### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-15-00695- CR NO. 03-15-00696- CR

Justin Michael John son, App ellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 147 TH JUDICI AL DISTRICT

NOS . D-1 -DC- 13- 3003 32 & D-1 -DC- 13- 3003 33 HO NORAB LE CLIF F ORD A. B ROW N, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

J ustin Michael J ohnson was charg ed with attempted agg rava ted ki dnapping in two differ ent ca

uses. See Tex. P enal Code §§ 15.01( a) (stating that “[a] per son commits an offense if, with specific intent to commit an offe nse, he does an act amounting to more than mere prepa ration that tends but fails to eff

ect the commission of the offe nse intended” and that “[i] f a person attempts

an offe nse that may be ag g ra v at ed , h is conduct constitutes an attempt to commit the ag g rava ted offe nse if an element that ag g rava tes the offe nse acc ompanies the attempt”), 20.04(a) (4) (providing that person commits ag g rava ted kidnapping “if he intentionally or knowing ly abducts a n o ther person with the i ntent to . . . inflict bodily injury on him or violate or abuse him sexually ”). Specifica lly , the two indictments alleg ed that J ohnson “did then and there with the specific intent to commit the offe nse of Ag g rava ted Kidnapping of” sisters M.N. and K. N. , comm it acts “to wit: followed andg rabbe d [M.N.] and cov er ed h er mouth” and “followe d and g rabbe d” K.N., “which amounted to

more than mere prepa

ration that tended but failed to eff ect the commission of the offe nse intended.” Prior to trial, J o h n s o n fi led a motion to suppress evidenc e obtained from items seized from his home. After convening a hear ing on the motion and considering the arg uments made by both sides, the mag istrate rec ommended that the motion to suppress be denied. Following the mag istrate’s

rec ommendation, the district court signe d an order adopting the mag istrate’s rec ommendation. At the end of the g uilt-or-innoce nce phase of the trial, the jury found J ohnson g uilty of both attemptedag g rava ted-kidnapping char g es. After the jury rea ched its verdic ts, the district court sen tence d J ohnson to twenty y ear s’ imprisonment for both char g es and rende red its judgme nts of conviction. See id. §§ 15.01(d) (stating that offe nse of criminal attempt “is one cate g ory lower than the offe nse attempted”) , 20.04(c) (providing that offe nse of ag g rava ted k i d n ap p i n g “is a felony of the first deg ree ”); see also id. § 12.33 (setting out permissible punishment rang e for second- deg ree felony ). I n a single issue on ap p ea l , J ohnson asser ts that the district court err ed by deny ing his motion to suppress. We will affir

m the district court’s judg ments of conviction.

BACK GR OUND During the trial, the jury hear d evidenc e reg arding an encounte r that M.N. and K.N. had on their way to school and reg arding the s ubsequent inv estig ative efforts by law-e nforc ement

o ff i ci als. Specifica lly , M.N. and K.N. wer e approa ched by a man who neither of them knew an d who was wea

ring a gra y hoodie cover ing his head. During the encounte r, the man g rabbe d both g irls. Ultimately , the g irls got a way from the man and ran to school. Once the g irls arrive d at the school, school officia ls called the police to re p o rt what had happene d. After rec eiving a tip from

2an anony

mous source , afte r revie wing surveillance footag e, and afte r compar ing a composite sketch of the assailant to J ohnson’s driver’ s license photo, the investiga ting office rs went to J ohnson’s home to talk with him and to ask him to drive to the police station for an i n t er v i ew , and J ohnson ag ree d. Acc ording to the testimony from one of the interviewing office rs, J ohnson admitted during the interview that on the morning in question, he had seen th e gi rl s an d t h at he intended to harm them. Ultimately , the offic ers obtaine d an ar rest wa rra nt, and J ohnson was plac ed under arr est. I n addition to apply ing for an arr est war rant, the office rs also prepa red sear ch-w arr ant aff idavits for two differ ent sear ch war rants perta ining to this appea l. The first aff idavit was prepa

red by Detec tive B. Makeba L ewis and reque sted permission to se arc h J ohnson’s home. I n particula r, Detec tive L ewis wanted to sear ch J ohnson’s home for the following evidence: “1

