Opinion issued October 15, 2015




                                  In The

                           Court of Appeals
                                  For The

                       First District of Texas
                         ————————————
                           NO. 01-14-00516-CR
                           NO. 01-14-00517-CR
                           NO. 01-14-00518-CR
                           NO. 01-14-00519-CR
                           NO. 01-14-00520-CR
                         ———————————
                  HUGO D. PACHAS-LUNA, Appellant
                                    V.
                    THE STATE OF TEXAS, Appellee


                 On Appeal from the 230th District Court
                          Harris County, Texas
  Trial Court Case Nos. 1370904, 1370905, 1370906, 1370907, and 1370908


                     MEMORANDUM OPINION
      The trial court convicted appellant Hugo D. Pachas-Luna of five counts of

possession of child pornography1 and assessed his punishment for each count at

eight years’ incarceration in the Texas Department of Criminal Justice,

Institutional Division, with the sentences to run consecutively. In a single issue,

appellant contends that the trial court erred in denying his motion to suppress

evidence because the search warrant affidavit failed to establish probable cause.

We affirm the trial court’s judgment.

                                   Background

      On December 10, 2012, Corporal Lee of the Harris County Precinct Four

Constable’s Office swore to a twenty-one page affidavit supporting a warrant to

search appellant’s residence for data and images of child pornography and

requesting permission to “seize at the search location all the computer hardware,

software, and peripherals that are believed to potentially contain some or all of the

contraband.”

      Corporal Lee testified in his affidavit that he conducted an online

investigation into the trafficking of child pornography in Harris County via

peer-to-peer file-sharing networks on August 9, 2012.2 The specialized software

1
      See TEX. PENAL CODE ANN. § 43.26 (West Supp. 2013).
2
      Although Corporal Lee’s affidavit delves into far greater detail regarding the
      technology involved and the manner in which he determined that the IP address
      was sharing and downloading child pornography, it is not necessary for the court
      to do so in light of the disposition of this appeal.


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Lee was using to conduct this investigation allowed him and other investigators to

identify materials that an individual or a computer has “downloaded over a specific

period,” using IP addresses. During his investigation, Lee determined that IP

address 98.194.180.106 had files within its shared folders that appeared to contain

child pornography. Lee subpoenaed “the subscriber assigned to the IP address,

based upon . . . the dates and times the IP address was seen downloading what are

believed to be child pornographic images or videos,” from Comcast Internet

Services, the internet service provider associated with the IP address. On August

20, 2012, Comcast responded to the subpoena, identifying appellant as “the

subscriber who was utilizing the I.P. address of 98.194.180.106 on 08/05/12 at

2042 hrs and 04/14/12, at 2057 hrs GMT” and listing appellant’s address as 18107

Fairhope Oak. Lee testified that he took photographs of 18107 Fairhope Oak on

August 23, 2012, and he included two such photographs in his affidavit which

showed a single-family suburban house. Lee also conducted additional checks of

IP address 98.194.180.106, in November and December 2012, which confirmed

that the address was still sharing files that appeared to be child pornography.

      Based upon his experience and training, Lee testified that people who have a

sexual interest in children or minors often collect sexually explicit materials

depicting children, including photographs, motion pictures, and videotapes.

According to Lee, such individuals “rarely, if ever, dispose of their sexually



                                          3
explicit materials,” which they consider to be “prized possessions.” Often, these

individuals “use the computer to electronically exchange pictures of children . . .

engaged in sexual activity. These illegal images can be stored on the computer or

floppy disks, and viewed on the computer monitor anytime the subject chooses.”

Based on his experience in this area, Lee testified that “collections of child

pornography will more than likely be located in the suspect’s home,” because a

“high degree of privacy is necessary to enjoy the collection.” Lee had previously

verified that the IP address was linked to a residence.

      Lee further testified:

      Affiant also knows from his training and experience that digital
      material has the capability of remaining on devices designed to store
      them for an indefinite period of time including weeks, months, and
      years. Unlike drugs, the user does not consume Child Pornography;
      rather they are stored and kept for an indefinite period of time.

Although such individuals “go to great lengths to conceal and protect from

discovery, theft, and damage, their collections of illicit materials,” Lee testified

that it is possible to “recover data that has been deleted from a computer hard

drive, as well as storage media.”

      Based on Lee’s affidavit, a search warrant was executed on December 12,

2012. During that search of appellant’s residence, police discovered numerous hard

drives containing more than 18,000 images and videos of child pornography.




                                          4
      Appellant, who was later charged with five counts of possession of child

pornography, filed a motion to suppress alleging that the affidavit lacked sufficient

probable cause to support the search of his house. The trial court held a hearing on

the motion to suppress at the beginning of appellant’s bench trial and, after hearing

the testimony of the affiant and the arguments of counsel, denied the motion.

