Robert Aaron Rosales v. the State of Texas

Opinion issued July 31, 2025

In The

Court of Appeals
For The

First District of Texas
————————————
NOS. 01-23-00876-CR
01-23-00877-CR
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ROBERT AARON ROSALES, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court
Harris County, Texas
Trial Court Cases 1682769 & 1682770

OPINION

A grand jury indicted the appellant for five charges of possession of child

pornography. The appellant moved to suppress the State’s evidence based on a claim

that it was obtained illegally. After a hearing, the trial court denied that motion. The

appellant then entered a plea bargain where he pleaded guilty to two charges in return
for the State dismissing three charges and recommending that he be placed on

deferred adjudication community supervision for four years. The trial court accepted

the plea bargain, entered orders of deferred adjudication community supervision,

and certified the appellant’s right to appeal his written motion to suppress.

In three points of error, the appellant complains that the trial court erred in

denying his pre-plea motion to suppress. We affirm.

I. Background

The record contains no facts of the appellant’s offense beyond those in the

probable-cause affidavit. That affidavit says the appellant had in his Dropbox

account two videos showing a young girl, “approximately 8–11 years of age,”

exposing her private parts and masturbating.

A. The Affidavit

According to the affidavit, Dropbox, an online “cloud storage” site, provided

a “Cybertip” to the National Center for Missing and Exploited Children (NCMEC)

that a user had uploaded eight files that depicted suspected child pornography. The

affidavit said that “[t]he general public and other entities can, upon discovery of

child exploitation or suspicion of the same, use either the phone-in tip line or the

online portal to share the information with NCMEC,” and then NCMEC would

forward the tip to an appropriate law enforcement agency. Dropbox’s tip included

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the eight files, which the affiant, Officer Wilson, viewed and confirmed at least two

files contained child pornography.

Dropbox’s Cybertip said the files were in the appellant’s account. Dropbox

gave two IP addresses that had been used to access the account. Another officer,

Officer Corrales, issued an administrative subpoena to Comcast. According to the

affidavit, information from Comcast connected both IP addresses to a Comcast

subscriber who lived on Avenue J in Houston. According to the affidavit, someone

with the appellant’s last name lived at the Avenue J address.

The affidavit requested a warrant for the electronic customer data in the

possession of Dropbox relating to the appellant and the account where the child

pornography was being stored.

B. The Motion to Suppress

The appellant moved to suppress all evidence obtained pursuant to the

warrant. The motion made two claims. First, it made what is commonly called a

Franks1 claim: that the affidavit contained false statements and without those false

statements the affidavit did not contain probable cause. According to the motion, the

affidavit contained false information about what date the child pornography was

uploaded, and falsely claimed that both IP addresses were linked to the Avenue J

address when, in fact, only one IP address had been so linked. The motion also

1
See Franks v. Delaware, 438 U.S. 154 (1978).

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claimed that the affidavit created a misimpression by omitting material evidence—

that Comcast said it had no user information for one of the subpoenaed IP addresses.

The motion’s second claim was that the affidavit contained information

obtained illegally, and without that information the affidavit did not contain probable

cause. The motion advanced two theories under which the information in the

affidavit was illegally obtained. First it alleged that Dropbox, a company based in

California, had violated Texas Penal Code and federal laws related to accessing

someone else’s computer, wiretapping, and viewing child pornography when it

viewed the files the appellant uploaded to Dropbox’s servers.

The motion also claimed that Dropbox acted as a government agent when it

viewed the appellant’s files, making the first review an illegal warrantless search.

According to the appellant, NCMEC was a governmental entity, and Dropbox had

agreements with NCMEC—which allowed it to use NCMEC’s tools to detect child

pornography—that turned Dropbox into NCMEC’s agent.

C. The Hearing

The only witness at the suppression hearing was Officer Wilson. He discussed

the investigative process and admitted to a few inaccuracies in the affidavit. The

State admitted Dropbox’s terms of service, though the version introduced post-dated

the relevant events. The appellant introduced several documents from the

investigation, such the Cybertip and information provided by Comcast in response

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to Officer Corrales’s subpoena. The appellant also introduced documents related to

the agreement between Dropbox and NCMEC as well as NCMEC’s tax documents,

which showed a significant level of government funding.

