

Opinion issued February 17, 2011.

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-09-01030-CR
———————————
Judy Parrish Carlson, Appellant
V.
State of
Texas, Appellee

 

 
On Appeal from the 412th District Court
Brazoria County, Texas

Trial Court Case No. 52958
 

 
O P I N I O N
          A
jury convicted Judy Carlson of knowingly authorizing the sexual performance of
a child and assessed a sentence of ten years’ confinement and a $10,000 fine.  See
Tex. Penal Code Ann. § 43.25(b)
(Vernon 2005).  This appeal arises from
the trial court’s denial of Carlson’s motion to suppress videotapes containing
nude images of Carlson’s daughter C., her niece S., and their friend, all three
of whom were under the age of eighteen at the time of their recording.  In the motion, Carlson contended that the
videos came into police possession as a direct result of theft, and therefore,
article 38.23 of the Texas Code of Criminal Procedure prohibited their
admission.   See Tex. Code Crim. Proc.
Ann. art. 38.23 (Vernon 2005).  Concluding
that the trial court did not abuse its discretion in admitting the videotapes,
we affirm.
Background
For a three-year period beginning in
2004, when S. was fourteen years old, she lived intermittently with her cousin,
C., and C’s parents, Judy and Thomas Carlson. 
It was undisputed that S. had free access to the home during that
period.  
The Carlsons allowed the girls to
drink alcohol and smoke marijuana.  On
occasion, after giving the girls alcohol and marijuana, Thomas directed and
filmed the girls engaging in sexual and sexually provocative conduct.  This first occurred in December 2004.  Thomas kept two videotapes of these
incidents.  
When S. was seventeen and living
with the Carlsons, she decided that she did not want them to have videotapes
that contained her naked image.  According
to S., her uncle told her that he had stored the tapes in the attic.  S. retrieved the videos from the Carlson
home.  The next day, she gave the videos
to C.  Then, the day after giving the
tapes to C., S. went to the Lake Jackson Police Department to file an offense
report.  Sergeant H. Haywood received the
report.  S. told Sergeant Haywood that C.
and S.’s employer, J.V., was holding the videotapes and gave him J.V.’s
telephone number.
The trial court heard conflicting
testimony as to how J.V. came to possess the videos.  J.V. informed Sergeant Haywood that S. gave
him the videos.  S. however, testified
that C. gave J.V. the videos, and C. claimed that J.V. removed the videos from
her bag without permission while she was working.  
In response to Sergeant Haywood’s
request for the videotapes, J.V. copied them onto a single VHS tape and mailed
it to him.  The State held both the
original videotapes and the VHS copy by the time of trial.
In its order denying Carlson’s
motion to suppress the videotapes, the trial court found C.’s version of the
events to be implausible and gave no credence to her testimony.  Based on the other witnesses’ testimony, the
trial court concluded that the admission of the videotapes would not violate article
18.23 of the Texas Code of Criminal Procedure, which prohibits the admission of
evidence secured by, among other criminal activity, theft.  The trial court reasoned that S. could not effectively
consent to allow the recording of her naked image because she was under the age
of majority at the time, so that the images legally belonged to S.  As a result, the trial court concluded, S. did
not commit theft by retrieving property that rightfully belonged to her from a
home that she was allowed to enter at will. 
Carlson re-urged her objection to the videotapes’ admissibility before
the parties’ opening statements, and the trial court again overruled the
objection.  
Motion to Suppress
Standard of
review
We review the trial court’s ruling
on a motion to suppress for abuse of discretion.  Shepherd
v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008).  We view the evidence in the light most
favorable to the trial court’s ruling.  Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim.
App. 2007) (quoting State v. Kelly,
204 S.W.3d 808, 818 (Tex. Crim. App. 2006)). The trial judge is the “sole trier
of fact and judge of credibility of the witnesses and the weight to be given to
their testimony.”  St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007).  The trial court may choose to believe or
disbelieve any part or all of a witness’s testimony.  Green v.
State, 934 S.W.2d 92, 98 (Tex. Crim. App. 1996) (citing Allridge v. State, 850 S.W.2d 471, 492
(Tex. Crim. App. 1991)).  We defer to a
trial court’s express or implied determination of historical facts, as well as
to its application of law to fact questions if those questions turn on the
evaluation of a witness’s credibility and demeanor.  See
