Matthew Bryan Rice v. the State of Texas

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-22-00181-CR
NO. 09-22-00182-CR
NO. 09-22-00183-CR
NO. 09-22-00184-CR
__________________
MATTHEW BRYAN RICE, Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________
On Appeal from the 9th District Court
Montgomery County, Texas
Trial Cause Nos. 20-05-05820-CR, 20-09-11175-CR,
20-09-11177-CR, and 20-09-11178-CR
__________________________________________________________________
MEMORANDUM OPINION
In open plea agreements in trial cause numbers 20-05-05820-CR, 20-09-
11175-CR, 20-09-11177-CR, and 20-09-11178-CR, Matthew Bryan Rice
(Appellant) pleaded guilty to four counts of possession or promotion of child
pornography, each a third-degree felony. See Tex. Penal Code Ann. § 43.26(a). The
trial court accepted the pleas and deferred findings of guilt until the completion of
1
the presentence investigation (PSI) report and a punishment hearing. Upon the
completion of the PSI report and after a punishment hearing, the trial court found
Appellant guilty of each count, sentenced Appellant to ten years of confinement for
each count and ordered that the sentences run consecutively. Appellant filed a
motion for new trial based on ineffective assistance of counsel, which was overruled
by operation of law, and he then filed this appeal. In his sole issue on appeal,
Appellant argues the trial court abused its discretion in failing to hold an evidentiary
hearing on Appellant’s motion for new trial. We affirm.
Punishment Evidence
Testimony of Detective Cory Arnold
Detective Cory Arnold with the Montgomery County Precinct 4 Constable’s
Office testified that he works for the High-Tech Crimes Division and is a member
of the Internet Crimes Against Children Task Force. According to Detective Arnold,
he assisted in executing a search warrant in 2020 at Appellant’s home, where Arnold
collected an “HP laptop” located in Appellant’s bedroom. Detective Arnold turned
the laptop over to Detective Samuel Morris, the “case agent” and a detective with
the Conroe Police Department.
Testimony of Detective Samuel Morris
Detective Samuel Morris with the Conroe Police Department testified that he
had been a police officer for nine years, had been assigned to the Internet Crimes
2
Against Children Task Force for over two and a half years, and was trained to
investigate internet crimes against children. According to Detective Morris, in April
of 2020 he was given a cyber tip, generated through the National Center for Missing
and Exploited Children, about images of sexually explicit material of children, and
the cyber tip ultimately resulted in Matthew Rice’s arrest. At trial, Detective Morris
identified the defendant as Matthew Rice.
Detective Morris testified that the cyber tip “came in through Snapchat
through a reportee[,]” regarding six images of what was believed to be child
pornography. Detective Morris testified that the six images sent were a
representative sample of the images that were being uploaded by a suspect.
According to Morris, when he was assigned the cyber tip, Wendy Perales, who was
with the Houston Police Department and also part of the Internet Crimes Against
Children Task Force, had done some investigative work and “had already sent
subpoenas out and she got returns to a 33 East Wandering Oak Drive in Spring,
Woodlands, Texas, back to a Robert Rice[,]” Appellant’s father.
Detective Morris testified as to what the six images originally sent to him in
the Snapchat cyber tip depicted: the first image “a one to three-year-old female” with
her vagina exposed and what appeared to be semen on her stomach and vagina; the
second image was of two juvenile females appearing to be six to eight years old and
two adult males were having the females perform oral sex on them; the third image
3
was a duplicate of the second image; the fourth image was of a nude juvenile female
who appeared to be four to six years old with her genitals and breasts exposed with
an adult male “over the top of her vagina with a white fluid which appeared to be
semen[;]” the fifth image was a juvenile female that appeared to be ten to twelve
years old and performing oral sex on an adult male; and the sixth image was of a
juvenile female who appeared to be six to eight years old and performing oral sex
on an adult male. According to Detective Morris, in the course of his employment
he reviews images of child pornography frequently and, based on his review of these
six images, he believed they depicted child pornography. Detective Morris requested
a search warrant for the 33 East Wandering Oak Drive address.
