Opinion
01-22-00285-CR
08-31-2023
ADRIANNA JEAN VEAL, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 426th District Court Bell County, Texas Trial Court Case No. 82273
Under its docket equalization authority, the Supreme Court of Texas transferred this appeal to this Court from the Court of Appeals for the Third District of Texas. See Tex. Gov't Code § 73.001; Order Regarding Transfer of Cases from Courts of Appeals, Misc. Docket No. 22-9025 (Tex. Mar. 29, 2022). We are unaware of any relevant conflict between the Third Court's precedent and ours. See Tex. R. App. P. 41.3.
Panel consists of Justices Goodman, Landau, and Rivas-Molloy.
OPINION
Sarah Beth Landau Justice.
Appellant Adrianna Jean Veal was charged with three counts of burglary of a habitation. Veal objected to the issuance of a search warrant for her cell phone, and the trial court overruled her objection. Veal later pleaded guilty to the felony offense of burglary of a habitation with intent to commit a felony. See Tex. Penal Code § 30.02. On appeal, Veal contends that the warrant was issued in violation of the Fourth Amendment because (1) the probable cause facts were stale and (2) the State's delay in seeking the warrant was unreasonable. Because we conclude that the probable cause facts were not stale and Veal did not preserve the unreasonable delay issue, we affirm the trial court's judgment.
BACKGROUND
Veal was indicted for three counts of burglary or entering a habitation without the consent of the owner: for entering with the intent to commit murder, for entering with the intent to commit aggravated assault causing serious bodily injury, and for entering with the intent to commit aggravated assault with a deadly weapon.
Timothy Custer, the complaining witness, had been dating Veal on and off for several months at the time of the offense. Custer said that he never gave Veal a key to his apartment. But in May 2020, he came home and found Veal hiding in his closet. Without saying a word, Veal pointed a gun at Custer and shot him in the chest. The gun jammed when Veal tried to fire it again, allowing Custer to try to gain control of the gun. Veal then hit Custer with a hammer multiple times in the skull and face before fleeing.
Veal called her friend, R. Chavez, after the shooting and asked him to pick her up, seeming frantic. Chavez picked Veal up in his truck, and she told him that she broke into Custer's apartment, shot Custer, and hit him with a hammer. Chavez dropped Veal, a veteran, off at her house so that she could call the military police; then, he reported the shooting to the Bell County Sheriff's Office.
Officer J. Mueller of the Killeen Police Department investigated. He arrested Veal on the day of the shooting at her home. He allowed Veal to grab her cell phone before leaving. Officer Mueller noticed the phone was an Android device that appeared to be passcode protected. He did not seize the phone because he believed he needed the passcode for access. Veal was booked into the Killeen City Jail, where the phone was collected along with her other personal belongings. Later, Veal and her belongings were transferred to the Bell County Loop Jail.
After a few months, Veal's counsel asked the sheriff's office for Veal's cell phone so that the contact information could be accessed in developing her defense. The sheriff's office refused to release the phone without a court order, so Veal filed a motion in the trial court. The State advised Veal's counsel that it intended to request a search warrant for a forensic evaluation of the phone. Veal objected to the issuance of a warrant, based on the lack of "new or intervening facts which would give KPD probable cause" for the warrant.
In support of the State's request, Officer Mueller executed a search warrant affidavit. In it, he recounted that Chavez said Veal had texted him before the burglary, asking him "to hold his Glock." Chavez "told [Veal] to go buy one." Chavez also told Officer Mueller that Veal called Chavez and asked to be picked up after fleeing the scene. Officer Mueller went to Veal's residence to arrest her. Veal was allowed to take her cell phone, which was passcode protected, to the Killeen City Jail. Four months later, a prosecutor asked Officer Mueller if there was any evidence on Veal's phone. Officer Mueller advised that there were texts between Veal and the complaining witness as well as between Veal and Chavez. The prosecutor asked Officer Mueller to prepare a search warrant application for the phone. To prepare the warrant affidavit, Officer Mueller confirmed with an investigator that the phone was still at the Bell County Loop Jail, where Veal had been moved.
The trial court held a hearing and, several months later, overruled Veal's objection and issued the search warrant.
Nearly eight months after the trial court ruled and the search warrant issued, Veal pleaded guilty to burglary of a habitation with intent to commit a felony and stipulated to the deadly weapon enhancement. In exchange for her plea, the State agreed not to prosecute two of the three counts in the indictment as well as a separate charge of aggravated assault against a family member with a deadly weapon.
After Veal pleaded guilty, the trial court assessed her punishment. During the sentencing hearing, Custer testified about the burglary. Chavez also testified. Over Veal's objection, he discussed several texts from Veal. The State confirmed that certain text messages were recovered from Veal's cell phone and that Chavez had used a copy of the texts to refresh his recollection. When asked on cross-examination if he had the copy with him where he could see it, Chavez answered, "Yes. I have a copy with me currently." But the texts themselves were not admitted into evidence.
Chavez testified that, about a month before the shooting, he had a text exchange with Veal. She texted him, "Do you ever feel like you have to hurt someone?" He admitted that they discussed comic book characters and the Purge movie in the same conversation, but he did not take it seriously.
In another exchange several days before the shooting, Veal texted Chavez that she was fighting with the person she was dating. She had tried to push a laptop off his lap, and when he grabbed it, she "attacked him, which made things worse." She said that she was sick of the games and that they were "going to work through [their] issues or [they were] both dying tonight."
Then, a day or two before the shooting, Veal texted Chavez and asked to borrow his Glock handgun. She had also asked to borrow the handgun several months before the shooting, because she wanted to buy one and wanted to practice with it.
After hearing testimony from three other witnesses-two KPD officers and a psychologist who evaluated Veal-the trial court sentenced Veal to 40 years' confinement.
DISCUSSION
Veal argues the trial court erred in issuing the search warrant for her cell phone because the warrant affidavit was based on stale facts that could not support probable cause. And thus, the search and seizure of her phone violated the Fourth Amendment. The State responds that Veal's staleness argument overlooks the enduring nature of cell phone data and the fact that the phone was in the custody of jail authorities from her arrest until the warrant issued.
