COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
ANTONIO BARBA DUENAS, § No. 08-18-00022-CR Appellant, § Appeal from the v. § 41st District Court § THE STATE OF TEXAS, of El Paso County, Texas § Appellee. (TC# 20100D02223) §
OPINION
Appellant, Antonio Barba Duenas, pleaded nolo contendere to two counts of possession
with intent to promote child pornography. In accordance with a plea agreement, the trial court
deferred a finding of guilt and placed Duenas on deferred probation for ten years. Having
obtained permission to appeal prior to entering his plea, Duenas raises a single issue: whether the
trial court erred when it denied his pretrial motion to suppress the evidence seized during a search
of his residence pursuant to a search warrant. Finding no error, we affirm.
BACKGROUND
On September 9, 2009, Duenas took an Acer laptop computer to Sage Computers, a
computer repair shop, for repair and backup services. While backing up files on Duenas’ Acer laptop, technicians, Manuel Quintero and Gabriel Herrera, found a file folder labeled “Charm6”
which contained 700-750 images of child pornography. Joe Rivera, an owner of the shop,
reported the discovery of the images to the National Center for Missing Exploited Children, but
gave the laptop back to Duenas when he returned to the shop to retrieve it. A few days later,
Duenas returned to the shop with the Acer laptop seeking additional repairs. When the
technicians performed the additional work, they noticed the “Charm6” file was removed from the
laptop’s hard drive. After their work on the laptop was complete, the technicians returned the
laptop to Duenas.
On October 14, 2009, Robert Hanner, a detective with the El Paso Police Department’s
Internet Crimes Against Children/Cyber Unit, received information from the National Center for
Missing and Exploited Children’s Cyber Tip Line advising him of the events that had occurred
with Duenas’ Acer computer. After interviewing Mr. Rivera and Mr. Quintero, and after
obtaining a positive identification of Duenas via his image on his driver’s license, Detective
Hanner conducted a two-day surveillance at Duenas’ residence, which matched the address on his
driver’s license. Detective Hanner observed that a vehicle parked at the residence was also
registered to Duenas.
On October 19, 2009, Detective Hanner swore out an affidavit for a search warrant at
Duenas’ residence seeking to seize any “computers and storage devices,” including the Acer
laptop, on which images and video files containing child pornography were likely to be found. In
addition to the facts described above, Detective Hanner included in the affidavit reasons he
believed other computers and storage devices containing evidence of child pornography would be
found at Duenas residence. Specifically, he stated:
2 The detective is aware that persons who access, share, or download files, including the images and video files depicting persons under the age of 18 in nude or lewd poses or engaged in sexual conduct, typically keep numerous files of this type in their computers and/or storage devices for long periods of time. This is done for the purpose of fantasizing and/or recalling sexual encounters(s) with their victims; the affiant has attended training seminars conducted by experts (local and out of town) in the field of child abuse and child exploitation and learned that these experts will attest to this.
The detective, a trained computer forensics examiner, is aware that even if persons attempt to delete these type files or images the files can be forensically retrieved by a trained computer forensics examiner.
On October 22, 2009 at 7:40 a.m., the search warrant was executed at Duenas’ residence
in Duenas’ absence. Among the items seized by law enforcement were 3 computers, 217 floppy
discs, and 727 computer discs. The Acer laptop was not among the items seized at that time.
The search resulted in the seizure of 34,500 images of child pornography, including the “Charm6”
file.
On May 18, 2010, Duenas was charged by indictment with 48 counts of possession of child
pornography and 2 counts of possession with intent to promote child pornography. Before trial,
Duenas sought to suppress the evidence obtained via the search warrant on the grounds, among
others, that the affidavit “fail[ed] to satisfy the constitutionally and statutorily required tests for
the existence of probable cause to search and seize certain items.” Specifically, he complained
there were no facts contained within the affidavit that would give rise to the magistrate’s
determination that computers, other than the Acer laptop, would be found at Duenas’ residence or
that they would contain evidence of child pornography. After a hearing, in which Detective
Hanner testified, the trial court denied the motion to suppress. Duenas filed a motion to
reconsider, which was also denied. Duenas subsequently entered into a plea agreement with the
State, which allowed him to plead nolo contendere to two counts of possession with intent to
3 promote child pornography in exchange for dismissal of the remaining counts.