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).  We 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)).
Suppression
under article 38.23
Carlson contends that the trial
court abused its discretion in denying her motion to suppress because the videotapes
that resulted in her conviction were illegally obtained by theft and,
consequently, should have been excluded under article 38.23.  See Tex. Code Crim. Proc. Ann. art
38.23.  Article 38.23 forbids the admission
of evidence seized by any person or officer when that evidence has been
obtained in violation of the state or federal constitutions or in violation of
state or federal law.  Id. 
Thus, a court generally may not admit evidence against an accused that a
private person has obtained by committing a crime.  Jenschke
v. State, 147 S.W.3d 398, 400 (Tex. Crim. App. 2004).  Under some circumstances, however, a trial
court may admit evidence that a private person acquired by conduct that
violated a criminal law when that person turns over such evidence to law
enforcement.  Id. 
A person commits theft when he
unlawfully appropriates property with intent to deprive the owner of the
property.  Tex. Penal Code Ann. § 31.03(a) (Vernon Supp. 2006).  The Court of Criminal Appeals has held “that,
when a person who is not an officer or an agent of an officer takes property
that is evidence of crime, without the effective consent of the owner and with
the intent to turn over the property to an officer, the conduct may be
non-criminal even though the person has intent to deprive the owner.”  Jenschke,
147 S.W.3d at 402.  
The record shows that S. filed a
police report within forty-eight hours of retrieving the videotapes from the Carlson
home.  S. informed the police that the
tapes had been given to a trusted intermediary and gave his contact
information.  J.V. promptly cooperated
with the police department’s request to provide the tapes.  This evidence supports a reasonable inference
that S. took the tapes with the intent to turn them over to a police officer.  We therefore hold that S. did not commit a criminal
act in taking the tapes.  Compare Jenschke, 147 S.W.3d at   (holding that evidence did not show intent
to turn over property to police officer where girl’s mother broke into
relative’s car to obtain condom used in sexual assault on daughter, obtained
private DNA testing, and unsuccessfully attempted to resolve issue among
relatives before making contact with district attorney more than two years
after breaking into truck) with Krause v.
State, 243 S.W. 3d 95, 104–05 (Tex: App.—Houston [1st Dist. 2007, pet. ref’d)
(concluding that trial court could have reasonably found that Jenschke authorized complainant and his
mother’s conduct in entering appellant’s RV and removing appellant’s computer,
external hard drive, and compact disks containing pornographic images of minors
“in order to turn [them] over to the authorities”).
Carlson also challenges the trial
court’s conclusion that no theft occurred because S. had an ownership interest
in her own image.  The term “owner” is
broadly defined to protect all ownership interests from criminal conduct.  Freeman
v. State, 707 S.W.2d 597, 603 (Tex. Crim. App. 1986).  The Penal Code defines an “owner” as a person
with title to the property, possession of the property, whether lawful or not,
or a greater right to possession of the property than the actor.  Tex.
Penal Code Ann. § 1.07(a)(35) (Vernon Supp. 2010).  “The issue of ‘ownership’ goes to the scope
of the property interest protected by the law and is intended to protect all
ownership interests in property from criminal behavior.”  Freeman,
707 S.W.2d at 603.  
Carlson does not contest the fact
that the videos contain images of child pornography.  The Carlsons thus had no legal right to
possess the videos.  See Tex. Penal Code Ann.
§ 43.26 (Vernon 2003) (making a third degree felony knowing possession of
videotape that visually depicts child younger than eighteen years of age).  S., on the other hand, had an interest in possessing
the underage, sexually explicit images that her uncle recorded without her
effective consent in order to preserve her own privacy, report the incident to
police, and prevent their further publication. 
The record supports the conclusion that S. had a right to possession of
the videos.  Thus, the trial court acted
within its discretion in denying Carlson’s motion to suppress.
Conclusion
The trial court did not abuse its
discretion in denying Carlson’s motion to suppress.  We therefore affirm the judgment of the trial
court.
 
 
                                                                   Jane
Bland
                                                                   Justice

 
Panel
consists of Justices Keyes, Higley, and Bland.
Publish.  Tex.
R. App. P. 47.2(b).