. hooded swea t shirt, swea t pants, shoes” [and] 2. Electronic device s, g aming consoles, computers.” I n the aff idavit, Detec tive L ewis rec ounted the offe nse d escribed above as well as the incriminating evidenc e agai n st J ohnson, including the admissions made by J ohnson during his interview with the police, and De t ective L ewis also mentioned in the aff idavit that during J ohnson’s interview with the p o l i ce, he stated that “af

ter the incident he went home and spent the rema inder of his day on l i n e t al k i ng to various individuals while play ing multipl ay er internet g ames.” I n light of J o h n s o n ’s
statement reg arding his activities afte r the alleg ed offe nse, Detec tive L ewis explained in the aff idavit that the elec tronic device s, g aming consoles, and computer s at J ohnson’s home “may contain information corr oborating

. . . J ohnson’s confe ssion.” Upon revie wing the sear ch-w arr ant aff idavit, the revie wing judge issued the sear ch war rant, and the office rs retrie ved from the home a g ray hooded swea tshirt, an iPhone, thumb drives, an X-box console, a camc order , two laptops, a desktop

3computer, a power cord, and a trash bag containing swea t pa nts. Once the items w ere seized, they

wer e plac ed into the custody of the Pflug erville police depar tment. After the it e ms w e r e s e iz e d , a new sear ch-w arr ant aff idavit was prepa

red by Detec tive Tricia Mirabelle and reque sted the authority to perf orm a “forensic examination or search” on the computers, storag e media, and communication device s in the possession of the police depar tment’s evidenc e custodian. I n the affidavit, De tective Mirabelle ex plained that J ohnson confe ssed t o the crime of attempted ag g rava ted kidnapping , expressed interest in hurting M.N. and K.N., stated that he has uncontrollabl e s ex ual urg es reg arding fema le children, and rela ted “that he play s online video g ames which historically have been used by people with these sexual urg es, to make contac t with, communicate with, and entice children.” Fur ther, Detec tive Mirabelle specifie d that it was her belief t h at J ohnson possessed or conce aled in the computers, storag e media, and communications device s “evide nce of” or “evide nce tending t o s h o w” “the offe nse of Attempted Ag g rava ted Kidnapping ” and that “[i] t is believed that internet sear ches may have been conducte d in reg ards to locating are as wher e children cong reg ate, the abduction o f another person or the disposal of a body or destruction of evidenc e. Ba sed upon Affia nt’s knowledg e, training and experience , it is not

uncommon for an offe nder to conduc t s u ch s ear ches on the internet.” Acc ording ly , Detec tive Mirabelle reque sted permission to sear ch fo r “I nterne t sear ches or communications

. . . reg arding abducting children, f

antasies or

desires a bout children, body disposal a nd destruction of e vidence , l ocating schools or parks or other are as wher e children would meet or cong reg ate” ; for “Int er n et

sear ches or communications

. . . with children” ; for “[c]omm unication[s] with children via internet video gaming ”; for “communica tion[ s] rela ted t o chil d re n ”; and for “any other data, files, vi deos, audios , photos, documents, rec ords, communications rela ted to the criminal offe nse of attempt ed 4ag g rava

ted kidnappin g. ” Upon revie wing the aff idavit, the mag istrate issued the sear ch war rant authorizing the investiga ting office rs to take possession of the items listed above and to sear ch those items in the manner r equeste d. 1

Following his arr est b u t b ef ore trial, J ohnson filed a motion to suppress phy sical evidenc e obtained from his home during the sear ch. I n his motion, J ohnson arg ued that the initial 2

sear ch “wa

rra nt was issued without probable cause ,” which violated his cons ti tutional rig ht to be fre e from unrea sonable sear ches and seizures. See U.S. Const. amends. I V, XI V; Tex. Const. art. I , § 9; see also Tex. Code Crim. P roc. a rt. 38.23(a) (providing that evidenc e obtained in violation of law will not “be admitted in evidenc e aga i n s t t h e accused on the trial of any criminal case ”). I n an

acc ompany ing brief in support of hi s motion to suppress, J ohnson ag ain urg ed that the initial

sear ch war

rant was unlawful and then asser ted t h at t he err or could not have been cure d throug h the issuance of the second sear ch war rant. I n parti cu l ar , alt houg h J ohnson rec og nized that the independe nt-source doctrine allows the admission of evidenc e that wa s initially illega lly sear ched

