Affirmed and Opinion Filed August 27, 2020




                                     In The
                           Court of Appeals
                    Fifth District of Texas at Dallas
                              No. 05-19-00082-CR
                              No. 05-19-00083-CR
                              No. 05-19-00084-CR

                    CASEY MICHAEL JONES, Appellant
                                 V.
                     THE STATE OF TEXAS, Appellee

             On Appeal from the 292nd Judicial District Court
                           Dallas County, Texas
    Trial Court Cause Nos. F17-41184-V, F17-41185-V, and F17-41186-V

                        MEMORANDUM OPINION
               Before Justices Partida-Kipness, Nowell, and Evans
                       Opinion by Justice Partida-Kipness
      Appellant Casey Michael Jones appeals his conviction on three counts of

possession of child pornography. In three issues, Jones complains the trial court

abused its discretion by admitting extraneous child-pornography evidence and erred

by upholding the magistrate’s finding of probable cause for issuing the search

warrant that resulted in the discovery of the three video files for which he was

indicted. We affirm the judgment.
                                          BACKGROUND
        At the time of his arrest, Jones lived in Mesquite, Texas with his wife, Lauren

Jones, and a roommate, Michael Lira. The events leading to his arrest, however,

began in February or March 2015 with a Russian Ministry of Interior operation to

combat the sharing of child pornography on the internet. During that operation, the

Russian Ministry identified a number of IP addresses1 downloading child

pornography from various computers around the globe. The Russian Ministry

forwarded the results of its operation to INTERPOL, the International Criminal

Police Organization. INTERPOL then disseminated the information to the countries

in which the suspect IP addresses were located. Information concerning one IP

address was sent to the Dallas office of the Department of Homeland Security

Investigation (HSI). That information consisted of (1) a screenshot of the computer

screen attached to the IP address as it was downloading a video, and (2) the video

that was downloaded, which depicted child pornography. The video file reflected

identifying information including the IP address of the computer that was

downloading the video (76.186.110.72), the country in which the IP address was

located (the United States), and the user name of the user who was downloading the

video (“Blackest_Waters”). The video file had the file name: [pthc] l0yo Beauty



    1
      An IP address is “the numeric address of a computer on the internet.” IP address, Merriam-
Webster.com, https://www.merriam-webster.com/dictionary/IP%20address (last visited August 24, 2020);
An Internet-protocol address, or IP address, is “the 10-digit identification tag used by computers to locate
specific websites.” Internet-protocol address, BLACK’S LAW DICTIONARY (11th ed. 2019).
                                                   –2–
Preteen Blowjob-Anal-Cumshot With Daddy 2011 NEW (www.jailbaits-

forum.com).avi. “PTHC” stands for “preteen hardcore” and is indicative of child

abuse material. The Russian Ministry discovered the IP address sharing child

pornography on the “Gnutclla2” network.

      Special Agent Michael Cestare (“SA Cestare”) received the tip at HSI. On

July 31, 2015, he contacted Detective Chris Quigley of the Mesquite Police

Department’s Internet Crimes Against Children task force. SA Cestare advised

Detective Quigley about the tip from the Russian Ministry through INTERPOL. He

explained that INTERPOL contacted HSI in reference to IP address 76.186.110.72,

which was geo located to Mesquite, Texas, and involved an individual trading child

pornography on-line. HSI had determined that IP address 76.186.110.72 was owned

by Time Warner Cable (TWC). SA Cestare sent TWC a Department of Homeland

Security summons for subscriber information on IP address 76.186.110.72. TWC’s

response to the summons identified the IP address as allocated to Casey Jones

located at 1819 Longview Street, Dallas, Texas 75149. The TWC account was

activated on May 10, 2014 and had three phone numbers associated with the account.

      Detective Quigley verified the address and resident information obtained by

SA Cestare by checking Dallas water account files and Dallas County Appraisal

District (“DCAD”) property tax files. The DCAD files showed Casey Jones as the

listed owner of 1819 Longview Street since 2014, and a screen shot of the water file

for that address showed the water account had been in the name of Casey Jones since
                                        –3–
May 2014 with a phone number that matched one of the phone numbers associated

with the TWC account. SA Cestare conducted surveillance at 1819 Longview Street

on August 5, 2015. Through that surveillance, he further confirmed Jones’s

residence at the address.

       SA Cestare and Detective Quigley took additional steps to investigate any

links between Jones, his residential address, and IP address 76.186.110.72. Detective

Quigley ran IP address 76.186.110.72 through the Internet Crimes Against Children

law-enforcement website (ICACCOPS) and saw that it had recently been seen on

three different file-sharing networks: BitTorrent on March 2, 2015; Gnutella on

April 17, 2015; and EMule on April 20, 2015. Detective Quigley then found the

Globally Unique Identifier (GUID)2 for IP address 76.186.110.72 on the eMule

network. The GUID for that IP address in EMule was linked to the username of

Blackest_Waters, which matched the username found on the pornographic video

identified by the Russian Ministry. Detective Quigley then searched the GUID in the

Gnutella network and found another IP address—76.184.242.15—linked to that

GUID. This address had last been seen on Gnutella on June 26, 2015, on EMule on

June 28, 2015, and on BitTorrent on June 6, 2015. On August 8, 2015, SA Cestare

sent another summons to TWC, this time, requesting any IP address that was


   2
      “A globally unique identifier (GUID) is a 128-bit number created by the Windows operating system
or another Windows application to uniquely identify specific components, hardware, software, files, user
accounts, database entries and other items.” Globally unique identifier (GUID), techopedia.com,
https://www.techopedia.com/definition/1208/globally-unique-identifier-guid (last visited August 24,
2020).
                                                 –4–
currently being leased by Jones at 1819 Longview Street. On August 25, 2015, TWC

responded to the summons and provided SA Cestare with IP address 76.184.242.15.

