Opinion
No. 05-22-00108-CR
08-16-2023
Jeremy Todd BORDELON, Appellant v. The STATE of Texas, Appellee
Greg A. Willis, Collin County District Attorney, McKinney, Lisa Smith Braxton, Collin County District Attorney's Office, McKinney, Robert Koehl, Assistant District Attorney, McKinney, for Appellee. Edward Andrew Kalabus Jr., Rosenthal, Kalabus & Therrian, PLLC, McKinney, for Appellant.
Greg A. Willis, Collin County District Attorney, McKinney, Lisa Smith Braxton, Collin County District Attorney's Office, McKinney, Robert Koehl, Assistant District Attorney, McKinney, for Appellee.
Edward Andrew Kalabus Jr., Rosenthal, Kalabus & Therrian, PLLC, McKinney, for Appellant.
Before Justices Molberg, Pedersen, III, and Miskel
OPINION
Opinion by Justice Miskel
Jeremy Todd Bordelon appeals his conviction for possession of child pornography. In his first issue, Bordelon asserts that the trial court erred by admitting an affidavit containing testimonial hearsay. But by oral ruling at the bench trial, the trial court excised any testimonial content from the affidavit and admitted the remainder only for the limited and permissible purpose of showing how police began their investigation into Bordelon's involvement in child pornography. We presume that the trial court faithfully adhered to this ruling, especially where, as here, nothing in the record shows that the trial court relied on the testimonial portions of the affidavit during trial.
In his second issue, Bordelon attacks the affidavit that police submitted in pursuit of a warrant to search his home. We conclude the affidavit established probable cause for a search, it was not stale or conclusory, and the minor discrepancy in its description of the premises to be searched is not a source of reversible error.
In his third issue, Bordelon challenges the sufficiency of the evidence to show that he knowingly possessed child pornography. We hold the multiple forms of evidence that affirmatively linked Bordelon to the pornography are sufficient for the trial court to determine that he knowingly possessed it.
We affirm the judgment.
I. BACKGROUND
On January 2, 2019, someone used Microsoft's Bing search engine to upload a single image of child pornography four times in an effort to search for similar images. Microsoft alerted the National Center for Missing and Exploited Children (NCMEC), which traced the image to the Dallas-Fort Worth area. NCMEC forwarded a report concerning the tip to the Dallas Police Department, which in turn forwarded it to the McKinney Police Department for a local investigation that was led by Detective Jennifer Grounds. Using various search tools and an administrative subpoena, Detective Grounds traced the January 2 search to Bordelon's IP address. On June 17, 2019, she composed an affidavit for a warrant to search Bordelon's residence, and the warrant was issued the same day.
When the warrant was executed, police recovered a laptop that was found to have at least twenty images of child pornography on it. Bordelon was indicted for possession of child pornography in connection with eight of the images.
At the bench trial, the trial court heard from Detective Grounds, who testified concerning her investigation and seizure of the pornography, and from the State's computer forensics expert Lee McMillian, who testified that he found several forms of digital evidence on the laptop that inculpated Bordelon. Bordelon offered his own forensics expert, Lance Sloves, who testified that he found no evidence on the laptop that would connect Bordelon to the knowing possession of the pornography.
During trial, the State offered an affidavit authored by NCMEC's vice president, in which he testified concerning his organization, and sought to prove up NCMEC's initial report to Dallas police as a business record. Bordelon objected that the affidavit went far past a business records affidavit because it contained testimonial hearsay. The trial court agreed and indicated that it would exclude any testimonial portions of the document and admitted the affidavit only for the limited purpose of showing how McKinney police began their investigation.
After hearing the evidence, the trial court found Bordelon guilty on all eight possession counts. It sentenced him to ten years’ confinement but suspended the sentence in favor of six years’ community supervision, thirty days in jail, and sex-offender registration. Bordelon appeals.
II. THE LIMITED ADMISSION OF THE NCMEC AFFIDAVIT WAS NOT ERROR
In his first issue, Bordelon argues that the trial court erred by admitting the affidavit of NCMEC's vice president because it contained testimonial hearsay. Bordelon asserts that the admission of the testimonial hearsay violated his rights under the Confrontation Clause.
A. Standard of Review
We review the admission of evidence under an abuse of discretion standard. Henley v. State , 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016). A trial court abuses its discretion when its decision falls outside the zone of reasonable disagreement. Id. at 83. Before a reviewing court may reverse the trial court's decision, it must find the trial court's ruling was so clearly wrong as to lie outside the zone within which reasonable people might disagree. Id. Whether a particular out-of-court statement is testimonial is a question of law. Langham v. State , 305 S.W.3d 568, 576 (Tex. Crim. App. 2010). Although we defer to the trial court's resolution of credibility issues and historical fact, we review de novo the ultimate constitutional question of whether the facts as determined by the trial court establish that an out-of-court statement is testimonial. Id.
B. Applicable Law
In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. U.S. CONST. amend. VI. In accordance with this right, "testimonial" out-of-court statements offered against the accused are inadmissible unless the prosecution can show that the declarant is presently unavailable to testify and the accused had a prior opportunity to cross-examine him. Id. at 575–76.
"While the exact contours of what is testimonial continue to be defined by the courts, such statements are formal and similar to trial testimony." Burch v. State , 401 S.W.3d 634, 636 (Tex. Crim. App. 2013). Generally, a hearsay statement is testimonial when the surrounding circumstances objectively indicate that the statement is procured with the primary purpose of establishing or proving past events potentially relevant to later criminal prosecution. De La Paz v. State , 273 S.W.3d 671, 680 (Tex. Crim. App. 2008). In assessing a statement's primary purpose, we consider "all of the relevant circumstances." Michigan v. Bryant , 562 U.S. 344, 369, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011). When a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony, the admissibility of the statement is the concern of state and federal rules of evidence, not the Confrontation Clause. Id. at 358–59, 131 S.Ct. 1143.
