Karl Patrick Houlditch v. State

ACCEPTED
06-14-00207-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
6/15/2015 11:41:04 AM
DEBBIE AUTREY
CLERK
No. 06-14-00207-CR
IN THE COURT OF APPEALS
FILED IN
6th COURT OF APPEALS
FOR THE TEXARKANA, TEXAS
6/15/2015 11:41:04 AM
SIXTH JUDICIAL DISTRICT OF TEXAS DEBBIE AUTREY
Clerk
KARL PATRICK HOULDITCH,
Appellant
V
THE STATE OF TEXAS
Appellee
APPEALED FROM THE 71st DISTRICT COURT
HARRISON COUNTY, TEXAS
TRIAL COURT CAUSE #13-0263X
BRIEF OF STATE
COKE SOLOMON
CRIMINAL DISTRICT ATTORNEY
HARRISON COUNTY, TEXAS
P.O. BOX 776
MARSHALL, TEXAS 75671
(903) 935-8408
BY: SHAWN ERIC CONNALLY
ASSISTANT CRIMINAL DISTRICT ATTORNEY
BAR #24051899
ATTORNEY FOR THE STATE
APPELLEE DOES NOT REQUEST ORAL ARUGMENT
i
No. 06-14-00207-CR
KARL PATRICK HOULDITCH
Appellant
V
THE STATE OF TEXAS
Appellee
__________________________________________
NAMES OF ALL PARTIES AND ATTORNEYS
__________________________________________
The names and identifying information of all parties and attorneys were
correctly stated in Appellant’s brief.
ii
TABLE OF CONTENTS
NAMES OF ALL PARTIES AND ATTORNEYS .................................................. ii
INDEX OF AUTHORITIES............................................................................... iv-vii
PRELIMINARY STATEMENT OF THE NATURE OF THE CASE ..................... 1
STATE’S REPLY ISSUE ONE: …………………………….……1
STATE'S REPLY ISSUE TWO……………………………….…..1
STATE'S REPLY ISSUE THREE…………………………………2
STATE'S REPLY ISSUE FOUR…………………………………..3
STATEMENT OF THE FACTS ............................................................................... 3
ARGUMENTS AND AUTHORITIES ..................................................................... 9
SUMMARY OF THE ARGUMENT REPLY ISSUE ONE ........................... 9
ARGUMENTS AND AUTHORITIES REPLY ISSUE ONE............ 10
SUMMARY OF THE ARGUMENT REPLY ISSUE TWO…………...….18
ARGUMENTS AND AUTHORITIES REPLY ISSUE TWO……...19
SUMMARY OF THE ARGUMENT REPLY ISSUE THREE ………...…27
ARGUMENTS AND AUTHORITY REPLY ISSUE THREE…..…27
SUMMARY OF THE ARGUMENT REPLY ISSUE FOUR……………..30
ARUGMENTS AND AUTHORITIES REPLY ISSUE FOUR…….30
PRAYER .................................................................................................................. 38
CERTIFICATE OF SERVICE ................................................................................ 38
iii
INDEX OF AUTHORITIES
CASES:
Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App. 2007) ……………….…10
Hankins v. State, 132 S.W.3d 380, 388 (Tex.Crim.App. 2004) ………………….10
Swearingen v. State, 143 S.W.3d 808, 810-11 (Tex.Crim.App. 2004) ………..…10
State v. McLain, 337 S.W.3d 268, 271 (Tex.Crim.App. 2011) ………………..…10
Rodriguez v. State, 232 S.W.3d 55, 60 (Tex.Crim.App. 2007)………………...…11
Illinois v. Gates, 462 U.S. 213, 234-37, 103 S. Ct. 2317, 76 L.Ed.2d 527(1983)…11
Eisenhauer v. State, 754 S.W.2d 159, 164 (Tex.Crim.App. 1988)……….………12
State v. Martin, 833 S.W.2d 129, 132 (Tex.Crim.App. 1992)……………………12
Johnson v. State, 864 S.W.2d 708, 717-719 (Tex.App.-Dallas 1993, affirmed)….12
Murray v. State, 864 S.W.2d 111, 115 (Tex.App.-Texarkana 1993, pet. ref’d)…..12
Kennedy v. State, 338 S.W.3d 84, 93 (Tex.App.-Austin, no pet.)………………...14
Ellis v. State, 722 S.W.2d 192, 196-97 (Tex.App.-Dallas 1986, no pet.)…………14
United States v. Freeman, 685 F.2d 942 (5th Cir. 1982)…………………………..14
Bernard v. State, 807 S.W.2d 359, 365 (Tex.App.-Houston [14th Dist.] 1991, no
pet.)…………………………………………………………………………..……14
United States v. Johnson, 461 F.2d 285, 287 (10th Cir.1972)……………………..14
Crider v. State, 352 S.W.3d 704, 707 (Tex.Crim.App. 2011)…………………….14
State v. Cotter, 360 S.W.3d 647 (Tex.App.-Amarillo, 2012 no pet.)……………..15
iv
McKissick v. State, 209 S.W.3d 205, 215 (Tex.App.-Houston [1st Dist.] 2006, pet.
ref’d)………………………………………………………………………..……..15
Gutierrez v. State, 22 S.W.3d 75, 84 (Tex.App.-Corpus Christi 2000, no pet.)..…20
State v. Toone, 823 S.W.2d 744, 748 (Tex.App.-Dallas 1992), aff’d on other
grounds, 872 S.W.2d 750 (Tex.Crim.App. 1994)……………………………...…20
State v. Mollica, 114 N.J. 329, 554 A.2d 1315, 1325 (1989)……………………..20
Lockett v. State, 879 S.W.2d 184, 190 (Tex.App.-Houston [14th Dist] 1994, pet.
