Steven Lynn Robinson v. the State of Texas
Date Filed2022-12-14
Docket09-21-00350-CR
Cited0 times
StatusPublished
Full Opinion (html_with_citations)
In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-21-00350-CR
__________________
STEVEN LYNN ROBINSON, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 9th District Court
Montgomery County, Texas
Trial Cause No. 19-04-05265-CR
__________________________________________________________________
MEMORANDUM OPINION
Appellant Steven Lynn Robinson appeals his conviction for online solicitation
of a minor. See Tex. Penal Code Ann. § 33.021(c). In his sole issue, Robinson argues
the trial court erred by denying his pretrial motions to suppress records of electronic
communications and internet searches that were allegedly obtained under the
authority of an administrative subpoena provided by section 422.003 of the Texas
Government Code. See Tex. Govât Code Ann. § 422.003. We affirm the trial courtâs
judgment.
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PERTINENT BACKGROUND
A grand jury indicted Robinson for the offense of online solicitation of a
minor, a second-degree felony. See Tex. Penal Code Ann. § 33.021(c). The
indictment alleged that Robinson did knowingly
solicit over the Internet, by electronic mail or text message or other
electronic message service or system, or through a commercial online
service, [the undercover officer], a minor, to meet the defendant with
the intent that [the undercover officer], would engage in sexual contact
or sexual intercourse or deviate sexual intercourse with the defendant[.]
Robinson filed a Motion to Suppress Google Records, arguing that the
evidence seized from his Google account should be suppressed because the
undercover officerâs Affidavit for Search Warrant was defective and failed to
establish probable cause. In his affidavit, the undercover officer with the
Montgomery County District Attorneyâs Office Internet Crimes against Children
Task Force (âICACâ), averred that while conducting an online investigation of a
minor and posing as a fourteen-year-old female persona, he communicated with
Robinson on KIK applicationâs messenger. The undercover officer averred that
Robinson stated, ââI always want to meet up with someone young and beautiful. I
hope thatâs ok with you.ââ The undercover officer explained that Robinson sent
photographs of his face and penis on KIK messenger, requested ânaughtyâ
photographs, and asked the female persona to meet in person for a sexual encounter.
The undercover officer further explained that after he told Robinson the female
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persona was fourteen, Robinson used an explicit term to indicate he wanted to
engage in sexual intercourse with a âyoung teen girl[.]â
The undercover officer stated that he sent two administrative subpoenas to
KIK, Inc. for subscriber information regarding the two usernames Robinson used on
KIK messenger to send messages to the female persona. The undercover officer
explained that the information he received through the administrative subpoena
included the email account registered to the KIK account and an IP address. The
undercover officer also explained he used Maxmind to identify Grande
Communications as the internet carrier for the IP address, and he sent an
administrative subpoena to Grande Communications, which showed the registered
subscriberâs address was the same address where Robinson lived. The undercover
officerâs report from the Texas Department of Public Safety included Robinsonâs
photograph, which depicted the same person who was in the photographs sent
through KIK messenger. The undercover officer averred that based on all the
information he received, he believed Robinson violated Texas Penal Code 33.021,
online solicitation of a minor.
The undercover officer requested a search warrant for GOOGLE LLC, which
provides a Google Photos service where data, including photographs, may be stored.
In his affidavit supporting the Stateâs request to issue the search warrant for Googleâs
records, the undercover officer swore, among other things that âbased upon affiantâs
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training and experience, and the facts as set forth in this affidavit, there is probable
cause to believe and affiant does believe that within the computer systems in the
control of GOOGLE LLC. there exists evidence of criminal activity.â The
undercover officerâs affidavit further avers âthe logon & connection IP address to
[google email accounts] will serve as valuable evidence that may assist in positively
identifying the person responsible for the commission of this offense by drawing
associations to [the email accounts] and devices that the suspect may have
possessed.â The trial court found the verified facts in the undercover officerâs
affidavit showed the undercover officer had probable cause and established the
existence for proper grounds for issuance of a search warrant for GOOGLE LLC to
provide all stored files, records, and emails belonging to or associated with the
customer or subscriber utilizing the two email accounts identified in the
investigation.
