Wise v. State
2011 Tex. App. LEXIS 1583
| Tex. App. | 2011Background
- Wise, in his forties, served as C.H.'s McDonald's manager and occasionally gave her rides home.
- C.H., then sixteen, and Wise engaged in sexual activity and Wise obtained or stored images of the encounters on his devices.
- Police recorded a call with C.H. during which she disclosed details of their acts; an arrest and search warrant followed.
- Officers seized multiple items at Wise's home, including a digital camera, DVDs, computers, and a blindfold; Wise confessed in a post-arrest interview.
- Wise was indicted on multiple counts: four sexual assaults of C.H., eleven counts of possession of child pornography, and two counts of indecency with a child.
- The trial court denied Wise's suppression motion; a jury convicted on sixteen of seventeen counts with capped and consecutive sentences.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the search warrant was supported by probable cause | Wise contends the affidavit lacked sufficient probable cause. | State argues totality of circumstances supported probable cause to seize computers. | Overruled; probable cause existed |
| Whether the evidence proves Wise knowingly or intentionally possessed child pornography on the Gateway tower | Wise contends the free-space images could not establish possession with intent/knowledge. | State argues circumstantial evidence shows possession, intent, and knowledge beyond a reasonable doubt. | Sustained; evidence insufficient for eight–seventeen counts; acquittal ordered on those counts |
Key Cases Cited
- Rodriguez v. State, 232 S.W.3d 55 (Tex.Crim.App. 2007) (deference to magistrate on probable cause; totality-of-circumstances review)
- Tolentino v. State, 638 S.W.2d 499 (Tex.Crim.App. 1982) (three-part test for probable cause; factual basis within affidavit)
- Nichols v. State, 877 S.W.2d 494 (Tex.App.-Fort Worth 1994) (probable cause assessment; avoid hypertechnical reading)
- Duncan v. State, 72 S.W.3d 803 (Tex.App.-Fort Worth 2002) (seizure of computers supported by statements of underage sexual acts and threats)
- Eubanks v. State, 326 S.W.3d 231 (Tex.App.-Houston [1st Dist.] 2010) (digital-forensic basis to seize computer evidence in child-pornography case)
- McKissick v. State, 209 S.W.3d 205 (Tex.App.-Houston [1st Dist.] 2006) (probable cause for computer searches in child-pornography context)
- Porath v. State, 148 S.W.3d 402 (Tex.App.-Houston [14th Dist.] 2004) (affidavit basis to search for computer-related evidence of sexual offenses)
- Rodriguez v. State, 232 S.W.3d 55 (Tex.Crim.App. 2007) (reiterated deference to magistrate in probable-cause determinations)