                               Preservation of Error

      A motion to suppress is a specialized objection to the admission of evidence.

Rothstein v. State, 267 S.W.3d 366, 373 (Tex. App.—Houston [14th Dist.] 2008,

pet. ref’d). “[A] complaint is not preserved for appeal unless it was made to the

trial court ‘by a timely request, objection or motion’ that ‘stated the grounds for the

ruling that the complaining party sought from the trial court with sufficient

specificity to make the trial court aware of the complaint, unless the specific

grounds were apparent from the context.’” Resendez v. State, 306 S.W.3d 308, 312

(Tex. Crim. App. 2009) (quoting TEX. R. APP. P. 33.1); see also TEX. R. EVID. 103.

      “The purpose of requiring a specific objection in the trial court is twofold:

(1) to inform the trial [court] of the basis of the objection and give [it] the

opportunity to rule on it; (2) to give opposing counsel the opportunity to respond to

the complaint.” Resendez, 306 S.W.3d at 312. To preserve error, a party “must be

specific enough so as to ‘let the trial [court] know what he wants, why he thinks

himself entitled to it, and do so clearly enough for the judge to understand him at a



                                          5
time when the trial court is in a proper position to do something about it.’” Id. at

313 (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)). A

party fails to preserve error when the error urged on appeal is different from the

objection made in the trial court. See Rothstein, 267 S.W.3d at 373.

      We consider the context of the objections in the trial court to determine if

the party preserved error. See Resendez, 306 S.W.3d at 313. Accordingly, we

review appellant’s motion to suppress and the suppression hearing to determine if

the complaint was apparent from the context. See id. at 314–16; Rothstein, 267

S.W.3d at 374–75 & n.5; see also Keeter v. State, 175 S.W.3d 756, 760 (Tex.

Crim. App. 2005) (stating that issue may be preserved for appeal when litigated

during hearing on motion to suppress and legal and factual questions intertwined).

If the context shows that appellant failed to effectively communicate his argument

to the trial court, then the error is deemed waived on appeal. Lankston, 827 S.W.2d

at 909.

      In his pretrial motion to suppress evidence, appellant argued that: (1) the

affidavit did not show probable cause sufficient to justify the issuance of the search

warrant because the affidavit did not contain sufficient facts from which a

magistrate could have determined that (a) child pornography was located at that

physical address, or (b) Corporal Lee was credible; and (2) the search warrant was

illegally issued because the issuing magistrate was misled by information in the



                                          6
affidavit that Lee knew or should have known was false. During the hearing on the

motion to suppress, appellant further argued that the affidavit was insufficient to

establish probable cause because: (1) although Lee testified that he determined that

the hash values that he observed were child pornography by asking “other

investigators” if they had seen these hash values before, he did not provide any

information from which the magistrate could determine whether the “other

investigators” were credible; and, (2) the information in the affidavit linking the IP

address to appellant and the 18107 Fairhope Oak address was stale.

      On appeal, appellant contends that the search warrant affidavit failed to

demonstrate probable cause because, among other reasons:

             1) Lee stated that he was using an “online database” and
                “software” to perform his investigation, but the affidavit did
                not provide a name or any other information from which a
                magistrate could determine that the database and software
                were reliable,

             2) Lee omitted a verb from a key phrase used in the affidavit
                (“which [___] several unique files. . .”),

             3) Lee’s statements that several of the files he observed had
                “titles that were indicative of child porn” and other files
                were “labeled as child notables” are conclusory and
                uncredited,

             4) the connection to 18107 Fairhope Oak is not substantiated
                because either Lee subpoenaed subscriber information for IP
                address 98.194.180.106 for the wrong dates or Comcast
                provided information for the wrong dates,




                                          7
            5) Lee failed to corroborate that appellant actually resided at
               the 18107 Fairhope Oak address in August, as indicated by
               Comcast’s response to the subpoena,

             6) although Lee identified the “approved investigation
                techniques” that he learned during the course of his training,
                the facts set forth in the affidavit indicate that Lee did not
                utilize those approved techniques in this investigation, and

            7) Lee did not provide any information from which the
               magistrate could determine whether the opinions of the
               “other investigators” were reliable.3

      Appellant, however, did not argue to the trial court that the affidavit was

insufficient to establish probable cause for any of these reasons. Because these

appellate arguments do not comport with appellant’s arguments to the trial court,

we hold that appellant has not preserved these arguments for our review. See

Foster v. State, 874 S.W.2d 286, 289 (Tex. App.—Fort Worth 1994, pet. ref’d)

(holding that arguments regarding deficiencies in affidavit and search warrant not

raised in motion or presented at suppression hearing were not preserved for

appellate review); TEX. R. APP. P. 33.1(a)(1) (requiring party to raise specific

ground in trial court as prerequisite for appellate complaint); see e.g., Richardson

v. State, No. 01–04–00833–CR, 2006 WL 488661, at *3 (Tex. App.—Houston [1st

Dist.] Mar. 2, 2006, pet. ref’d) (mem. op., not designated for publication) (citing
3
      At the hearing on appellant’s motion, appellant argued that the affidavit was
      insufficient to establish probable cause because Lee did not provide any
      information from which the magistrate could determine whether the “other
      investigators” were credible. See State v. Smith, 335 S.W.3d 706, 714 (Tex.
      App.—Houston [14th Dist.] 2011, pet. ref’d) (noting that credibility and reliability
      are different concepts).


