Bordelon v. State

673 S.W.3d 775

Jeremy Todd BORDELON, Appellant

v.The STATE of Texas, Appellee

No. 05-22-00108-CR

Court of Appeals of Texas, Dallas.

Opinion Filed August 16, 2023

Greg A. Willis, Collin County District Attorney, McKinney, Lisa Smith Braxton, Collin County District Attorney's Office, McKinney, Robert Koehl, Assistant District Attorney, McKinney, for Appellee.

Edward Andrew Kalabus Jr., Rosenthal, Kalabus & Therrian, PLLC, McKinney, for Appellant.

Before Justices Molberg, Pedersen, III, and Miskel

OPINION

Opinion by Justice Miskel

Jeremy Todd Bordelon appeals his conviction for possession of child pornography. In his first issue, Bordelon asserts that the trial court erred by admitting an affidavit containing testimonial hearsay. But by oral ruling at the bench trial, the trial court excised any testimonial content from the affidavit and admitted the remainder only for the limited and permissible purpose of showing how police began their investigation into Bordelon's involvement in child pornography. We presume that the trial court faithfully adhered to this ruling, especially where, as here, nothing in the record shows that the trial court relied on the testimonial portions of the affidavit during trial.

In his second issue, Bordelon attacks the affidavit that police submitted in pursuit of a warrant to search his home. We conclude the affidavit established probable cause for a search, it was not stale or conclusory, and the minor discrepancy in its description of the premises to be searched is not a source of reversible error.

In his third issue, Bordelon challenges the sufficiency of the evidence to show that he knowingly possessed child pornography. We hold the multiple forms of evidence that affirmatively linked Bordelon to the pornography are sufficient for the trial court to determine that he knowingly possessed it.

We affirm the judgment.

I. BACKGROUND

On January 2, 2019, someone used Microsoft's Bing search engine to upload a single image of child pornography four times in an effort to search for similar images. Microsoft alerted the National Center for Missing and Exploited Children (NCMEC), which traced the image to the Dallas-Fort Worth area. NCMEC forwarded a report concerning the tip to the Dallas Police Department, which in turn forwarded it to the McKinney Police Department for a local investigation that was led by Detective Jennifer Grounds. Using various search tools and an administrative subpoena, Detective Grounds traced the January 2 search to Bordelon's IP address. On June 17, 2019, she composed an affidavit for a warrant to search Bordelon's residence, and the warrant was issued the same day.

When the warrant was executed, police recovered a laptop that was found to have at least twenty images of child pornography on it. Bordelon was indicted for possession of child pornography in connection with eight of the images.

At the bench trial, the trial court heard from Detective Grounds, who testified concerning her investigation and seizure of the pornography, and from the State's computer forensics expert Lee McMillian, who testified that he found several forms of digital evidence on the laptop that inculpated Bordelon. Bordelon offered his own forensics expert, Lance Sloves, who testified that he found no evidence on the laptop that would connect Bordelon to the knowing possession of the pornography.

During trial, the State offered an affidavit authored by NCMEC's vice president, in which he testified concerning his organization, and sought to prove up NCMEC's initial report to Dallas police as a business record. Bordelon objected that the affidavit went far past a business records affidavit because it contained testimonial hearsay. The trial court agreed and indicated that it would exclude any testimonial portions of the document and admitted the affidavit only for the limited purpose of showing how McKinney police began their investigation.

After hearing the evidence, the trial court found Bordelon guilty on all eight possession counts. It sentenced him to ten years’ confinement but suspended the sentence in favor of six years’ community supervision, thirty days in jail, and sex-offender registration. Bordelon appeals.

II. THE LIMITED ADMISSION OF THE NCMEC AFFIDAVIT WAS NOT ERROR

In his first issue, Bordelon argues that the trial court erred by admitting the affidavit of NCMEC's vice president because it contained testimonial hearsay. Bordelon asserts that the admission of the testimonial hearsay violated his rights under the Confrontation Clause.

