Knepp v. State

Full title: CHAD ANTHONY KNEPP, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Mar 13, 2009

No. 05-08-00002-CR (Tex. App. Mar. 13, 2009)

Opinion

No. 05-08-00002-CR.

Opinion Filed March 13, 2009. DO NOT PUBLISH. Tex. R. App. P. 47

On Appeal from the 416th Judicial District Court, Collin County, Texas, Trial Court Cause No. 416-80371-06.

Before Justices MOSELEY, RICHTER, and FRANCIS.

OPINION

MARTIN RICHTER, Justice.

Appellant Chad Knepp was convicted by a Collin County jury of four counts of possession of child pornography. The trial court sentenced appellant to three years' imprisonment on the first count and ten years' imprisonment probated for ten years on each of the remaining counts, to be served concurrently. In two issues, appellant asserts the trial court erred in denying his motion to suppress and the State failed to prove that venue was proper in Collin County. Finding no reversible error, we affirm the trial court's judgment.

Background

Appellant was employed as a manager by the "Geek Squad," a computer repair store in Collin County, Texas. When the store opened, all employees attended a training session. During the session, employees were instructed not to ever leave their computers unattended. To promote this policy, they were instructed that if they observed a coworker's computer unsecured, they should access it and change a setting such as the wallpaper to alert the coworker that it had been left unsecured. The computer workstations were located in an open common area. Appellant brought his personal laptop to work and used it for work. On August 22, 2005, appellant left the store and left his laptop unsecured. One of his employees, Kenneth Tippie, noticed the laptop was unsecured. Tippie accessed appellant's computer and went into the "my documents" folder to find a funny picture to set as the new background. When he opened the folder, he found a large number of "thumbnails"-small versions of a picture that allow a user to see the file without opening it-that contained child pornography. Tippie exclaimed that he thought he had found "child porn" Another of appellant's employees, Matthew Sneeden, was also working in the common area and heard Tippie's exclamation. Sneeden joined Tippie at appellant's laptop and saw the thumbnail pictures. The pictures showed images of children under eighteen engaging in various sexual acts. Tippie and Sneeden reported their discovery to appellant's supervisor, and the supervisor contacted the police. Tippie and Sneeden were interviewed and the police obtained a search warrant. The warrant was executed at appellant's apartment in Denton County, where several computers and storage devices were seized. Appellant was interviewed by the police. In the interview, appellant admitted he had knowingly downloaded pornography files where the participants looked younger than eighteen years old. Appellant also admitted he had a specific file for storing such images. A forensic examiner subsequently retrieved several images of child pornography from the files on the computers that were seized. Appellant was charged by indictment with four counts of possession of child pornography and entered a plea of not guilty before a jury. Prior to trial, appellant filed a motion to suppress and asserted the seized evidence should be excluded because the search violated appellant's constitutional rights and article 38.23 of the Texas Code of Criminal Procedure. On the day before trial, the court conducted a hearing on the motion to suppress but did not make a ruling. Instead, the motion was carried with the trial. Tippie testified at trial. Tippie testified about the corporate policy concerning unattended computers and his observation of appellant's unsecured laptop. Tippie described the thumbnail photographs he discovered when he accessed the laptop and stated there were three or four pages of these images. The files were tagged as "child" and "preteen" and showed images of adult males engaged in sexual acts with preteen boys. When asked if he could identify the images at the time of trial, Tippie testified that he would not be able to identify a particular image as one he saw at the time he accessed the computer. All of this testimony was elicited without objection. Sneeden also testified at trial. Sneeden testified that he was five or six feet away when Tippie accessed appellant's laptop. Tippie commented that the computer was unlocked, so Sneeden thought Tippie was just going to change the wallpaper on the computer. When Tippie exclaimed that he thought he had discovered child porn, Sneeden went over to the computer. Sneeden observed the computer displaying the thumbnail images of children under eighteen "engaging in various sexual acts." Sneeden testified that he believed the youngest children were approximately eight or nine years old. Officer Nelson Walter from the Frisco police department also testified. Officer Walter testified about the execution of the warrant, the forensic examination of the evidence, and the discovery of "pictures that depicted child pornography" on appellant's computers. Officer John Gardner, a police officer assigned to the FBI Computer Forensic laboratory, testified about the forensic examination of the evidence seized from appellant's home and the discovery of forty-five to fifty images of child pornography on one of the computers and approximately forty-five images on another. One of the computers on which the images were discovered was a laptop. The photographs and the discs with the data retrieved from the computers were admitted into evidence over appellant's objection. At the conclusion of the State's case, appellant moved for a directed verdict and argued the State failed to prove venue was proper in Collin County. The trial court denied the motion. The jury convicted appellant on all four counts of possession of child pornography. The trial court sentenced appellant to three years' imprisonment on the first count and ten years' imprisonment probated for ten years on each of the remaining counts, to be served concurrently. This appeal followed.

