                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-10-00297-CR

GREGG CARL BAIRD,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                        From the 272nd District Court
                             Brazos County, Texas
                       Trial Court No. 09-02494-CRF-272


                                   OPINION


      Appellant Gregg Baird was charged with committing thirteen counts of

possession of child pornography.      After the trial court denied Baird’s motion to

suppress, Baird pleaded guilty. Under the plea bargain, Baird pleaded guilty to ten of

the counts, the State agreed to dismissal of ninety unadjudicated offenses (by the

application of Penal Code section 12.45), and the parties waived a jury without reaching

a punishment agreement. After a punishment hearing, the trial court accepted Baird’s

guilty plea and assessed a ten-year sentence on count 1, a five-year sentence on count 2
(cumulated on count 1’s sentence), and a ten-year sentence on count 3 (suspended for

ten years of community supervision).       The sentence on each remaining count was

assessed at ten years, to be served consecutively with count 1’s sentence.

        Baird raises two issues: (1) the trial court abused its discretion by denying

Baird’s second amended motion to suppress evidence; and (2) the trial court abused its

discretion by overruling objections to the admissibility of constitutionally protected

conduct offered by the State as punishment evidence.

                                      Suppression

        We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App.

2007). In reviewing the trial court’s decision, we do not engage in our own factual

review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v. State, 118

S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial judge is the sole trier of

fact and judge of the credibility of the witnesses and the weight to be given their

testimony. Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007); State v. Ross, 32

S.W.3d 853, 855 (Tex. Crim. App. 2000), modified on other grounds by State v. Cullen, 195

S.W.3d 696 (Tex. Crim. App. 2006). Therefore, we give almost total deference to the trial

court’s rulings on (1) questions of historical fact, even if the trial court’s determination

of those facts was not based on an evaluation of credibility and demeanor; and

(2) application-of-law-to-fact questions that turn on an evaluation of credibility and

demeanor. Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108-09 (Tex.

Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002). But

Baird v. State                                                                        Page 2
when application-of-law-to-fact questions do not turn on the credibility and demeanor

of the witnesses, we review the trial court’s rulings on those questions de novo.

Amador, 221 S.W.3d at 673; Johnson, 68 S.W.3d at 652-53.

          When reviewing the trial court’s ruling on a motion to suppress, we must view

the evidence in the light most favorable to the trial court’s ruling. Wiede, 214 S.W.3d at

24; Kelly v. State, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When the trial court

makes explicit fact findings, we determine whether the evidence, when viewed in the

light most favorable to the trial court’s ruling, supports those fact findings. Kelly, 204

S.W.3d at 818-19. We then review the trial court’s legal ruling de novo unless its explicit

fact findings that are supported by the record are also dispositive of the legal ruling. Id.

at 819.

          The evidence at the suppression hearing shows that Baird hired Dawn Killian,

who casually knew Baird through her boss, to stay at his home and to care for his dog

while he was on a ten-day vacation to Panama with his parents. She met with Baird

twice at his home, first to meet the dog, and second, on the day of Baird’s departure, to

be shown around the house. In the second meeting, Killian said that Baird walked her

through the house and told her to “help yourself to everything,” which he also said

when he showed her the kitchen. Baird showed her how to operate his television and

stereo.

          Killian said that Baird also walked her through his bedroom and bathroom and

told her to keep his bedroom door closed (both when she was and was not in the home)

because he did not want his dog in the bedroom.            Killian was to stay in a guest

Baird v. State                                                                        Page 3
bedroom. Baird had a roommate who had his own bedroom and office, and Baird

indicated that those were places that Killian and the dog would not be going in. Killian

testified that Baird did not specifically tell her where she could and could not go in the

house and that he did not specifically instruct her to not go into his bedroom or that

anything was “off limits.”

        On the evening of May 8, 2009, Killian went into Baird’s bedroom to use his

computer to try to copy two songs from a music CD to her new phone. Baird had not

specifically told her not to use his computer, nor did he specifically tell her that she

could use it. The computer was on but in sleep mode, and when she moved the mouse,

the computer’s desktop came on. A password was not needed to access the computer.

