Leita v. State

JASON TERRENCE LEITA, Appellant, v. THE STATE OF TEXAS, Appellee.

NUMBER 13-14-00567-CR

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

August 25, 2016

On appeal from the 377th District Court of Victoria County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Longoria

Memorandum Opinion by Justice Rodriguez

A jury found appellant Jason Terrence Leita guilty of ten counts of promotion of child pornography, second-degree felony offenses. See TEX. PENAL CODE ANN. § 43.26(e) & (g) (West, Westlaw through 2015 R.S.). The trial court sentenced Leita to twenty years' confinement in the Institutional Division of the Texas Department of Criminal Justice, with the sentences to be served concurrently, and assessed a $10,000 fine for each count. The jury also found Leita guilty of four counts of possession of child pornography, and the trial court sentenced Leita to ten years on each count, with the sentences to run after the sentences on the promotion-of-child-pornography counts were served.¹ See id. § 43.26(a) & (d) (West, Westlaw through 2015 R.S.). By five issues, Leita contends: (1) the evidence was insufficient to support a finding that he knew he was sharing the files on his computer; (2) he suffered egregious harm because the jury charge failed to provide an instruction on voluntary conduct; (3) his convictions violated the constitutional protection against double jeopardy because they all arose from the same act; (4) the trial court abused its discretion when it admitted extraneous pornographic images over Leita's rule 403 and 404 objections; and (5) counsel provided ineffective assistance. We affirm.

I. SUFFICIENCY OF THE EVIDENCE

By his first issue, Leita contends that the State failed to offer sufficient proof of the knowledge element of section 43.26(e). See id. § 43.26(e). He complains that the evidence was insufficient to support a finding that he knew he was sharing the files on his computer. Leita argues that the State's only relevant evidence that he promoted child pornography was proof that he downloaded child pornography using Shareaza, a peer-to-peer sharing software with a default protocol that was set to share files. Leita asserts that his passive use of Shareaza to download child pornography would constitutepromotion of child pornography only if coupled with his knowledge that the files were being shared. Leita claims that the State did not establish this knowledge beyond a reasonable doubt.

In response, the State points to evidence that Leita was operating a file-sharing program that was configured to share files, evidence regarding Leita's technology skills, his possession of certain passwords, and the amount of images and videos found on equipment at his residence. The State contends that this evidence, taken together, was enough "for a rational jury to be convinced beyond a reasonable doubt of [Leita's] guilt." We agree with the State.

A. Standard of Review and Applicable Law

When reviewing the sufficiency of the evidence, a court will examine the evidence in the light most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2011); see also Gillette v. State, 444 S.W.3d 713, 720 (Tex. App.—Corpus Christi 2014, no pet.). The critical inquiry is whether the evidence would support a rational fact finder determining that the defendant is guilty beyond a reasonable doubt. Jackson, 443 U.S. at 319. The fact finder may make reasonable inferences from the evidence. Laster v. State, 275 S.W.3d 512, 523 (Tex. Crim. App. 2009). We must determine whether the necessary inferences made by the trier of fact are reasonable based on the "cumulative force of all the evidence." Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). This standard "recognizes the trier of fact's role as the sole judge of the weight and credibility of the evidence after drawing reasonable inferences from the evidence." Adames v. State, 353S.W.3d 854, 860 (Tex. Crim. App. 2011).

The reviewing court measures the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009). A hypothetically correct jury charge is authorized by the indictment, accurately sets out the law, does not unnecessarily increase the State's burden of proof or restrict the State's theories of liability, and adequately describes the particular offense in question. Malik v. State, 953 S.W.2d 234, 239 (Tex. Crim. App. 1997) (en banc). Under such a charge, a conviction for promotion of child pornography must be supported by evidence showing that Leita (1) knowingly or intentionally promoted or possessed with intent to promote materials that visually depicted a child, younger than eighteen years of age at the time the image of the child was made, who was engaging in sexual conduct, and (2) knew the material depicted a child younger than eighteen engaging in sexual conduct. See TEX. PENAL CODE ANN. § 43.26(e). For our review in this case, a person acts knowingly with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist or when he is aware that his conduct is reasonably certain to cause the result. See id. § 6.03(b) (West, Westlaw through 2015 R.S.).