The trial court denied the appellant’s motion and entered findings of fact. As

to the Franks claim, the trial court found the affidavit contained three false

statements: 1) The affidavit falsely stated that the child pornography had been

uploaded on May 27, 2019; 2) The affidavit falsely stated that Officer Wilson asked

Dropbox to preserve its records in anticipation of a warrant; and 3) The affidavit

falsely stated that both subpoenaed IP addresses had been connected to the Avenue

J address, but in fact Comcast had said it had no customer information for one of the

IP addresses on the requested date. The trial court found Officer Wilson

“demonstrated a reckless disregard for the truth in his affidavit,” but also found that

the affidavit contained probable cause even without the false statements.

As to the appellant’s claim that Dropbox’s initial “search” was unlawful, the

trial court found that the appellant failed to prove Dropbox acted as a government

agent. The trial court found that, regardless of the agreements between Dropbox and

NCMEC, the appellant did not prove Dropbox used NCMEC software to search his

account. The trial court found that because Officer Wilson had viewed nothing other

than the files Dropbox had already viewed, there was no unlawful search.

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II. Appeal

The appellant raises three points of error. The first two points claim that

Officer Wilson’s warrantless review of the appellant’s child pornography was

unlawful. The third point claims the trial court erred in denying the appellant’s

Franks claim.

A. Standard of Review

We review a trial court’s ruling on a motion to suppress evidence under a

well-settled bifurcated standard of review. State v. Huynh, 683 S.W.3d 803, 809

(Tex. App.—Houston [1st Dist.] 2023, no pet.). We review the trial court’s factual

findings for an abuse of discretion, and the trial court’s application of the law to the

facts de novo. Id. At a suppression hearing, the trial court is the sole trier of fact and

judge of witness credibility, and the trial court may choose to believe or disbelieve

all or any part of a witness’s testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.

Crim. App. 2000). We review the record in the light most favorable to the trial

court’s ruling to determine whether the evidence supports any express fact findings.

See Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We will sustain

the trial court’s ruling if that ruling is reasonably supported by the record and is

correct on any theory of law applicable to the case. Id. at 447–48.

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B. Burden of proof

The appellant argues it was the State’s burden to prove the lawfulness of

Officer Wilson’s initial review of the files submitted by Dropbox. That argument

misapprehends the procedural posture of his challenge.

Texas courts employ a presumption of proper police conduct. See State v.

Robinson, 334 S.W.3d 776, 778 (Tex. Crim. App. 2011). When a defendant moves

to exclude evidence based on the exclusionary rule, “[a]s the movant . . . a defendant

must produce evidence that defeats the presumption of proper police conduct and

therefore shifts the burden of proof to the State.” Russell v. State, 717 S.W.2d 7, 9

(Tex. Crim. App. 1986), disapproved of on other grounds by Handy v. State, 189

S.W.3d 296 (Tex. Crim. App. 2006).2

A defendant defeats this presumption by showing that a search was conducted

without a warrant. Id. When the defendant meets that burden, it becomes the State’s

burden to prove the lawfulness of the search, seizure, or arrest by showing an

exception to the warrant requirement. See Robinson, 334 S.W.3d at 779 (officer’s

testimony establishing probable cause for arrest and consent for search carried

burden to show exception to warrant requirement). If the State meets that burden, it

2
Handy disapproved of a holding in Russell regarding how much evidence a
defendant needed to produce to show standing for a Fourth Amendment claim.
Handy, 189 S.W.3d at 299 n.2. It does not bring into question Russell’s discussion
of who bears the burden of proof.

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becomes the defendant’s burden to show any other law violations that would render

evidence inadmissible. See id. (where defendant alleged law violation during

consented-to search, burden was on defendant to produce evidence of law violation

and failure to do so was fatal to claim).

In modern Texas practice, most often the parties will know before the hearing

whether there was a warrant. When both parties know the search, seizure, or arrest

was warrantless, it is common for the State to stipulate as much. If that happens, the

hearing and subsequent appeal might give the appearance that the State began with

the burden of proof to establish the lawfulness of the search, but that is because the

State’s stipulation relieved the defendant of his initial burden. See, e.g., id. at 778

(“The trial court held a hearing on the motion, beginning by telling appellee that

since it was his motion, he should proceed. The State interrupted, agreeing to

stipulate that the arrest was without a warrant, and that because of the stipulation,

the State should go first. Appellee and the trial court both agreed. The State then

called the only witness. . . .”). Without such a stipulation, the defendant must

produce evidence that the search, seizure, or arrest was warrantless. See Hogan v.

