Michael Edward McCasland v. The State of Texas--Appeal from 18th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-05-00432-CR

Michael Edward McCasland,

Appellant

v.

The State of Texas,

Appellee

From the 18th District Court

Johnson County, Texas

Trial Court No. F38973

MEMORANDUM Opinion

Appellant, Michael Edward McCasland, was indicted on four counts of sexual assault of a child, four counts of indecency with a child, and four counts of possession of child pornography. McCasland pled not guilty but was convicted by the jury on all twelve counts. After a punishment hearing, the jury assessed punishment at 20 years on counts one, three, four, and eight; 15 years on counts two, five, six, and seven, and 10 years on counts nine, ten, eleven, and twelve. The trial court cumulated the first eight counts for a total of 140 years confinement in the Texas Department of Criminal Justice-Institutional Division. McCasland brings two issues on appeal.

Background

McCasland moved in with his cousin, Ken, in 2002 or 2003 and lived with him and his family for four to six months. During that time, he became acquainted with Ken s fourteen-year-old daughter, Rita.[1] McCasland then moved in with Ken s mother in a two-bedroom home in Burleson, Texas. Rita frequently visited her grandmother on the weekend. She and McCasland continued their friendly relationship for approximately one month before he began kissing and touching her inappropriately. During the summer of 2003, McCasland s advances towards Rita escalated from digital penetration to sexual intercourse.

In June of 2003, Rita also witnessed McCasland engage in sexual conduct with her fifteen-year-old friend, Karen, who spent a weekend with Rita at McCasland s home. On two separate occasions during that visit, McCasland digitally penetrated Karen and performed oral sex on her.

On April 12, 2004, while using McCasland s computer, Rita discovered child pornography on websites he had visited. She told her mother about the child pornography and about her sexual relationship with McCasland. Rita s father contacted the Burleson Police Department, and Rita met with Tammy King, a child abuse forensic interviewer with the Johnson County Child Advocacy Center, the following day.

Based on the information obtained from his investigation and from King s interview of Rita, Chris Havens, a sergeant detective with the Burleson Police Department, prepared an affidavit to secure a search warrant of McCasland s home. A magistrate reviewed the affidavit and issued the warrant. Havens and other law enforcement officers executed the warrant and seized McCasland s computer, video tapes, and other related items which they suspected contained child pornography.

Motion to Suppress Evidence

In his first issue, McCasland argues that the trial court erred in denying his motion to suppress. He contends that the affidavit on which the warrant was issued does not establish probable cause that the items to be searched for were probably at the location. McCasland further argues that all evidence seized pursuant to the search warrant should have been suppressed.

Whether probable cause exists to support the issuance of a search warrant is determined from the four corners of the affidavit alone. Massey v. State, 933 S.W.2d 141, 148 (Tex. Crim. App. 1996). When an appellate court reviews this type of question [mixed questions of law and fact when the resolution of those questions does not turn on an evaluation of credibility and demeanor], it is in as good a position as the trial court to resolve the issue, and therefore determines the issue independently, or de novo. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). That is, we apply the same standard that the trial court applied when it evaluated the magistrate s decision to issue the search warrant on the basis of the affidavit. Burke v. State, 27 S.W.3d 651, 654 (Tex. App. Waco 2000, pet. ref d); Lane v. State, 971 S.W.2d 748, 752 (Tex. App. Dallas 1998, pet. ref'd).

In determining de novo the issue before the trial court, we do not, however, determine independently, or de novo, if there was probable cause. Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 2331, 76 L. Ed. 2d 527 (1983). The United States Supreme Court strictly prohibits such after-the-fact, de novo scrutiny. Id. Instead, we give great deference to the magistrate s decision to issue the warrant and determine whether, considering the totality of the circumstances, the magistrate had a substantial basis for concluding probable cause existed. Id. at 238-39, 103 S. Ct. at 2332. This deferential standard of review of a magistrate s probable-cause determination promotes the United States Supreme Court s stated policy of preserving the incentive to peace officers to obtain a warrant instead of conducting warrantless searches. Massachusetts v. Upton, 466 U.S. 727, 733, 104 S. Ct. 2085, 2088, 80 L. Ed. 2d 721 (1984); Morris v. State, 62 S.W.3d 817, 821 (Tex. App. Waco 2001, no pet.).