We note that-unlike most cases in which a defendant argues the State should not have used evidence obtained in violation of the Fourth Amendment-Veal did not move to suppress the evidence. But the parties have treated her objection to the issuance of a search warrant for her cell phone as a motion to suppress, and we will do the same. The State did not claim that Veal failed to preserve error, and we are satisfied that Veal's objection to the issuance of the search warrant and to the testimony about the text messages at punishment preserve error. See Galitz v. State, 617 S.W.2d 949, 952 n.10 (Tex. Crim. App. 1981) ("A 'motion to suppress' evidence is nothing more than a specialized objection to the admissibility of that evidence."); Ratliff v. State, 320 S.W.3d 857, 860 (Tex. App.-Fort Worth 2010, pet. ref'd) ("To preserve error about the illegal seizure of evidence, a defendant must either file a motion to suppress and obtain a ruling on the motion or timely object when the State offers the evidence at trial.").
Probable Cause
The United States Constitution protects against unreasonable searches and seizures. U.S. Const. amend. IV; see also Tex. Const. art. I, § 9. The Fourth Amendment requires that "no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. The probable cause requirement means that the affidavit must provide sufficient facts for the magistrate to conclude that the item to be seized will be on the described premises at the time the warrant issues and the search executed. Crider v. State, 352 S.W.3d 704, 707 (Tex. Crim. App. 2011). "The ultimate criteria in determining the evaporation of probable cause are not found in case law, but in reason and common sense. The hare and the tortoise do not disappear over the hill at the same speed." Id.
Courts do not "assess an affidavit's staleness by counting the number of days between the events described in the affidavit and a warrant's issuance, as a merchant would beads on an abacus." United States v. Abrams, 971 F.3d 22, 33 (1st Cir. 2020). Instead, courts review various factors bearing on staleness, such as the nature and characteristics of the suspected criminal activity, and the likely endurance of the information. United States v. Allen, 625 F.3d 830, 842-43 (5th Cir. 2010); see also Crider, 352 S.W.3d at 708 (relevant factors include: (1) the type of crime (short term or continuous), (2) the suspect (nomadic or habitual), (3) the item to be seized (perishable or of enduring utility to its holder), and (4) the place to be searched (criminal forum of convenience or secure operational base)). "Probable cause ceases to exist when, at the time the search warrant is issued, it would be unreasonable to presume the items remain at the suspected place." Manuel v. State, 481 S.W.3d 278, 288 (Tex. App.-Houston [1st Dist.] 2015, pet. ref'd) (quoting McKissick v. State, 209 S.W.3d 205, 212 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd)).
A. Standard of Review
Courts employ a totality-of-the-circumstances analysis for probable cause determinations. Illinois v. Gates, 462 U.S. 213, 238 (1983); Rodriguez v. State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007). The magistrate must make a practical, commonsense decision on whether, given all the circumstances set forth in the affidavit, a fair probability exists that evidence of a crime will be found in a particular place. Gates, 462 U.S. at 238 . The reviewing court ensures that the magistrate had a "'substantial basis' for . . . concluding that probable cause existed." Id. at 238-39. "This 'substantial basis' standard of review does not mean the reviewing court should be a rubber stamp but does mean that the magistrate's decision should carry the day in doubtful or marginal cases, even if the reviewing court might reach a different result upon de novo review." Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010) (internal quotation marks omitted). Our inquiry, then, is whether the four corners of the affidavit contain sufficient facts, and inferences from those facts, to establish a "fair probability" that evidence of a particular crime will likely be found at a given location. Rodriguez, 232 S.W.3d at 62; McKissick, 209 S.W.3d at 212.
B. Staleness
Veal argues that there was no probable cause to issue the search warrant for her cell phone because the probable cause facts were stale. Veal notes that Officer Mueller provided no information in the affidavit about where Veal's phone had been during the previous four months, whether it had been kept in a secure location, or who had access to it. The State argues there was no error here because the probable cause facts were not stale, the phone remained in the custody of jail authorities, and no one tampered with the phone.
Veal argues only about the staleness of the information, not whether Officer Muller's affidavit provided sufficient facts to establish a fair probability that her cell phone would contain evidence of the burglary, so we focus on staleness. Officer Mueller's affidavit asserts that Veal had her phone when she was taken into custody and transported to Killeen City Jail in May 2020 and that he did not seize the phone because it was passcode protected. According to the affidavit, as of September 2020, four months after Veal's arrest, Veal's phone was at the Bell County Loop jail, where Veal was being held. The affidavit does not specify how the phone was kept from May to September, but we can infer from the affidavit that the phone was first at Killeen City Jail or with police upon Veal's arrest and then at Bell County Loop Jail. Because the phone was passcode protected and stored in a restrictive facility, we can further infer that access to the phone would be limited.
When evaluating the staleness of probable cause facts, this Court considers the details of the case, including the nature of the offense and the evidence sought, especially whether the evidence "is of the sort that can reasonably be expected to be kept for long periods of time in the place to be searched." See Jarnagin v. State, 392 S.W.3d 223, 228 (Tex. App.-Amarillo 2012, no pet.) (classifying electronic devices as "evidence not of a transient nature" in staleness analysis); cf. United States v. Robinson, 741 F.3d 588, 597 (5th Cir. 2014) (collecting cases holding that digital evidence information was not stale after 10 months, a year, and 13 months). Few Texas cases have addressed the staleness of digital evidence or evidence stored by law enforcement. This case is different from others involving blood evidence in driving-while-intoxicated cases or contraband in a car or house because digital evidence is not immediately perishable. What's more, evidence stored in a secure facility is unlikely to be moved or altered.
There are few Texas cases dealing with warrants seeking seizure of cell phones or other digital evidence.
Here, we have a passcode-protected cell phone stored in the Killeen Police Department or jail, then the Bell County Loop Jail. There is no reason that any information on the phone would evaporate or be tampered with. Veal has cited no case requiring chain-of-custody documentation in a warrant affidavit, and we have located none. Veal has also cited no case finding that digital information was stale after four months under similar circumstances. Although the offense was not continuing, it appears from the affidavit that Veal was arrested the day of the burglary and her phone removed from her at that time. The trial court could have inferred from the affidavit that depositing the phone with authorities the day of the burglary had the effect of freezing in time the phone's contents.