Detective Morris executed the search warrant on May 14, 2020, and he noted
that there was another cyber tip he had received in November 2019 associated with
the same address involving a report of images of child pornography using an
Instagram account, and he also learned that there was a prior search warrant executed
at the same address about fifteen years earlier involving the FBI in relation to
searching for child pornography. Morris testified that the search fifteen years ago
did not result in any arrests. According to Morris, at the time of the search warrant
in May 2020, Appellant lived at the address with his mother and father and Morris
went to the scene with forensic analysts triaging some of the electronic devices found
at the scene. While on the scene, Detective Morris learned that there were images of
4
child pornography on Appellant’s devices, but no images were found on Appellant’s
mother’s or father’s devices.
Detective Morris testified that he interviewed Appellant, and Appellant
originally denied having social media accounts except for an Instagram where he
had a business, “Dulce Deals.” Morris agreed that after “some of the triage [was]
completed,” he interviewed Appellant again. According to Morris, Appellant
ultimately told him that Appellant had received images of juvenile females that
Appellant believed were “jailbait or fresh faced or suspicious[]” and that “as a
precaution he was screenshotting these images for his own evidence in case
something like the FBI incident ever occurred again, he would have something to
prove that it was being sent to him.” Detective Morris testified he asked Appellant
if he had ever reported any of that information to law enforcement, and Appellant
stated he had not because he did not know if it was his responsibility to do so or not.
After interviewing Appellant and observing the images that were discovered on
Appellant’s computer, he arrested Appellant at the scene for possession of child
pornography. According to Detective Morris, he submitted multiple devices to
Investigator Jeffery Chappell for analysis.
In addition to the six images uploaded to Snapchat, there were additional
images found on Appellant’s devices. According to Detective Morris, he observed a
video on Appellant’s cell phone recording a video from his laptop that depicted a
5
juvenile female masturbating. Detective Morris testified that after a follow-up
investigation he was able to identify the victim in the video because Appellant’s
video showed an Instagram account name and the pictures the juvenile posted listed
her location. Detective Morris testified his investigation revealed the juvenile female
was twelve years old at the time of trial.
On cross-examination, Detective Morris agreed that Appellant was
cooperative while Morris interviewed him, and that Appellant admitted to having
the child pornography on his phone.
Testimony of Investigator Jeffery Chappell
Jeffery Chappell, a digital forensics analyst and investigator with the District
Attorney’s Office, testified he was assigned to the digital forensic unit as part of the
Internet Crimes Against Children Task Force, has been in law enforcement for over
thirty-two years, and has investigated internet crimes against children for over
eighteen years. Investigator Chappell has had extensive experience and training
performing forensics and investigations into different electronic digital devices and
investigating internet or computer crimes. Investigator Chappell has qualified as an
expert in his field in both state and federal court and has examined several thousand
devices during his career. When analyzing a computer, he creates a forensic image
of the hard drive contained in that device (which is basically a copy of all the data
on the device) which is verified, and then he performs an analysis on the forensic
6
image itself and not the actual physical device. For cell phones, he performs an
extraction of the data which is not protected but it is verified and then software is
used to put the data into a readable format.
Investigator Chappell analyzed sixteen to eighteen devices related to this case.
According to Investigator Chappell, the HP laptop had two hard drives on it with
two separate operating systems and one of the hard drives had a Windows operating
system with a program called BlueStacks, which emulates an Android smart phone
on the computer. Investigator Chappell testified that BlueStacks is “a virtual
operating system within another operating system[]” that runs an Android operating
system on a computer so that the desktop looks like an Android phone, and the user
can use apps that may only be available on a phone. Chappell testified that the
program is a “proprietary-type system[]” that is highly customizable because it is
made for developers, and that a person with training and experience can change the
settings. According to Chappell, BlueStacks’s makeup of the file systems and how
it works contains very different databases and proprietary code that law enforcement
software does not read very well so he has to “basically go in and carve out known
files based on the file signature[],” which makes his job harder and he cannot retrieve
search and browsing history like he could on a normal computer. Investigator
Chappell found evidence on Appellant’s devices of BitTorrent, a file sharing
program that can be used for legitimate business such as file sharing music and
7
movies, and a BitTorrent user can search for a particular type of video or pictures
through all other users using BitTorrent. Chappell testified that these systems are
used for illicit purposes and almost every single case of child pornography and
online abuse that he has investigated the last few years used programs like
BitTorrent. Investigator Chappell also found evidence that external storage devices
like USB drives had been used in Appellant’s HP laptop, and he located a file name
in a path that looked similar to child pornography files Chappell had seen in the past
and the drive letter assigned was “F” which matched the drive letter assigned to one
of the USB drives that had been attached to Appellant’s laptop but that USB drive
was not recovered. Based on his analysis of Appellant’s HP laptop and associated
hard drives, cell phones, and electronics, Investigator Chappell believed Appellant
to be “an above average user for computers and more knowledgeable than your
average user.”