State, 954 S.W.2d 875, 877 (Tex. App.—Houston [14th Dist.] 1997, pet. ref’d)

(holding defendant’s failure to produce evidence arrest was warrantless was fatal to

suppression claim where State did not stipulate arrest was warrantless).

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If the State shows the complained-of evidence was obtained pursuant to a

warrant, the presumption of proper police conduct remains intact, and it is the

defendant’s burden to defeat it by “prov[ing] the invalidity of the warrant.” Russell,

717 S.W.2d at 9; see Hyland v. State, 574 S.W.3d 904, 911 (Tex. Crim. App. 2019).3

For claims that seek to overcome the presumption of proper police conduct by going

behind the face of the probable-cause affidavit—such as by showing the affidavit

contains false statements or relied on illegally obtained evidence—the defendant

bears the burden of proof. See Derby v. State, 960 S.W.2d 274, 276 (Tex. App.—

Houston [1st Dist.] 1997, pet. ref’d) (defendant bears burden of proof to show

probable-cause affidavit relied on illegally obtained evidence); Davidson v. State,

249 S.W.3d 709, 718 (Tex. App.—Austin 2008, pet. ref’d) (same); Hyland, 574

S.W.3d at 911 (defendant bears burden of showing statements in probable-cause

affidavit are false).

The appellant claims the State had the burden to prove Officer Wilson’s

review of the files NCMEC submitted was lawful. That might be true if, rather than

3
While the phrase “presumption of proper police conduct” is distinct to Texas law,
the allotment of burdens in Texas is similar to practice in the federal courts and most
states. See Wayne R. LaFave, 6 SEARCH & SEIZURE § 11.2(b) (6th ed. 2020) (“With
respect to the issue which is usually central in a motion to suppress hearing—the
reasonableness of the challenged search or seizure—most states follow the rule
utilized in the federal courts: if the search or seizure was pursuant to a warrant, the
defendant has the burden of proof; but if the police acted without a warrant the
burden of proof is on the prosecution.”).

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get a warrant, the State had proceeded to trial and offered those files into evidence.

Instead, Officer Wilson used the information he obtained from those files to get a

warrant. Because the appellant sought to suppress evidence that was obtained via

warrant, it was the appellant’s burden to “prove the invalidity of the warrant.”

Russell, 717 S.W.2d at 7.

C. Under the private search doctrine, Officer Wilson’s warrantless review
of the files was not a Fourth Amendment search because the appellant
failed to show Officer Wilson viewed more than had Dropbox.

The appellant’s first point claims the warrant is invalid because the affidavit

relied on illegally obtained evidence. He claims that Officer Wilson conducted an

unlawful warrantless search of the files when he viewed them before getting a

warrant. The appellant claims that the illegally obtained information—the

description of the video contents—must be excised from the warrant affidavit, and

without this information the affidavit does not contain probable cause. While this

argument was not raised in the appellant’s motion, the appellant raised it at the

suppression hearing.

For purposes of the Fourth Amendment, a “search” occurs when the

government 1) intrudes on property or 2) gets information in violation of an

individual’s reasonable expectation of privacy. State v. Huse, 491 S.W.3d 833, 840

(Tex. Crim. App. 2016). The appellant’s claim involves only the second kind of

search.

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The Fourth Amendment does not protect against searches from

non-governmental actors, so long as the non-governmental actor is not searching at

the behest of or as an agent of government. Burwell v. State, 576 S.W.3d 826, 831

(Tex. App.—Houston [1st Dist.] 2019, pet. ref’d). Under the “private-search

doctrine,” if a non-governmental actor searches an item and gives it to police, later

police conduct viewing the item is not a “search” for Fourth Amendment purposes

unless it exceeds the scope of what the non-governmental actor viewed. United

States v. Jacobsen, 466 U.S. 109, 117–20 (1984); Burwell, 576 S.W.3d at 831.