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted in the statement. Bahena v. State , 634 S.W.3d 923, 927 (Tex. Crim. App. 2021) (citing TEX. R. EVID. 801(d) ). Hearsay is inadmissible unless made admissible by statute or rule. Id. (citing TEX. R. EVID. 802 ). A record of an act, event, condition, opinion, or diagnosis is admissible as a business record if (A) the record was made at or near the time by—or from information transmitted by—someone with knowledge; (B) the record was kept in the course of a regularly conducted business activity; (C) making the record was a regular practice of that activity; (D) all these conditions are shown by the testimony, affidavit, or unsworn declaration of the custodian or another qualified witness; and (E) the opponent fails to demonstrate that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. Id. at 927–28 (citing TEX. R. EVID. 803(6) ).
C. Discussion
At trial, the State sought to admit an affidavit authored by John Shehan, who identified himself as Vice President of the Exploited Children Division at NCMEC. The State sponsored the document as a business records affidavit.
Some parts of Shehan's affidavit consisted of the foundation for a business record. However, many other parts of the affidavit went beyond what would be necessary for a pure business records affidavit. Some early portions described NCMEC and its mission to help missing and exploited children. Other segments described NCMEC's operation of a "CyberTipline," a service for reporting crimes against children, and Shehan explained the ambit of the tipline, its workings, and how it compiled the "Cybertip" reports that it sent to inform law enforcement of potential crimes. The latter portions of the affidavit described how Microsoft initiated the Cybertip process in this case by alerting NCMEC that someone had used the Bing search engine to upload an image of child pornography and search for similar images from an IP address that was later associated with Bordelon. Finally, the affidavit stated that NCMEC relayed Microsoft's report to the Dallas Police Department.
When the State sought to admit Shehan's affidavit, Bordelon objected that the affidavit contained testimonial hearsay that was inadmissible without the opportunity to confront Shehan at trial. The trial court agreed that the State "can't slide in testimonial evidence through a business record affidavit." In response, the State proposed a solution: the trial court could "excise" whatever portions of the affidavit it believed to be testimonial hearsay and admit only the remainder. The trial court stated that it would "exclude any testimonial information in the affidavit" and admit only those portions that properly functioned as a business records affidavit and any portions that would show what started the McKinney Police Department's investigation. After extended argument, the trial court repeated that it was "not going to consider any of it for the truth of the matter asserted," and that the affidavit was admitted only for the purpose of, and to the extent that, it "merely" "show[ed] what notice that McKinney Police Department, in this case, began with" and what "precipitated" the investigation.
On appeal, Bordelon challenges Shehan's affidavit as testimonial hearsay. The State counters that the trial court discarded any testimonial content from the document and admitted the remainder only for limited purposes permitted by the rules, thus eliminating error under the rules of evidence and the Confrontation Clause. We agree with the State.
When, in a bench trial, the trial court orally excises a document of inadmissible content and states that it will only consider the permissible portions, we generally take the trial court at its word. See Herford v. State , 139 S.W.3d 733, 736 (Tex. App.—Fort Worth 2004, no pet.). "Because the trial court specifically stated on the record that it would disregard" any "inadmissible" content in the document, "we presume that the trial court did not consider any statement" that was inadmissible under the relevant law unless the record clearly shows the contrary. See id. ; accord In re J.G.M. , No. 13-13-00704-CV, 2015 WL 124177, at *2 (Tex. App.—Corpus Christi–Edinburg Jan. 8, 2015, no pet.) (mem. op.).
Our opinion in Whitehead v. State demonstrates the point on facts that parallel those present here. No. 05-14-00230-CR, 2014 WL 7498052, at *2–3 (Tex. App.—Dallas Dec. 31, 2014, pet. ref'd) (mem. op., not designated for publication). There, the State submitted an exhibit that complied with the requirements for a business record affidavit, but the appellant objected that the document also contained testimonial hearsay. Id. at *2. We held that the admission of the document was not error in large part because "the trial court ruled that it would not consider any inadmissible hearsay" within the exhibit, and because no part of the record was cited that reflected "that the trial court did consider any inadmissible hearsay" within the exhibit. Id. at *3 ; see also Burrows v. State , 492 S.W.3d 398, 412–13 (Tex. App.—Houston [1st Dist.] 2016, pet. ref'd) (holding any admission of testimonial hearsay harmless for similar reasons). Bordelon, however, argues that the record here reflects that the trial court did in fact twice consider the portions of the Shehan affidavit that the court had purported to exclude.
In his first example, he notes that, during the bench trial, the trial court questioned one witness about whether the image that was eventually found on Bordelon's computer matched the original image sent by NCMEC. We cannot agree that these questions show the trial court was drawing on testimonial hearsay at trial. These questions concerned the image that was the subject of Shehan's affidavit, not the statements within the affidavit itself, and that image was admitted into evidence independently of the affidavit. The trial court asked no questions concerning Shehan or his testimony. Thus, these questions do not undermine our presumption that the trial court acted in accordance with its ruling.
In his second example, Bordelon argues that the trial court betrayed its reliance on the testimonial portions of Shehan's affidavit when it asked a witness about Microsoft's Bing search engine. Again, we disagree. The State asked a witness about the original Cybertip from Microsoft Bing. The trial court interjected, asking the witness about Bing's features and how Bing related to this case. In response, the witness speculated about Microsoft and the Cybertip, with no objection from Bordelon. The fact that the State asked, or the witness answered, about the Cybertip does not show that the trial court was improperly using testimonial statements from the Shehan affidavit.
By oral ruling, the trial court excluded any testimonial hearsay from the affidavit and admitted the affidavit only for permissible purposes. Nothing in the record undermines our presumption that the trial court was faithful to this ruling. We therefore overrule Bordelon's first issue.
III. THE WARRANT AFFIDAVIT ESTABLISHED PROBABLE CAUSE
On June 17, 2019, Detective Grounds executed an affidavit in support of her request for a warrant to search Bordelon's home. The execution of the resulting warrant led to the recovery of a laptop that contained child pornography. On appeal, Bordelon asserts that Detective Grounds’ affidavit did not demonstrate probable cause for a warrant.