That IP address was the same IP address Detective Quigley had seen on ICACCOPS

that was also linked to the GUID for IP address 76.186.110.72 and username

Blackest_Waters.

      After confirming Jones resided at 1819 Longview Street, linking the IP

address identified by the Russian Ministry to that residence and to Jones’s internet

account, linking that IP address and its GUID to the username identified by the

Russian Ministry and to three file-sharing sites, and linking a second IP address to

the GUID, residential address, and TWC internet account, Detective Quigley

believed there was probable cause that a user of the computer located at 1819

Longview Street was a collector of child pornography and that evidence of the

offenses of distributing, receiving, and possessing child pornography under section

43.26 of the Texas Penal Code was located at 1819 Longview Street. Detective

Quigley submitted a seven-page affidavit for search warrant to a Dallas County

magistrate judge and obtained a search warrant for Jones’s residence.

      On the morning of September 10, 2015, Detective Quigley, SA Cestare, and

other members of HSI and the Mesquite Police Department executed the search

warrant. The team knocked on the door of the house and Jones’s wife, Lauren,

opened the door. Jones, Lira, and the Joneses’ three-year-old daughter were also

home that morning. Jones was at his computer when the search-warrant team entered
                                        –5–
the house. Jones agreed to voluntarily speak with Detective Quigley and SA Cestare.

The rest of the team remained at the house to conduct the search while Detective

Quigley and SA Cestare drove Jones to the police station to be interviewed. The

team collected every electronic device at the house, and Detective Quigley later ran

forensics on all the devices. The forensic process involved making a duplicate of

each hard drive and then analyzing the duplicate.

       No child pornography was found on Lauren’s computer or on Lira’s

computer. But child pornography was found on one of the two hard drives in Jones’s

computer. Forensic analysis of the duplicate hard drive showed Jones used two

different file-sharing networks—Gnutella and BitTorrent—to search for and

download files. On Gnutella, Jones used peer-to-peer sharing software called

“Shareaza” to download files. Using forensic-analysis software, Detective Quigley

pulled out some of the search terms that appellant had used on these file-sharing

networks and also located three videos: video 7i, video 7y, and video 7w.3 Each

video depicted a child younger than eighteen engaging in sexual conduct,

specifically, deviate sexual intercourse. Each video had been saved as a “.dot” file

and buried within multiple folders. To access these files, one would have to open the

“games” folder, then the “World of Warcraft” folder, then the “data” folder, then the

“config” folder, and finally, the folder labeled, “9B.” Because the “config” folder


   3
      The full file names were 9bcb9f417s5s217s0c948a7i (“video 7i”), 9bcb9f417s5s217s0c948a7y
(“video 7y”), and 9bcb9f417s5s217s0c948a7w (“video 7w”).
                                            –6–
normally contained files associated with operating systems and not images, a person

searching for images likely would not know to look in the “config” folder.

      Each of the three videos depicted child pornography. Video 7i is almost two

hours long and consists of a number of videos “spliced together.” Video 7y is a little

under four minutes long, and video 7w is a little over twenty-five minutes long. The

three videos depict multiple children of varying ages engaged in various sexual acts

with adults and with other children. The children in the videos were under the age

of eighteen and appeared to include children as young as six, eight, and ten years

old. Based on these three videos, Jones was charged by three indictments with the

intentional and knowing possession of videos depicting child pornography. See

generally TEX. PENAL CODE § 43.26(a).

      Jones sought to suppress the videos on the ground that the search warrant was

not supported by probable cause, but the trial court denied the motion to suppress.

At Jones’s trial on the three indictments, Detective Quigley testified, as the State’s

only live witness, about the investigation and the three videos that were found in

Jones’s computer. Jones’s recorded interview was also admitted into evidence and

published to the jury. During that interview, Jones admitted that he used

“Blackest_Waters” as a username on Facebook and for his Hotmail account. Jones

equivocated during the interview about whether he ever viewed and downloaded

child pornography. Initially, he admitted he had pornography in his computer but

claimed he liked 18 to 30 year-olds. But he also admitted to using some of the
                                         –7–
following search terms in file-sharing networks: teen; young; cheerleader; Lolita;

preteen; and ages 5, 8, 13, 14, and 16. Similarly, Jones indicated he did not always

preview files before downloading them, and deleted “questionable material” when

he discovered it. But Jones also admitted to regularly previewing files before

downloading them and said when he downloaded child pornography, he would

change the file extension to “.dot,” move it out of his shared folder, and bury it within

layers of folders so that he could later get it to law enforcement.

      During the direct examination of Detective Quigley, the prosecutor elicited no

testimony about the role of the Russian government in Detective Quigley’s

investigation and avoided eliciting any testimony about any child pornography

material found on Jones’s computer other than video 7i, video 7w, and video 7y. The

State carefully tailored its direct examination of Detective Quigley this way in light

of Jones’s motion in limine, which sought to exclude any mention of the Russian

operation. During its cross-examination of Detective Quigley, however, the defense

mentioned Russia for the first time and tried to elicit testimony to suggest that Jones

had been framed by the Russian government. The cross-examination suggested the

Russians either planted the three videos on Jones’s computer or tricked him into

downloading the videos such that Jones did not intentionally and knowingly possess

the videos that were found in his computer. In an attempt to discredit the Russian

operation, the defense also cross-examined Detective Quigley regarding what he

knew about the Russian Ministry that sent the tip to INTERPOL, whether the
                                          –8–
Russian Ministry was a spy agency, whether INTERPOL verified the Russian tip,

and why Detective Quigley believed the Russian tip was reliable.