Being "highly deferential" to the magistrate's findings, we conclude that there was a "fair probability" that the cell phone would be found at the jail. See Rodriguez, 232 S.W.3d at 64. Thus, the trial court did not err by concluding that the probable cause facts in the search warrant affidavit were not stale and issuing the warrant. We overrule Veal's first issue.
Unreasonable Delay
Veal argues on appeal that the 192-day delay between her arrest and the State's application for a search warrant for her cell phone was unreasonable and thus violated the Fourth Amendment. The State responds that there was no bad faith on its part, there was a legitimate explanation for the delay, and there was no meaningful interference with Veal's possessory interest in her phone. The State further argues that the error was harmless because the text messages were not admitted into evidence and the evidence was sufficient to support the conviction.
A. Standard of review
The reasonableness of a particular seizure is ultimately a question of substantive Fourth Amendment law and thus subject to de novo review. Kothe v. State, 152 S.W.3d 54, 62-63 (Tex. Crim. App. 2004).
B. Error preservation
We may not determine whether a trial court erred unless error is preserved for our review. See Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003). A party must first complain in the trial court to preserve a complaint for appellate review. Tex.R.App.P. 33.1(a); Landers v. State, 402 S.W.3d 252, 254 (Tex. Crim. App. 2013). The party's complaint must state "the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context." Tex.R.App.P. 33.1(a)(1)(A). If the ground for exclusion of evidence was obvious to the trial court, waiver will not result from an imprecise objection. Nelson v. State, 405 S.W.3d 113, 127 (Tex. App.-Houston [1st Dist.] 2013, pet. ref'd). "But when the context shows that a party failed to effectively communicate his argument, then the error will be deemed forfeited on appeal." Resendez v. State, 306 S.W.3d 308, 313 (Tex. Crim. App. 2009).
A complaint that could be read to express more than one legal argument will generally not preserve all potentially relevant arguments for appeal. Id. at 314. Instead, only when there are "clear contextual clues" indicating that the party was making a particular argument will that argument be preserved. Id. An appellant's trial objection must be timely and specific, and it must match his objection on appeal, or error is waived. Tex.R.App.P. 33.1(a)(1)(A); Landers, 402 S.W.3d at 254; Gallo v. State, 239 S.W.3d 757, 768 (Tex. Crim. App. 2007).
"For reasons of judicial economy and comity, an appellate court must find that a party has failed to preserve error if the party fails to first allow the trial court an opportunity to make a ruling." Cruse v. State, 882 S.W.2d 50, 52 (Tex. App.- Houston [14th Dist.] 1994, no pet.). Making an argument to the appellate court that was not raised to the trial court "usurps the trial court's function[.]" Id.; see also Van Horn v. State, No. 10-15-00394-CR, 2016 WL 936275, at *1 (Tex. App.-Waco Mar. 10, 2016, pet. ref'd) (mem. op., not designated for publication) (appellate courts maintain their status as independent tribunals by limiting their review to error that is preserved in the trial court).
Veal's objection to the issuance of the warrant was one sentence: "There is no factual basis at this time to support a finding of probable cause for the surrender and forensic evaluation of Defendant's telephone." At the hearing, Veal's counsel argued that (1) Veal had an expectation of privacy in the phone, (2) by not seizing the phone when Veal was arrested, the State had waived the ability to seize it, (3) Veal would not give her phone's passcode to police, and (4) there were no new intervening facts that would give rise to probable cause. After the hearing, Veal's brief in support of her objection was three paragraphs, none of which mentioned the length or unreasonableness of the delay. The brief reiterated the arguments from the hearing: (1) there were "no new or intervening facts which would give KPD probable cause at this time"; (2) Veal had "a legitimate expectation of privacy in the contents of her telephone"; and (3) Veal did not have to provide her passcode to her phone.
Veal's assertion of waiver in the trial court based on the State's failure to seize the phone "back in May of 2020," when she was arrested, is not the same as her assertion on appeal that the State could not search the phone because an unreasonable amount of time had passed. The reasonableness of any delay in requesting the search warrant depends on several factors Veal did not raise in the trial court, not just on the State's actions or inactions on the date of her arrest. See, e.g., United States v. Laist, 702 F.3d 608, 613-14 (11th Cir. 2012) (identifying several, non-exhaustive factors relevant to a delay inquiry, including "the significance of the interference with the person's possessory interest," "the duration of the delay," "whether or not the person consented to the seizure," "the government's legitimate interest in holding the property as evidence," whether "the police diligently pursue[d] their investigation," "the nature and complexity of the investigation," whether "overriding circumstances arose," and "any other evidence proving or disproving law enforcement's diligence in obtaining the warrant").
At punishment, when the State sought to elicit testimony from Chavez about his texts with Veal, Veal's counsel "renew[ed]" the objection that the texts were from Veal's phone that was "illegally analyzed" by the State "in violation of the 4th, 5th, and 14th Amendment[s] to the U.S. Constitution, Article 1 Section 9 of the Texas Constitution, and Article 18.01 of the Texas Code of Criminal Procedure." But Veal did not object to the length of the delay.
Veal had four opportunities to raise the unreasonable delay objection to the issuance of the warrant and the use of the information retrieved from the cell phone. First, in her objection to the issuance of the warrant; second, at the hearing on the objection; third, in her post-hearing brief in support of the objection; and fourth, as the State elicited testimony based on texts from Veal to Chavez at punishment. At no time did Veal object that the State's interest in the evidence was outweighed by her possessory interest in the phone or that the delay was unreasonable. The first time Veal argued unreasonable delay was before this Court in a supplemental brief. Because the issue raised here does not match the objections raised with the trial court, the issue is waived. Tex.R.App.P. 33.1(a)(1)(A); Resendez, 306 S.W.3d at 313. We overrule Veal's second issue.
CONCLUSION
Because Veal has not shown that there was not a fair probability that a passcode-protected cell phone containing evidence of communications related to the offense would be found at the Bell County Loop Jail, the trial court did not err in issuing the warrant. And Veal did not preserve the unreasonable delay issue for our review. We therefore affirm the trial court's judgment.
DISSENTING OPINION
Justice Goodman, dissenting.
