E Parte Kerry G. Jones

Affirmed and Opinion filed August 18, 2015.
In The
Fourteenth Court of Appeals
NO. 14-14-00488-CR
NO. 14-14-00489-CR
NO. 14-14-00490-CR
EX PARTE KERRY G. JONES
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Cause Nos. 1283328-A, 1283329-A & 1283330-A
OPINION
Appellant Kerry G. Jones appeals the denial of his post-conviction
application for writ of habeas corpus, arguing that he was denied effective
assistance of counsel on the grounds that his trial counsel failed to file a motion to
suppress. We affirm.
BACKGROUND
In April 2006, the child exploitation section of the United States
Immigration and Customs Enforcement Agency (ICE) initiated an investigation
into a criminal organization operating a commercial child pornography website
known as “The Home Collection.” The investigation lasted three years and
subscribers to the website were identified through purchaser transactions obtained
from bank account records. The bank records revealed that a person using a PayPal
account registered to appellant purchased subscriptions to the website. Using the
bank records, the police were able to obtain appellant’s name and physical address.
On February 19, 2009, the police executed a search warrant to seize three
computers and two hard drives from appellant’s home. A forensic analysis of the
computers and hard drives disclosed over 433 digital images of child pornography
on appellant’s computer.
Appellant was indicted for three counts of the third degree felony offense of
possession of child pornography. Appellant pleaded guilty to all three counts. The
trial court deferred an adjudication of appellant’s guilt and placed him on
community supervision for five years.
On July 9, 2012, appellant filed an application for post-conviction writ of
habeas corpus pursuant to Article 11.072 of the Texas Code of Criminal Procedure.
He alleged that he was denied his claim of ineffective assistance of counsel, among
several other claims. The trial court conducted a hearing and entered an order
denying relief.
STANDARD OF REVIEW
We review a trial court’s determination on an application for writ of habeas
corpus for abuse of discretion. Ex parte Fassi, 388 S.W.3d 881, 886 (Tex. App.—
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Houston [14th Dist.] 2012, no pet.). An applicant seeking post-conviction habeas
corpus relief bears the burden of establishing by a preponderance of the evidence
that the facts entitle him to relief. Id. The trial court is the sole finder of fact in a
habeas proceeding. Ex parte Harrington, 310 S.W.3d 452, 457 (Tex. Crim. App.
2010). In reviewing the trial court’s decision to grant or deny relief, we view the
facts in the light most favorable to the trial court’s ruling. Ex parte Fassi, 388
S.W.3d at 886. We afford almost total deference to the trial court’s findings,
especially when those findings are based on an evaluation of credibility and
demeanor. Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006). We
will uphold the trial court’s judgment as long as it is correct on any theory of law
applicable to the case. Ex parte Taylor, 36 S.W.3d 883, 886 (Tex. Crim. App.
2001) (per curiam).
ANALYSIS OF APPELLANT’S ISSUE
Appellant contends that the trial court erred by denying him relief on his
claim of ineffective assistance of counsel because his trial counsel failed to file a
motion to suppress the child pornography seized from the computers and hard
drives at his apartment. Appellant argues that his trial counsel should have filed a
motion to suppress because (1) the information set forth in the search warrant
affidavit was obtained from PayPal without a warrant; and (2) the search warrant
affidavit failed to set forth sufficient facts to establish probable cause.
To prevail on a claim of ineffective assistance of counsel, appellant must
satisfy the two-prong test by a preponderance of the evidence showing that: (1) his
attorney’s performance was deficient; and (2) his attorney’s deficient performance
deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 694
(1984); Ex parte Chandler, 182 S.W.3d 350, 353 (Tex. Crim. App. 2005). Under
the first prong, appellant must show that counsel’s performance was deficient to
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the extent that counsel failed to function as the “counsel” guaranteed by the Sixth
Amendment. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).
Under the second prong, appellant must establish that counsel’s deficient
performance prejudiced the defense. Id. Prejudice is established by a showing that
there is a reasonable probability that but for counsel’s unprofessional errors, the
result of the proceeding would have been different. Id.
A trial counsel’s failure to file a motion to suppress is not per se ineffective
assistance of counsel. Wert v. State, 383 S.W.3d 747, 753 (Tex. App.—Houston
[14th Dist.] 2012, no pet.) (citing Kimmelman v. Morrison, 447 U.S. 365, 384
(1986)). Counsel is not required to engage in the filing of futile motions. Id. (citing
Mooney v. State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991)). To prevail on an
ineffective assistance claim based on counsel’s failure to file a motion to suppress,
appellant must show by a preponderance of the evidence that the result of the
proceeding would have been different—i.e., that the motion to suppress would
have been granted and that the remaining evidence would have been insufficient to
support his conviction. See Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim.
App. 1998) (holding that appellant is required to prove motion to suppress would
have been granted to prove ineffective assistance of counsel).
No Expectation of Privacy in Subscription Information
Appellant first complains that a motion to suppress should have been filed
because the information contained in the search warrant affidavit was obtained
without a warrant. Appellant argues that a warrant was required to obtain his
subscription information from PayPal.