      Following the cross-examination, the State made an offer proof, arguing the

State should be permitted to question Detective Quigley regarding the facts and

circumstances that lead Detective Quigley to obtain the search warrant, including

the involvement of the Russian Ministry, INTERPOL, and HSI. The State contended

this testimony was needed to rebut the false impression created by the defense as to

how Russia obtained the video at issue and the reliability of the tip received from

the Russian Ministry. The State also argued it should be permitted to present

evidence to rebut Jones’s allegations that Russia planted the video on his computer

and that he had no knowledge or intent to possess videos 7i, 7w, and 7y. To

accomplish these goals, the State sought leave to question Detective Quigley further

on those issues and moved to admit State’s Exhibits 29, 30, 31, 32, and 33.

      State’s Exhibit 30 was the video discovered by the Russian Ministry during

its early 2015 operation. The Russian Ministry discovered that video being

downloaded to the IP address associated with Jones’s computer and residence.

State’s Exhibits 31 through 33 consisted of the list of search terms Jones previously

used on the Shareaza file-sharing software, a list of a sampling of Torrent file

fragments found on Jones’s computer, and a sampling of the Shareaza library files

in Jones’s computer. The trial court denied the State’s request to admit an exhibit


                                        –9–
consisting of multiple pages of thumbnail images of the video files found on Jones’s

hard drive.

      The trial judge gave the jury the following limiting instruction regarding

State’s Exhibit 30:

      State’s Exhibits 29 and 30 are not being offered for the truth of the
      matters that are asserted therein. State’s Exhibits 29 and 30 are being
      admitted to assist you, if they do assist you, in determining the witness’s
      state of mind during the course of this investigation. And they cannot
      be considered by you for any other purpose whatsoever.
The trial judge gave the jury the following limiting instruction regarding State’s

Exhibits 31, 32, and 33:

      Members of the jury, evidence is about to be admitted before you in the
      form of descriptions of digital files or descriptions of videos or
      descriptions of pictures. The evidence may be considered by you to
      assist you, if it does assist you, in determining the defendant’s motive,
      intent, knowledge, absence of mistake, lack of accident, or to rebut a
      defensive theory, if it does, but the evidence cannot be considered by
      you for any other purpose.
      The jury found Jones guilty in each case as alleged in the indictments and

assessed punishment at four years confinement on each charge. The State moved for

a consecutive sentence, but the trial court denied that request. The court rendered

judgment against Jones on all three counts and assessed punishment at four years

confinement on each count to be served concurrently. This appeal followed.

                                    ANALYSIS
      In his first two issues, Jones complains the trial court abused its discretion by

admitting State’s Exhibits 30, 31, 32, and 33. He maintains that evidence was

                                        –10–
irrelevant and highly prejudicial. In his third issue, Jones contends evidence seized

pursuant to the search warrant should have been suppressed because the warrant

failed to demonstrate probable cause. We address each issue in turn.

A.    Admission of Extraneous Child-Pornography Evidence
      In his first two issues, Jones asserts the trial court abused its discretion by

admitting evidence that he possessed child pornography other than the three videos

charged in the indictments. Specifically, Jones complains that State’s Exhibit 30 was

irrelevant, and State’s Exhibits 30, 31, 32, and 33 were more prejudicial than

probative and, as a result, the trial court should have excluded those exhibits.

Although Jones did not specifically mention Rule 403 below, he argued that the

admission of these exhibits was much more prejudicial than probative, thus raising

Rule 403 issues for the trial court’s consideration. See Anastassov v. State, No. 05-

19-00396-CR, 2020 WL 4669880, at *5 (Tex. App.—Dallas Aug. 12, 2020, no pet.

h.) (mem. op., not designated for publication) (citing TEX. R. EVID. 403).

      1.     Standard of Review
      We review the trial court’s decision to admit evidence under an abuse of

discretion standard. Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018).

If a trial court’s decision on the admissibility of evidence is within the zone of

reasonable disagreement, it will not be reversed. Id.; Tillman v. State, 354 S.W.3d

425, 435 (Tex. Crim. App. 2011).



                                        –11–
       Generally, all relevant evidence is admissible under the Texas Rules of

Evidence. TEX. R. EVID. 402. Under Rule 403, however, otherwise relevant evidence

may be excluded if its probative value is substantially outweighed by a danger of

unfair prejudice, confusion of the issues, misleading the jury, undue delay, or

needless presentation of cumulative evidence. TEX. R. EVID. 403. Evidence is

unfairly prejudicial when it has a tendency to suggest that a decision was made on

an improper basis. Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App.

1990) (op. on reh’g). Rule 403 favors the admission of relevant evidence and

presumes that relevant evidence is more probative than prejudicial. Hernandez v.

State, 390 S.W.3d 310, 323 (Tex. Crim. App. 2012); Montgomery, 810 S.W.2d at

389.

       When undertaking a Rule 403 analysis, a trial court must balance

       (1) the inherent probative force of the proffered item of evidence along
       with (2) the proponent’s need for that evidence against (3) any tendency
       of the evidence to suggest decision on an improper basis, (4) any
       tendency of the evidence to confuse or distract the jury from the main
       issues, (5) any tendency of the evidence to be given undue weight by a
       jury that has not been equipped to evaluate the probative force of the
       evidence, and (6) the likelihood that presentation of the evidence will
       consume an inordinate amount of time or merely repeat evidence
       already admitted. Of course, these factors may well blend together in
       practice.

Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). “Virtually

all evidence that a party offers will be prejudicial to the opponent’s case, or the party

would not offer it.” Casey v. State, 215 S.W.3d 870, 883 (Tex. Crim. App. 2007).


                                         –12–
Thus, the question under rule 403 is not whether evidence is prejudicial, but whether

it is unduly prejudicial. Griffinwhite v. State, No 05-19-00317-CR, 2020 WL

4880156, at *5 (Tex. App.—Dallas Aug. 20, 2020, no pet. h.) (mem. op., not

designated for publication).