ref’d)…………………………………………………………………………...….21
People of Territory of Guam v. Villacrusis, 992 F.2d 886, 887 (9th Cir. 1993)…..22
United States v. Alfonso, 759 F.2d 728, 735 (9th Cir. 1985)……………………...22
Pena v. State, 61 S.W.3d 745, 756 (Tex.App.-Corp.Christi 2001, no pet.)……....23
State v. Toone, 872 S.W.2d 750, 752 (Tex.Crim.App. 1994)…………………….25
Mahmoudi v. State, 999 S.W.2d 69, 72 (Tex.App.-Houston [14th Dist] 1999)…...25
Johnson v. State, 263 S.W.3d 287, at 289 (Tex.App.-Houston [1st Dist] 2007).…27
Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App. 1993)…………….…...27
Galitz v. State, 617 S.W.2d 949, 952 (Tex.Crim.App. 1981)……………………..28
Webb v. State, 899 S.W.2d 814, 818 (Tex.App.-Waco 1995, pet. ref’d)…….…...28
Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.Crim.App. 1996)…………….…....30
Delacruz v. State, 167 S.W.3d 904 (Tex.App.-Texarkana 2005, no pet.)………...30
Williamson v. State, 175 S.W.3d 522, 525 (Tex.App.-Texarkana 2005, no pet.)...31
Jordan v. State, 495 S.W.2d 949, 952 (Tex.Crim.App. 1973). …………………..31
v
Jackson v. State, 989 S.W.2d 842, 845 (Tex.App.-Texarkana 1999, no pet.)…....31
Fluellen v. State, 71 S.W.3d 870, 873 (Tex.App.-Texarkana 2002, pet. ref’d)..…31
McGruder v. Puckett, 954 F.2d 313,316 (5th Cir. 1992)…………………………..32
Mullins v State, 208 S.W.3d 496, 470 (Tex.App-Texarkana 2006, no pet.)……...32
Acosta v. State, 160 S.W.3d 204, 212 (Tex.App.-Fort Worth 2005, no pet.)…….32
Williamson v. State, 175 S.W.3d 522, 524 (Tex.App-Texarkana 2005, no pet.)…32
Savery v. State, 767 S.W.2d 242 (Tex.App.-Beaumont 1989)………………..…..33
Speights v. State, 2005 WL 2777537, (Texarkana unpublished opinion, no pet.)..35
Lamarre v. State, 2013 WL 781778, (San Antonio unpublished opinion, pet.
ref’d)……………………………………………………………………………....35
Reynolds v. State, 430 S.W.3d 467, 473 (Tex.App.-San Antonio 2014, no pet.)…35
Jackson v. State, 989 S.W.2d 842, 845 (Tex.App.-Texarkana 1999, no pet……...36
STATUTES AND AMENDMENTS:
Fourth Amendment, U.S. Constitution…………………………………..………..10
Article 1 Section 9, Texas Constitution………………………………..………….11
Federal Rules of Criminal Procedure, Rule 41……………………………………19
Article 2.09 Texas Code of Criminal Procedure……………………….…………26
Article 2.12 Texas Code of Criminal Procedure………………………………….26
Article 18.01(a) Texas Code of Criminal Procedure …………………………..…26
vi
Article 18.06 Texas Code of Criminal Procedure……………………………...…18
Article 18.07 Texas Code of Criminal Procedure ……………………………..…18
Article 38.23(a), Texas Code of Criminal Procedure……………………………..25
TEX.PEN.CODE ANN sec. 3.03(b)(3)(A)……………………………………….31
Article 1 Section 14, Texas Constitution……………………………….......……..36
vii
PRELIMINARY STATEMENT OF THE NATURE OF THE CASE
Appellant appeals his conviction based on a plea of guilty without a plea
bargain after the denial of Appellant’s motion to suppress.
STATE’S REPLY ISSUE ONE
The trial court did not commit reversible error in denying Appellant’s
motion to suppress. The affidavit provided probable cause for the issuance
of the search warrant and the information contained in the affidavit for the
search warrant was not stale or unreliable.
STATES REPLY ISSUE TWO
The trial court did not commit reversible error in denying Appellant’s
motion to suppress. Detective Brownlee was not functioning as a state actor
for purposes of this investigation. Nor was this a cooperating investigation
between state and federal law enforcement. Detective Brownlee was a
member of a federal task force, the North Texas Internet Crimes Against
Children task force (NTICAC) under the direction and control of the United
States Secret Service with the specific federal mandate from the President of
the United States to investigate crimes against children over the internet and
1
was recruited to help achieve that federal mandate. Therefore the protections
of the Texas Constitution and Texas law do not apply under the “reverse
silver platter” doctrine.
Assuming arguendo that the court finds this was a “cooperating
investigation”, then Appellant is only entitled to the protections of article 1
sec. 9 of the Texas Constitution; and the provisions of Texas Code of
Criminal Procedure art. 18.06 and 18.07 do not apply because a federal
search warrant issued by a federal magistrate and directed to a federal officer
is not governed by the requirements of art. 18.06 and 18.07 of the Texas
CCP.
STATES REPLY ISSUE THREE
The trial court did not commit reversible error in refusing to suppress the
statements made by Appellant to law enforcement on May 22, 2013. This issue
was not preserved for Appellate review. Trial counsel did not object at the motion
to suppress that Appellant’s statements were made as a result of “custodial
interrogation”. Even should the court find the issue was preserved, looking at the
totality of the circumstances the Appellant was not “in custody” at the time his
statements were made.
2
STATES REPLY ISSUE FOUR
The trial court did not err in finding the sentence assessed violated the Eight
Amendment to the United States Constitution because the sentence received was
not “grossly disproportionate” to the offense committed.
STATEMENT OF THE FACTS
For the sake of brevity, the state will not recite the entire search warrant
affidavit and findings of fact and conclusions of law in this brief.
The North Texas Internet Crimes Against Children Task Force (NTICAC) is
a federal task force. (RR Vol. 1 MTS p. 47). The mandate of the NTICAC task
force is to seek out and arrest those who engage in the trafficking of child
pornography and the exploitation of children through the use of the internet. (RR
Vol. 1 MTS p. 48). Detective Brownlee of the Longview Police Department was
working for this federal task force. (RR Vol. 1 MTS p. 47). The Secret Service has
a mandate from the President of the United States to investigate child pornography
cases. (RR Vol. 1 MTS p. 50). The Secret Service has limited manpower to
achieve this federal mandate. (RR Vol. 1 MTS p. 49). The Secret Service recruits
other law enforcement agencies into the NTICAC task force to achieve this
mandate. (RR. Vol. 1 MTS p. 48-49). Members of the NTICAC are under the
3
direction and control of the Secret Service. (RR Vol. 1 MTS p. 49). Throughout the
entire investigation of Appellant, Detective Brownlee was working for the
NTICAC federal task force. (RR. Vol. 1 MTS p. 54-55). The trial court made
findings of fact and conclusions of law (CR Vol. 1(A) p. 4-9).
While working for the NTICAC task force, Detective Brownlee was
involved in an ongoing online investigation into the trafficking of child
pornography within the Eastern District of Texas. (CR Vol. 1(A) p. 15). During his
investigation, using Child Protection Systems (CPS) software, an IP address
70.254.37.233 was actively advertising files for sharing on the Gnutella network
which appeared to be child pornography. (CR Vol. 1(A) p. 14) CPS is a law
enforcement maintained database. (CR Vol. 1(A) p. 14). This IP address was seen
advertising known files of child pornography from March 16, 2013 to April 24,
2013. (RR Vol 1 MTS p. 39). The information maintained by CPS provides the
date and time an IP address was on a specific network, what types of files were
advertised for sharing, the names of the files available for sharing and the
associated SHA-1 value of the files. (CR Vol. 1(A) p. 16). A SHA-1 hash value is
a unique identifier of files available for share on a P2P network. (CR Vol. 1(A) p.
