


 
IN THE
TENTH COURT OF APPEALS










 

No. 10-07-00260-CR, No. 10-07-00261-CR,
No. 10-07-00262-CR, No. 10-07-00263-CR,
No. 10-07-00264-CR, No. 10-07-00265-CR,
No. 10-07-00266-CR, No. 10-07-00267-CR,
No. 10-07-00268-CR, No. 10-07-00269-CR,
And No. 10-07-00270-CR
 
Karl Keith Noland,
                                                                                    Appellant
 v.
 
The State of Texas,
                                                                                    Appellee
 
 

From the 85th District Court
Brazos County, Texas
Trial Court Nos. 05-04140-CRF-85,
05-04141-CRF-85, 
05-04142-CRF-85, 05-04143-CRF-85,
05-04144-CRF-85, 
05-04145-CRF-85, 05-04146-CRF-85,
05-04147-CRF-85, 
05-04148-CRF-85, 05-04149-CRF-85,
and 05-04150-CRF-85
 

MEMORANDUM  Opinion





 
            Karl Keith Noland was convicted of 50
separate counts spanning 11 indictments of Possession of Child Pornography.  Tex. Penal Code Ann. § 43.26 (Vernon 2003). 
He was sentenced to 10 years in prison on each count.  Because probable cause
existed to issue the search warrant and because there was not a material
disputed fact issue to require an article 38.23 instruction to the jury, we
affirm the trial court’s judgment.
Background
            Noland was having trouble with his
home computer.  It would not “boot up.”  He called Lloyd McSpadon, owner of
Brazos Valley Computers.  McSpadon told him to bring the computer in to the
shop.  Noland then asked an unusual question.  He asked what McSpadon would do
if he found something on Noland’s computer that was not supposed to be there. 
McSpadon interpreted that question to mean that Noland had pornography on his
computer.  McSpadon told Noland that pornography was not illegal.  Noland
responded, “Mine is,” or words to that effect.  McSpadon then said to Noland,
“Well, let’s say I won’t look for it.”  Noland also asked McSpadon if he would
be going through the computer looking at things stored on it.  McSpadon replied
that he would not.  
            Noland brought in the computer.  He
did not give McSpadon any special instructions about where McSpadon could or
could not look on the computer.  Although Noland did not specifically authorize
McSpadon to run a virus check, Noland did not give any limitations on fixing
the computer.  When McSpadon began working on the computer, he noticed that
several capacitors on the motherboard had exploded and had blown the
motherboard.  Later, McSpadon tested each component of the computer, such as
the CD drive and the hard drive, because a blown motherboard can affect other
components of the system.  Before replacing the motherboard, he started a virus
scan on the hard drive.  McSpadon testified that he believed this action was
necessary to avoid problems while trying to repair the computer.  On
cross-examination, McSpadon agreed that a virus scan had nothing to do with the
motherboard but noted that it had everything to do with fixing the computer. 
And although he does not run a virus scan with every customer, he runs a scan
with most customers.
            During the virus scan on the hard
drive, McSpadon came across something that was alarming to him.  There were
some virus-infected files in a particular folder.  He could see the names of
the files as they were being scanned.  One of the file names was “Five-year-old
girl with dog or pedo.”  McSpadon aborted the virus scan and went to that
particular folder to confirm what he saw.  He opened the folder, but not the
particular files, and saw thumbnails of what was in the folder.  He could see
that the folder contained what he thought to be pornographic images.  McSpadon
recalled that Noland had said his pornography was illegal.
            At that point, McSpadon shut down his
server, took the hard drive out, and installed it back into Noland’s computer. 
He then called the FBI.  McSpadon was later contacted by Det. Brandy Norris
from the College Station Police Department.  She came over to the computer
store with a search warrant and took the computer.  Child pornography was discovered
on Noland’s computer hard drive.
Search Warrant
            In his first issue, Noland argues that
the trial court erred in overruling his motion to suppress evidence of alleged
pornographic images of children extracted from his computer hard drive secured
pursuant to a search warrant.  
            Prior to trial, Noland filed three
“boilerplate” motions to suppress.  One requested suppression of statements he
may have made.  Another requested the suppression of evidence seized during a warrantless
search of his residence, land, or business.  The third, and the subject of this
appeal, requested the suppression of personal property seized without a
warrant.[1] 
            At the start of the trial, Noland
offered to have the court “carry” the motions throughout the trial, suggesting
that he would like to be heard on the motions at some point after some
witnesses testified.  After Norris testified, Noland requested to be heard on
his motion to suppress personal property which had, by then, morphed into an
oral motion to suppress the computer seized pursuant to the search warrant.  It
is difficult to determine from the record exactly why Noland thought there was
a problem with the search pursuant to the warrant.  Nevertheless, by the end of
the argument by the parties, the issue again morphed into a different
question:  was there probable cause to support the issuance of the search
warrant.[2]  The
trial court found that Noland’s volunteered statement that the pornography on
his computer was illegal was sufficient to support a warrant.