      We review a trial court’s ruling under Rule 403 for an abuse of discretion.

Pawlak v. State, 420 S.W.3d 807, 810 (Tex. Crim. App. 2013). The trial court’s

ruling must be upheld if it is within the zone of reasonable disagreement. Id.;

Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002). We presume the trial

court applied the balancing test unless the record affirmatively shows otherwise.

Anastassov, 2020 WL 4669880, at *7 (citing Rojas v. State, 986 S.W.2d 241, 250

(Tex. Crim. App. 1998)). We also presume the probative value of relevant evidence

substantially outweighs the danger of unfair prejudice from admitting the evidence.

Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007); Montgomery, 810

S.W.2d at 389. A Rule 403 ruling is rarely reversed because the trial court is in a

superior position than this court to gauge the impact of relevant evidence.

Swegheimer v. State, No. 02-17-00095-CR, 2018 WL 1528477, at *4 (Tex. App.—

Fort Worth Mar. 29, 2018, pet. ref’d) (mem. op., not designated for publication)

(citing Gonzales v. State, 477 S.W.3d 475, 481 (Tex. App.—Fort Worth 2015, pet.

ref’d). Rule 403 envisions exclusion of evidence only when there is a “clear disparity

between the degree of prejudice of the offered evidence and its probative value.”

Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009).
                                        –13–
      2.     Exhibits 31, 32, and 33 – search terms and file names from Jones’s
             hard drive
      In his first issue, Jones asserts the trial court abused its discretion by admitting

State’s Exhibits 31, 32, and 33 because this evidence was more prejudicial than

probative. See TEX. R. EVID. 403. The State maintains these exhibits were properly

admitted to rebut Jones’s defensive theory that the Russian government planted files

in Jones’s computer and his contention that any child pornography found in his

computer was there by accident or mistake. We agree with the State.

      State’s Exhibit 31 is a one-page document reflecting a sampling of the search

terms Jones had previously used on the Shareaza file-sharing software. Examples of

search terms included “young,” “teen,” “pthc,” “14yo Blonde Lolita in Bed,” and

“Kinderkutje.” Detective Quigley explained that “pthc” stands for preteen hardcore

and that “kinderkutje” was a search term for kindergarten-age children. “Cat

Goddess” was also a term on the list that was also part of the title of the video

discovered by the Russian Ministry that was the impetus of this investigation.

      State’s Exhibit 32 is a one-page document reflecting a sampling of the Torrent

file fragments that were found in Jones’s computer. Detective Quigley explained that

Torrent was a file-sharing network known to be used for downloading child

pornography. The document showed the names of the file fragments as well as the

dates on which they were created. For example, a fragment at the top of the page,

with the creation date of February 7, 2014, showed a file with the name, “(PTHC)


                                         –14–
7yo sex in serial (Hussyfan R@ygold) 6yo girl fucked~1.mpg.” The document also

showed a number of file fragments that were created on September 10, 2015. In his

interview at the police station, Jones stated he was at his computer downloading files

when the police entered his home with the search warrant on September 10, 2015.

Detective Quigley testified this would explain why some of the files had creation

dates of September 10, 2015 and were fragments.

      State’s Exhibit 33 is a one-page document reflecting a sampling of Jones’s

Shareaza library files. The files in the library had names such as “Pervert uncle,”

“Teen abused in bed by guy,” “russian raped by 2 soldiers,” “Brother forces his Little

Sister to fuck,” and “Russian teen redhead anal.”

      Extraneous offense evidence that tends to rebut a defensive theory is relevant

beyond its character-conformity value. Bass v. State, 270 S.W.3d 557, 563 (Tex.

Crim. App. 2008); Montgomery, 810 S.W.2d at 387–88; Jones v. State, 119 S.W.3d

412, 419 (Tex. App.—Fort Worth 2003, no pet.). Such is the case here. These

exhibits showed the jury that Jones had searched for and downloaded child

pornography on numerous occasions including the day authorities executed the

search warrant. The file names and search terms plainly indicate the illicit content

of the media found and saved by Jones. Exhibits 31, 32, and 33 have highly probative

value to rebut Jones’s theory that he did not intentionally and knowingly possess

videos 7i, 7w, and 7y.


                                        –15–
      Another defensive theory Jones sought to develop on cross-examination of

Detective Quigley was that, if any child pornography was downloaded onto his

computer, it must have been accidental, by mistake, or planted by the Russian

government. The State’s exhibits showing an extensive list of subfolders and file

names tended to show Jones was experienced in searching for child pornography,

and had numerous files available for sharing or viewing. His creation—or

retention—of the highly descriptive, offensive, and lurid file names, which made

them easily searchable by other users, was relevant to show Jones was aware of the

illegal nature of his conduct and that the presence of the images on his computer was

not accidental. State’s Exhibits 31, 32, and 33 were relevant to the issues of motive,

intent, plan, knowledge, and lack of mistake or accident. We agree with the State

that those exhibits had relevance apart from evidence of character-conformity. See

TEX. R. EVID. 404(b); see also Wenger v. State, 292 S.W.3d 191, 203 (Tex. App.—

Fort Worth 2009, no pet.) (State’s exhibit showing an extensive list of subfolders

and file names indicating child pornography was downloaded onto appellant’s

computer was relevant to rebut defense that presence of indicted material was

accidental); Gerron v. State, 524 S.W.3d 308, 320 (Tex. App.—Waco 2016, pet.

ref’d) (possession of similar types of material—photographs of girls under the age

of 18—is evidence the jury may consider as circumstantial evidence of defendant’s

culpable mental state).


