Affirm; Opinion Filed November 12, 2019




                                                   In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                        No. 05-18-01497-CR

                            THOMAS PETER HIGGINS, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                       On Appeal from the 296th Judicial District Court
                                    Collin County, Texas
                           Trial Court Cause No. 219-84142-2017

                              MEMORANDUM OPINION
                        Before Justices Pedersen, III, Reichek, and Carlyle
                                 Opinion by Justice Pedersen, III
       Appellant Thomas Peter Higgins was charged with ten counts of possession of child

pornography. Appellant signed a judicial confession and pled guilty before the trial court without

an agreement on punishment. At the conclusion of the trial on punishment, the trial court found

him guilty on counts one through five, and sentenced him to five years’ confinement in the Texas

Department of Criminal Justice, Institutional Division. On counts six through ten, the court

deferred adjudication and placed him on ten years’ community supervision. In one issue on appeal,

appellant asserts that the trial court’s consideration of certain evidence violated his constitutional

and statutory rights to a fair trial. We affirm.

       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 § 43.26(a); see also Wise v. State, 364 S.W.3d

900, 903 (Tex. Crim. App. 2012). Possession of child pornography is a third-degree felony. TEX.

PENAL CODE § 43.26(d). Appellant does not challenge the guilt–innocence portion of his trial.

Indeed, he pled guilty to ten counts of possession of child pornography. His challenge is limited

to the sentencing portion of his trial. Appellant complains that his constitutional and statutory

rights to a fair sentencing trial were violated, and he asks that we reverse his sentence and remand

this case to the trial court for a new punishment hearing.

       Appellant argues that the trial court abused its discretion and violated his constitutional and

statutory rights to a fair trial by considering evidence that was not presented at trial. He claims

that evidence of child pornography file sharing was not presented at trial and therefore, should not

have been considered by the trial judge. Every person accused of a crime is entitled to a fair trial.

Hajjar v. State, 176 S.W.3d 554, 565 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d). However,

in this case, appellant faces three obstacles to the success of his argument. First, he failed to raise

his fair trial issue to the trial court, and therefore, it is not preserved for our review. See TEX. R.

APP. P. 33.1(a); see also Hajjar, 176 S.W.3d at 566. Second, evidence that appellant was engaged

in child pornography file sharing was presented at trial. However, because appellant failed to

object to the admissibility of State’s Exhibit 3 during trial, he failed to preserve his objection to

such evidence. See TEX. R. APP. P. 33.1(a). Third, appellant failed to adequately brief his stated

issue. See TEX. R. APP. P. 38.1(i). Appellant was charged and convicted of possession of child

pornography, TEX. PENAL CODE § 43.26(a), a third-degree felony, id. at (d), and was assessed

punishment in accordance with the statutory sentencing range for a third-degree felony, TEX.

PENAL CODE § 12.34. He was not charged with promoting, or possessing with intent to promote,

child pornography, a second-degree felony. TEX. PENAL CODE § 43.26 (e), (g). Child pornography

file sharing is not an element of the offense of possession of child pornography. See id. § 43.26(a).

                                                 –2–
Appellant’s brief presents no argument to show why or how his issue on appeal has any relevance

to his punishment for possession of child pornography.

           At trial, the State offered State’s Exhibit 3, a portion of the offense report describing the

investigation and facts of the case, and State’s Exhibit 4, a DVD containing the child pornography

for which appellant was indicted. Defense counsel did not object to the admissibility of either

exhibit, and the trial court admitted the exhibits into evidence. Thus, the contents of the offense

report were properly before the trial court and available for its consideration for any purpose.

           In State’s Exhibit 3, Plano Police Department Detective Jeff Rich described a joint, multi-

jurisdictional investigation, Operation Medusa, that was implemented to combat child

pornography on the internet. Using peer-to-peer software, Detective Jeff Rich discovered a

computer on a file-sharing network that was participating in the sharing of child pornography.1 He

identified the IP address of the sharing computer, reviewed the files that were being made available

by that IP address, and determined that the files were child pornography. He then made a direct

connection to the computer at the identified IP address and downloaded videos that the computer

made available. After reviewing the downloaded files and confirming that the files contained child

pornography, officers obtained subscriber information for the identified IP address—appellant’s

name and address. The officers obtained a search warrant for appellant’s residence and computer.