A. Standard of Review & Applicable Law
Ordinarily, we review a ruling on a motion to suppress using a bifurcated standard of review, wherein we give almost total deference to the historical facts found by the trial court and review de novo the trial court's application of the law. State v. McLain , 337 S.W.3d 268, 271 (Tex. Crim. App. 2011). However, when the trial court is determining probable cause to support the issuance of a search warrant, there are no credibility determinations, and the trial court is constrained to the four corners of the affidavit. Id. Accordingly, we apply a highly deferential standard of review to the issuance of a warrant because of the constitutional preference for searches to be conducted pursuant to a warrant. Id.
The cornerstone of the Fourth Amendment is that a magistrate shall not issue a search warrant without first finding probable cause that a particular item will be found in a particular location. Foreman v. State , 613 S.W.3d 160, 163 (Tex. Crim. App. 2020). "The definition of the term ‘probable cause’ is, unfortunately, frequently beauty in the eye of the beholder." Rodriguez v. State , 232 S.W.3d 55, 60 (Tex. Crim. App. 2007). The test is whether a reasonable reading by the magistrate would lead to the conclusion that the four corners of the affidavit provide a "substantial basis" for issuing the warrant. State v. Duarte , 389 S.W.3d 349, 354 (Tex. Crim. App. 2012). Probable cause exists when, from the totality of the circumstances reflected in the affidavit, there is a "fair probability" that evidence of a crime will be found at the specified location at the time the warrant is issued. Id. ; Davis v. State , 202 S.W.3d 149, 154 (Tex. Crim. App. 2006). We do not analyze the affidavit in a hyper-technical manner, but in a commonsensical and realistic one, recognizing that the magistrate may draw reasonable inferences. McLain , 337 S.W.3d at 271. This is a flexible, nondemanding standard. Id. at 272. "The ‘substantial basis’ standard of review does not mean the reviewing court should be a rubber stamp but does mean that the magistrate's decision should carry the day in doubtful or marginal cases, even if the reviewing court might reach a different result upon de novo review." Flores v. State , 319 S.W.3d 697, 702 (Tex. Crim. App. 2010) (internal quotation omitted).
B. Discussion
The magistrate determined Detective Grounds’ affidavit established a fair probability that a search of Bordelon's residence would yield evidence that he possessed child pornography. On appeal, Bordelon raises multiple challenges to the determination that there was probable cause to support a warrant.
1. The Affidavit Was Not Conclusory
Bordelon maintains that Detective Grounds’ affidavit was conclusory. He protests a lack of detail with respect to three topics discussed in the affidavit: Detective Grounds’ training and experience, the process by which she received a tip concerning Bordelon's involvement in the crime, and the thoroughness with which the detective linked Bordelon to the criminal propensities that, she testified, made it more likely a search would yield evidence of wrongdoing.
We disagree. Detective Grounds’ affidavit was not conclusory—it contains specific facts sufficient to support a finding of probable cause. And while the detective could have offered even more detail in the three areas that Bordelon attacks, she was not required to do so because the additional facts in her affidavit were sufficient to demonstrate probable cause.
Conclusory allegations alone are insufficient to support a finding of probable cause. State v. Baldwin , 664 S.W.3d 122, 132 (Tex. Crim. App. 2022), cert. denied , ––– U.S. ––––, 143 S. Ct. 777, 215 L.Ed.2d 47 (2023). "[T]he Supreme Court has consistently cautioned against ‘bare bones’ affidavits, instead requiring some sort of corroboration to the conclusory statement when a magistrate makes a probable-cause determination." Id. "[S]ufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others." Id. (quoting Illinois v. Gates , 462 U.S. 213, 239, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ). By way of example, the Gates court noted its prior decisions holding affidavits conclusory when they stated merely that the affiant "has cause to suspect and does believe" that illegally purchased liquor was located on certain premises or that "[a]ffiants have received reliable information from a credible person and ... believe" that heroin was stored in a home. Id. (paraphrasing Gates ’ discussion of Nathanson v. United States , 290 U.S. 41, 44, 46, 54 S.Ct. 11, 78 L.Ed. 159 (1933), and Aguilar v. Texas , 378 U.S. 108, 109, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) ).
In contrast, Detective Grounds’ affidavit was not vague boilerplate. In her affidavit, Detective Grounds stated her belief that, on or about January 2, 2019, someone at Bordelon's address had in their possession items related to a criminal investigation for possession or promotion of child pornography. She averred that she had probable cause to support that belief based in large part on the McKinney Police Department's receipt of four Cybertips numbered 47382147, 47383384, 47384399 and 47386432, which connected Bordelon and his residence to child pornography.
Detective Grounds testified that Microsoft reported these four tips to NCMEC on March 7, 2019. According to Microsoft's report, an internet user with the internet protocol or IP address 76.183.178.166 uploaded an image to Microsoft's Bing Image Search service four times within the space of two minutes on the morning of January 2, 2019, and the image was consistent with child pornography. Based on her personal review of the images, Detective Grounds described the image as depicting "a small prepubescent female child's buttocks with an adult male's penis attempting to penetrate the child," who was wearing a yellow shirt and no underwear.
According to the affidavit, Microsoft documented the image and the IP address in its referral to NCMEC, and NCMEC researched the tip and "geo-located" the IP address to the Dallas-Fort Worth area. So, NCMEC sent its report to the Dallas Police Department, which in turn forwarded the report to the McKinney Police Department on April 25, 2019. Detective Grounds related that she was assigned to the case on the following day, and she used a service called "whatismyipaddress.com/ip-lookup" to trace each of the tips to a company called "Charter," which the magistrate could fairly infer was an internet service provider. On May 28, 2019, Detective Grounds sent an administrative subpoena to Charter requesting subscriber information for the IP address in question. On May 29, 2019, Charter identified Bordelon as the owner of the IP address and provided his physical address, email address, and phone number.
