Natalie Ausbie Reynolds v. State , 2016 Tex. App. LEXIS 12672 ( 2016 )


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  •                     In The
    Court of Appeals
    Sixth Appellate District of Texas at Texarkana
    No. 06-15-00194-CR
    NATALIE AUSBIE REYNOLDS, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 354th District Court
    Hunt County, Texas
    Trial Court No. 29263
    Before Morriss, C.J., Moseley and Burgess, JJ.
    Opinion by Chief Justice Morriss
    OPINION
    In June 2012, it was reported to the Greenville, Texas, office of the Texas Department of
    Family and Protective Services (the Department) that a fifteen-year-old girl, A.K.,1 had run away
    from home, had troubling activities and associations—using illegal drugs and living with non-
    family adult males—and needed the Department’s assistance.2 On June 13, 2012, the Hunt County
    Sheriff’s Department located A.K. at the home of a twenty-three-year-old male and transported
    her to the Hunt County Juvenile Detention Center. On A.K.’s arrival, the center’s personnel took
    A.K.’s personal effects, including a bracelet, a ring, and her cell phone. The subsequent actions
    of Natalie Ausbie Reynolds, a supervisor for the Department, and Rebekah Thonginh Ross, one of
    the Department investigators, regarding the seizure and search of A.K.’s cell phone are the basis
    for this case in which Reynolds has been convicted of official oppression.3
    On appeal, Reynolds challenges the legal sufficiency of the evidence to support her
    conviction. We affirm the judgment of the trial court, because (1) legally sufficient evidence
    supports the finding that Reynolds, either as a primary actor or as a party with Ross, intentionally
    seized and searched A.K.’s cell phone; (2) legally sufficient evidence supports the finding that the
    1
    We will refer to the child by initials in order to protect her identity. See TEX. R. APP. P. 9.10.
    2
    On June 13, 2012, the Department received a telephone call from Brenda Robertson, A.K.’s guardian, informing the
    Department that A.K. ran away from home two weeks before and that she needed the Department’s assistance. During
    the call, Robertson explained that A.K. had been using methamphetamine and marihuana. A.K. had been with
    Robertson since July 2011, because A.K.’s mother, H.K., did not want to care for her. In fact, A.K.’s mother wanted
    to terminate her parental rights to A.K. and A.K.’s father was incarcerated for various offenses.
    3
    Following her bench trial, Reynolds was sentenced to one year in county jail, but the sentence was suspended, and
    she was placed on community supervision for a period of two years, conditioned on Reynolds spending thirty days in
    county jail.
    2
    actions were tortious; and (3) legally sufficient evidence supports the finding that Reynolds knew
    the actions were tortious.
    In a single point of error, Reynolds contends that the State failed to present sufficient
    evidence to support a verdict of guilt.4 Though there is only one point of error, Reynolds argues
    that point in three ways. We address each in turn.
    In evaluating legal sufficiency of the evidence in the face of Reynolds’ three ways of
    attacking it, we must review all the evidence in the light most favorable to the jury’s verdict to
    determine whether any rational jury could have found, beyond a reasonable doubt, that Reynolds
    was guilty of the offense of official oppression. See Brooks v. State, 
    323 S.W.3d 893
    , 912 (Tex.
    Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 
    443 U.S. 307
    , 319 (1979)); Hartsfield
    v. State, 
    305 S.W.3d 859
    , 863 (Tex. App.—Texarkana 2010, pet. ref’d) (citing Clayton v. State,
    
    235 S.W.3d 772
    , 778 (Tex. Crim. App. 2007)). We examine legal sufficiency under the direction
    of the Brooks opinion, while giving deference to the responsibility of the fact-finder “to fairly
    resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic
    facts to ultimate facts.” Hooper v. State, 
    214 S.W.3d 9
    , 13 (Tex. Crim. App. 2007) (citing 
    Jackson, 443 U.S. at 318
    –19). We consider “events occurring before, during[,] and after the commission
    4
    In addition, Reynold’s contends that, not only is the evidence insufficient to support the trial court’s judgment of
    guilt, but that the judgment is likely “void” because the record reflects there is no evidence to support the conviction.
    A trial court’s judgment is void only in very rare situations in which its judgment is accorded no respect due to a
    complete lack of power to render the judgment in question. Nix v. State, 
    65 S.W.3d 664
    , 668 (Tex. Crim. App. 2001).
