Opinion
No. 05-08-00651-CR
Opinion issued April 3, 2009. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the 199th Judicial District Court, Collin County, Texas, Trial Court Cause No. 199-80383-06.
Before Justices FRANCIS, LANG-MIERS, and MAZZANT.
OPINION
Ricky Don Dawes was convicted by the trial court of child pornography and sentenced to ten years in prison. In three points of error, he claims the trial court erred in admitting the fruits of an unlawful search into evidence and the evidence is legally and factually insufficient to support his conviction. We affirm. Dallas Police Detective Randy Penn is assigned to the Internet Crimes Against Children Task Force. In September 2004, he received a tip from the National Center for Missing and Exploited Children (NCMEC) regarding images of child pornography on a Yahoo account; Yahoo is a worldwide internet service provider. NCMEC serves as a clearinghouse for child pornography and other online sex crimes against children, and federal law requires internet service providers to report child pornography to NCMEC. Penn learned from NCMEC that the Yahoo account with the user name "txperv69" had posted images of child pornography on a photo-sharing site. Penn obtained a search warrant for Yahoo in order to retrieve the internet protocol (IP) address associated with the images. The records from Yahoo revealed an IP address belonging to MCI registered to NetZero. Penn subpoenaed NetZero and obtained appellant's address and telephone number. Because the address and telephone number were in Collin County, Penn contacted the Collin County Sheriff's Department and spoke to Deputy Dale Ingram. After turning the case over to Ingram, Penn received a second tip involving the same IP address but a different screen name and different images. Penn also passed this additional information to the Collin County Sheriff's Department. The images associated with the screen names appeared to be child pornography. Acting on the information received from Penn as well as his further investigation, Ingram obtained a search warrant for appellant's trailer home. Two computers were seized during this first search, and the computers were turned over to the Secret Service for analysis. The photographs forming the basis of this case were accessed the day before the search warrant was executed. Ingram conducted a videotaped interview of appellant during which appellant admitted he owned the computers seized but disputed whether the images on the computers were child pornography. Ingram continued to monitor several screen names, including the screen name "arkfamfun" which was also registered to appellant, as well as web sites used by appellant. Based on the continued investigation, a second search warrant was executed, and an additional computer recovered from appellant's residence. Appellant was tried first on offenses stemming from the second search. A jury convicted appellant on two counts of child pornography based on evidence obtained from the second search of appellant's residence; the trial court sentenced him to eight years in prison in each case. In the case at issue here, a second indictment alleging two counts of child pornography, based on evidence obtained from the first search, was tried on a plea of not guilty to the trial court. Appellant was convicted on the second count and sentenced by the court to ten years in prison. Appeal is taken from that conviction. In his first point of error, appellant claims the trial court erred in overruling his objection to the admission of the search warrant. Appellant contends the affidavit is insufficient to support the search warrant because it was based on an anonymous tip and the affidavit did not address the reliability of the anonymous tipster. Specifically, appellant argues, "At no time was the anonymous tipster to Yahoo identified, nor the person from Yahoo to NMCEC [sic], nor the person from NMCEC [sic]." The State responds the trial court properly overruled the objection because the warrant was issued based on reports from presumptively credible public entities, a peace officer, and record searches indicating appellant possessed child pornography. We review a trial court's ruling on a motion to suppress under a bifurcated standard of review by giving almost total deference to a trial court's determination of historical facts and reviewing de novo the court's application of the law. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). Our review of an affidavit in support of a search warrant, however, is not de novo and great deference is given to a magistrate's decision to issue the search warrant. Swearingen v. State, 143 S.W.3d 808, 811 (Tex.Crim.App. 2004); Lane v. State, 971 S.W.2d 748, 752 (Tex.App.