Detective Grounds described, based on her experience and training, traits of people who collect child pornography. She testified that traces of evidence of illicit internet activities might also be found in a computer's web cache and internet history file, where "[s]uch information and files are often maintained indefinitely or until overwritten by other data." She described two widely accepted locate-and-research software tools, Accurint and TLO, both of which had the capability to identify people, their places of employment, criminal records, and other background information.
Detective Grounds then discussed her twelve-year tenure and advanced certification with the McKinney police force and her training and experience in the investigation of internet crimes against children, specifically the distribution of child pornography using computer networks.
Bordelon argues that this affidavit is conclusory because Detective Grounds failed to elaborate on her training and experience, her receipt of the initial tip, and Bordelon's alleged connection to pedophilic traits. He relies heavily on Taylor v. State , in which the court held that an affidavit failed to establish probable cause both (1) because its allegations failed to adequately connect the appellant to possession of child pornography, and (2) because it could have contained many other sorts of factual statements that would have shored up this conclusory testimony. See 54 S.W.3d 21, 22–27 (Tex. App.—Amarillo 2001, no pet.). However, "[t]he issue is not whether there are other facts that could have, or even should have, been included in the affidavit; we focus on the combined logical force of facts that are in the affidavit, not those that are omitted from the affidavit." Rodriguez , 232 S.W.3d at 62. Taylor focused on what additional details were absent from the affidavit, but the Court of Criminal Appeals has since made clear that our focus generally should not be on what an affidavit lacks but on what it contains, so long as that content is sufficient to establish probable cause. See id. Bordelon argues that here, as in Taylor , the search warrant affidavit contained only three relevant pieces of information: (1) evidence of an image being sent within a several-month time frame; (2) a general description of the propensities of someone involved in possessing child pornography; and (3) a "representation" that the online address "somehow comes back to" the defendant's address. However, in this case, Detective Grounds’ affidavit provides more than an unsupported representation linking the online address and the physical address to be searched—her affidavit contains non-conclusory facts about the subpoena to the internet provider and its response, which adequately connect the address to be searched with the possession of child pornography.
From the facts set forth in the affidavit, the magistrate could have reasonably inferred that (1) following a tip from a reliable informant (Microsoft) concerning four uploads of an image of child pornography for the purpose of searching for more pornography, there was an investigation by NCMEC and Dallas and McKinney police into the IP address that was connected to the uploads; (2) the investigation traced the IP address to the Dallas-Fort Worth area and to the internet service provider Charter; (3) in response to an administrative subpoena, Charter identified Bordelon's house as the physical address corresponding to the IP address in question; and (4) the character traits common to collectors of child pornography suggest that, if a person at that address possessed child pornography in January, a search of the residence in June would still likely yield evidence of wrongdoing. Taken together, these facts provided a substantial basis for the issuance of a warrant. See State v. Moore , No. 05-06-01295-CR, 2007 WL 4305374, at *5 (Tex. App.—Dallas Dec. 11, 2007, pet. ref'd) (not designated for publication) (holding similar facts established probable cause).
The otherwise-sufficient content of this affidavit renders Taylor distinguishable. Detective Grounds’ affidavit was not conclusory; rather, it thoroughly discussed the initial tip and how it was eventually linked to the address to be searched. It would have been reasonable for a magistrate to infer that child pornography images would likely still be present due to the factual circumstances associating the house with the possession of and search for child pornography. See Jennings v. State , 531 S.W.3d 889, 896 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd) (distinguishing Taylor on this basis); Barrett v. State , 367 S.W.3d 919, 924 (Tex. App.—Amarillo 2012, no pet.) (same); State v. Cotter , 360 S.W.3d 647, 653 (Tex. App.—Amarillo 2012, no pet.) (same). We conclude that the affidavit and the totality of facts reflected within it were sufficient and not conclusory, and the lack of further details about the officer's training or the inclusion of extra information about pedophilic traits does not render the warrant application inadequate.
2. Probable Cause Did Not Grow Stale
Bordelon argues that there was no probable cause due to the delay between the underlying searches for pornography in January, NCMEC's geolocation of the relevant IP address to Dallas-Fort Worth in March or April, Detective Grounds’ investigation of the searches in April and May, and her execution of the warrant affidavit in June.
Specifically, Bordelon argues that the warrant affidavit did not sufficiently link the home address to be searched with the IP address in the Cybertip. The information provided by Charter in response to Detective Grounds's May request specifies that Charter checked its subscriber records for a target of "76.183.178.166 [the IP address], 1/2/2019 [the date] 4:49:00 PM, GMT, 0" and the subscriber name returned was Jeremy Bordelon. However, Detective Grounds did not expressly restate this January target date within the four corners of her affidavit.
According to Bordelon, the warrant affidavit therefore stated no facts suggesting who owned the IP address in question as of January 2019, nor any testimony that a search in May 2019 would yield evidence of unlawful possession, because the IP address could change over that time. Though Bordelon never uses the term "staleness," he is essentially making an argument that the factual basis for probable cause grew stale—he seeks to undercut the probable cause determination by emphasizing the time between the occurrence of the events set out in the affidavit and the time the search warrant was issued. See Crider v. State , 352 S.W.3d 704, 707 (Tex. Crim. App. 2011).
When a warrant is executed, there must be sufficient facts within the affidavit to support a probable cause finding that the evidence is still available and in the same location. Id. The proper method to determine whether the facts supporting a search warrant have become stale is to examine, in light of the type of criminal activity involved, the time between the occurrence of the events set out in the affidavit and the time the search warrant was issued. Id. "No hard-and-fast rule sets the outer limit of time" before probable cause will become stale, for "[t]he hare and the tortoise do not disappear over the hill at the same speed." See id. "The ultimate criteria in determining the evaporation of probable cause are not found in case law, but in reason and common sense." Id. The likelihood that the evidence sought is still available and in the same place is a function not just of the watch or the calendar, but of the particular variables in the case:
(1) the type of crime—e.g., short-term intoxication versus a long-term criminal enterprise;
(2) the suspect—e.g., a nomadic traveler versus an entrenched resident;
(3) the item to be seized: perishable and easily transferred—e.g., evanescent alcohol in the blood stream or a single marijuana cigarette—or of enduring utility to its holder—e.g., a bank vault filled with deeds, a meth lab, or a graveyard corpse; and
(4) the place to be searched—e.g., a mere criminal forum of convenience versus a secure operational base.