The trial court conducted a hearing on Robinsonâs Motion to Suppress Google
Records. Robinsonâs counsel argued the State was seeking records on a fishing
expedition using its undercover officerâs affidavit even though it fails to include any
articulable facts establishing probable cause sufficient to show the State has an
adequate need or legal basis to obtain Googleâs records of the searches Robinson
conducted on the internet. In response, the State argued it had a basis to obtain the
photographs because Robinson shared provocative photographs of himself with the
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undercover officer and requested naughty photographs from the undercover officer,
which gave the undercover officer reason to believe Robinson was in possession of
photographs of underage children. The State also argued that the Google account
was associated with the KIK account and if searched, would contain searches
consistent with information the undercover officer provided during his conversations
with Robinson on KIK. The trial court denied Robinsonâs Motion to Suppress
Google Records.
Robinson also filed a Motion to Suppress Grande Records and a Motion to
Suppress KIK records that were seized from the alleged administrative subpoenas
and argued the evidence was obtained in violation of the United States and Texas
Constitutions, Texas Code of Criminal Procedure, and Texas Government Code. See
U.S. CONST. amends. IV, XIV; Tex. Const. art. I, §§ 9, 19; Tex. Crim. Proc. Ann.
arts. 1.06, 38.23; Tex. Govât Code Ann. §§ 422.001-.004. The record shows
Robinsonâs counsel argued that the legislative history of the House Bill concerning
the administrative subpoena process authorized by Chapter 422 of the Texas
Government Code shows the bill was intended to recover children and address the
expedient need to identify people who are posting child pornography. Robinsonâs
counsel filed a Bench Brief in Support of Defendantâs Motions to Suppress KIK
Records and Grande Records and explained that the expedient nature anticipated by
the House Bill was not present in this case, because there was no need to speed up
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the process of getting a grand jury subpoena since there was no child involved who
needed rescuing. Robinsonâs counsel further argued that all evidence obtained by
way of the illegal administrative subpoenas purported to be authorized by Chapter
422 should be suppressed as well as the Google records obtained from the search
warrant affidavit, which are âfruits of the poisonous tree[.]â
The trial court denied Robinsonâs Motion to Suppress Grande Records and his
Motion to Suppress KIK records. The trial court found that the clear language of
section 422.003(b)(2), which states that a prosecuting attorney or an officer of an
ICAC Task force may issue and serve an administrative subpoena that requires the
production of records if there is a reasonable cause to believe that an internet or
electronic service account provided through an electronic communication service or
remote computing service has been used in the sexual exploitation or attempted
sexual exploitation of a minor, applied in this case.
A jury found Robinson guilty of the offense of online solicitation of a minor
and assessed punishment at ten years of confinement.1 The trial court did not issue
written findings of fact and conclusions of law but made an explicit oral finding that
section 422.003(b)(2) applied in this case. Robinson appealed.
1Robinson was charged with two offenses of online solicitation of a minor
arising from the same criminal episode in which Robinson communicated with a
persona created by the undercover officer which depicted a fourteen-year-old. This
appeal only concerns trial cause number 19-01-05265.
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ANALYSIS
In his sole issue, Robinson argues the trial court erred by denying his Motion
to Suppress Grande Records, Motion to Suppress KIK Records, and Motion to
Suppress Google Records in violation of the Fourth and Fourteenth Amendments.
Specifically, Robinson argues the trial court erred by allowing evidence of electronic
communications and internet searches under the authority of Chapter 422 of the
Government Code because the State obtained the evidence in violation of section
422.003(e)(4)(A), which gives investigators a tool to rescue children who are at risk
of immediate harm; however, no child was at risk since this case involved a decoy
investigator. See Tex. Govât Code Ann. § 422.003(e)(4)(A). Robinson also argues
the evidence obtained from the administrative subpoenas tainted the evidence
obtained from the later search warrant.
