Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 1/26/2015 1:17:55 PM JEFFREY D. KYLE Clerk THIRD COURT OF APPEALS 1/26/2015 1:17:55 PM JEFFREY D. KYLE 03-14-00090-CR AUSTIN, TEXAS *1 ACCEPTED [3897104] CLERK
Rosemary Lehmberg Travis County District Attorney P.O. Box 1748 Austin, Texas 78767 Telephone: 512-854-9400 Fax: 512-854-9695
January 26, 2015
Jeffrey D. Kyle, Clerk
Third Court of Appeals
P.O. Box 121547
Austin, Texas 78711
RE: Appeal No. 03-14-00090-CR
StateofTexasv.PaulAhern
Trial Court Cause No. D-1-DC-10-100006 299th Judicial District Court
To the Honorable Third Court of Appeals:
Now comes the State of Texas and moves for permission to file this letter brief in response to the appellant’s reply brief.
The appellant argues that the State’s assertion that the "appellant's account was implicated in three formal complaints for uploading
hundreds of child pornographic images" was unsupported in the
affidavit. Reply Brief at 7. To show this, the appellant argues that
“Sgt. Padron confirmed that there were onlytwo images of child
pornography out of the two hundred fifty one images.” Appellant’s Reply
Brief at 8, emphasis added. The appellant also claims that “.008% of
the images [were] verifiableimages of child pornography.” Appellant’s
Reply Brief at 9, emphasis added. But, Padron does not she say that
she considered and excluded all of the other reported images as being
child pornographic nor does she say any of the remaining images were
unverifiable. Instead, she says that she “personally viewed the images
of child pornography possessed and promoted by the suspected party
and [that she] believes the images depict visual material that visually
depict children younger than 18 years of age at the time the images of
the children were made who are engaging in sexual conduct.” [1] 6 RR 13.
The State agrees that the affidavit does not itemize or describe more than two of the reported “images that contained child pornography,”
1 Although the legal inquiry is limited to “the four corners of the affidavit,” it is worth
noting that at the hearing on the motion to suppress evidence, Sgt. Padron testified that
the upload of November of 2008 consisted of 200 uploaded files, “and of them, [the
National Center for Missing and Exploited Children] said at least seven appear to contain
child pornography. And they usually take a sampling. They don't go through the whole
thing. That's where our -- we go through and see the files and then we determine how
many.” 2 RR 83. Padron wasn’t asked the total number of the reported uploaded images
that contained child pornography but after the search was executed, forensic analysis
turned up 192 images of child pornography, two videos, 62 images of “possible child
pornography” and an additional 172 images of “child erotica.” 2 RR 86.
and for that reason argued “The fact that the appellant’s account was
implicated in three formal complaints for uploading hundreds of child
pornographic images was entitled to some consideration in the
magistrate’s evaluation of probable cause along with the upload of the
two images that were actually verified to be child pornography.” State’s
Brief at 23.
In sum, because the appellant’s IP address was reported three times for uploading a combined total of 251 images “that contained child
pornography,” it is reasonable to say that "appellant's account was
implicated in three formal complaints for uploading hundreds of child
pornographic images."
Prayer The State prays that this Court grant permission to file this letter brief.
Respectfully submitted, /s/RosaTheofanis
Rosa Theofanis
Texas Bar No. 24037591 Assistant District Attorney District Attorney’s Office P.O. Box 1748
Austin, Texas 78767 *4 Phone: 512.854.9400 Fax: 512.854.9695
Email: Rosa.Theofanis@traviscountytx.gov AppellateTCDA@traviscountytx.gov Certificate of Compliance and Service I hereby certify that this brief contains 487 words. I further certify that, on the 26th day of January 2015, a true and correct copy of this
brief was served, by U.S. mail, electronic mail, facsimile, or
electronically through the electronic filing manager, to the defendant’s
attorneys, Kristin Etter and David González, Sumpter & González, 206
E. 9 th St., Suite 1511, Austin, Texas, 78701, <Kristin@sg-llp.com>,
<david@sg-llp.com>.
/s/RosaTheofanis
Rosa Theofanis
Assistant District Attorney