12-13). CPS is also able to access a database of known child pornography SHA-1
values to compare with the files being made available by an IP address on the
4
network. (CR Vol. 1(A) p. 16). CPS’s database of known child pornography SHA-
1 values is populated through the efforts of law enforcement investigators who
have viewed the files and identified them as child pornography. (CR Vol. 1(A) p.
16). CPS has been proven to be extremely reliable in locating computers that are
involved in P2P facilitated trading of child pornography. (CR Vol. 1(A) p. 14). No
two files available for share on a peer-to-peer network will have the same SHA-1
hash value unless the files are identical. (CR Vol. 1(A) p. 13). By comparing hash
values, there is a 99.9999 percent certainty the two files are the same. (CR Vol.
1(A) p. 13).
Gnutella is a peer-to-peer (P2P) network. (RR. Vol.1 p. 16). A P2P is a type
of internet network that allows a group of computer users with the same
networking software to connect with each other and directly access files from one
another’s hard drives or removable media. (CR Vol. 1(A) p. 10).
Due to conditions beyond Detective Brownlee’s control, a connection to the
computer at IP address 70.254.37.233 was not possible during the time frame he
was on the internet, so no download of any files was performed from the suspect IP
address. (CR Vol. 1(A) p. 16). However, Detective Brownlee was able to obtain a
listing of the file descriptions and related SHA-1 values which the IP address
70.254.37.233 was advertising as available for sharing. (CR Vol. 1(A) p. 17).
5
Detective Brownlee then used a file sharing client for the Gnutella network and
obtained several of the same files by SHA-1 value available for sharing by the
computer at IP address 70.254.37.233, and then confirmed that the files being
offered by 70.254.37.233 were child pornography. (CR Vol. 1(A) p. 17). In
addition, Detective Brownlee noted the IP address 71.254.37.233 was observed by
the CPS system from March 16, 2013 to April 24, 2013 with 124 known files of
child pornography being offered for download. (CR Vol. 1(A) p. 17) The SHA-1
values of these 124 files were identified as matches to the SHA-1 values of known
child pornography by the CPS system. (CR Vol. 1(A) p. 17-18) In each of these
instances, the computer at 70.254.37.233 was observed with the same Globally
Unique Identifier (GUID), E94D7E7D770EC1878947882390866F9C, indicating
the same computer was utilized each time. (CR Vol. 1(A) p. 18). A GUID, is a
unique 128-bit number that is produced by the Windows operating system or a
windows application to identify a particular component, application, file, database
entry, or user. (CR Vol. 1(A) p. 18).
Detective Brownlee conducted a domain name system check on the IP
address 70.254.37.233 through the American Registry for Internet Numbers and
received information that the IP address 70.254.37.233 was registered SBC/AT&T
internet services. (CR Vol. 1(A) p. 18). Subscriber information was subpoenaed
6
from SBC/AT&T for that IP address from the dates of March 16, 2013 to April 24,
2013 corresponding to the exact dates and times the CPS system saw that IP
address on the P2P network offering known files of child pornography for
download. (RR Vol. 1, p. 31). SBC/AT&T Internet Services responded on May 8,
2013, and showed the subscriber for IP address 70.254.37.233 for the dates and
times requested was Norma Arnold at 3368 Rupe Huffman Road, Longview, Texas
75605. (CR Vol. 1(A) p. 18). Detective Brownlee recognized the address from a
previous investigation he conducted in August of 2013 in which a computer with
GUID 810F2E6C830E37C85071C75089646F1B was observed at IP address
75.23.47.93 from August 17, 2012 to August 29, 2012 by the CPS system with 121
known files of child pornography. (CR Vol. 1(A) p. 18-19) An administrative
subpoena for this 2012 activity found the subscriber then was also Norma Arnold
at 3368 Rupe Huffman Road, Longview, Texas 75605. (CR Vol. 1(A) p. 19). The
Texas Department of Public Safety (DPS) Fusion Center conducted a search of
3368 Rupe Huffman Road, Longview, Texas 75605 and indicated that Appellant
lived at that location with two others. (CR Vol. 1(A) p. 19).
The results of Detective Brownlee’s investigation were forwarded to the
affiant of the federal search warrant, Special Agent Michael Dawson of United
States Secret Service, who prepared the federal search warrant. (RR Vol. 1 MTS p.
7
7). Agent Dawson has worked with Detective Brownlee in the past and found him
to provide reliable information and to be a reliable colleague. (RR Vol. 1, MTS p.
22). Detective Brownlee testified that the results of any investigation performed for
the NTICAC task force have to go through the Secret Service, and he was under
their direction and control. (RR. Vol. 1 MTS p.48-49).
The federal search warrant was signed on May 14, 2013 by United States
Magistrate Judge Judith Guthrie (CR Vol. 1(A) p. 30). The search warrant was
executed on May 22, 2013 at 3368 Rupe Huffman Road, Longview, Texas, 75605.
(RR. Vol. 1 MTS p. 33). This search warrant was executed by Agent Todd Hiles of
the United States Secret Service, Detective Brownlee, and various members of
local law enforcement were recruited to insure appropriate manpower (RR Vol. 1
MTS p. 33-35). Hard drives and computers were seized during the search of
Appellant’s home and these drives were forensically analyzed and did in fact
contain child pornography. (RR Vol. 1 MTS p. 51). Detective Brownlee and
Special Agent Todd Hiles of the United States Secret service also traveled to
Appellant’s place of employment after the search warrant was executed. (RR Vol.
1 MTS p. 35). Agent Hiles and Detective Brownlee conducted an interview with
Appellant in a car Agent Hiles was driving. (RR Vol. 1 MTS 50). Appellant was
not under arrest, Appellant was not handcuffed or restrained in any way, Appellant
8
was not in custody, and Appellant was told he was free to leave and did in fact
leave at the conclusion of the interview. (RR Vol 1 MTS p. 50-51). Appellant
made incriminating statements during the interview in which he confessed to
possessing child pornography. (RR Vol 1 MTS p. 51).
Detective Brownlee testified that throughout the entire course of the
investigation, from beginning to end, that he was working for the NTICAC Federal
Task Force and not as a member of the Longview Police Department. (RR Vol. 1
MTS p. 54-55). After denial of Appellant’s motion to suppress, Appellant entered a
plea of guilty without a plea agreement and was sentenced by the trial court to
eight years on each of the thirty counts of possession of child pornography and the
trial court ordered that all thirty counts run consecutively. This appeal followed.
ARGUMENTS AND AUTHORITIES
SUMMARY OF THE ARGUMENT REPLY ISSUE ONE
The trial court did not commit reversible error in denying Appellant’s
motion to suppress. The affidavit provided probable cause for the issuance
of the search warrant and the information contained in the affidavit for the
search warrant was not stale or unreliable.
9
ARGUMENTS AND AUTHORITIES REPLY ISSUE ONE
A search warrant may not legally issue unless it is based on probable cause.