We review rulings on motions to suppress under a bifurcated standard. Lerma
v. State, 543 S.W.3d 184, 189â90 (Tex. Crim. App. 2018); Dugar v. State,629 S.W.3d 494
, 497 (Tex. App.âBeaumont 2021, pet. refâd). In a motion to suppress hearing, âthe trial judge is the sole trier of fact and judge of credibility of witnesses and the weight to be given to their testimony.â Lerma,543 S.W.3d at 190
. We afford almost total deference to the trial courtâs ruling on the motion when that ruling hinged on its findings of historical facts, especially when they turn on the trial courtâs decisions concerning credibility and demeanor. State v. Garcia-Cantu,253 S.W.3d 7 236, 241
(Tex. Crim. App. 2008); Dugar, 629 S.W.3d at 497. Since the trial court did not issue written findings of fact to support its ruling denying the motions to suppress, we view the evidence in the light most favorable to the trial courtâs ruling and assume that the trial court made implicit findings that support its ruling as long as those findings are supported by the record. Herrera v. State,241 S.W.3d 520, 527
(Tex. Crim. App. 2007) (citation omitted). The trial court provided an explicit oral finding to support its ruling, and when a trial court makes an explicit fact finding, we determine whether the evidence, when viewed in the light most favorable to the trial courtâs ruling, supports that finding. State v. Kelly,204 S.W.3d 808, 818
(Tex. Crim. App. 2006). We then review the trial courtâs legal ruling de novo unless its explicit fact finding that is supported by the record is also dispositive of the legal ruling.Id.
We also review the trial courtâs application of the law to facts de novo. Valtierra v. State,310 S.W.3d 442, 447
(Tex. Crim. App. 2010). The prevailing party in the trial court is afforded the strongest legitimate view of the evidence, and all reasonable inferences that may be drawn from that evidence. Garcia-Cantu,253 S.W.3d at 241
. We will sustain the trial courtâs ruling if it is correct on any applicable
theory of law. Valtierra, 310 S.W.3d at 447â48.
In denying Robinsonâs Motion to Suppress Grande Records and a Motion to
Suppress KIK records, the trial court found that the clear language of section
422.003(b)(2) applied. Statutory construction is a question of law we review de
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novo. Williams v. State, 253 S.W.3d 673, 677(Tex. Crim. App. 2008). In construing a statute, we look to its plain language, unless the language is ambiguous or leads to absurd results the Legislature could not have intended.Id.
âThe cardinal principle of statutory construction is to implement the will of the Legislature.â Baird v. State,398 S.W.3d 220, 228
(Tex. Crim. App. 2013) (citation omitted). Undefined terms in a statute are to be given their plain and ordinary meaning, and we refer to the rules of grammar and common usage to construe the terms. Watson v. State,369 S.W.3d 865, 870
(Tex. Crim. App. 2012); see also Tex. Govât Code Ann. § 311.011(a). In determining the plain meaning, we will not import the definition from another code. Mason v. State, No. PD-0881-20,2022 WL 1499513
, at *11 (Tex. Crim. App. May 11, 2022). If the application of the statuteâs plain language would lead to absurd consequences the Legislature could not have intended, we may stray from the literal language and resort to extra-textual factors such as legislative history, intent, or purpose. Tapps v. State,294 S.W.3d 175, 177
(Tex. Crim. App. 2009).
In construing a statute where the plain meaning leads to absurd results, a court
may consider, among other matters, the object sought to be obtained; circumstances
of enactment; legislative history; common law, including laws on the same or similar
subjects; consequences of a particular construction; administrative construction of
the statute; and the title, preamble, and emergency provision. Tex. Govât Code Ann.
9
§ 311.023; State v. Green, 613 S.W.3d 571, 579â80 (Tex. App.âTexarkana 2020,
pet. granted).
