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Murray v. State

Court of Appeals of Texas, Fourth District, San Antonio

June 21, 2017

Allen John MURRAY, Appellant
v.
The STATE of Texas, Appellee

         From the 399th Judicial District Court, Bexar County, Texas Trial Court No. 2014CR5283 Honorable Ray Olivarri, Judge Presiding

          Sitting: Karen Angelini, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice

          OPINION

          Irene Rios, Justice

         Introduction

         Allen John Murray was convicted by a jury of compelling prostitution. To support this conviction, the State introduced into evidence pictures, private messages, and other electronic data from a Facebook account assigned to Murray. On appeal, Murray contends: (1) the affidavit supporting the search warrant did not establish probable cause to search Murray's Facebook account because it did not demonstrate the reliability of the informant or source of information; and (2) the evidence the trial court admitted from the Facebook account was not properly authenticated. We affirm the trial court's judgment of conviction.

         Facts

         This case arose based upon an outcry statement made by C.J., a 13-year-old girl, in which C.J. alleged she met Allen John Murray after she ran away from home. C.J. claimed Murray took pictures of her and posted them on his Facebook page to advertise her for sex. C.J. stated that at least three men came to Murray's house, gave money to Murray and engaged in sexual intercourse with her. After two days, C.J. left Murray's house and returned to her grandmother's home; however, she then stole her grandmother's car and ran away again. C.J. was eventually arrested and taken to the Bexar County Juvenile Detention Center where she made the outcry statement to a juvenile detention officer. A state trooper from the Department of Public Safety (DPS), conducted an investigation and prepared an investigative report of his findings. The report stated the officer's observation of a Facebook page assigned to Murray, as it appeared to the general public, confirmed the presence of sexually provocative pictures of C.J., and these pictures were attached to the report.

         Subsequently, Jonathan Brown, a Texas Peace Officer assigned as an investigator with the Bexar County District Attorney's Office, executed an affidavit to obtain a search warrant of Murray's Facebook account, profile, and private messages based upon the information provided by C.J. to law enforcement and the DPS officer's investigative report. The magistrate issued a search warrant.

         As a result of this investigation, the State charged Murray in a four-count indictment with trafficking of a child and compelling prostitution. During trial, the prosecution introduced evidence of the pictures of C.J. that appeared on the Facebook page assigned to Murray, as well as private messages received and written pertaining to C.J. through the Facebook account. A jury acquitted Murray of three counts and returned a guilty verdict on one count of compelling prostitution. Murray now appeals.

         Analysis

         Issue One: Probable Cause for a Search Warrant

         In his first issue, Murray argues the trial court abused its discretion by denying his motion to suppress evidence obtained as a result of the search warrant. Murray contends the affidavit supporting the search warrant did not contain sufficient facts to establish probable cause to search Murray's Facebook account. Specifically, Murray asserts Officer Brown attested to information provided by C.J. through other law enforcement officers, but failed to verify the information or otherwise establish C.J.'s reliability. Therefore, the affidavit is based solely upon hearsay and cannot establish probable cause to issue a search warrant of Murray's Facebook account.

         A search warrant must be supported by an affidavit which sets forth substantial facts establishing probable cause for its issuance. See Davis v. State, 27 S.W.3d 664, 667 (Tex. App.- Waco 2000, pet. ref'd); Mayfield v. State, 800 S.W.2d 932, 934 (Tex. App.-San Antonio 1990, no pet.). Probable cause to support the issuance of a search warrant exists when the totality of the circumstances presented to the magistrate in the affidavit are sufficient to justify a conclusion that evidence of the specified crime, or the object of the search, is probably in a particular place. Davis, 27 S.W.3d at 667; Gonzales v. State, 481 S.W.3d 300, 306 (Tex. App.-San Antonio 2015, no pet.). To satisfy this standard, there must exist at least a fair probability or substantial chance that evidence of a specific crime will be found in the place, person or thing to be searched. Rodriguez v. State, 232 S.W.3d 55, 60-61 (Tex. Crim. App. 2007); Gonzales, 481 S.W.3d at 306. While only the four corners of the affidavit may be examined to determine whether probable cause exists, reasonable inferences may be drawn from the affidavit, and it must be interpreted in a commonsense and realistic manner. Gonzales, 481 S.W.3d at 306.

         The reliability of the affiant and his sources of information are part of the totality of the circumstances that the magistrate should evaluate in making a probable-cause determination. Johnson v. State, 803 S.W.2d 272, 289 (Tex. Crim. App. 1990), cert. denied501 U.S. 1259, overruled on other grounds by Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991). However, "where a crime victim, who is a private citizen, reports the commission of a criminal offense, and whose only contact with law enforcement authorities is a result of having been victimized at the hands of another, the credibility and reliability of the information is inherent." Nelson v. State, 855 S.W.2d 26, 30 (Tex. App.-El Paso 1993, no pet.). Therefore, in making a probable-cause determination, a magistrate is entitled to rely on source information supplied by a victim eyewitness without an independent showing ...


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