DISCUSSION
Here, Appellant complains that the trial court erred by denying his pretrial motion to
suppress the evidence seized during the search of his residence because he contends the warrant
affidavit failed to set forth sufficient facts to establish probable cause that computers, other than
the Acer laptop, and other storage devices were located in his residence or that they contained
evidence of child pornography.
I. Substantial Basis Standard of Review
A reviewing court normally reviews a trial court's ruling on a motion to suppress by using
a bifurcated standard of review, which gives almost total deference to findings of fact, including
credibility determinations, and reviewing de novo the trial court's application of the law. State v.
McLain, 337 S.W.3d 268, 271 (Tex.Crim.App. 2011). “However, when the trial court is
determining probable cause to support the issuance of a search warrant, there are no credibility
determinations, rather the trial court is constrained to the four corners of the affidavit.” Id.
Accordingly, when we review a magistrate’s probable cause determination, we “apply a highly
deferential standard because of the constitutional preference for searches to be conducted pursuant
to a warrant as opposed to a warrantless search.” 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. Moreover, “[r]eviewing courts should not ‘invalidate the warrant by
interpreting the affidavit in a hypertechnical, rather than commonsense, manner.’” Id. at 272,
(citing Rodriguez v. State, 232 S.W.3d 55, 61 (Tex.Crim.App. 2007). “When in doubt, the
appellate court should defer to all reasonable inferences that the magistrate could have made.” Id.
4 II. Fair Probability and Probable Cause
A warrant affidavit must contain sufficient facts to satisfy the magistrate that probable
cause does in fact exist for its issuance. See TEX.CODE CRIM.PROC.ANN. art. 18.01(b).
Specifically, a warrant affidavit seeking to search and seize property or other items, must, at a
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COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
ANTONIO BARBA DUENAS, § No. 08-18-00022-CR Appellant, § Appeal from the v. § 41st District Court § THE STATE OF TEXAS, of El Paso County, Texas § Appellee. (TC# 20100D02223) §
OPINION
Appellant, Antonio Barba Duenas, pleaded nolo contendere to two counts of possession
with intent to promote child pornography. In accordance with a plea agreement, the trial court
deferred a finding of guilt and placed Duenas on deferred probation for ten years. Having
obtained permission to appeal prior to entering his plea, Duenas raises a single issue: whether the
trial court erred when it denied his pretrial motion to suppress the evidence seized during a search
of his residence pursuant to a search warrant. Finding no error, we affirm.
BACKGROUND
On September 9, 2009, Duenas took an Acer laptop computer to Sage Computers, a
computer repair shop, for repair and backup services. While backing up files on Duenas’ Acer laptop, technicians, Manuel Quintero and Gabriel Herrera, found a file folder labeled “Charm6”
which contained 700-750 images of child pornography. Joe Rivera, an owner of the shop,
reported the discovery of the images to the National Center for Missing Exploited Children, but
gave the laptop back to Duenas when he returned to the shop to retrieve it. A few days later,
Duenas returned to the shop with the Acer laptop seeking additional repairs. When the
technicians performed the additional work, they noticed the “Charm6” file was removed from the
laptop’s hard drive. After their work on the laptop was complete, the technicians returned the
laptop to Duenas.
On October 14, 2009, Robert Hanner, a detective with the El Paso Police Department’s
Internet Crimes Against Children/Cyber Unit, received information from the National Center for
Missing and Exploited Children’s Cyber Tip Line advising him of the events that had occurred
with Duenas’ Acer computer. After interviewing Mr. Rivera and Mr. Quintero, and after
obtaining a positive identification of Duenas via his image on his driver’s license, Detective
Hanner conducted a two-day surveillance at Duenas’ residence, which matched the address on his
driver’s license. Detective Hanner observed that a vehicle parked at the residence was also
registered to Duenas.