Because I believe Veal sufficiently preserved error for our review of her Fourth Amendment unreasonable-delay claim, I would address the merits of her claim. Veal established the search warrant for her cell phone was issued in violation of her Fourth Amendment rights because the State seized her cell phone for an unreasonable amount of time before obtaining the search warrant, and the State did not meet its burden on appeal to show this violation was harmless beyond a reasonable doubt, so Veal's conviction should be reversed. I, therefore, respectfully dissent.
DISCUSSION
Veal argues the trial court erred in issuing the search warrant for her cell phone because the warrant affidavit was based on stale facts and the State unreasonably delayed in obtaining the search warrant, constituting an unreasonable search and seizure in violation of the Fourth Amendment. She argues the State should not have used any evidence from the cell phone. While I agree with the majority's analysis of the staleness issue, I disagree with the majority's conclusion that Veal did not preserve error on this issue, and I would reverse Veal's conviction based on the State's unreasonable delay in obtaining the search warrant.
Error Preservation
The Court of Criminal Appeals has cautioned against a "slavish and unforgiving approach" to error preservation. Lankston v. State, 827 S.W.2d 907, 908 (Tex. Crim. App. 1992). The standards for preserving error "are not to be implemented by splitting hairs in the appellate courts." Id. at 909. Instead,
all a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a
time when the trial court is in a proper position to do something about it.Id.
The Court of Criminal Appeals has extended this concept so far as to hold a defendant "need not state his objection with specificity" so long as the record clearly shows that "both the trial court and the opposing party understood the legal basis." Thomas v. State, 408 S.W.3d 877, 884 (Tex. Crim. App. 2013); see also Tex. R. App. P. 33.1(a)(1)(A) (to preserve error, record must show complaint was made to trial court that "stated the grounds for the ruling . . . with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context" (emphasis added)). The purpose of raising a specific objection to preserve error is to allow the trial court an opportunity to avoid error or provide a timely and appropriate remedy and to give the opposing party an opportunity to respond. Thomas, 408 S.W.3d at 884. "So long as it appears from an appellate record that these policies have been satisfied, it should not matter to the appellate court whether the objecting party used a particular 'form of words'-or any particular words at all, if meaning is adequately conveyed by context." Id. at 884-85 (quoting Lankston, 827 S.W.2d at 909). "Rather than focus on the presence of magic language, a court should examine the record to determine whether the trial court understood the basis of a defendant's request." State v. Rosseau, 396 S.W.3d 550, 555 (Tex. Crim. App. 2013).
In holding that Veal failed to preserve error regarding her unreasonable-delay claim, the majority ignores the following statements made by defense counsel at the hearing on the motion to release Veal's cell phone:
• "The State of Texas, through Killeen Police Department, had the opportunity to seize that phone, make any attempt to analyze that phone they chose to make back in May 2020. They decided not to do that. We take the position that they have waived any claim or any right to seize and analyze that phone by the actions they took back in May of 2020."
• "There are no new or intervening facts and circumstances that would give rise to any probable cause now that did not exist back in . . . May 2020. In May of 2020, they elected not to seize that phone. There's been no change in the status of elements or of circumstances."
• "[E]ven after [Detective Mueller] talked to Mr. Custer on May 21, we are now four months later, and he's just now making the request for the issuance of a warrant. For whatever reason, we believe the Killeen Police Department has waived the right to take possession of the phone . . . ."
• "And certainly the request [for a search warrant], Judge, has to be based on probable cause that is timely at that time, you know? And we're saying that it has sailed. They had that opportunity back in May of 2020."
These statements indicate that an unreasonable amount of time had passed before the State requested a search warrant. The record shows defense counsel made an unreasonable-delay argument before the trial court; thus, we should not concern ourselves with a formalistic use of "particular words" or "magic language."
Even if defense counsel's statements were not sufficiently specific, the meaning of the objection was apparent from the context because the record shows both the State and the trial court were aware of the unreasonable-delay claim. The State clearly understood Veal's motion for the release of her cell phone as a Fourth Amendment complaint about the unreasonableness of the delay in seizing her cell phone. The State's brief in response to that motion says, "Defendant also appears to contend that the State waited too long to seek a search warrant such that the delay is now unreasonable," citing United States Supreme Court precedent for analyzing unreasonable delays in the context of the Fourth Amendment. The State spends the next 17 paragraphs of its brief laying out the law on unreasonable delays and analyzing Veal's unreasonable-delay claim.
The trial court implicitly agreed with the State's analysis and overruled Veal's objection when it granted the search warrant for Veal's cell phone and when it allowed discussion of the cell-phone evidence over Veal's objection at trial. See Tex. R. App. P. 33.1(a)(2)(A) (to preserve error, record must show complaint was made to trial court and trial court ruled "either expressly or implicitly" (emphasis added)). Thus, the trial court had an opportunity to avoid the error and the State had an opportunity to-and did-respond to Veal's unreasonable-delay claim. See Thomas, 408 S.W.3d at 884 (purpose of raising specific objection to preserve error is to allow trial court opportunity to avoid error and to give opposing party opportunity to respond and error is preserved when these purposes are satisfied). Because the meaning was adequately conveyed by context, the error was preserved in the trial court. See id. at 884-85.
On appeal, Veal raised the unreasonable-delay argument in a supplemental brief, claiming error was preserved because the State understood her argument and addressed that argument in its response brief before the trial court. The State did not dispute that Veal had preserved error on this issue in the trial court in its reply brief before this court. The State appears to agree that error was preserved.
Though we have an independent obligation to address error preservation even if not raised by the parties, see Hughes v. State, 878 S.W.2d 142, 151 (Tex. Crim. App. 1992) (explaining error preservation is a "systemic requirement" that appellate courts should address), we should not independently find an error was not preserved where both parties appear to agree that error was preserved and the record shows the issue was before the trial court. The majority does a disservice to Veal's constitutional protections by refusing to consider her Fourth Amendment unreasonable-delay argument that was plainly before the trial court.
Because I would hold that Veal preserved error in the trial court, I would proceed to analyze the merits of her Fourth Amendment unreasonable-delay claim, and I would hold that the State unreasonably delayed in seizing her cell phone for at least 192 days, in violation of her Fourth Amendment rights.
Unreasonable Delay
Veal argues the State seized her cell phone for an unreasonable amount of time before obtaining a search warrant, in violation of the Fourth Amendment. Evidence obtained from the cell phone, she argues, should have been excluded.