    A void judgment is considered a “nullity” and may be attacked at any time. 
    Id. A judgment
    is void only in rare
    circumstances, usually due to lack of jurisdiction. 
    Id. However, a
    trial court’s judgment of conviction for a crime is
    void when “the record reflects that there is no evidence to support the conviction.” 
    Id. (citing Wolfe
    v. State, 
    560 S.W.2d 686
    , 688 (Tex. Crim. App. 1978)). For the reasons set out in this opinion, the trial court’s judgment in this
    case is not void.
    3
    of the offense and may rely on actions of the defendant which show an understanding and common
    design to the prohibited act.” 
    Id. We will
    affirm the trial court’s judgment “as long as the
    cumulative force of all the incriminating circumstances is sufficient to support the conviction.” 
    Id. Circumstantial evidence
    and direct evidence are equally probative in establishing the guilt of the
    accused, and guilt may be established by circumstantial evidence only. 
    Id. (citing Guevara
    v.
    State, 
    152 S.W.3d 45
    , 49 (Tex. Crim. App. 2004)).
    Legal sufficiency of the evidence is measured by the elements of the offense as defined by
    a hypothetically correct jury charge. Malik v. State, 
    953 S.W.2d 234
    , 240 (Tex. Crim. App. 1997).
    The hypothetically correct jury charge “sets out the law, is authorized by the indictment, does not
    unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of
    liability, and adequately describes the particular offense for which the defendant was tried.” 
    Id. The State
    charged Reynolds with the offense of official oppression.5 Pursuant to the
    indictment against her, the State was required to prove, beyond a reasonable doubt, that, on or
    5
    The statute sets out the elements of the offense of official oppression:
    (a)           A public servant acting under color of his office or employment commits an offense
    if he:
    (1)       intentionally subjects another to mistreatment or to arrest, detention, search, seizure,
    dispossession, assessment, or lien that he knows is unlawful;
    (2)        intentionally denies or impedes another in the exercise or enjoyment of any right,
    privilege, power, or immunity, knowing his conduct is unlawful; or
    (3)        intentionally subjects another to sexual harassment.
    (b)          For purposes of this section, a public servant acts under color of his office or
    employment if he acts or purports to act in an official capacity or takes advantage of such actual or
    purported capacity.
    4
    about June 14, 2012, Reynolds, either individually or acting as a party with Ross, intentionally
    subjected A.K. to an unlawful search and/or seizure while acting as an investigator for the
    Department,6 knowing that her actions were unlawful at the time. See TEX. PENAL CODE ANN. §
    39.03(a)(1).
    (1)         Legally Sufficient Evidence Supports the Finding that Reynolds, Either as a Primary Actor
    or as a Party with Ross, Intentionally Seized and Searched A.K.’s Cell Phone
    Reynolds contends that the State failed to provide legally sufficient evidence that she
    individually, or acting as a party with Ross, searched or seized A.K.’s cell phone. “A person is
    criminally responsible as a party to an offense if the offense is committed by his own conduct, by
    the conduct of another for which he is criminally responsible, or both.” TEX. PENAL CODE ANN. §
    7.01(a) (West 2011). In addition, a person is criminally responsible for the conduct of another if,
    while “acting with intent to promote or assist the commission of the offense, he solicits,
    encourages, directs, aids, or attempts to aid the other person to commit the offense.” TEX. PENAL
    CODE ANN. § 7.02(a)(2) (West 2011). “Each party to an offense may be charged with commission
    of the offense.” TEX. PENAL CODE ANN. § 7.01(b) (West 2011). Thus, under the law of parties,
    the State is able to enlarge a defendant’s criminal responsibility to include acts in which she may
    not have been the principal actor. Goff v. State, 
    931 S.W.2d 537
    , 544 (Tex. Crim. App. 1996).
    (c)            In this section, “sexual harassment” means unwelcome sexual advances, requests for
    sexual favors, or other verbal or physical conduct of a sexual nature, submission to which is made
    a term or condition of a person’s exercise or enjoyment of any right, privilege, power, or immunity,
    either explicitly or implicitly.
    TEX. PENAL CODE ANN. § 39.03 (West Supp. 2016).
    6
    Reynolds does not claim that she was acting in any other capacity than as an employee of the State.
    5
    Our role is to determine whether legally sufficient evidence is in this record to support this finding.