-Dallas, 1998, pet. ref'd). The duty of the reviewing court is to determine whether, considering the totality of the circumstances, the magistrate had a substantial basis for concluding that probable cause existed to support the issuance of the warrant when viewing the affidavit. Illinois v. Gates, 462 U.S. 213, 236-37 (1983). The reliability of an affiant and his sources of information are part of the "totality of the circumstances" that the magistrate should evaluate in making his probable cause determination. Johnson v. State, 803 S.W.2d 272, 289 (Tex. Crim App. 1990), overruled on other grounds by Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App. 1991). Although the trial court is bound by the four corners of the document in determining whether probable cause exists to issue a warrant, a magistrate may draw reasonable inferences from the affidavit and must interpret the affidavit in a common sense and realistic manner. Ramos v. State, 934 S.W.2d 358, 362-63 (Tex.Crim.App. 1996). Thus, the task of a magistrate in determining whether to issue a search warrant is to make a practical decision whether, given all the circumstances set out in the affidavit, including the veracity and basis of knowledge of persons supplying hearsay information, a fair probability exists that contraband or evidence of a crime will be found in a particular place. Gates, 462 U.S. at 238; Ramos, 934 S.W.2d at 363. "The 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 v. State, 232 S.W.3d 55, 59 (Tex.Crim.App. 2007) (quoting United States v. Ventresca, 380 U.S. 102, 109 (1965)). "We must defer to the magistrate's finding of probable cause if the affidavit demonstrates a substantial basis for his conclusion." Id. Statements made during a motion to suppress hearing do not factor into the probable cause determination. Massey v. State, 933 S.W.2d 141,148 (Tex.Crim.App. 1996). Addressing first the preservation of error on appeal, we note that appellant did not file a written motion to suppress the evidence seized from the first search of his trailer home and the issue of probable cause was first raised at trial during the testimony of Detective Penn. When the State moved to admit the affidavit and search warrant, appellant referenced "paragraph six" of the warrant that mentioned a cyber tip to NCMEC. Comparing the tip received through NCMEC to that of a tip from a confidential informant to police in a drug case, appellant argued the State had not proven the reliability what he apparently thought was an anonymous cyber tip to NCMEC in violation of the Fourth and Fourteenth Amendments of the Constitution of the United States and article 1, sections 9 and 16 of the Texas Constitution. Deputy Ingram was questioned further. Upon learning that NCMEC actually received its tip from Yahoo, appellant then argued the affidavit did not establish probable cause because the State failed to offer evidence on the reliability of the person or entity who "called Yahoo" or to the reliability of the person at Yahoo who saw the images posted by one of their users. Specifically, appellant argued he did not "know if it's somebody at Yahoo or some individual that called Yahoo." The objection was overruled, and the search warrant and affidavit were admitted into evidence. When the actual disc containing the images seized during the search of appellant's trailer was offered into evidence by the State, appellant objected saying, "Based on my previous objection to the warrant, your Honor, because I don't want to waive that, we have no objection to the admission of this particular [exhibit]." For a complaint to be presented on appeal, a timely request, objection, or motion generally must have been made to the trial court, stating the grounds "with sufficient specificity to make the trial court aware of the complaint." Tex. R. App. P. 33.1(a)(1)(A). A motion to suppress is a specialized objection to the admissibility of evidence. See Martinez v. State, 17 S.W.3d 677, 682-83 (Tex.Crim.App. 2000). If the objection made in the trial court differs from the complaint made on appeal, a defendant fails to preserve error for review. See Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002). Appellant's oral objection at trial is sufficient to preserve his complaint on appeal that "the trial court erred in allowing in the fruits of an unlawful search" and his argument the search warrant did not establish probable cause based on the failure of the State to establish the reliability of the Yahoo cyber tip to NCMEC. See Krause v. State, 243 S.W.3d 95, 103 (Tex.App.-Houston [1st Dist.] 2007, pet. ref'd). However, appellant's issue on the reliability of the cyber tip from NCMEC to Detective Penn was not made to the trial court and is therefore not preserved for our review. The five-page affidavit was executed by Deputy Ingram, a twenty-six-year veteran of the Collin County Sheriff's Department, on current assignment to the Child Abuse Task Force of Collin County. The information was based on Ingram's education in the field of internet crimes against children, his experience, and investigation in this case. The affidavit identifies two computer files depicting photographs of two underage females, "Chelsa" and "Vicky," identified through NCMEC but personally viewed and described in detail by Ingram. The affidavit outlines the method images of this type are collected, stored, analyzed, concealed, transmitted, and retained by computer. As for the basis of the information from Yahoo, the affidavit states (exactly as presented without any corrections or edits):
5. Yahoo Inc. maintains at the bottom of each of its web pages a "Terms Of Service" button which any subscriber can click. With in those pages Yahoo indicates viewing materials which violates Yahoo "TOS" or violates any Local, State, National or International law is subject to suspension of service, and that any and all items in the account may be preserved for legal process, enforce Yahoo "TOS", and the protection of the rights of others.
