William Cody Thompson v. State

Opinion

ACCEPTED 14-15-00174-CR FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 8/7/2015 3:40:47 PM CHRISTOPHER PRINE CLERK

NOS. 14-15-00174-CR & 14-15-00175-CR

IN THE FOURTEENTH COURT OF APPEALS FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS HOUSTON, TEXAS 8/7/2015 3:40:47 PM CHRISTOPHER A. PRINE Clerk

WILLIAM CODY THOMPSON, APPELLANT V. THE STATE OF TEXAS, APPELLEE

BRIEF FOR THE STATE OF TEXAS

CAUSE NUMBERS 13CR2837 & 13CR2838 IN THE 56th JUDICIAL DISTRICT COURT OF GALVESTON COUNTY, TEXAS

ATTORNEYS FOR THE STATE OF TEXAS

REBECCA KLAREN ASSISTANT CRIMINAL DISTRICT ATTORNEY STATE BAR NO. 24046225

JACK ROADY CRIMINAL DISTRICT ATTORNEY

600 59TH STREET, SUITE 1001 GALVESTON TX 77551 (409) 770-6004, FAX (409) 621-7952 rebecca.klaren@co.galveston.tx.us

ORAL ARGUMENT WAIVED IDENTITY OF PARTIES AND COUNSEL

Presiding Judge Honorable Lonnie Cox

Appellant William Cody Thompson

Appellee The State of Texas

Attorney for Appellant Angela Taylor

(Trial Only) League City, Texas

Attorney for Appellant James Ducote

(Appeal Only) League City, Texas

Attorney for State Adam Poole & Megan Jones

(Trial Only) Galveston, Texas

Attorney for State Rebecca Klaren

(Appeal Only) Galveston, Texas

ii TABLE OF CONTENTS

SECTION PAGE

Identity of Parties and Counsel ii

Table of Contents iii

Index of Authorities iv

Summary of the Argument 2

Statement of Facts 2

Sole Issue 6 Penal Code §3.03, Code of Criminal Procedure article 42.08, and the case law provide trial courts with the discretion to stack a child pornographer’s sentences.

How’s there reversible error when Thompson was convicted of two counts of possession of child pornography and the law allows the Trial Court to order Thompson’s sentences to run consecutively?

Argument and Authorities 6

Conclusion and Prayer 10

Certificate of Service 11

Certificate of Compliance 11

iii INDEX OF AUTHORITIES

CASES

Beedy v. State, 194 S.W.3d 595, 597 (Tex. App.---Houston [1st Dist.] 2006, aff’d, 250 S.W.3d 107 (Tex. Crim. App. 2008)). ........................................................................6

Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). .......................................7

Ex parte Ervin, 187 S.W.3d 386, 388 (Tex. Crim. App. 2005). ......................................6

Green v. State, 706 S.W.2d 653 (Tex. Crim. App. 1986) .................................................8

Medina v. State, 7 S.W.3d 876, 878-79 (Tex. App.---Houston [1st Dist.] 1999, no pet.) .9

Mireles v. State, 444 S.W.3d 679, 680 (Tex. App.---Houston [14th Dist.] 2014, pet. ref’d). ............................................................................................................... 6, 8, 9

Nguyen v. State, 359 S.W.3d 636, 641-42 (Tex. Crim. App. 2012). .................................6

Pettigrew v. State, 48 S.W.3d 769, 772 (Tex. Crim. App. 2001) ...................................8, 9

Tran v. State, 221 S.W.3d 79, 90 (Tex. App.---Houston [14th Dist.] 2005, pet. ref’d). ...6

STATUTES

TEX. CRIM. PROC. CODE art. 42.08. .........................................................................8, 9

TEX. GOV’T CODE §311.011........................................................................................6

TEX. PENAL CODE §3.03(b)(3)(A)............................................................................7, 9

TEX. PENAL CODE §43.26 ...........................................................................................7

iv NOS. 14-15-00174-CR & 14-15-00175-CR

IN THE

COURT OF APPEALS

FOR THE

FOURTEENTH DISTRICT OF TEXAS

HOUSTON, TEXAS

WILLIAM CODY THOMPSON, Appellant V. THE STATE OF TEXAS, Appellee

Appealed from the 56th Judicial District Court of Galveston County, Texas Cause Nos. 13CR2837 & 13CR2838

TO THE HONORABLE COURT OF APPEALS:

Now comes Jack Roady, Criminal District Attorney for Galveston County, Texas,

and files this brief for the State of Texas.

