William Cody Thompson v. State

ACCEPTED
14-15-00175-CR
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
8/7/2015 3:41:30 PM
CHRISTOPHER PRINE
CLERK
NOS. 14-15-00174-CR & 14-15-00175-CR
IN THE FOURTEENTH COURT OF APPEALS FILED IN
14th COURT OF APPEALS
HOUSTON, TEXAS
HOUSTON, TEXAS 8/7/2015 3:41:30 PM
CHRISTOPHER A. PRINE
Clerk
WILLIAM CODY THOMPSON, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
BRIEF FOR THE STATE OF TEXAS
CAUSE NUMBERS 13CR2837 & 13CR2838
IN THE 56th JUDICIAL DISTRICT COURT
OF GALVESTON COUNTY, TEXAS
ATTORNEYS FOR THE STATE OF TEXAS
REBECCA KLAREN ASSISTANT CRIMINAL DISTRICT ATTORNEY
STATE BAR NO. 24046225
JACK ROADY CRIMINAL DISTRICT ATTORNEY
600 59TH STREET, SUITE 1001
GALVESTON TX 77551
(409) 770-6004, FAX (409) 621-7952
rebecca.klaren@co.galveston.tx.us
ORAL ARGUMENT WAIVED
IDENTITY OF PARTIES AND COUNSEL
Presiding Judge Honorable Lonnie Cox
Appellant William Cody Thompson
Appellee The State of Texas
Attorney for Appellant Angela Taylor
(Trial Only) League City, Texas
Attorney for Appellant James Ducote
(Appeal Only) League City, Texas
Attorney for State Adam Poole & Megan Jones
(Trial Only) Galveston, Texas
Attorney for State Rebecca Klaren
(Appeal Only) Galveston, Texas
ii
TABLE OF CONTENTS
SECTION PAGE
Identity of Parties and Counsel ii
Table of Contents iii
Index of Authorities iv
Summary of the Argument 2
Statement of Facts 2
Sole Issue 6
Penal Code §3.03, Code of Criminal Procedure article 42.08, and
the case law provide trial courts with the discretion to stack a
child pornographer’s sentences.
How’s there reversible error when Thompson was convicted of
two counts of possession of child pornography and the law
allows the Trial Court to order Thompson’s sentences to run
consecutively?
Argument and Authorities 6
Conclusion and Prayer 10
Certificate of Service 11
Certificate of Compliance 11
iii
INDEX OF AUTHORITIES
CASES
Beedy v. State, 194 S.W.3d 595, 597 (Tex. App.---Houston [1st Dist.] 2006, aff’d, 250
S.W.3d 107 (Tex. Crim. App. 2008)). ........................................................................6
Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). .......................................7
Ex parte Ervin, 187 S.W.3d 386, 388 (Tex. Crim. App. 2005). ......................................6
Green v. State, 706 S.W.2d 653 (Tex. Crim. App. 1986) .................................................8
Medina v. State, 7 S.W.3d 876, 878-79 (Tex. App.---Houston [1st Dist.] 1999, no pet.) .9
Mireles v. State, 444 S.W.3d 679, 680 (Tex. App.---Houston [14th Dist.] 2014, pet.
ref’d). ............................................................................................................... 6, 8, 9
Nguyen v. State, 359 S.W.3d 636, 641-42 (Tex. Crim. App. 2012). .................................6
Pettigrew v. State, 48 S.W.3d 769, 772 (Tex. Crim. App. 2001) ...................................8, 9
Tran v. State, 221 S.W.3d 79, 90 (Tex. App.---Houston [14th Dist.] 2005, pet. ref’d). ...6
STATUTES
TEX. CRIM. PROC. CODE art. 42.08. .........................................................................8, 9
TEX. GOV’T CODE §311.011........................................................................................6
TEX. PENAL CODE §3.03(b)(3)(A)............................................................................7, 9
TEX. PENAL CODE §43.26 ...........................................................................................7
iv
NOS. 14-15-00174-CR & 14-15-00175-CR
IN THE
COURT OF APPEALS
FOR THE
FOURTEENTH DISTRICT OF TEXAS
HOUSTON, TEXAS
WILLIAM CODY THOMPSON, Appellant
V.