    We conclude that there is such evidence.
    Kenny Stillwagoner, formerly with the Department, testified that he believed Reynolds,
    Ross, or both of them, took possession of A.K.’s cell phone without her consent. He also testified
    that Reynolds remained in possession of the cell phone because she believed it contained contact
    information for drug dealers. In addition, Edie Diane Fletcher, also formerly with the Department,
    testified that, when she contacted Reynolds about the situation regarding A.K.’s cell phone,
    Reynolds explained to her that she could not return the phone to A.K. because she believed A.K.’s
    cell phone contained contact information relating to drug dealers and that “they” needed to “finish
    their investigation.” A.K. testified that she became very upset when Ross and Reynolds refused
    to return her cell phone and that both Ross and Reynolds looked through her cell phone. Further,
    A.K. testified that Ross and Reynolds retrieved information from her cell phone relating to Steve
    Lamb and Michael Watts, and there was no evidence presented that either of these men was
    considered as a potential placement option for A.K. In fact, A.K. had little, if any, information as
    to why she was questioned about her relationship to either man.
    As the fact-finder, the trial court is the judge of the credibility of the witnesses and is free
    to believe or disbelieve all or part of any witness’s testimony. Jones v. State, 
    984 S.W.2d 254
    , 257
    (Tex. Crim. App. 1998). Appellate courts do not engage in a second evaluation of the weight and
    credibility of the evidence, but ensure only that the fact-finder reached a rational decision. Muniz
    v. State, 
    851 S.W.2d 238
    , 246 (Tex. Crim. App. 1993). Here, the trial court chose to believe that
    the evidence showed that Reynolds was involved in taking A.K.’s cell phone, refusing to return it
    6
    to her on her request, and then searching through it, either as a principal actor or as a party to Ross’
    actions. There is sufficient evidence to support the trial court’s finding.
    (2)      Legally Sufficient Evidence Supports the Finding that the Actions Were Tortious
    Reynolds also contends that there was insufficient evidence to show that her actions were
    unlawful. The Texas Penal Code defines “unlawful” to mean “criminal or tortious or both and
    includes what would be criminal or tortious but for a defense not amounting to justification or
    privilege.”7 TEX. PENAL CODE ANN. § 1.07(a)(48) (West Supp. 2016). Thus, as to this element,
    the State must provide sufficient evidence that the search or seizure of A.K.’s cell phone was
    criminal or tortious. See 
    id. We have
    been presented with no claim that the search itself was
    criminal, so we will focus on whether evidence supports a finding that it was tortious.
    Reynolds maintains that, after the detention center placed A.K. with the Department, all of
    her actions were within the Department’s guidelines and were therefore lawful. Although the
    Department did not have court-ordered temporary custody of A.K. until the following day,8
    7
    In its brief, the State contends that the drafters of the official oppression statute intended the word “unlawful” to be
    defined as something along the lines of “not authorized by law.” In support of its argument, the State points to the
    State Bar Committee’s meeting during 1970, when the Committee was tasked with revising the Texas Penal Code.
    The State contends the minutes of the meeting amount to evidence that the committee was not using the term
    “unlawful” in the official oppression statute to mean “criminal or tortious or both.” The State also cites Palacios,
    stating, “The only court of appeals to directly opine on this question used the statutory definition, though it is unclear
    whether the historical record was brought to the court’s attention.” See Palacios v. State, No. 13-11-00254-CR, 
    2014 WL 3778170
    , at *3 (Tex. App.—Corpus Christi July 31, 2014, no pet.) (mem. op., not designated for publication)
    (emphasis added). We find no compelling reason to conclude that the word “unlawful” means anything other than the
    definition it has been given in the Texas Penal Code. See TEX. PENAL CODE ANN. § 1.07(a)(48).
    8
    The parties agree that there was no court order issued at the time of the incident at issue and that a court order was
    entered the following day giving the Department, among other things, “the right to have physical possession [of A.K.]
    and to direct the moral and religious training of [A.K.]” as well as “the duty of care, control, protection, and reasonable
    discipline of [A.K.].” See TEX. FAM. CODE ANN. § 153.371 (West Supp. 2016). Reynolds contends that, based on the
    duties and responsibilities contained in the trial court’s order, it would be reasonable to believe that the Department
    had the right to control A.K.’s possession of her cell phone. We decline to make a finding as to whether Reynolds’
    actions of remaining in possession of A.K.’s cell phone or searching through its contents for the purpose of finding a
    7
    Reynolds contends that the Department was acting as A.K.’s de facto managing conservator or
    that it was acting in loco parentis “because there clearly was an emergency regarding A.K.’s
    physical and emotional well-being,” and it was imperative that the Department locate a temporary
    placement home for A.K.