A third sear ch-w arr ant aff idav i t wa s p repared afte r a sear ch of some of the seized items 1 reve aled what seeme d to be child pornog raphy

. Upon finding those imag es, an aff idavit was made a s k in g f o r p e r mi s s io n to s e a

r c h th e s e iz e d it e ms f

o r e v id e n c e o f c h il d p o r

n o g r a p h y , a n d th e r e v ie w in g mag istrate issued a sear ch war rant for that purpose. When ruling on J ohnson’s motion to suppress, the district court adopted the mag istrate’s rec ommendation that the i t em s s eized “we re lawfully sear ched for evidenc e of possession or promotion of child pornogra phy .” J ohnson does not challeng e that dete rmination on appea l. Be fore J ohnson filed the motion to suppress phy sical evidenc e, J ohnson filed two motions 2 to suppress asking the district court to suppress statements that he made to the police and to suppress evidenc e taken from his home and truck. Essentially , J ohnson arg ued that he was in custody when he made the incriminating s t at em ents but had not been Mirandized and, acc ording ly , urg ed the district court to suppre s s t h o s e s tatements and the evidence seiz ed as a result of t hose st atements. The district court denied those m o t i o n s t o s uppress. I n his appellate briefing , J ohnson does not challeng e the district cour t’s ruling s on those motions.

5by the police provided that the police perf orm a subsequent leg al sear ch that is independe nt from the initial illega l sear ch, see Silverthorne Lumber Co. v. United Stat es , 2 5 1 U.S. 385, 392 (1920); W ehrenb er g v. S tate , 416 S.W .3d 458, 469 (Tex. Crim. App. 2013), he urg ed that the doctrine did not apply in this case beca use the second sear ch was based on information obtained t h roug h the first illeg al sea

rch. After revie wing the par

ties’ ar g uments and af

ter convening sever al hea ring s on the motion to suppress, the mag istrate issued a pr oposed re commendation that the motion to suppress be denied, and the district court adopted the rec ommendation and finding s made by the mag istrate. Reg arding the first sear ch, the mag istrate explained that “[t] here is no chain of logic in the aff idavit

as to why the office r thought the computer and other elec tronics would corr oborate the confe ssion” but stated further that “the mag istrate could have inferr ed there was a fair probability of there being statements by defe ndant [ af t er t h e incident] rela ting to the i ncident to be found on computers and cellular phones in the house, or evidenc e of communications which may have led to evidenc e of such communications” beca

use “people commonly rema rk upon ex citing or upsetting events that have just occur

red, even if in veiled terms” and beca u s e “[ i ] t is commonly known that computers and cellular phones can all connec t to t h e i n t er n et and it would have been reasona ble t o infer that any such device s may contain rec ords of conver sations or other interac tions, or text conver sations messag es themselves, which occur red on the same day as the alleg ed crime.” I n summary , the 3 mag istrate found that “the war rant application provid ed p robable cause , and the sear ch war rant

When J ohnson’s home was initially sear ched, the police seized a condom, a flashlig ht, and a 3 g ree n bag

. I n his proposal, the mag istrate noted that the State “ag ree s that the condom, the flashlig ht, and the g ree n bag wer e bey ond the scope of the wa rra nt.” 6itself sufficie ntly descr ibed the proper ty to be seized, for the iPhone” and the computers but “did not provide sufficie nt probable cause to seize the

. . . 3 thumb drives, X-box controller, camc order , and Therma l Take/Power

Cord.” Re g a r d in g th e s e c ond sear ch war rant, the mag istrate initially poin te d o u t th a t a lt h o u g h the items wer e s eized under the first war rant, no sear ch was perf

ormed until the second war rant

was issued. Fur

ther, althoug h the mag istrate acknow ledg ed that the second aff idavit “informe d the mag istrate considering the warrant applications o f wh er e the property was located, as require d by law, and the additi onal fact of having be en seized pursuant to a search warr ant,” “[n] othing in the application ref

err ed to any

thing which was derive d from the seizure an d p o s s es sion of the items. The fac t of the items having been seized pursuant to a previous war rant did not add any

thing to the probable cause and would not have influence d the m ag istrate’s determination of probable cause.” Moreove r, t he mag istrate explained that the police w ould have soug ht the second warr ant any way and “intended to se ek permission to se arc h the items; that was the whole point of the seizure. The second war

rant was simply a better considere d application, without the pressure to a ct quickly lest evidenc e be destroy ed or moved.” Acc ording ly , th e m agi s trate deter mined that the independe ntsource doctrine was applicable in this case and that the iPhone, the computers, the “3 thumb drives, X-box controller, ca

mcorde r, (a

nd Therma l Take/Power

Cord)[] wer e lawf

ully sear ched.” On appe al, J ohnson challeng es the de nial of his motion to s uppress.