The purpose of the Fourth Amendment is to safeguard an individual’s
legitimate expectation of privacy from unreasonable government intrusions.
Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). A defendant has
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standing to challenge the admission of evidence obtained by an intrusion by the
government only if he had a legitimate expectation of privacy in the place invaded.
Id. The accused, as the party asserting the privacy expectation, has the burden of
proving facts to establish that such an expectation exists. Id. To establish a
constitutionally protected privacy interest in a possession, an accused must show
that (1) he had an actual, subjective expectation of privacy in the invaded
possession, and (2) his expectation of privacy was one that society accepts as
objectively reasonable. Id.; see Smith v. Maryland, 442 U.S. 735, 740 (1979).
Here, ICE agents obtained appellant’s subscription information from PayPal,
which allowed them to discover appellant’s name and address. Appellant did not
have a reasonable expectation of privacy in this information. See United States v.
Perrine, 518 F.3d 1196, 1204 (10th Cir. 2008) (“Every federal court to address this
issue has held that subscriber information provided to an internet provider is not
protected by the Fourth Amendment’s privacy expectation.”); see also United
States v. Hambrick, 225 F.3d 656 (4th Cir. 2000) (per curiam) (unpublished),
affirming United States v. Hambrick, 55 F. Supp. 2d 504, 508−09 (W.D. Va. 1999)
(holding that there was no legitimate expectation of privacy in noncontent
customer information provided to an internet service provider by one of its
customers); Russo v. State, 228 S.W.3d 779, 802 (Tex. App.—Austin 2007, pet.
ref’d) (stating that there is no Fourth Amendment protection against the disclosure
of subscriber information by internet service providers). This is because
“[i]ndividuals generally lose a reasonable expectation of privacy in their
information once they reveal it to third parties.” Guest v. Leis, 255 F.3d 325, 335
(6th Cir. 2001); see also Barfield v. State, 416 S.W.3d 743, 748−49 (Tex. App.—
Houston [14th Dist.] 2013, no pet.) (holding that defendant does not have a
reasonable expectation of privacy in cell-site location data because defendant
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voluntarily conveys information to third-party provider). “What a person
knowingly exposes to the public . . . is not a subject of Fourth Amendment
protection.” Katz v. United States, 389 U.S. 347, 351 (1967). Accordingly, the
Supreme Court has consistently held that a “person has no legitimate expectation
of privacy in information he voluntarily turns over to third parties.” Smith, 442
U.S. at 743−44.
Because appellant did not have a reasonable expectation of privacy in his
subscription information, ICE agents were not required to secure a warrant in order
to obtain it. Appellant has failed to show that a motion to suppress would have
been granted on this ground. See Jackson, 973 S.W.2d at 957.
Search Warrant Affidavit
Appellant also asserts that a motion to suppress should have been filed
because the search warrant affidavit failed to set forth sufficient facts which could
establish probable cause for possession of child pornography. Specifically,
appellant contends that (1) his subscriptions to the websites did not establish
probable cause for possession of child pornography, and (2) the information in the
search warrant affidavit was stale.
When reviewing the magistrate’s decision to issue a warrant, the court
applies a highly deferential standard because of the constitutional preference for
searches to be conducted pursuant to a warrant as opposed to a warrantless search.
State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011). A court does not
analyze the affidavit in a hyper-technical manner. Rodriguez v. State, 232 S.W.3d
55, 59 (Tex. Crim. App. 2007). Instead, it interprets the affidavit in a
commonsensical and realistic manner, recognizing that the magistrate may draw
reasonable inferences. Id. at 61. When in doubt, we defer to all reasonable
inferences that the magistrate could have made. Id. If the magistrate had a
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substantial basis for concluding that probable cause existed, a court will uphold the
magistrate’s probable cause determination. McLain, 337 S.W.3d at 271.
A search warrant must be accompanied by a sworn affidavit that sets forth
substantial facts establishing probable cause. See Tex. Code Crim. Proc. art.
18.01(b). In addition, the affidavit must set forth sufficient facts to establish
probable cause, showing that (1) a specific offense has been committed; (2) the
specifically described item to be seized constitutes evidence of the offense or
evidence that a particular person committed the offense; and (3) the item is located
at or on the person, place, or thing to be searched. Tex. Code Crim. Proc. art.
18.01(c). An affidavit supporting a search warrant is sufficient if, from the totality
of the circumstances reflected in the affidavit, the magistrate was provided with a
substantial basis for concluding that probable cause existed. See State v. Duarte,
389 S.W.3d 349, 354 (Tex. Crim. App. 2012). We look at the four corners of the
affidavit in determining whether there is probable cause to search the identified
locations. Massey v. State, 933 S.W.2d 141, 148 (Tex. Crim. App. 1996).