The one-volume Clerk’s Record for each cause number is referred to in the State’s Brief as “C.R. 2837: page” or “C.R. 175: 2838”. The Reporter’s Record is multiple volumes and is referred to as “R.R. volume number: page”. SUMMARY OF THE ARGUMENT

In his sole issue, William Thompson argues he’s entitled to a new punishment

hearing because the Trial Court couldn’t stack his two possession of child pornography

sentences. Thompson relies on outdated cases. The Penal Code, the Code of Criminal

Procedure, and the case law vest the trial court with the discretion to order a child

pornographer’s sentences to run consecutively or concurrently. Here, the Trial Court

committed no error when it ordered Thompson to serve his 10 year confinement

sentence before serving 10 years of probation.

STATEMENT OF FACTS

The Internet Crimes Against Children Task Force (ICAC) investigates peer-to-

peer transfers of child pornography.1 The investigators have specialized software that

allow them to search child pornography downloaders within a specific area.2 The

investigators are able to determine the internet service provider and the subscriber

information.3 The investigators can see what the suspect is downloading and can

confirm the files are on the suspect’s shared folder.4 The investigators then get a search

warrant for the suspect’s house and seize his computers or devices capable of storing

1 R.R. III: 13-14. 2 R.R. III: 18. 3 R.R. III: 19. 4 R.R. III: 21.

2 child pornography.5

ICAC began its investigation on Thompson in September 2013.6 They served

their search warrant for Thompson’s house in October 2013.7 The officers seized a

laptop and several hard drives.8

One of the investigators testified even if someone was able to steal Thompson’s

Wi-Fi, it was not possible for that person to download child pornography to

Thompson’s computer.9 The digital forensics officer examined Thompson’s laptop and

hard drives.10 The officer found 1,489 images and 780 videos of child pornography on

Thompson’s laptop.11 The officer found 354 videos of child pornography on a hard

drive.12 The officer found 6 images and 213 videos of child pornography on another

hard drive.13

The digital forensics officer testified that there were files created and accessed

from 2011 until the day before the search warrant was executed.14 The officer explained

the images were saved in several locations on the drives.15 He testified this was

significant because some of the saved locations were not the default locations for the

5 R.R. III: 26-27. 6 R.R. III: 24. 7 R.R. III: 24-25, 29. 8 R.R. III: 35-38. 9 R.R. III: 43-44. 10 R.R. III: 75. 11 R.R. III: 79. 12 R.R. III: 79-80. 13 R.R. III: 80. 14 R.R. III: 83. 15 R.R. III: 84.

3 peer-to-peer software.16

The digital forensics officer provided several search terms he found on

Thompson’s computer and hard drive.17 They included: “Copia. Sandra Nude, Jena

12YO, or 12 years old; Real and Photo by Carl; Mafia Sex Kids, girls; Equal Copia; and

New Star Diana.”18 The officer recognized several of the terms and explained Photo by

Carl is a series of child pornography.19

The digital forensics officer testified State’s Exhibit 1 has two videos from one of

Thompson’s hard drives.20 The first file was titled “PTHC three-year-old Majorie.”21 The

officer testified based on his training and experience “PTHC” means preteen hard

core.22 He also testified that based on his training and experience the video appeared to

be of a child younger than 18 and was child pornography.23 The second file was titled

“PTHC, pedoland, frifam, baby shimd, two-year-old slave play, black mask 002.”24 The

officer testified he’s seen “pedoland” on other images of child pornography.25 The

officer testified that based on his training and experience the video was of a child

younger than 18 and was child pornography.26

16 R.R. III: 84. 17 R.R. III: 87. 18 R.R. III: 87. 19 R.R. III: 87-88. 20 R.R. III: 90; State’s Exhibit 1. 21 R.R. III: 90. 22 R.R. III: 90-91. 23 R.R. III: 91. 24 R.R. III: 91. 25 R.R. III: 91-92. 26 R.R. III: 92.

