                            NUMBER 13-09-00175-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG


JASON WAYNE ROLLER,                                                          Appellant,

                                           v.

THE STATE OF TEXAS,                                                          Appellee.


                   On appeal from the 290th District Court
                         of Bexar County, Texas.


                        MEMORANDUM OPINION
              Before Justices Rodriguez, Benavides, and Vela
               Memorandum Opinion by Justice Benavides

      Appellant, Jason Wayne Roller, appeals from the trial court’s revocation of his

deferred adjudication community supervision. See TEX . CODE CRIM . PROC . ANN . art. 42.12

§§ 5(b), 23 (Vernon Supp. 2009). Roller’s community supervision was revoked based on

an allegation that he possessed pornographic material, in violation of the terms of his
community supervision. By two issues, Roller argues that (1) the trial court abused its

discretion by finding that Roller possessed pornographic material; and (2) the State

violated his right to a speedy trial by delaying prosecution of the alleged violation of Roller’s

community supervision. We affirm.

                                                I. BACKGROUND

       On September 30, 2005, Roller was charged by information with fraudulent use and

possession of identifying information. See TEX . PENAL CODE ANN . § 32.51 (Vernon Supp.

2009). The accompanying complaint alleged that on or about June 21, 2005, Roller

committed the offense by “posting on the internet without her permission the name and

photos of [A.H.] and causing said information to harm [A.H.] by causing unwanted

individuals to contact her and putting out to the public information meant to be kept

private.”1

       Roller pleaded “nolo contendere” and stipulated to the facts supporting the

information. The stipulated facts included the following: In 2005, Roller, who was A.H.’s

ex-boyfriend, created an internet profile on myspace.com in A.H.’s name and posted

explicit photographs of her that were taken during their relationship. Thereafter, A.H. was

contacted by several of her friends saying that Roller was having conversations with her

friends, posing as her, through the internet site. On November 9, 2005, the trial court

deferred adjudication of the offense and placed Roller on community supervision for three

years. During the period of community supervision, Roller was prohibited from possessing

“contraband in your home, vehicle, or on your person, including, but not limited to . . .

pornographic materials . . . .”


       1
           W e will refer to the com plainant in this case by her initials to protect her privacy.
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       Roller’s community supervision was set to expire on November 9, 2008. On

November 6, 2008, however, the State filed a motion to enter an adjudication of guilt and

to revoke Roller’s community supervision. The motion alleged that on November 17, 2006,

Roller possessed pornography in violation of the terms of his community supervision.

       On February 17, 2009, Roller filed a motion to dismiss for speedy trial violations.

The motion argued that the State unreasonably delayed in prosecuting the alleged violation

of Roller’s community supervision, impairing his right to defend against the allegation.

Specifically, Roller argued that the alleged violation occurred in November 2006 and was

based on Roller’s alleged posting of pictures on the Internet. Because of the delay, Roller

argued that he was unable to obtain information from AT&T Internet Services regarding the

location of the computer that transmitted the images, which would have proved the images

did not come from his computer. On February 26, 2009, the trial court held a hearing on

the State’s motion to adjudicate and on Roller’s speedy trial motion. Roller pleaded “not

true” to the alleged violations of his community supervision.

       The State called David Getrost, a criminal investigator for the Bexar County District

Attorney’s Office. Getrost testified that in September 2006, it came to his attention that

images of A.H. had been posted on a website called oneclickchicks.com. Getrost testified

that in order to access the oneclickchicks.com, a person must create a username, verify

that the person is over eighteen years of age, and provide the address to an active e-mail

account. At the time an account is created, the website sends an e-mail to the e-mail

address provided, and the user must access his e-mail account and click a link in the e-

mail to “activate” the account. The user then can browse and post pictures on the website.

