                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-10-00405-CR
                                 No. 10-10-00406-CR
                                 No. 10-10-00407-CR
                                 No. 10-10-00408-CR
                                 No. 10-10-00409-CR

JUSTIN TYLER DAVIS,
                                                              Appellant
v.

THE STATE OF TEXAS,
                                                              Appellee



                     From the 272nd District Court
                         Brazos County, Texas
Trial Court Nos. 09-02131-CRF-272, 09-02132-CRF-272, 09-02133-CRF-272,
                09-02134-CRF-272 and 09-02135-CRF-272


                           MEMORANDUM OPINION


       Justin Davis was convicted on twenty-five counts (five counts in five cases) of

possession of child pornography. The five cases were tried together. He appeals,

raising four identical issues in each case. We will affirm.

       In his first issue, Davis asserts that the trial court abused its discretion by
refusing to hold a Franks v. Delaware hearing1 on Davis’s motion to suppress evidence

recovered during a search under the second search warrant. Davis maintained that

Detective Reiter’s search-warrant affidavit omitted material information.                       The State

protested, contending that Franks does not extend to omissions.

        Davis notes that several appellate courts and the Fifth Circuit have extended

Franks to omissions. See, e.g., United States v. Martin, 615 F.2d 318, 328 (5th Cir. 1980);

Darby v. State, 145 S.W.3d 714, 722 (Tex. App.—Fort Worth 2004, no pet.); Blake v. State,

125 S.W.3d 717, 723-24 (Tex. App.—Houston [1st Dist.] 2003, no pet.); Melton v. State,

750 S.W.2d 281, 284 (Tex. App.—Houston [14th Dist.] 1988, no pet.). But see Garza v.

State, 161 S.W.3d 636, 640 (Tex. App.—San Antonio 2005, no pet.) (declining to extend

Franks to omissions but addressing it in the alternative). But neither this court nor the

Court of Criminal Appeals has extended Franks to omissions. See Massey v. State, 933

S.W.2d 141, 146 (Tex. Crim. App. 1996) (noting it has not extended Franks to omissions);

Brooks v. State, 642 S.W.2d 791, 796-97 (Tex. Crim. App. [Panel Op.] 1982) (noting

reliance on Franks misplaced where complaint is that affiant omitted facts, rather than

knowingly making false statements). We decline to extend Franks to omissions, and

based on the state of the law in this court and in the Court of Criminal Appeals, we

cannot say that the trial court abused its discretion by refusing to hold a Franks hearing.

Issue one is overruled.


1 In Franks, the Supreme Court held that “where the defendant makes a substantial preliminary showing
that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included
by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of
probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request.”
Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978).

Davis v. State                                                                                       Page 2
        In his second issue, Davis asserts that the trial court abused its discretion by

denying his motion to suppress evidence seized under the first search warrant. We

apply the familiar bifurcated standard of review for a trial court’s suppression ruling.

See Davis v. State, 74 S.W.3d 90, 94-95 (Tex. App.—Waco 2002, no pet.).

        Officer Lunt went to the house where Davis was living to execute an arrest

warrant. Inside Davis’s room, Lunt saw several firearms in plain view, which was

significant because Davis was a convicted felon. After his arrest, Davis asked Lunt to

give his mother a box of photographs. Lunt first went through the box for contraband,

and he found several photographs of Davis with firearms. The photographs appeared

to have been taken by Davis and to have been printed from a computer. A Kodak Easy

Share photo printer was connected to a computer in the room, and the photographs in

the box were the same size as those from that printer.

        Police sought and obtained a search warrant (the first search warrant) that

authorized the search of Davis’s room for firearms, ammunition, receipts for firearms or

ammunition, and photographs of Davis with firearms. In the search, police found

firearms, hundreds of photographs of young girls in sexually suggestive poses and in

gymnastics poses, two SD memory cards, and one photograph depicting what Lunt

believed to be child pornography. All of the photographs were printed on Kodak photo

paper and appeared to have been printed from the Kodak Easy Share photo printer.

Kodak photo paper matching the photographs was next to the printer.

        The officers also seized three computers and numerous data CDs in the search.

Detective Reiter and Officer Lunt testified that the computers and electronic storage

Davis v. State                                                                    Page 3
devices were capable of storing photographs of firearms and receipts from the purchase

of firearms and ammunition.2 Davis moved to suppress the child pornography found

on the computers and the electronic storage devices on the ground that the first search

warrant did not authorize seizure of the computers and electronic storage devices.

        Detective Reiter testified that it was not feasible for officers to search the

computers and electronic storage devices on the scene because someone trained in

computer forensics needed to do that out of caution: “They don’t want us to mess up

anything.”

        The Fourth Amendment’s “particularity” requirement is primarily meant
        to prevent general searches and the seizure of one thing under a warrant
        that describes another thing to be seized. See Marron v. United States, 275
        U.S. 192, 196, 48 S.Ct. 74, 72 L.Ed. 231 (1927).