                                           8
Foster, 874 S.W.2d at 289) (holding defendant’s argument that search warrant

affidavit failed to establish probable cause based on staleness of information and

lack of factual allegations demonstrating reliability of canine unit were not

preserved because defendant only argued to trial court that affidavit failed to

establish probable cause due to lack of factual allegations demonstrating reliability

and credibility of informant).

                                 Motion to Suppress

      We will limit our discussion to the only appellate complaints that appellant

has preserved for our review—whether the reference to a different IP address on

page 6 of the affidavit is irrelevant and should be excluded from our probable

cause evaluation and whether the information in the affidavit was stale.

A.    Standard of Review

      Normally, we review a trial court’s decision on a motion to suppress using a

bifurcated standard, deferring to the trial court’s findings of historical facts and

reviewing de novo the application of law. Amador v. State, 221 S.W.3d 666, 673

(Tex. Crim. App. 2007). However, when a trial court determines probable cause to

support the issuance of a search warrant, the court is “constrained to the four

corners of the affidavit” and does not make any credibility determinations. State v.

McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011). We apply a highly

deferential standard when reviewing a magistrate’s decision to issue a warrant



                                         9
because of the constitutional preference for searches to be conducted pursuant to a

warrant as opposed to a warrantless search. Id.; see also U.S. CONST. amend. IV

(providing that no warrants may issue, whether for arrest or search, in absence of

probable cause). The magistrate’s probable cause determination will be upheld as

long as the magistrate had a substantial basis for concluding that probable cause

existed. McLain, 337 S.W.3d at 271; Rodriguez v. State, 232 S.W.3d 55, 60 (Tex.

Crim. App. 2007).

      To determine whether probable cause exists, the magistrate must consider

the totality of the circumstances in deciding whether there is a fair probability that

contraband or other evidence of a crime will be found at the specified location.

Rodriguez, 232 S.W.3d at 60. A finding of “fair probability” cannot be based on

“mere ratification of the bare conclusions of others.” Illinois v. Gates, 462 U.S.

213, 239, 103 S. Ct. 2317, 2333 (1983). When reviewing an issuing magistrate’s

determination, we should interpret the affidavit in a commonsensical and realistic

manner, recognizing that the magistrate may draw reasonable inferences.

Rodriguez, 232 S.W.3d at 61. Ultimately, our inquiry focuses on “whether there

are sufficient facts, coupled with 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. When in doubt, we defer to all reasonable inferences that the

magistrate could have made. Id. at 61.



                                         10
B.    Typographical Error

      Appellant argues on appeal that the following two sentences on page 6 of the

affidavit are “essentially meaningless, inconsistent, and pertain[] to an unrelated IP

address” and should be excluded from our probable cause evaluation:

      An additional check of IP 98.194.180.196 conducted on 12/07/12
      shows the IP has continued to have files within its shared folders and
      those files all have files which are indicative of being child
      pornographic in nature and was last observed as of 11/13/12. This
      additional check provided information that the IP address has been
      observed on one (1) network between the dates of 08/27/11 and
      09/03/12.

Although appellant did not raise these arguments below in support of his motion to

suppress, the affidavit’s reference to a different IP address (98.194.180.196) was

discussed at the end of the suppression hearing when the trial judge brought the

matter to counsels’ attention. The State responded that the reference to IP address

98.194.180.196 was a typographical error, as demonstrated by Lee’s testimony,

and appellant’s counsel argued that it was not a typographical error, without further

elaboration.

      Assuming, without deciding, that appellant preserved this issue for our

review, appellant’s argument is unavailing because the magistrate could have

reasonably inferred that the lone reference to IP address 98.194.180.196 in the

affidavit was a typographical error based on the other information included within

the four corners of the document. Specifically, after discussing the computer



                                         11
program and methodology he generally employs in such investigations, Corporal

Lee averred that he “located IP address 98.194.180.106,” which contained files that

appeared to be child pornography. Lee then refers to an “additional check” of IP

address 98.194.180.196, and states that this “additional check” showed that the IP

address “continue[d]” to share child pornography. Additionally, Lee testified in his

affidavit that he requested information from Comcast “based upon the dates and

times the IP address was seen downloading” child pornography, indicating that Lee

meant to refer only to a single IP address in his affidavit. He further averred that

