Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ballard v. State

Court of Appeals of Texas, First District

July 25, 2017

WALTER HARVEY BALLARD, JR., Appellant
v.
THE STATE OF TEXAS, Appellee

         On Appeal from the 183rd District Court Harris County, Texas Trial Court Case No. 1390115

          Panel consists of Justices Jennings, Higley, and Massengale.

          OPINION

          Michael Massengale Justice

         A jury convicted appellant Walter Harvey Ballard, Jr. of possession of child pornography. See Tex. Penal Code § 43.26. The jury found true the allegations of an enhancement paragraph, that Ballard previously had been convicted of felony sexual assault, and it assessed punishment at 13 years in prison and a fine of $10, 000. On appeal, Ballard challenges the sufficiency of the evidence to support his conviction. He also contends that the trial court erred by: denying his motion to suppress evidence; denying his motion for a mistrial made after one of the State's witnesses violated a limine order; and overruling his objection to the State's allegedly improper jury argument during the punishment phase of trial.

         Because the evidence was sufficient to support Ballard's conviction, and the trial court was not shown to commit any other reversible error, we affirm the judgment of conviction.

         Background

         Appellant Walter Harvey Ballard, Jr., a paralegal, lived in Houston with his girlfriend, Lisa Davis. Officer Russell Ackley, an officer with the Houston FBI Child Exploitation Task Force, learned through an investigation that someone using an Internet Protocol (IP) address assigned to Ballard's residence was sharing child pornography on a peer-to-peer file-sharing network.

         Officer Ackley executed an affidavit in support of a request for a warrant to search Ballard's home for child pornography. In the affidavit, he outlined his experience and training in investigating child-pornography cases and the sexual exploitation of children. Officer Ackley explained that he searched the national Internet Crimes Against Children database to find computer users in the Houston area who were making files containing child pornography available for download. He identified a particular IP address that was making videos available for download with titles descriptive of child pornography, and he downloaded five files from that IP address using the peer-to-peer file-sharing network. The downloaded files contained images and movies of child pornography. He issued an administrative subpoena to an internet service provider where the IP address was registered, and he learned that at the time he downloaded the videos, the IP address was assigned to Walter Ballard in Houston.

         Based on the information in Officer Ackley's affidavit, a federal judge issued a warrant to search Ballard's residence. The warrant's description of the places to be searched or the persons or items to be seized was placed in two attached exhibits. The attachments described, in detail, Ballard's house and the items to be seized there. After the issuance of the warrant, Officer Ackley and several FBI agents went to Ballard's residence to search for child pornography. Prior to the search, the officers only provided Ballard with a copy of the warrant without the attachments. They did not have copies of the attachments when they began the search.

         During the search of Ballard's home, law-enforcement officers seized several computers, loose external hard drives, and compact discs. Once the search was completed, the officers left a copy of the warrant, including both of its attachments, and an inventory of the items seized from the home. Following the search, a forensic examination of the seized digital devices was performed. As a result, Officer Ackley discovered that a computer found in the house contained "a couple of hundred videos" that, based on his experience and training, he identified as child pornography. In addition, a loose external hard drive and at least eight CDs contained child pornography.

         After the forensic examination of the items seized from the home, a grand jury returned an indictment charging Ballard with possession of child pornography. The indictment included an enhancement paragraph alleging that Ballard previously had been convicted of sexual assault.

         Prior to trial, Ballard filed several motions in limine. The trial court granted one of the motions regarding the admissibility of extraneous-offense evidence, and it ordered the State to approach the bench before presenting such evidence. Ballard also filed several motions, under a variety of legal theories, to suppress all evidence obtained during the search of his house. Specifically, he argued that the search was unreasonable because, prior to the search, the officers did not provide him the warrant's attachments which described his house and the items to be seized. He also argued that the search was unreasonable because the officers did not have probable cause to search his house once they discovered that the IP address identified by Officer Ackley was attached to an unsecured wireless network.

         The trial court held a hearing on Ballard's motions to suppress. At the hearing, Officer Ackley testified about his investigation. He also testified that another officer, Officer John Barnes, had downloaded child pornography from the same IP address. In addition, Officer Ackley explained that he did not have copies of the attachment to the warrant with him prior to the search of Ballard's home, but following the search he left copies of the warrant with attachments, along with an inventory of seized items. The court denied Ballard's motions to suppress and filed findings of fact and conclusions of law.

         At trial, the State called several witnesses, including Officer Ackley, to testify about the search of Ballard's house and the results of that search. Initially, Officer Ackley described the investigation he conducted using peer-to-peer software, and he identified Ballard as one of the people located at the house when the search began. He testified that 29 digital devices including computers, external hard drives, and CDs were seized from the home and examined forensically. After the forensic examination, Officer Ackley reviewed the files identified by the forensic examiner as possibly containing child pornography. One of the computers seized contained "probably a couple hundred videos" depicting child pornography. Additionally, Officer Ackley stated that files were saved on the various digital devices between 2007 and 2013. The State introduced and played a video found on the desktop computer seized from Ballard's home office. Officer Ackley described the contents of the video, and based on his experience and training opined that the video was child pornography. Officer Ackley also opined that Ballard was the person who possessed the child pornography.

         In addition to Officer Ackley, an FBI agent testified about his role during the search, which included performing a "forensic preview" of the desktop computer in Ballard's office. The "forensic preview" allowed the officers to preview the contents of a computer without writing any data to the hard drive. According to the agent, the computer was turned on when he entered the office, and a legal document was displayed on the desktop. Before performing the "forensic preview, " the agent accessed the start menu, and a video player was identified as a "recently used" application. Without selecting the video player, the agent was able to see that several of the recently played videos had titles indicative of child pornography. The agent then described the process he undertook to conduct the "forensic preview, " which identified several files on the computer's hard drive with titles consistent with child pornography.

         After the agent testified about the forensic preview, the State questioned him about his role in the rest of the search. In response to this line of questioning, the agent answered that "crystal meth" and a gun also had been found in the home. Defense counsel requested that the jury be instructed to disregard these comments and moved for a mistrial because the agent's answer violated the limine order regarding extraneous offenses. The court instructed the jury to disregard the agent's answer and denied the motion for a mistrial.

         The State also called Lisa Davis, Ballard's girlfriend, to testify about the contents of the house and the people who lived there. Davis identified the room where the desktop computer, external hard drives, and CDs containing child pornography were found as the office where Ballard did a lot of his work as a paralegal. Davis also testified that Ballard was the primary user of the computer and that he used it "all the time." Further, Davis identified Clifton Hall as Ballard's nephew who had lived in the house for a period of time prior to the search. According to Davis, Hall moved into the house for a few months and moved out about a week before the search took place. Davis had never seen Hall using Ballard's computer except to search for jobs.

         The jury found Ballard guilty of possession of child pornography.

         During the punishment phase, the State discussed in its closing argument parole law and the charge instruction provided to the jury regarding parole law. Ballard objected to the State's discussion of parole law as improper argument. The trial court overruled this objection.

         The jury found the allegation of the enhancement paragraph to be true and assessed punishment at 13 years in prison and a fine of $10, 000. Ballard appealed.

         Analysis

         On appeal, Ballard challenges the sufficiency of the evidence to support his conviction. He also contends that the trial court erred by: denying his motion for a mistrial based on the FBI agent's comments about an extraneous offense; denying his motions to suppress; and overruling his ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.