The United States Constitution protects against unreasonable searches and seizures. U.S. Const. amend. IV; see also Tex. Const. art. I, § 9. No evidence obtained in violation of the United States or Texas Constitutions can be admitted as evidence against the accused at trial. Tex. Code Crim. Proc. art. 38.23. A seizure of property occurs when "there is some meaningful interference with an individual's possessory interests in that property." Soldal v. Cook County, 506 U.S. 56, 61 (1992) (quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984)); Castleberry v. State, 425 S.W.3d 332, 334 (Tex. App.-Houston [1st Dist.] 2011, pet. ref'd). Law enforcement officers may reasonably seize personal property incident to an arrest and hold it while they seek a search warrant. State v. Granville, 423 S.W.3d 399, 412 (Tex. Crim. App. 2014). But "a seizure reasonable at its inception . . . may become unreasonable as a result of its duration." Segura v. United States, 468 U.S. 796, 812 (1984).
There is no "bright line" past which a seizure becomes unreasonable. United States v. Burgard, 675 F.3d 1029, 1033 (7th Cir. 2012). Instead, courts assess the reasonableness of a seizure by weighing the person's possessory interest in the seized item against the importance of the government's interest in retaining the item. Id. We consider the reasonableness of the delay "in light of all the facts and circumstances" on a "case-by-case basis." United States v. Mitchell, 565 F.3d 1347, 1351 (11th Cir. 2009) (per curiam) (quoting United States v. Mayomi, 873 F.2d 1049, 1054 n.6 (7th Cir. 1989)). Thus, depending on the particular facts and circumstances, a delay of 21 days can be unreasonable, id at 1353, but a delay of 90 days can be reasonable, United States v. Stabile, 633 F.3d 219, 236 (3d Cir. 2011).
Relevant factors courts may consider in assessing reasonableness include: (1) "the significance of the interference with the person's possessory interest"; (2) "the duration of the delay"; (3) whether "the person consented to the seizure"; (4) "the government's legitimate interest in holding the property as evidence"; and (5) whether law enforcement "diligently pursue[d] their investigation." United States v. Laist, 702 F.3d 608, 613-14 (11th Cir. 2012) (alteration in original) (quoting United States v. Place, 462 U.S. 696, 709 (1983)). As for law-enforcement diligence, we consider the "nature and complexity of the investigation," whether any "overriding circumstances arose" that required law enforcement to focus on another case, the "quality of the warrant application and the amount of time we expect such a warrant would take to prepare," and any other relevant evidence showing law enforcement's diligence or lack thereof. Id. at 614 (quoting Mitchell, 565 F.3d at 1353). These factors are not exhaustive. Id.
Because of a cell phone's capability to store large amounts of private personal details, a person has a reasonable and legitimate expectation of privacy in the contents of her cell phone. Granville, 423 S.W.3d at 408. And she does not lose that expectation of privacy if she is arrested and the cell phone is stored in a jail property room. Id. at 417. Law enforcement officers may seize a person's cell phone incident to an arrest, search the outside of the cell phone, and hold it while they seek a search warrant. Id. at 412, 416. But they must obtain a search warrant before searching the contents of the cell phone. Id. at 417; see also Riley v. California, 573 U.S. 373, 386 (2014).
Standard of Review
The reasonableness of a particular seizure is ultimately a question of substantive Fourth Amendment law and thus subject to de novo review. Kothe v. State, 152 S.W.3d 54, 62 (Tex. Crim. App. 2004).
Analysis
Veal surrendered her cell phone when she was booked in the Killeen city jail on May 12, 2020. Veal was later transferred to the Bell County jail, and her cell phone was held in the property room of the Bell County jail along with her other personal effects. In August, Veal's attorneys asked the sheriff's department and later the trial court to release her cell phone so they could develop her defense.
At the time of the hearing on the pretrial motion to release the cell phone, Detective Mueller had not yet applied for a search warrant even though Veal had been in custody for several months and he had learned from his conversations with Custer and Chavez that the cell phone might contain relevant evidence. When asked why, he explained it was because he believed he could not access the contents without the passcode. The trial court issued the signed search warrant for the cell phone on March 31, 2021. This was 323 days after Veal was arrested and 192 days after her attorneys asked the sheriff's department to release the cell phone.
Veal does not know exactly when her attorneys first requested the cell phone, but it was sometime in August, so Veal assumes they made the request, at the latest, on August 31, 2020. Veal argues in her appellate brief that the delay was 192 days, counting from the day she assumes her attorneys requested the cell phone. Whether the State delayed 192 days or 323 days in obtaining a search warrant does not affect this analysis, so I refer to the delay as 192 days, as Veal does.
Weighing Veal's possessory interest in her cell phone against the State's interest in retaining the cell phone, the 192-day delay was unreasonable. See Burgard, 675 F.3d at 1033.
The first factor to consider is the significance of the interference with Veal's possessory interest in her cell phone. See Laist, 702 F.3d at 613. Her possessory interest was "reduced" at first because she was in custody the entire time the cell phone was seized and personally could not make use of it. See United States v. Sullivan, 797 F.3d 623, 633 (9th Cir. 2015) ("Where individuals are incarcerated and cannot make use of seized property, their possessory interest in that property is reduced."); see also Segura, 468 U.S. at 813 (defendants' possessory interests were "virtually nonexistent" because they were under arrest and in custody of police during entirety of seizure). Thus, the interference with her possessory interest was minimal at first. But Veal's attorneys requested the cell phone, and they asserted they needed the cell phone to develop Veal's defense. By making this request, Veal's attorneys asserted her possessory interest over the cell phone. See Burgard, 675 F.3d at 1034 (defendant asserted possessory interest over cell phone by seeking its return); cf. United States v. Sykes, 65 F.4th 867, 879 (6th Cir. 2023) (finding minimal interference with defendant's possessory interest in cell phone during 42-day delay because defendant was incarcerated and "never requested that his phone be returned or turned over to someone else"); United States v. Bragg, 44 F.4th 1067, 1072 (8th Cir. 2022) (finding minimal interference with defendant's possessory interest in cell phone during 24-day delay because defendant was in police custody and there was "no evidence that either [the defendant] or anyone acting on his behalf made a request or demand for its return, or even inquired about it"). Even though Veal was in custody for the entire 192-day delay, she asserted her possessory interest over the cell phone, and this factor weighs against reasonableness.