GOVERN ING LAW AND STANDARD OF REVIEW Appellate courts revie w a trial court’s ruling on a motion to suppress fo r an ab u s e of d i s cr eti on. Arguellez v. State , 409 S.W .3d 657, 662 (Tex. Crim. App. 2013). Under that

7standard, the rec ord is “viewe d in the light most favor able to the trial court’s deter mination, and the judgme nt will be reve rsed only if it is arbitra ry , unrea sonable, or ‘outside the zone of rea sonabl e disag ree ment.’” State v. Story , 445 S.W .3d 729, 732 (Tex

. C ri m . App. 2014) (quoting State v. Dixon , 206 S.W .3d 587, 590 (Tex. Crim. App. 2006)); see also State v. Robinson , 334 S.W .3d 776, 778 (Tex. Crim. App. 2011) (noting that appellate courts “view t he evidenc e in the light most favor able to the” trial co u rt ’s ruling ). I n g ener al, appellate courts apply “a bifurcated standard, g iving almost total defe renc e to the hi storical facts found b y t he trial court and analy zing de novo the trial court’s applicat i o n of the law.” See State v. Cuong Phu Le , 463 S.W .3d 872, 876 (Tex. Crim. App. 2015); see Arguellez , 409 S.W .3d at 662 (explaining that appellate courts aff ord “almost complete defe renc e . . . to [a tr ial court’s] deter mination of historical fac ts, espec ially if those are based on an assessment of cre dibilit y and demea nor”)

. “Howe ver, when ruli ng on a motion to suppress evidenc e obtained pursuant to a se arc h war rant, a trial court is limited to the four corne rs of the aff i d av i t s upporting the war rant and thus makes no fac tual or cre dibilit y deter minations.” Robinson v. State , 368 S.W .3d 588, 598 (Tex. App.— Au s tin 2012, pet. ref ’d); see also State v. McLain , 337 S.W .3d 268, 271 (Tex. Crim. App. 2011 ) (not ing that when trial court determines i f there is pr obable cause to issue sear ch war rant, trial court is “ constraine d to the four corne rs of the aff idavit”). “This standard require s both trial and appellate courts to b e h i gh l y defe rential to a mag istrate’s decision to issue a sear ch war rant, ref lecting the constitutional pref ere nce that sear ches be conducte d pursuant to a war rant.” Robinson , 368 S.W .3d at 598. “While our revie w is limited
t o the four corne rs of the aff idavit, we interpre t the aff idavit in a ‘commonsensica l and re al i s t i c

manner , rec og nizi ng that the mag istrate may draw rea sonable infere nces.’ ” Id. (quoting Rodriguez

8v. State , 232 S.W .3d 55, 61 (Tex. Crim. App. 2007)). “Review ing courts must de termine whether

th e ma g is tr a

te h a d a s u

b s ta n ti a l b a s is f

o r c o n c lu d in g

th a t p r o b a b le c a u s e e xis te d

. ” I

d

. I n a d d it io n , a trial court’s ruling on the motion will be upheld if it is corr ect under any theory of law applicable to th e c a s e r e g a

r d le s s o f w

h e th e r th e tr ia l c o u

r t b a s e d it s r

u li n g o n th a

t th e o r y . S to r y , 4 4 5 S. W. 3 d a

t 7 3 2

.