Section 422.003 concerning an Administrative Subpoena provides:
(a) The attorney general shall assist persons authorized under this
section in obtaining administrative subpoenas to investigate and
prosecute offenses that involve the Internet-based sexual exploitation of
a minor.
(b) A prosecuting attorney or an officer of an ICAC task group may
issue and cause to be served an administrative subpoena that requires
the production of records or other documentation as described by
Subsection (d) if:
(1) the subpoena relates to an investigation of an offense that
involves the sexual exploitation of a minor; and
(2) there is reasonable cause to believe that an internet or
electronic service account provided through an electronic
communication service or remote computing service has
been used in the sexual exploitation or attempted sexual
exploitation of a minor.
(c) A subpoena under Subsection (b) must:
(1) describe any objects or items to be produced; and
(2) prescribe a reasonable return date by which those objects or
items must be assembled and made available.
(d) Except as provided by Subsection (e), a subpoena listed under
Subsection (b) may require the production of any records or other
documentation relevant to the investigation, including:
(1) a name;
(2) an address;
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(3) a local or long distance telephone connection record,
satellite-based Internet service provider connection record,
or record of session time and duration;
(4) the duration of the applicable service, including the start date
for the service and the type of service used;
(5) a telephone or instrument number or other number used to
identify a subscriber, including a temporarily assigned
network address; and
(6) the source of payment for the service, including a credit card
of bank account number.
(e) A provider of an electronic communication service or remote
computing service may not disclose the following information in
response to a subpoena issued under Subsection (b):
(1) an in-transit electronic communication;
(2) an account membership related to an Internet group,
newsgroup, mailing list, or specific area of interest;
(3) an account password; or
(4) any account content; including
(A) any form of electronic mail;
(B) an address book, contact list, or buddy list;
(C) a financial record;
(D) Internet proxy content or Internet history; or
(E) a file or other digital document stored in the account or
as part of the use of the account.
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(f) A provider of an electronic communication service or remote computing
service shall disclose the information described in Subsection (e) if that
disclosure is required by court order.
...
Tex. Govât Code Ann. § 422.003.
Section 422.003 does not define the term âminor.â See id. âMinorsâ are
commonly understood to be people who are not yet old enough to have the rights of
an adult. See Minor, Merriam-Webster, (https://merriam-
webster.com/dictionary/minor (last accessed December 1, 2022) (defining minor as
ânot having reached majorityâ); Minor, Blackâs Law Dictionary (6th ed. 1990)
(defining minor as â[a]n infant or person who is under the age of legal competenceâ).
The common perception of a minor does not include adults pretending to be minors.
Section 33.021 of the Texas Penal Code concerning the offense of online solicitation
of a minor defines âminorâ as an individual who is younger than 17 years of age or
an individual whom the actor believed to be younger than 17 years of age. Tex. Penal
Code Ann. § 33.021(a)(1). Section 33.021 clearly allows for the prosecution of an individual who solicits someone who represents themselves to be a minor, allowing police officers to discover and convict adults who communicate with children in a sexually explicit manner. Seeid.
Section 422.003 states that the purpose of an administrative subpoena is to
âinvestigate and prosecute offenses that involve the Internet-based sexual
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exploitation of a minor.â Tex. Govât Code Ann. § 422.003(a). Section 422.003 does
not specifically include the expanded definition of minor as provided in Texas Penal
Code section 33.021. See id. Considering that the purposes of enacting the statute
included sparing children from predictable harm, other penal laws that address
internet-based sexual exploitation of minors, and the consequences that Robinsonâs
construction would have in limiting the effectiveness of the Stateâs ability to
investigate and prosecute offenses arising from the internet-based sexual
exploitation of minors or that would otherwise have been committed if not
interdicted, we conclude the meaning the Legislature likely intended courts to apply
in construing the term âminorâ as it is used in section 422.003 is the definition used
in the Penal Code rather than the more narrow dictionary definition based on the
object sought to be attained by the statute. See Tex. Govât Code Ann. § 311.023;
Green, 613 S.W.3d at 579â80; see also Tex. Govât Code Ann. § 422.003(a), (b);
Tex. Penal Code Ann. § 33.021(a)(1).