       Getrost went to the website and printed the images that appeared. The State

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offered State’s Exhibit 1, which Getrost testified were “the pages of the web page that [he]

captured and printed out depicting when images were posted to this website.” State’s

Exhibit 1 shows postings on an internet forum on several dates in September 2006 by a

user named “stoneman77." On September 9, 2006, a posting states, “This is [A.H.] at 19,”

and includes ten pictures of A.H. in various positions either naked or wearing lingerie. On

September 17, 2006, another posting by stoneman77 titled, “More of my Ex-girlfriend,”

states, “These are the last ones I am going to post so let me know what you think.” The

pictures attached include four naked pictures of A.H. In one of the pictures, A.H. is

touching her vagina, apparently masturbating. When asked if it was “fair to say that

whoever—the person who uploads these photos has care, custody and control of these

photos on this website?,” Getrost responded, “Yes.”

       Getrost testified that he contacted a company called Cheshire Web, who owns the

website oneclickchicks.com. He provided Cheshire Web information as to the user name

on the web page to “ascertain any type of identifiers, IP addresses and so forth that they

would have along with dates and times these pictures were uploaded to that web server.”

Getrost testified that Cheshire Web informed him that the account for “stoneman77" was

created on September 8, 2006, using an e-mail address of “jwroller@yahoo.com.”

       Cheshire provided Getrost with a CD of pictures that were posted by stoneman77

on oneclickchicks.com. The photos were printed and admitted into evidence as State’s

Exhibit 9. Exhibit 9 includes, among others, sixteen pictures depicting A.H. in various

positions, either naked or wearing lingerie. One of the pictures shows her performing

fellatio on a man whose face is not shown.

       Getrost stated that he then subpoenaed records from Yahoo!. Yahoo! responded



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and informed Getrost that the e-mail account, jwroller@yahoo.com, was created on July

26, 2000 and that the full name used to create the account was “Mr. Patricia Benavides.”

Yahoo! provided a New Braunfels address with a New Braunfels telephone number,

showed that the account was active at that time, and provided a subscriber information

page. Getrost located and spoke to Patricia Benavides, who provided a statement.

Benavides informed Getrost that at one time, she had been Roller’s supervisor while

working at the attorney general’s office. She claimed to be unaware of the e-mail account.

       Yahoo!’s records were admitted into evidence as State’s Exhibit 5. As part of the

records, Yahoo! provided a “Login Tracker” that showed that the user “jwroller” accessed

the e-mail account on several dates in May and June of 2007. The records also provided

an IP address. Getrost testified that he contacted AT&T in June of 2007, to attempt to

locate the computer that posted the images on oneclickchicks.com by tracking the IP

address, but AT&T responded that it no longer had the relevant records.

       Next, the State called Lee Swafford, who testified that he is a Secret Service agent.

He administered a polygraph test to Roller on January 30, 2009, with Roller and his

attorney’s consent. Swafford stated that Roller told him that jwroller@yahoo.com was his

e-mail account.

       Finally, A.H. testified. A.H. stated that before she got married in 2007, she told her

future husband about her history with Roller and that he had posted pictures of her on the

Internet. Her husband was concerned and placed a “Google alert,” which she described

as follows:

       And so to kind of monitor, I guess, if any other activity was going on, he did
       what they call a Google alert where they send—because of my unique
       spelling in my name and my last name, he would do a Google alert where if



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       my name ever popped up or anything affiliated with it, it would come through
       and pop up on our e-mail account. And one day he was checking his e-mail
       and this evidence popped up, this particular website.

A.H. stated that her husband went to the website, but he had to create an account to view

the pictures. A.H. said that “[a]fter seeing the first picture, he immediately closed it and

called [her].”

       A.H. testified that the pictures in State’s Exhibit 9 were the same that she saw on

oneclickchicks.com. She further stated that some of the photos in State’s Exhibit 9 were

the same photos that served as the basis for Roller’s original charge for fraudulent use and

possession of identifying information. A.H. stated that one photo in State’s Exhibit 9,

however, was taken during a trip with Roller when the two were dating and was “one that

only he would have had.” She stated that this particular photo was never posted on

myspace.com, so it was not one that someone could have pulled off the internet. A.H.

testified that she was familiar with the e-mail account jwroller@yahoo.com and that she

had communicated with Roller through that e-mail account.