DISCUSSIO N I n h i s s o l e issue on appea l, J ohnson contends that the district court err ed when it denied his motion to suppress the evidenc e seized under the first sear ch wa rr ant. I n particula r, J ohnson asser

ts that the district court’s rea so n i n g that the mag istrate issuing the war rant “‘c ould have inferr ed that there was a fair probability of there being statements by defe ndant rela ting to the incident to be found on computers and cellular phones in the house, or evidenc e of communications which may have led to evidenc e of such communi cations’” “is leg ally inadequa te t o . . . conclude that true probable cause exis ts” beca use it could not allow someone “to confide ntly acc ept the notion that it was more likely than unlikely that there would be comments or conver sations on the elec tronic device s.” Fur

ther, J ohnson urg es that it is not clea r “whe ther elec tronic device s such as computers more ofte n than not contain statements or comments sug g esting culpability ” in c ases analog ous to this one. Simi larly , J ohnson contends that the mag istrate’s explanation that the device s at issue “may [have] contain[ed] rec ords of conver sations or other interac tions” could not support a deter mination that adequate probable cause to seize the reque sted items exis ted when the first war rant was issued. Be fore addre ssing the issue on appea l, w e note that afte r setting out the standa rd of revie w, J o h n s o n fa i l ed to cite to any authority in the arg ument section of his brief to support his arg uments on appea l. See Tex. R. App. P. 38.1(i) (re quiring appellant’ s brief to contain appropr iate

9citations to authorities); Garcia v. State , 919 S.W .2d 370, 396 (Tex. Crim. App. 1994) (explaining

that failure to cite authority s u p p o rting arg ument on appea l prese nts nothing for appellate court to review ). I n any event, even assuming t h at t h e aff idavit for the first sear ch war rant failed to establish probable cause , J ohnson does not challeng e the district court’s alterna tive co n cl usion that the sear ch and seizure of the computers, cell phone, and storag e device s was proper u n d er the second sear ch war

rant beca use the in d ep en d ent-sourc e doctrine applied. See W ehrenbe rg , 416 S.W .3d at 465-70 (settin g o u t s cope of doctrine)

. “An appellant

. . . must challeng e all independe nt bases or g rounds that fully support a judgme nt or appea lable order .” See State v. Hoskins , No. 05-13-00416- CR, 2014 WL 4 0 9 0129, at *2 (Tex. App.—Dallas Aug

. 19, 2014, no pet.) (not desig nated for publication); see also State v. Copeland , 501 S.W .3d 610, 613 (Tex. Crim. App. 2016) (noting when revie wing trial court’s ruling on motion to s u p p re s s t h at “[a] ‘theory of law’ is applicable to the case if the theory was prese nted at trial i n s u ch a manner that the appellant was fairly called upon to pr esent e vidence on the i ssue” and stating that “[i] f t he appellant fails t o arg ue a ‘theory of law’ applicable to the case on appea l, that arg ument is forf eited”) ; Marsh v. State , 343 S.W .3d 475, 479 (Tex. App.—Texarkana 2011, pet. ref’d) ( providing that “if the tria l court’s ruling can be sustained on an independe nt g round the appellant must challeng e all of the g rounds on appea l”). “I f even one independe nt g round fu l l y s u p p orts the complained- of ruling or judgme nt, but an appellant does not assig n err or to that independe nt g round, we m u s t ac ce p t the validity of that unchalleng ed independe nt g round, an d t h u s any err or in the g rounds challeng ed on appea l is harmless beca

use the unchalleng ed independe nt g round fully supports the complained- of ruling or

10judgme nt.” Hoskins , 2 0 1 4 W L 4 0 9 0129, at *2; see also Johns v. State , No. 14-11-00420- CR,

2012 WL 1899195, at *8 (Tex. App.—Houston [14t h Dist.] May 24, 2012, no pet.) (mem. op., not desig nated for publication) (stating that “[b] y failing to challeng e and adequately brief the basis for the trial court’s ruling , appellant cannot demonstrate t h at t h e t rial court abused its discretion in

a d mi tt in g th e v id e o in

te r v ie w in to e v id e n c e ” ) ; S

ta te v . A v il e s , N o . 1 0

- 0 7

- 0 0 3 7 1

- CR , 2 0 0 8 WL 9 7 6 9 5 5 , at *1-2 (Tex. App.—Waco Apr. 9, 2008, no pet.) (mem. op., not desig nated for publication) (deny ing State’s challeng e to order suppressing evidenc e b eca use State failed to challeng e eac h g round for trial court’ s ruling)

.

For all of these r easons, we overr ule J ohnson’s issue on appe al.

CONCLUSION Having overr

uled J ohnson’s sole issue on appea l, we af fi rm the district court’s judgme nt of conviction.

__________________________________________ David Pury ear , J ustice Be fore J ustices Pury ear , Pemberton, and G oodwin Affir med Filed: Apr il 12, 2017 Do Not Publish

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