    Section 262.104(a)(1) of the Texas Family Code, entitled “Taking Possession of a Child in
    Emergency Without a Court Order,” states,
    (a)     If there is no time to obtain a temporary order, temporary restraining order,
    or attachment under Section 262.102(a) before taking possession of a child
    consistent with the health and safety of that child, an authorized representative of
    the Department of Family and Protective Services, a law enforcement officer, or a
    juvenile probation officer may take possession of a child without a court order
    under the following conditions, only.
    (1)     on personal knowledge of facts that would lead a person of ordinary
    prudence and caution to believe that there is an immediate danger to the physical
    health or safety of the child.
    TEX. FAM. CODE ANN. § 262.104 (West Supp. 2016).                             Reynolds contends that exigent
    circumstances existed,
    because A.K.: (1) ran away from her guardian, (2) was picked up by the police
    from the home of an unrelated male, (3) had no place to go but into [the
    Department’s] custody due to her bad behavior and lying when she does not get
    what she wants, (4) wanted to live with and date adult men, (5) wanted to use and
    peddle dangerous drugs, (6) at the time of the purported “search” [was] legally in
    the care and custody of [the Department], and (7) whose cell phone would have
    been seized regardless that night because the placement home to which the child
    was taken did not allow cell phones.
    placement option for A.K., falls within the delineated rights and responsibilities given to the Department by virtue of
    the forthcoming court order because (1) there was no court order in effect at the time the incident at issue took place,
    and (2) as explained below, there is sufficient evidence by which the trial court could have found that Reynolds’
    motives were not based on a desire to find A.K. a placement home, but rather, to find information related to A.K.’s
    use of drugs or contact information for alleged drug dealers.
    8
    The State maintains that Reynolds, as a representative of the Department, cannot claim that
    she acted in loco parentis or as A.K.’s de facto parent because she was “not acting as a ‘parent’
    when she was searching [A.K.’s] phone. Instead, she was clearly acting as an investigator
    attempting to build a case for either herself or law enforcement.” The State points to Reynolds’
    affidavit, arguing that it “reads like a veteran police detective interrogating a criminal suspect.”
    For example, Reynolds states in her affidavit that A.K. “admit[ed]” to failing two drug tests.
    Reynolds confronted A.K. about her possession of drug scales and paraphernalia, she asked A.K.
    whether she sold drugs and whether two people that A.K. had been seen with sold drugs. The
    State also emphasizes that Ross operated A.K.’s phone after a placement facility for A.K. had
    already been found and that Reynolds told Fletcher that A.K.’s phone had to remain at the office
    because she intended to look through the phone for “drug evidence.” The State argues, pursuant
    to this evidence, that when Reynolds seized A.K.’s phone, she was not doing so in order to find a
    family placement for A.K.; instead, she was unlawfully searching her cell phone for evidence of
    drug use.
    Section 262.104(a)(1) is clear that the Department may take possession of a child when an
    emergency situation exists. See TEX. FAM. CODE ANN. § 262.104. Here, the record shows that
    A.K.’s current living situation was less than suitable for a person of her age and that the
    Department had been unable to find an appropriate caregiver for A.K., therefore, it is reasonable
    to believe that the Department was within its authority to take possession of A.K. for the sole
    purpose of finding a safe place for her to reside until a court order had been issued. However, the
    9
    evidence does not compel the fact-finder to believe Reynolds’ claim that she took possession of
    A.K.’s cell phone in an attempt to locate an acceptable placement for A.K.9
    The fact-finder could conclude that, had Reynolds needed access to A.K.’s cell phone to
    find a placement home, there would have been no need for the Department to retain the phone after
    a temporary placement facility had been found. And it is difficult to envision a lawful reason for
    the Department to retain A.K.’s phone indefinitely. Contrary to her position, the evidence supports
    a finding that Reynolds seized A.K.’s cell phone in an effort to locate evidence of A.K.’s admitted
    drug use or to locate what Reynolds believed to be contact information for drug dealers. In either
    event, the situation was not of such urgency that it prevented Reynolds from waiting for the trial
    court’s intervention the following day or from seeking assistance from appropriate law
    enforcement personnel if, in fact, there was evidence of illegal activity on A.K.’s cell phone.
