Texas High Court Upholds Child Pornography Conviction Because Jury’s Findings Were Reasonable – Wise v. State

April 30, 2012 by David S. Seltzer

As a child pornography criminal defense attorney, I know that child porn possession cases frequently end up in appeals. However, those cases are usually appealed for their sentences, or for the way the evidence was required. It’s rare to see a child porn case challenged on the sufficiency of the evidence itself, but that was the situation in Wise v. State, a Texas Court of Criminal Appeals case that upheld a trial-court conviction, but overturned an appeals court ruling in favor of Jeffrey Shane Wise. Authorities found ten deleted images of child pornography on Wise’s computer, and he was convicted in Wichita County on ten counts of possession. The court of appeals reversed, finding that the trial court hadn’t adequately considered alternative explanations, but the Court of Criminal Appeals reversed again, finding that this was the wrong standard of review.

Wise was prosecuted on the child porn counts along with counts of sexual assault of a child and sexual indecency with a child relating to acts with an employee and his stepdaughter, plus another count of child porn possession for a photo of the employee on his camera. The ten images were found on the “free space” of his computer, meaning they had been deleted but remained on the hard drive while waiting to be overwritten by new files. He was convicted of everything in the same trial, but only the deleted child pornography was at issue on appeal. The Second Court of Appeals reversed those convictions, saying the evidence was not sufficient to support them. In support, the majority in that court said it was possible for the images to have gotten onto the hard drive without Wise seeing or accessing them. Under Texas law, a defendant cannot be convicted of child porn possession unless he “knowingly and intentionally” possesses it. A dissent argued that this majority applied the wrong legal standard, and prosecutors made the same argument on appeal.

The Court of Criminal Appeals ultimately agreed, restoring Wise’s convictions. Texas courts have rarely considered knowing possession with regard to files that had been deleted and exist only in the computer’s “free space,” but analyzing courts around the country, the Court of Criminal Appeals ruled that such cases should be analyzed on a case-by-case basis. In this case, the record shows Wise did not have the skills to recover the deleted files, so the court said his guilt depended on whether he’d had access to and control over the files before deletion. The appeals court correctly rejected Wise’s argument that a virus could have put the images there, the high court said, but incorrectly credited his suggestion that they could have come from the computer’s previous owner. This was the “reasonable hypothesis analytical construct” standard expressly rejected in a 1991 case, the higher court said. Furthermore, it said, the appeals court should have deferred to the jury and construed the case in the light most favorable to the prosecution, which showed Wise had used his computer in other ways to pursue a sexual interest in children and teens. Thus, it restored his conviction.

As a cyber crime criminal defense lawyer, I know this is a defense that is commonly used in child pornography cases. There are cases of child porn prosecutions in which the defendant truly didn’t know the material was on the hard drive. It’s difficult to convince juries and judges of this, even when the evidence for it is strong, partly because child pornography is such an emotional subject. That’s why, as a child porn possession defense attorney, I’m pleased that the Court of Criminal Appeals made it clear that Texas courts should evaluate each defendant and case individually. This way, they can take into account other charges, computer skills and similar facts relevant to whether the defendant had actual knowledge of the material and its content.

Based in downtown Miami, Seltzer Law, P.A., represents clients around Florida and the United States who are accused of serious crimes involving computers, the internet and technology. To talk to us 24 hours a day and seven days a week, send us a message online or call 1-888-THE-DEFENSE (1-888-843-3333).

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