       The trial court denied Roller’s speedy trial motion, found that the allegations in the

motion to revoke were “true,” adjudicated Roller guilty of the original charge of fraudulent

use and possession of identifying information, and sentenced Roller to nine months’

imprisonment in the state jail. This appeal ensued.

                                  II. LEGAL SUFFICIENCY

       By his first issue, Roller argues that the trial court abused its discretion in granting

the motion to revoke his community supervision and adjudicating guilt because there was

no evidence showing: (1) that Roller “possessed” the photographs posted to

oneclickchicks.com; and (2) that the photographs constituted pornography. We disagree.



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A.       Standard of Review

         We review the trial court’s decision to revoke community supervision for abuse of

discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). The State must

prove a violation of the terms of community supervision by a preponderance of the

evidence. Id. The State meets its burden when the greater weight of the credible evidence

creates a reasonable belief that it is more probable than not that the condition of probation

has been violated. Id. at 763-64. We view the evidence in the light most favorable to the

trial court’s judgment. Davila v. State, 173 S.W.3d 195, 197 (Tex. App.–Corpus Christi

2005, no pet.). “When the standard of review is abuse of discretion, the record must

simply contain some evidence to support the decision made by the trial court.” Id.

B.       Possession

         First, Roller argues that there is no evidence in the record to show that he

possessed pornographic materials as that term is defined by the order granting community

supervision. The terms of Roller’s community supervision stated, “You shall not possess

any contraband in your home, vehicle, or on your person, including, but not limited

to . . . pornographic materials . . . .” Roller argues that this provision

         did not prohibit him from having access to pornographic material through an
         e-mail[-]linked internet site that contained what were shown to be pictures of
         [his] ex-girlfriend . . . . The State may have demonstrated that the appellant
         had access to the materials in dispute[, but] they wholly failed to demonstrate
         that he possessed them in a manner prohibited by the order of the trial court.

Neither party cites any case that interprets a provision such as this one, and we have not

located any.

         Merriam Webster dictionary defines the word “possession” as follows: “the act of

having     or   taking   into   control.”    See    Merriam-Webster       Online   Dictionary,



                                               7
http://www.merriam-webster.com/dictionary/possession (last visited June 21, 2010). The

Texas Penal Code likewise defines possession as “actual care, custody, control, or

management.” TEX . PENAL CODE ANN . § 1.07(39) (Vernon Supp. 2009).

       Getrost testified that a person with the username “stoneman77" posted the images

in State’s Exhibit 9 to the website oneclickchicks.com in September 2006. A.H. testified

that one of the photographs was taken by Roller during their relationship, that the photo

was in Roller’s exclusive possession, and that prior to the posting on oneclickchicks.com,

the picture was not available on the internet. That photo was posted along with other

photos to oneclickchicks.com by a user with an e-mail address admittedly owned by Roller.

When asked if it was “fair to say that whoever—the person who uploads these photos has

care, custody and control of these photos on this website?,” Getrost responded, “Yes.”

We hold that this testimony was sufficient to support the trial court’s finding that Roller

possessed, although in electronic format, these photos on his person at the time they were

uploaded to the internet. Accordingly, we overrule Roller’s argument.

C.     Pornography

       Second, Roller argues that the State did not demonstrate that the photographs were

pornographic. Specifically, Roller argues that the State was required to put on testimony

showing that (1) the average person, applying contemporary community standards, would

find that the work taken as a whole appeals to the prurient interest in sex; (2) the work

depicts or describes in a patently offensive way, sexual conduct as specifically defined; and

(3) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.




                                               8
See id. § 43.21(a)(1) (Vernon 2003).2 He argues that the State cannot satisfy this burden

by merely presenting the photos to the trial court without any other evidence to support a

finding that the materials were pornographic. We disagree.

         Roller cites no authority for his argument that the State needed to offer anything

more than the photographs to show that they were pornographic in nature. In fact, “[i]n

cases involving hard-core pornography, the trier of fact needs no expert advice,” and the

alleged pornographic material itself can support a finding that the material is pornographic.

