Anthony Michael Bowden v. the State of Texas ( 2021 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
ANTHONY MICHAEL BOWDEN, § No. 08-19-00057-CR
Appellant, § Appeal from the
v. § 384th District Court
THE STATE OF TEXAS, § of El Paso County, Texas
Appellee. § (TC# 20160D05559)
OPINION
A jury convicted Appellant Anthony Michael Bowden of murder and sentenced him to a
term of thirty-five years’ confinement and a maximum fine. In three evidentiary issues, Bowden
seeks a reversal of his conviction and remand of his case for a new trial. His first two issues contend
the trial court erred in denying his motion to suppress evidence of (1) a recorded interview he gave
to law enforcement following his appearance before a magistrate judge where he had requested
the appointment of counsel, and (2) of data contained on his cell phone, as well as records stored
by his service provider, both of which were obtained from the execution of four search warrants.
Lastly, in a third issue, he argues the trial court erred in admitting text messages between him and
a third-party witness during the guilt/innocence phase of trial.
Finding no error, we affirm.
I. BACKGROUND
On August 8, 2016, Detective Joe Ochoa and other officers of the El Paso Police
Department responded to an apartment at 212 Lisbon where a body had been discovered and
reported to police. The victim was later identified as Eric Tijerina. At the scene, Detective Ochoa
met with the victim’s stepfather and other neighbors who were present at the time. In addition to
learning the victim’s identity, Detective Ochoa learned neighbors had earlier seen an individual
walking into the victim’s apartment. At least one neighbor gave a physical description of the
unknown person.
To start his investigation, Detective Ochoa obtained a search warrant for the victim’s phone
records. On receipt of those records, officers noted they showed multiple phone calls and text
messages were sent to a single number at a time preceding the victim’s death. An additional search
warrant confirmed the number traced to a person identified as Anthony Michael Bowden. With
further investigating, Detective Ochoa soon learned that Bowden was a soldier stationed at Fort
Bliss. From that information, he was able to secure a photograph of Bowden and confirmed it
matched with the description given by the victim’s neighbor. On September 13, 2016, Detective
Ochoa and his partner, Detective Ray Sanchez, went to the Fort Bliss Criminal Investigations
Division to arrange to meet with Bowden. Upon meeting, Bowden agreed he would speak with
them back at their headquarters.
In a video-recorded interview, Bowden answered questions for nearly an hour. The
recording of his statement was played to the jury at trial. At the start, Bowden disclosed he had
been employed as a specialist with the U.S. Army for a little over three years and gave other
2
preliminary information. Detective Ochoa informed him that his name came up in an investigation
of an incident that occurred several weeks prior, particularly on August 8, 2016. He next described
that office procedures required he read, out loud, the legal rights afforded to Bowden.1 After he
informed Bowden he was not under arrest, Detective Ochoa then asked whether Bowden
understood his rights and whether he knowingly, intelligently, and voluntarily wanted to waive his
rights. Bowden replied, “Yes.”
When told they were investigating a case involving the address of 212 Lisbon, Bowden
initially denied being familiar with it or having heard of it. After Detective Ochoa mentioned they
had records showing he had talked to somebody that lived in the area, Bowden revealed he had
dating apps on his phone that he occasionally used to meet females. Bowden next signed a consent
form allowing a search of his cell phone and its data and provided his passcode. Bowden
maintained he had been in the area but denied visiting the apartment at the address where the victim
lived. But, soon after Detective Ochoa disclosed that they had information indicating he had been
to the apartment in question, Bowden revealed he went there about a month before August 8, but
not on the date in question.
Bowden described, “So I met this girl online. . . . You know, went over to the -- and then
it -- it wasn’t a girl. . . . And I got raped.” When asked to clarify, Bowden stated he met this person
on Craigslist. He thought he was going to be “hooking up with a girl,” and when he arrived, she
was dressed like a girl but she looked different than her pictures. She was bigger than him. He next
1
Reading from a card, Detective Ochoa informed Bowden he had the right to remain silent, the right to have a lawyer
present to advise him prior to and during any questioning, the right to have a lawyer appointed if he could not afford
one, the right to terminate the interview at any time, and the right to contact his consulate if he was not a citizen of the
United States.
3
described they started “making out and stuff.” “And then I come to find out that she had [male
anatomy].” He continued, “But she -- she just continued, and I -- I was, like -- I was just in shock,
like . . . and she just -- she finished.” When asked for clarification, Bowden described he engaged
in intercourse with that person. Afterwards, he claimed he got dressed and went home.
