Al D. Checo v. State

402 S.W.3d 440, 2013 WL 2489936, 2013 Tex. App. LEXIS 7029
CourtCourt of Appeals of Texas
DecidedJune 11, 2013
Docket14-12-00210-CR, 14-12-00211-CR, 14-12-00212-CR, 14-12-00213-CR, 14-12-00214-CR, 14-12-00215-CR, 14-12-00216-CR, 14-12-00217-CR, 14-12-00218-CR, 14-12-00219-CR, 14-12-00220-CR, 14-12-00221-CR, 14-12-00222-CR, 14-12-00223-CR, 14-12-00224-CR, 14-12-00225-CR, 14-12-00226-CR, 14-12-00227-CR, 14-12-00228-CR, 14-12-00229-CR, 14-12-00230-CR, 14-12-00231-CR, 14-12-00232-CR, 14-12-00233-CR, 14-12-00234-CR, 14-12-00235-CR, 14-12-00236-CR, 14-12-00237-CR, 14-12-00238-CR
StatusPublished
Cited by30 cases

This text of 402 S.W.3d 440 (Al D. Checo v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Al D. Checo v. State, 402 S.W.3d 440, 2013 WL 2489936, 2013 Tex. App. LEXIS 7029 (Tex. Ct. App. 2013).

Opinion

OPINION

MARTHA HILL JAMISON, Justice.

Appellant Al D. Checo appeals from his convictions for attempted aggravated sexual assault of a child, aggravated kidnapping, and twenty-seven counts of possession of child pornography. A jury found appellant guilty and assessed his punishment at 19 years in prison for the attempted aggravated sexual assault, 20 years for the aggravated kidnapping, and 10 years for each possession of child pornography charge. In sentencing appellant in accordance with the jury verdict, the trial court ordered the child pornography sentences to run concurrently.

In his first six issues, appellant challenges the admission into evidence of six different pieces of evidence. In his seventh issue, appellant contends that the *444 search warrants issued in this case were impermissibly broad and thus violated the Fourth Amendment of the United States Constitution. And in his eighth issue, appellant contends that probable cause did not exist to support the issuance of the search warrants. We affirm.

I. Background

M.C. testified that on May 21, 2010, she was seven years old. As M.C. was walking home from school that day, appellant, who was outside his green pickup truck near a bike lane, told M.C. that her mother had directed him to “pick [M.C.] up.” He was holding his phone to his ear as though he were talking to M.C.’s mother. M.C. had never seen appellant before, but she believed him and got into his pickup truck when he told her to do so. Appellant drove M.C. to his townhouse and took her inside. M.C. described the interior of the townhouse as “a mess.” Appellant took her upstairs, showed her a bedroom, which had a cartoonish picture of the sea on the walls, and asked her if she liked it. She replied that she did. She noticed brown stains on the bed in this room and that the bed was lying flat on the floor instead of on a bed frame. She also observed a laptop computer in the room that was set up to take photos and video.

Appellant took M.C. back downstairs where he showed her pornographic videos on a desktop computer. Appellant then led M.C. back upstairs and told her to sit on the bed. She did so and he asked her whether she knew how to kiss and how to suck on a lollipop. M.C. replied “no” because she thought “he was going to do something.” She then began to cry because she thought appellant was going to tell her to put her mouth on his private part. Appellant meanwhile had pulled his pants down almost to his knees, revealing his boxer shorts. When M.C. began to cry, appellant told her that he did not mean to scare her and pulled up his pants. They then went back downstairs and got in appellant’s pickup truck, and he drove her to a corner and dropped her off, telling her not to tell anyone what happened but to just tell her mom that she thought she was supposed to go with her friends after school.

After M.C. returned to her family, the police took her to see if she could identify the person who abducted her. M.C. testified that she was able to identify appellant at that time as the person who abducted her, and she identified him again in the courtroom. M.C. also was able to identify appellant’s townhouse and green pickup truck.

Based on information obtained from M.C., the police obtained search warrants authorizing them to search appellant’s person, residence, truck, and a laptop found in the truck for child pornography among other items. During the course of the search, numerous items were seized, including computers and related media storage. Other items seized and ultimately admitted into evidence at trial included sexually explicit web-cam videos, sexually explicit MiniDisc videos, sexually explicit internet chat logs, a pump device, lubricants, and two news tracts by Tony Alamo, a convicted child molester. 1

Russell Sparks, a United States Secret Service agent and computer examiner specializing in internet computer crimes, testified that he performed forensic examinations of the computers and related media storage devices found at appellant’s resi *445 dence. According to Sparks, these devices contained over 300 images, most of which he classified as child pornography. Sparks further testified that appellant was the likely owner of the images and that they were not recorded on the devices by mistake or by another person.

Appellant testified on his own behalf, essentially admitting that he abducted M.C., but insisting that two masked gunmen forced him to do so. He further alleged that M.C. lied when she said that he showed her pornography or pulled down his pants in her presence. Lastly, he stated that only the computer found in his truck belonged to him and denied possessing any child pornography or knowing to whom the other computer equipment belonged.

Appellant also presented the testimony of his sister, who stated that appellant had moved into the townhouse with her after their mother died and stayed in the residence after the sister and her family moved out. She stated that she had painted a sea mural in an upstairs bedroom and left a computer there. She confirmed that appellant had the ability to use computers and webcams.

II. Motion to Suppress

In his seventh issue, appellant contends that the two search warrants issued in this case were so broad as to constitute general warrants in violation of the Fourth Amendment to the United States Constitution. In his eighth issue, appellant contends the officer’s affidavits used to obtain the warrants did not demonstrate probable cause supporting the warrants’ issuance, also in violation of the Fourth Amendment. On these bases, appellant contends the trial court erred in denying his motion to suppress evidence recovered pursuant to the warrants. See, e.g., Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (holding that evidence obtained in violation of the Fourth Amendment generally should be excluded from evidence).

We apply a bifurcated standard of review to a trial court’s ruling on a motion to suppress evidence. Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App.2002). We give almost total deference to the trial court’s determination of historical facts that depend on credibility and review de novo the trial court’s application of the law to those facts. Id. We also review de novo the trial court’s application of the law of search and seizure. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App.2000). However, appellate review of an affidavit in support of a search warrant is not de novo; rather, great deference is given to the magistrate’s determination of probable cause. State v. Dugas, 296 S.W.3d 112, 115 (Tex.App.-Houston [14th Dist.] 2009, pet. ref'd) (citing Illinois v. Gates, 462 U.S. 213, 236-37, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).

A. Particularity

The Fourth Amendment requires that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S.

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Cite This Page — Counsel Stack

Bluebook (online)
402 S.W.3d 440, 2013 WL 2489936, 2013 Tex. App. LEXIS 7029, Counsel Stack Legal Research, https://law.counselstack.com/opinion/al-d-checo-v-state-texapp-2013.