Court of Appeals Tenth Appellate District of Texas
10-24-00007-CR
Paul Bryan Nichols, Appellant
v.
The State of Texas, Appellee
On appeal from the 443rd District Court of Ellis County, Texas Judge Cynthia Ermatinger, presiding Trial Court Cause No. 51141CR
CHIEF JUSTICE JOHNSON delivered the opinion of the Court.
MEMORANDUM OPINION
Paul Bryan Nichols was found guilty by a jury of ten counts of possession
of child pornography. See TEX. PENAL CODE ANN. § 43.26. The jury assessed
his punishment at three years’ confinement in the penitentiary on each count.
The trial court sentenced Nichols accordingly and ordered the sentences to run
consecutively. Nichols now brings this appeal.
A. Background Paul Nichols was residing with his parents in August 2020 and staying
in a bedroom that doubled as an office for his father, Larry Nichols, which
contained a computer. The computer was used by all family members,
including Larry, his wife Linda, Paul, and any visiting family members, such
as grandchildren, who needed to use it. Prior to Paul moving in, Larry had
requested that his nephew, Steven Hutcherson, work on the computer, during
which Steven installed a remote access application to facilitate future
troubleshooting without needing to travel to Larry’s house. Larry claimed
that he understood that Steven would only use the remote access application
if contacted for a computer issue, but Steven said that he believed that there
were no restrictions on his use.
On August 4, 2020, while Steven’s stepdaughter was using his home
computer, Steven accessed the remote access application to pause her game
and noticed Larry’s computer was active. Upon accessing it, Steven observed
images depicting child pornography, and he began taking screenshots with his
cell phone, while asking his ex-wife, who was present, to step over to witness
the content. Steven’s home security video system captured when Steven
discovered the activity on Larry’s computer. Steven contacted Larry, who
confirmed that Paul was the only one at Larry’s home at the time. Steven was
conflicted when he realized the person viewing the child pornography was a
relative and held onto the screenshots for twenty days before turning the
Nichols v. State Page 2 screenshots over to law enforcement. During that time, Steven showed them
to various family members in an effort to get a relative that was closer to Paul
to encourage Paul to turn himself into law enforcement. Steven also recorded
a phone conversation with Paul, during which Paul apologized for the situation
and admitted engaging in inappropriate activities on the computer.
Steven ultimately turned over all the screenshots, the recording of the
phone call, and the home security video to law enforcement. A warrant was
obtained by law enforcement to conduct a search of Larry’s house and resulted
in the discovery of a new computer that contained no inappropriate images.
Paul was subsequently indicted for ten counts of possession of child
pornography.
B. Issues One and Two
In Paul’s two issues, he contends that the trial court erred in denying his
motion to suppress and his requested article 38.23(a) Code of Criminal
Procedure jury instruction. In issue one, Nichols contends the trial court
should have granted his motion to suppress because the images of child
pornography were not obtained with a warrant and were illegally captured by
a private citizen. In issue two, Nichols contends that he was entitled to an
article 38.23(a) jury instruction because the evidence established a contested
issue of fact regarding consent to access Larry’s computer.
1. Authority
Nichols v. State Page 3 We review a trial court’s ruling on a motion to suppress with a bifurcated
standard. Martin v. State, 620 S.W.3d 749, 759 (Tex. Crim. App. 2021). “We
give almost total deference to the trial court’s findings of fact and review de
novo the application of the law to the facts.” Id. (quoting State v. Ruiz, 577
S.W.3d 543, 545 (Tex. Crim. App. 2019)) (internal quotes omitted). “When a
trial judge makes express findings of fact, an appellate court must examine the
record in the light most favorable to the ruling and uphold those fact findings
so long as they are supported by the record.” Id. (quoting State v. Rodriguez,
521 S.W.3d 1, 8 (Tex. Crim. App. 2017)) (internal quotes omitted). We will
affirm the trial court’s ruling if it is correct under any applicable theory of law
and the record reasonably supports it. Martin, 620 S.W.3d at 759.
Article 38.23 has a standing requirement, and the right to complain
about an illegal search or seizure is a privilege personal to the wronged or the
injured party. Bluntson v. State, No. AP-77,067, 2025 WL 1322702, at *36
(Tex. Crim. App. May 7, 2025). “Accordingly, one who has not suffered
infringement of a legal right does not have standing to complain.” Bluntson,
2025 WL 1322702 at *36. The wronged or injured party has the burden of
proving facts to show standing. Bluntson, 2025 WL 1322702 at *33.
To establish standing to contest a search, the wronged or injured party
must show that he had a legitimate expectation of privacy in the area searched.
Metoyer v. State, 860 S.W.2d 673, 677 (Tex. App.—Fort Worth 1993, pet. ref’d).