Rees v. State, 909 S.W.2d 264, 270 (Tex. App.–Austin 1995, pet. ref’d); Ho v. State, 856

S.W.2d 495, 500 (Tex. App.–Houston [1st Dist.] 1993, no pet.) (“[W]here the items charged

as obscene are introduced and admitted into evidence, the State is not required to

introduce testimony as affirmative evidence of community standards.”). As described

above, the photos show A.H. masturbating and performing fellatio on an unidentified man.

Thus, there was some evidence to support the trial court’s finding that the photos were



         2
             Section 43.21(a)(1) defines “obscene” m aterial as m aterial that:

         (A)        the average person, applying contem porary com m unity standards, would find that
                    taken as a whole appeals to the prurient interest in sex;

         (B)        depicts or describes:

                    (i)      patently offensive representations or descriptions of ultim ate sexual acts,
                             norm al or perverted, actual or sim ulated, including sexual intercourse,
                             sodom y, and sexual bestiality; or

                    (ii)     patently offensive representations or descriptions of m asturbation, excretory
                             functions, sadism , m asochism , lewd exhibition of the genitals, the m ale or
                             fem ale genitals in a state of sexual stim ulation or arousal, covered m ale
                             genitals in a discernibly turgid state or a device designed and m arketed as
                             useful prim arily for stim ulation of the hum an genital organs; and

         (C)        taken as a whole, lacks serious literary, artistic, political, and scientific value.

T EX . P EN AL C OD E A N N . § 43.21(a)(1) (Vernon 2003).



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pornographic. See Ho, 856 S.W.2d at 500. Roller’s first issue is overruled.

                                     III. SPEEDY TRIAL

       By his second issue, Roller argues that the trial court erred by denying his speedy-

trial motion. The State argues that in Texas, a speedy trial inquiry is triggered by an

unreasonable delay between the time of arrest and the time of formal accusation. Here,

the State argues, there was no unreasonable delay because the motion to revoke was filed

on November 6, 2008, and was heard on February 26, 2009. We agree with the State.

       In Martinez v. State, the Texas Court of Criminal Appeals addressed a situation

similar to the instant case. See generally 531 S.W.2d 343 (Tex. Crim. App. 1976). In that

case, on April 9, 1973, Martinez pleaded guilty to burglary and was placed on community

supervision for three years. Id. at 344. Martinez was convicted of DWI on September 4,

1973. Id. On January 16, 1975, the State filed a motion to revoke Martinez’s probation

based on the DWI conviction, and the trial court held a hearing on that motion one month

later. Id. at 345. On appeal, Martinez argued that he was denied the right to a speedy trial

because of the seventeen-month delay between the violation of his probation and the filing

of the motion to revoke. Id. The court of criminal appeals disagreed, holding that “an

accused's right to a speedy trial does not attach until he first becomes the accused.” Id.;

see also Cavazos v. State, No. 04-98-01054-CR, 2000 WL 124911, at *2 (Tex. App.–San

Antonio Feb. 2, 2000, no pet.) (not designated for publication) (“Because a defendant

becomes an ‘accused’ at the moment the motion to revoke probation is filed, the timetable

for speedy trial rights commences on that date.”).

       In this case, the delay between the motion to revoke and the hearing on that motion




                                            10
was less than four months. “The length of the delay is, to some extent, a triggering

mechanism, so that a speedy trial claim will not be heard until passage of a period of time

that is prima facie unreasonable under the circumstances.” See Shaw v. State, 177

S.W.3d 883, 889 (Tex. Crim. App. 2003). Generally, delay is not deemed unreasonable

until it approaches one year. Id. We hold that Roller has not shown an unreasonable

delay, and accordingly, we overrule his second issue. See id.

                                     IV. CONCLUSION

       Having overruled both of Roller’s issues, the trial court’s judgment is affirmed.



                                                        __________________________
                                                        GINA M. BENAVIDES,
                                                        Justice

Do not publish.
See TEX . R. APP. P. 47.2(b)

Delivered and filed the
15th day of July, 2010.




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