### Affirmed as Modified; Opinion Filed January 14, 2013.

In The 

## <lrourt of Appeals lJiift}f 

## 1!listrid of Wexas at 1!lallas No. 05-12-00114-CR
ERNEST WILLIAM DIPPLE, JR., Appellant 

## v. THE STATE OF TEXAS, Appellee On Appeal from the 296th District Court Collin County, Texas Trial Court Cause No. 429-81809-10 

### MEMORANDUM OPINION Before"Justices Moseley, Francis, and Lang Opinion By Justice Moseley A jl:JIY convicted Ernest William Dipple, Jr. of aggravated sexual assault ofa**chil~** and acquitted him ofa separate charge ofattempted aggravated sexual assault ofa child. He asserts two issues in this appeal: (1) the trial court abused its discretion by denying his motion to suppress evidence, and (2) thejudgmentshouldbe reformed to remove references to Dipplepayinghis courtappointed attorney's fees.' The State asserts a single cross-point oferror in which it argues the judgment shouldreflectthetrialjudgewastheHonorable KeithDeanratherthanthe HonorableJohn Roach, Jr. Thebackground and facts ofthe case are well-known to the parties; thus, wedonotrecite

1 When he filed this appeal, Dipple also argued the evidence was insufficient to show the alleged offenses were committed in Collin County, Te.us. At oral argument, Dipple waived this issue and we do not consider its merits.them here. Because all dispositive issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.2(a), 47.4. We modify the trial court'sjudgment and affirm the judgment as modified. 

### In his first issue, Dipple argues the trial court erred by denying his motion to suppress incriminating email messages that the State used at trial. We review the trial court's denial of Dipple's motion to suppress for an abuse ofdiscretion, seeMartinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011), giving the trial judge's factual findings "almost total deference" and viewingthe evidence in the light mostfavorable to the trialjudge'sruling, seeState v. Woodard, 341 S.W.3d 404, 410 {Tex. Crim. App. 2011). We review the trial court's legal conclusion de novo unless the trial court's findings offact (which mustbe supportedbythe record) are dispositive ofthe legal ruling. See State v. Kelly, 204 S.W.3d 808,818 (Tex. Crim. App. 2006). Dipple movedto suppress the email messages onthe ground that his girlfriend who gave the emails to the police committed an offense, breach of computer security, by accessing his email without authorization2 and, therefore, the State was prohibited from using the messages. See TEX. CODECRii\1. PROC. art. 38.23 (West2005). Because Dipplechallengedthe admissibilityofthe email messagesunder article 38.23(a), Dipplebears the burdento establishhis girlfriend illegallyobtained the evidence. See Mayfeild v. State, 124 S.W.3d 377, 378 (Tex. App.-Dallas 2003, pet. refd). Dipple was the only witness who testified at the hearing on his motion to suppress. After consideringDipple'stestimonyand the argumentspresentedbycounsel for Dipple and the State, the trial court made the following findings offact. Dipple and Stephanie Blanchard, his girlfriend, lived together and had a child together.

2 Penal code section 33.02(a} states: UA person commits an offense ifthe person knowingly accesses a computer, computer network, or computer system without the effective consent ofthe owner." TEx. PENAL CODE ANN. § 33.02(a} (West Supp. 2012}.


### -2-Dipple and Blanchard shared a computer, which Dipple rented for Blanchard in her name. He had password-protected email accounts with Yahoo! and Plentyoffish and those accounts had the same password. The trial judge stated: "As part oftheir relationship, they apparently had a discussion where Ms. Blanchard said that she would have to have access to the email messages to make the relationship work to develop trust and he allowed

- - Mr. Dipple allowed her to know the password and view the email messages and expressed that he had nothing to hide."3 Therefore, Blanchard had Dipple's "effective consent" to access the computer. Afterreviewing the transcript from the hearing, we conclude the trial court's findings offact
are supported by evidence. Dipple argues Blanchard did not have his consent to access his email accounts. To support this argument, Dipplepointsto histestimonyfrom the suppressionhearing-testimonythe trial court did not include in its findings-that Blanchard was not allowed "general access to [his] email messages, no one otherthanhimselfhad "unlimitedaccess" to his accounts, and Blanchardwas only permitted to view the email messages ifhe was sitting next to her. While Dipple's testimony that Blanchard did not have unlimited orgeneral access to his accounts might support his argument that the email messages should be suppressed, the trial judge was the sole trier of fact andjudge of Dipple's credibility and the weight to be given to his testimony at the hearing on the motion to suppress. See Wiede v. State, 214 S.W.3d 17,24-25 (Tex. Crim. App. 2007). The trialjudge was

3 Dipple testified: "we were together and [Blanchard) was basing ourrelationship on whether she could see the emails or not. And she goes, 'To make this work- -I want to make this relationship work bull don'llruSI you.'" Additionally, when the trialjudge questioned Dipple, Dipple testified: TilE COURT: Okay. So did you give her your password, or would youjust enter the password and let her look at them or both? A. She was silting next to me and I entered the password. TilE COURT: So she knew what your password was? A. Yes, sir. I had nothing to hide, sir. TilE COURT: Okay. B. As far as I knew.


### -3-entitled to disregard this testimony in Dipple's favor. Dipple has notcarriedhis burden to showthe email messages were wrongfullyobtained. His testimony-which the trial court did not credit-that Blanchard did not have unlimited or general
access to his accounts is not sufficient. Rather, the evidence shows Dipple gave Blanchard access to his accounts in exchange for her agreement to continue their relationship and because he "had nothingto hide." Becausethe trial court'sconclusion that Blanchardhad Dipple'seffective consent to access his accounts is supported by the record, the trial court did not err by denying Dipple's motion to suppress. We overrule Dipple's first issue. Each party seeks to modify thejudgment. 

### In his third issue, Dipple asserts the trial court erred by taxing Dipple's attorney's fees against Dipple as court costs because Dipple was found indigent andthe record does not showhis financial status changed. See TEX. CODE CRIM. PROC. art. 26.04(p), 26.05(g). The State agrees-and we sustain Dipple'sthird issue. Likewise, the State asserts thejudgment should be modified to reflect the trialjudgewas the Honorable Keith Deanratherthan the Honorable John Roach, Jr. At oral argument, Dipple's counsel conceded this point. We sustain the State's sole cross-issue. Having resolved Dipple'stwo issues and the State's single issue, we modifythe trial court's judgmentto delete Dipple'sobligation to pay court costs inthe amount of$161.00 and to reflect the Honorable Keith Dean was the trialjudge. As modified, the trial court'sjudgment is affirmed.

Do Not Publish 

### TEX. R. APP. P. 

### 47 120114F.U05

## Qinurt nf .Appeals 

## lf.iftq1llistrict of W.exas at Sallas

ERNEST WILLIAM DIPPLE, JR., Appellant No. 05-12-00114-CR V. THE STATE OF TEXAS, Appellee 

### JUDGMENT Appeal from the 296th District Court of Collin County, Texas. {Tr.Ct.No. Cause No. 429-81809-10). Opinion delivered by Justice Moseley, Justices Francis and Lang participating.
Based on the Court's opinion ofthis date, thejudgment ofthe trial court is MODIFIED to reflect that the Honorable Keith Dean was the presidingjudge. Thejudgement is further MODIFIED to delete appellant Emes_t William Dipple, Jr.'s obligation to pay $161.00 in court costs. As modified, thejudgment is AFFIRMED
.



### . .. . \ Judgment entered January 14, 2013.