Aguirre v. State
| Decision Date | 01 March 2016 |
| Docket Number | NO. 14–14–00748–CR,14–14–00748–CR |
| Citation | 490 S.W.3d 102 |
| Parties | Jeovanny Francisco Aguirre, Appellant v. The State of Texas, Appellee |
| Court | Texas Court of Appeals |
Shannon Leigh Love, Richmond, TX, for Appellant.
Jenna Rudoff, Richmond, TX, for Appellee.
Panel consists of Justices Christopher, Donovan, and Cabaniss.1
John Donovan
Appellant, Jeovanny Francisco Aguirre, appeals his conviction for continuous sexual abuse of a young child. In seven issues, he contends the trial court erred by denying his motion to suppress evidence of the offense obtained pursuant to a search warrant. We affirm.
On July 23, 2012, Detective Mayra Cardenas executed a probable cause affidavit to obtain a search warrant for a list of items, including various electronic devices and information stored electronically, at a home. Detective Cardenas averred she had been a police officer for nine years and had experience investigating “sex related offenses against others.” Detective Cardenas opined the items to be seized would constitute evidence that appellant committed continuous sexual abuse of complainant through multiple instances of aggravated sexual assault and indecency over several years when complainant was younger than fourteen. See Tex. Penal Code Ann. § 21.02(b)
, (c)(2), (4) (West Supp.2015); id. § 21.11(a)(1) (West 2011); id. § 22.021 (West Supp.2015) ().
First, Detective Cardenas detailed, based on her personal investigation, the facts regarding the alleged offense. She averred that, on July 14, 2012, complainant's mother appeared at the police station and spoke with two other officers. According to the mother, complainant revealed the previous day that she had been sexually assaulted by appellant at complainant's home. Less than a week later, the director of a Child Advocacy Center conducted a forensic interview of complainant. During the interview, complainant described the following sexual abuse by appellant from approximately the summer of 2007, when complainant was ten, through January 2011, when she was fourteen.2 When complainant was ten, appellant grabbed her breast while her mother was away. Then, during the next year, he took her into a closet and tried to get her to sit on his penis. When she stood up and said that it hurt, he laid her on the floor and penetrated her vagina with his penis, causing her to have pain and bleed. He then told her “you started your period or you aren't a virgin anymore.” On another occasion, appellant told her to kiss his penis and then grabbed her head and pushed his penis into her mouth but stopped when she gagged. Detective Cardenas relayed this instance in the singular but also averred that complainant said it occurred when she was “13 years and 14 years old,” indicating there were multiple instances and the above was an example. Another time, appellant performed oral sex on complainant by placing his mouth on her vagina. On another occasion, appellant had complainant watch a pornographic movie; when she told him she did not want to, he let her turn around but had her perform oral sex on him while he watched the movie. On many occasions, “clear stuff” came out of appellant's penis which sometimes he wiped on a napkin and sometimes was in complainant's mouth. Although Detective Cardenas detailed certain instances of sexual activity, she also averred that complainant said the activity occurred about every other day and “whenever [appellant] had a chance” and would sometime stop and then start again.
Detective Cardenas further averred that complainant told the interviewer that appellant took photographs of her naked body with a Verizon Droid slider phone and a digital camera (the same model as her mother's). On one occasion, appellant set up a camera with a timer and had her lay on top of him while they were both naked and he put his penis between her legs. He got up several times to do “something” with the camera and then had intercourse with her. There were three different times when appellant placed the camera on the stand and had her perform sexual acts. At some point after January 2011 (the date of the last abuse), appellant sent complainant a Yahoo instant message stating he was “playing” with himself and a photo of his penis.
According to the affidavit, complainant's mother reported that she and appellant both had a Canon digital camera, and complainant and her mother both said appellant owned a laptop computer. The mother said appellant would not allow anyone to use his laptop and he took it everywhere whether he was in his personal vehicle or work van. Detective Cardenas observed both vehicles on July 20, 2012 at the house for which the warrant was sought, and the personal vehicle was registered to that address.
Detective Cardenas then set forth, based on her training and experience and conversations with more experienced investigators, general habits of persons with a sexual interest in children and child molesters, including the following: (1) they collect and use sexually explicit photographs and videotapes of children, including those with whom they have engaged in sexual activity, for a variety of purposes, including their own sexual stimulation, demonstrating the desired acts to the children, blackmailing the children, and sharing with others with similar proclivities; (2) if such a person possesses a photograph of a child naked, there is a high probability the child was molested around the time of the photo because posing the child is a great sexual stimulus for the person; (3) such persons use hard drives, CDs, floppy disks, and flash drives for viewing and exchanging materials via computer and use the internet for communicating with others with similar proclivities; (4) they likely keep materials in the home so that they have privacy when viewing; and (5) they rarely dispose of the materials and treat them as “prized possessions.” Thus, Detective Cardenas concluded that the items for which she sought a warrant would constitute evidence of the offense.
A magistrate signed a search warrant, authorizing seizure of those items. Officers seized laptop computers, a camera, a flash drive, DVDs, cellular phones, an Ipod touch, and computer accessories. An analysis revealed that one laptop contained numerous photographs of appellant and complainant engaged in sexual acts and other pornographic photographs of complainant.
Appellant was indicted for continuous sexual abuse of a young child. Appellant filed a written motion to suppress all items seized, any statements he made at the time of the search, and any testimony of officers regarding such items or statements. The State filed a response. The trial court denied the motion after considering the written pleadings. Appellant then pleaded guilty, without a plea agreement. After hearing evidence on punishment, the trial court sentenced appellant to forty-five years' confinement and certified his right to appeal the pretrial ruling.
In seven issues, appellant contends the trial court erred by denying the motion to suppress because the search warrant was invalid. Appellant's issues all present various reasons that purportedly there was no probable cause established by affidavit to support issuance of the warrant.
The United States and Texas constitutions provide that no search warrant shall issue except upon probable cause as supported by an oath or affirmation. See U.S. Const. amend. IV
; Tex. Const. art. I, § 9. Similarly, the Texas Code of Criminal Procedure provides that no search warrant shall issue except upon an affidavit establishing probable cause. See Tex. Code Crim. Proc. Ann. art. 18.01(b) (West Supp.2015).
We normally review a trial court's decision on a motion to suppress under a bifurcated standard, giving almost total deference to the trial court's findings of historical facts but reviewing de novo its application of the law to the facts. State v. McLain, 337 S.W.3d 268, 271 (Tex.Crim.App.2011)
. However, when the trial court is determining probable cause to support 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 reviewing the magistrate's decision to issue a warrant, we apply a highly deferential standard because of the constitutional preference for searches to be conducted pursuant to a warrant. Id. As long as the magistrate had a substantial basis for concluding probable cause existed, we will uphold the magistrate's decision. Id. We may not analyze the affidavit in a “hyper-technical manner” and instead should interpret it in “a commonsensical and realistic manner,” deferring to all reasonable inferences that the magistrate could have made. Id. “Probable cause exists when, under the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found at the specified location.” Id. at 272.
In his first issue, appellant contends the trial court improperly considered evidence outside the four corners of Detective Cardenas's affidavit.
In this regard, the record reflects that the trial court began a hearing on the motion to suppress. The State then asked to go off the record. Eventually, the trial court resumed the hearing on the record but moved to appellant's motion to reduce bond. Thus, the record omits any discussions at that point concerning the motion to suppress. During the hearing on the motion to reduce bond, the State offered Detective Cardenas's file which...
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