THE STATE OF TEXAS, Appellee
Appealed from the 56th Judicial District
Court of Galveston County, Texas
Cause Nos. 13CR2837 & 13CR2838
BRIEF FOR THE STATE OF TEXAS
TO THE HONORABLE COURT OF APPEALS:
Now comes Jack Roady, Criminal District Attorney for Galveston County, Texas,
and files this brief for the State of Texas.
The one-volume Clerk’s Record for each cause number is referred to in the State’s Brief as “C.R.
2837: page” or “C.R. 175: 2838”. The Reporter’s Record is multiple volumes and is referred to as
“R.R. volume number: page”.
SUMMARY OF THE ARGUMENT
In his sole issue, William Thompson argues he’s entitled to a new punishment
hearing because the Trial Court couldn’t stack his two possession of child pornography
sentences. Thompson relies on outdated cases. The Penal Code, the Code of Criminal
Procedure, and the case law vest the trial court with the discretion to order a child
pornographer’s sentences to run consecutively or concurrently. Here, the Trial Court
committed no error when it ordered Thompson to serve his 10 year confinement
sentence before serving 10 years of probation.
STATEMENT OF FACTS
The Internet Crimes Against Children Task Force (ICAC) investigates peer-to-
peer transfers of child pornography.1 The investigators have specialized software that
allow them to search child pornography downloaders within a specific area.2 The
investigators are able to determine the internet service provider and the subscriber
information.3 The investigators can see what the suspect is downloading and can
confirm the files are on the suspect’s shared folder.4 The investigators then get a search
warrant for the suspect’s house and seize his computers or devices capable of storing
1
R.R. III: 13-14.
2
R.R. III: 18.
3
R.R. III: 19.
4
R.R. III: 21.
2
child pornography.5
ICAC began its investigation on Thompson in September 2013.6 They served
their search warrant for Thompson’s house in October 2013.7 The officers seized a
laptop and several hard drives.8
One of the investigators testified even if someone was able to steal Thompson’s
Wi-Fi, it was not possible for that person to download child pornography to
Thompson’s computer.9 The digital forensics officer examined Thompson’s laptop and
hard drives.10 The officer found 1,489 images and 780 videos of child pornography on
Thompson’s laptop.11 The officer found 354 videos of child pornography on a hard
drive.12 The officer found 6 images and 213 videos of child pornography on another
hard drive.13
The digital forensics officer testified that there were files created and accessed
from 2011 until the day before the search warrant was executed.14 The officer explained
the images were saved in several locations on the drives.15 He testified this was
significant because some of the saved locations were not the default locations for the
5
R.R. III: 26-27.
6
R.R. III: 24.
7
R.R. III: 24-25, 29.
8
R.R. III: 35-38.
9
R.R. III: 43-44.
10
R.R. III: 75.
11
R.R. III: 79.
12
R.R. III: 79-80.
13
R.R. III: 80.
14
R.R. III: 83.
15
R.R. III: 84.
3
peer-to-peer software.16
The digital forensics officer provided several search terms he found on
Thompson’s computer and hard drive.17 They included: “Copia. Sandra Nude, Jena
12YO, or 12 years old; Real and Photo by Carl; Mafia Sex Kids, girls; Equal Copia; and
New Star Diana.”18 The officer recognized several of the terms and explained Photo by
Carl is a series of child pornography.19
The digital forensics officer testified State’s Exhibit 1 has two videos from one of
Thompson’s hard drives.20 The first file was titled “PTHC three-year-old Majorie.”21 The
officer testified based on his training and experience “PTHC” means preteen hard
core.22 He also testified that based on his training and experience the video appeared to
be of a child younger than 18 and was child pornography.23 The second file was titled
“PTHC, pedoland, frifam, baby shimd, two-year-old slave play, black mask 002.”24 The
officer testified he’s seen “pedoland” on other images of child pornography.25 The
officer testified that based on his training and experience the video was of a child
younger than 18 and was child pornography.26
16
R.R. III: 84.
17
R.R. III: 87.
18
R.R. III: 87.
19
R.R. III: 87-88.
20
R.R. III: 90; State’s Exhibit 1.
21
R.R. III: 90.
22
R.R. III: 90-91.
23
R.R. III: 91.
24
R.R. III: 91.
25
R.R. III: 91-92.
26
R.R. III: 92.