            Now on appeal, the complaint appears
to have morphed again.  Noland gives four reasons in support of his issue that
the trial court erred in denying his motion to suppress.  First, he contends
that our review is limited to the four corners of the affidavit in support of
the search warrant.  Second, he contends he has standing to assert an article
38.23 violation.[3] 
Third, he contends an article 38.23 violation was contained in the affidavit in
support of the search warrant.  Fourth, he contends we cannot consider his
statement concerning the illegal pornography on his computer. 
Applicable Law
            The Fourth Amendment prohibits
unreasonable searches and seizures.  Beeman v. State, 86 S.W.3d 613, 615
(Tex. Crim. App. 2002) (citing U.S. Const.
Amend. IV; Minnesota v. Carter, 525 U.S. 83, 88, 142 L. Ed. 2d 373, 119 S. Ct. 469 (1998)).  But searches conducted pursuant to a
warrant "will rarely require any deep inquiry into reasonableness."  Id. (quoting United States v. Leon, 468 U.S. 897, 922, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984)).  There is a strong preference for searches conducted with a warrant
because they are issued based on "the informed and deliberate
determinations" of a neutral and detached magistrate.  Id. (quoting
United States v. Ventresca, 380 U.S. 102, 105-106, 13 L. Ed. 2d 684, 85
S. Ct. 741 (1965); Aguilar v. Texas, 378 U.S. 108, 110-11, 12 L. Ed. 2d
723, 84 S. Ct. 1509 (1964)).
            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.
            We review a trial court's ruling on a
motion to suppress evidence under a bifurcated standard of review.  St.
George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007).  We give
almost total deference to the trial court's determination of historical facts
and review de novo the trial court's application of law to facts not turning on
credibility and demeanor.  Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005).
Application
            On appeal, two arguments Noland makes
to support his issue are that he has standing to assert an article 38.23
violation and that an article 38.23 violation was contained in the affidavit in
support of the search warrant.  Noland contends on appeal that he had a
legitimate expectation of privacy in his computer hard drive.  But this was not
an argument that was expressly made to the trial court.  At the hearing on the
motion to suppress, Noland only alluded to the concept of an expectation of
privacy by discussing a case in which the expectation of privacy in a computer
was central to the holding of the court.  See United States v.
Barth, 26 F. Supp. 2d 929 (W.D. Tex. 1998, order).  Noland discussed the Barth
case and two cases distinguishing it and then concluded that the search was
illegal and the evidence should be suppressed as fruit of the poisonous tree. 
Further, Noland never pointed out to the trial court that he viewed McSpadon’s
actions as a violation of the law.  Accordingly, the arguments made at trial
were not sufficiently specific to preserve for our review the arguments Noland
makes now 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.").
            Noland also argues on appeal that we
cannot review the testimony presented prior to the argument on the motion to
suppress because we are limited to the “four corners” of the affidavit.  At the
hearing on the motion to suppress, Noland specifically asked the trial court to
consider the testimony of the witnesses who had just testified. Regardless of
whether Noland’s request at trial amounted to invited error, a question we do
not decide, we note that the testimony presented encompassed the same
information that was included in the search warrant affidavit which, although
it was not at that time in evidence, was ultimately introduced at the end of
the presentation of testimony when Noland was requesting a specific jury
instruction which will be discussed in connection with Noland’s second issue. 
And because Noland’s volunteered admission to McSpadon that the pornography on
his computer was illegal was included within the search warrant affidavit,
there are sufficient facts, coupled with reasonable inferences from those
facts, to establish a "fair probability" that evidence of a
particular crime would likely be found on the computer hard drive. 
            But Noland also argues that we cannot
consider his “lay opinion” about the illegality of the pornography.  He cites
no authority for that proposition.  That argument is inadequately briefed and
presents nothing for review.  See Tex.
R. App. P. 38.8 (h).  Accordingly, probable cause existed to issue the
search warrant.
            Because probable cause existed to
issue the search warrant, the trial court did not err in overruling Noland’s
motion to suppress.  Noland’s first issue is overruled.
Jury Instruction
            By his second issue, Noland argues
that the trial court erred in failing to submit a requested article 38.23
instruction to the jury.  He contends there was a disputed fact issue on the
scope of authority given to McSpadon.
            A defendant's right to the submission
of jury instructions under Article 38.23(a) is limited to disputed issues of
fact that are material to his claim of a constitutional or statutory violation
that would render evidence inadmissible.  Madden v. State, 242 S.W.3d
504, 509-510 (Tex. Crim. App. 2007).  There are three requirements that a defendant
must meet before he is entitled to the submission of a jury instruction under
article 38.23(a): 
(1) The evidence heard by the jury must raise an
issue of fact;
 