Id. at 707–08. When the facts used to establish probable cause show only a single, nonrecurring crime occurring on a specific occasion, the key question is how long after that time evidence of that single crime can be expected to remain at the scene. See id. at 708. Evidence of ongoing or continuous criminal activity will generally defeat a claim of staleness. State v. Le , 463 S.W.3d 872, 880 (Tex. Crim. App. 2015).
Bordelon emphasizes that Charter did not perform the search for the IP address associated with the uploads until May 29, 2019. He observes that nothing in the affidavit expressly states whether Charter identified the owner of the IP address as of January 2, 2019 , the day of the incriminating uploads, as opposed to the owner on May 29 when Detective Grounds received the results of her administrative subpoena. Bordelon maintains that because there is nothing within the four corners of the affidavit to make clear the dates on which Charter says he owned the IP address, there is no basis for the magistrate's probable cause determination.
The State counters that even though the affidavit does not specifically state the target date of the IP address search, it was nonetheless reasonable for the magistrate to infer that Detective Grounds investigated ownership as of January 2, and that Charter provided information regarding ownership as of January 2, because that was the day on which internet traffic revealed a potential criminal offense. We agree with the State.
In State v. Shields , a Connecticut court considered and rejected an argument like the one that Bordelon makes on appeal. No. CR06352303, 2007 WL 1828875, at *5–9 (Conn. Super. Ct. June 7, 2007), aff'd , 124 Conn.App. 584, 5 A.3d 984 (2010), aff'd , 308 Conn. 678, 69 A.3d 293 (2013). There, police became aware of internet activity—a web chat on July 1, 2005, in which two internet users proposed to exchange photos of one user's minor son—raising a substantial probability that the users were in possession of contraband. Id. at *1. Officers obtained the IP addresses that were implicated in the web chat and subpoenaed Charter for information on one of the addresses. Id. On November 4, 2005, Charter identified the subscriber connected with the IP address as Jerome Cariaso, and Charter provided his physical address in Connecticut. Id. at *2. Subsequent police investigation revealed that the defendant Shields also lived at the Connecticut address. Id. Officers swore out a warrant affidavit on November 15, 2005, and the execution of the resulting search warrant on the following day yielded evidence that Shields possessed child pornography. Id.
Shields moved to suppress the evidence by arguing, as Bordelon argues here, that IP addresses are subject to periodic change, and that the warrant affidavit failed to establish probable cause because it did not specifically set out that Charter tied the IP address in question to his physical address as of July 1, the date of the web chat, rather than as of the November 4, when Charter responded to the subpoena. Id. at *5.
The district court disagreed. It began by thoroughly discussing the relevant technological considerations regarding IP addresses:
An IP address is a unique address that certain electronic devices use in order to identify and communicate with each other on a computer network utilizing the IP standard. Just as each street address and phone number uniquely identifies a building or telephone, an IP address can uniquely identify a specific computer or other network device on a network. Any participating device on a network must have its own unique numeric identifier. The numbers currently used in IP addresses range from 10.00 to 255.255.255.255. This does not provide enough possibilities for every internet device to have its own permanent number. To deal with this problem, many internet service providers limit the number of IP addresses that are permanently assigned to a specific device, otherwise known as static IP addresses, and economize on the remaining number of IP addresses they possess by temporarily assigning an IP address to a requesting Dynamic Host Configuration Protocol (DHCP) computer from a pool of IP addresses known as dynamic [IP] addresses. Dynamic IP addresses can be shared or rotated amongst many devices, although no two devices can use the same IP address at the same time. A requesting DHCP computer receives a dynamic IP address for the duration of an internet session or for some other specified amount of time. Once a user disconnects from the internet, his or her dynamic IP address goes back into the IP address pool so it can be assigned to another user.
In the present case, it is unclear whether the IP address [in question] was a static or a dynamic IP address. It was most likely a dynamic IP address, as residential internet connections, whether broadband or dial-up, typically employ dynamic IP addresses, while commercially leased lines and servers typically employ static IP addresses. Because it was most likely a dynamic IP address, the defendant is correct in his assertion that a person using that address one month may not have been the same person using it the next. In order to use a dynamic IP address to identify the name and residential address of its user, a court order must ask the owner of that IP address, i.e., the internet service provider (ISP), who used the particular IP address on the date in question.
Id. at *6. Based on these considerations, the court agreed that "[b]y failing to include this information, it is not clear in the affidavit whether Charter Communications supplied the subscriber information of the person using the IP address on the date the incriminating conversation took place." Id.
Nevertheless, the court held that this omission was a harmless defect that did not invalidate the search warrant and did not foreclose the magistrate from reasonably finding probable cause. Id. at *6, *9. The court concluded that even though the affidavit did not specify the date that Charter connected the IP address with Shields's address, the issuing magistrate was nonetheless "free to draw upon his common sense to infer ... a fair probability that Charter Communications supplied the address of the IP user on the particular date and time of the conversation because that was the only sensible thing for Charter Communications to do." Id. at *8. After all, the court reasoned, the search warrant affidavit had identified only a single subscriber associated with the IP address; "given the nature of dynamic IP addresses, it was more than likely that Charter Communications would have come back with multiple subscribers for that IP address if it had not limited its search to the subscriber of the IP address on the date and time the incriminating conversation took place." Id. In support of this holding, the Connecticut court noted that its controlling law requires the "greatest deference" to the reasonable inferences that the magistrate might have drawn, not a "hypertechnical analysis" of the affidavit. Id. at *9 ; see Midkiff v. Commonwealth , 54 Va.App. 323, 678 S.E.2d 287, 293 (2009) ("While the affidavit here did not contain the date range the IP address at issue was assigned to appellant at his listed residence, we conclude it did establish a nexus—however slight—between the item sought and the premises to be searched." (internal quotation omitted)), aff'd , 280 Va. 216, 694 S.E.2d 576 (2010).