    Under the evidence in this record, the fact-finder could have rationally found that Reynolds was
    not acting in loco parentis or as a de facto parent.
    Next, we must determine if there existed any lawful reason for Reynolds, investigating for
    the Department, to search or seize A.K.’s cell phone. The Fourth Amendment states, “The right
    of the people to be secure in their persons, houses, papers and effects, against unreasonable
    searches and seizures shall not be violated.” U.S. CONST. amend. IV. The Fourth Amendment’s
    guarantee of a person’s right to be free from warrantless searches by a government official applies
    to a Department caseworker’s investigation. Gates v. Tex. Dep’t of Protective & Regulatory
    9
    We need not decide whether Reynolds had the authority to search through A.K.’s cell phone without the benefit of a
    court order in an effort to find a placement home for A.K., because the fact-finder had evidence that would allow the
    conclusion that Reynolds did not want A.K.’s cell phone for that purpose, but to search for evidence of drug activity.
    10
    Servs., 
    537 F.3d 404
    , 419–20 (5th Cir. 2008); Wooley v. City of Baton Rouge, 
    211 F.3d 913
    , 919
    (5th Cir. 2000) (stating that Fourth Amendment standards apply in both civil and criminal
    contexts).     Subject to a few well-delineated exceptions, under the Fourth and Fourteenth
    Amendments to the United States Constitution, a search conducted without a warrant issued with
    probable cause is deemed per se unreasonable. Schneckloth v. Bustamonte, 
    412 U.S. 218
    , 219
    (1973).      There are well-known exceptions to the warrant requirement, including searches
    conducted pursuant to consent or due to exigent circumstances.10 State v. Villareal, 
    475 S.W.3d 784
    , 791–92 (Tex. Crim. App. 2015). However, an individual can complain about the lawfulness
    of a search or seizure only if he or she has a reasonable expectation of privacy in the item to be
    searched. State v. Betts, 
    397 S.W.3d 198
    , 203–04 (Tex. Crim. App. 2013).
    Therefore, we must first consider whether A.K. had a reasonable expectation of privacy in
    her cell phone while she was being temporarily held by the Department.
    The litmus [test] for determining the existence of a legitimate expectation
    of privacy as to a particular [person] is twofold: first, did [she] exhibit by [her]
    conduct an actual (subjective) expectation of privacy[;][11] and second, if [she] did,
    was that subjective expectation one that society is prepared to recognize as
    reasonable.[12]
    10
    Here, the evidence is clear that (1) no warrant existed at the time of the incident and (2) A.K. did not consent for
    either Reynolds or Ross to remain in possession of her cell phone or to search its contents.
    11
    Certainly, A.K.’s behavior evidenced the fact that she had a subjective expectation of privacy. As A.K. testified,
    “[She] threw a big ol’ fit about it.”
    12
    To make this determination, courts have looked at the following factors: (1) whether the individual had a property
    or possessory interest in the place or object searched; (2) whether the defendant’s presence in or on the place searched
    was legitimate; (3) whether the defendant has the right to exclude others from the place or object; (4) whether the
    individual took normal precautions, prior to the search, which are customarily taken to protect privacy in the place or
    object; (5) whether the place or object searched was put to a private use; and (6) whether his privacy claim fits over
    historical ideas about privacy. Granados v. State, 
    85 S.W.3d 217
    , 223 (Tex. Crim. App. 2002). Under the facts of
    this case, the majority of these factors, if not all of them, fall in favor of A.K. reasonably having a subjective
    11
    Chapa v. State, 
    729 S.W.2d 723
    , 727 (Tex. Crim. App. 1987). In 2007, the United States Fifth
    Circuit Court of Appeals in Finley addressed this issue, holding that an individual has an
    expectation of privacy in his or her cell phone. United States v. Finley, 
    477 F.3d 250
    (5th Cir.
    2007).13 Since that time, both state and federal courts have consistently adhered to the same line
    expectation of privacy in her cell phone, and her subjective expectation of privacy was one that society would
    reasonably recognize at the time of the incident.