                 …

                The general Fourth Amendment rule is that the police cannot seize
        property that is not particularly described in a search warrant. This general
        rule is subject to “limited exception[s]” for various exigencies that require or
        make it reasonable for the police to seize this not-described-in-the-warrant
        property (e.g., the owner of a not-described-in-the-warrant locked safe,
        which the police may lawfully search pursuant to a search warrant,
        refuses to unlock the safe). See WAYNE R. LAFAVE, SEARCH & SEIZURE: A
        TREATISE ON THE FOURTH AMENDMENT § 4.11(a) (4th ed. 2004) (there are
        cases in which it will be quite reasonable for police to remove a container, such as
        a computer or a file cabinet containing voluminous documents, from the scene of
        the search so that opening it and examining it can be more readily accomplished
        elsewhere but this is “a limited exception to the general rule that a search
        warrant does not give police license to seize personal property not
        described in the warrant on the ground that such property might contain
        items that the warrant does describe; it only allows police to search such
        property at the place where the warrant is being executed”) (emphasis in
        original, internal quotes omitted); see also United States v. Johnson, 709 F.2d

2A second search warrant (pertaining to Davis’s first issue) was then obtained to search the computers
and electronic storage devices for sexually explicit photographs, among other things. The child
pornography photographs that are the basis of Davis’s convictions were then discovered.

Davis v. State                                                                                 Page 4
        515, 516 (8th Cir. 1983) (while executing a search warrant authorizing
        seizure of weapons, police seized not-described-in-the-warrant locked
        floor safe after defendant refused to open it).

Powell v. State, 306 S.W.3d 761, 766 (Tex. Crim. App. 2010) (footnotes omitted)

(emphases added).

        For reasons of feasibility and practicality, as supported by the officers’

suppression testimony, seizure of the computers and electronic storage devices to

search them elsewhere was not unreasonable and thus was not violative of the Fourth

Amendment. See id.; United States v. Giberson, 527 F.3d 882, 886-89 (9th Cir. 2008);

Johnson, 709 F.2d at 516; see also People v. Gall, 30 P.3d 145, 153-55 (Col. 2001); see also

LAFAVE, § 4.11(a) & nn. 9-11 (4th ed. 2004 & 2011 update) (“Also, there are cases in

which it will be quite reasonable for the officers to remove a container from the scene of

the search so that the opening of it and examining of its interior area can be more

readily accomplished elsewhere.”) (citing cases). Accordingly, the trial court did not

abuse its discretion in denying Davis’s motion to suppress the computer-related

evidence. We overrule issue two.

        Davis’s third issue contends that the trial court abused its discretion in allowing

Officer Lunt’s testimony that, while he was putting Davis into a patrol car, Davis

requested that officers not search his room; he said that the officers needed a search

warrant to search his room and “y’all are not going to tear up my room.” Davis

contends that his statement was an invocation of his Fourth Amendment constitutional

rights that could not be used against him as evidence of guilt. See, e.g., Hardie v. State,

807 S.W.2d 319, 322 (Tex. Crim. App. 1991); Powell v. State, 660 S.W.2d 842, 845 (Tex.

Davis v. State                                                                        Page 5
App.—El Paso 1983, no pet.). We assume without deciding that Davis preserved his

objection for appellate review. We review a trial court’s ruling on the admissibility of

evidence for abuse of discretion. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim.

App. 2005).

        The State asserts that Davis’s statement was made spontaneously (not as the

result of custodial interrogation) and was not in response to a request for consent to

search his room. Relying on these factors, the State cites Bishop v. State, 308 S.W.3d 14

(Tex. App.—San Antonio 2009, pet. ref’d) and points to its similar factual scenario.

There, the arrested defendant told the police that they could not search his car; that it

was an illegal search. Id. at 16-17.

        The record is clear that the basis for the search of Bishop’s vehicle was not
        consent, but was incident to his arrest and the arrest of his passenger,
        Jessica. Because the search was not a consent-based search, Bishop’s
        statements were not an invocation of his Fourth Amendment right to
        decline permission for a search. Further, Bishop’s statements objecting to
        the search of his vehicle were made spontaneously, in the excitement of
        the moment, and were not the result of questioning; therefore, they were
        admissible as “res gestae” statements. See TEX. CODE CRIM. PROC. ANN.
        art. 38.22 § 5 (Vernon 2005).

Id. at 17.       For these same reasons, the trial court did not abuse its discretion in

overruling Davis’s objection, and we overrule issue three.

        Issue four contends that the trial court’s written judgments improperly

cumulated Davis’s sentences when they were not cumulated when the trial court

pronounced and imposed the sentences in open court. Coffey v. State, 979 S.W.2d 326,

328-29 (Tex. Crim. App. 1998). We disagree. The trial court began sentencing by

announcing the assessment of an eighty-year total cumulative sentence, with a ten-year

Davis v. State                                                                          Page 6
probation at the end of it, and then sought input from counsel on how to arrive at that

total sentence from the five cases (with each case having five counts). The State’s

suggestion, which the trial court agreed to, was a twenty-year sentence on each count in

the first four cases, with each sentence within each case to be served concurrently, and

then with the five concurrent sentences in the second, third, and fourth cases to run

consecutively, to be followed consecutively by five concurrent sentences of ten-years’

probation in the fifth case.

        In pronouncing the sentences, the trial court sentenced Davis to twenty years on

each count within each case. While the trial court at times spoke of stacking cases or

causes, its intent—to cumulate the five sentences in each of the first four cases to get to

eighty years, rather than to have all of them served concurrently—was clear, and it also

spoke of stacking all the counts in a cause (e.g., “the cause number itself and all the

counts will be stacked on top of …”). The trial court’s oral pronouncements do not vary

from the written judgments. Issue four is overruled.

        Having overruled all four issues in these five appeals, we affirm the trial court’s

judgments in each case.


                                                 REX D. DAVIS
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed February 29, 2012
Do not publish
[CRPM]

Davis v. State                                                                       Page 7