During the search, appellant was asked how he stored the pornography he liked. According to the

offense report, he told Detective Tony Godwin that “he used the default folder structure for eMule

and would move them from a shared folder quickly after downloading to folders he created.” In

summary, the offense report showed that appellant acquired much of his collection of pornography

through peer-to-peer file-sharing software, that the pornography on his own computer was



      1
        See Wenger v. State, 292 S.W.3d 191, 198 (Tex. App.—Fort Worth 2009, no pet.) (“Several courts have held that making child pornography
available for others to access and download through peer-to-peer file-sharing software qualifies as ‘distribution’ or ‘delivery’ to others.”) (internal
citations omitted).

                                                                        –3–
available to others to download through peer-to-peer file-sharing software, and that appellant was

well aware of this fact. We therefore conclude that the record contained evidence that at least

some of appellant’s child pornography files were shared.

       Defense witness, F. Liles Arnold, M.S., a licensed professional counselor, testified

regarding his evaluation of appellant. Defendant’s Exhibit 1, a report authored by Arnold, was

admitted into evidence without objection. In his report, Arnold noted that when he spoke to

appellant about the police report, appellant admitted that for the most part, the police report was

accurate. Arnold also noted that one discrepancy between appellant’s account of his behavior and

the police report is that appellant claims he never distributed child pornography to anyone.

       During closing argument, defense counsel argued that appellant’s collection of child

pornography was a “deep, dark secret that he had kept hidden.” The trial court interjected as

follows:

       COURT: He didn’t. He shared it with other people. Maybe he kept it hidden from
       the people in his household, but he freely shared it with others.

       MR. KNAPP: Your Honor, if I may interject, which may be a little bit off the
       record, I don’t - - I believe this system he is a part of, it is automatic sharing. This
       isn’t anything that - -

       COURT: I have read the offense report.

       MR. KNAPP: Yes sir. It is not - - it is not a thing where he is going in and
       broadcasting it. He - - as the Court is aware, we got an investigator because he
       wanted to know how did this get broadcast. Well, it is because it is the system. It
       is not a conscious decision on his part.

       COURT: Well, you know when you get on the system that they shared all of their
       files together.

Appellant complains that the trial judge’s comment, “Well, you know when you get on the system

that they shared all of their files together,” clearly shows that the court was considering evidence

not supported by the record. We disagree. The offense report clearly described the manner in

which Detective Rich discovered appellant’s computer on a file-sharing network that was
                                                 –4–
participating in the sharing of child pornography. Furthermore, in response to the trial judge’s

comment, defense counsel responded “I believe this system he is a part of, it is automatic sharing.”

       As the fact finder, the trial court was the exclusive judge of the witnesses’ credibility and

weight to be given to their testimony. See Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App.

2000). Thus the court could consider State’s Exhibit 3 (the offense report) and conflicting

statements in Defendant’s Exhibit 1 (Arnold’s report), and judge the weight and credibility of the

evidence. It was free to accept or reject any or all of the evidence presented by either side. See

Krause v. State, 243 S.W.3d 95, 110 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d).

       To the extent that any of appellant’s arguments were preserved for our review, we conclude

the trial court did not abuse its discretion by considering evidence that was properly admitted,

without objection, at trial. We affirm the trial court’s judgment.




                                                   /Bill Pedersen, III//
                                                   BILL PEDERSEN, III
                                                   JUSTICE



Do Not Publish
TEX. R. APP. P. 47.2(b)


181497f.u05




                                                –5–
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

 THOMAS PETER HIGGINS, Appellant                    On Appeal from the 296th Judicial District
                                                    Court, Collin County, Texas
 No. 05-18-01497-CR        V.                       Trial Court Cause No. 219-84142-2017.
                                                    Opinion delivered by Justice Pedersen, III.
 THE STATE OF TEXAS, Appellee                       Justices Reichek and Carlyle participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 12th day of November, 2019.




                                             –6–