4 The jury convicted Thompson of 2 counts of possession of child pornography.27

During the punishment phase of the trial, the Trial Court admitted a military

judgment showing Thompson had been convicted of assault and of possession of child

pornography.28

Thompson testified during punishment.29 He asked the jury for probation.30 He

claimed when he got the devices, they already had child pornography on them.31 He

admitted he could’ve stopped the child pornography from downloading if he wanted to,

but he didn’t.32 He admitted he looked at the child pornography, but he was surprised

every time he opened a file.33

The jury sentenced Thompson to 10 years confinement in one case and 10 years

confinement with a recommendation that the sentence be probated in the other case.34

The State requested the sentences run consecutively.35 Over Thompson’s objection,36

the Trial Court stacked his sentences.37

This appeal followed.

27 R.R. III: 127-28. 28 R.R. III: 129, 132; State’s Exhibit 14. 29 R.R. III: 169. 30 R.R. III: 191. 31 R.R. III: 193. 32 R.R. III: 194. 33 R.R. III: 194-95. 34 R.R. IV: 36-37. 35 R.R. IV: 39. 36 R.R. IV: 40. 37 R.R. V: 3.

5 SOLE ISSUE

Penal Code §3.03, Code of Criminal Procedure article 42.08, and the case law provide trial courts with the discretion to stack a child pornographer’s sentences.

How’s there reversible error when Thompson was convicted of two counts of possession of child pornography and the law allows the Trial Court to order Thompson’s sentences to run consecutively?

ARGUMENT AND AUTHORITIES

An appellate court generally reviews a trial court’s decision to stack a defendant’s

sentences for an abuse of discretion.38 When the law authorizes the imposition of

consecutive sentences, the trial court has absolute discretion to stack the sentences.39 But

a trial court abuses its discretion if it fails to apply the law correctly.40

A trial court’s authority to stack is provided by statute.41 When interpreting a

statute, the appellate court applies a de novo standard of review, mindful that its primary

objective is to ascertain and give effect to the intent of the legislature.42 The appellate

court focuses on the literal text of the statute, applying the plain and ordinary meaning

of the words that have been used, unless doing so yields an absurd result.43 If the statute

38 Mireles v. State, 444 S.W.3d 679, 680 (Tex. App.---Houston [14th Dist.] 2014, pet. ref’d). 39 Tran v. State, 221 S.W.3d 79, 90 (Tex. App.---Houston [14th Dist.] 2005, pet. ref’d). 40 Mireles, 444 S.W.3d at 680. 41 Beedy v. State, 194 S.W.3d 595, 597 (Tex. App.---Houston [1st Dist.] 2006, aff’d, 250 S.W.3d 107 (Tex. Crim. App. 2008)). 42 See Nguyen v. State, 359 S.W.3d 636, 641-42 (Tex. Crim. App. 2012). 43 See TEX. GOV’T CODE §311.011; Ex parte Ervin, 187 S.W.3d 386, 388 (Tex. Crim. App. 2005).

6 is clear and unambiguous, the appellate court must presume that the legislature meant

what it expressed.44

The Penal Code provides that if the defendant is found guilty of more than one

offense arising out of the same criminal episode, the sentences may run concurrently

or consecutively if each sentence is for a conviction under Penal Code §43.26—the

possession of child pornography statute.45 The Texas Code of Criminal Procedure

authorizes a trial court to order consecutive sentences when a defendant is convicted

in two or more cases, as follows:

(a.) When the same defendant has been convicted in two or more cases, judgment and sentence shall be pronounced in each case in the same manner as if there had been but one conviction. Except as provided by Sections (b) and (c) of this article, in the discretion of the court, the judgment in the second and subsequent convictions may either be that the sentence imposed or suspended shall begin when the judgment and the sentence imposed or suspended in the preceding conviction has ceased to operate, or that the sentence imposed or suspended shall run concurrently with the other case or cases, and sentence and execution shall be accordingly; provided, however, that the cumulative total of suspended sentences in felony cases shall not exceed 10 years, and the cumulative total of suspended sentences in misdemeanor cases shall not exceed the maximum period of confinement in jail applicable to the misdemeanor offenses, though in no event more than three years, including extensions of periods of community supervision under Section 22, Article 44 See Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). 45 TEX. PENAL CODE §3.03(b)(3)(A) (sentences for offenses arising out of same criminal episode statute); TEX. PENAL CODE §43.26 (possession or promotion of child pornography statute).

