AFFIRM Opinion Filed July 3, 2013
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-00234-CR No. 05-12-00235-CR No. 05-12-00236-CR No. 05-12-00237-CR No. 05-12-00238-CR No. 05-12-00239-CR ROBERT DOUGLAS GINTER, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 199th Judicial District Court Collin County, Texas Trial Court Cause Nos. 199-81522-10; 199-81898-10; 199-81899-10; 199-81900-10; 199-81901-10;199-81902-10
MEMORANDUM OPINION Before Justices O'Neill, Francis and Fillmore Opinion by Justice Francis Robert Douglas Ginter was charged in six multi-count indictments with possession of
child pornography. Appellant pleaded not guilty and, following a bench trial, was convicted on
all charges and sentenced to concurrent twenty-year prison terms. In his sole issue, appellant
contends the evidence was legally insufficient to prove he was the person that possessed the
illegal materials. We affirm.
In 2009, appellant moved back into the home of his parents, Joseph and Rhonda
Hrabchak, after being away for several years. Appellant set up a temporary bedroom in an open loft area upstairs that was accessible to the entire family. The area was located between the
bedrooms of his two younger brothers, Andrew and Brandon. Brandon suffered from cerebral
palsy.
Sometime after appellant moved in, Rhonda discovered a virus on the family desktop
computer upstairs. Joseph was able to eliminate the virus from the computer, but the problem
recurred weeks later. Joseph again removed the virus. When the virus returned a third time,
Joseph searched the computer to try to determine where the virus was coming from and found
pornography had been downloaded onto the computer. Some of the images depicted a “younger
child.” Joseph installed tracking software which showed appellant was the person responsible
for visiting the pornographic websites. Both Joseph and Rhonda confronted appellant, but he
denied going to the sites.
Sometime after that incident, appellant’s parents bought him a laptop computer. Only
appellant used the computer. The computer was password-protected, and no one in the family
knew the password except appellant. Appellant’s parents told Andrew they did not want him
using appellant’s laptop; Brandon did not have the capability of using the computer.
In June 2010, Plano Police Detective Jeff Rich used computer forensic tracking software
to locate an Internet Protocol (IP) address sharing files that appeared to be known images of
child pornography through the peer-to-peer sharing network, Limewire. Rich explained he
matched the “hash values” of the files being shared to hash values assigned to known child
pornography files maintained in a law enforcement database. Rich said the address was sharing
239 files over a peer-to-peer network; of the 239 files, 45 had values matching ones known to be
child pornography.
2 With this information, Rich obtained a court order for Verizon Internet Services and was
able to track the IP address to appellant’s mother. Rich then obtained a warrant to search for
suspected child pornography at the address provided by Verizon. Rich and several other officers
executed the search warrant at the Hrabchak house. When the police arrived, appellant ran out
the back door and was later apprehended. As part of his search, Rich seized three computers
from the Hrabchak house, including appellant’s personal laptop. At the police station, Rich used
computer forensic software and located both stored and deleted files containing child
pornography images and videos on appellant’s laptop. No child pornography was found on the
other seized computers.
In reviewing a challenge to the legal sufficiency of the evidence, we examine the
evidence in the light most favorable to the judgment to determine whether any rational trier of
fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson
v. Virginia, 443 US 307, 319 (1979). The factfinder exclusively determines the weight and
credibility of the evidence. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). This
standard is the same for both direct and circumstantial evidence. Id. For the evidence to be
sufficient, the State need not disprove all reasonable alternative hypotheses that are inconsistent
with the defendant’s guilt. Id. 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. Id.
A person commits possession of child pornography if he “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 he “knows that the material
depicts the child” in this manner. TEX. PENAL CODE ANN. § 43.26(a) (West Supp. 2012). A
3 person possesses a thing when he exercises actual care, custody, control, or management over the
thing. Id. § 1.07(a)(39) (West Supp. 2012). A person acts “intentionally” or with intent “with
respect to the nature of his conduct or to a result of his conduct when it is his conscious objective
or desire to engage in the conduct or cause the result.” Id. § 6.03(a) (West 2011); Wise, 364
S.W.3d at 903. A person acts knowingly or with knowledge of the nature of his conduct or
circumstances “when he is aware of the nature of his conduct or that the circumstances exist.”
Id. § 6.03(b). Proof of a culpable mental state almost invariably depends upon circumstantial
evidence. See Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991)¸overruled on
other grounds by Fuller v. State, 829 S.W.2d 191 (Tex. Crim. App. 1992). A trier of fact can
infer knowledge from all the circumstances, including the acts, conduct, and remarks of the
accused. See Dillon v. State, 574 S.W.2d 92, 94 (Tex. Crim. App. [Panel Op.] 1978).
