, JJ.
    DO NOT PUBLISH
    Tex. R. App. P. 47.2(b)
    DELIVERED: December 16, 2010
    15