4
The jury convicted Thompson of 2 counts of possession of child pornography.27
During the punishment phase of the trial, the Trial Court admitted a military
judgment showing Thompson had been convicted of assault and of possession of child
pornography.28
Thompson testified during punishment.29 He asked the jury for probation.30 He
claimed when he got the devices, they already had child pornography on them.31 He
admitted he could’ve stopped the child pornography from downloading if he wanted to,
but he didn’t.32 He admitted he looked at the child pornography, but he was surprised
every time he opened a file.33
The jury sentenced Thompson to 10 years confinement in one case and 10 years
confinement with a recommendation that the sentence be probated in the other case.34
The State requested the sentences run consecutively.35 Over Thompson’s objection,36
the Trial Court stacked his sentences.37
This appeal followed.
27
R.R. III: 127-28.
28
R.R. III: 129, 132; State’s Exhibit 14.
29
R.R. III: 169.
30
R.R. III: 191.
31
R.R. III: 193.
32
R.R. III: 194.
33
R.R. III: 194-95.
34
R.R. IV: 36-37.
35
R.R. IV: 39.
36
R.R. IV: 40.
37
R.R. V: 3.
5
SOLE ISSUE
Penal Code §3.03, Code of Criminal Procedure article 42.08, and the
case law provide trial courts with the discretion to stack a child
pornographer’s sentences.
How’s there reversible error when Thompson was convicted of two
counts of possession of child pornography and the law allows the
Trial Court to order Thompson’s sentences to run consecutively?
ARGUMENT AND AUTHORITIES
An appellate court generally reviews a trial court’s decision to stack a defendant’s
sentences for an abuse of discretion.38 When the law authorizes the imposition of
consecutive sentences, the trial court has absolute discretion to stack the sentences.39 But
a trial court abuses its discretion if it fails to apply the law correctly.40
A trial court’s authority to stack is provided by statute.41 When interpreting a
statute, the appellate court applies a de novo standard of review, mindful that its primary
objective is to ascertain and give effect to the intent of the legislature.42 The appellate
court focuses on the literal text of the statute, applying the plain and ordinary meaning
of the words that have been used, unless doing so yields an absurd result.43 If the statute
38
Mireles v. State, 444 S.W.3d 679, 680 (Tex. App.---Houston [14th Dist.] 2014, pet. ref’d).
39
Tran v. State, 221 S.W.3d 79, 90 (Tex. App.---Houston [14th Dist.] 2005, pet. ref’d).
40
Mireles, 444 S.W.3d at 680.
41
Beedy v. State, 194 S.W.3d 595, 597 (Tex. App.---Houston [1st Dist.] 2006, aff’d, 250 S.W.3d 107
(Tex. Crim. App. 2008)).
42
See Nguyen v. State, 359 S.W.3d 636, 641-42 (Tex. Crim. App. 2012).
43
See TEX. GOV’T CODE §311.011; Ex parte Ervin, 187 S.W.3d 386, 388 (Tex. Crim. App. 2005).
6
is clear and unambiguous, the appellate court must presume that the legislature meant
what it expressed.44
The Penal Code provides that if the defendant is found guilty of more than one
offense arising out of the same criminal episode, the sentences may run concurrently
or consecutively if each sentence is for a conviction under Penal Code §43.26—the
possession of child pornography statute.45 The Texas Code of Criminal Procedure
authorizes a trial court to order consecutive sentences when a defendant is convicted
in two or more cases, as follows:
(a.) When the same defendant has been convicted in two
or more cases, judgment and sentence shall be
pronounced in each case in the same manner as if
there had been but one conviction. Except as
provided by Sections (b) and (c) of this article, in the
discretion of the court, the judgment in the second
and subsequent convictions may either be that the
sentence imposed or suspended shall begin when the
judgment and the sentence imposed or suspended in
the preceding conviction has ceased to operate, or that
the sentence imposed or suspended shall run
concurrently with the other case or cases, and
sentence and execution shall be accordingly; provided,
however, that the cumulative total of suspended
sentences in felony cases shall not exceed 10 years,
and the cumulative total of suspended sentences in
misdemeanor cases shall not exceed the maximum
period of confinement in jail applicable to the
misdemeanor offenses, though in no event more than
three years, including extensions of periods of
community supervision under Section 22, Article
44
See Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
45
TEX. PENAL CODE §3.03(b)(3)(A) (sentences for offenses arising out of same criminal episode
statute); TEX. PENAL CODE §43.26 (possession or promotion of child pornography statute).