We agree with this reasoning. It would have been reasonable for the magistrate to infer that the "agents who prepared or assisted in preparing the search warrant affidavit understand how IP addresses function" and thus understood the need to isolate IP address ownership on the date of incriminating uploads. See United States v. Latham , No. 2:06CR379LDG(GWF), 2007 WL 4563459, at *6 (D. Nev. Dec. 18, 2007), aff'd , 379 F. App'x 570 (9th Cir. 2010). It also cannot be disputed that Charter is no stranger to the subpoena process, and it would have been reasonable to infer that Charter knew to identify the subscriber associated with IP address on the day of the uploads, the subject date of the police investigation and thus the most natural object of inquiry. See, e.g., United States v. Soderholm , No. 4:11CR3050, 2011 WL 4448960, at *6 (D. Neb. Sept. 26, 2011), ("[I]n response to an administrative subpoena, Charter Communications stated that at the date and time files were being downloaded by SA Couch from IP address 75.135.246.124, that IP address was assigned to an account registered to the defendant at 916 11th Avenue, Holdrege, Nebraska." (emphasis added)), report and rec. adopted , No. 4:11CR3050, 2011 WL 5444053 (D. Neb. Nov. 9, 2011). That is, the magistrate could have reasonably inferred that Charter met a police inquiry with the most natural source of police interest: who owned the IP address on the date of the uploads. And as in Shields , Charter identified only a single subscriber who was associated with the IP address. 2007 WL 1828875, at *8. We give great deference to these inferences on appeal.
Moreover, none of the usual staleness variables cut against the magistrate's determination that the detective established probable cause for a search warrant despite the lapse of time. As to the character of the suspect and the premises, the affidavit suggested a long-term connection. The affidavit linked Bordelon, the IP address, and the physical address together, establishing Bordelon as the owner of both. The magistrate could have reasonably inferred that Bordelon's home ownership status made him an "entrenched resident." See Crider , 352 S.W.3d at 708 (internal quotation omitted).
As to the nature of the crime and the items to be seized, Detective Grounds testified in the affidavit that those who collect child pornography often maintain their collections and contacts in secret and "rarely" destroy these materials:
Such persons have a sexual attraction to children and receive gratification from fantasies fueled by sexual depictions of children;
They tend to collect sexually explicit materials in several forms that could be recovered through a search of the premises, including computer images;
They maintain and privately guard their collections of illicit materials in their homes and "rarely destroy these materials because of the psychological support they provide";
They "often seek out like-minded individuals, either in person or on the Internet, to share information and trade depictions of child pornography and child erotica as a means of gaining status, trust, acceptance[,] and support";
They often maintain contact information—including names, phone numbers, and physical and email addresses—for persons who have publicized their interest in child pornography, maintaining these contacts as a means of personal referral, exchange, or profit;
They use different internet-based vehicles to communicate with the likeminded—including e-mail, bulletin boards, IRC, instant messaging, and the like—and in so doing, they leave digital traces of the communications stored on the computer either unintentionally (such as when the computer automatically saves temporary files) or intentionally (such as "by saving an e-mail as a file on the computer or saving the location of one's favorite websites in ‘bookmarked’ files").
She further testified the trace evidence of possession that is retained in a computer's databanks is "often maintained indefinitely or until overwritten by other data." Courts have often held that child-pornography cases are continuous criminal endeavors that are more resistant to staleness arguments, especially because "collectors of child pornography tend to retain" the underlying contraband. Ex Parte Jones , 473 S.W.3d 850, 857 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd) (collecting cases). Thus, "[i]n the context of child-pornography cases, Texas and federal courts have repeatedly rejected claims that the passage of months or even more than a year between the alleged activity and issuance of the warrant renders the information within an affidavit stale." Ahern v. State , No. 03-14-00090-CR, 2016 WL 7046813, at *5 (Tex. App.—Austin Dec. 1, 2016, pet. ref'd) (mem. op., not designated for publication). Both the affidavit and precedent show that this was not a passing form of "possession of a consumable contraband [that] may be over with a gulp or snort," but a more enduring form of possession. See McLain , 337 S.W.3d at 273–74 (quoting Swearingen v. State , 143 S.W.3d 808, 813 (Tex. Crim. App. 2004) (Cochran, J., dissenting)).
We therefore reject Bordelon's argument that the passage of time between the initial tips and the detective's investigation vitiated the factual basis for probable cause.
3. A Minor Discrepancy in the Description of the Premises Did Not Require Suppression
Next, Bordelon argues that an error in the description of his home rendered the affidavit faulty. The affidavit described the premises in the following terms:
A single family dwelling located at 2613 Meadowview Court, McKinney, Collin County, Texas 75071. The exterior of the single family residence is a one-story dwelling constructed of red brick with a tan trim. The residence faces north. The numerical "2613" is located east of the front door in black with beige border imbedded in the red brick next to the garage.
Bordelon points out that this description contains a single factual error in that his house is undisputedly a two-story dwelling rather than a one-story dwelling as the affidavit states. He concedes that all of the other descriptors are correct.
In reviewing the adequacy of location descriptions contained in the search warrant, we look to the interests and rights sought to be protected. State v. James , 848 S.W.2d 258, 261 (Tex. App.—Beaumont 1993, no pet.) ; see Mincey v. State , No. 05-07-01608-CR, 2009 WL 1058734, at *4 (Tex. App.—Dallas Apr. 21, 2009, no pet.) (not designated for publication) (reviewing an error in an affidavit's description by drawing on these interests). The constitutional objectives of requiring a particular description of the place to be searched include (1) ensuring that the officer searches the right place; (2) confirming that probable cause is, in fact, established for the place described in the warrant; (3) limiting the officer's discretion and narrowing the scope of his search; (4) minimizing the danger of mistakenly searching the person or property of an innocent bystander or property owner; and (5) informing the owner of the officer's authority to search that specific location. Long v. State , 132 S.W.3d 443, 447 (Tex. Crim. App. 2004). "These objectives are not furthered by rigid application of the rules concerning warrants," for "the rights of society and of the innocent third party can best be protected by evaluating each search warrant individually." Green v. State , 799 S.W.2d 756, 757 (Tex. Crim. App. 1990).