When pressed for more information, Bowden acknowledged he had been to the apartment
but not on the date in question. Detective Ochoa then disclosed they knew he had been in the area
on August 8. Bowden responded, “Can I terminate this and get a lawyer? I feel like you guys are
trying to make me convict myself of something that I don’t even know what the bad thing is, which
I’m assuming she was murdered. That’s the only bad thing that could be this bad, and you’re trying
to get me to convict myself. That’s the only possible thing right now, because you’re telling me
something more happened, that I don’t know more happened. You get, like, what I’m saying, from
my point of view?” Detective Sanchez responded he understood exactly what Bowden was saying
and he was on the right track, that is, the person was murdered. Bowden replied, “I didn’t even
want to say the rape thing because right there, motive.” Detective Ochoa interjected by asking
“What is it specifically that you said about a lawyer?” Bowden confirmed he wanted a lawyer and
did not want to talk any more without one. The detectives ended their questioning and explained
they would go check to see if they were done with Bowden’s phone.
Shortly thereafter Detective Ochoa informed Bowden he was no longer free to go and
placed him in a holding cell to await further paperwork. After preparing affidavits, Detective
Ochoa next sought an arrest warrant and several search warrants from a magistrate judge. He
transported Bowden with him to the magistrate court. After Bowden was formally arrested, the
magistrate judge set a bond and administered Miranda warnings to him. Bowden requested court-
4
appointed counsel after the judge read his warnings. The magistrate judge also signed several
search warrants including one for a sample of Bowden’s DNA.
Detective Ochoa testified he returned with Bowden to police headquarters to execute the
DNA search warrant and to have photographs taken of him. Afterwards, he returned Bowden to a
holding cell at police headquarters and set about preparing an arrest card required for jail booking.
He described that Bowden then summoned him over to the holding cell. As he approached,
Bowden told him he wanted to tell him more about what took place. Detective Ochoa explained
that—because Bowden had invoked his rights—a request for an interview had to come from him.
After Bowden insisted, Detective Ochoa left his side and went to speak to his supervisor. A
decision was made to allow Bowden to provide a second formal statement, recorded as before.
The second recording was also played to the jury. As before, Detective Ochoa read to
Bowden his legal rights. After confirming that Bowden wanted to waive those rights, Detective
Ochoa asked him to describe what happened. Bowden responded that what he had described in his
first statement did occur, but it had occurred a month or two before August 8. Bowden then
repeated he was raped as he had earlier described. Without mentioning a date, he next described
he once again tried to find a partner and sent a picture of his face. The person he contacted then
called him and it turned out it was the same guy with different pictures. Bowden described that the
guy then said he would contact Fort Bliss and tell them: “I’m trying to pay him for sex or whatever,
and he would put my picture on Craigslist under ‘looking for guys,’ like -- like I’m -- with my
number and stuff.” Bowden continued, “So he was, like, blackmailing me to come over again and
also pay him $200 for his services or whatever, which I did not want to -- And then -- so I
proceeded to go over there.”
5
Bowden then described how he proceeded to the victim’s apartment, while also revealing
that, on the way, he stopped at a hardware store near the victim’s apartment and bought a chisel.
When he arrived at the victim’s apartment, he went in with the chisel but “chickened out” and left
it at the bottom of the stairs. He stated the guy started taking off Bowden’s shirt and he thought,
“I’m about to get raped again.” When asked whether he brought money, Bowden responded he
had left it in his car and would go get it. Instead of going to the car as he had said he would,
Bowden described that he went and grabbed the chisel, then went back upstairs and “stabbed him
to death.” He further stated, “I, like, kicked him in the face, and he went down. And then I was
just stabbing, like, everywhere, mainly in the back, until he stopped breathing.”
Bowden was later charged by indictment with the murder of Eric Tijerina. Before trial,
Bowden moved to suppress his video-recorded statements and the search warrants for his cell
phone records. The trial court denied both motions to suppress and the case proceeded to a jury
trial. At trial, the State presented evidence through several witnesses to include Detective Ochoa
and other officers. Additionally, Dr. Janice Diaz-Cavalliery testified regarding the autopsy she
performed on Tijerina. Dr. Diaz-Cavalliery testified she had concluded that Tijerina died due to a
stab wound to his carotid artery. She described there were 24 stab wounds found on his body.
Finally, one of the other witnesses who appeared for trial included a transgender female who
testified to having exchanged text messages with Bowden over a dating app in April 2016. Along
with the testimony of these witnesses, the State admitted several exhibits including the two video
statements of Bowden, a chisel recovered from the center console of Bowden’s car, and certain
records of data recovered from Bowden’s cell phone.