The second factor, duration of the delay, also weighs against reasonableness. See Laist, 702 F.3d at 613. Veal asserts the State seized her cell phone for 192 days before obtaining a search warrant. Much shorter delays than this have been "of concern" and troubling for Fourth Amendment purposes. See Bragg, 44 F.4th at 1072 (describing 24-delay as "of concern" but ultimately concluding delay was reasonable); Stabile, 633 F.3d at 236 (finding 90-day delay troubling but ultimately reasonable under specific circumstances); see also United States v. Smith, 967 F.3d 198, 207 (2d Cir. 2020) (noting that "a month-long delay well exceeds what is ordinarily reasonable"). And courts have found much shorter delays to be unreasonable. See Smith, 967 F.3d at 211 (finding 31-day delay unreasonable); Mitchell, 565 F.3d at 1353 (finding 21-day delay unreasonable). The delay in this case is considerably longer than the delays found to be reasonable in any published case identified by the parties. See Stabile, 633 F.3d at 236 (finding 90-day delay reasonable); Sykes, 65 F.4th at 879 (finding 42-delay reasonable); Laist, 702 F.3d at 619 (finding 25-day delay reasonable). Thus, this factor weighs against reasonableness.
The parties do not dispute the third factor, whether Veal consented to the seizure. See Laist, 702 F.3d at 614. She did not consent, and this factor weighs against reasonableness. See Smith, 967 F.3d at 208 (finding delay unreasonable in part because defendant did not consent to seizure and distinguishing case from those where courts found "diminished property interest" in seized item because defendant consented to seizure); cf. Stabile, 633 F.3d at 235 ("[W]here a person consents to search and seizure, no possessory interest has been infringed because valid consent, by definition, requires voluntary tender of property.").
The parties also do not dispute the fourth factor, the State's interest in holding the property as evidence, and this factor weighs in favor of reasonableness. See Laist, 702 F.3d at 614. Detective Mueller testified that his conversations with Chavez and Custer led him to believe there was evidence relevant to the shooting stored in the cell phone, and Veal admits the State arguably had probable cause to search her cell phone. The State has a stronger interest in holding seized evidence based on probable cause, and thus courts tolerate a longer delay, than for holding seized evidence based on reasonable suspicion alone. See Burgard, 675 F.3d at 1033.
Finally, the last factor, whether law enforcement diligently pursued their investigation, weighs against reasonableness. See Laist, 702 F.3d at 614. The State provided no evidence that this investigation was particularly complex-Mueller identified Veal as the shooter and arrested her on the same day that the shooting took place-and provided no evidence that the warrant affidavit required any unusually significant amount of time to prepare. See id. Nor was there any evidence of overriding circumstances that required law enforcement to focus on another case. See id While these considerations are not the exclusive means to show law-enforcement diligence, see id, the State's only explanation for the delay was that Detective Mueller believed he would not be able to access the contents of Veal's cell phone without a passcode. This explanation is insufficient. Cf. Sykes, 65 F.4th at 878-79 (finding delay reasonable where officer testified in detail about 14 other investigative activities he was pursuing in defendant's case at same time as obtaining search warrant for defendant's cell phone); Bragg, 44 F.4th at 1073 (finding delay reasonable where detective testified he was working on multiple cases and logically explained why he gave another search warrant higher priority); Stabile, 633 F.3d at 236 (finding delay reasonable where lead case agent was called to Secret Service assignment "protecting the President and other high officials").
The State relies on King v. State, an unpublished opinion in which the Austin Court of Appeals found a 20-month delay to be reasonable even though the State offered no explanation for the delay. No. 03-17-00276-CR, 2018 WL 5728765, at *9 (Tex. App.-Austin Nov. 2, 2018, pet. ref'd) (mem. op., not designated for publication). As the present case was transferred to us from the Austin Court of Appeals, we must follow that court's precedent where it differs from our own. See Tex. R. App. P. 41.3. But King was designated as "do not publish," and, as such, it has "no precedential value." Tex.R.App.P. 47.2(b), 47.7(a). And the State's failure to offer any reasonable explanation is unpersuasive in the present case.
Four of the five factors to consider in assessing the reasonableness of the delay in obtaining a search warrant weigh against reasonableness. Thus, under these facts and circumstances, the delay of at least 192 days was unreasonable. Because the delay was unreasonable, the trial court erred in granting the application for a search warrant when it did. Any evidence from Veal's cell phone was obtained in violation of her Fourth Amendment rights.
Harm Analysis
Having concluded evidence from Veal's cell phone was obtained in violation of her Fourth Amendment rights, the next step is to determine whether this was a harmful error that calls for reversal of the judgment.
Applicable Law
A constitutional error is one that "directly offends the United States Constitution." Thompson v. State, 95 S.W.3d 537, 542 (Tex. App.-Houston [1st Dist.] 2002, no pet.). The use of evidence obtained in violation of the Fourth Amendment is constitutional error, and we review the resulting harm under the harmless-error standard of Texas Rule of Appellate Procedure 44.2(a). See Tex. R. App. P. 44.2(a); Hernandez v. State, 60 S.W.3d 106, 108 (Tex. Crim. App. 2001). Under that rule, we must reverse the judgment of conviction unless we "determine beyond a reasonable doubt that the error did not contribute to the conviction or punishment." Tex.R.App.P. 44.2(a); see also Wells v. State, 611 S.W.3d 396, 410 (Tex. Crim. App. 2020).
In determining whether a particular error in a case tried to a jury was harmful, courts consider: (1) "the nature of the error"; (2) "whether [the error] was emphasized by the State"; (3) "the probable implications of the error"; and (4) "the weight the jury would likely have assigned to it." Snowden v. State, 353 S.W.3d 815, 822 (Tex. Crim. App. 2011). The erroneous admission of evidence is harmless where it is cumulative of other properly admitted evidence or where there is other overwhelming evidence supporting the jury's verdict. Wells, 611 S.W.3d at 410; Lopez v. State, 615 S.W.3d 238, 266 (Tex. App.-El Paso 2020, pet. ref'd).