U.S. Const. amend. IV. An appellate court normally reviews a trial court’s ruling
on a motion to suppress by using a bifurcated standard of review, giving almost
total deference to the historical facts found by the trial court and reviewing de novo
the trial court’s application of the law. Amador v. State, 221 S.W.3d 666, 673
(Tex.Crim.App. 2007). However, when assessing the sufficiency of an affidavit for
a search warrant, the reviewing court is limited to the four corners of the affidavit.
Hankins v. State, 132 S.W.3d 380, 388 (Tex.Crim.App. 2004). Accordingly, when
we review a magistrate’s decision to issue a warrant, we apply a highly deferential
standard because of the constitutional preference for searches to be conducted
pursuant to a warrant as opposed to a warrantless search. Swearingen v. State, 143
S.W.3d 808, 810-11 (Tex.Crim.App. 2004). As long as the issuing magistrate had a
substantial basis for concluding that probable cause existed, we will uphold that
magistrate’s probable cause determination. State v. McLain, 337 S.W.3d 268, 271
(Tex.Crim.App. 2011). The task of the issuing magistrate is simply to make a
practical, common-sense decision whether, given all the circumstances set forth in
the affidavit, including reasonable inferences that may be drawn therefrom and the
“veracity” and “basis of knowledge” of persons supplying information, there is a
10
“fair probability” that contraband or evidence of a crime will be found at the
specific location. Rodriguez v. State, 232 S.W.3d 55, 60 (Tex.Crim.App. 2007)
(citing Illinois v. Gates, 462 U.S. 213, 234-37, 103 S. Ct. 2317, 76 L.Ed.2d
527(1983)). “The traditional standard for review of an issuing magistrate’s
probable-cause determination has been that so long as the magistrate had a
‘substantial basis for … concluding’ that a search would uncover evidence of
wrongdoing, the Fourth Amendment requires no more.” Gates, 462 at 236, 103
S. Ct. 2317. Warrants should not be invalidated through “hyper-technical”
interpretation of their supporting affidavits. McLain, 337 S.W.3d at 271. Whether
the facts alleged in a probable cause affidavit support a search warrant is
determined by examining the totality of the circumstances. Gates, 462 U.S. at 230-
31, 103 S. Ct. 2317. Using the Gates standard, the question in this case is whether,
using a common-sense approach, the federal magistrate had a substantial basis for
finding that there was a fair probability that the child pornography would be found
in Appellant’s residence. Id. At 238, 103 S.Ct. at 2332.
Assuming arguendo that Appellant is entitled to the protections of the art. 1
sec. 9 of the Texas Constitution, there is still sufficient probable cause for the
issuance of the federal search warrant. The Texas Court of Criminal Appeals
adopted a “totality of the circumstances” approach in interpreting art. 1 sec. 9 of
11
the Texas Constitution. Eisenhauer v. State, 754 S.W.2d 159, 164 (Tex.CrimApp.
1988). “In order to issue a valid warrant …, the underlying affidavit must contain,
viewed in the totality of the circumstances, information sufficient to justify a
neutral and detached magistrate issuing it.” State v. Martin, 833 S.W.2d 129, 132
(Tex.Crim.App.1992). In Johnson v. State, 864 S.W.2d 708, 717-719 (Tex.App.-
Dallas 1993, affirmed), the court held that there was no historical or textual basis
for affording a defendant greater rights under art. 1, sec. 9 than under the Fourth
Amendment. see also Murray v. State, 864 S.W.2d 111, 115 (Tex.App.-Texarkana
1993, pet. ref’d)(no Texas statute or case requires a more restrictive standard of
review for … probable cause under art. 1, sec. 9 than under the Fourth
Amendment).
Appellant argues that there was no probable cause to support the issueance
of the search warrant. An examination of the totality of the circumstances and
using a common-sense approach in examining the affidavit, there was more than
enough information to support the federal magistrate’s decision that there was a
substantial basis for finding a fair probability that there would be child
pornography located at the Appellant’s residence. Detective Brownlee observed
the Appellant’s IP address offering files for share whose SHA-1 hash values were
compared to SHA-1 hash values of known files of child pornography, and the
12
affiant of the warrant knew through his experience in investigating these types of
crimes that there is 99.9999 percent certainty the files are identical and would in
fact be child pornography. The IP address Appellant was using was registered to
the physical address he was living at from March 16, 2013 to April 24, 2013 during
which time that IP address was identified as offering child pornography for
download. The GUID that was being used by that IP address was the same during
that timeframe as well, indicating it was the same computer at the Appellant’s
residence that was being used to share child pornography over the internet. In
addition, the same address Appellant was residing at was shown to be the physical
subscriber address for IP address 70.254.37.233 during March 16, 2013 to April
24, 2013. Additionally that same physical address was shown as the subscriber
address for another IP address from a previous investigation back in August of
2012 as a location from which child pornography was being offered for share over
the internet. Using a totality of the circumstances and a common-sense approach
there was sufficient probable cause in the affidavit to support the issuance of the
federal search warrant.
Appellant also argues that the information contained in the affidavit for the
search warrant was “stale” at the time of its issuance. To invalidate a warrant, the
facts relied upon in the probable cause affidavit must not have become “stale” by
13
the time the warrant is issued. Kennedy v. State, 338 S.W.3d 84, 93 (Tex.App.-
Austin, no pet.). “The amount of delay that will make information stale for search
warrant purposes depends upon the particular facts of a case, including the nature
of criminal activity and the type of evidence sought. Mechanical count of days is of
little assistance in this determination; but, rather, common sense and
reasonableness must prevail, with considerable deference to be given to the
magistrate’s judgment based on the facts before him, absent arbitrariness.” Ellis v.
State, 722 S.W.2d 192, 196-97 (Tex.App.-Dallas 1986, no pet.), citing United
States v. Freeman, 685 F.2d 942 (5th Cir. 1982). “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.” Bernard v. State, 807
S.W.2d 359, 365 (Tex.App.-Houston [14th Dist.] 1991, no pet.), quoting United
States v. Johnson, 461 F.2d 285, 287 (10th Cir.1972)
The “proper method to determine whether 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 was issued.” Crider v. State, 352 S.W.3d 704, 707
(Tex.Crim.App. 2011). Although the passage of time is one factor that should be
considered when determining if the information in an affidavit is stale, the amount
14
of time passed is less significant if the affidavit contains facts showing “activity of
a protracted and continuous nature, i.e., a course of conduct.” Kennedy, 338
S.W.3d at 93. Further, a determination regarding whether the information in an
affidavit is stale should also involve consideration of the type of property to be
seized and the probability that the property has been consumed or relocated. Id.