Appellant contends that the mere fact that he made four one-month
purchases for child pornography websites fails to establish probable cause that he
committed the offense of possession of child pornography. The affidavit alleged
that a child pornography website known as “Home Collection” offered individuals
monthly access to websites that provided images of child pornography for a
specific fee. The affidavit provided that an individual using the email address of
kgj01@hotmail.com purchased several one-month memberships to “Lust
Collections,” “Hot Girl Photos,” “Real Lola Issue #2,” and “Plazmas Girls.” The
memberships were $79.95 each, payable, via PayPal, to email addresses
determined to be associated with a criminal organization that facilitated the
processing of membership payments to commercial child pornography websites.
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The affidavit further stated that PayPal provided the ICE agents with buyer contact
information, which identified kgj01@hotmail.com as appellant. Considering the
totality of the circumstances, the magistrate could have reasonably inferred from
the facts set forth in the affidavit that appellant possessed child pornography. The
magistrate could have reasonably concluded a probability existed that child
pornography would be found at appellant’s residence. See State v. Cotter, 360
S.W.3d 647, 653 (Tex. App.—Amarillo 2012, no pet.)
Appellant also argues that the information in the affidavit is stale because
the affidavit was made two years after he purchased the subscriptions to the
websites. To justify a magistrate’s finding that an affidavit is sufficient to establish
probable cause to issue a search warrant, the facts set out in the affidavit must not
have become stale when a magistrate issues the search warrant. State v. Dugas, 296
S.W.3d 112, 116 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d). Probable
cause ceases to exist when, at the time the search warrant is issued, it would be
unreasonable to presume the items remain at the suspected place. Id. However,
where the affidavit properly recites facts indicating activity of a protracted and
continuous nature, a course of conduct, the passage of time becomes less
significant. Jones v. State, 364 S.W.3d 854, 861 (Tex. Crim. App. 2012). 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 elapsing between the occurrence of the events set out in the affidavit and the
time the search warrant is issued. Dugas, 296 S.W.3d at 116.
The challenged affidavit was created on February 19, 2009. The affiant
stated that she received the case as a result of a joint investigation into a criminal
organization operating over eighteen commercial child pornography websites. The
organization utilized PayPal accounts to process payments made by individuals
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purchasing memberships to the child pornography websites. The affiant stated that
records indicated that a PayPal account registered to appellant purchased four one-
month memberships to the websites. The purchases were made on October 12,
2006, November 1, 2006, January 21, 2007, and January 25, 2007.
The magistrate could have reasonably concluded that the pornographic
images were still on appellant’s computer at his apartment at the time the warrant
was issued. Federal courts have repeatedly recognized that in child pornography
cases, collectors of child pornography tend to retain this material. See United
States v. Cox, 190 F. Supp. 2d 330, 333 (N.D. N.Y. 2002); see also United States v.
Ricciardelli, 998 F.2d 8, 12 n.4 (1st Cir. 1993) (noting that “[h]istory teaches that
collectors [of child pornography] prefer not to dispose of their dross, typically
retaining obscene materials for years”). Here, the affiant stated that “[p]eople who
have a sexual interest in children or minors rarely, if ever, dispose of their sexually
explicit materials.” See Steele v. State, 355 S.W.3d 746, 751 (Tex. App.—Houston
[1st Dist.] 2011, pet. ref’d) (concluding that magistrate could have reasonably
concluded defendant continued to be in possession of child pornography because
affidavit proved “expert testimony that persons sexually attracted to children tend
to collect sexually explicit photographs of children, treating the photographs as
prized possessions, of which they rarely dispose”); see also Morris v. State, 62
S.W.3d 817, 823−24 (Tex. App.—Waco 2001, no pet.) (providing that where
affidavit indicates activity of continuous nature, magistrate could have reasonably
inferred that defendant had possession of pornography for substantial period of
time, i.e., one-and-a-half years).
Thus, the affidavit contained sufficient information from which the
magistrate had a substantial basis under the totality of the circumstances for
concluding that probable cause existed that the computer and hard drives at
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appellant’s apartment contained child pornography. See Sanders v. State, 191
S.W.3d 272, 279−80 (Tex. App.—Waco 2006, pet. ref’d) (holding that information
obtained two years before warrant executed was not stale); Burke v. State, 27
S.W.3d 651, 655 (Tex. App.—Waco 2000, pet. ref’d) (providing that information
obtained one year before warrant executed was not stale).
We conclude that the facts and circumstances submitted to the magistrate
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 apartment at the time the warrant was issued. Thus, the affidavit was
sufficient to establish probable cause. Because appellant cannot show that a motion
to suppress alleging these grounds would have been granted, appellant has failed to
show that he received ineffective assistance of counsel. See Jackson, 973 S.W.2d
at 957. Accordingly, the trial court did not abuse its discretion by denying
appellant’s post-conviction writ of habeas corpus.
CONCLUSION
We overrule appellant’s issues and affirm the trial court’s judgment denying
relief.
/s/ Ken Wise
Justice
Panel consists of Justices Christopher, Donovan, and Wise.
Publish — TEX. R. APP. P. 47.2(b).
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