The State does not have to provide direct evidence to prove the defendant's guilt. See Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); see also Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010). "Circumstantial evidence is as probative as direct evidence in establishing the guilt of the actor, and circumstantial evidence alone can be sufficient to establish guilt." Hooper, 214 S.W.3d at 13; see Wise,364 S.W.3d at 903; see also, e.g., Wenger v. State, 292 S.W.3d 191, 198-99 (Tex. App.—Fort Worth 2009, no pet.) (holding that making child pornography available for others to access and download through peer-to-peer file-sharing software qualifies as "dissemination" or "distribution" of the pornography). Knowledge is a fact question and is usually proven through the circumstances surrounding the crime. Carrizales v. State, 397 S.W.3d 251, 255 (Tex. App.—Corpus Christi 2013), aff'd on other grounds, 414 S.W.3d 737 (Tex. Crim. App. 2013); see Robles v. State, 664 S.W.2d 91, 94 (Tex. Crim. App. 1984) (en banc). And

[f]or the evidence to be sufficient, the State need not disprove all reasonable alternative hypotheses that are inconsistent with the defendant's guilt. Rather, a court considers only whether the inferences necessary to establish guilt are reasonable based upon the cumulative force of all the evidence when considered in the light most favorable to the verdict.

Wise, 364 S.W.3d at 903 (citations omitted).

B. Testimony

It is undisputed that Leita downloaded child pornography through the use of Shareaza, a peer-to-peer sharing program, and that the copy of Shareaza on Leita's computer was configured to allow peers to download files from his computer. State witness Daniel Simons, a cybercrime investigator formerly with the Victoria County Sheriff's Office, testified that he participated in an investigation concerning suspected child pornography being downloaded at Leita's residence. According to Investigator Simons, he "directed the actions of the investigators, as well as the processing of the computer."

At trial, Investigator Simons explained how peer-to-peer networks share files. Hedescribed Shareaza as one of those networks, explaining how Shareaza works and confirming that Shareaza is a file-sharing tool known by law enforcement to be used for trading child pornography. Investigator Simons also explained that within the community of individuals interested in child pornography, it was common practice for those individuals to trade child-pornography material with one another.

Investigator Simons testified that he executed a search warrant at Leita's residence and found evidence that Leita's computer was turned on and that Shareaza was downloading a selected file at that time. He agreed that "active sharing [was] going on." Investigator Simons also described hand-written notes located inside a cabinet at Leita's residence. He discussed how those notes related to listings of child-pornography websites and a listing of encrypted files and passwords necessary to access them. For example, Investigator Simons testified that the notes contained references to "series" or "collections," which, according to Investigator Simons, are groups of images—pictures or videos—that have similar subjects. He agreed that individuals will trade information about these series. Investigator Simons further agreed that, after reviewing reports that analyzed the files on Leita's computer, he saw evidence of promotion of child pornography because "[b]y default, [S]hareaza makes itself available to other users. All the files you download are then shared back through the [S]hareaza network. Because [Leita] was using [S]hareaza and because the files were kept in the download folder, that indicated, to me, promotion."

Investigator Simons also described finding a bag of women's panties under Leita's bed and a towel under the table where Leita's computer was located. The trial courtadmitted these items into evidence, without objection.

Finally, the State asked Investigator Simons, "Did you feel that you were dealing with a person—Jason Leita, with a certain level of intelligence?" And he responded, "Yes . . . . We saw things of higher intelligence—the communications, the equipment he had, the use of the external hard drive connected to the Blu-ray, to watch movies in his bedroom, camping equipment, ownership of a boat and ski-doo. That all indicated to us somebody that understands how things work." On cross-examination when asked if he was aware of "some mental problems, insufficiencies [Leita] might...