In Etchieson v. State , the affidavit described the premises to be searched as a "residence, split-level, red and green brick , located at Route 3, Box 435, Lewisville, Denton County, Texas" that was owned by Etchieson. 574 S.W.2d 753, 759 (Tex. Crim. App. 1978) (op. on motion for reh'g) (emphasis added). The record bore out all of these descriptors except that composition of the house was "red brick with green trim. " Id. (emphasis added). The court concluded that this error did not require reversal: "minor discrepancies ... in a search warrant otherwise sufficiently describing the general location of the premises and specifically describing the premises themselves will not vitiate a search warrant for insufficient description." Id. "All that is required is that there be sufficient definiteness to enable the officer to locate the property and distinguish it from other places in the community." Id.
Here, as in Etchieson , the great majority of the description was correct, including the description of the premises’ address, and its character (single-family dwelling), composition (red brick with tan trim), bearing (facing north), and markings (with the address number located on the front door in black with beige border imbedded in the red brick next to the garage). See id. As in Etchieson , the only error was in the description of a single physical characteristic. See id. We conclude that this minor discrepancy did not require suppression, both because it presented "little risk that the executing officer would confuse" the premises with another, see State v. Manry , 56 S.W.3d 806, 810 (Tex. App.—Texarkana 2001, no pet.), and because the record establishes that "[o]fficers were able to, and actually did, locate appellant's" premises without engaging "in the type of general search[es] and seizures that our forefathers feared," see Affatato v. State , 169 S.W.3d 313, 317 (Tex. App.—Austin 2005, no pet.).
We overrule Bordelon's second issue.
IV. THE EVIDENCE WAS SUFFICIENT
In his third issue, Bordelon challenges the sufficiency of the evidence to support his conviction. As we understand his argument, he does not deny that the images in question constitute child pornography or that, if he knowingly possessed them, he would have appreciated their criminal character. Rather, he solely contests the evidence to show that he intentionally or knowingly possessed the images at all. According to Bordelon, the State's evidence does not show the images’ presence on his computer was anything other than inadvertent happenstance.
A. Standard of Review
To evaluate the sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict to determine whether any rational factfinder could have found the crime's essential elements beyond a reasonable doubt. Queeman v. State , 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). The factfinder alone judges the evidence's weight and credibility. Id. When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the verdict, and we defer to that determination. Murray v. State , 457 S.W.3d 446, 448–49 (Tex. Crim. App. 2015). For computer-pornography cases, like all criminal cases, a court must assess whether the inferences necessary to establish guilt are reasonable based upon the cumulative force of all the evidence considered in the light most favorable to the verdict. Wise v. State , 364 S.W.3d 900, 905 (Tex. Crim. App. 2012). "Under this standard, evidence may be legally insufficient when the record contains either no evidence of an essential element, merely a modicum of evidence of one element, or if it conclusively establishes a reasonable doubt." Queeman , 520 S.W.3d at 622.
B. Applicable Law
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). "Visual material" includes any "physical medium that allows an image to be displayed on a computer." Id. § 43.26(b)(3)(B). A person acts intentionally with respect to the nature of his conduct when it is his conscious objective or desire to engage in the conduct. Id. § 6.03(a). A person acts knowingly or with knowledge of the nature of his conduct or circumstances "when he is aware of the nature of his conduct or that the circumstances exist." Id. § 6.03(b). The Penal Code defines "possession" of contraband as "actual care, custody, control, or management." Id. § 1.07(a)(39).
A defendant's mere presence at the location where the contraband is found is insufficient by itself to establish actual care, custody, or control of the contraband. Tate v. State , 500 S.W.3d 410, 413 (Tex. Crim. App. 2016). When the contraband is not in the exclusive possession of the defendant, a factfinder may nonetheless infer that the defendant intentionally or knowingly possessed the contraband if there are sufficient independent facts and circumstances or "links" justifying such an inference. Id. at 413–14 ; see Ballard v. State , 537 S.W.3d 517, 523–24 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd) (applying this links test to possession of child pornography); Wilson v. State , 419 S.W.3d 582, 587–88 (Tex. App.—San Antonio 2013, no pet.) (same). It is not the number of links that is important but rather the logical force of all of the evidence. Evans v. State , 202 S.W.3d 158, 162 (Tex. Crim. App. 2006). This "affirmative links" rule protects the innocent bystander from conviction merely because of his fortuitous proximity to someone else's contraband. Id. at 161–62.
Proof of a culpable mental state almost invariably depends upon circumstantial evidence and may be inferred from any facts tending to prove its existence, including the acts, words, and conduct of the accused. Stepherson v. State , 523 S.W.3d 759, 763 (Tex. App.—Houston [14th Dist.] 2017, no pet.). Sufficient evidence to support a determination that the defendant had knowledge of the images of child pornography on his computer may commonly include evidence that:
(1) the images of child pornography were found in different computer files, showing the images were copied or moved;
(2) the images of child pornography were found on an external hard drive or CD, which indicates the images were deliberately saved on the external devices;
(3) the images stored on the computer and the external hard drive were stored in similarly named folders;
(4) the names of the folders containing the images of child pornography necessarily were assigned by the person saving the file; or
(5) the recovery of numerous images of child pornography were recovered from the defendant's computer.
Ballard , 537 S.W.3d at 523 ; Savage v. State , No. 05-06-00174-CR, 2008 WL 726229, at *5 (Tex. App.—Dallas Mar. 19, 2008, pet. ref'd) (not designated for publication).
C. Discussion
The evidence in this case would have permitted the factfinder to reasonably determine that Bordelon knowingly possessed the images for which he was convicted.