The Court of Appeals in Amarillo in State v. Cotter, 360 S.W.3d 647
(Tex.App.-Amarillo, 2012 no pet.) was faced with analogous facts facing this court
today. In deciding that the search warrant was not stale even though four months
had passed since the last occurrence of the events set out in the affidavit and the
issuance of the search warrant, the Amarillo Court of Appeals reasoned “the
property the subject of the search, a pornographic video transmitted over the
internet via digital media, is the type of item that is customarily uploaded onto the
internet and/or downloaded and stored on a personal computer, and such property
is often retrievable even after it had been purportedly erased from that computer.”
Cotter at 654 (citing McKissick v. State, 209 S.W.3d 205, 215 (Tex.App.-Houston
[1st Dist.] 2006, pet. ref’d)). “Furthermore, that type of property is not transient in
nature such as drugs which are consumable. Id. In concluding the warrant in Cotter
was not stale the court summed up its reasoning as follows: “Considering the
affidavit as a whole and the reasonable inferences it supports, we conclude the
15
issuing magistrate had a substantial basis to find that a fair probability existed that
the evidence sought would continue to be on or be recoverable from Appellee’s
computer and that that computer would be readily accessible to Appellee at his
residence.” Id.
Assuming arguendo, Appellant is entitled to the protections of the Texas
Constitution, nowhere in Appellants brief does he contend that different standards
should apply for evaluating the timeliness of information under the federal and
state constitutions. Therefore the state contends that the “totality of the
circumstances” analysis applies to Appellant’s staleness argument.
The affiant to the search warrant Agent Dawson indicated in his affidavit
that subjects who distribute child pornography are often collectors who escalate
their activity for the purposes of trading and adding to their vast collections. And
that these collections are maintained for several years and are kept close by,
usually at the collector’s residence. (CR Vol. 1(A) p. 22-24) Agent Dawson also
provided in his affidavit that computer files or remnants of such files can be
recovered months or even years after they been downloaded onto a hard drive,
deleted or viewed via the internet using available forensic tools. (CR Vol. 1(A) p.
21).
16
The Appellant’s IP address was seen advertising files of child pornography
for share from March 16, 2013 to April 24, 2013. The search warrant was issued
May 8, 2013. Given the kind of criminality involved this was conduct of a
“protracted and continuous nature”. Furthermore the affiant provided information
that Detective Brownlee observed the Appellants same address in August of 2012
offer child pornography for share via the internet from a different GUID and IP
address. This is further evidence of conduct of a protracted and continuous nature
for over a year. (CR Vol. 1(A) p. 18).
Based on the information contained in the affidavit and looking at the type
of evidence to be seized (i.e. child pornography), this was activity of a protracted
and continuous nature, that individuals who collect child pornography often do so
for years and escalate their behavior retaining the child pornography, and that often
digital files of child pornography can often be recovered on a computer long after
they are deleted; based on the “totality of the circumstances” the information
contained in the affidavit had not become “stale” or “unreliable”.
17
SUMMARY OF THE ARGUMENT REPLY ISSUE TWO
The trial court did not commit reversible error in denying Appellant’s
motion to suppress. Detective Brownlee was not functioning as a state actor
for purposes of this investigation. Nor was this a cooperating investigation
between state and federal law enforcement. Detective Brownlee was a
member of a federal task force, the North Texas Internet Crimes Against
Children Taskforce (NTICAC) with the specific federal mandate from the
President of the United States to investigate crimes against children over the
internet and was recruited to help achieve that federal mandate. Therefore
the protections of the Texas Constitution do not apply under the “reverse
silver platter” doctrine.
Assuming arguendo that the court finds this was a “cooperating
investigation”, then Appellant is only entitled to the protections of art. 1 sec.
9 of the Texas Constitution. The provisions of Texas Code of Criminal
Procedure art. 18.06 do not apply because a search warrant issued by a
federal magistrate and directed to a federal officer is not governed by the
requirements of art. 18.06 and 18.07 of the Texas CCP.
18
ARGUMENTS AND AUTHORITIES REPLY ISSUE TWO
It is uncontroverted by either party that the federal search warrant in this case
was issued on May 14, 2013 and was executed on May 22, 2013. It is all also
uncontroverted that the search warrant in this case was issued by a federal
magistrate and directed to a federal officer and was served within the appropriate
time frame allowed by Federal Rule of Criminal Procedure, Rule 41, allowing the
federal search warrant to be executed within 14 days.
The entire crux of Appellant’s argument is that if the “reverse silver platter”
doctrine does not apply to the facts of this case, then Appellant is also entitled to
the full protection of Texas law and the Texas Constitution, meaning (according to
Appellant) that the federal search warrant in this case would have to be served
within three days under the Texas Code of Criminal art. 18.06 and 18.07. This
argument fails for the following reasons:
1. Detective Brownlee was recruited to join the NTICAC federal task force and
was working to achieve its federal mandate and was not operating as a state
actor at any time during the investigation of this case nor during the
execution of the warrant.
2. Assuming arguendo, even if the court finds the actions of law enforcement
to be a cooperating investigation entitling the defendant to protection of the
19
Texas Constitution; art. 18.06 and 18.07 of the Texas Code of Criminal
Procedure do not apply to a federal search warrant. The Appellant would
only be entitled to an analysis under art. 1, sec. 9 of the Texas Constitution
as to probable cause for the issuance of the warrant and staleness, Appellant
is not entitled to any greater protection under the Texas Constitution which
was argued above in state’s reply issue one.
Evidence that is obtained by federal agents acting lawfully and in conformity
with federal authority is admissible in state proceedings. Gutierrez v. State, 22
S.W.3d 75, 84 (Tex.App.-Corpus Christi 2000, no pet.) This has been referred to as
the “reverse silver-platter” doctrine. Id. The underlying concept of the reverse
silver-platter doctrine is that “protections afforded by the constitution of a
sovereign entity control the actions only of the agents of that sovereign entity.”
State v. Toone, 823 S.W.2d 744, 748 (Tex.App.-Dallas 1992), aff’d on other
grounds, 872 S.W.2d 750 (Tex.Crim.App.1994). Thus a state constitution will not
be applied to control the conduct of officers of a foreign jurisdiction. State v.
Mollica, 114 N.J. 329, 554 A.2d 1315, 1325 (1989). Simply put, “state
constitutions do not control federal action.” Id. At 1327. Because federal officers
operate throughout all the various states, in the exercise of federal jurisdiction,
20
under federal authority, and in accordance with federal standards, they are treated
in state courts as officers from another jurisdiction. Id. At 1327. Thus, the general
rule is that evidence seized by federal agents, acting lawfully and in conformity
with federal standards, will be admissible in state courts, even though the actions
of the federal agents may not have met a higher burden imposed by the state
constitution. Gutierrez, 22 S.W.3d at 84; Toone, 823 S.W.2d at 748 (citing
Mollica, 554 A.2d at 1328). This rule, however, is subject to a significant caveat.