On October 19, 2009, Detective Hanner swore out an affidavit for a search warrant at
Duenas’ residence seeking to seize any “computers and storage devices,” including the Acer
laptop, on which images and video files containing child pornography were likely to be found. In
addition to the facts described above, Detective Hanner included in the affidavit reasons he
believed other computers and storage devices containing evidence of child pornography would be
found at Duenas residence. Specifically, he stated:
2 The detective is aware that persons who access, share, or download files, including the images and video files depicting persons under the age of 18 in nude or lewd poses or engaged in sexual conduct, typically keep numerous files of this type in their computers and/or storage devices for long periods of time. This is done for the purpose of fantasizing and/or recalling sexual encounters(s) with their victims; the affiant has attended training seminars conducted by experts (local and out of town) in the field of child abuse and child exploitation and learned that these experts will attest to this.
The detective, a trained computer forensics examiner, is aware that even if persons attempt to delete these type files or images the files can be forensically retrieved by a trained computer forensics examiner.
On October 22, 2009 at 7:40 a.m., the search warrant was executed at Duenas’ residence
in Duenas’ absence. Among the items seized by law enforcement were 3 computers, 217 floppy
discs, and 727 computer discs. The Acer laptop was not among the items seized at that time.
The search resulted in the seizure of 34,500 images of child pornography, including the “Charm6”
file.
On May 18, 2010, Duenas was charged by indictment with 48 counts of possession of child
pornography and 2 counts of possession with intent to promote child pornography. Before trial,
Duenas sought to suppress the evidence obtained via the search warrant on the grounds, among
others, that the affidavit “fail[ed] to satisfy the constitutionally and statutorily required tests for
the existence of probable cause to search and seize certain items.” Specifically, he complained
there were no facts contained within the affidavit that would give rise to the magistrate’s
determination that computers, other than the Acer laptop, would be found at Duenas’ residence or
that they would contain evidence of child pornography. After a hearing, in which Detective
Hanner testified, the trial court denied the motion to suppress. Duenas filed a motion to
reconsider, which was also denied. Duenas subsequently entered into a plea agreement with the
State, which allowed him to plead nolo contendere to two counts of possession with intent to
3 promote child pornography in exchange for dismissal of the remaining counts.
DISCUSSION
Here, Appellant complains that the trial court erred by denying his pretrial motion to
suppress the evidence seized during the search of his residence because he contends the warrant
affidavit failed to set forth sufficient facts to establish probable cause that computers, other than
the Acer laptop, and other storage devices were located in his residence or that they contained
evidence of child pornography.
I. Substantial Basis Standard of Review
A reviewing court normally reviews a trial court's ruling on a motion to suppress by using
a bifurcated standard of review, which gives almost total deference to findings of fact, including
credibility determinations, and reviewing de novo the trial court's application of the law. State v.
McLain, 337 S.W.3d 268, 271 (Tex.Crim.App. 2011). “However, when the trial court is
determining probable cause to support the issuance of a search warrant, there are no credibility
determinations, rather the trial court is constrained to the four corners of the affidavit.” Id.
Accordingly, when we review a magistrate’s probable cause determination, we “apply a highly
deferential standard because of the constitutional preference for searches to be conducted pursuant
to a warrant as opposed to a warrantless search.” 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. Moreover, “[r]eviewing courts should not ‘invalidate the warrant by
interpreting the affidavit in a hypertechnical, rather than commonsense, manner.’” Id. at 272,
(citing Rodriguez v. State, 232 S.W.3d 55, 61 (Tex.Crim.App. 2007). “When in doubt, the
appellate court should defer to all reasonable inferences that the magistrate could have made.” Id.
4 II. Fair Probability and Probable Cause
A warrant affidavit must contain sufficient facts to satisfy the magistrate that probable
cause does in fact exist for its issuance. See TEX.CODE CRIM.PROC.ANN. art. 18.01(b).
Specifically, a warrant affidavit seeking to search and seize property or other items, must, at a
minimum, set forth sufficient facts to establish probable cause: (1) that a specific offense has
been committed; (2) that the specifically described property or items constitute evidence of that
offense or evidence that a particular person committed that offense; and (3) that the property or
items are located at or on the person, place, or thing to be searched. TEX.CODE CRIM.PROC.ANN.
art. 18.01(c). The probable cause standard is met when the issuing magistrate makes “a practical,
common-sense decision whether, given all the circumstances set forth in the affidavit before him,
including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there
is a fair probability that contraband or evidence of a crime will be found in a particular place.”
