Larry Duwayne West v. State

Opinion issued November 4, 2010 In The Court of Appeals For The First District of Texas ———————————— NO. 01-10-00052-CR ——————————— larry duwayne west, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 179th District Court Harris County, Texas Trial Court Case No. 1041240 MEMORANDUM OPINION After a non-jury trial, the trial court found appellant, Larry Duwayne West, guilty of the offense of possession of child pornography[1] and assessed his punishment confinement for ten years, suspended the sentence, and placed appellant on community supervision for ten years. In his sole point of error, appellant contends that, as a result of a variance between the indictment and the evidence introduced at trial, the evidence is legally and factually insufficient to support his conviction. We affirm. Factual Background Oziel De Luna, who works in the information technology department for Non-Ferrous Extrusion, appellant’s former employer, testified that the owner of the company, Don Feil, had asked him to examine a company computer on which an employee had discovered child pornography. De Luna, Feil, and the employee who had found the child pornography met together and “pulled up two or three” pictures of “kids” between the ages of “six and ten” who were “naked without clothes” and were “posing.” The employee to whom the computer belonged “was upset” and “afraid” of being blamed for the “pictures.” De Luna explained that the computer in question had the largest hard drive at the company because it was used for the company’s drawings and several people had access to the computer, including salespeople and appellant. Appellant was instructed to delete the files, which De Luna estimated took approximately ten to twenty minutes. Approximately two to three days later, appellant resigned from the company. De Luna subsequently removed the hard drive from the computer in question and two hard drives from appellant’s computer, and he placed the hard drives in storage. Don Feil, the company owner and a long-time “good friend” of appellant, testified that an employee had come to him and told him that he had found child pornography on his computer, which he did not download. Feil contacted De Luna and a sales manager, and the group looked at the computer and “some of the child porn” that was on the computer. After viewing the child pornography, Feil told the group to shut down the computer. Feil explained that De Luna, appellant, and the employee to whom the computer belonged were the three persons in the company who had access to the computer. After the employee and De Luna denied responsibility for the pornography, Feil confronted appellant and asked, “[W]hat are you doing putting child porn on our computer?” After Feil confronted appellant, appellant appeared “shocked,” “broke down a little bit,” and became nervous. Appellant then told Feil it “was a bad judgment call,” “he shouldn’t have done it,” and he was “sorry.” Feil then asked appellant for his resignation, and appellant began to cry, told Feil he would not do it anymore, and claimed that he had “an addictive personality.” Feil still asked appellant to leave the company. During their conversation, appellant had admitted to Feil that he had downloaded “50 CD’s and put them on the computer.” Pursuant to Feil’s request, appellant signed a resignation letter and a “stand alone document,” in which he stated that no one at the company “knew that [he] had put pornography” on the computer, he had since cleaned the computers of any pornography, and he took “full responsibility” for his actions. Appellant refused to sign an admission that the pornography was child pornography. On cross-examination, Feil conceded that he had fired another employee of the company approximately one year earlier and that this employee had placed pornography on a company computer. However, Feil contended that this employee had been fired for failure to do his job and not for downloading the pornography. Anthony Osso, an attorney, testified that Feil contacted him for guidance after learning about the existence of child pornography on one of the company’s computers. Osso instructed Feil not to destroy any evidence, and the men discussed reporting the incident to law enforcement authorities. Osso subsequently contacted a Houston police officer and set up a meeting between the officer and Feil. Houston Police Department (“HPD”) Officer S. Valenta testified that she met with Feil and Osso. Feil informed her that he had discovered child pornography on a company computer, and Feil provided her with the hard drives on which the pornography was found, plus two additional company hard drives. A fellow HPD officer conducted a forensic investigation of the hard drive from the computer on which the pornography had been found, and this investigation uncovered thousands of images of child pornography on the computer. On cross-examination, Valenta agreed that she had not discussed with Feil the details of how the computer network was set up at the company office and that she did not know how many computers were at the company. HPD Officer J.T. Smith of the HPD Digital Forensics Lab testified that his examination of the hard drive uncovered approximately 115,000 images of child pornography. He noted that the structure of the computer files indicated that someone had gone through the files and named them to place them in order. When asked if it was possible for “pictures [t]o download themselves from the Internet into files like this,” Smith answered that he did not think it was possible to do so “in this kind of organized way.” Smith also noted that the files were “saved” to the computer and, in his experience, a “Trojan” or “virus” could not “continually download child pornography” into a system like the one at issue. On cross-examination, Officer Smith agreed that he could not tell who put the child pornography on the computer and he could not tell if the pictures were downloaded from the Internet or from a CD. Smith also agreed that there were six user accounts on the computer in question, and he could not testify as to whether appellant had actually opened and viewed any of the files containing child pornography. Sufficiency of Evidence Arising From Alleged Variance In his sole point of error, appellant argues that the evidence is legally and factually insufficient to support his conviction because, contrary to the terms of the indictment, “no ‘film’ images were admitted into evidence during trial.” (Emphasis added). Appellant asserts that the State “never requested that the actual indictment be altered by the [trial] court to reflect the amended language and the indictment was not amended by the [trial] court.” Appellant notes that the State’s witness, J.T. Smith, “testified that film images and digital images are not the same.”