Where the state seeks to introduce evidence seized by federal action, it is vital that
the action “not be alloyed by any state action or responsibility.” Mollica, 554 A.2d
at 1329. In other words, federal agents “may not act as agents of the state police or
‘under color of state law’.” Toone, 823 S.W.2d at 748 (citing Mollica, 554 A.2d at
1329). Thus, state participation in a federal search that did not comport with state
constitutional protections could preclude the use of any evidence obtained in state
criminal proceedings, even if federal constitutional safeguards were observed.
Lockett v. State, 879 S.W.2d 184, 190 (Tex.App.-Houston [14th Dist] 1994, pet.
ref’d). Where an operation involves actors from various jurisdictions then, the
entire relationship (emphasis added) must be examined to determine whether such
agency is established as to bring the federal agents under the color of state law.
Toone, 823 S.W.2d at 748; Mollica, 554 A.2d at 1329; Lockett, 879 S.W2d at 190.
21
As stated by the Toone court, “Evidence of antecedent mutual planning, joint
operations, cooperative investigations, or mutual assistance between state and
federal officers may sufficiently establish agency and serve to bring the conduct of
federal agents under the color of state law. Conversely, mere contact, awareness of
ongoing investigations, or the exchange of information may not transform the
relationship into one of agency.” Toone, 823 S.W.2d at 748.
Not every operation, between state and federal actors, however, results in an
agency relationship which would bring federal agents under color of state law.
Federal agents often work in conjunction with other law enforcement authorities to
achieve federal objectives and such cooperation alone does not invalidate searches
made as part of a joint effort. see People of Territory of Guam v. Villacrusis, 992
F.2d 886, 887 (9th Cir. 1993). In upholding a border search involving the Customs
Service, the Los Angeles Police Department, and various other federal and local
law enforcement agencies, the Ninth Circuit Court of Appeals in United States v.
Alfonso stated: “Given the specific authority granted customs agents to conduct
border searches, there is no reason that the limited forces of the Customs Service
cannot enlist the aid of other law enforcement entities in forming task forces to
meet their needs.” United States v. Alfonso, 759 F.2d 728, 735 (9th Cir. 1985). “In
order for a search to be considered a federal search, rather than as state search, it is
22
enough that a border search conducted during such a collaborative effort be ‘under
the aegis of and in cooperation with Customs agents’.” Id.
Accordingly, to determine whether the federal officials were operating as
agents for the State of Texas rather than to achieve federal objectives … , we must
review the reasons, motives, actions, and processes used by the officers to find,
select, and seize the evidence. Pena v. State, 61 S.W.3d 745, 756 (Tex.App.-
Corp.Christi 2001, no pet.).
Detective Brownlee testified at the suppression hearing that he was working
for the NTICAC task force. (RR Vol. 1 MTS p. 47). This task force was under the
direction and control of the United States Secret Service and that the mandate of
the NTICAC was to seek out and arrest those who engage in the trafficking of
child pornography and the exploitation of children through the use of the internet.
(RR. Vol. 1 MTS p. 48-50). Detective Brownlee also testified that the United
States Secret Service had limited manpower and other agencies were recruited to
join the NTICAC task force in order to accomplish the federal mandate issued by
the President of the United States. (RR. Vol. 1 MTS p. 49-50). In fact during his
time with the NTICAC, Detective Brownlee testified his salary was being paid by
a federal grant. (RR. Vol. 1 MTS p. 24).
23
The state concedes that at two locations in the federal search warrant the affiant
refers to a: “joint investigation being conducted with the Longview Police
Department.” And “the Longview Police Department is jointly conducting this
investigation with the United States Secret Service. In addition, the Secret Service
and Longview Police Department will be working together in the execution of this
warrant”. (CR Vol. 1(A) p. 7 and p. 25). However, the state argues that merely by
the affiant using the phrase “joint investigation” in the affidavit is not enough to
bring the actions of the NTICAC task force and the Secret Service under the color
of state law. As cited above, the court must look at the “entire relationship”
between the federal and state actors to decide if this was a joint or cooperating
investigation.
Detective Brownlee’s testimony at the suppression hearing was crucial to the
trial court in determining in its findings of fact and conclusions of law that
Detective Brownlee was a member of the NTICAC federal task force at the time of
this investigation. As stated by the Pena court above, it is where federal officers
are acting as agents of the State of Texas attempting to circumvent Texas law
rather than achieve federal mandates that is the core evil that offends the
constitution. Detective Brownlee testified he was working as a member of a federal
task force, achieving a federal mandate, under the direction of a federal agency
24
with limited manpower to achieve that mandate, and while he was a state law
enforcement officer he was not functioning as a state actor. Based on the
foregoing, the trial court did not commit reversible error in denying Appellant’s
motion to suppress.
Assuming arguendo that the court rules the NTICAC to be a cooperating
investigation between the Longview Police Department and the Secret Service,
Appellant is still not entitled to have the evidence seized from the federal search
warrant suppressed because it was not served within three days as Appellant argues
is required under article 18.06 and 18.07 of the Texas CCP.
Under the Texas exclusionary rule evidence is only excludable if it was
obtained “in violation of” the Texas or United States Constitution or other Texas or
federal law. TEX CODE CRIM.PROC.ANN. art. 38.23(a). Appellant claims the
evidence pursuant to the federal search warrant was obtained in plain violation of
art. 18.06 and 18.07.
However, the Texas Court of Criminal Appeals in State v. Toone, 872 S.W.2d
750, 752 (Tex.Crim.App. 1994) has expressly stated that a search warrant issued
by a federal magistrate and directed to a federal officer is not governed by the
requirements of article 18.01. see also Mahmoudi v. State, 999 S.W.2d 69, 72
(Tex.App.-Houston [14th Dist] 1999). The Court of Criminal Appeals in Toone
25
explained its reasoning by stating that: “a ‘search warrant’ is defined for purposes
of article 18.01 as a written order, issued by a magistrate and directed to a peace
officer. TEX.CODE.CRIM.PROC.ANN. art. 18.01(a). Article 2.09 of the Code of
Criminal Procedure, Magistrates, lists persons who are ‘magistrates’ within the
Code. Only various state and municipal court judges and magistrates are listed. Id.
at 2.09. Article 2.12, Who are Peace Officers, enumerates persons who are ‘peace
officers’ within the meaning of the Code. Id. at 2.12. Only state and local officers
are included in this list. Article 18.01 does not purport to govern federal search
warrants.” Toone 872 S.W.2d at 752. The state contends that if federal search
warrants are not governed by art 18.01 of the Texas CCP, then it logically follows
that they are not subject to the requirement that they be served within three days as
stated in art. 18.06 and 18.07. Therefore, even should the court find this was a joint
or cooperating investigation, then Appellant has only preserved for appellate
review the other objections actually made by counsel at the suppression hearing
(i.e. no probable cause and staleness), and while trial counsel never specifically
objected under art. 1 sec. 9 of the Texas Constitution at the hearing (Appellants
trial counsel merely argued to the trial court there was “no probable cause” for the
issuance of the search warrant) (RR Vol. 1 MTS p. 60) the state, out of an
abundance caution, has addressed those issues above in state’s reply one and two.