7 42.12, of this code, if none of the offenses are offenses under Chapter 49, Penal Code, or four years, including extensions, if any of the offenses are offenses under Chapter 49, Penal Code.

...

(c.) If a defendant has been convicted in two or more cases and the court suspends the imposition of the sentence in one of the cases, the court may not order a sentence of confinement to commence on the completion of a suspended sentence for an offense.46

Thompson argues that Green v. State interprets article 42.08 to hold a community

supervision sentence cannot be stacked on a term of confinement.47 Thompson’s

argument ignores the fact that the Legislature intentionally amended article 42.08 after

Green by deleting all references to “punishment” and replacing them with “sentence

imposed or suspended.”48 This Court concluded that the plain terms of §3.03 and article

42.08 grant the trial courts discretion to stack a community supervision sentence on a

term of confinement sentence.49

Thompson was convicted of possessing child pornography in two cases.50 Both

cases have the same date of offense.51 Both convictions arise from the same Internet

46 TEX. CRIM. PROC. CODE art. 42.08. 47 Thompson’s brief p. 15-17 (citing Green v. State, 706 S.W.2d 653 (Tex. Crim. App. 1986)). 48 Mireles, 444 S.W.3d at 681-82 (citing Act effective Aug. 31, 1987, 70th Leg., R.S., ch. 513, § 1, 1987 Tex. Gen. Laws 2125, 2125; Pettigrew v. State, 48 S.W.3d 769, 772 (Tex. Crim. App. 2001) (stating that the legislature amended Article 42.08 to “broaden a trial court’s ability to stack sentences by affording the option of stacking periods of community supervision”)). 49 Mireles, 444 S.W.3d at 683. 50 R.R. III: 127-28. 51 C.R. 2837: 7 (indictment date of offense October 17, 2013); C.R. 2838: 6 (indictment date of offense October 17, 2013).

8 Crimes Against Children Task Force investigation and search warrant.52 Under the Penal

Code,53 the Code of Criminal Procedure,54 and the case law,55 the Trial Court did not

abuse its discretion by stacking Thompson’s 10 year community supervision sentence on

his 10 year prison sentence.

Thompson’s sole issue should be overruled.

52 R.R. III: 13, 24-25, 26-27, 29, 31, 38-41, 75, 79-83, 87, 90-92. 53 TEX. PENAL CODE §3.03(b)(3)(A). 54 TEX. CRIM. PROC. CODE art. 42.08. 55 See Pettigrew, 48 S.W.3d at 772; Mireles, 444 S.W.3d at 683; Medina v. State, 7 S.W.3d 876, 878-79 (Tex. App.---Houston [1st Dist.] 1999, no pet.) (holding appellant’s reliance on Green v. State overlooks the Legislature’s amendment to article 42.08 in 1987 specifically allowing cumulation of community supervision sentences).

9 CONCLUSION AND PRAYER

WHEREFORE, PREMISES CONSIDERED, the State prays that the judgment

of the Trial Court be affirmed in all respects.

Respectfully submitted,

JACK ROADY CRIMINAL DISTRICT ATTORNEY GALVESTON COUNTY, TEXAS

/s/ Rebecca Klaren REBECCA KLAREN Assistant Criminal District Attorney State Bar Number 24046225 600 59th Street, Suite 1001 Galveston, Texas 77551 Tel (409)770-6004/Fax (409)621-7952 rebecca.klaren@co.galveston.tx.us

10 CERTIFICATE OF SERVICE

The undersigned Attorney for the State certifies a copy of the foregoing brief was

sent via email, eFile service, or certified mail, return receipt requested, to James Ducote,

attorney for William Cody Thompson, at james@ducotelawfirm.com or 3027 Marina

Bay Dr. Suite 110, League City, Tx 77573, on August 7, 2015.

/s/ Rebecca Klaren REBECCA KLAREN Assistant Criminal District Attorney Galveston County, Texas

CERTIFICATE OF COMPLIANCE

The undersigned Attorney for the State certifies this brief is computer generated,

and consists of 1,851 words.

/s/ Rebecca Klaren REBECCA KLAREN Assistant Criminal District Attorney Galveston County, Texas