                                     In The
                                Court of Appeals
                       Seventh District of Texas at Amarillo
                                ________________________

                                     No. 07-12-00547-CR
                                ________________________

                            RYAN LANE MESTAS, APPELLANT

                                               V.

                            THE STATE OF TEXAS, APPELLEE



                            On Appeal from the 100th District Court
                                      Hall County, Texas
                  Trial Court No. 3598; Honorable Stuart M. Messer, Presiding


                                         August 5, 2014

                              MEMORANDUM OPINION
                    Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


       Appellant, Ryan Lane Mestas, was convicted by a jury of ten counts of

possession of child pornography.1 By a separate judgment as to each count, he was

assessed a sentence of ten years confinement and a fine of $5,000. The trial court

ordered that the judgments pertaining to counts two through ten be served concurrent to


       1
         See TEX. PENAL CODE ANN. § 43.26(a) (West Supp. 2014). An offense under this section is a
third degree felony. Id. at § 43.26(d).
one another and consecutive to the judgment pertaining to count one.                           Appellant

contends the trial court abused its discretion by (1) denying Appellant’s motion to

suppress evidence; (2) permitting the State to introduce evidence that Appellant’s

semen was found on two articles of children’s clothing; and (3) the evidence is legally

and (4) factually insufficient to support his convictions. We affirm.


                                             BACKGROUND


        In July 2012, an amended indictment charged Appellant with committing four

counts of possession of child pornography on or about March 10, 2011, and six counts

on or about July 14, 2011.               Each count alleged the possession of a specific

pornographic image, identified as a JPEG image, contained on a flash drive.2 More

specifically, the indictment alleged Appellant possessed ten images of children

engaging in sexual intercourse, lewd exhibition of genitals, deviate sexual intercourse or

sexual contact.


        MOTION TO SUPPRESS


        Appellant’s wife, Angela Mestas, originally discovered what she believed was

child pornography on a black Motorola cellphone belonging to the couple. She then

searched their community residence where she located additional items she suspected

contained similar images. On August 18, 2011, Angela delivered those devices to Hall

County Sheriff, Timothy Wiginton, who then transferred them to Texas Ranger, John

Foster. On August 19th, Foster obtained Angela’s voluntary consent to forensically
        2
         In the world of digital photography, JPEG is a standard method of storing photographic images
where the individual files are customarily identified by the .jpg suffix. At trial the flash drive was also
described as a “USB thumb drive.”


                                                    2
search the devices for suspected child pornography. During this period of time, Angela

also happened to be a Justice of the Peace for Hall County.


      During its investigation, the State discovered that pornographic images were

stored as electronic/digital data on eight different electronic devices: an Apevia

computer, a Mac laptop, a white iPod, four USB thumb drives and the black Motorola

cellphone. In June 2012, Appellant filed a motion to suppress evidence obtained by the

State alleging that “[t]he actions of the Justice of the Peace Angela Mestas violated the

constitutional and statutory rights of [Appellant] under the Fourth, Fifth, Sixth and

Fourteenth Amendments to the United States Constitution, Article I, Section 9 of the

Texas Constitution, and under Article 38.23 of the Texas Code of Criminal Procedure.”

At the conclusion of a hearing on Appellant’s motion to suppress, the trial court denied

the motion, finding Angela resided at the residence where the devices were found, had

access to each device, had an ownership interest in the devices under community

property principles, and consented to the forensic search of the devices by law

enforcement officials.


      THE TRIAL


      In November 2012, the trial court held a two-day jury trial.         At the trial’s

conclusion, the jury returned a verdict of guilty on all ten counts of the amended

indictment and sentenced Appellant to ten years confinement and a $5,000 fine for each

count. The trial court ordered that the judgments pertaining to counts two through ten

be served concurrent to one another and consecutive to the judgment pertaining to

count one. This appeal followed.