6. Affiant Bases this Affidavit information provided by the following source; that on or about September 14, 2004, Detective Randell Penn #4791 of the Dallas Police Department assigned to the Child Exploitation Unit / Internet Crimes Against Children's task Force, received a Cyber tip from NCMEC regarding a complaint from Yahoo Inc. about images of child pornography being posted into the photo album of Yahoo ID "txperv69" on September 8, 2004. The images captured were sent by Yahoo to NCMEC, and the account "txperv69" was shut down to prevent further access by the account holder.
7. Based on the Cyber tip from NCMEC, Detective Penn viewed the material and determined that the computer images up posted by the account holder using the screen name "txperv69" violated Texas Penal Code Section 43.26, which makes it a third degree felony for a person to knowingly or intentionally possess, promote, or possess with the intent to promote material that visually depicts a child younger than 18 years of age at the time the image of the child was made engaged in sexual conduct, and the person knows that the material depicts the child as described.
8. The material up-posted/ posted and transmitted by Yahoo account "txperv69" is identified as:
a. Nude, White female lying on back on a blue sheet and with white clouds which displays the entire body, with focus on the female sexual organ. The image has been identified by NCMEC as a photograph found in the series "Chelsa"
b. Nude, White female lying on stomach, dark hair in pony tails, right hand grasping a male penis, and the child's mouth being placed on the penis. The image has been identified by NCMEC as a photograph found in the series "Vicky".
c. Nude, white female, standing inside the doorway an unknown structure. The image has yet to be identified.
d. Artist colored drawing of a fictional character depicting a nude, white female child.
9. Through Dallas County Grand Jury subpoena's, to Yahoo, Detective Penn learned that the Yahoo screen name "txperv69" was registered to Ricky Don Dawes, located at 9669 CR 423, also listed as being 9889 Dry Creek Wash, Anna Texas 75409.The affidavit concluded with Ingram's statement that probable cause existed to believe that "the files and documents identified in section 6," as well as records pertaining to the origination, acquisition, and distribution of graphic computer images depicting sexual conduct of children under the age of 18years are located at appellant's residence. The search warrant and supporting affidavit were presented to and signed by 219th Judicial District Judge Curt Henderson of Collin County. Applying the above standards and after reviewing de novo the facts set out in the four corners of the affidavit, we conclude the affidavit was sufficient to allow the magistrate to determine probable cause existed. Contrary to appellant's assertion that the tip was anonymous and similar to a confidential informant in a drug case, the cyber tip came "from Yahoo Inc." While the affidavit does not identify a specific person from Yahoo that first viewed the images and does not allege prior reliability of either Yahoo or a specific person, the failure to allege prior reliability is generally not a fatal defect in an affidavit. See Doescher v. State, 578 S.W.2d 385, 388 (Tex.Crim.App. [Panel Op.] 1978). Yahoo, a well-known corporation that provides internet services worldwide, has a stated interest in protecting its users from viewing materials that violate local, state, national, and international law. From the totality of the facts outlined in the affidavit, the magistrate could have reasonably concluded that "Yahoo Inc." was a reliable source of information. See Frazier v. State 480 S.W.2d 375, 379 (Tex.Crim.App. 1972) (magistrate entitled to rely on information provided by private citizen, since, unlike many police informants, they are much less likely to produce false or untrustworthy information and only contact with police is result of having witnessed a criminal act committed by another). The fact that Yahoo, Inc. is a public corporation that came forward with information about the commission of a crime and is named in the affidavit carries an indicia of reliability. See Johnson, 803 S.W.2d at 289; Esco v. State, 668 S.W.2d 358, 360-61 (Tex.Crim.App. 1982) (citing Wood v. State, 573 S.W. 2d 207, 216 n. 2 (Tex.Crim.App. 1978); Frazier, 489 S.W.2d at 379. Finally, we note another indicia of reliability. Unlike a confidential informant in a drug case who reports