    13
    In United States v. Finley, law enforcement officers arrested Finley during a traffic stop after a passenger in his van
    sold methamphetamine to an informant. Pursuant to his arrest, the officers found a cell phone in Finley’s pocket. The
    officers took Finley, along with his passenger, to the passenger’s house, where other officers were conducting a search
    of the residence. While Finley was being questioned there, officers examined the call records and text messages on
    Finley’s phone, finding evidence that appeared to be related to narcotics use and drug trafficking. 
    Finley, 477 F.3d at 254
    . Some of the incriminating text messages were later admitted against Finley during trial. 
    Id. Finley filed
    a
    motion to suppress, which the trial court denied. The Fifth Circuit Court of Appeals held:
    The district court did not clearly err in finding that Finley had a right to exclude others from using
    the phone. Further, the government stipulated that Finley’s employer permitted him to use the phone
    for his own personal purposes. And we see no error in the district court’s finding that Finley took
    normal precautions to maintain his privacy in the phone, despite the government’s protestation that
    the phone was not password protected. In these circumstances, we conclude that Finley had a
    reasonable expectation of privacy in the call records and text messages on the cell phone. . . .
    
    Id. at 259.
    However, because the search of Finley’s phone was made incident to his arrest, the appellate court affirmed
    the trial court’s decision not to suppress the text messages. 
    Id. at 259–60.
    12
    of reasoning. See United States v. Zavala, 
    541 F.3d 562
    (5th Cir. 2008);14 Lemons v. State, 
    298 S.W.3d 658
    , 661 (Tex. App.—Tyler 2009, pets. ref’d).15
    Based on precedent and this record, we conclude that A.K. had a reasonable expectation of
    privacy in her cell phone. Reynolds seems to claim, however, that, because A.K. had been known
    to use drugs and was allegedly having inappropriate relationships with adult men, that somehow
    changed A.K.’s expectation of privacy in her phone. Based on A.K.’s alleged behavior and lack
    of any known placement options at the time, Reynolds contends that she had an urgent
    responsibility to find A.K. a place to reside until the Department took custody of her and that she
    believed A.K.’s phone contained useful information that could assist her in that endeavor. Thus,
    14
    In reversing the trial court’s denial of Zavala’s motion to suppress testimony of a Drug Enforcement Administration
    (DEA) agent regarding information obtained from a search of Zavala’s cell phones after his vehicle was stopped by
    police, the Fifth Circuit Court of Appeals found that the DEA agents had a reasonable suspicion of drug-trafficking
    activity that was sufficient to justify the initial investigative stop, but that the suspicion did not rise to the level of
    probable cause to arrest before Zavala’s cell phones were searched, such that the searches were not justified under an
    “incident to arrest theory.” 
    Zavala, 541 F.3d at 575
    . The court reasoned,
    Unlike a driver’s license and vehicle registration, which are typically issued by a governmental
    entity, cell phones contain a wealth of private information, including emails, text messages, call
    histories, address books, and subscriber numbers. Zavala had a reasonable expectation of privacy
    regarding this information. A cell phone is similar to a personal computer that is carried on one’s
    person; Finley indicates that mere possession of a cell phone gives rise to a reasonable expectation
    of privacy regarding its contents. A police officer’s license check during a traffic stop is “within
    the scope of investigation attendant to the traffic stop” and is not triggered by any particularized
    suspicion that the check will produce evidence of a crime. In this case, Moreman’s search of
    Zavala’s cell phone was “general rummaging in order to discover incriminating evidence.”
    
    Id. at 577
    (citations omitted).
    15
    In Lemons, the Tyler Court of Appeals recognized that an individual has a reasonable expectation of privacy in his
    or her cell phone; however, the appellate court affirmed the trial court’s order denying the appellant’s motion to
    suppress, finding Lemon had given the officer consent to search his cell phone by handing the officer his phone in
    response to the officer’s request. “There is no indication from the record that would allow a reasonable person to
    conclude that Appellant intended to shape the confines of his forthcoming consent by the subject matter of the
    conversation between Appellant and [the officer] in the moments preceding Appellant’s relinquishment of his cellular
    telephone to [the officer].” 
    Lemons, 298 S.W.3d at 662
    .