                                            3
                                        DISCUSSION


       POINT OF ERROR ONE—MOTION TO SUPPRESS


       Appellant asserts the trial court erred by not suppressing certain electronic/digital

evidence seized because his wife, acting as an agent for the State, conducted an illegal

warrantless search of his computer files. In reviewing the trial court’s ruling on a motion

to suppress, we apply a bifurcated standard of review. Carmouche v. State, 10 S.W.3d

323, 327 (Tex. Crim. App. 2000).          We defer to the trial court’s determination of

historical facts that depend on credibility, while we review de novo the trial court’s

application of the law to those facts. Id. See St. George v. State, 237 S.W.3d 720, 725

(Tex. Crim. App. 2007) (finding the trial judge to be the “sole trier of fact and judge of

credibility of the witnesses and the weight to be given to their testimony”). An appellate

court should sustain the trial court’s ruling if it is reasonably supported by the record and

correct on any theory of law applicable to the case. Laney v. State, 117 S.W.3d 854,

857 (Tex. Crim. App. 2003) (citing Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim.

App. 2002)).


       Except to assert Angela searched the contents of Appellant’s computer files

while acting as an agent of the State through her capacity as Justice of the Peace,

Appellant produced no evidence to show she was, in fact, acting in any capacity other

than his wife. The State’s evidence, on the other hand, showed the couple had been

married for nine years, the electronic/digital devices were purchased or acquired during

marriage, they were located in the community residence, Angela had used some or all

of the devices in their home, the cellphone was on Angela’s account, Angela had


                                             4
access to and drove the vehicle where one of the devices was found, at the time the

devices were seized there was a restraining order in effect granting Angela possession

of the devices until their divorce was final, and Angela signed a consent-to-search form

for all the devices.


       Viewing the evidence in the light most favorable to the trial court’s ruling, at the

time of the search and seizure, Angela was Appellant’s wife with unlimited access to the

devices located at the couple’s residence. As such, Appellant assumed the risk that his

wife might consent to a search that would lead to discovery of the contents of those

devices. See Hubert v. State, 312 S.W.3d 554, 560-61 (Tex. Crim. App. 2010). A third

party may consent to a search to the detriment of another’s privacy interest if the third

party has actual authority over the place or thing to be searched, or if the third party

shares common authority over the premises or property with the non-consenting

person’s interest. Id. at 560. See Kohler v. State, No. 01-05-00625-CR, 2012 Tex. App.

LEXIS 3888, at *2-6 (Tex. App.—Houston [1st Dist.] May 17, 2012, no pet.) (mem. op.,

not designated for publication).


       Furthermore, the trial court could reasonably have found Angela was not acting

as an agent of the State under the facts of this case. A person who is not an officer or

agent of an officer does not violate the exclusionary rule by taking property that is

evidence of a crime, without the effective consent of the owner and with the intent to

turn the property over to an agent for the State. See Jenschke v. State, 147 S.W.3d

398, 402 (Tex. Crim. App. 2004). Accordingly, we hold the trial court did not err in

denying Appellant’s motion to suppress. Appellant’s first point of error is overruled.



                                             5
       POINT OF ERROR TWO—RULE 403 OF THE TEXAS RULES OF EVIDENCE


       Appellant next asserts the trial court abused its discretion by admitting evidence

that his DNA matched semen on two articles of children’s clothing. He contends the

probative value of that evidence was substantially outweighed by its prejudicial effect.

We review a trial court’s decision to admit or exclude evidence for an abuse of

discretion. Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006). A trial court

abuses its discretion only if its decision is “so clearly wrong as to lie outside the zone

within which reasonable people might disagree.” Taylor v. State, 268 S.W.3d 571, 579

(Tex. Crim. App. 2008). A trial court’s decision not to exclude evidence, i.e., finding the

probative value of the evidence is not outweighed by the danger of unfair prejudice, is

entitled to deference. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).


       Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of undue prejudice, confusion of the issues,

misleading the jury, considerations of undue delay, or the needless presentation of

cumulative evidence. TEX. R. EVID. 403. “Unfair prejudice” refers to more than the fact

that the evidence has an adverse or detrimental effect on the defendant’s case. Casey

v. State, 215 S.W.3d 870, 883 (Tex. Crim. App. 2007). “Virtually all evidence that a

party offers will be prejudicial to the opponent’s case, or the party would not offer it.” Id.

Instead, “unfair prejudice” refers to “an undue tendency to suggest a decision on an

improper basis, commonly an emotional one.” Id. (emphasis added).