Investigator Chappell found images or videos depicting child sexual abuse on
Appellant’s laptop and smart phone, and depicting prepubescent children being
vaginally penetrated, anally penetrated, and made to perform oral sex on adults.
Investigator Chappell located approximately thirty images of child pornography on
Appellant’s HP laptop, and he was able to carve those images out of the BlueStacks
operating system. Investigator Chappell also observed a pornographic video on
Appellant’s smart phone that Chappell subsequently learned was “an identified
8
juvenile victim.” Chappell testified that while viewing the video he could see
Appellant’s reflection in the video and that Appellant was apparently using his phone
to record the video as the video played on Appellant’s HP laptop. Investigator
Chappell identified the USB drive marked as State’s Exhibit No. 1 as the drive
including five images and the video where he could see Appellant’s reflection as a
representative sample of the images that he located on Appellant’s laptop and
Samsung smart phone, and State’s Exhibit No. 1 also included a report with metadata
on the video. According to Chappell, the five images are a fair representation of the
nature, content, and age of the victims he saw in the other twenty-five images not
included on State’s Exhibit No. 1. Investigator Chappell testified that the report of
the metadata on the video showed that the video was created on Appellant’s phone
on February 3, 2020 at 7:57 p.m. Chappell testified that it is common in his
investigations to see users who access, view, collect, and share child pornography to
save and duplicate those images and videos for later use or for later sharing, and that
often times users do this on multiple or hidden devices to collect the items or to hide
the material from other people in the household or from law enforcement.
Investigator Chappell has attended seminars where known sexual abuse
victims have bravely spoken about their experiences, and “the overall take away
from it is that every single time these images are viewed or part of a court case or
anything else the victims are revictimized again. It just never goes away.” According
9
to Chappell, the images are impossible to get back once they have been disseminated,
and they can spread very quickly because when an image is downloaded on a smart
phone and viewed, three other images of that same image are created.
Standard of Review and Applicable Law
A hearing on a motion for new trial has two purposes: (1) to determine
whether the case should be retried, and (2) to complete the record for presenting
issues on appeal. Smith v. State, 286 S.W.3d 333, 338 (Tex. Crim. App. 2009). A
trial court is not required to hold a hearing when the matters raised in the motion are
subject to being determined from the record. Id. A trial court abuses its discretion in
failing to hold a hearing if the motion and accompanying affidavits raise matters not
determinable from the record and establish reasonable grounds showing that the
defendant could possibly be entitled to relief. Id. at 338-39. As a prerequisite to a
hearing on a motion for new trial based on matters not already in the record, the
motion must be supported by affidavit testimony that specifically sets out the factual
basis for the claim. Id. at 339. “[A]ffidavits that are conclusory in nature and
unsupported by facts do not provide the requisite notice of the basis for the relief
claimed; thus, no hearing is required.” Id. The motion and affidavits need not present
a prima facie case for a new trial, but the movant “must at least allege facts that show
reasonable grounds to believe that he could prevail under both prongs of the test for
10
ineffective assistance of counsel under Strickland.” Id. at 338; see also Wallace v.
State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003).
We review a trial court’s denial of a hearing on a motion for new trial under
an abuse of discretion standard. Smith, 286 S.W.3d at 339; Wallace, 106 S.W.3d at
108. If a defendant raises grounds that are both undeterminable from the record and
reasonably could entitle the defendant to relief, the trial court has no discretion to
withhold a hearing and abuses its discretion in failing to hold a hearing. Smith, 286
S.W.3d at 340.