In the affidavit, Officer Wilson stated he had watched two video files that

Dropbox included with its Cybertip. The appellant introduced the Cybertip into

evidence at the suppression hearing. The Cybertip stated that someone at Dropbox

had viewed the “entire contents” of both files. Thus, the trial court’s finding that “the

scope of the search by Officer Wilson (or NECMEC) did not exceed the scope of

the private search done by Dropbox” is supported by the record.

The appellant attempts to rebut this by directing us to Officer Wilson’s

testimony that he did not personally know how much of the videos the Dropbox

employees watched. But Officer Wilson did not dispute the statement in the

Cybertip, he said merely he had no personal knowledge on the point. As the moving

party attacking a valid warrant, the burden of proof was on the appellant to show the

affidavit relied on illegally obtained evidence. Derby, 960 S.W.2d at 276. Nothing

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in the record shows that Officer Wilson viewed more of the files than the Dropbox

employee. 4

The trial court, in its role as factfinder, did not abuse its discretion by finding

the statement in the Cybertip credible. See Ross, 32 S.W.3d at 855; see also United

States v. Landreneau, 967 F.3d 443, 453 (5th Cir. 2020) (holding that Cybertip

“bears sufficient indicia of reliability to support its probable accuracy” and

information in Cybertip is sufficient to meet preponderance-of-the-evidence

standard necessary for finding at federal sentencing hearing).

The trial court’s finding that a Dropbox employee viewed the entire files is

supported by the record. Officer Wilson’s review of the files was, under the

private-search doctrine, not a search. We overrule the appellant’s first point.

4
It is worth noting that from the descriptions in the record the videos contained
nothing but child pornography. The only information that was relevant for the
warrant was that the files contained child pornography. The appellant’s argument
has an unstated premise that it was possible for someone at Dropbox to view only
part of the files such that their nature as child pornography was not revealed
immediately—as though the videos had opening credits or a lead-in scene. But the
appellant introduced no evidence of that. From the descriptions in the record, any
portion of the videos would have been sufficient to support probable cause they
were child pornography.

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D. The appellant did not prove Dropbox acted as an agent of the
government.

In his second point, the appellant claims the trial court erred by finding that

Dropbox acted as a private entity rather an agent of government. Our resolution of

this issue is controlled by our precedent in Burwell.

Burwell is factually much like this case. See Burwell, 576 S.W.3d at 828–30.

There, Adobe—another electronic service provider—reviewed files a user had

stored on its servers and determined they were child pornography. It reported those

files to NCMEC, and Officer Wilson—apparently the same Officer Wilson as in this

case—got a warrant for the suspected account. Burwell challenged the search

warrant by arguing that Adobe acted as a government agent when it reviewed his

files. We stated the legal standard:

[T]o determine whether a person is acting as an “instrument” or agent
of the government, we ask (1) whether the government knew of, and
acquiesced in, the intrusive conduct, and (2) whether the party
performing the search intended to assist law enforcement efforts or,
instead, to further his own ends. We must consider both elements.

We conduct our analysis of this question on a case-by-case basis in light
of all the circumstances. The defendant bears the burden of proving that
a private party acted as an agent of the government.

Id. at 831–32 (citations and quotations omitted).

We rejected Burwell’s claim because he adduced no evidence proving either

element. Officer Wilson’s testimony in that case showed that he was unaware of

Adobe’s conduct before receiving the Cybertip, and there was no evidence of

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NCMEC’s5 awareness of Adobe’s conduct before it happened. Burwell also adduced

no evidence of Adobe’s intent. Id. at 832.

The same analysis applies here. The appellant did not introduce any evidence

that either NCMEC or the Houston Police Department was aware of Dropbox’s

review of the appellant’s files. Nor did the appellant introduce any evidence that

showed Dropbox’s intent—one way or the other—in reviewing his files.

The appellant attempts to distinguish his case from Burwell by pointing to the

documents he admitted showing some cooperative arrangements between Dropbox

and NCMEC. But these documents show nothing more than that NCMEC would let

Dropbox use its tools to analyze suspected child pornography. As the State correctly

points out, none of these agreements requires Dropbox to search for child

pornography and at least one is explicit that Dropbox is “authorized but not obliged”

to use the tools provide by NCMEC. The agreement the appellant leans most heavily

on, regarding Dropbox’s use of NCMEC’s “PhotoDNA” programming code,

requires Dropbox to report to NCMEC about its use of PhotoDNA, but it does not

5
Relying on United States v. Ackerman, 831 F.3d 1291 (10th Cir. 2016), both
Burwell and the appellant have argued that NCMEC is a government agency. As we
noted in Burwell, in Ackerman it was NCMEC that conducted the initial review of
the user’s file, so NCMEC’s status as a government agency was determinative. In
Burwell and here, however, another actor performed the initial review and turned
the files over to NCMEC. Whether NCMEC is a government agency is not
determinative to the legality of the initial review if the company conducting the
initial review was not acting as an agent of NCMEC. We presume, arguendo, that
NCMEC is a government agency.