Illinois v. Gates, 462 U.S. 213, 238 (1983); Rodriguez, 232 S.W.3d at 60 (citing Gates).
While Appellant acknowledges the sufficiency of facts alleged in the warrant affidavit
establishing “ample” probable cause that the Acer laptop would be located at his home and that it
could contain forensic evidence of child pornography, he contends the warrant affidavit contained
insufficient facts establishing probable cause that other computers and storage devices would be
found at his home or that they would contain evidence of child pornography. His argument rests
on his characterization as mere “suspicion” the recitation of facts, learned through experience and
training, by Detective Hanner regarding behavior “typically” exhibited by individuals who possess
child porn.
III. Officer’s Experience and Training and Probable Cause
5 Appellant points us to no case that holds an officer’s statement based on his experience and
training is always insufficient to support a determination of probable cause, and we have found
none. Rather, whether a police officer’s expertise is sufficient to support the establishment of
particular fact is generally within the magistrate’s discretion. See eg., Checo v. State, 402 S.W.3d
440, 449-450 (Tex.App.—Houston [14th Dist.] 2013, pet. ref’d)(upholding probable cause
determination where officer’s statement in warrant affidavit for search of computer that those who
engage children in sexually explicit manner often collect child porn on their computers was based
solely on his experience, training, and discussions with other experienced investigators); see also,
Steele v. State, 355 S.W.3d 746, 751-52 (Tex.App.—Houston [1st Dist.] 2011, pet. ref’d)(relying
on similar statements in officer’s warrant affidavit).
Here, Detective Hanner included in his affidavit knowledge he acquired through his
experience with child porn cases and his training on how to investigate such cases. Specifically,
the affidavit alleged that Detective Hanner was currently assigned to the Internet Crimes Against
Children/Cyber Unit, and that he had attended training seminars given by experts on child abuse
and child exploitation in which “typical” behavior by individuals who seek and obtain this kind of
material, was discussed. He learned that “typically” these individuals do not discard the
pornographic images they acquire, rather they “keep” and “store” them “for long periods of time.”
Moreover, according to Detective Hanner, even if the images were “deleted” from a computer,
evidence of their existence could be obtained by a trained computer forensic examiner, such as
himself. In addition to these averments, the warrant affidavit alleged facts establishing that a
personal computer owned by Appellant contained a digital file containing 700-750 images
depicting children between the ages of 5 and 14, in “various states of partial and full nudity.”
6 Alleged facts also established that those images were removed from Appellant’s personal
computer while the computer was in his possession.
Given the quantity of images found on the Acer computer, the subsequent removal of those
images from the Acer computer while in Appellant’s possession, the fact that Appellant was the
only person seen in possession of, and had access to, the Acer computer containing the child
pornography, as well as Detective Hanner’s statement that images of this kind are typically kept
and stored or can be forensically identified on other computers, we believe the magistrate had a
substantial basis for determining there was a fair probability that the images removed from the
Acer computer had been either transferred to another computer or storage device within
Appellant’s possession or control, or that these items, including the Acer laptop, could contain
forensic evidence of child pornography. The fact that the search of Appellant’s residence turned
up several computers and a large number of storage devices, some of which did not contain child
pornography, does not render the warrant search invalid.
Nor is the omission of an express statement that the images were in fact “transferred” from
the Acer computer to another computer or storage device fatal to the affidavit. To hold otherwise
would require us to interpret the affidavit in a hypertechnical manner, which we cannot do.
Rodriguez, 232 S.W.3d at 59. It is enough that the magistrate could infer from the totality of the
facts alleged that there existed a fair probability that evidence of the 700-750 pornographic images
would likely be found at the residence on either the Acer computer or on other computers or storage
devices in Appellant’s possession. Id. at 62 (“[W]e focus on the combined logical force of facts
that are in the affidavit, not those that are omitted from the affidavit.”).
CONCLUSION
7 For these reasons, the trial court’s judgment is affirmed.
February 21, 2020 YVONNE T. RODRIGUEZ, Justice
Before Alley, C.J., Rodriguez, and Palafox, JJ.
(Do Not Publish)