Corey Ryan Armstrong v. State ( 2009 )

IN THE
TENTH COURT OF APPEALS
No. 10-08-00114-CR
No. 10-08-00115-CR
No. 10-08-00116-CR
No. 10-08-00117-CR
COREY RYAN ARMSTRONG,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 361st District Court
Brazos County, Texas
Trial Court Nos. 07-05104-CRF-361, 06-01672-CRF-361,
06-01673-CRF-361 and 06-01674-CRF-361
MEMORANDUM OPINION
Corey Ryan Armstrong was convicted of a total of 22 counts, charged in four
indictments, of possession of child pornography. TEX. PENAL CODE ANN. § 43.26
(Vernon 2003). Armstrong pled guilty to each count after the trial court denied his
motion to suppress. He appeals that denial. Because the search warrant affidavits were
sufficient to establish probable cause, the trial court’s judgment is affirmed.
SEARCH WARRANTS
Law enforcement officers executed search warrants at two different locations to
gather evidence that Armstrong possessed child pornography. The first location
searched was Armstrong’s dormitory room at Texas A&M University. The second
search was conducted approximately two years later at Armstrong’s residence on
Cherry Street in College Station. In one issue, Armstrong asserts that the search
warrant affidavits failed to set forth probable cause to believe contraband would be
located at the suspected places.
Probable cause to issue a search warrant exists when, under the totality of the
circumstances, there is a "fair probability" that contraband or evidence of a crime will be
found at the specified location. Rodriguez v. State, 232 S.W.3d 55, 60 (Tex. Crim. App.
2007). The inquiry for reviewing courts, including the trial court, is whether there are
sufficient facts, coupled with reasonable inferences from those facts, to establish a "fair
probability" that evidence of a particular crime will likely be found at a given location.
Id. at 62. “We must defer to the magistrate's finding of probable cause if the affidavit
demonstrates a substantial basis for his conclusion.” Id. at 64.
When reviewing a probable cause determination, 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. Id. at 62. Further, it is not necessary to delve into all of the
facts that were omitted by the affiant, facts that could have been included in the
affidavit, or contrary inferences that could have been made by the magistrate. Id. at 64.
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The only issue is whether the facts that actually were in the affidavit, combined with all
reasonable inferences that might flow from those facts, are sufficient to establish a "fair
probability" that evidence of a particular crime will likely be found at a given location.
Id.
Appellate Case Numbers 10-08-00115-CR, 10-08-00116-CR, and 10-08-00117-CR
As to the affidavit applicable to appellate case numbers 10-08-00115-CR, 10-08-
00116-CR, and 10-08-00117-CR, Armstrong contends the affidavit did not contain facts
from which the magistrate could properly conclude there was probable cause to search
the suspected place, Armstrong’s dormitory room. But Armstrong’s argument focused
on what facts were not in the affidavit. Our review, however, is limited to the facts that
were contained in the affidavit.
Without restating all the information contained in the very lengthy probable
cause affidavit, we note that the following information was included. In September of
2004, a Yahoo subscriber posted several images of child pornography to a Yahoo Inc.
Message group. An investigation was conducted through which it was determined that
two different user names were involved in posting the images. One user name was
located in Brazos County, Texas. This user name uploaded 6 images depicting child
pornography to his Yahoo account.
A subpoena to Yahoo revealed that the Internet Protocol address captured when
the user name last logged on, on September 7, 2004, was owned by Texas A&M
University in College Station, Texas. A subpoena issued to Texas A&M revealed that
the subscriber for that IP address was Cory R. Armstrong, a student who was living in
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Dormitory 12. Further investigation revealed that Armstrong’s room number was 12-
113.
The affidavit also alleged that absent fraud, computer intrusion, or disclosure of
one’s private account password, a user’s screen name or email account cannot be
accessed by the general public. Child pornography collections are likely to be located in
the suspect’s home. Persons involved in sending or receiving child pornography tend
to retain those materials for extended periods of time—months or even years. Graphic
image files containing child pornography can be maintained for long periods of time in
a number of ways: on a computer’s built-in hard disk drive, on portable storage disks,
on CD-ROMs, or on other computer media. Even when the pornographic files have
been deleted, computer forensic experts are often able to recover the images. Persons
who use personal computers in their homes tend to retain their personal files and data
for extended periods of time.
Based on a review of the facts contained in the affidavit, combined with the
reasonable inferences that might flow from those facts, we hold that there is a
substantial basis to support the magistrate’s conclusion that those facts were sufficient
to establish a "fair probability" that evidence of possession or promotion of child
pornography would likely be found in Armstrong’s dormitory room. Thus, the
affidavit was sufficient to establish probable cause.
Armstrong also contends the trial court relied on stale and conclusory
information in the affidavit in support of this particular search warrant. In his written
motion to suppress, Armstrong generally states that the affidavit contains stale
Armstrong v. State Page 4
information and consists of conclusions that have no factual support. He then lists a
plethora of “facts” that the warrant lacks which all appear to go to the sufficiency of the
affidavit to establish probable cause. He does not point the trial court to what
information in the affidavit he alleges to be stale, nor does he point to what information
he believes to be conclusory. At the hearing on the motion, Armstrong simply relies on
his motion. Now on appeal, Armstrong attempts to specifically argue what information
he believes to be stale and conclusory. Because Armstrong did not argue in his motion
or at the hearing what information contained in the search warrant affidavit was either
stale or conclusory, he has not preserved these arguments for review on appeal. See
TEX. R. APP. P. 33.1; Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005)
("Appellant's global statements in his pretrial motion to suppress were not sufficiently
specific to preserve the arguments he now makes on appeal.").
Appellate Case Number 10-08-00114-CR
As he argued regarding the affidavit previously discussed, Armstrong also
contends the affidavit involved in appellate case number 10-08-00114-CR, which was
issued well after the above referenced warrants had been issued, evidence seized, and
charges filed, did not contain facts from which the magistrate could properly conclude
there was probable cause to search the suspected place, Armstrong’s subsequent
residence on 707 Cherry Street in College Station, Texas. In a nutshell, Armstrong
argues there were insufficient facts in the affidavit to connect him with the residence or
that a computer was located at the residence at the time an on-line chat between
Armstrong and an undercover officer posing as a 13-year-old girl, “Ashton,” took place.
Armstrong v. State Page 5
A transcript of the chat attached to the affidavit belies this argument by Armstrong.
During the chat, Armstrong indicated several times that he was at home. He also
indicated he was using a computer. Further, when arrested at the arranged meeting
place with “Ashton,” Armstrong told law enforcement he lived at 707 Cherry Street.
Based on a review of the facts contained in the affidavit, combined with the
reasonable inferences that might flow from those facts, we hold that there is a
substantial basis to support the magistrate’s conclusion that those facts were sufficient
to establish a "fair probability" that evidence of a particular crime would likely be found
at 707 Cherry Street in College Station, Texas. Thus, the affidavit was sufficient to
establish probable cause.
CONCLUSION
The affidavits were sufficient to establish probable cause. Armstrong’s issue is
overruled, and the trial court’s judgment in each proceeding is affirmed.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed April 29, 2009
Do not publish
[CR25]
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