       At trial, Appellant asserted in his opening statement and through cross-

examination of witnesses that Angela downloaded the child pornography onto the


                                              6
devices for either personal or nefarious purposes. Specifically, Appellant contended the

charges in the indictment were trumped up by Angela in order to obtain an advantage in

their divorce proceedings.    Thus, there is at least a reasonable argument that the

objected to evidence was admissible for the purpose of rebutting Appellant’s defensive

theory. See Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008).


      Furthermore, much of Appellant’s argument regarding unfair prejudice simply

asserts the evidence was inherently prejudicial. Failing to establish that the probative

value of the evidence was substantially outweighed by the prejudicial effect of the

evidence, Appellant failed to establish the evidence was subject to exclusion under Rule

403. See Segundo v. State, 270 S.W.3d 79, 87-88 (Tex. Crim. App. 2008). See also

Wyatt v. State, 23 S.W.3d 18, 26 (Tex. Crim. App. 2000) (“[a]ny evidence presented by

the State is generally prejudicial to the defendant”). The trial court, therefore, did not

abuse its discretion by deciding the evidence in question was admissible. See Bass,

270 S.W.3d at 563-64. Appellant’s second point of error is overruled.


      POINTS OF ERROR THREE AND FOUR—SUFFICIENCY OF THE EVIDENCE


      Appellant finally asserts the State’s evidence was both legally and factually

insufficient to establish he intentionally or knowingly possessed child pornography. In

evaluating the sufficiency of evidence to support a conviction, the only standard a

reviewing court should apply is the standard set forth in Jackson v. Virginia, 443 U.S.

307, 33 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Brooks v. State, 323 S.W.3d 893, 912

(Tex. Crim. App. 2010).      In making that assessment, this Court considers all the

evidence in the light most favorable to the verdict and determines whether, based on


                                            7
that evidence and reasonable inferences to be drawn therefrom, a rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt. See

Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). When the record supports

conflicting inferences, a reviewing court must “presume that the factfinder resolved the

conflicts in favor of the prosecution” and defer to that determination. Id.


       The sufficiency standard of review is the same for both direct and circumstantial

evidence. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). For the evidence

to be sufficient, the State need not disprove all reasonable alternative hypotheses that

are inconsistent with the defendant’s guilt. Wise, 364 S.W.3d at 903 (citing Geesa v.

State, 820 S.W.2d 154, 156 (Tex. Crim. App. 1991)). Rather, a court considers only

whether the inferences necessary to establish guilt are reasonable based upon the

cumulative force of all the evidence when considered in the light most favorable to the

verdict. Wise, 364 S.W.3d at 903 (citing Hooper, 214 S.W.3d at 13).


       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 ANN. § 43.26(a) (West Supp. 2014).            Visual material includes any physical

medium that allows an image to be displayed on a computer and any image transmitted

to a computer by telephone line, cable, satellite transmission, or other method. Id. at §

43.26(b)(3).   “Sexual conduct” includes sexual contact, actual or simulated sexual

intercourse, deviate sexual intercourse, and lewd exhibition of the genitals, the anus, or



                                             8
any portion of the female breast below the top of the areola. Id. at § 43.25(a)(2) (West

2011).


         A person possesses a thing when he exercises actual care, custody, control or

management over the thing. Id. at § 1.07(a)(39) (West Supp. 2014). A person acts

intentionally when it is his conscious objective or desire to engage in conduct or to

cause the result. Id. at § 6.03(a) (West 2011). A person acts knowingly when he is

aware of the nature of his conduct or that the circumstances exist or when he is aware

that his conduct is reasonably certain to cause the result. Id. at 6.03(b). Proof of a

culpable mental state almost invariably depends on circumstantial evidence, see

Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991), and a trier of fact can

infer knowledge from all the circumstances, including the acts, conduct, and remarks of

the accused. See Dillon v. State, 574 S.W.2d 92, 94-95 (Tex. Crim. App. 1978).