7
42.12, of this code, if none of the offenses are
offenses under Chapter 49, Penal Code, or four years,
including extensions, if any of the offenses are
offenses under Chapter 49, Penal Code.
...
(c.) If a defendant has been convicted in two or more
cases and the court suspends the imposition of the
sentence in one of the cases, the court may not order
a sentence of confinement to commence on the
completion of a suspended sentence for an offense.46
Thompson argues that Green v. State interprets article 42.08 to hold a community
supervision sentence cannot be stacked on a term of confinement.47 Thompson’s
argument ignores the fact that the Legislature intentionally amended article 42.08 after
Green by deleting all references to “punishment” and replacing them with “sentence
imposed or suspended.”48 This Court concluded that the plain terms of §3.03 and article
42.08 grant the trial courts discretion to stack a community supervision sentence on a
term of confinement sentence.49
Thompson was convicted of possessing child pornography in two cases.50 Both
cases have the same date of offense.51 Both convictions arise from the same Internet
46
TEX. CRIM. PROC. CODE art. 42.08.
47
Thompson’s brief p. 15-17 (citing Green v. State, 706 S.W.2d 653 (Tex. Crim. App. 1986)).
48
Mireles, 444 S.W.3d at 681-82 (citing Act effective Aug. 31, 1987, 70th Leg., R.S., ch. 513, § 1, 1987
Tex. Gen. Laws 2125, 2125; Pettigrew v. State, 48 S.W.3d 769, 772 (Tex. Crim. App. 2001) (stating that
the legislature amended Article 42.08 to “broaden a trial court’s ability to stack sentences by
affording the option of stacking periods of community supervision”)).
49
Mireles, 444 S.W.3d at 683.
50
R.R. III: 127-28.
51
C.R. 2837: 7 (indictment date of offense October 17, 2013); C.R. 2838: 6 (indictment date of
offense October 17, 2013).
8
Crimes Against Children Task Force investigation and search warrant.52 Under the Penal
Code,53 the Code of Criminal Procedure,54 and the case law,55 the Trial Court did not
abuse its discretion by stacking Thompson’s 10 year community supervision sentence on
his 10 year prison sentence.
Thompson’s sole issue should be overruled.
52
R.R. III: 13, 24-25, 26-27, 29, 31, 38-41, 75, 79-83, 87, 90-92.
53
TEX. PENAL CODE §3.03(b)(3)(A).
54
TEX. CRIM. PROC. CODE art. 42.08.
55
See Pettigrew, 48 S.W.3d at 772; Mireles, 444 S.W.3d at 683; Medina v. State, 7 S.W.3d 876, 878-79
(Tex. App.---Houston [1st Dist.] 1999, no pet.) (holding appellant’s reliance on Green v. State
overlooks the Legislature’s amendment to article 42.08 in 1987 specifically allowing cumulation of
community supervision sentences).
9
CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, the State prays that the judgment
of the Trial Court be affirmed in all respects.
Respectfully submitted,
JACK ROADY
CRIMINAL DISTRICT ATTORNEY
GALVESTON COUNTY, TEXAS
/s/ Rebecca Klaren
REBECCA KLAREN
Assistant Criminal District Attorney
State Bar Number 24046225
600 59th Street, Suite 1001
Galveston, Texas 77551
Tel (409)770-6004/Fax (409)621-7952
rebecca.klaren@co.galveston.tx.us
10
CERTIFICATE OF SERVICE
The undersigned Attorney for the State certifies a copy of the foregoing brief was
sent via email, eFile service, or certified mail, return receipt requested, to James Ducote,
attorney for William Cody Thompson, at james@ducotelawfirm.com or 3027 Marina
Bay Dr. Suite 110, League City, Tx 77573, on August 7, 2015.
/s/ Rebecca Klaren
REBECCA KLAREN
Assistant Criminal District Attorney
Galveston County, Texas
CERTIFICATE OF COMPLIANCE
The undersigned Attorney for the State certifies this brief is computer generated,
and consists of 1,851 words.
/s/ Rebecca Klaren
REBECCA KLAREN
Assistant Criminal District Attorney
Galveston County, Texas
11