Comcast responded to the subpoena and identified appellant as the subscriber who

was utilizing IP address 98.194.180.106 on the dates and times requested. Based

on the totality of the information set forth in the affidavit, including the fact that

the only other references in the document are to IP address 98.194.180.106, and

that there was no suggestion in the affidavit that Lee was looking at any other IP

addresses in the course of this investigation, we conclude that the magistrate could

have reasonably inferred that Corporal Lee meant “98.194.180.106” when he

inadvertently typed “98.194.180.196.” See Rodriguez, 232 S.W.3d at 61 (stating

appellate courts should interpret affidavits in commonsensical and realistic manner

and that when in doubt, courts defer to all reasonable inferences magistrate could

have made).




                                         12
C.    Staleness

      Appellant argues that the information in the affidavit from August 2012 was

stale when the warrant was executed on December 12, 2012.

      To support the issuance of a warrant, the facts relied upon in the affidavit

must not have become “stale” by the time the warrant is issued. McKissick v. State,

209 S.W.3d 205, 214 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). The proper

method to determine whether the facts supporting a search warrant have become

stale is to examine, in light of the type of activity involved, the time that has

elapsed between the occurrence of the events set out in the affidavit and the time

the search warrant was issued. Steele v. State, 355 S.W.3d 746, 750 (Tex. App.—

Houston [1st Dist.] 2011, pet. ref’d). When making such a determination, courts

also consider the type of property to be seized and the probability that the property

may have been relocated. Kennedy v. State, 338 S.W.3d 84, 93 (Tex. App.—Austin

2011, no pet.). “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,” and “in appropriate circumstances, years could pass

without information becoming stale.” Jones v. State, 364 S.W.3d 854, 861 & n.35

(Tex. Crim. App. 2012) (citations omitted).

      This court and others have concluded that, due to the continuous and

protracted nature of the offense, the passage of time does not necessarily render



                                         13
information stale in cases involving possession of child pornography. See

McKissick, 209 S.W.3d at 215 (holding possession of child pornography was of

continuous and protracted nature therefore making passage of time less relevant for

purpose of probable cause determination); State v. Cotter, 360 S.W.3d 647, 653–54

(Tex. App.—Amarillo 2012, no pet.) (holding four-month old information was not

stale due to continuing nature of activity of possession of child pornography); see

generally United States v. Allen, 625 F.3d 830, 842–43 (5th Cir. 2010) (holding

lapse of eighteen months did not render information stale in child pornography

case); United States v. Richardson, 607 F.3d 357, 370 (4th Cir. 2010) (same;

four-month old information); United States v. Morales–Aldahondo, 524 F.3d 115,

119 (1st Cir. 2008) (same; three-year old information), cert. denied, 555 U.S. 1005,

129 S. Ct. 512, 172 (2008).

      Here, Corporal Lee’s affidavit demonstrates that IP address 98.194.180.106

was linked to appellant at the residential address of 18107 Fairhope Oak and that

the IP address was downloading what appeared to be child pornography on April

14, 2012 and August 5, 2012. That same IP address had files within its shared

folders that appeared to contain child pornography on August 9, 2012, November

13, 2012, and on December 7, 2012. The search warrant was executed on

December 12, 2012, five days after the IP address was last observed with what

appeared to be child pornography. Corporal Lee testified in his affidavit that



                                        14
people who have a sexual interest in children often collect images and videos of

child pornography and that such illicit materials are considered “prized

possessions” and are “rarely, if ever, dispose[d] of” by the collector. These

“collections of child pornography will more than likely be located in the suspect’s

home,” because a “high degree of privacy is necessary to enjoy the collection.”

“Unlike drugs, the user does not consume Child Pornography; rather they are

stored and kept for an indefinite period of time.” And, even if the collector

attempts to delete such files, it is possible to “recover data that has been deleted

from a computer hard drive, as well as storage media.”

      Considering the affidavit as a whole and the reasonable inferences it

supports, we conclude that the issuing magistrate had a substantial basis to find

that a fair probability existed that images depicting child pornography would

continue to be on or recoverable from a computer device that would be readily

accessible to appellant at the residential address stated in the search warrant. See

Rodriguez, 232 S.W.3d at 60–62; McKissick, 209 S.W.3d at 215. Accordingly, we

conclude that the information contained in Corporal Lee’s affidavit was not stale.

See McKissick, 209 S.W.3d at 215; see also Allen, 625 F.3d at 843; Richardson,

607 F.3d at 370; Morales–Aldahondo, 524 F.3d at 119.




                                        15
      We overrule appellant’s sole issue.

                                   Conclusion

      We affirm the trial court’s judgment.




                                              Russell Lloyd
                                              Justice


Panel consists of Justices Keyes, Massengale, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




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