                                        –16–
      Evidence relevant under Rule 404(b) may nevertheless be excluded if that

evidence fails the Rule 403 balancing test. See Gigliobianco, 210 S.W.3d at 641–42

(setting out balancing test). Here, we conclude the trial court, after balancing the

various Rule 403 factors, could have reasonably concluded that the probative value

of State’s Exhibits 31, 32, and 33 testimony and the State’s need for that evidence

were not substantially outweighed by prejudice or confusion or by the other dangers

specified in the rule.

      The first two Gigliobianco factors weigh heavily in favor of admitting State’s

Exhibits 31, 32, and 33. The evidence was probative to rebut Jones’s defensive

theories that he did not intentionally or knowingly possess the indicted images and

that any files containing child pornography in his computer were downloaded by

accident or mistake or were planted by the Russian government. The search terms

included in State’s Exhibit 31 and the file names found in State’s Exhibits 32 and 33

describe sexual acts and pornographic content similar to the acts and content shown

in the videos on which Jones was indicted. Those exhibits make it more likely that

Jones was fully aware of the specific nature of the material that he downloaded on

videos 7i, 7w, and 7y because the exhibits show numerous other searches and files

of a similar nature in his computer. The evidence was needed by the State to show

that Jones organized, stored, or shared the downloaded images as described by their

titles and that his doing so was not the result of mistake or accident. The evidence

was further needed by the State to rebut Jones’s assertion that he did not intentionally
                                         –17–
or knowingly possess videos 7i, 7w, and 7y, which were also found in his computer

and were similar in nature, content, and title to the files listed on State’s Exhibits 31,

32, and 33.

      On the third factor, although extraneous acts involving sexual offenses

involving children are inherently inflammatory, the potential for an improper

decision was lessened by the trial court instructing the jury regarding the proper use

of the extraneous act evidence. See Colburn v. State, 966 S.W.2d 511, 520 (Tex.

Crim. App. 1998) (en banc) (“We generally presume the jury follows the trial court’s

instructions in the manner presented”). Thus, in light of the record here, the trial

court could have reasonably concluded that if the third factor weighed against

admission, it did so only slightly.

      As to the fourth and fifth factors, we conclude the evidence was unlikely to

confuse or distract the jury from the main issues and was unlikely to leave the jury

ill-equipped to evaluate its probative force, particularly in light of the court’s

instructions, because State’s Exhibits 31, 32, and 33 were comparably less egregious

than videos 7i, 7w, and 7y. See Robisheaux v. State, 483 S.W.3d 205, 220 (Tex.

App.—Austin 2016, pet. ref’d) (potential for decision on an improper basis reduced

when extraneous acts no more serious than allegations forming basis of indictment);

Wenger, 292 S.W.3d at 204–05 (third, fourth, and fifth factors did not weigh in favor

of exclusion where, in contrast to the items the appellant was charged with

possessing and promoting, the exhibit at issue consisted only of a list of written titles
                                          –18–
and the corresponding images were never shown to the jury). Finally, as to the sixth

factor, the admission of State’s Exhibits 31, 32, and 33 did not take an inordinate

amount of time or merely repeat evidence already submitted.

      Thus, we conclude that in balancing the applicable factors, the court could

have reasonably concluded that the probative value of admitting State’s Exhibits 31,

32, and 33 was not substantially outweighed by unfair prejudice or confusion of the

issues, and because the evidence was thus within the zone of reasonable

disagreement, no abuse of discretion occurred under Rule 403. See TEX. R. EVID.

403; Gigliobianco, 210 S.W.3d at 641–42 (listing factors to consider and

determining court could have reasonably concluded factors weighed in favor of

admitting evidence of defendant's breath test results over his rule 403 objection);

Cornelious v. State, No. 05-18-00274-CR, 2019 WL 1236409, *5 (Tex. App.—

Dallas Mar. 18, 2019, no pet.) (mem. op., not designated for publication) (affirming

court’s admission of extraneous evidence over rule 403 objections where court could

reasonably conclude danger of unfair prejudice did not substantially outweigh its

probative value). Because we conclude the trial court did not abuse its discretion in

admitting State’s Exhibits 31, 32, and 33 into evidence, we need not conduct a harm

analysis. See Coutta v. State, 385 S.W.3d 641, 664 (Tex. App.—El Paso 2012, no

pet.) (harm analysis unnecessary where admission of video recordings was not an

abuse of discretion); see also Hawkins v. State, 135 S.W.3d 72, 76 (Tex. Crim. App.


                                        –19–
2004) (“A harm analysis is employed only when there is error, and ordinarily, error

occurs only when the trial court makes a mistake.”)). We overrule Jones’s first issue.

      3.     Exhibit 30 – Child pornography video discovered by the Russian
             Ministry
      In his second issue, Jones claims the trial court abused its discretion by

admitting State’s Exhibit 30— the video discovered by the Russian Ministry during

its early 2015 operation—because it was not relevant and was more prejudicial than

probative. The Russian Ministry discovered that video being downloaded to the IP

address associated with Jones’s computer and residence. The video, which was three

minutes and twenty-three seconds long, showed a fully clothed female child of about

eleven, lying on a couch, and holding a lollipop. The child was later shown

undressing, and an adult male was shown applying a lubricant on the child. One

minute and fifty-six seconds into the video, the man was shown attempting to

penetrate the child’s anus or vagina with his penis. State’s Exhibit 29 was a

screenshot of a computer screen showing the video in State’s Exhibit 30 during

download.

      During the cross-examination of Detective Quigley, the defense mentioned

Russia and its involvement in the case for the first time despite the State’s deliberate

efforts to avoid eliciting testimony regarding Russia on direct examination. The

defense also elicited testimony from Detective Quigley that, according to the State,

gave the jury a false impression regarding how State’s Exhibit 30 was downloaded


                                         –20–
to Jones’s computer. Specifically, the State argued the defense left the impression

that the Russian government or a Russian citizen planted the video on Jones’s

computer rather than the Russian Ministry finding Jones downloading the video

from a Russian server. The State sought to admit State’s Exhibit 30 and to question

Detective Quigley regarding the exhibit, how it came to be in his possession, and its

role in the investigation, in order to respond to the defense’s theories. The trial judge

admitted State’s Exhibit 30 and permitted the State to question Detective Quigley

further. The jury was instructed, however, that State’s Exhibits 29 and 30 were not

being offered for the truth of the matters asserted therein and to consider those

exhibits for the sole purpose of assisting the jury in determining Detective Quigley’s

“state of mind during the course of this investigation.”