After copying the songs to the computer and then realizing it would be more

complicated to get them on her phone, Killian decided to delete the songs. She went

into the “recent documents” folder to delete the songs and saw file names suggestive of

child pornography. She next opened the “recycle bin” and saw thumbnail images of

child pornography and then began playing a video that depicted child pornography.

        After anonymously consulting with others in an online forum and then

discussing it with people she knew, Killian reported what she had seen on Baird’s

computer to the College Station police. A search warrant was obtained and executed,

and child pornography was found on several devices seized from Baird’s home.

        Baird testified at the suppression hearing. He said that he never gave Killian

permission to enter his bedroom or to use his computer, and he disputed that he even

showed her his bedroom. But he admitted that, other than telling her to keep the

Baird v. State                                                                      Page 4
bedroom door closed so that the dog could not go in there, he did not specifically tell

her to stay out of his bedroom or to not use his computer. Baird also admitted that his

roommate had permission to use, and did use, Baird’s computer. Baird thought he had

turned off the computer before he left on vacation.

        Baird moved to suppress the evidence obtained in the search under Code of

Criminal Procedure article 38.23(a),1 arguing that in entering his bedroom and accessing

his computer, Killian committed the offenses of criminal trespass2 and breach of

computer security.3

        In denying the motion to suppress, the trial court made findings of fact and

conclusions of law. When a trial court makes explicit fact findings, we are to determine

whether the evidence, viewed in the light most favorable to the trial court’s ruling,

supports the fact findings. Kelly, 204 S.W.3d at 818. Baird first challenges several of the

trial court’s findings of fact, complaining that they are not supported by, and are

contrary to, the evidence.

        The trial court found that Baird placed no limits or restrictions on Killian’s access

to his home, bedroom, or computer and that Baird told her to “help herself to

anything,” or words to that effect. Baird emphasizes that both he and Killian testified


1TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2005) (“No evidence obtained by an officer or other
person in violation of any provisions of the … laws of the State of Texas … shall be admitted in evidence
against the accused”).

2TEX. PENAL CODE ANN. § 30.05(a)(1) (West Supp. 2011); see Allison v. State, 113 S.W.3d 476, 478 (Tex.
App.—Houston [1st Dist.] 2003, no pet.) (recognizing that effective consent to enter a residence does not
extend to rooms in which the owner has manifested intent to exclude others).

3TEX. PENAL CODE ANN. § 33.02(a) (West Supp. 2011); see, e.g., Muhammed v. State, 331 S.W.3d 187, 192-93
(Tex. App.—Houston [14th Dist.] 2011, pet. ref’d).

Baird v. State                                                                                    Page 5
that Baird did not affirmatively give her explicit permission to go into his bedroom or to

use his computer. But, it is undisputed that he did not tell her not to go into his

bedroom and not to use his computer, and it is undisputed that, in telling her to keep

his bedroom door shut at all times, it was said in conjunction with his desire to keep the

dog out of his bedroom. Killian said that Baird told her more than once—and not just in

the kitchen in reference to food and drink—to help herself to anything.4 Because we

must view the evidence in the light most favorable to the trial court’s ruling, and

because the trial court judges the credibility of the witnesses and the weight to be given

their testimony, Wiede, 214 S.W.3d at 24-25, these findings are supported by the

evidence.5

           Baird also complains of the findings that he took no steps to protect the

information on his computer through the use of passwords or other such methods (it is

not disputed that the computer was not password-protected) and that Killian’s access to


4 In an attempt to show that he did restrict her access, Baird asserts that the record shows that he
communicated to Killian that she was not to enter the roommate’s bedroom or office, but her testimony
does not support that assertion:

                   Q.       Okay. And after you went through the house with Mr. Baird on this
           particular occasion, just before he left, did he indicate to you that anything was off limits?

                    A.      He did point out that the spare - - there was a roommate and this was the
           roommate’s bedroom and that this was the roommate’s office. You know, kind of
           indicating that those were probably places that neither I or the dog would be going. But,
           no, he said help yourself to everything.