what he sees to officers, both Ingram and Penn, long-tenured law enforcement officers with significant experience in combating child abuse, viewed the exact images sent by Yahoo and concluded the images were pornographic and likely illegal. Under these circumstances, we defer to the magistrate's determination that Yahoo was a reliable source of information and that the facts and circumstances within the four corners of the affidavit provide a substantial basis for the magistrate's conclusion that child pornography would probably be found at appellant's residence and therefore, the affidavit was sufficient to establish probable cause. We overrule appellant's first point of error. In his second and third points of error, appellant claims the evidence is legally and factually insufficient to support his conviction because "it would be impossible for the trier of fact to reasonably find the photographed individual[s were] underage." In a legal and factual sufficiency challenge, we apply well-known standards. This Court reviews the legal sufficiency of the evidence in the light most favorable to the jury's verdict to determine whether any rational trier of fact could have found the essential elements of the offenses beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hooper v. State, 214 S.W.3d 9, 14 (Tex.Crim.App. 2007). We give deference to "the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper, 214 S.W.3d at 14 (citing Jackson, 443 U.S. at 318-19). The jury is the sole judge of the witnesses' credibility and the weight to be given their testimony and therefore, is free to accept or reject any or all evidence presented by either side. See Lancon v. State, 253 S.W.3d 699, 707 (Tex.Crim.App. 2008). On a factual sufficiency challenge, we view all the evidence from a neutral perspective. Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App.), cert. denied, 128 S. Ct. 282 (2007); Watson v. State, 204 S.W.3d 404, 415 (Tex. 2006). Evidence is factually insufficient if it is so weak that the jury's verdict seems clearly wrong and manifestly unjust. Berry v. State, 233 S.W.3d 847, 854 (Tex.Crim.App. 2007). The difference between the two standards is that the former requires the reviewing court to defer to the jury's credibility and weight determinations while the latter permits the reviewing court to substitute its judgment for the jury on these questions but only "to a very limited degree." Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied, 128 S.Ct. 87 (2007). A factual sufficiency review is "barely distinguishable" from a Jackson legal sufficiency review. Id. A person commits an offense if he intentionally or knowingly possesses visual material that visually depicts, and he knows it visually depicts, a child younger than 18 years of age at the time the image of the child was made and the child in the visual material is engaging in sexual conduct, including actual and simulated lewd exhibition of the genitals. Tex. Penal Code Ann. § 43.26(a) (Vernon 2003). When it becomes necessary to determine whether a child who participated in sexual conduct was younger than 18 years of age, the court or jury may make this determination by inspecting the photograph or motion picture showing the child engaging in the sexual performance. Tex. Penal Code Ann. § 43.25(g) (Vernon Supp. 2008). Deputy Ingram testified he executed the warrant and seized appellant's computers. He sent the computers to the Secret Service for analysis. Special Agent John Day received the computers, analyzed their contents, and prepared a written report of the contents. He identified the photograph forming the basis of appellant's conviction in this case. Deputy Ingram likewise identified the photograph which depicts a young female who lacks the full facial and physical features of an adult. Although he did not have personal knowledge of the actual age of the girl depicted in the photograph, Deputy Ingram said she appeared to be a child under the age of eighteen years of age. Furthermore, the trial court, as trier of fact, could reasonably conclude, after hearing the above evidence and viewing the photograph, the girl was younger than eighteen years of age and appellant knew she was younger than the age of eighteen. Having reviewed the evidence under the appropriate standards of review, we conclude the evidence was both legally and factually sufficient to support appellant's conviction. We overrule appellant's second and third issues. We affirm the trial court's judgment.