(2) The evidence on that fact must be
affirmatively contested; and
 
(3) That contested factual issue must be material
to the lawfulness of the challenged conduct in obtaining the evidence. 
 
Id. at 510.
            The only question is whether under the
facts of a particular case an issue has been raised by the evidence so as to
require a jury instruction.  Id.  (quoting Murphy v. State, 640
S.W.2d 297, 299 (Tex. Crim. App. 1982)).  There must be a genuine dispute about
a material fact.  Id. at 510.  If there is no disputed factual issue,
the legality of the conduct is determined by the trial judge alone, as a
question of law.  Id.  And if other facts, not in dispute, are
sufficient to support the lawfulness of the challenged conduct, then the
disputed fact issue is not submitted to the jury because it is not material to
the ultimate admissibility of the evidence.  Id.  The disputed fact must
be an essential one in deciding the lawfulness of the challenged conduct.  Id. at 511.  Where no issue is raised by the evidence, the trial court acts properly
in refusing a request to charge the jury.  Id. at 510 (quoting Murphy,
640 S.W.2d at 299).
            The fact issue that Noland claims, on
appeal, was disputed was whether McSpadon’s ability to look through the files
of Noland’s computer was limited by Noland.  Even if this was a disputed fact
issue, which we do not determine, this fact is not material to the ultimate
admissibility of the evidence because there was another fact not in dispute
which was sufficient to support the lawfulness of the search.  That fact is
Noland’s voluntary admission that the pornography on his computer was illegal. 
No other testimony disputed this admission.  Therefore, the trial court did not
err in refusing the requested jury charge.
            Noland’s second issue is overruled.
Conclusion
            Having overruled Noland’s issues on
appeal, we affirm the trial court’s judgment.
 
                                                                        TOM
GRAY
                                                                        Chief
Justice
 
Before
Chief Justice Gray,
            Justice
Reyna, and
            Justice
Davis
Affirmed
Opinion
delivered and filed June 24, 2009
Do
not publish 
[CR25]




[1] Both
the search of the computer and the search of Noland’s residence were conducted with
a warrant, not without a warrant.
 


[2] By
the time of the trial court’s decision on the motion to suppress, the search
warrant had been introduced into evidence.  However, the affidavit supporting
the warrant had not yet been admitted.


[3] Tex. Code Crim. Proc. Ann. art. 38.23
(Vernon 2005).