Discussion

The Motion to Suppress

Appellant maintains the trial court erred in its denial of the motion to suppress because all of the evidence presented at trial resulted from the illegal actions of the witnesses Tippie and Sneeden. Specifically, appellant argues the evidence was illegally obtained in violation of the penal code provision prohibiting knowingly accessing a computer without the effective consent of the owner. See Tex. Penal Code Ann. § 33.02(a) (Vernon 2003). Appellant maintains that because of the statutory violation the evidence should have been excluded under the Texas exclusionary rule. See Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005). We review a trial court's ruling on a motion to suppress under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000). In reviewing the trial court's decision, we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990). At a suppression hearing, the trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 1990). We give almost total deference to the trial court's rulings on (1) questions of historical fact and (2) application of law to fact questions that turn on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App. 2002). But we review de novo a trial court's rulings on mixed questions of law and fact if they do not turn on the credibility and demeanor of the witnesses. Id. In reviewing a ruling on a motion to suppress, this court reviews the record and all reasonable inferences therefrom in the light most favorable to the ruling, and we sustain the ruling if it is reasonably supported by the record and correct under any theory of law applicable to the case. Ramos v. State, 245 S.W.3d 410, 417-18 (Tex.Crim.App. 2008). Article 38.23 prohibits the admission of evidence obtained by an officer or other person in violation of either the state or federal constitution or any laws. See Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005). The statute has been construed to preclude the unlawful or unconstitutional actions of all persons, both governmental and private. State v. Johnson, 939 S.W.2d 586, 587 (Tex.Crim.App. 1996). The alleged illegal action in this case is said to arise under article 33.02. A person commits an offense under Article 33.02 if the person knowingly accesses a computer, computer network, or computer system without the effective consent of the owner. See Tex. Penal Code Ann. § 33.02(a) (Vernon 2003). "Effective consent" is defined as follows:

"Effective consent" includes consent by a person legally authorized to act for the owner.

Consent is not effective if:

(A) induced by deception . . . or induced by coercion;

(B) given by a person the actor knows is not legally authorized to act for the owner;

(C) given by a person who by reason of youth, mental disease or defect, or intoxication is known by the actor to be unable to make reasonable property dispositions;

(D) given solely to detect the commission of an offense; or

(E) used for a purpose other than for which the consent was given.

Tex. Penal Code Ann. § 33.01(12) (Vernon 2003). At the hearing on the motion to suppress, Tippie explained that he, Sneeden, and appellant had all undergone the same computer security training course. They were instructed that if they observed a coworker's computer unsecured, they should access it and change a setting to alert the coworker that the computer had been left unsecured. Appellant also testified at the hearing, and acknowledged that he was aware of this policy. Appellant brought his personal computer to work and used it for work. Appellant was aware of the corporate policy concerning unsecured computers. By leaving his computer open and unsecured, appellant knew he was leaving it for his coworkers to access. Under these circumstances, the trial court could reasonably conclude that Tippie had appellant's effective consent to access the computer. Because appellant failed to prove a violation of section 33.02, the trial court did not err in its denial of the motion to suppress. Appellant's first issue is overruled.

Venue

In his second issue, appellant asserts the trial court erred in its denial of an instructed verdict because the State failed to prove venue was proper in Collin County. Specifically, appellant argues that the computers were seized from appellant's home in Denton, but none of the State's witnesses identified any of the computers as the one on which they viewed pornographic images in Collin County. To underscore his argument, appellant also points to the fact that Tippie testified he would not be able to identify any particular image as one he had seen on the day he accessed appellant's computer. We construe a challenge to a trial court's denial of a motion for instructed verdict as a challenge to the legal sufficiency of the evidence. See Canales v. State, 98 S.W.3d 690, 693 (Tex.Crim.App. 2003). In a legal-sufficiency review, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt (or, for venue, whether any rational trier of fact could have found, by a preponderance of the evidence, that the offense occurred in the county alleged). See Duvall v. State, 189 S.W.3d 828, 830-831 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd); see also Murphy v. State, 112 S.W.3d 592, 604-605 (Tex.Crim.App. 2003) (setting out State's burden to prove venue and reviewing matter for sufficiency of evidence). We must not substitute our own judgment for that of the fact finder, which is entitled to believe all, some, or none of any witness's testimony. See Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App. 1996); Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). In the absence of a specific venue statute, venue is proper in any county where the offense occurred. See Tex. Code Crim. Proc. Ann. art. 13.18 (Vernon 2005). The State must show by a preponderance of the evidence that the county where the prosecution is conducted has venue. See Tex. Code Crim. Proc. Ann. art. 13.17 (Vernon 2005); Murphy v. State, 112 S.W.3d 592, 604 (Tex.Crim.App. 2003). Proof of venue may be demonstrated by either direct or circumstantial evidence. Black v. State, 645 S.W.2d 789, 790 (Tex.Crim.App. 1983). Evidence is sufficient to prove venue if from the evidence the jury may reasonably conclude that the offense was committed in the county alleged. Rippee v. State, 384 S.W.2d 717, 718 (Tex.Crim.App. 1964). When venue is made an issue in the trial court, failure to prove venue in the county of prosecution constitutes reversible error. Black, 645 S.W.2d at 791; Knabe v. State, 836 S.W.2d 837, 839 (Tex.App.-Fort Worth 1992, pet. ref'd). Tippie and Sneedon both testified they observed child pornography on appellant's laptop computer at the Geek Squad store in Frisco, Collin County, Texas. Officer Gardner testified that he observed images of child pornography on one of the laptops seized from appellant's home. This evidence was sufficient for the jury to reasonably conclude that appellant possessed child pornography in Collin County. The fact that venue may also have been proper in Denton County is immaterial. Appellant's second issue is overruled. Having resolved all of appellant's issue against him, we affirm the judgment of the trial court.