Kevin Wayne Anders v. State ( 2010 )

IN THE
TENTH COURT OF APPEALS
No. 10-09-00147-CR
KEVIN WAYNE ANDERS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 13th District Court
Navarro County, Texas
Trial Court No. 31700-CR
MEMORANDUM OPINION
A jury convicted Kevin Wayne Anders of ten counts of possession of child
pornography. The court assessed his punishment at ten years’ imprisonment on each
count and ordered the sentences to run consecutively. Anders contends in two issues
that the evidence is legally and factually insufficient to prove he knowingly possessed
the images on his computer hard drive. We will affirm.
During the investigation of another offense, Navarro County Sheriff’s deputies
found papers on a desk in Anders’ home which contained references to websites
featuring child pornography. Deputies seized a computer from the home. A forensic
analysis revealed 180 images of child pornography on the hard drive. Prosecutors
identified ten of these images (some of which were found in more than one location on
the hard drive) which served as the basis for the ten-count indictment.
Standard of Review
Anders contends in his first and second issues that the evidence is legally and
factually insufficient.
For a claim of legal insufficiency, we view all of the evidence in a light most
favorable to the verdict and determine whether any rational trier of fact could have
found the essential element beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Sells v. State, 121 S.W.3d 748, 753-54
(Tex. Crim. App. 2003); Johnson v. State, 271 S.W.3d 756, 758 (Tex. App.—Waco 2008,
pet. ref’d).
Regarding Anders’s factual-insufficiency complaint, the Court of Criminal
Appeals has recently held that “the Jackson v. Virginia standard is the only standard that
a reviewing court should apply in determining whether the evidence is sufficient.”
Brooks v. State, No. PD-210-09, 2010 WL 3894613, at *14 (Tex. Crim. App. Oct. 6, 2010).
Thus, we overrule Anders’s second issue.
Possession
Anders first contends that the evidence is legally insufficient because he was not
the only person with access to the computer. Specifically, he argues that (1) the State
failed to affirmatively link him to the unlawful images found on the hard drive and (2)
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the State “failed to complete the chain of custody to the computer” before it was
subjected to forensic analysis. We construe these contentions collectively as an
assertion that the evidence is legally insufficient to prove that Anders is the person who
possessed the unlawful images.
Beginning with Anders’s chain-of-custody complaint, he failed to object to the
admissibility of the hard drive or any of the individual images on this basis. Thus, he
has failed to preserve an appellate complaint regarding the chain of custody. See TEX. R.
APP. P. 33.1(a)(1); Simmons v. State, 100 S.W.3d 484, 492 (Tex. App.—Texarkana 2003,
pet. ref’d). Also, in the absence of affirmative evidence of tampering or contamination,
any gaps or minor breaches in the chain of custody affect the weight to be given the
evidence, not its admissibility. See Dossett v. State, 216 S.W.3d 7, 17 (Tex. App.—San
Antonio 2006, pet. ref’d); Martinez v. State, 186 S.W.3d 59, 62 (Tex. App.—Houston [1st
Dist.] 2005, pet. ref’d). Here, there is no evidence of tampering or contamination.
The “so-called ‘affirmative links’ rule” is not “an independent test of legal
sufficiency.” See Evans v. State, 202 S.W.3d 158, 161 n.9 (Tex. Crim. App. 2006); Carroll v.
State, 266 S.W.3d 1, 2 (Tex. App.—Waco 2008, pet. ref’d). Rather, “we examine the
record for direct or circumstantial evidence which, when viewed in the light most
favorable to the verdict, established that [Anders] exercised control, management, or
care over the contraband and knew that it was contraband.” Carroll, 266 S.W.3d at 2; see
Evans, 202 S.W.3d at 161-62; see also TEX. PEN. CODE ANN. § 1.07(a)(39) (Vernon Supp.
2010) (“’Possession’ means actual care, custody, control, or management.”).
Anders v. State Page 3
Detective Hank Bailey testified that the computer was located on a desk in the
main living area on the first floor of the house. He found two crumpled pieces of paper
in one of the desk drawers which were printouts listing numerous pornographic
websites, including references to “underage” and “preteen illegal” child pornography.