 0.388889in">      Points 6, 7 and 8 in both cases assert the trial court erred in overruling Appellant’s motion
for new trial because Appellant received ineffective assistance of counsel: (1) in that counsel did
not make an independent investigation of the case; (2) in that counsel represented to Appellant that
he would receive probation or ten years in prison if he pled nolo contendere, and thus his pleas
were not voluntary; and (3) in that counsel did not object to the pre-sentence investigation that
contained matters produced by use of a plethysmograph.
      The granting of a motion for new trial on the ground of ineffective assistance of counsel is a
matter within the trial court’s discretion.  Messer v. State, 757 S.W.2d 820, 827 (Tex.
App.—Houston [1st Dist.] 1988, pet ref’d).
      Strickland v. Washington, 466 U.S. 668 and Hernandez v. State, 726 S.W.2d 53, 57 (Tex.
Crim. App. 1986), set the standards for analyzing a claim of ineffective assistance of counsel. 
These cases adopted a two-pronged analysis for claims of ineffective assistance.  Under the first
prong, the defendant must show that counsel’s performance was deficient by norms of the
community to the extent that counsel failed to function as the “counsel” guaranteed by the Sixth
Amendment to the U.S. Constitution.  Strickland, at 687.  Under the second prong the defendant
must show that counsel’s performance prejudiced the defense.  To show prejudice the defendant
must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the
results of the proceeding would have been different.  A reasonable probability is a probability
sufficient to undermine confidence in the outcome.  Id. at 694.  The burden of proving ineffective
assistance is on the defendant and it must be proved by a preponderance of the evidence.  Moore
v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985).  And when reviewing a claim of
ineffective assistance, a court must indulge a strong presumption that counsel’s conduct falls
within a wide range of reasonable professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged action or omission “might” be
considered sound trial strategy.  Jackson V. State, 877 S.W.2d 768 (Tex. Crim. App. 1994).
      The standard for evaluating a punishment phase “ineffective counsel” claim is the reasonably
effective assistance standard of Ex parte Duffy, 607 S.W.2d 507, 516 (Tex. Crim. App. 1980). 
The test is whether counsel was reasonably likely to render effective assistance and whether
counsel reasonably rendered effective assistance.
      While the reviewing court looks to the totality of the representation, under some
circumstances a single error or omission by counsel can constitute ineffective assistance.  Ware
v. Ware, 875 S.W.2d 432, 434-36 (Tex. App.—Waco 1994, pet ref’d).  And when the record is
void of anything which reflects counsel’s reasoning, or lack thereof, to rebut the presumption that
counsel’s action constituted trial strategy, a claim of ineffective assistance of counsel must fail. 
Jackson v. State, supra at 771.
      Appellant asserts in point 6 that counsel did not investigate the facts of his case, but at the
hearing on his motion for new trial, Appellant testified that he did not know whether counsel had
investigated his case or not, and that he based his contention on the fact that counsel had never
discussed the details of his investigation with him.
      Appellant asserts in point 7 that counsel rendered ineffective assistance by representing to him
that he would receive probation or a ten-year prison sentence, and thus his pleas were not
voluntary.
      Appellant testified at the hearing on his motion for new trial that his counsel told him he
would receive probation or at most ten years in prison if he pled nolo contendere.
      Defendant was admonished by the trial judge on the range of punishment if he was found
guilty, and acknowledged at the hearing on his motion for new trial that he understood at the time
of his pleas that final decision as to punishment was with the judge and not his counsel.
      Statements made to Appellant by his counsel about the punishment he might expect if he pled
no contest simply constituted counsel’s predictions, albeit erroneous, about the logical outcome
of certain trial strategy.  In view of the clear admonitions by the trial judge before the pleas, which
Appellant and his counsel admitted they understood, Appellant cannot credibly contend his plea
was involuntary and that he was denied effective assistance of counsel.  Messer v. State, 757
S.W.2d 820, 826 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d) is almost identical to the
instant case on its facts and in its holding.
      Appellant has failed to show that the trial court abused its discretion in overruling his motion
for new trial on the grounds of ineffective assistance of counsel in points 6 and 7.
      Appellant contends in point 8 that his counsel was ineffective for failing to object to the pre-sentence investigation report that contained matters produced by use of a plethysmograph.
      Appellant did not raise this contention in his motion for a new trial.  His trial counsel was not
a part of his defense when the motion for new trial was prepared or litigated.  In such situation
failure to raise the contention of ineffective assistance of counsel in the motion for new trial waives
the same.  Henderson v. State, 962 S.W.2d 544, 558 (Tex. Crim. App. 1997).
      Points 6, 7 and 8 in both cases are overruled.
      The judgments in both cases are affirmed.
                                                                               FRANK G. McDONALD
  Chief Justice (Retired)

Before Chief Justice Davis,
      Justice Cummings and
      Chief Justice McDonald (Retired)
Affirmed
Opinion delivered and filed December 2, 1998
Do not publish