[2] A person commits an offense of possession of child pornography if “(1) the person 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 (2) the person knows that the material depicts the child as described by Subdivision (1).” Tex. Penal Code Ann. § 43.26(a) (Vernon 2003). “‘Visual material’ means: (A) any film, photograph, videotape, negative, or slide or any photographic reproduction that contains or incorporates in any manner any film, photograph, videotape, negative, or slide; or (B) any disk, diskette, or other physical medium that allows an image to be displayed on a computer or other video screen and any image transmitted to a computer or other video screen by telephone line, cable, satellite transmission, or other method.” Id. § 43.26(b)(3). A “variance” occurs when there is a discrepancy between the allegations made in a charging instrument and the proof presented at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001). When faced with a challenge to the legal sufficiency of the evidence based upon a variance between the indictment and the proof, only a “material” variance will render the evidence legally insufficient. Id. at 257. A variance between the wording of an indictment and the evidence presented at trial is fatal only if it is material and prejudices the defendant’s substantial rights. Id. This materiality inquiry requires a determination of whether the variance deprived the defendant of notice of the charges or whether the variance subjects the defendant to the risk of later being prosecuted for the same offense. Fuller v. State, 73 S.W.3d 250, 253 (Tex. Crim. App. 2002). Here, a Harris County grand jury issued a true bill of indictment, accusing appellant of committing the offense of possession of child pornography in that he did, [U]unlawfully, intentionally, and knowingly possess visual material, namely, IMAGE, that visually depicts a child younger than eighteen years of age, at the time the image was made, who is engaging in sexual conduct, to wit: lewd exhibition of genitals, and [he] knew that the material containing the film image depicted the child engaging in the conduct of lewd exhibition of the genitals. The indictment[3] alleged that appellant possessed “visual material,” namely an “IMAGE,” that visually depicted a child engaging in sexual conduct. Appellant does not complain about this portion of the indictment, as section 43.26 expressly refers to the possession of “visual material.” Although the term “image” does not appear in the statute as part of the definition of visual material, appellant does not complain about the use of this term in the original indictment or suggest that use of the term “image” is somehow improper. Any such objection to the use of the term “image” would lack merit because, at trial, the witnesses and the parties used the words “images” or “pictures” to refer to the visual material, i.e., the child pornography, found on the computer. Rather, appellant bases his argument on the second clause of the original indictment, in which it was alleged that appellant knew that the visual material “containing the film image” depicted child pornography. (Emphasis added.) Appellant argues that the State’s use of the adjective “film” when describing the word “image” in the second clause of the original indictment renders the evidence presented against him legally or factually insufficient to support his conviction. Appellant’s argument regarding the specific terminology used in the indictment is based upon the following exchange with Officer J.T. Smith: [Appellant’s counsel]: As far as disk, I guess, basically, film as far as a picture image or whatever, is there a distinction between film and distinction between disks, digital image[s]? [Smith]: It is actually a set of ones and zeroes where it depicts, as it reads by the operating system, it’s a read file. [Appellant’s counsel]: And what is a film? [Smith]: Film image, basically, depends on what you’re talking about. Like you hear me talk about a film, it’s like a Polaroid. It’s not in the ones that you, basically, put on a film. Is that what you’re talking about? [Appellant’s counsel]: Right, the bottom line is they’re not the same thing? [Smith]: No they are not. In his closing arguments, appellant’s trial counsel argued that a film image is a “negative type of image or could be a Polaroid type image or something like that” and that “there are no film images in this case.” In response, the State argued that it only had the burden to prove that appellant knowingly possessed “visual material,” as that is what is prohibited by the Texas Penal Code. Even if we were to agree that pictures or images discovered on the subject computer may fall outside the scope of the term “film image[s],” there is no indication in the record that appellant did not know what visual material he was accused of possessing, there is no suggestion that he was surprised by the proof at trial, and there is no argument that any such variance could possibly subject him to another prosecution for the same offense. See Gollihar, 46 S.W.3d at 257; Fuller, 73 S.W.3d at 254. The record before us establishes that the original indictment “informed appellant of the charge against him sufficiently to allow him to prepare an adequate defense at trial.” Flenteroy v. State, 187 S.W.3d 406, 411 (Tex. Crim. App. 2005) (citing Gollihar, 46 S.W.3d at 258). Accordingly, we hold that the use of term “film image,” as used in the original indictment, does not render the evidence insufficient to support appellant’s conviction. We overrule appellant’s sole point of error. Conclusion We affirm the judgment of the trial court. Terry Jennings Justice Panel consists of Justices Jennings, Alcala, and Higley. Do not publish. TEX. R. APP. P. 47.2(b). [1] See Tex. Penal Code Ann. § 43.26 (Vernon 2003). [2] Appellant does challenge the remaining elements of the offense of possession of child pornography. [3] The State filed a motion for leave to amend the indictment, seeking to “[c]hange the visual material alleged from ‘image’ to ‘a digital image’ and strike the word ‘film.’” The trial court signed an order granting the State’s motion for leave. Nevertheless, at arraignment, the State recited the language used in the original indictment that included a reference to “film” image, and appellant pleaded not guilty. Additionally, the record before us does not contain an amended indictment.