Both the United States Constitution and Texas Constitution guarantee an
accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I,
§ 10; Tex. Code Crim. Proc. Ann. art. 1.051. This right necessarily includes the right
to reasonable effective assistance of counsel. Strickland v. Washington, 466 U.S.
668, 686 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997).
With respect to an ineffective assistance claim, our review of counsel’s performance
is highly deferential, and we make a strong presumption that counsel’s performance
fell within the wide range of reasonably professional assistance. Strickland, 446 U.S.
at 689; Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011) (citing
Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006)). To overcome that
presumption, Appellant must satisfy the two prongs established by Strickland v.
Washington by demonstrating that (1) counsel’s representation fell below an
11
objective standard of reasonableness, and (2) the deficient performance prejudiced
the defense. Lopez, 343 S.W.3d at 142 (citing Strickland, 466 U.S. at 687); see also
Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex. Crim. App. 1986) (adopting and
applying the Strickland test). “Unless [an] appellant can prove both prongs, an
appellate court must not find counsel’s representation to be ineffective.” Lopez, 343
S.W.3d at 142 (citing Strickland, 466 U.S. at 687). The record must contain evidence
of counsel’s reasoning, or lack thereof, to rebut that presumption. Ortiz v. State, 93
S.W.3d 79, 88-89 (Tex. Crim. App. 2002) (“If counsel’s reasons for his conduct do
not appear in the record and there is at least the possibility that the conduct could
have been legitimate trial strategy, we will defer to counsel’s decisions and deny
relief on an ineffective assistance claim on direct appeal.”). “When such direct
evidence is not available, we will assume that counsel had a strategy if any
reasonably sound strategic motivation can be imagined.” Lopez, 343 S.W.3d at 143
(citing Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).
“An appellate court looks to the totality of the representation and the particular
circumstances of each case in evaluating the effectiveness of counsel.” Thompson v.
State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing Ex parte Felton, 815
S.W.2d 733, 735 (Tex. Crim. App. 1991)). Allegations of ineffectiveness must be
shown in the record, and the record must affirmatively establish the alleged
ineffectiveness. See id. Ordinarily, on direct appeal, the record will not have been
12
sufficiently developed during the trial regarding trial counsel’s alleged errors to
demonstrate in the appeal that the trial counsel provided ineffective assistance under
the Strickland standards. Menefield v. State, 363 S.W.3d 591, 592-93 (Tex. Crim.
App. 2012); Lopez, 343 S.W.3d at 143.
“To show prejudice, ‘the defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.’” Jackson v. State, 877 S.W.2d 768, 771
(Tex. Crim. App. 1994) (quoting Strickland, 466 U.S. at 694).
Analysis
Appellant argues on appeal that the trial court abused its discretion in failing
to hold an evidentiary hearing on Appellant’s motion for new trial because the
pleadings, affidavit, and report were sufficient to put the trial court on notice that a
hearing was required to fully develop the issue of ineffective assistance. Appellant
filed a motion for new trial asserting ineffective assistance of counsel. In the motion
for new trial, Appellant argued that his counsel failed to introduce mitigating
evidence by (1) failing to call Appellant’s father as a witness to testify to “facts that
undermined the State’s argument that Defendant ‘traded’ in child pornography and
used his computer skills to deceive or hide from law enforcement[;]” (2) failing to
introduce the report of Dr. J. Scott Hickey or call him as a witness regarding his
13
opinions in his report that Appellant “could be safely and successfully monitored
and supervised in the community if this supervision included the elements of the
well-established Texas Containment Model[;]” and (3) failing to retain a computer
forensic expert to review the evidence in the case for the purpose of developing
mitigating evidence.1 In support of his motion, Appellant attached an affidavit of
Appellant’s father, Robert Rice, and a copy of a Psychological Evaluation report of
Appellant by Dr. J. Scott Hickey. According to Appellant, this Court should abate
the appeals and order the trial court to hold an evidentiary hearing on Appellant’s
motion for new trial.