In the defense case-in-chief, Bowden recalled Detective Ochoa to the stand, and he
6
confirmed that, after interviewing about twenty people, his investigation revealed that Tijerina was
“involved in prostitution, was a violent person, [and was] involved in drugs and
exploitation[.]”Also, a forensic psychologist who performed psychological testing and conducted
a pretrial interview of Bowden testified about his findings. He testified Bowden scored low on an
IQ test; his score rated as being below 87 percent of the population. He determined that Bowden
read at the level of a sixth grader. The psychologist further testified that Bowden’s behaviors were
consistent with Autism Spectrum Disorder. Two other defense witnesses testified they knew the
victim as Erykah Tijerina.
At the conclusion of trial, the jury returned a verdict of guilty and assessed punishment at
confinement for a period of 35 years and a fine of $10,000. The trial court later imposed the jury’s
sentence and entered the judgment of conviction. This appeal followed.
II. DISCUSSION
A. The Sixth Amendment Right to Counsel
In his first issue, Bowden argues the trial court erred in not suppressing statements elicited
from him during the interrogation that followed his appearance before a magistrate judge. In three
sub-issues of that issue, he argues the trial court erred in ruling: (a) that he had been permitted
reasonable time and opportunity to contact and consult with counsel as required by Article 15.17
of the Code of Criminal Procedure of Texas; (b) that he had knowingly, intelligently, and
voluntarily waived his Miranda rights prior to his second interrogation and after he had twice
requested counsel; and (c) that the State did not circumvent his right to counsel such that it was
substantively violated.
7
1. Standard of Review
Appellate courts review a trial court’s ruling on a motion to suppress under a bifurcated
standard. See State v. Arellano, 600 S.W.3d 53, 57 (Tex. Crim. App. 2020). A trial court’s findings
of historical fact are afforded almost total deference if they are reasonably supported by the record.
See id. (citing Sims v. State, 569 S.W.3d 634, 640 (Tex. Crim. App. 2019)). Especially when the
trial court’s findings are based on the evaluation of credibility and demeanor of a witness. Amador
v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); State v. Alderete, 314 S.W.3d 469, 472
(Tex. App.—El Paso 2010, pet. ref’d). We afford the same deference to mixed questions of law
and fact when those questions also turn on an evaluation of credibility and demeanor. Amador,
221 S.W.3d at 673; Alderete, 314 S.W.3d at 472. However, with regard to application of legal
principles to a specific set of facts, we review those decisions de novo. Alderete, 314 S.W.3d at
472. We may uphold the trial court’s ruling if it is supported by the record and correct under any
theory of law applicable to the case. State v. Stevens, 235 S.W.3d 736, 739-40 (Tex. Crim. App.
2007). If the trial court does not issue findings of fact and conclusions of law, we infer necessary
factual findings that support the trial court’s ruling and view the record evidence that supports the
implied fact findings in the light most favorable to that ruling. State v. Garcia-Cantu, 253 S.W.3d
236, 241 (Tex. Crim. App. 2008).
2. Controlling Law
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy
the right . . . to have the Assistance of Counsel for his defen[s]e.” U.S. CONST. AMEND. VI. The
right to counsel will attach when adversarial judicial proceedings are initiated, by means of a
formal charge, preliminary hearing, indictment, information, or arraignment. Brewer v. Williams,
8
430 U.S. 387, 398 (1977). Once the adversarial judicial process begins, the Sixth Amendment
guarantees the defendant the right to have counsel present at all critical stages of the criminal
proceedings. Maine v. Moulton, 474 U.S. 159, 169 (1985); Green v. State, 872 S.W.2d 717, 719
(Tex. Crim. App. 1994).
In Edwards v. Arizona, the United States Supreme Court held that upon a suspect invoking
his right to counsel, interrogation by the police must cease until counsel is provided or unless the
suspect reinitiates the conversation himself. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981); see
also Cross v. State, 144 S.W.3d 521, 526 (Tex. Crim. App. 2004). Following Edwards, a later case
from the United States Supreme Court described Edwards as having established, in effect, “a
prophylactic rule[] designed to protect an accused in police custody from being badgered by
police officers in the manner in which the defendant in Edwards was.” Oregon v. Bradshaw, 462
U.S. 1039, 1044 (1983); Cross, 144 S.W.3d at 526; Engleton v. State, No. 08-13-00077-CR, 2015
WL 1285202, at *4 (Tex. App.—El Paso Mar. 20, 2015, no pet.) (not designated for publication).