    13
    her duty to find A.K. a place to reside overnight, until a court could intervene, amounted to exigent
    circumstances warranting an intrusion into the contents of A.K.’s cell phone. We need not find
    whether the proffered exigent circumstances warrant such an intrusion because there is evidence
    in this record that Reynolds’ motive was contrary to her claim, allowing the fact-finder to find this
    against Reynolds’ as well. For instance, (1) a placement facility had been found, yet Reynolds
    demanded that A.K.’s cell phone stay in the Department’s possession until she arrived the
    following morning; (2) there was testimony that Reynolds’ motive for taking possession of the cell
    phone was her desire to look through its contents for evidence of A.K.’s drug use or for contact
    information relating to alleged drug dealers; and (3) A.K.’s cell phone was never returned to her.
    Had Reynolds wanted the cell phone for the purpose she claims, she would have had no reason to
    continue in possession of the phone once a placement facility for A.K. had been located.
    A.K.’s cell phone was not seized pursuant to an arrest, and there is no evidence of any
    warrant, court order, or consent to seize or search A.K.’s cell phone. Reynolds’ claim of exigent
    circumstances is not compelled by the evidence. For these reasons, we find that Reynolds’ actions
    were not authorized.
    We must take one further step to determine whether the evidence supports a finding,
    beyond a reasonable doubt, that Reynolds’ actions were also tortious.
    In a civil rights action under Title 42, Section 1983, of the United States Code, personal
    involvement in a constitutional deprivation is actionable, and a supervisor of a direct actor may be
    held liable if he or she affirmatively participated in the acts giving rise to the constitutional
    deprivation or if the supervisor’s wrongful conduct is causally connected to the constitutional
    14
    violation. 42 U.S.C.A. § 1983; Thompkins v. Belt, 
    828 F.2d 298
    , 303–04 (5th Cir. 1987); Poteet
    v. Sullivan, 
    218 S.W.3d 780
    , 794 (Tex. App.—Fort Worth 2007, no pet.). There is legally
    sufficient evidence in this record from which the fact-finder could have rationally found, beyond
    a reasonable doubt, that Reynolds engaged in actions that were tortious. See 
    Brooks, 323 S.W.3d at 912
    .
    (3)       Legally Sufficient Evidence Supports the Finding that Reynolds Knew the Actions Were
    Tortious
    Reynolds further contends that, because there was no clearly established right to be free
    from a warrantless search of a cell phone on June 14, 2012, there existed no clearly established
    right for A.K. to assert, and that there was no clearly established right of which Reynolds could
    have been aware at the time of the incident. We disagree.
    In addition to showing that Reynolds’ actions were unlawful, the State must show, beyond
    a reasonable doubt, that Reynolds knew her conduct was criminal, tortious, or both. See Palacios,
    
    2014 WL 3778170
    , at *3–4. In addition, the State has the burden to show that Reynolds’ conduct
    was not justified16 or privileged. See Zuliani v. State, 
    97 S.W.3d 589
    , 595 (Tex. Crim. App. 2003);
    Lee v. State, 
    415 S.W.3d 915
    , 919 (Tex. App.—Texarkana 2013, pet. ref’d). If the evidence
    compels the fact-finder to find that Reynolds reasonably believed her conduct to be required or
    authorized by law, we must find that her actions were justified. See Palacios, 
    2014 WL 3778170
    ,
    at *4; see also TEX. PENAL CODE ANN. § 9.21(a). A reasonable belief is one “that would be held
    A party is justified when she “reasonably believes the conduct is required or authorized by law [or] by the judgment
    16
    or order of a competent court.” TEX. PENAL CODE ANN. § 9.21(a) (West 2011).
    15
    by an ordinary and prudent [person] in the same circumstances as the actor.” TEX. PENAL CODE
    ANN. § 1.07(a)(42) (West Supp. 2016).
    The concept of an individual having a fair warning that his or her conduct is unlawful is
    based on due process and founded on the principle that no person should “be held criminally liable
    for conduct which he could not reasonably understand to be proscribed.” United States v. Lanier,
    
    520 U.S. 259
    , 265 (1997) (quoting Bouie v. City of Columbia, 
    378 U.S. 347
    , 351 (1964)). Criminal
    liability may be imposed under the statute “for deprivation of a constitutional right if, but only if,
    ‘in the light of pre-existing law the unlawfulness [under the Constitution is] apparent.’” 
    Id. at 271–
    72 (quoting Anderson v. Creighton, 
    483 U.S. 635
    , 640 (1987)).