First, we address the allegation of ineffective assistance of counsel for
counsel’s failure to introduce the alleged mitigating evidence of Robert Rice’s
testimony and Dr. Hickey’s report or expert testimony. The affidavit of Robert Rice
attached to Appellant’s motion for new trial states that he would have testified that
Appellant’s legitimate business “Dulce Deals” involved Appellant buying used
electronics and drives “as is” that he would later resell, that the computer equipment
1
Appellant also asserts in his motion for new trial that the sentence imposed
was contrary to the law and the evidence. Appellant failed to provide any support
for that contention in his motion and we note that the punishment assessed was
within the applicable range of punishment. See Tex. Penal Code §§ 12.34 (range of
punishment for a third-degree felony is two to ten years’ imprisonment), 43.26(d)
(offense of possession or promotion of child pornography is a third-degree felony
unless that person has been previously convicted of the offense). On our reading of
his appellate brief, he has also abandoned this argument on appeal.
14
found during the search warrant was part of his legitimate electronic resale business,
that Appellant’s computer setup and file-sharing software was generally used for the
benign purpose of running his business and furthering his logistics career, that
Appellant did not use the “discrete” operating systems described by the State to
obfuscate, hide, or confuse law enforcement, that the search warrant executed fifteen
years prior had nothing to do with Appellant, that the State had mischaracterized
Appellant as running a sophisticated operation in the “trade” of child pornography,
and that Appellant was not “trading” in child pornography and had not optimized his
computer systems to deceive law enforcement. The trial court heard Investigator
Chappell testify that he found evidence on Appellant’s devices of BitTorrent, a file
sharing program that can be used for legitimate business such as file sharing music
and movies, but that these systems are now commonly used for illicit purposes and
that almost every single case child pornography and online abuse case he has
investigated the last few years use programs like BitTorrent. Appellant also admitted
he possessed child pornography. Evidence that Appellant had electronic equipment
commonly and generally used for legitimate business does not mean that he could
not have also used the equipment in the promotion of child pornography. And the
video evidence obtained from the Appellant’s devices also showed Appellant’s
reflection as he copied child pornography from one device to the other.
15
Next, we examine Appellant’s complaint with respect to Dr. Hickey’s report
and suggestion that community supervision would be appropriate punishment. Here,
the defendant chose to have the trial court decide his punishment and on the record
before the trial court we find the trial court could have reasonably concluded that the
report did not entitle Appellant to community supervision. See Wallace, 106 S.W.3d
at 108.
During the punishment phase of the trial, the trial court heard and rejected the
request made by the defense seeking community supervision and the trial court
exercised its discretion and assessed the maximum punishment for each offense and
cumulated the sentences. On this record, the trial court could have reasonably
concluded (a) that the strength of the prosecution’s case was such that the new
evidence suggested by the affidavit and report, even if true, was not compelling
enough to probably bring about a different result in a new trial and, therefore, (b)
that Appellant’s motion and accompanying affidavit and report did not show that he
could be entitled to relief. See id.Finally, Appellant also alleged ineffective assistance of counsel for counsel’s
failure to retain a computer forensic expert to review the evidence in the case for the
purpose of developing mitigating evidence as to how Appellant “came to possess
the[] images[.]” According to Appellant’s motion for new trial, “[r]etaining a
computer forensic expert and calling this expert as a defense witness would have led
16
to the introduction of relevant, material mitigation evidence that would have a
reasonable likelihood of reducing the sentence Defendant received.” Appellant’s
motion and attached exhibits fail to explain who the defense should have called to
testify or what testimony the expert would have provided that would have changed
the result. See Smith, 286 S.W.3d at 339. Appellant’s allegations are conclusory and
do not specifically set out a factual basis from which the trial court could conclude
that his counsel failed to act as a reasonably competent attorney and that, but for his
counsel’s conduct, the result of the proceeding would have been
different. See Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim. App. 2009); Smith,
286 S.W.3d at 341. Because Appellant failed to allege facts from which the trial
court reasonably could conclude that his counsel was deficient and that the alleged
deficiency prejudiced his defense, we conclude the trial court did not abuse its
discretion by failing to hold a hearing on Appellant’s motion for new
trial. See Hobbs, 298 S.W.3d at 200; Smith, 286 S.W.3d at 340-41.
Accordingly, we overrule Appellant’s issue and affirm the trial court’s
judgments.
17
AFFIRMED.
_________________________
LEANNE JOHNSON
Justice
Submitted on April 12, 2023
Opinion Delivered May 17, 2023
Do Not Publish
Before Horton, Johnson and Wright, JJ.
18