      We conclude that State’s Exhibit 30 was relevant beyond its character-

conformity value because it tended to rebut Jones’s defensive theory that the Russian

government planted that video and other videos on his computer, and to respond to

Jones’s unsubstantiated claims regarding how State’s Exhibit 30 came into the

possession of the law enforcement agencies involved in the underlying investigation.

See Bass, 270 S.W.3d at 563; see also Montgomery, 810 S.W.2d at 386–87; Jones,

119 S.W.3d at 419.

      We further conclude that in balancing the applicable Rule 403 factors, the trial

court could have reasonably concluded that the probative value of admitting State’s

Exhibit 30 was not substantially outweighed by unfair prejudice or confusion of the
                                         –21–
issues, and because the evidence was thus within the zone of reasonable

disagreement, no abuse of discretion occurred under Rule 403. See TEX. R. EVID.

403; Gigliobianco, 210 S.W.3d at 641–42. The first two Gigliobianco factors weigh

heavily in favor of admitting State’s Exhibit 30. The evidence was probative to rebut

Jones’s defensive theory that the Russian government planted that video and other

videos on his computer, and to respond to Jones’s unsubstantiated claims regarding

how State’s Exhibit 30 came into the possession of the law enforcement agencies

involved in the underlying investigation. That exhibit included the IP address

Detective Quigley ultimately linked to Jones, as well as the username

Blackest_Waters that Jones admitted using on Facebook and for his Hotmail

account. The evidence was needed by the State to rebut Jones’s allegations that the

Russian tip was unreliable. The identifying information on State’s Exhibit 30 made

it more likely the video was downloaded by someone at the IP address and not

downloaded to Jones’s computer by someone in Russia as defense counsel implied.

      On the third factor, although the graphic nature of State’s Exhibit 30 is

inherently inflammatory, the potential for an improper decision was lessened by the

trial court instructing the jury regarding the proper use of the evidence. See Colburn,

966 S.W.2d at 520. Thus, in light of the record here, the trial court could have

reasonably concluded that if the third factor weighed against admission, it did so

only slightly.


                                        –22–
      As to the fourth and fifth factors, we conclude the evidence was unlikely to

confuse or distract the jury from the main issues and was unlikely to leave the jury

ill-equipped to evaluate its probative force, particularly in light of the court's

instructions, because State’s Exhibit 30 was shorter in length than videos 7i, 7w, and

7y and was discussed and published to the jury in the context of explaining how the

investigation commenced and led investigators to Jones. See Robisheaux, 483

S.W.3d at 220. Finally, as to the sixth factor, the admission of State’s Exhibit 30, a

video less than four minutes long, did not take an inordinate amount of time or

merely repeat evidence already submitted.

      We conclude that in balancing the applicable factors, the court could have

reasonably concluded that the probative value of admitting State’s Exhibit 30 was

not substantially outweighed by unfair prejudice or confusion of the issues, and

because the evidence was thus within the zone of reasonable disagreement, no abuse

of discretion occurred under Rule 403. See TEX. R. EVID. 403; Gigliobianco, 210

S.W.3d at 641–42 (listing factors to consider and determining court could have

reasonably concluded factors weighed in favor of admitting evidence of defendant’s

breath test results over his rule 403 objection); Cornelious, 2019 WL 1236409, at *5

(affirming court’s admission of extraneous evidence over rule 403 objections where

court could reasonably conclude danger of unfair prejudice did not substantially

outweigh its probative value). Because we conclude the trial court did not abuse its


                                        –23–
discretion in admitting State’s Exhibit 30 into evidence, we need not conduct a harm

analysis. See Coutta 385 S.W.3d at 664. We overrule Jones’s second issue.

B.    Probable Cause to Support the Search Warrant
      In his final issue, Jones complains the search warrant was not supported by

probable cause and, therefore, the trial court erred by denying his motion to suppress

the child pornography videos recovered in the search that formed the basis of the

indictments (i.e., video 7i, video 7w, and video 7y).

      1.     Standard of Review and Applicable Law
      A search warrant may not issue unless it is based upon probable cause,

established by a sworn affidavit. U.S. CONST. amend. IV; TEX. CODE CRIM. PROC.

art. 18.01(b); State v. Jordan, 342 S.W.3d 565, 568 (Tex. Crim. App. 2011).

“Probable cause exists if, under the totality of the circumstances set forth in the

affidavit before the magistrate, there is a ‘fair probability’ that contraband or

evidence of a crime will be found in a particular place at the time the warrant is

issued.” Jordan, 342 S.W.3d at 568–69. The test is whether a reasonable reading by

the magistrate would lead to the conclusion that the four corners of the affidavit

provide a “substantial basis” for issuing the warrant. State v. Duarte, 389 S.W.3d

349, 354 (Tex. Crim. App. 2012). “The magistrate may interpret the affidavit in a

non-technical, common-sense manner and may draw reasonable inferences from the

facts and circumstances contained within its four corners.” Jordan, 342 S.W.3d at

568–69. The focus is not on what other facts could or should have been included in

                                        –24–
the affidavit; rather, the focus is on the combined logical force of facts that are

actually in the affidavit. Duarte, 389 S.W.3d at 354–55.