           …

                   Q.      … With respect to the roommate’s room and his bathroom or study, I
           guess, did he specifically tell you not to go in there or just - -

                   A.       No, but I would just assume, you know, that they’re roommates.

5   The trial court specifically found that Killian was credible.

Baird v. State                                                                                              Page 6
the bedroom and computer was reasonably foreseeable to Baird. These complaints

depend on Baird’s interpretation that, by telling Killian to keep the bedroom door

closed to keep the dog out, he was restricting her access to both the bedroom and the

computer that was in it. Based on Killian’s and Baird’s testimony and the trial court’s

determination of Killian’s credibility, we reiterate that these findings are supported by

the evidence.6

        If a defendant challenges the admissibility of evidence under article 38.23(a) on

the ground it was wrongfully obtained by a private person in a private capacity, the

defendant must establish that the private person obtained that evidence in violation of

law. Mayfield v. State, 124 S.W.3d 377, 378 (Tex. App.—Dallas 2003, pet. ref’d). Baird

challenges the trial court’s conclusions that, in discovering the evidence on Baird’s

computer, Killian did not commit any criminal offense and specifically did not commit

the offenses of criminal trespass or breach of computer security. A common element of

both of these offenses is the absence of effective consent. See TEX. PENAL CODE ANN. §

30.05(a); id. § 33.02(a).   The trial court concluded that Killian had Baird’s effective

consent to access his bedroom and computer.

        Consent means assent in fact, whether express or apparent. TEX. PENAL CODE

ANN. § 1.07(a)(11) (West Supp. 2011). Consent is not effective if: (A) induced by force,

threat, or fraud; (B) given by a person the actor knows is not legally authorized to act

for the owner; (C) given by a person who by reason of youth, mental disease or defect,



6Baird complains of two other findings, but because we agree with his assertion that they are
“meaningless to the controversy at hand,” we need not address them.

Baird v. State                                                                         Page 7
or intoxication is known by the actor to be unable to make reasonable decisions; or (D)

given solely to detect the commission of an offense. Id. § 1.07(a)(19).

        Baird maintains that these conclusions are erroneous because they are based on

the above-discussed allegedly faulty findings, which we have upheld. And while we

agree that the evidence shows that Baird did not give his express consent to Killian to

access his bedroom and computer, the evidence supports a finding of apparent, and

thus effective, consent, as discussed above. Because these conclusions are supported by

the evidence, the trial court did not err in concluding that Killian did not commit the

offenses of criminal trespass or breach of computer security because she had Baird’s

effective consent.7 The trial court did not err in denying Baird’s motion to suppress.

We overrule issue one.

                                        Punishment Evidence

        Baird’s second issue complains of the admission of evidence in the punishment

hearing, which was before the trial court.8                   The State offered evidence of adult

pornographic material obtained from Baird’s computer, including Baird’s online chats

of a sexual nature. The trial court overruled Baird’s objections that the use of such



7 Baird also complains of the trial court’s conclusion that Baird had no reasonable expectation of privacy
in the contents of his computer. See Granados v. State, 85 S.W.3d 217, 222-23 (Tex. Crim. App. 2002)
(accused has standing to contest search under Fourth Amendment only if he had legitimate expectation
of privacy in place that government officials or agents invaded). We need not address this issue because
the Fourth Amendment is not implicated with a private actor like Killian. See Brackens v. State, 312 S.W.3d
831, 837 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d); see also U.S. v. Jacobsen, 466 U.S. 109, 117-18, 104
S.Ct. 1652, 1658-59, 80 L.Ed.2d 85 (1984).

8 For purposes of Rule of Appellate Procedure 25.2(a)(2), this case is a plea-bargain case—a charge
bargain. See Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003); TEX. R. APP. P. 25.2(a)(2); see also
Kennedy v. State, 297 S.W.3d 338, 341-42 (Tex. Crim. App. 2009). The trial court permitted Baird to appeal
this issue. See TEX. R. APP. P. 25.2(a)(2)(B).

Baird v. State                                                                                         Page 8
evidence violated his due-process rights under Lawrence v. Texas, 539 U.S. 558, 123 S.Ct.