He also found another sheet of paper with several handwritten URL’s for websites
including one which appeared to involve child pornography. Anders’s girlfriend
testified that this was his handwriting. His fingerprint was also found on this sheet of
paper.
Bailey seized the computer, transported it to the Navarro County Sheriff’s
Department, and delivered it to Lieutenant James McCay the evidence custodian.
McCay took the computer to Waco and delivered it to Chris Kingrey, a forensic analyst.
Kingrey testified that the computer had two user-created accounts: “Owner” and
“Kids.” The designated username for the “Owner” account was Kevin. The “Kids”
account had parental controls which restricted access to websites deemed appropriate
for children 12 or younger. If someone using this restricted account tried to access
inappropriate material, access would be blocked and an e-mail would be sent to the
Owner account via an AOL account named kevinanderstx. Kingrey testified that
someone using this AOL account ran an internet search using the term “preteen child
porn.”
When the computer was seized, Anders shared a home with his girlfriend and
her three daughters. Each of them used the computer at different times. Anders’s
girlfriend denied ever viewing child pornography on the computer. She testified that
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Anders changed the password for internet access at the beginning of the summer of
2007 so that only he could access the internet. Most of the images of child pornography
on the computer hard drive were accessed in June 2007. She testified that her daughters
were supervised when they were on the computer and that they only used the
computer during the day or early evening. The images which were accessed in June
2007 were accessed later at night, when several witnesses testified Anders was usually
on the computer.
Viewed in the light most favorable to the verdict, Detective Bailey found a piece
of paper with URL’s handwritten by Anders for websites featuring child pornography
and another sheet with a printed listing of similar information. An internet search for
“preteen child porn” was run with Anders’s AOL account. Anders alone had internet
access at the time the unlawful images were viewed and modified. This evidence is
legally sufficient to prove Anders is the person who possessed the unlawful images
found on the hard drive. See Krause v. State, 243 S.W.3d 95, 111-12 (Tex. App.—Houston
[1st Dist.] 2007, pet. ref’d).
Knowledge
Anders also claims that the evidence is legally insufficient because the State
failed to prove that he knowingly possessed the images. See TEX. PEN. CODE ANN. §
43.26(a)(1) (Vernon 2003) (defining offense as “knowingly or intentionally” possessing
child pornography).
Kingrey found approximately 180 images of child pornography at various
locations in the hard drive. The images corresponding to Counts 1 and 2 were found in
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the “My Videos” folder for the Owner account in the thumbs.db file. The images
corresponding to Counts 4, 6, 9 and 10 were found in the Topspeed.cache.db file. The
images corresponding to Counts 2, 3, 4, 5, 7 and 8 were found in free space on the
drive.1 Kingrey testified that each of these images had been accessed by a user of the
computer and modified, saved or “deleted.”2 He also testified that these images were
presently at locations on the hard drive which most people would be unaware existed
and would be unable to access.
Viewing the evidence in the light most favorable to the verdict, Kingrey testified
that each of the ten images which formed the basis of the State’s prosecution had been
viewed by someone on the computer and modified or deleted. Based on the account
ownership and Anders’s personal and exclusive access to the computer and the internet
in particular, a rational trier of fact could have found beyond a reasonable doubt that
Anders is the one who viewed these unlawful images. In addition, although the images
could not have been accessed by “most people” at the time of trial, a rational trier of fact
could have found based on Kingrey’s testimony that the images had been viewed by
Anders but later modified or deleted so that they were no longer accessible to the
average computer user.
1
Copies of the images corresponding to Counts 2 and 4 were found both in the files mentioned
and in free space on the hard drive.
2
Kingrey explained that when a computer file is “deleted,” the file moves to space that is not
allocated to an active file on the hard drive. See Lancaster v. State, 319 S.W.3d 168, 173 n.5 (Tex. App.—
Waco 2010, pet. ref’d).
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Thus, we conclude that the evidence is legally sufficient to prove Anders
knowingly possessed the unlawful images. See Gant v. State, 278 S.W.3d 836, 839-42 (Tex.
App.—Houston [14th Dist.] 2009, no pet.).
We overrule Anders’s first issue and affirm the judgment.
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed November 24, 2010
Do not publish
[CRPM]
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