But when, as here, a defendant pleads guilty and does not go to trial, the usual harm factors are inapplicable-we cannot assess whether the State emphasized an error, its implications to the jury, or the weight the jury would have assigned to it. Instead, our analysis focuses on whether the error "contributed in some measure to the State's leverage in the plea[-]bargaining process," Kraft v. State, 762 S.W.2d 612, 614 (Tex. Crim. App. 1988), or whether it could have been a factor in the defendant's decision to plead guilty, Chidyausiku v. State, 457 S.W.3d 627, 631-32 (Tex. App.-Fort Worth 2015, pet. ref'd); see also McKenna v. State, 780 S.W.2d 797, 799-800 (Tex. Crim. App. 1989) (applying Kraft harmful-error analysis to guilty plea in felony context); Holmes v. State, 323 S.W.3d 163, 173-74 (Tex. Crim. App. 2009) (applying Kraft and McKenna harmful-error analysis to defendants' guilty pleas). Our inquiry is not whether there was other sufficient evidence to support the conviction, but whether the pretrial evidentiary ruling could have affected the defendant's decision to plead or go to trial. As the Court in Kraft v. State explained:
Just because other, unspecified evidence, not subject to a motion to suppress, might have been legally sufficient to support a verdict of guilt had the cause gone to trial, does not mean that the evidence appellant did seek to suppress could not have been, in his decision whether to put the State to its proof, the straw that broke the proverbial camel's back.762 S.W.2d at 614. More recently, intermediary courts of appeals have continued to apply the standard laid out in Kraft, McKenna, and Holmes in assessing constitutional harm in the context of a guilty plea. See, e.g., McCurley v. State, 653 S.W.3d 477, 492 (Tex. App.-Fort Worth 2022, pet. ref'd) ("When a defendant pleads guilty after obtaining a pretrial ruling denying his motion to suppress evidence, the appellate court's determination of harm focuses on whether the error contributed to his decision to plead guilty."); Marcopoulos v. State, 548 S.W.3d 697, 708 (Tex. App.-Houston [1st Dist.] 2018, pet. ref'd) (citing Kraft, McKenna, and Holmes and stating "[i]t has long been the rule in Texas that, when a defendant pleads guilty after a trial court denies a motion to suppress and when the evidence subject to the motion could have given the State leverage in the plea[-]bargaining process, then harm is established").
I would argue the State has a higher burden of proof to show harmlessness in guilty-plea cases than in jury-trial cases. First, in assessing harm in guilty-plea cases, we may not simply rely on independent evidence of the defendant's guilt, see Kraft, 762 S.W.2d at 614, yet independent evidence of guilt is a factor in assessing harm in jury-trial cases, see Wells, 611 S.W.3d at 410; Lopez, 615 S.W.3d at 266. Second, in assessing harm in guilty-plea cases, an appellate court may not speculate as to the weight a defendant would have assigned any particular evidence before choosing to plead guilty, see Kraft, 762 S.W.2d at 614 (declining to consider whether other evidence alone was sufficient to cause defendant to plead guilty because "[s]uch an undertaking . . . would be utterly speculative"). Yet in a jury-trial case, we essentially speculate on the weight the jury would have assigned to the error. See Snowden, 353 S.W.3d at 822. Third, in assessing harm in guilty-plea cases, the State must prove the error did not contribute to the defendant's decision to plead guilty, see Chidyausiku, 457 S.W.3d at 631-32, but often harm can be established simply by the timing of the defendant's decision to plead guilty, e.g., Marcopoulos, 548 S.W.3d at 707 (concluding harm was established because defendant "pleaded guilty only after the trial court denied his motion to suppress" (emphasis added)).
I believe this higher burden of proof has developed as the standard in guilty-plea cases as an additional protection for defendants who choose to waive the protections afforded by a jury trial. The drafters of the Texas Constitution thought the right to trial by jury was so fundamental that they mandated a jury trial in every felony case. Tex. Const. art. I § 10. Though generally accepted, modern plea-bargaining practices do not uphold this mandate because these practices deny the defendant a constitutionally guaranteed trial by jury. See id.; see also Farris v. State, 581 S.W.3d 920, 927 (Tex. App.-Houston [1st Dist.] 2019, pet. ref'd) (Goodman, J., dissenting) ("[A]rticle I, section 10 of the Texas Constitution means exactly what it says"-the provision "states a mandate for conducting jury trials in [felony] prosecution[s]"); Pacas v. State, 612 S.W.3d 588, 597 (Tex. App.-Houston [1st Dist.] 2020, pet. ref'd) (Goodman, J., dissenting) ("Article I, section 10 imposes an absolute requirement that cannot be forfeited or waived.").
Regardless of whether the error occurred in a guilty-plea case or a jury-trial case, the State, as the beneficiary of the error, has the burden to prove the constitutional error was harmless beyond a reasonable doubt. Haggard v. State, 612 S.W.3d 318, 328 (Tex. Crim. App. 2020); Wells, 611 S.W.3d at 411; see also Deck v. Missouri, 544 U.S. 622, 635 (2005); Chapman v. California, 386 U.S. 18, 24 (1967).
Analysis
The State argues there was no reversible error in this case because the text messages were not introduced into evidence and there was other, independent evidence of Veal's guilt to support her conviction. Construing the brief liberally, see Tex. R. App. P. 38.9 (requiring appellate courts to construe briefs liberally), I consider this to be an argument that any error complained of was harmless because of the independent evidence of her guilt. But this argument is unavailing. The State argues that when the evidence sought to be suppressed is not actually admitted into evidence, as long as there is sufficient other evidence to support the conviction, then an erroneous pretrial ruling regarding that evidence is not reversible error. For this proposition, the State relies on Brewster v. State, 606 S.W.2d 325, 328 (Tex. Crim. App. 1980) ("[A]n erroneous ruling on a motion to suppress will not vitiate a conviction where the evidence sought to be suppressed is not introduced and the guilty plea is supported by other evidence independently of that contested by the motion") Brewster, in turn, relies on Ferguson v. State for the same proposition 571 S.W.2d 908, 909 (Tex. Crim. App. 1978), overruled by Morgan v. State, 688 S.W.2d 504, 507 (Tex. Crim. App.. 1985) But the Court of Criminal Appeals in 1985 expressly overruled Ferguson Morgan, 688 S.W.2d at 507; see also Id. at 508 (Teague, J, concurring) (encouraging majority opinion, "in order that there be no mistake or misunderstanding about what the majority opinion is actually holding," to also expressly overrule Brewster). Thus, independent evidence of guilt, such as a defendant's judicial confession, does not bar a review on the merits of a pretrial evidentiary ruling. Morgan, 688 S.W.2d at 507-08. In other words, there may still be error in a pretrial evidentiary ruling even if there is independent evidence of guilt.