2472, 156 L.Ed.2d 508 (2003). The trial court also overruled the same objections to

questions to Baird on cross-examination about his seeking out adult sexual partners on

the internet for consensual homosexual encounters.

        We review a trial court’s ruling on the admissibility of evidence for abuse of

discretion. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). “Under an

abuse of discretion standard, an appellate court should not disturb the trial court’s

decision if the ruling was within the zone of reasonable disagreement.” Bigon v. State,

252 S.W.3d 360, 367 (Tex. Crim. App. 2008).

        In its opening statement, the State’s prosecutor explained its reasons for offering

the evidence at issue:

               The only thing that I think will be an issue for the Court or an issue
        for [defense counsel] is that while we want to give the Court as full a
        picture as we can of both the child pornography possessed by the
        Defendant, we also want to give the Court pursuant to what we normally
        do in the punishment phase as full a picture of the Defendant as we can.

              There will be a couple of exhibits that will be offered to show the
        Defendant, photographs that were taken from the Defendant’s computer
        of himself in, I think, what can be charitably described as deviant sexual
        contact involving bondage, sadomasochism, that sort of thing.

               I do want to make it clear that we are not offering any evidence for
        the purpose of trying to bias the Court or any person against this
        Defendant because he may or may not be gay. We are only attempting to
        give the Court a full picture of this Defendant’s sexual proclivities, the
        extent to which he will go to indulge in those sexual proclivities so the
        Court can make, I think, a just evaluation of basically redeemability,
        danger to the community and to ultimately provide a just sentence.




Baird v. State                                                                          Page 9
        The State then offered the following specific evidence over Baird’s objections:

photographs of Baird in bondage and sadomasochistic poses similar to poses of

children in Baird’s child pornography photographs; photographs of nude young men

engaging in sexual conduct in camping situations; Baird’s nonsexual photographs of

actual boy scouts on camping trips (Baird was a scout leader); internet chat sessions

regarding sexual activity, including wearing sexual devices, and meeting for sex. None

of this evidence pertained to any images or information of Baird having sexual contact

with a child.

        Baird’s second issue specifically asserts that the trial court abused its discretion

by overruling his objections to the admissibility of constitutionally protected conduct

offered by the State as punishment evidence. The gist of Baird’s argument is that

evidence of constitutionally protected homosexual conduct was not proper punishment

evidence, was offered by the State “solely” to impermissibly obtain a harsher

punishment, and could not play a part in the trial court’s sentencing decision.

        Section 3(a) of Article 37.07 of the Code of Criminal Procedure grants trial courts

broad discretion to admit evidence during the punishment phase.               The relevant

statutory language is:

        [E]vidence may be offered by the state and the defendant as to any matter
        the court deems relevant to sentencing, including but not limited to the
        prior criminal record of the defendant, his general reputation, his
        character, an opinion regarding his character, the circumstances of the
        offense for which he is being tried, and, notwithstanding Rules 404 and
        405, Texas Rules of Evidence, any other evidence of an extraneous crime
        or bad act that is shown beyond a reasonable doubt by evidence to have
        been committed by the defendant or for which he could be held criminally


Baird v. State                                                                       Page 10
        responsible, regardless of whether he has previously been charged with or
        finally convicted of the crime or act.

TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a) (West Supp. 2011). “[T]he admissibility of

evidence at the punishment phase of a non-capital felony offense” trial “is” really “a

function of policy rather than relevance.” Rodriguez v. State, 203 S.W.3d 837, 842 (Tex.

Crim. App. 2006); accord Miller-El v. State, 782 S.W.2d 892, 894-95 (Tex. Crim. App.

1990). “Evidence is ‘relevant to sentencing,’ within the meaning of” Article 37.07,

Section 3(a), “if the evidence is ‘helpful to the jury in determining the appropriate

sentence for a particular defendant in a particular case.’” McGee v. State, 233 S.W.3d

315, 318 (Tex. Crim. App. 2007) (quoting Rodriguez, 203 S.W.3d at 842). Punishment

evidence need not be evidence of an illegal act. See Cox v. State, 931 S.W.2d 349, 357

(Tex. App.—Fort Worth 1996), pet. dism’d, improvidently granted, 951 S.W.2d 5 (Tex.