26
SUMMARY OF THE ARGUMENT REPLY ISSUE THREE
The trial court did not commit reversible error in refusing to suppress the
statements made by Appellant to law enforcement on May 22, 2013. This issue
was not preserved for appellate review. Trial counsel did not object at the motion
to suppress that Appellant’s statements were made as a result of “custodial
interrogation”. Even should the court find the issue was preserved, looking at the
totality of the circumstances the Appellant was not “in custody” at the time his
statements were made.
ARGUMENTS AND AUTHORITIES REPLY ISSUE THREE
To preserve an issue for appeal a party must timely object, stating the specific
legal basis. Johnson v. State, 263 S.W.3d 287, at 289 (Tex.App.-Houston [1st Dist]
2007). An objection stating one legal theory may not be used to support a different
legal theory on appeal. Id. “As regards specificity, all a party has to do to avoid
forfeiture of a complaint on appeal is to let the trial judge know what he wants,
why he thinks himself entitled to it, and to do so clearly enough for the judge to
understand him at a time when the trial court is in a proper position to do so
something about it.” Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App.
1993). “The requirement that an objecting party make a specific objection serves
27
two purposes. First, the trial court must be given an opportunity to correct the
error…..Second, particularly in the context of a motion to suppress, a specific
objection gives the opposing party an opportunity to respond to the objections and
provide additional evidence if appropriate.” Galitz v. State, 617 S.W.2d 949, 952
(Tex.Crim.App. 1981). The issue raised on appeal should comport with the
objection made at trial, and the trial judge should have an opportunity to rule on
the issue, otherwise nothing is presented for appellate review. Johnson at 289.
Additionally, “shotgun” objections, citing many grounds for the objection without
argument, will not preserve points based on authority which is merely mentioned
in the trial court. Webb v. State, 899 S.W.2d 814, 818 (Tex.App.-Waco 1995, pet.
ref’d) (Johnson at 290).
At no time during the suppression hearing did trial counsel for Appellant
object or argue to the trial court that Appellant’s statements to law enforcement
should be suppressed based on any legal grounds. In fact the following
conversation took place between state’s counsel, Appellant’s trial counsel, and the
trial court on the record before the beginning of the hearing:
MR. CONNALLY: Your Honor, I think we can stipulate - - well,
actually, Your Honor, I think the way to probably handle this hearing, I believe
28
we’ll deal with the warrant first and then after that move to Mr. Houldtich’s
statement.
MR. HARRIS: Actually, it all deals with the warrant. The motion
doesn’t deal with the interview that was conducted in the back of the ---
MR. CONNALLY: Then were just dealing with the warrant then.
THE COURT: All right then. (RR. Vol. 1 MTS, p. 4).
Not only did Appellant’s trial counsel not object at the suppression hearing or
argue for the exclusion of any statements made by Appellant, but Appellant’s trial
counsel went even further, and expressly put on the record that his motion to
suppress was not going to involve any statements made by the Appellant in this
case. The issue that counsel for Appellant now makes for the first time on appeal
was not properly preserved and therefore has been waived.
Should the court rule that the issue was preserved, it is still meritless. An
examination of the record from the motion to suppress indicates that Detective
Brownlee testified that the Appellant was not under arrest at the time of the
interview, Appellant was not handcuffed or restrained in any way, Appellant was
told he was free to leave, and Appellant did in fact leave and was not placed under
arrest at the conclusion of the non-custodial interview. (RR Vol. 1 MTS, p. 50-51).
Whether an interrogation is custodial depends on whether, under the
29
circumstances, a reasonable person would believe his or her freedom of movement
was restrained to the degree associated with a formal arrest. Dowthitt v. State, 931
S.W.2d 244, 254 (Tex.Crim.App. 1996). Based on an examination of the record in
this case, the state contends that no reasonable person in Appellant’s situation
would believe he was under arrest or that his freedom of movement was restrained.
SUMMARY OF THE ARGUMENT REPLY ISSUE FOUR
The trial court did not err in finding the sentence assessed violated the Eight
Amendment to the United States Constitution because the sentence received was
not “grossly disproportionate” to the offense committed.
ARGUMENTS AND AUTHORITIES REPLY ISSUE FOUR
The state concedes this issue is most likely properly preserved for appellate
review. While Appellant’s trial counsel did not object to the sentence at the time it
was imposed, Appellant’s counsel on appeal filed a motion for new trial and at that
hearing made an objection to the sentence imposed under the Eight Amendment to
the United States Constitution. This court has ruled that a motion for new trial is an
appropriate way to preserve the claim that a sentence is disproportionate to the
offense. Delacruz v. State, 167 S.W.3d 904 (Tex.App.-Texarkana 2005, no pet.).
30
Appellant in this case was sentenced to eight years in Texas Department of
Criminal Justice – Institutional Division on all thirty counts of the indictment. The
trial judge chose to impose consecutive sentences on all thirty counts under
TEX.PEN.CODE ANN sec. 3.03(b)(3)(A), which provides the trial court the
option of choosing whether sentences run concurrently or consecutively for
convictions for multiple acts arising out of the same criminal episode for offenses
of this type. Appellant argued at his motion for new trial and now on appeal that
his sentence amounts to cruel and unusual punishment, and that the sentence is
grossly disproportionate to the offense for which he was convicted.
Texas courts have traditionally held that, as long as the punishment assessed is
within the range prescribed by the Legislature in a valid statute, the punishment is
not excessive cruel, or unusual. Williamson v. State, 175 S.W.3d 522, 525
(Tex.App.-Texarkana 2005, no pet.). see e.g., Jordan v. State, 495 S.W.2d 949,
952 (Tex.Crim.App. 1973). However, this Court in Jackson v. State, 989 S.W.2d
842, 845 (Tex.App.-Texarkana 1999, no pet.) recognized that a prohibition against
grossly disproportionate punishment survives under the Eight Amendment to the
United States Constitution apart from any consideration of whether the punishment
assessed is with the range established by the Legislature. see also Fluellen v. State,
71 S.W.3d 870, 873 (Tex.App.-Texarkana 2002, pet. ref’d). Texas courts have
31
adopted the disproportionality test used by the Fifth Circuit in McGruder v.
Puckett, 954 F.2d 313,316 (5th Cir. 1992). In analyzing whether Appellant’s
sentence violates the Eight Amendment guarantee against cruel and unusual
punishment, this court in Mullins v State, 208 S.W.3d 496, 470 (Tex.App-
Texarkana 2006, no pet.) stated it compares the gravity of the offense with the
severity of the sentence, and then, only if that initial comparison created an
inference that the sentence was grossly disproportionate to the offense should there
be a consideration of the other two Solem factors – (1) sentences for similar crimes
in the same jurisdiction and (2) sentences for the same crime in other jurisdictions.