Additionally, the plain language of section 422.003 does not support
Robinsonâs contention that it only applies to children who are at an immediate risk
of harm. See Tex. Govât Code Ann. § 422.003. Instead, section 422.003 states an
ICAC Task force may issue and serve an administrative subpoena that requires the
production of records if there is a reasonable cause to believe that an internet or
electronic service account provided through an electronic communication service or
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remote computing service has been used in the sexual exploitation or attempted
sexual exploitation of a minor. Id. § 422.003(b)(2) (emphasis added). The legislative
history indicates the purpose of the bill that became section 422.003 was to promote
the apprehension of child predators for crimes relating to child pornography, and to
identify and rescue child victims, and to assist in the investigation and prosecution
of offenses involving the internet-based sexual exploitation of a minor. House
Research Org., Bill Analysis for House Criminal Jurisprudence Comm., C.S.H.B.
3746 (Sept. 1, 2011) (available at: www.
https://capitol.texas.gov/tlodocs/82R/analysis/pdf/HB03746H.pdf#navpanes=0).
This purpose is consistent with the purpose of Texas Penal Code section 33.021,
which is to protect young people from harm that would be inflicted by sexual
predators, regardless of whether the recipient is younger than seventeen or the actor
believes the recipient is younger than seventeen. See State v. Paquette, 487 S.W.3d
286, 289(Tex. App.âBeaumont, 2016, no pet.); see also Freeman v. State,510 S.W.3d 466, 475
(Tex. App.âDallas 2013), judgment vacated on other grounds,425 S.W.3d 289
(Tex. Crim. App. 2014) (stating that section 33.021 permits police
officers to intercept sexual predators during the âgroomingâ phase and before they
injure the child).
Although the Legislature chose not to define the term âminorâ in section
422.003, based on the plain language of section 422.003, it is clear the Legislature
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intended for the expanded definition provided in Texas Penal Code section 33.021
allowing for the apprehension of a person who communicates in a sexually explicit
manner with an adult pretending to be a minor for law enforcement purposes to
apply. We conclude that the trial court did not err by straying from the literal
language and considering extra-textual factors such as legislative history, intent, and
purpose; determining that section 422.003 applied when Robinson believed the
undercover officer was a minor; and finding that section 422.003 allowed the
undercover officer to use administrative subpoenas to recover records from KIK and
Grande Communications to investigate and prosecute an offense that involved the
internet-based sexual exploitation of a minor. See Tapps, 294 S.W.3d at 177; see
also Tex. Govât Code Ann. § 422.003(a). Accordingly, the trial court did not err by
denying Robinsonâs Motion to Suppress Grande Records and Motion to Suppress
KIK records because the State did not obtain and produce electronic mail in the form
of email messages in violation of section 422.003(e)(4)(A). See Tex. Govât Code
Ann. § 422.003(e)(4)(A).
Since we concluded that the State properly obtained the Grande and KIK
records through administrative subpoenas issued on findings supported by probable
cause, we further conclude that the trial court did not err in denying Robinsonâs
motion seeking to quash the Stateâs request to obtain records from Google. Having
concluded the trial court did not err by denying Robinsonâs motions to suppress,
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Robinson has failed to show that the trial courtâs failure to grant his motions to
suppress violated his constitutional rights. We overrule Robinsonâs sole issue and
affirm the trial courtâs judgment.
AFFIRMED.
_________________________
W. SCOTT GOLEMON
Chief Justice
Submitted on November 29, 2022
Opinion Delivered December 14, 2022
Do Not Publish
Before Golemon, C.J., Kreger and Horton, JJ.
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