Crim. App. 1997); see also Whittle v. State, No. 02-03-00125-CR, 2004 WL 102346, at *1

(Tex. App.—Fort Worth Jan. 22, 2004, pet. ref’d) (mem. op., not designated for

publication).

        Baird’s complaint is grounded not on the evidence’s lack of relevance to

punishment, but on the alleged impermissible burden by the State on his

constitutionally protected sexual conduct. However, the Constitution is not a per se

barrier to the admission of evidence merely because the evidence involves conduct that

is constitutionally protected. See Davis v. State, 329 S.W.3d 798, 805 (Tex. Crim. App.

2010) (“However, the Constitution does not erect a per se barrier to the admission of

evidence concerning one's beliefs and associations at sentencing merely because those


Baird v. State                                                                      Page 11
beliefs and associations are protected by the First Amendment.”), cert. denied, 132 S.Ct.

128 (2011); see also Dawson Delaware, 503 U.S. 159, 165, 112 S.Ct. 1093, 1097, 117 L.Ed.2d

309 (1992); Mason v. State, 905 S.W.2d 570, 576 (Tex. Crim. App. 1995); Woodward v. State,

170 S.W.3d 726, 729 (Tex. App.—Waco 2005, pet. ref’d).9                  Such evidence may be

admissible if it is shown to be relevant to the issues involved in the case. Davis, 329

S.W.3d at 805; Mason, 905 S.W.2d at 576-77.

        The State argues that this evidence was relevant to Baird’s punishment,

including his suitability for community supervision, by first pointing out that the

evidence, other than Baird’s camping photographs of scouts, meets the Penal Code’s

description of “sexual conduct:”             “sexual contact, actual or simulated sexual

intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-

masochistic abuse, or lewd exhibition of the genitals, the anus, … .” TEX. PENAL CODE

ANN. § 43.25(a)(2) (West 2011); id. § 43.26(b)(2) (West Supp. 2011).

        From that, the State argues that Baird’s photographs were evidence that his

“interests extended far beyond electronic voyeurism” and “showed that he maintained

an active sexual appetite, exhibiting unsafe sexual practices with strangers, creating

photos to mirror poses with the depicted victims, 10 and evincing a continuing fixation

[on] a variety of sexual activities.” Accordingly, the State concludes, this evidence was

relevant to the assessment of an appropriate punishment for the offenses of possession


9We see no reason why the reasoning of these cases, which involve First Amendments rights, should not
apply to this case. See Davis, 329 S.W.3d at 805 n.4.

10A State’s witness testified that Baird had pornographic photographs of children in bondage and
sadomasochistic positions and photographs of himself in similar poses.

Baird v. State                                                                               Page 12
of child pornography, including whether the trial court believed Baird’s “protestation

that he would never act on his continued attraction to underage boys” and Baird’s

suitability for community supervision (which Baird did seek).11

        Considering the evidence at issue and the State’s arguments for its admissibility,

we conclude that it was within the zone of reasonable disagreement for the trial court to

admit this evidence.12 See Davis, 329 S.W.3d at 805-06; see also Whittle, 2004 WL 102346,

at *1 (in appeal of child pornography conviction, holding trial court did not abuse its

discretion in admitting, during punishment, evidence of cartoons depicting child

pornography that were not illegal). Issue two is overruled.

        Having overruled both issues, we affirm the trial court’s judgment.




                                                         REX D. DAVIS
                                                         Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed January 11, 2012
Publish
[CR25]



11Baird admitted that he had a sexual attraction to young boys, said he had been receiving professional
help and had made some progress, and said he would continue with that if placed on community
supervision.

12In one of the online chats, Baird wrote that his sexual urge at that particular time was a “ticking time
bomb.” In announcing his sentence, the trial judge referenced this chat and his concern for that bomb
“from going off and damaging some child.” This piece of evidence and its use by the trial judge in
sentencing illustrate its relevance. See Davis, 329 S.W.3d at 805 (evidence of constitutionally protected
conduct may be admissible if it shown to be relevant to issues involved in case).

Baird v. State                                                                                    Page 13