Nichols v. State Page 4 To prove a legitimate expectation of privacy, the wronged or injured party must
establish that, by his conduct, he exhibited an actual subjective expectation of
privacy, and that circumstances existed under which society was prepared to
recognize his subjective expectation as objectively reasonable. See Granados
v. State, 85 S.W.3d 217, 223 (Tex. Crim. App. 2002); Villarreal v. State, 935
S.W.2d 134, 138 (Tex. Crim. App. 1996). The following factors are relevant to
the consideration of whether a privacy interest is objectively reasonable: (1)
whether the accused had a property or possessory interest in the place
searched; (2) whether he was legitimately in the place searched; (3) whether
he had complete dominion or control and the right to exclude others; (4)
whether, prior to the search, he took normal precautions customarily taken by
those seeking privacy; (5) whether the property was put to some private use;
and (6) whether the claim of privacy is consistent with historical notions of
privacy. Id. While the factors are more applicable to a discussion of an
expectation of privacy in a place rather than in an object such as a computer
hard drive, they remain instructive. See Miller v. State, 335 S.W.3d 847, 855
(Tex. App.—Austin 2011, no pet.).
2. Analysis
It is uncontested that Larry was the owner of the computer and that Paul
had no property interest in the computer. Paul did not have complete dominion
or control of the computer, nor did he have the right to exclude others from its
Nichols v. State Page 5 use. While Paul was residing in the bedroom with the computer, any
possessory interest was limited because the bedroom was used as an office for
Free access — add to your briefcase to read the full text and ask questions with AI
Court of Appeals Tenth Appellate District of Texas
10-24-00007-CR
Paul Bryan Nichols, Appellant
v.
The State of Texas, Appellee
On appeal from the 443rd District Court of Ellis County, Texas Judge Cynthia Ermatinger, presiding Trial Court Cause No. 51141CR
CHIEF JUSTICE JOHNSON delivered the opinion of the Court.
MEMORANDUM OPINION
Paul Bryan Nichols was found guilty by a jury of ten counts of possession
of child pornography. See TEX. PENAL CODE ANN. § 43.26. The jury assessed
his punishment at three years’ confinement in the penitentiary on each count.
The trial court sentenced Nichols accordingly and ordered the sentences to run
consecutively. Nichols now brings this appeal.
A. Background Paul Nichols was residing with his parents in August 2020 and staying
in a bedroom that doubled as an office for his father, Larry Nichols, which
contained a computer. The computer was used by all family members,
including Larry, his wife Linda, Paul, and any visiting family members, such
as grandchildren, who needed to use it. Prior to Paul moving in, Larry had
requested that his nephew, Steven Hutcherson, work on the computer, during
which Steven installed a remote access application to facilitate future
troubleshooting without needing to travel to Larry’s house. Larry claimed
that he understood that Steven would only use the remote access application
if contacted for a computer issue, but Steven said that he believed that there
were no restrictions on his use.
On August 4, 2020, while Steven’s stepdaughter was using his home
computer, Steven accessed the remote access application to pause her game
and noticed Larry’s computer was active. Upon accessing it, Steven observed
images depicting child pornography, and he began taking screenshots with his
cell phone, while asking his ex-wife, who was present, to step over to witness
the content. Steven’s home security video system captured when Steven
discovered the activity on Larry’s computer. Steven contacted Larry, who
confirmed that Paul was the only one at Larry’s home at the time. Steven was
conflicted when he realized the person viewing the child pornography was a
relative and held onto the screenshots for twenty days before turning the
Nichols v. State Page 2 screenshots over to law enforcement. During that time, Steven showed them
to various family members in an effort to get a relative that was closer to Paul
to encourage Paul to turn himself into law enforcement. Steven also recorded
a phone conversation with Paul, during which Paul apologized for the situation
and admitted engaging in inappropriate activities on the computer.
Steven ultimately turned over all the screenshots, the recording of the
phone call, and the home security video to law enforcement. A warrant was
obtained by law enforcement to conduct a search of Larry’s house and resulted
in the discovery of a new computer that contained no inappropriate images.
Paul was subsequently indicted for ten counts of possession of child
pornography.
B. Issues One and Two
In Paul’s two issues, he contends that the trial court erred in denying his
motion to suppress and his requested article 38.23(a) Code of Criminal
Procedure jury instruction. In issue one, Nichols contends the trial court
should have granted his motion to suppress because the images of child
pornography were not obtained with a warrant and were illegally captured by
a private citizen. In issue two, Nichols contends that he was entitled to an
article 38.23(a) jury instruction because the evidence established a contested
issue of fact regarding consent to access Larry’s computer.
