                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-09-00147-CR

KEVIN WAYNE ANDERS,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                          From the 13th District Court
                            Navarro County, Texas
                           Trial Court No. 31700-CR


                         MEMORANDUM OPINION


      A jury convicted Kevin Wayne Anders of ten counts of possession of child

pornography. The court assessed his punishment at ten years’ imprisonment on each

count and ordered the sentences to run consecutively. Anders contends in two issues

that the evidence is legally and factually insufficient to prove he knowingly possessed

the images on his computer hard drive. We will affirm.

      During the investigation of another offense, Navarro County Sheriff’s deputies

found papers on a desk in Anders’ home which contained references to websites
featuring child pornography. Deputies seized a computer from the home. A forensic

analysis revealed 180 images of child pornography on the hard drive. Prosecutors

identified ten of these images (some of which were found in more than one location on

the hard drive) which served as the basis for the ten-count indictment.

                                   Standard of Review

        Anders contends in his first and second issues that the evidence is legally and

factually insufficient.

        For a claim of legal insufficiency, we view all of the evidence in a light most

favorable to the verdict and determine whether any rational trier of fact could have

found the essential element beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Sells v. State, 121 S.W.3d 748, 753-54

(Tex. Crim. App. 2003); Johnson v. State, 271 S.W.3d 756, 758 (Tex. App.—Waco 2008,

pet. ref’d).

        Regarding Anders’s factual-insufficiency complaint, the Court of Criminal

Appeals has recently held that “the Jackson v. Virginia standard is the only standard that

a reviewing court should apply in determining whether the evidence is sufficient.”

Brooks v. State, No. PD-210-09, 2010 WL 3894613, at *14 (Tex. Crim. App. Oct. 6, 2010).

Thus, we overrule Anders’s second issue.

                                       Possession

        Anders first contends that the evidence is legally insufficient because he was not

the only person with access to the computer. Specifically, he argues that (1) the State

failed to affirmatively link him to the unlawful images found on the hard drive and (2)


Anders v. State                                                                     Page 2
the State “failed to complete the chain of custody to the computer” before it was

subjected to forensic analysis.     We construe these contentions collectively as an

assertion that the evidence is legally insufficient to prove that Anders is the person who

possessed the unlawful images.

        Beginning with Anders’s chain-of-custody complaint, he failed to object to the

admissibility of the hard drive or any of the individual images on this basis. Thus, he

has failed to preserve an appellate complaint regarding the chain of custody. See TEX. R.

APP. P. 33.1(a)(1); Simmons v. State, 100 S.W.3d 484, 492 (Tex. App.—Texarkana 2003,

pet. ref’d). Also, in the absence of affirmative evidence of tampering or contamination,

any gaps or minor breaches in the chain of custody affect the weight to be given the

evidence, not its admissibility. See Dossett v. State, 216 S.W.3d 7, 17 (Tex. App.—San

Antonio 2006, pet. ref’d); Martinez v. State, 186 S.W.3d 59, 62 (Tex. App.—Houston [1st

Dist.] 2005, pet. ref’d). Here, there is no evidence of tampering or contamination.

        The “so-called ‘affirmative links’ rule” is not “an independent test of legal

sufficiency.” See Evans v. State, 202 S.W.3d 158, 161 n.9 (Tex. Crim. App. 2006); Carroll v.

State, 266 S.W.3d 1, 2 (Tex. App.—Waco 2008, pet. ref’d). Rather, “we examine the

record for direct or circumstantial evidence which, when viewed in the light most

favorable to the verdict, established that [Anders] exercised control, management, or

care over the contraband and knew that it was contraband.” Carroll, 266 S.W.3d at 2; see

Evans, 202 S.W.3d at 161-62; see also TEX. PEN. CODE ANN. § 1.07(a)(39) (Vernon Supp.

2010) (“’Possession’ means actual care, custody, control, or management.”).




Anders v. State                                                                       Page 3
         Detective Hank Bailey testified that the computer was located on a desk in the

main living area on the first floor of the house. He found two crumpled pieces of paper

in one of the desk drawers which were printouts listing numerous pornographic

websites, including references to “underage” and “preteen illegal” child pornography.

He also found another sheet of paper with several handwritten URL’s for websites

including one which appeared to involve child pornography.          Anders’s girlfriend

testified that this was his handwriting. His fingerprint was also found on this sheet of

paper.