      We typically apply a bifurcated standard of review to a trial court’s ruling on

a motion to suppress by giving almost total deference to the trial court’s

determinations of fact and reviewing de novo the trial court’s application of law.

State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011). Where, as here, the

motion to suppress is based on a magistrate’s decision to issue a warrant, there are

no credibility determinations to which we must defer because the trial court is

constrained to the four corners of the affidavit. Id. In reviewing the magistrate’s

decision to issue a warrant, we view the magistrate’s decision to issue the warrant

with great deference. Id. As long as the magistrate had a substantial basis for

concluding that probable cause existed, we will uphold the magistrate’s probable

cause determination. Id. “We are not to view the affidavit through hypertechnical

lenses; instead, we must analyze the affidavit with common sense, recognizing that

the magistrate may draw reasonable inferences from the facts and circumstances

contained in the affidavit’s four corners.” Id. In doubtful or marginal cases, the

magistrate’s determination should prevail. Flores v. State, 319 S.W.3d 697, 702

(Tex. Crim. App. 2010).

      2.     Analysis
      Here, Jones argues the search warrant failed to establish probable cause

because (1) the tip from the Russian Ministry was unreliable, (2) Detective Quigley’s

                                        –25–
factual assertions regarding his search queries and results were not accurate, and he

failed to explain the difference between Gnutella and Gnutella2 networks, (3)

Jones’s searching on other peer-to-peer file sharing networks, his residence at a

particular address, use of a particular GUID, and the client name Blackest_Waters

are not facts that corroborate the specified illegal conduct in the search warrant, and

(4) the tip from the Russian Ministry was stale and could not provide probable cause

because too much time had elapsed between the Russian Ministry’s discovery in

February 2015 and the search on September 10, 2015 for there to be probable cause

that child pornography would be in Jones’s computer when the search was

conducted. We disagree.

         Applying the required standards and after reviewing de novo the facts set out

in the four corners of the affidavit, we conclude the affidavit was sufficient to allow

the magistrate to determine probable cause existed. The failure of the affidavit to

identify a specific person from the Russian Ministry or INTERPOL that first viewed

the images and the absence of any allegation of prior reliability of either the Russian

Ministry, INTERPOL, or a specific person does not render the affidavit defective or

insufficient for purposes of establishing probable cause. The United States and

Russia are both member countries of INTERPOL that “work together and with the

General Secretariat to share data related to police investigations” and are part of a

global     network    of   police   along    with   192   other   member    countries.

https://www.interpol.int/en/Who-we-are/Member-countries (last visited August 27,
                                            –26–
2020). That fact alone provided the magistrate with strong indicia of reliability

regarding the information received from the Russian Ministry and INTERPOL. See

Johnson v. State, 803 S.W.2d 272, 289 (Tex. Crim. App. 1990) (“Observations of

fellow officers of the Government engaged in a common investigation are plainly a

reliable basis for a warrant applied for by one of their number.”) (quoting United

States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965)); see also

State v. Coker, 406 S.W.3d 392, 396 (Tex. App.—Dallas 2013, pet. ref’d)

(explaining that the focus of a probable-cause determination is not what facts could

or should have been included in the affidavit, but on the combined logical force of

facts that are in the affidavit). Another indication of reliability is that both SA Cestare

and Detective Quigley, long-tenured law enforcement officers with significant

experience in combating the sharing and possessing of child internet pornography,

viewed the screenshot and video sent by the Russian Ministry and INTERPOL and

concluded the images were pornographic and likely illegal. See Dawes v. State,

No. 05-08-00651-CR, 2009 WL 902013, at *5 (Tex. App.—Dallas Apr. 3, 2009, no

pet.) (mem. op., not designated for publication) (magistrate could have reasonably

concluded that “Yahoo Inc.” was a reliable source of information, which consisted

of cyber tip of pornographic images, because it was a well-known corporation that

provides Internet services worldwide, has a stated interest in protecting its users from

viewing materials that violate local, state, national, and international law, and two,

experienced law enforcement officers viewed the exact images sent by Yahoo and
                                          –27–
concluded the images were pornographic and likely illegal). Moreover, the failure to

allege prior reliability is generally not a fatal defect in an affidavit. Id. (citing

Doescher v. State, 578 S.W.2d 385, 388 (Tex. Crim. App. [Panel Op.] 1978)).

Accordingly, we disagree with Jones’s contention that the information from the

Russian Ministry was unreliable or that the lack of evidence of prior reliability would

have affected the magistrate’s determination of probable cause.

      Jones next complains that the affidavit included conflicting and inaccurate

statements regarding the Gnutella and Gnuttella2 search networks, and included

facts that did not support a conclusion that Jones was in possession of child

pornography. We disagree with his interpretation of the facts included in the

affidavit and find his contentions to be based on a “hypertechnical” analysis of the

affidavit. In his seven-page affidavit, Detective Quigley set out in great detail how

people use peer-to-peer (P2P) file sharing software and networks, such as Gnutella

and EMule, to find, download, and store child pornographic images. He also

explained how investigators can see the IP address of the computer that is running

the P2P software and sharing files. Investigators then use that information to search

public records to locate the specific Internet Service Provider (ISP) who has assigned

that IP address to that computer, and then locate identifying information of the

individual to whom the ISP account is registered. Detective Quigley then explained

in detail how he and SA Cesare utilized the IP address and user name information

provided by the Russian Ministry and INTERPOL to locate the computer associated
                                        –28–
with the IP address, confirm the names of the owner of the ISP, IP address, and the

residence, and discover recent search history on multiple P2P networks by the IP

address at issue, as well as another IP address linked to Jones and his residential

address. Detective Quigley based his affidavit on his extensive experience

investigating the online exploitation of children in relation to violations of Texas

Penal Code section 43.26.

