                                                                                       ACCEPTED
                                                                                  03-14-00090-CR
                                                                                         3897104
                                                                        THIRD COURT OF APPEALS
                                                                                   AUSTIN, TEXAS
                                                                             1/26/2015 1:17:55 PM
                                                                                JEFFREY D. KYLE
                                                                                           CLERK




             Rosemary Lehmberg  Travis County District Attorney
                                                            FILED IN
                                                     3rd COURT OF APPEALS
               P.O. Box 1748 Austin, Texas 78767  Telephone:
                                                         AUSTIN, 512-854-9400
                                                                  TEXAS
            Fax: 512-854-9695                       1/26/2015 1:17:55 PM
                                                            JEFFREY D. KYLE
                                                                 Clerk




January 26, 2015

Jeffrey D. Kyle, Clerk
Third Court of Appeals
P.O. Box 121547
Austin, Texas 78711

RE:     Appeal No. 03-14-00090-CR
        State of Texas v. Paul Ahern
        Trial Court Cause No. D-1-DC-10-100006
        299th Judicial District Court


 To the Honorable Third Court of Appeals:

      Now comes the State of Texas and moves for permission to file this

 letter brief in response to the appellant’s reply brief.

      The appellant argues that the State’s assertion that the "appellant's

 account was implicated in three formal complaints for uploading

 hundreds of child pornographic images" was unsupported in the

 affidavit. Reply Brief at 7. To show this, the appellant argues that


                                                                                      1
“Sgt. Padron confirmed that there were only two images of child

pornography out of the two hundred fifty one images.” Appellant’s Reply

Brief at 8, emphasis added. The appellant also claims that “.008% of

the images [were] verifiable images of child pornography.” Appellant’s

Reply Brief at 9, emphasis added. But, Padron does not she say that

she considered and excluded all of the other reported images as being

child pornographic nor does she say any of the remaining images were

unverifiable. Instead, she says that she “personally viewed the images

of child pornography possessed and promoted by the suspected party

and [that she] believes the images depict visual material that visually

depict children younger than 18 years of age at the time the images of

the children were made who are engaging in sexual conduct.”1 6 RR 13.

   The State agrees that the affidavit does not itemize or describe more

than two of the reported “images that contained child pornography,”


1 Although the legal inquiry is limited to “the four corners of the affidavit,” it is worth
noting that at the hearing on the motion to suppress evidence, Sgt. Padron testified that
the upload of November of 2008 consisted of 200 uploaded files, “and of them, [the
National Center for Missing and Exploited Children] said at least seven appear to contain
child pornography. And they usually take a sampling. They don't go through the whole
thing. That's where our -- we go through and see the files and then we determine how
many.” 2 RR 83. Padron wasn’t asked the total number of the reported uploaded images
that contained child pornography but after the search was executed, forensic analysis
turned up 192 images of child pornography, two videos, 62 images of “possible child
pornography” and an additional 172 images of “child erotica.” 2 RR 86.
                                                                                            2
and for that reason argued “The fact that the appellant’s account was

implicated in three formal complaints for uploading hundreds of child

pornographic images was entitled to some consideration in the

magistrate’s evaluation of probable cause along with the upload of the

two images that were actually verified to be child pornography.” State’s

Brief at 23.

   In sum, because the appellant’s IP address was reported three times

for uploading a combined total of 251 images “that contained child

pornography,” it is reasonable to say that "appellant's account was

implicated in three formal complaints for uploading hundreds of child

pornographic images."

                              Prayer

   The State prays that this Court grant permission to file this letter

brief.

                            Respectfully submitted,

                            /s/ Rosa Theofanis
                            Rosa Theofanis
                            Texas Bar No. 24037591
                            Assistant District Attorney
                            District Attorney’s Office
                            P.O. Box 1748
                            Austin, Texas 78767
                                                                           3
                             Phone: 512.854.9400
                             Fax: 512.854.9695
                             Email: Rosa.Theofanis@traviscountytx.gov
                                  AppellateTCDA@traviscountytx.gov


                  Certificate of Compliance and Service

   I hereby certify that this brief contains 487 words. I further certify

that, on the 26th day of January 2015, a true and correct copy of this

brief was served, by U.S. mail, electronic mail, facsimile, or

electronically through the electronic filing manager, to the defendant’s

attorneys, Kristin Etter and David González, Sumpter & González, 206

E. 9th St., Suite 1511, Austin, Texas, 78701, <Kristin@sg-llp.com>,

<david@sg-llp.com>.

                             /s/ Rosa Theofanis
                             Rosa Theofanis
                             Assistant District Attorney




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