On appeal, appellant claims this evidence is legally insufficient to prove he was the
person responsible for the child pornography found on his computer. He argues the State did not
exclude the possibility that another individual could have put the child pornography on
appellant’s computer, relying on evidence that the computer was accessible to other people in the
house and had previously been pawned. As support, he relies on United States v. Moreland, 665
F.3d 137, 151-54 (5th Cir. 2011), where the Fifth Circuit reversed a conviction because the
evidence was insufficient to show the defendant had knowledge or possession of child
pornography found on his computer where two other people had access to the computer and
knew the defendant’s username and password.
Moreland is distinguishable. The evidence in this case shows the laptop containing the
child pornography was registered under the user name “Robert” and was password-protected.
No one else in the household other than appellant knew the laptop’s password, and no one else in
4 the household used the computer except for appellant. Andrew had been instructed not to use the
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AFFIRM Opinion Filed July 3, 2013
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-00234-CR No. 05-12-00235-CR No. 05-12-00236-CR No. 05-12-00237-CR No. 05-12-00238-CR No. 05-12-00239-CR ROBERT DOUGLAS GINTER, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 199th Judicial District Court Collin County, Texas Trial Court Cause Nos. 199-81522-10; 199-81898-10; 199-81899-10; 199-81900-10; 199-81901-10;199-81902-10
MEMORANDUM OPINION Before Justices O'Neill, Francis and Fillmore Opinion by Justice Francis Robert Douglas Ginter was charged in six multi-count indictments with possession of
child pornography. Appellant pleaded not guilty and, following a bench trial, was convicted on
all charges and sentenced to concurrent twenty-year prison terms. In his sole issue, appellant
contends the evidence was legally insufficient to prove he was the person that possessed the
illegal materials. We affirm.
In 2009, appellant moved back into the home of his parents, Joseph and Rhonda
Hrabchak, after being away for several years. Appellant set up a temporary bedroom in an open loft area upstairs that was accessible to the entire family. The area was located between the
bedrooms of his two younger brothers, Andrew and Brandon. Brandon suffered from cerebral
palsy.
Sometime after appellant moved in, Rhonda discovered a virus on the family desktop
computer upstairs. Joseph was able to eliminate the virus from the computer, but the problem
recurred weeks later. Joseph again removed the virus. When the virus returned a third time,
Joseph searched the computer to try to determine where the virus was coming from and found
pornography had been downloaded onto the computer. Some of the images depicted a “younger
child.” Joseph installed tracking software which showed appellant was the person responsible
for visiting the pornographic websites. Both Joseph and Rhonda confronted appellant, but he
denied going to the sites.
Sometime after that incident, appellant’s parents bought him a laptop computer. Only
appellant used the computer. The computer was password-protected, and no one in the family
knew the password except appellant. Appellant’s parents told Andrew they did not want him
using appellant’s laptop; Brandon did not have the capability of using the computer.
In June 2010, Plano Police Detective Jeff Rich used computer forensic tracking software
to locate an Internet Protocol (IP) address sharing files that appeared to be known images of
child pornography through the peer-to-peer sharing network, Limewire. Rich explained he
matched the “hash values” of the files being shared to hash values assigned to known child
pornography files maintained in a law enforcement database. Rich said the address was sharing
239 files over a peer-to-peer network; of the 239 files, 45 had values matching ones known to be
child pornography.
2 With this information, Rich obtained a court order for Verizon Internet Services and was
able to track the IP address to appellant’s mother. Rich then obtained a warrant to search for
suspected child pornography at the address provided by Verizon. Rich and several other officers
executed the search warrant at the Hrabchak house. When the police arrived, appellant ran out
the back door and was later apprehended. As part of his search, Rich seized three computers
from the Hrabchak house, including appellant’s personal laptop. At the police station, Rich used
computer forensic software and located both stored and deleted files containing child
pornography images and videos on appellant’s laptop. No child pornography was found on the
other seized computers.
In reviewing a challenge to the legal sufficiency of the evidence, we examine the
evidence in the light most favorable to the judgment to determine whether any rational trier of
fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson
v. Virginia, 443 US 307, 319 (1979). The factfinder exclusively determines the weight and
credibility of the evidence. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). This
standard is the same for both direct and circumstantial evidence. Id. For the evidence to be
sufficient, the State need not disprove all reasonable alternative hypotheses that are inconsistent
with the defendant’s guilt. Id. 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. Id.
A person commits possession of child pornography if he “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 he “knows that the material
depicts the child” in this manner. TEX. PENAL CODE ANN. § 43.26(a) (West Supp. 2012). A
3 person possesses a thing when he exercises actual care, custody, control, or management over the
thing. Id. § 1.07(a)(39) (West Supp. 2012). A person acts “intentionally” or with intent “with
respect to the nature of his conduct or to a result of his conduct when it is his conscious objective
or desire to engage in the conduct or cause the result.” Id. § 6.03(a) (West 2011); Wise, 364
S.W.3d at 903. A person acts knowingly or with knowledge of the nature of his conduct or
circumstances “when he is aware of the nature of his conduct or that the circumstances exist.”