         Here, Appellant does not assert that he did not have care, custody, control or

management of the devices found to contain pornographic images, or even whether the

images stored thereon were child pornography. Instead, he contends the State failed to

prove he knowingly or intentionally possessed child pornography because his wife’s

testimony that she was unaware of the child pornography on the devices was not to be

believed, i.e., she had a vested interest in his incarceration due to the pending divorce

proceedings. He further contends there is insufficient evidence to establish that he

possessed the pornography because Foster agreed on cross-examination that,

hypothetically, if Appellant had delivered the devices to him and claimed they belonged

to Angela, Foster could have arrested his wife. Appellant’s first contention goes to the

weight and credibility of Angela’s testimony which, judging from the verdict, the jury

                                            9
found to be credible. Wise, 364 S.W.3d at 903 (“The factfinder exclusively determines

the weight and credibility of evidence.”). Regarding Appellant’s second assertion, the

State need not disprove all reasonable alternative hypotheses that are inconsistent with

the defendant’s guilt for its evidence to be sufficient. Id.


       The State’s evidence established the circumstances under which Angela

discovered the devices found to contain child pornography, where she found the items

and when she found them.         Evidence established the Mac laptop was discovered

between the mattresses under Appellant’s side of the bed and a USB thumb drive

containing pictures of underage girls in sexual situations was found in a Saturn vehicle

(hidden in a compartment where the sunroof motor had been removed) belonging to the

couple. Angela testified Appellant usually kept the Saturn locked and hid the keys in his

pickup. Also, Sheriff Wiginton testified that he observed Appellant searching the Saturn

in the area where the USB thumb drive had been discovered and that he became angry

when he discovered the USB thumb drive was no longer there.           Testimony further

established the Motorola cellphone which contained a pornographic image was found in

the pickup Appellant usually drove.


       Furthermore, Angela testified she did not search for or download any

pornographic images, nor did she create or use the screen name “BillyBob,” which she

found on the Apevia computer.          She testified that Appellant admitted to her that

“BillyBob” was a temporary email address he had used. Angela also testified that while

Appellant was proficient at using computers, she was unfamiliar with programs loaded

on the Mac laptop which Lannie Hilboldt, a forensic computer expert for the Attorney

General’s office, testified were commonly used by persons involved in child

                                              10
pornography. In his testimony, Hilboldt identified child pornography images on two of

the USB thumb drives, one of which had been hidden in the Saturn.              He found

pornographic images that had been on the Mac laptop were transferred to the thumb

drive. He also opined that forensic evidence from the laptop indicated that the person

downloading the child pornography would have been aware of what he was

downloading and that the “BillyBob” user account found on the Apevia computer utilized

search terms designed to locate child pornography on the Web. Electronic images of

Appellant’s penis were also recovered and articles of children’s clothing were found with

Appellant’s semen on them. Hilboldt further opined that men, not women, typically

collect child pornography.


      Viewing all the evidence in the light most favorable to the jury’s verdict, the jury

could have reasonably rejected Appellant’s claim that the images were downloaded by

his former wife and could have instead determined that Appellant possessed the

pornographic images of children found on the devices. That child pornography images

were deleted and/or moved from the laptop to the USB thumb drives and vice versa is

further evidence tending to show Appellant possessed or controlled the child

pornography.   See Assousa v. State, No. 05-08-00007-CR, 2009 Tex. App. LEXIS

3500, at *10-11 (Tex. App.—Dallas May 21, 2009, pet ref’d) (mem. op., not designated

for publication). See also Krause v. State, 243 S.W.3d 95, 111-12 (Tex. App.—Houston

2007, pet. ref’d); Savage v. State, No. 05-06-00175-CR, 2008 Tex. App. LEXIS 1990, at

*16-17 (Tex.App.—Dallas Mar. 19, 2008, pet. ref’d) (mem. op., not designated for

publication); Fridell v. State, No. 09-04-201-CR, 2004 Tex. App. LEXIS 11501, at *7-8

(Tex. App.—Beaumont 2004, pet. ref’d) (mem. op., not designated for publication).


                                           11
Based on this record, we find a rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Appellant’s third and fourth points of

error are overruled.


                                       CONCLUSION


       The trial court’s judgment is affirmed.



                                                  Patrick A. Pirtle
                                                     Justice


Do not publish.




                                             12
