                                  IN THE
                          TENTH COURT OF APPEALS

                                  No. 10-08-00114-CR
                                  No. 10-08-00115-CR
                                  No. 10-08-00116-CR
                                  No. 10-08-00117-CR

COREY RYAN ARMSTRONG,
                                                              Appellant
v.

THE STATE OF TEXAS,
                                                              Appellee


                        From the 361st District Court
                            Brazos County, Texas
            Trial Court Nos. 07-05104-CRF-361, 06-01672-CRF-361,
                   06-01673-CRF-361 and 06-01674-CRF-361


                           MEMORANDUM OPINION


       Corey Ryan Armstrong was convicted of a total of 22 counts, charged in four

indictments, of possession of child pornography.         TEX. PENAL CODE ANN. § 43.26

(Vernon 2003). Armstrong pled guilty to each count after the trial court denied his

motion to suppress. He appeals that denial. Because the search warrant affidavits were

sufficient to establish probable cause, the trial court’s judgment is affirmed.
                                   SEARCH WARRANTS

       Law enforcement officers executed search warrants at two different locations to

gather evidence that Armstrong possessed child pornography.             The first location

searched was Armstrong’s dormitory room at Texas A&M University. The second

search was conducted approximately two years later at Armstrong’s residence on

Cherry Street in College Station.     In one issue, Armstrong asserts that the search

warrant affidavits failed to set forth probable cause to believe contraband would be

located at the suspected places.

       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.

       When reviewing a probable cause determination, the issue is not whether there

are other facts that could have, or even should have, been included in the affidavit; we

focus on the combined logical force of facts that are in the affidavit, not those that are

omitted from the affidavit. Id. at 62. Further, it is not necessary to delve into all of the

facts that were omitted by the affiant, facts that could have been included in the

affidavit, or contrary inferences that could have been made by the magistrate. Id. at 64.

Armstrong v. State                                                                    Page 2
The only issue is whether the facts that actually were in the affidavit, combined with all

reasonable inferences that might flow from those facts, are sufficient to establish a "fair

probability" that evidence of a particular crime will likely be found at a given location.

Id.

Appellate Case Numbers 10-08-00115-CR, 10-08-00116-CR, and 10-08-00117-CR

       As to the affidavit applicable to appellate case numbers 10-08-00115-CR, 10-08-

00116-CR, and 10-08-00117-CR, Armstrong contends the affidavit did not contain facts

from which the magistrate could properly conclude there was probable cause to search

the suspected place, Armstrong’s dormitory room. But Armstrong’s argument focused

on what facts were not in the affidavit. Our review, however, is limited to the facts that

were contained in the affidavit.

       Without restating all the information contained in the very lengthy probable

cause affidavit, we note that the following information was included. In September of

2004, a Yahoo subscriber posted several images of child pornography to a Yahoo Inc.

Message group. An investigation was conducted through which it was determined that

two different user names were involved in posting the images. One user name was

located in Brazos County, Texas. This user name uploaded 6 images depicting child

pornography to his Yahoo account.

       A subpoena to Yahoo revealed that the Internet Protocol address captured when

the user name last logged on, on September 7, 2004, was owned by Texas A&M

University in College Station, Texas. A subpoena issued to Texas A&M revealed that

the subscriber for that IP address was Cory R. Armstrong, a student who was living in

Armstrong v. State                                                                   Page 3
Dormitory 12. Further investigation revealed that Armstrong’s room number was 12-

113.

       The affidavit also alleged that absent fraud, computer intrusion, or disclosure of

one’s private account password, a user’s screen name or email account cannot be

accessed by the general public. Child pornography collections are likely to be located in

the suspect’s home. Persons involved in sending or receiving child pornography tend

to retain those materials for extended periods of time—months or even years. Graphic

image files containing child pornography can be maintained for long periods of time in

a number of ways: on a computer’s built-in hard disk drive, on portable storage disks,

on CD-ROMs, or on other computer media. Even when the pornographic files have

been deleted, computer forensic experts are often able to recover the images. Persons

who use personal computers in their homes tend to retain their personal files and data

for extended periods of time.

       Based on a review of the facts contained in the affidavit, combined with the

reasonable inferences that might flow from those facts, we hold that there is a

substantial basis to support the magistrate’s conclusion that those facts were sufficient

to establish a "fair probability" that evidence of possession or promotion of child

pornography would likely be found in Armstrong’s dormitory room.              Thus, the

affidavit was sufficient to establish probable cause.

       Armstrong also contends the trial court relied on stale and conclusory

information in the affidavit in support of this particular search warrant. In his written

motion to suppress, Armstrong generally states that the affidavit contains stale

Armstrong v. State                                                                 Page 4
information and consists of conclusions that have no factual support. He then lists a

plethora of “facts” that the warrant lacks which all appear to go to the sufficiency of the

affidavit to establish probable cause.     He does not point the trial court to what

information in the affidavit he alleges to be stale, nor does he point to what information

he believes to be conclusory. At the hearing on the motion, Armstrong simply relies on

his motion. Now on appeal, Armstrong attempts to specifically argue what information

he believes to be stale and conclusory. Because Armstrong did not argue in his motion

or at the hearing what information contained in the search warrant affidavit was either

stale or conclusory, he has not preserved these arguments for review 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.").

Appellate Case Number 10-08-00114-CR

       As he argued regarding the affidavit previously discussed, Armstrong also

contends the affidavit involved in appellate case number 10-08-00114-CR, which was

issued well after the above referenced warrants had been issued, evidence seized, and

charges filed, did not contain facts from which the magistrate could properly conclude

there was probable cause to search the suspected place, Armstrong’s subsequent

residence on 707 Cherry Street in College Station, Texas. In a nutshell, Armstrong

argues there were insufficient facts in the affidavit to connect him with the residence or

that a computer was located at the residence at the time an on-line chat between

Armstrong and an undercover officer posing as a 13-year-old girl, “Ashton,” took place.

Armstrong v. State                                                                   Page 5
A transcript of the chat attached to the affidavit belies this argument by Armstrong.

During the chat, Armstrong indicated several times that he was at home. He also

indicated he was using a computer. Further, when arrested at the arranged meeting

place with “Ashton,” Armstrong told law enforcement he lived at 707 Cherry Street.

       Based on a review of the facts contained in the affidavit, combined with the

reasonable inferences that might flow from those facts, we hold that there is a

substantial basis to support the magistrate’s conclusion that those facts were sufficient

to establish a "fair probability" that evidence of a particular crime would likely be found

at 707 Cherry Street in College Station, Texas. Thus, the affidavit was sufficient to

establish probable cause.

                                      CONCLUSION

       The affidavits were sufficient to establish probable cause. Armstrong’s issue is

overruled, and the trial court’s judgment in each proceeding is affirmed.



                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed April 29, 2009
Do not publish
[CR25]




Armstrong v. State                                                                   Page 6