         Bailey seized the computer, transported it to the Navarro County Sheriff’s

Department, and delivered it to Lieutenant James McCay the evidence custodian.

McCay took the computer to Waco and delivered it to Chris Kingrey, a forensic analyst.

Kingrey testified that the computer had two user-created accounts: “Owner” and

“Kids.” The designated username for the “Owner” account was Kevin. The “Kids”

account had parental controls which restricted access to websites deemed appropriate

for children 12 or younger. If someone using this restricted account tried to access

inappropriate material, access would be blocked and an e-mail would be sent to the

Owner account via an AOL account named kevinanderstx.            Kingrey testified that

someone using this AOL account ran an internet search using the term “preteen child

porn.”

         When the computer was seized, Anders shared a home with his girlfriend and

her three daughters. Each of them used the computer at different times. Anders’s

girlfriend denied ever viewing child pornography on the computer. She testified that


Anders v. State                                                                   Page 4
Anders changed the password for internet access at the beginning of the summer of

2007 so that only he could access the internet. Most of the images of child pornography

on the computer hard drive were accessed in June 2007. She testified that her daughters

were supervised when they were on the computer and that they only used the

computer during the day or early evening. The images which were accessed in June

2007 were accessed later at night, when several witnesses testified Anders was usually

on the computer.

        Viewed in the light most favorable to the verdict, Detective Bailey found a piece

of paper with URL’s handwritten by Anders for websites featuring child pornography

and another sheet with a printed listing of similar information. An internet search for

“preteen child porn” was run with Anders’s AOL account. Anders alone had internet

access at the time the unlawful images were viewed and modified. This evidence is

legally sufficient to prove Anders is the person who possessed the unlawful images

found on the hard drive. See Krause v. State, 243 S.W.3d 95, 111-12 (Tex. App.—Houston

[1st Dist.] 2007, pet. ref’d).

                                       Knowledge

        Anders also claims that the evidence is legally insufficient because the State

failed to prove that he knowingly possessed the images. See TEX. PEN. CODE ANN. §

43.26(a)(1) (Vernon 2003) (defining offense as “knowingly or intentionally” possessing

child pornography).

        Kingrey found approximately 180 images of child pornography at various

locations in the hard drive. The images corresponding to Counts 1 and 2 were found in


Anders v. State                                                                    Page 5
the “My Videos” folder for the Owner account in the thumbs.db file. The images

corresponding to Counts 4, 6, 9 and 10 were found in the Topspeed.cache.db file. The

images corresponding to Counts 2, 3, 4, 5, 7 and 8 were found in free space on the

drive.1 Kingrey testified that each of these images had been accessed by a user of the

computer and modified, saved or “deleted.”2 He also testified that these images were

presently at locations on the hard drive which most people would be unaware existed

and would be unable to access.

        Viewing the evidence in the light most favorable to the verdict, Kingrey testified

that each of the ten images which formed the basis of the State’s prosecution had been

viewed by someone on the computer and modified or deleted. Based on the account

ownership and Anders’s personal and exclusive access to the computer and the internet

in particular, a rational trier of fact could have found beyond a reasonable doubt that

Anders is the one who viewed these unlawful images. In addition, although the images

could not have been accessed by “most people” at the time of trial, a rational trier of fact

could have found based on Kingrey’s testimony that the images had been viewed by

Anders but later modified or deleted so that they were no longer accessible to the

average computer user.




1
         Copies of the images corresponding to Counts 2 and 4 were found both in the files mentioned
and in free space on the hard drive.

2
        Kingrey explained that when a computer file is “deleted,” the file moves to space that is not
allocated to an active file on the hard drive. See Lancaster v. State, 319 S.W.3d 168, 173 n.5 (Tex. App.—
Waco 2010, pet. ref’d).


Anders v. State                                                                                    Page 6
        Thus, we conclude that the evidence is legally sufficient to prove Anders

knowingly possessed the unlawful images. See Gant v. State, 278 S.W.3d 836, 839-42 (Tex.

App.—Houston [14th Dist.] 2009, no pet.).

        We overrule Anders’s first issue and affirm the judgment.



                                                      FELIPE REYNA
                                                      Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed November 24, 2010
Do not publish
[CRPM]




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