A. Standard of Review

We review the admission of evidence under an abuse of discretion standard. Henley v. State , 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016). A trial court abuses its discretion when its decision falls outside the zone of reasonable disagreement. Id. at 83. Before a reviewing court may reverse the trial court's decision, it must find the trial court's ruling was so clearly wrong as to lie outside the zone within which reasonable people might disagree. Id. Whether a particular out-of-court statement is testimonial is a question of law. Langham v. State , 305 S.W.3d 568, 576 (Tex. Crim. App. 2010). Although we defer to the trial court's resolution of credibility issues and historical fact, we review de novo the ultimate constitutional question of whether the facts as determined by the trial court establish that an out-of-court statement is testimonial. Id.

B. Applicable Law

In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. U.S. CONST. amend. VI. In accordance with this right, "testimonial" out-of-court statements offered against the accused are inadmissible unless the prosecution can show that the declarant is presently unavailable to testify and the accused had a prior opportunity to cross-examine him. Id. at 575–76.

"While the exact contours of what is testimonial continue to be defined by the courts, such statements are formal and similar to trial testimony." Burch v. State , 401 S.W.3d 634, 636 (Tex. Crim. App. 2013). Generally, a hearsay statement is testimonial when the surrounding circumstances objectively indicate that the statement is procured with the primary purpose of establishing or proving past events potentially relevant to later criminal prosecution. De La Paz v. State , 273 S.W.3d 671, 680 (Tex. Crim. App. 2008). In assessing a statement's primary purpose, we consider "all of the relevant circumstances." Michigan v. Bryant , 562 U.S. 344, 369, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011). When a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony, the admissibility of the statement is the concern of state and federal rules of evidence, not the Confrontation Clause. Id. at 358–59, 131 S.Ct. 1143.

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted in the statement. Bahena v. State , 634 S.W.3d 923, 927 (Tex. Crim. App. 2021) (citing TEX. R. EVID. 801(d) ). Hearsay is inadmissible unless made admissible by statute or rule. Id. (citing TEX. R. EVID. 802 ). A record of an act, event, condition, opinion, or diagnosis is admissible as a business record if (A) the record was made at or near the time by—or from information transmitted by—someone with knowledge; (B) the record was kept in the course of a regularly conducted business activity; (C) making the record was a regular practice of that activity; (D) all these conditions are shown by the testimony, affidavit, or unsworn declaration of the custodian or another qualified witness; and (E) the opponent fails to demonstrate that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. Id. at 927–28 (citing TEX. R. EVID. 803(6) ).

C. Discussion

At trial, the State sought to admit an affidavit authored by John Shehan, who identified himself as Vice President of the Exploited Children Division at NCMEC. The State sponsored the document as a business records affidavit.

Some parts of Shehan's affidavit consisted of the foundation for a business record. However, many other parts of the affidavit went beyond what would be necessary for a pure business records affidavit. Some early portions described NCMEC and its mission to help missing and exploited children. Other segments described NCMEC's operation of a "CyberTipline," a service for reporting crimes against children, and Shehan explained the ambit of the tipline, its workings, and how it compiled the "Cybertip" reports that it sent to inform law enforcement of potential crimes. The latter portions of the affidavit described how Microsoft initiated the Cybertip process in this case by alerting NCMEC that someone had used the Bing search engine to upload an image of child pornography and search for similar images from an IP address that was later associated with Bordelon. Finally, the affidavit stated that NCMEC relayed Microsoft's report to the Dallas Police Department.

When the State sought to admit Shehan's affidavit, Bordelon objected that the affidavit contained testimonial hearsay that was inadmissible without the opportunity to confront Shehan at trial. The trial court agreed that the State "can't slide in testimonial evidence through a business record affidavit." In response, the State proposed a solution: the trial court could "excise" whatever portions of the affidavit it believed to be testimonial hearsay and admit only the remainder. The trial court stated that it would "exclude any testimonial information in the affidavit" and admit only those portions that properly functioned as a business records affidavit and any portions that would show what started the McKinney Police Department's investigation. After extended argument, the trial court repeated that it was "not going to consider any of it for the truth of the matter asserted," and that the affidavit was admitted only for the purpose of, and to the extent that, it "merely" "show[ed...