1. Authority
Nichols v. State Page 3 We review a trial court’s ruling on a motion to suppress with a bifurcated
standard. Martin v. State, 620 S.W.3d 749, 759 (Tex. Crim. App. 2021). “We
give almost total deference to the trial court’s findings of fact and review de
novo the application of the law to the facts.” Id. (quoting State v. Ruiz, 577
S.W.3d 543, 545 (Tex. Crim. App. 2019)) (internal quotes omitted). “When a
trial judge makes express findings of fact, an appellate court must examine the
record in the light most favorable to the ruling and uphold those fact findings
so long as they are supported by the record.” Id. (quoting State v. Rodriguez,
521 S.W.3d 1, 8 (Tex. Crim. App. 2017)) (internal quotes omitted). We will
affirm the trial court’s ruling if it is correct under any applicable theory of law
and the record reasonably supports it. Martin, 620 S.W.3d at 759.
Article 38.23 has a standing requirement, and the right to complain
about an illegal search or seizure is a privilege personal to the wronged or the
injured party. Bluntson v. State, No. AP-77,067, 2025 WL 1322702, at *36
(Tex. Crim. App. May 7, 2025). “Accordingly, one who has not suffered
infringement of a legal right does not have standing to complain.” Bluntson,
2025 WL 1322702 at *36. The wronged or injured party has the burden of
proving facts to show standing. Bluntson, 2025 WL 1322702 at *33.
To establish standing to contest a search, the wronged or injured party
must show that he had a legitimate expectation of privacy in the area searched.
Metoyer v. State, 860 S.W.2d 673, 677 (Tex. App.—Fort Worth 1993, pet. ref’d).
Nichols v. State Page 4 To prove a legitimate expectation of privacy, the wronged or injured party must
establish that, by his conduct, he exhibited an actual subjective expectation of
privacy, and that circumstances existed under which society was prepared to
recognize his subjective expectation as objectively reasonable. See Granados
v. State, 85 S.W.3d 217, 223 (Tex. Crim. App. 2002); Villarreal v. State, 935
S.W.2d 134, 138 (Tex. Crim. App. 1996). The following factors are relevant to
the consideration of whether a privacy interest is objectively reasonable: (1)
whether the accused had a property or possessory interest in the place
searched; (2) whether he was legitimately in the place searched; (3) whether
he had complete dominion or control and the right to exclude others; (4)
whether, prior to the search, he took normal precautions customarily taken by
those seeking privacy; (5) whether the property was put to some private use;
and (6) whether the claim of privacy is consistent with historical notions of
privacy. Id. While the factors are more applicable to a discussion of an
expectation of privacy in a place rather than in an object such as a computer
hard drive, they remain instructive. See Miller v. State, 335 S.W.3d 847, 855
(Tex. App.—Austin 2011, no pet.).
2. Analysis
It is uncontested that Larry was the owner of the computer and that Paul
had no property interest in the computer. Paul did not have complete dominion
or control of the computer, nor did he have the right to exclude others from its
Nichols v. State Page 5 use. While Paul was residing in the bedroom with the computer, any
possessory interest was limited because the bedroom was used as an office for
Larry and the other members of the family were free to enter the bedroom and
use the computer. Paul did utilize the private browsing mode on the computer
web browser, but that would only prevent browsing activity and associated files
from being saved on the computer and accessed by other users of the shared
computer. Being a shared computer, there was no evidence that Paul set up a
separate profile or username and a unique password to access his files he
maintained on the computer, or that he routinely encrypted his files
maintained on the computer in order to maintain his privacy. Importantly,
one of the screenshots taken by Steve showed the desktop screen on the shared
computer had a file titled “PAUL VA.” In Paul’s interview with law
enforcement, State’s Exhibit 27, Paul acknowledged that he used the shared
computer, was former military, and used the “V.A.”
Based on this record, we conclude that Paul’s conduct did not exhibit an
actual subjective expectation of privacy in the shared computer. See Villarreal,
935 S.W.2d at 138. Furthermore, we conclude that Paul failed to sustain his
burden that any expectation he may have possessed was objectively
reasonable. See Id.
Because Paul failed to establish that he had a legitimate expectation of
privacy in the computer, he has no standing to challenge the capture of the
Nichols v. State Page 6 screenshots of the pornographic images or to have their admission excluded
under article 38.23. Furthermore, Paul was not entitled to an article 38.23
instruction because article 38.23 does not apply to a person who does not have
standing. See Neal v. State, 256 S.W.3d 264, 284 (Tex. Crim. App. 2008). We
overrule both of Paul’s issues.
C. Conclusion
We affirm the judgments of the trial court.
MATT JOHNSON Chief Justice
OPINION DELIVERED and FILED: November 13, 2025 Before Chief Justice Johnson, Justice Smith, and Justice Harris Affirmed Do Not Publish CRPM
Nichols v. State Page 7