Id. § 6.03(b). Proof of a culpable mental state almost invariably depends upon circumstantial
evidence. See Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991)¸overruled on
other grounds by Fuller v. State, 829 S.W.2d 191 (Tex. Crim. App. 1992). A trier of fact can
infer knowledge from all the circumstances, including the acts, conduct, and remarks of the
accused. See Dillon v. State, 574 S.W.2d 92, 94 (Tex. Crim. App. [Panel Op.] 1978).
On appeal, appellant claims this evidence is legally insufficient to prove he was the
person responsible for the child pornography found on his computer. He argues the State did not
exclude the possibility that another individual could have put the child pornography on
appellant’s computer, relying on evidence that the computer was accessible to other people in the
house and had previously been pawned. As support, he relies on United States v. Moreland, 665
F.3d 137, 151-54 (5th Cir. 2011), where the Fifth Circuit reversed a conviction because the
evidence was insufficient to show the defendant had knowledge or possession of child
pornography found on his computer where two other people had access to the computer and
knew the defendant’s username and password.
Moreland is distinguishable. The evidence in this case shows the laptop containing the
child pornography was registered under the user name “Robert” and was password-protected.
No one else in the household other than appellant knew the laptop’s password, and no one else in
4 the household used the computer except for appellant. Andrew had been instructed not to use the
computer, and Brandon could not access a computer and download files. Additionally, the child
pornography found on the computer was specifically stored under appellant’s user name, Robert.
In addition to this evidence, there was other circumstantial evidence linking appellant to
the illegal materials. Child pornography was discovered on the family computer after appellant
moved back into the home. Tracking software was installed on the computer and indicated
appellant was the person responsible. Also, appellant’s father testified that before appellant
moved in, there was no child pornography discovered in the household. After appellant had his
own laptop, no more child pornography appeared on the desktop. Finally, when the police
executed the search warrant at appellant’s residence, appellant attempted to flee through the back
door. See Hardesty v. State, 656 S.W.2d 73, 78 (Tex. Crim. App. 1983) (explaining that flight
can be used as a circumstance of guilt).
Considering all the evidence, we conclude it is legally sufficient to establish beyond a
reasonable doubt that appellant was the person who intentionally and knowingly possessed
images of child pornography on his computer. We overrule the sole issue.
We affirm the trial court’s judgments.
/Molly Francis/ MOLLY FRANCIS JUSTICE
Do Not Publish TEX. R. APP. P. 47 120234F.U05
5 S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ROBERT DOUGLAS GINTER, Appellant On Appeal from the 199th Judicial District Court, Collin County, Texas No. 05-12-00234-CR V. Trial Court Cause No. 199-81522-10. Opinion delivered by Justice Francis; THE STATE OF TEXAS, Appellee Justices O'Neill and Fillmore participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered July 3, 2013
6 S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ROBERT DOUGLAS GINTER, Appellant On Appeal from the 199th Judicial District Court, Collin County, Texas No. 05-12-00235-CR V. Trial Court Cause No. 199-81898-10. Opinion delivered by Justice Francis; THE STATE OF TEXAS, Appellee Justices O'Neill and Fillmore participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
7 S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ROBERT DOUGLAS GINTER, Appellant On Appeal from the 199th Judicial District Court, Collin County, Texas No. 05-12-00236-CR V. Trial Court Cause No. 199-81899-10. Opinion delivered by Justice Francis; THE STATE OF TEXAS, Appellee Justices O'Neill and Fillmore participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
8 S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ROBERT DOUGLAS GINTER, Appellant On Appeal from the 199th Judicial District Court, Collin County, Texas No. 05-12-00237-CR V. Trial Court Cause No. 199-81900-10. Opinion delivered by Justice Francis; THE STATE OF TEXAS, Appellee Justices O'Neill and Fillmore participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
9 S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ROBERT DOUGLAS GINTER, Appellant On Appeal from the 199th Judicial District Court, Collin County, Texas No. 05-12-00238-CR V. Trial Court Cause No. 199-81901-10. Opinion delivered by Justice Francis; THE STATE OF TEXAS, Appellee Justices O'Neill and Fillmore participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
10 S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ROBERT DOUGLAS GINTER, Appellant On Appeal from the 199th Judicial District Court, Collin County, Texas No. 05-12-00239-CR V. Trial Court Cause No. 199-81902-10. Opinion delivered by Justice Francis; THE STATE OF TEXAS, Appellee Justices O'Neill and Fillmore participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.