    Reynolds claims that the evidence shows she reasonably believed her actions were
    authorized by law, thereby justifying her conduct.17 Pre-2012 cases, such as Finley, Zavala, and
    Lemons, establish that, on the date of the incident, individuals had an expectation of privacy in the
    contents of their cell phones; thus, a state actor must have had consent to search, a warrant to
    search, or there must have existed an exception to the warrant requirement, or a corresponding
    17
    Reynolds also maintains that had this been a civil proceeding, qualified immunity would have protected her from
    liability. We disagree. “Qualified immunity shields government officials from civil damages unless the official
    violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.” See
    Reichle v. Howards, 
    132 S. Ct. 2088
    , 2093 (2012). Reynolds contends that, even if A.K.’s rights and the scope of
    Reynolds’ permissible conduct were clearly established, qualified immunity protects her if it was objectively
    reasonable for her to believe that her actions were lawful at the time of the incident. See Anderson v. Creighton, 
    483 U.S. 635
    , 638–39 (1987). In addition, Reynolds asserts that, if she acted reasonably, but mistakenly, she would be
    entitled to qualified immunity. 
    Id. at 641.
              For the reasons stated herein, we conclude there was sufficient evidence to support the trial court’s conclusion
    that Reynolds’ actions were clearly established as violating the law at the time of the incident, that she had knowledge
    that her actions were unlawful, and that she did not act “reasonably but mistakenly.”
    16
    arrest at the time A.K.’s phone was seized.18 None of these circumstances existed in the present
    case.
    Moreover, there is evidence that all Department investigators are required to attend several
    days of training on the Fourth Amendment and that Reynolds completed such training well before
    the date of the incident at issue. We are in no way suggesting that the Fourth Amendment and its
    attendant exceptions are easily understood; however, the evidence suggests that at least three other
    Department employees believed Reynolds’ actions to be unlawful. Notably, Fletcher explained to
    Reynolds that she had serious concerns about the Department remaining in possession of A.K.’s
    cell phone without A.K.’s consent. The fact-finder could have believed that Fletcher’s obvious
    apprehensiveness should have, at the very least, placed Reynolds on notice that her unilateral
    decision to continue in possession of A.K.’s cell phone for the sole purpose of searching the phone
    for evidence of drug activity was an unlawful act. Further, Reynolds was in a supervisory position
    at the time; thus, it was also reasonable to believe that, if Reynolds’ subordinates knew her actions
    were unlawful, Reynolds knew her actions were unlawful as well.
    The question is not whether this Court believes that the evidence at trial established beyond
    a reasonable doubt that Reynolds committed the offense of official oppression. Instead, the
    relevant question is whether, after viewing the evidence in the light most favorable to the trial
    court’s verdict, any rational trier of fact could have found beyond a reasonable doubt that Reynolds
    was guilty of doing so. 
    Jackson, 443 U.S. at 318
    –19. In viewing the evidence in the light most
    18
    Recently, the United States Supreme Court broadened the view that an individual has a reasonable expectation of
    privacy in the contents of his or her cell phone when it unanimously held that the warrantless search and seizure of
    the digital contents of a person’s cell phone during an arrest is unconstitutional. Riley v. California, 
    134 S. Ct. 2473
    (2014).
    17
    favorable to the verdict, we find the trial court could have concluded beyond a reasonable doubt
    that Reynolds, either individually or acting as a party with Ross, intentionally subjected A.K. to
    an unlawful search and/or seizure that she knew was tortious at the time and that there existed no
    justification or privilege to excuse Reynolds’ actions.
    The evidence was sufficient to support the trial court’s verdict. We overrule Reynolds
    point of error.19
    We affirm the trial court’s judgment.
    Josh R. Morriss, III
    Chief Justice
    Date Submitted:           September 28, 2016
    Date Decided:             November 30, 2016
    Publish
    19
    Reynolds acted as an agent of the Department, not as a peace officer—see TEX. CODE CRIM. PROC. ANN. art. 2.12
    (West Supp.2016) (defining “Who Are Peace Officers”)—and was acting without the benefit of any court order or
    search warrant. Compare TEX. FAM. CODE ANN. § 261.303(b) (West Supp. 2016) (order for entrance) with TEX. CODE
    CRIM. PROC. ANN. art. 18.01(a) (West Supp. 2016) (search warrant). Our opinion should not be understood as applying
    beyond its facts.
    18