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require Dropbox to actually use PhotoDNA. The agreement explicitly disclaims an

agency relationship. And, as the trial court found, the appellant failed to prove that

Dropbox used PhotoDNA or any of the tools provided by NCMEC to assess his child

pornography. If a Dropbox employee opened and viewed the appellant’s files of the

employee’s own volition, these documents would have no bearing on that. But the

appellant introduced no evidence of how or why Dropbox reviewed his files.

The appellant failed to carry his burden to show that Dropbox acted as a

government agent when it viewed the files identified in its Cybertip. We overrule

his second point.

E. The trial court correctly held that the affidavit contained probable cause
even without the complained-of statements.

In his third point, the appellant claims that the trial court erred by not

sustaining his Franks claim.

A Franks claims requires a defendant to show: 1) the probable-cause affidavit

contains false statements, 2) those false statements were made deliberately or with a

reckless disregard for the truth, and 3) without those statements the affidavit does

not contain probable cause. Hyland v. State, 574 S.W.3d 904, 911 (Tex. Crim. App.

2019). If the trial court finds there were false statements, they were made with the

requisite state of mind, and the remaining statements do not add up to probable

cause, then the warrant is invalid. Id.

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The trial court found that three statements in Officer Wilson’s affidavit were

false, and were made with a reckless disregard for the truth: 1) That child

pornography was uploaded to the appellant’s Dropbox account on May 27, 2019,

2) That Officer Wilson asked Dropbox to preserve its records relating to the

Cybertip, and 3) That business records from Comcast identified the users associated

with the specified IP address in January and May 2019 when, in fact, the records

identified the user associated with one of the IP addresses in May only.

The trial court concluded, however, that the affidavit contained probable

cause even without these statements. On appeal, the State argues the trial court’s

ruling that probable cause existed was correct. That is the only issue before us, and

we agree.

As the trial court found, excising Officer Wilson’s statement that he asked

Dropbox to preserve its files did not undermine probable cause because elsewhere

in the affidavit Officer Wilson truthfully stated that he knew from training and

experience that Dropbox had a practice of preserving account contents when it

reported a Cybertip. The affidavit says that Officer Wilson received the Cybertip

from NCMEC on July 27, 2019, and the warrant issued on September 6, 2019.

Digital evidence is “is of the sort that can reasonably be expected to be kept for long

periods of time in the place to be searched.” Veal v. State, 682 S.W.3d 577, 583 (Tex.

App.—Houston [1st Dist.] 2023, pet. ref’d) (holding probable cause still existed that

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digital evidence would still be on cell phone after four months in police storage); cf.

United States v. Robinson, 741 F.3d 588, 597 (5th Cir. 2014) (collecting cases

holding that digital evidence information was not stale after ten months, a year, and

thirteen months).

In oral findings, the trial court found that removing the statements about the

January IP address and the date of the upload did not vitiate probable cause. We

agree.

Probable cause for a search warrant exists if, under the totality of the

circumstances in the affidavit, there is at least a “fair probability” or “substantial

chance” that contraband or evidence of a crime will be found at the specified

location. Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010). Without the

date of upload or information about specific dates of when the appellant accessed

the account, the affidavit still established that there was child pornography in an

online account registered to the appellant and that the website hosting the account

was preserving the contents of that account pending investigation. That’s probable

cause. Information about when the files were uploaded might be important—even

determinative—at a trial, but here, was unnecessary to show that a search of the

account would uncover evidence of an offense.

The trial court did not err in denying the appellant’s Franks motion. We

overrule the appellant’s third point.

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III. Conclusion

We affirm the trial court court’s judgment.

Clint Morgan
Justice

Panel consists of Justices Rivas-Molloy, Guiney, and Morgan.

Publish.

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