The investigation into Bordelon began after his IP address was implicated in four uploads of child pornography for the purpose of searching for more child pornography on January 2, 2019. See Lewis v. State , No. 13-17-00491-CR, 2018 WL 4924936, at *5 (Tex. App.—Corpus Christi–Edinburg Oct. 11, 2018, pet. ref'd) (mem. op., not designated for publication) (holding that searches for child pornography were circumstantial evidence of knowledge). The resulting raid of his residence uncovered at least twenty images of child pornography on his work laptop, eight of which were made the subject of the indictment in this case.
When police executed the warrant, they interviewed Bordelon and showed him the image that was flagged in the initial tip from Microsoft. According to Detective Grounds, Bordelon reacted in an abnormal way: "he had kind of looked at it, smiled and laughed as he looked away, and then looked at it again. It just wasn't a normal reaction." Detective Grounds testified that she had never seen a reaction of that kind in investigating other cases. See Creech v. State , Nos. 05-09-00762-CR, 05-09-00763-CR, 2011 WL 1663040, at *8 (Tex. App.—Dallas May 4, 2011, pet. ref'd) (mem. op., not designated for publication) (relying in part on the appellant's lack of surprise to being confronted with child pornography to hold evidence sufficient to show knowing possession). In addition to contraband, police found on Bordelon's laptop an image of another local man who had been arrested for child pornography.
Bordelon reported to Deloitte that the laptop had been stolen soon after it was confiscated by police, which prompted Deloitte to set the computer to be remotely erased. "Attempts to conceal incriminating evidence" are"circumstances of guilt." Guevara v. State , 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). In the same vein, there was evidence that Bordelon used software—including "Hyper-V" or other virtualization software and the "incognito mode" option on his web browser—to conceal his activities with respect to child pornography and attempt to prevent the computer from creating a data trail. See Gasper v. State , Nos. 01-16-00930-CR through 01-16-00932-CR, 2017 WL 4249558, at *10 (Tex. App.—Houston [1st Dist.] Sept. 26, 2017, no pet.) (mem. op., not designated for publication) (citing, among the sufficient evidence, the defendant's possession of "anti-forensic" software designed to purge data that could be used to track illicit activity, and collecting similar cases). By contrast, there was testimony that Bordelon often did not use the same concealment software when searching for adult pornography on the same computer, which the factfinder was entitled to consider as a further indication of knowledge.
Moreover, with respect to the January 2 internet search for child pornography, McMillian found evidence that the virtualization software was used to view photos of Bordelon's daughter around the same timeframe, which to McMillian suggested that "whoever was reviewing the child porn had ... an intimate knowledge of Mr. Bordelon." The link between the active access to contraband and to Bordelon's personal documents could have reasonably informed the trial court's opinions on knowing possession. See Krause v. State , 243 S.W.3d 95, 111 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd) (holding evidence sufficient where child pornography was found alongside appellant's personal documents).
According to McMillian, all of the illicit activity was conducted from Bordelon's personal account on the computer, including the Bing searches for child pornography that precipitated the investigation. See Ford v. State , No. 09-09-00525-CR, 2010 WL 4263764, at *6 (Tex. App.—Beaumont Oct. 27, 2010, no pet.) (mem. op., not designated for publication) (citing proof associating the appellant's name, unique account details, and password with the download of the illicit images among the sufficient evidence). McMillian refuted the idea that Bordelon might have given the password to his work computer to others; he testified that he found no evidence of remote tampering of this kind, and he explained that sharing of passwords in this fashion would be discouraged in the corporate consulting world that was Bordelon's realm.
There was also evidence that Bordelon had interacted with the images at least insofar as forensic data showed that he opened and accessed the cache folder where the images were found. According to McMillian, the interactions left distinctive trace evidence of a kind that was "highly improbable" to have been created by anything other than an intentional interaction. See Ballard , 537 S.W.3d at 523 (outlining various ways that interacting with the images tends to support the factfinder's inference of knowing possession).
In its role as the factfinder, the trial court was entitled to consider all of this evidence in making its evaluation of credibility and weight. Queeman , 520 S.W.3d at 622. It was also the trial court's right to draw inferences from this proof toward the ultimate question of guilt, and our role is solely to assess whether the necessary inferences are reasonable. Murray , 457 S.W.3d at 448.
To rebut all this evidence, Bordelon advanced multiple defensive theories. For example, he suggested that he had given the password for his internet router out to neighborhood children, who, he surmised, might have downloaded the pornography to his laptop. He also developed the possibility that Deloitte might have given him a used laptop without overwriting all of the old data, thus meaning he inherited the crime of another Deloitte employee. And Bordelon theorized he might have inadvertently downloaded the child pornography through his web browser's automatic image-cache feature while browsing for adult pornography on Pornhub.com because that website had child pornography on it in 2019. Bordelon also defended his reaction to being confronted with the evidence of child pornography, saying that he was merely nervous due to police interrogation, as any innocent person might be. On appeal, Bordelon emphasizes these and other defensive theories, suggesting that they establish reasonable doubt.
But the trier of fact heard all of this evidence—along with McMillian's rebuttals—and did not conclude that this defensive evidence gave rise to reasonable doubt. We are bound to defer to that determination on appeal. See Murray , 457 S.W.3d at 448–49. And to the extent that Bordelon ventures other theories about how the pornography appeared on his computer, "the State need not disprove all reasonable alternative hypotheses that are inconsistent with the defendant's guilt" in order for the evidence to be sufficient. Wise , 364 S.W.3d at 903. Taken collectively, the factfinder could have determined that the evidence in this case showed that Bordelon's digital fingerprints were on the contraband, which suffices to show knowing possession. Thus, based on the cumulative force of all the evidence, the trial court could have rationally found Bordelon guilty beyond a reasonable doubt. See Queeman , 520 S.W.3d at 622.
We overrule Bordelon's third issue.
V. CONCLUSION
We affirm the judgment of conviction.
Molberg, J., concurs in the judgment without opinion.