      Contrary to Jones’s brief, the affidavit does not state that Detective Quigley

believed the Gnutella and Gnutella2 are the same network. What the affidavit does

state is that the Russian Ministry identified IP address 76.186.110.72 as it was

sharing child pornography on the Gnutella2 network, and TWC records showed this

IP address belonged to Jones. The affidavit also shows that Detective Quigley

subsequently found that IP address 76.186.110.72, as well as another IP address

leased by Jones at his Mesquite residence, were seen on the Gnutella, EMule, and

BitTorrent P2P networks. Further, the client name linked to EMule search on the IP

address 76.186.110.72 was Blackest_Waters. The magistrate could have reasonably

inferred that Detective Quigley’s subsequent investigation involving the Gnutella

network merely showed that Jones was active on both the Gnutella2 and Gnutella

networks, as well as a number of other networks, further bolstering probable cause

to believe that child pornography would be found in Jones’s computer. In reviewing

the totality of the circumstances as stated in the affidavit, we believe that the


                                       –29–
magistrate had a substantial basis for concluding that Jones was in possession of

child pornography on his home computer.

      We need not address Jones’s complaint that the tip from the Russian Ministry

was stale and could not provide probable cause by the time the warrant was issued

and the search conducted because Jones did not make this argument below. As such,

that complaint is not preserved for our review. See TEX. R. APP. P. 33.1. Nonetheless,

had Jones asserted this objection below, the magistrate could have reasonably

concluded that the pornographic images were still on Jones’s computer at the time

the warrant was issued. Detective Quigley stated in his affidavit that collectors of

child pornography typically retain the images and recordings for many years and

prefer not to be without their child pornography for any prolonged time period. See

Steele v. State, 355 S.W.3d 746, 751 (Tex. App.—Houston [1st Dist.] 2011, pet.

ref’d) (concluding that magistrate could have reasonably concluded defendant

continued to be in possession of child pornography because affidavit provided

“expert testimony that persons sexually attracted to children tend to collect sexually

explicit photographs of children, treating the photographs as prized possessions, of

which they rarely dispose”); see also Morris v. State, 62 S.W.3d 817, 823–24 (Tex.

App.—Waco 2001, no pet.) (providing that where affidavit indicates activity of

continuous nature, magistrate could have reasonably inferred that defendant had

possession of pornography for substantial period of time, i.e., five months). Further,

only six months had passed between the Russian Ministry’s discovery and the
                                        –30–
execution of the affidavit, and the affidavit included evidence of continued activity

during that time. Thus, the affidavit contained sufficient information from which the

magistrate had a substantial basis under the totality of the circumstances for

concluding that probable cause existed that the computer and hard drives at Jones’s

home contained child pornography. See Ex Parte Jones, 473 S.W.3d 850, 857 (Tex.

App.—Houston [14th Dist.] 2015, pet. ref’d) (magistrate could have reasonably

concluded that pornographic images were still on appellant’s computer at his

apartment at the time the warrant was issued even though affidavit in support of

warrant was based on appellant’s purchases of subscriptions to child pornography

website two years before affidavit was executed); Sanders v. State, 191 S.W.3d 272,

279–80 (Tex. App.—Waco 2006, pet. ref’d) (information obtained two years before

warrant executed was not stale); Burke v. State, 27 S.W.3d 651, 655 (Tex. App.—

Waco 2000, pet. ref’d) (information obtained one year before warrant executed was

not stale).

       We conclude that the facts and circumstances submitted to the magistrate

within the “four corners” of the affidavit provide a substantial basis for the

magistrate’s conclusion that child pornography would probably be found at Jones’s

residence at the time the warrant was issued. Thus, the affidavit was sufficient to

establish probable cause. We overrule Jones’s third issue.




                                        –31–
                                  CONCLUSION
      The trial court did not abuse its discretion by admitting State’s Exhibits 30

through 33. Further, the trial court did not err by accepting the magistrate judge’s

finding of probable cause to issue the search warrant. Accordingly, we overrule

appellant’s issues and affirm the trial court’s judgment.




                                           /Robbie Partida-Kipness/
                                           ROBBIE PARTIDA-KIPNESS
                                           JUSTICE



Do Not Publish
TEX. R. APP. P. 47.2.(b)
190082F.U05




                                        –32–
                            Court of Appeals
                     Fifth District of Texas at Dallas
                                 JUDGMENT

CASEY MICHAEL JONES,                          On Appeal from the 292nd Judicial
Appellant                                     District Court, Dallas County, Texas
                                              Trial Court Cause No. F17-41184-V.
No. 05-19-00082-CR          V.                Opinion delivered by Justice Partida-
                                              Kipness. Justices Nowell and Evans
THE STATE OF TEXAS, Appellee                  participating.

    Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.


Judgment entered this 27th day of August, 2020.




                                       –33–
                            Court of Appeals
                     Fifth District of Texas at Dallas
                                 JUDGMENT

CASEY MICHAEL JONES,                          On Appeal from the 292nd Judicial
Appellant                                     District Court, Dallas County, Texas
                                              Trial Court Cause No. F17-41185-V.
No. 05-19-00083-CR          V.                Opinion delivered by Justice Partida-
                                              Kipness. Justices Nowell and Evans
THE STATE OF TEXAS, Appellee                  participating.

    Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.


Judgment entered this 27th day of August, 2020.




                                       –34–
                            Court of Appeals
                     Fifth District of Texas at Dallas
                                 JUDGMENT

CASEY MICHAEL JONES,                          On Appeal from the 292nd Judicial
Appellant                                     District Court, Dallas County, Texas
                                              Trial Court Cause No. F17-41186-V.
No. 05-19-00084-CR          V.                Opinion delivered by Justice Partida-
                                              Kipness. Justices Nowell and Evans
THE STATE OF TEXAS, Appellee                  participating.

    Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.


Judgment entered this 27th day of August, 2020.




                                       –35–