Id. (citing McGruder, 954 F.2d at 316). Courts are to judge the gravity of the
offense in light of the harm caused or threated to the victim or society, and the
culpability of the offender. Acosta v. State, 160 S.W.3d 204, 212 (Tex.App.-Fort
Worth 2005, no pet.)
This Court has also recognized in Williamson v. State, 175 S.W.3d 522, 524
(Tex.App-Texarkana 2005, no pet.) that there is case law authority that cumulation
of sentences does not constitute cruel and unusual punishment. Id. In Williamson
the defendant received three consecutive life sentences for sexual assault of a child
which this court found not to be “grossly disproportionate” to the offense
committed. Williamson at 525.
32
In analyzing the gravity of the offense in light of the harm caused to the victim
or society with the severity of the sentence, the state contends that possession of
child pornography is just as serious and heinous as the offense of sexual assault of
a child. “The Legislature may have determined that child pornography is even
more damaging to the child victim than sexual abuse or prostitution, inasmuch as
the helpless child’s actions are reduced and memorialized on a recording or film
and that type of pornography may haunt and damage the child for many long years
in the future after the original misdeed occurred. Indeed, the effect is devastating
and of long duration on the child who has been photographed performing certain
acts. The child must go through his adult life with the knowledge that the recording
or picture or photograph or film exists and may, and some time in later years, be
distributed or circulated.” Savery v. State, 767 S.W.2d 242 (Tex.App.-Beaumont
1989).
Appellant in this case was charged with thirty counts of possession of child
pornography, however, testimony at the guilty plea revealed that the state
questioned Appellant about having over 3,000 different images of child
pornography, which the Appellant could not refute. (RR. Vol. 2 MTS p.31). The
trial court reviewed state’s exhibit #6, the child pornography Appellant was
indicted for possessing. These videos and images contain graphic and horrific
33
scenes of sexual abuse of children as young as the age of five and six, engaging in
sexual acts with each other, and often, adult men. The trial court stated it spent
hours reviewing the evidence in state’s exhibit #6 and had to view it in two
different sessions because it was so upsetting to view. (RR Vol. 2 MTS p. 74). The
trial court indicated it lost sleep over viewing these videos and images because of
their nature, was glad it did not have to view all 3,000, and only considered not
assessing the maximum sentence of ten years on each count because the Appellant
accepted responsibility by way of a guilty plea; and the trial court went further to
say that it was sentencing the defendant based on the nature of his crime and was
not trying to “send a message”. (RR Vol. 2 MTS, p. 75). It is clear from the record
that the trial court clearly considered the nature of the evidence before deciding to
cumulate the sentences imposed. The trial court’s aggregated sentence, although
lengthy, was within the parameters established by the legislature for the type of
crime committed. The trial court was within its discretion to weigh and assess the
evidence, the circumstances, the Appellant, and the nature of the crime in imposing
sentence.
The state could not after due diligence locate any case by a Texas court where
a sentence for child pornography or child sexual assault was overturned because
the sentence was “grossly disproportionate” to the offense committed.
34
This Court in an unpublished opinion in Speights v. State upheld the imposition
of a 250 year sentence out of the 71st District Court of Harrison County (the same
court which assessed Appellant’s sentence) on two counts of indecency by sexual
contact, one count of indecency by exposure, and ten counts of promotion or
production of child pornography which the trial judge assessed the maximum
sentence and ordered they run consecutively and ruled the sentence imposed was
not grossly disproportionate to the crime. Speights v. State, 2005 WL 2777537,
(Texarkana unpublished opinion, no pet.). In another unpublished opinion out of
the San Antonio Court of Appeals in Lamarre v. State the court upheld a 220 year
sentence on twenty-two separate counts of child pornography which the trial
ordered run consecutively. Lamarre v. State, 2013 WL 781778, (San Antonio
unpublished opinion, pet. ref’d). However, the state concedes in Lamarre it does
not appear an Eight Amendment claim was raised on appeal. In Reynolds v. State,
the San Antonio Court of Appeals also upheld a sentence on eighty counts of child
pornography in which a ten year sentence was assessed on each count and eight
counts were ordered to run consecutively and found that because of the nature of
the evidence, could not say that the trial court’s sentence was grossly
disproportionate to his conduct. Reynolds v. State, 430 S.W.3d 467, 473
(Tex.App.-San Antonio 2014, no pet.). Based on the conduct of the Appellant, the
35
nature of the evidence in this case, as well as the long lasting and damaging impact
that child pornography has on the children affected, the trial court did not commit
reversible error in ordering that the eight year sentences on thirty counts run
consecutively.
Appellant presented several cases to the trial court in his motion for new trial.
However, all of the cases cited are from other federal jurisdictions and Appellant
cited to no cases for similar crimes in the same jurisdiction, failing to meet his
burden under the proportionality test set out in McGruder.
Counsel for Appellant during his motion for new trial also argued the sentence
imposed violates art. 1 sec. 13 of the Texas Constitution, however, Appellant cites
to no Texas case that entitles Appellant to either greater protection against cruel or
unusual punishment, or a different analysis under the Texas Constitution. A view
this Court recognized in Jackson v. State, 989 S.W.2d 842, 845 (Tex.App.-
Texarkana 1999, no pet.)(“Although Jackson cites a number of cases
where Texas constitutional provisions have been interpreted to give greater rights
than their federal counterparts, he cites no Texas case that has interpreted
the Texas prohibition against cruel or unusual punishment differently from the
federal prohibition against cruel and unusual punishment.” Jackson at 845).
36
Appellant also argues that counsel for the state during Appellant’s guilty plea
said his motion to cumulate sentences was “outrageous”. This is a
misrepresentation. An examination of the entire closing argument shows how
state’s counsel argued that the sentence the state was asking for was appropriate
given the nature and severity of Appellant’s crime, and a plea for law enforcement
asking the trial judge to deter others from engaging in the same criminality as the
Appellant. (RR Vol. 2 MTS, p. 70-73).
37
PRAYER
The trial court having committed no reversible error, the state respectfully
prays this Court affirm the verdict and judgment of the court below.
Respectfully Submitted
Coke Solomon
Criminal District Attorney
Harrison County, Texas
By: /s/ Shawn Eric Connally
________________________
Shawn Eric Connally
Assistant Criminal District Attorney
Bar #24051899
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Brief of the
Appellee has been sent to the attorney for Appellant, Lew Dunn, on the 15th day of
June, 2015.
/s/ Shawn Eric Connally
____________________________
Shawn Eric Connally
CERTIFICATE OF COMPLIANCE
I hereby certify compliance with T.R.A.P 9.4(i)(3), and that the number of
words in this document is 9130.
/s/ Shawn Eric Connally
____________________________
Shawn Eric Connally
38