Delaney, Conner

A sheriff’s investigator in Texas was surveilling a private chatroom called “Incest Young” on the Kik social media app. The investigator posed as an adult woman from Texas and exchanged several sexually explicit (but legal) private messages with Delaney, another member of the private chatroom who resided in Missouri. Delaney posted child pornography videos to the whole chatroom. The Kik app makes such messages available to members of the chatroom who are logged on at that time and cycles out older messages as new ones are posted. Despite the narrow window for viewing, the investigator saw the posts and clicked on the videos to view them. He then initiated a prosecution against Delaney in Texas for intentionally or knowingly promoting child pornography by “transmitting” the electronic files, knowing they visually depicted child pornography. Tex. Penal Code § 43.26. At his bench trial, Delaney argued the trial court lacked territorial jurisdiction over his conduct since he had posted the child pornography to the Kik group while he was in Missouri and promotion of child pornography is a conduct-oriented offense. Relevant to this claim, a digital forensics expert testified that when a video is uploaded to the Kik app, it is originally sent as a coded file, and the “actual video or image does not appear until the receiver clicks on it.” The State argued that promotion of child pornography necessary involved the result of someone receiving the images and that this occurred in Delaney’s case when the investigator clicked on the videos in Texas. The trial court found there was territorial jurisdiction and denied Delaney’s motion.

Delaney reasserted the issue on appeal, which the court of appeals interpreted as a legal sufficiency challenge to whether his conduct fell within Texas’s territorial jurisdiction. The court of appeals held that there was territorial jurisdiction under Tex. Penal Code  § 1.04(a)(1), which provides jurisdiction when “either the conduct or a result that is an element of the offense occurs inside this state.” It held that the trial court could have reasonably determined that the offenses were completed when the material was received in Texas and thus “an element of the offense occurred within Texas.”  It relied on McGowan v. State, 938 S.W.2d at 732 (Tex. App.—Houston [14th Dist. 1996),  which found jurisdiction in Texas for theft of trade secrets when an out-of-state defendant faxed technical drawings to someone in Texas. McGowan reasoned that (1) jurisdiction existed when a crime was defined to include not just acts but some consequences of an act, and (2) that was satisfied for trade secret theft because it could be committed by “transmitting” secrets, which, it held, was not complete until it reached the receiving party in Texas.

Delaney argues that the court of appeals applied the wrong framework to promotion of child pornography because that offense is conduct-oriented, not result-oriented. He contends that interpreting “transmit” to require de-encryption by the recipient improperly adds a non-statutory requirement to the statute. He asserts that the act of promotion was complete the instant he sent the images to the Kik group, which occurred in Missouri. Alternatively, he argues that if the court of appeals is going to focus on results, then the intentional or knowing mental state should have been required to go to that element, and the State failed to establish  that he was aware that images would have been downloaded in Texas, given the narrow window of time that messages are available to view. He also argues that McGowan is distinguishable because there, the defendant was directing a transmission to a specific person in Texas, which made it “an integral and foreseeable element of the offense.” But since he did not direct the child pornography to any identifiable geographical location, the court of appeals’ interpretation imposes a “jurisdictional consequence untethered to the sender’s intent or knowledge.”