A request for a warrant must be supported by a sworn affidavit that sets out facts sufficient to support a finding of probable cause. Tex. Code Crim. Proc. Ann. art. 18.01(b) (Vernon 2005). Among other requirements, the facts asserted in the affidavit must be sufficient to show that the property or items constituting evidence to be searched for or seized are located at or on the particular person, place or thing to be searched. Id. art. 18.01(c)(3); Massey, 933 S.W.2d at 148. The allegations are sufficient if they would justify a conclusion that the items to be searched for are probably on the premises. Ramos v. State, 934 S.W.2d 358, 363 (Tex. Crim. App. 1996).

The affidavit prepared by Havens stated that he had probable cause to believe McCasland was in possession of child pornography based, in part, on the following:

Rita further stated [to King] that Rita was at McCasland s residence on April 12, 2004. Rita stated that Rita observed a large quantity of child pornography in McCasland s bedroom and on McCasland s computer that was also located in McCasland s bedroom.

Looking at the totality of the circumstances and giving due deference to the magistrate s decision, we find the allegations were sufficient to justify the conclusion that child pornography could be located in McCasland s bedroom and on his home computer. The magistrate had a substantial basis for concluding probable cause existed. Accordingly, McCasland s first issue is overruled.

Admission of Video Tapes

In his second issue, McCasland argues that the State failed to give sufficient notice of its intent to introduce videotapes containing pornography. McCasland filed a Request for Notice of Intent to Offer Extraneous Offenses on October 21, 2005. The State filed such notice on October 24, 2005, and then filed a supplemental notice on October 25, 2005, the day trial began. The State sought to introduce two manufactured videotapes which showed both female adults and children sunbathing topless in Brazil and one homemade pornographic videotape of McCasland and an adult female engaging in sexual acts. McCasland complains that the State failed to give sufficient notice pursuant to Texas Rule of Evidence 404(b) because the notice did not specify that the images were from DVD disks or VHS tapes and the notice did not specifically mention a homemade pornographic tape.

The admissibility of evidence is within the discretion of the trial court and will not be overturned absent an abuse of discretion. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). As long as the trial court's ruling was within the zone of reasonable disagreement, the appellate court should affirm. Id. (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990).

Child Pornographic Tapes

The State s supplemental notice indicated that it intended to introduce evidence that McCasland possessed over 233 images of visual material that visually depicted child(ren) engaging in sexual conduct. Section 43.26(a)(3) of the Texas Penal Code defines visual material as:

(A) any film, photograph, videotape, negative, or slide or any photographic reproduction that contains or incorporates in any manner any film, photograph, videotape, negative, or slide; or

(B) any disk, diskette, or other physical medium that allows an image to be displayed on a computer or other video screen and any image transmitted to a computer or other video screen by telephone line, cable, satellite transmission, or other method.

Tex. Pen. Code Ann. 43.26(a)(3) (Vernon 2003). Sexual conduct is defined as:

Sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola.

Tex. Pen. Code Ann. 43.25(a)(2) (Vernon Supp. 2006).

As the Brazil videotapes seized from McCasland s home contained film or photographs of sexual conduct as defined by section 43.25(a)(2) (i.e., female breasts below the top of the areola), we find that the State s supplemental notice was adequate to put McCasland on notice that it intended to introduce the Brazil tapes. See id.

Adult Pornographic Tape

The State s original notice listed 14 extraneous matters it intended to introduce including the following: [o]n or about April 13, 2004 McCasland was in possession of numerous images of adult pornography. As the video of McCasland engaging in sexual activity with an adult female clearly falls within the meaning of adult pornography regardless of whether it was homemade, we find that the State s notice was sufficient to put McCasland on notice of its intent to introduce the tape into evidence.

Having found that the trial court did not abuse its discretion in admitting the videotapes, we overrule McCasland s second issue.

Conclusion

We affirm the judgment of the trial court.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed February 28, 2007

Do not publish

[CR25]

[1] Rita is the pseudonym used for the alleged victim in the indictment and supporting affidavit.