This Court has already addressed a surprisingly similar issue in Marcopoulos v. State. See 548 S.W.3d at 708. In that case, the State argued that the appellant could not have suffered any harm from a pretrial motion to suppress evidence because there was other evidence to support the conviction, and the State relied on Snyder v. State, 629 S.W.2d 930, 933 (Tex. Crim. App. 1982), which quoted the same passage from Ferguson cited in Brewster. This Court acknowledged that Ferguson has been overruled, and thus, the passage in Snyder on which the State relied-the same passage cited in Brewster on which the State relies here-is "no longer the law of Texas." Marcopoulos, 548 S.W.3d at 708.
The State's reliance on Brewster is misplaced. A reviewing court does not consider whether there was sufficient other evidence of guilt in assessing whether a constitutional error contributed to the State's leverage in the plea-bargaining process or could have been a factor in the defendant's decision to plead guilty. See Kraft, 762 S.W.2d at 614; see also Marcopoulos, 548 S.W.3d at 707-08 (rejecting State's argument that other evidence of guilt rendered erroneous ruling on suppression motion harmless in guilty-plea case); Roop v. State, 484 S.W.3d 594, 602 (Tex. App.-Austin 2016, pet. ref'd) (finding harmful error in trial court's failure to suppress blood-test results in guilty-plea DWI case, even though record contained other evidence of intoxication).
As for the State's argument that there was no reversible error and thus no harm because the text messages were not admitted into evidence, in guilty-plea cases, there may still be harm even if the evidence sought to be suppressed was never admitted because the evidentiary ruling itself can contribute to the State's leverage in the plea-bargaining process and can be a factor in the defendant's decision to plead guilty. Gonzales v. State, 966 S.W.2d 521, 524 (Tex. Crim. App. 1998) ("[T]he defendant is not required to have the contested evidence admitted as a prerequisite to an appeal from the denial of the motion to suppress following a guilty plea.").
The State also argues that Veal's judicial confession alone is sufficient to support her conviction, which could be construed as an argument that any error in using the text messages was harmless. See Tex. R. App. P. 38.9 (requiring appellate courts to construe briefs liberally). But this argument is inapposite. First, as discussed above, independent evidence of guilt, such as a judicial confession, does not prevent a court from reviewing the merits of a pretrial evidentiary ruling-a reviewing court may still determine whether evidence was properly obtained even though the defendant judicially confessed. See Morgan, 688 S.W.2d at 507-08. Second, in support of this argument, the State cites two cases discussing sufficiency of the evidence to support a criminal conviction under Article 1.15 of the Code of Criminal Procedure, which is not the issue in this case. See Richardson v. State, 482 S.W.2d 645, 645-46 (Tex. Crim. App. 1972) (citing Article 1.15 and noting defendant's judicial confession, standing alone, was sufficient to support his conviction); Stewart v. State, 12 S.W.3d 146, 148 (Tex. App.-Houston [1st Dist.] 2000, no pet.) ("A judicial confession alone is sufficient evidence to sustain a conviction upon a guilty plea under [A]rticle 1.15."). Whether Veal's judicial confession would be sufficient evidence to support a conviction under Article 1.15 of the Code of Criminal Procedure does not affect whether evidence was obtained in violation of the Fourth Amendment. Thus, there may still be error in the pretrial evidentiary ruling even though Veal judicially confessed.
The State has not shown that the error did not contribute to the State's leverage in the plea-bargaining process or that it was not a factor in Veal's decision to plead guilty. See Kraft, 762 S.W.2d at 614; Chidyausiku, 457 S.W.3d at 631-32. The State's arguments address only factors a reviewing court does not consider in analyzing harm in guilty-plea cases-independent evidence of guilt, not admitting complained-of evidence, and the existence of a judicial confession. See Kraft, 762 S.W.2d at 614 (whether other evidence might have sustained guilty verdict does not affect whether evidence sought to be suppressed contributed to guilty plea); Gonzales, 966 S.W.2d at 524 (evidence need not be admitted for defendant to appeal pretrial evidentiary ruling following guilty plea); Morgan, 688 S.W.2d at 507-08 (judicial confession does not prevent appellate court from reviewing merits of pretrial evidentiary ruling). The State did not meet its burden to prove the error was harmless beyond a reasonable doubt. See Tex. R. App. P. 44.2(a); Haggard, 612 S.W.3d at 328 (State has burden to prove constitutional error was harmless beyond reasonable doubt); Wells, 611 S.W.3d at 411 (same).
Rule 44.2(a) requires us to reverse the judgment unless harmlessness is shown. See Tex. R. App. P. 44.2(a). Because the State did not meet its burden to prove the constitutional error was harmless beyond a reasonable doubt, I would reverse the conviction.
There are a number of errors that contributed to the violation of Veal's constitutional rights in this case, and we cannot look the other way based on a technicality like error preservation. The State seized Veal's cell phone for months and offered no reason for the delay. At trial, the State printed out text messages from the illegally obtained cell phone and allowed the witness to not only use the printout but hold it in his hands while testifying about the contents of the text messages, without ever formally admitting the text messages into evidence so that it could argue on appeal there was no error because the text messages were never admitted. On appeal, the State did not attempt to meet its burden to show the constitutional error was harmless and instead relied on the fact that the text messages were never admitted into evidence and on Veal's guilt. Even defendants with incontrovertible evidence of guilt have constitutional rights, and we have a duty not to look the other way when those rights are violated.
CONCLUSION
Because error was sufficiently preserved and, under the circumstances of this case, the delay in obtaining the warrant to search Veal's cell phone was unreasonable, the trial court should not have issued the search warrant when it did. Doing so violated Veal's Fourth Amendment rights. The State failed to meet its burden to prove the error was harmless beyond a reasonable doubt. I would, therefore, reverse the trial court's judgment of conviction and remand for a new trial.