Indeed, when a suspect indicates he or she is not willing to answer questions without counsel
present, this unwillingness generally indicates he does not feel sufficiently comfortable with the
pressures of custodial interrogation to respond to police inquiries without the assistance of an
attorney. Cross, 144 S.W.3d at 526. Edwards further cautions, however, that a suspect is not
powerless to countermand the election to speak only with the assistance of counsel. Edwards, 451
U.S. at 484-85; Cross, 144 S.W.3d at 526.
Under Edwards, courts must presume the suspect’s discomfort in speaking to police
without counsel present will persist unless the suspect himself initiates further conversation about
the investigation. Cross, 144 S.W.3d at 526. And, in Oregon v. Bradshaw, the Court established a
9
two-step procedure to determine whether a suspect has waived his previously invoked right to
counsel. 462 U.S. at 1044; Cross, 144 S.W.3d 526-27. First, there must be proof that the suspect
himself initiated further communications with the authorities after previously invoking his right to
counsel, and second, there must be proof that after reinitiating such communication, the suspect
made a valid waiver of his right to counsel. Bradshaw, 462 U.S. at 1044; Cross, 144 S.W.3d at
526-27; see also McCarthy v. State, 65 S.W.3d 47, 51 n.6 (Tex. Crim. App. 2001) (acknowledging
the Edwards rule is satisfied if the arrestee reinitiates the conversation).
3. Analysis
a. Bowden initiated further communication with the Detectives
At the pretrial motion to suppress hearing, Detective Ochoa testified Bowden invoked his
right to counsel during their first interview and the detectives terminated their questioning. Based
on the investigation up to that point, Detective Ochoa informed Bowden he would be arrested. He
then worked on an affidavit to initiate his formal arrest and to charge him with murder. He also
prepared documents for securing warrants for his DNA and to search his vehicle. At 4:40 p.m.,
Detective Ochoa transported Bowden to appear before a magistrate judge. The magistrate judge
read Bowden his Miranda warnings for the second time that day and signed a warrant for his arrest.
Bowden requested court-appointed counsel after the judge read him the warnings. Along with the
arrest warrant, the judge also issued a search warrant to obtain a DNA sample.
The detectives then drove Bowden back to the station to allow a crime scene officer to
collect the DNA samples. Detective Ochoa testified on direct and cross-examination that he did
not speak with Bowden regarding the case during their return trip. On arrival, he returned Bowden
to his holding cell and continued the process of preparing to book him into the jail. As Detective
10
Ochoa walked over to his supervisor to notify him that he was ready to transport Bowden to the
county jail, he described that Bowden began “waiving [Detective Ochoa] over.” When Detective
Ochoa approached him, Bowden expressed that he wanted to tell him everything that took place
and wanted his story to be part of the case. Detective Ochoa testified he reminded Bowden that he
could no longer communicate with him; but, he claimed, Bowden insisted. Detective Ochoa
testified he then told him “it has to come from you.”
Detective Ochoa testified Bowden responded he wanted it to be done. Detective Ochoa
described he explained he would need to generate a second formal interview, they would need to
go back into the room where they sat before, and basically go through the same procedure as done
originally. After Bowden confirmed he wanted to do that, Detective Ochoa left him to speak to his
supervisor. He then prepared the room and they went back in. After speaking with his supervisor,
Detective Ochoa initiated a second video-recorded interview.
At the start, he marked the time as 5:58 p.m. He began with a summary detailing that
Bowden had been interviewed earlier that day at a time when he was not under arrest. Bowden
agreed with the summary of events and said he wanted “the truth out there.” Detective Ochoa then
read Bowden his Miranda warnings for a third time that day; Bowden responded that he
understood and wished to waive his rights. He then participated in the interview without ever
mentioning that any promises were made or that he had been threatened by the detectives. He also
never requested that an attorney be present or that he be given a chance to contact one.
Bowden briefly testified at the hearing and described what happened as he rode in the
detective’s vehicle after he had received warnings from the magistrate judge. During the ride, he
testified the officers told him that if he didn’t tell his side of the story the jury would not hear it
11
and they would simply see him as a murderer. He further testified, “And if I told my side[,] it could
possibly draw my charges to a lesser degree, and that they had already caught me. They were just
trying to help me.” He further claimed, he did not respond to those comments during the ride.
Bowden also acknowledged he never mentioned comments were made during the car ride when
he gave his second recorded interview.
Viewing the evidence in the light most favorable to the trial court’s ruling and assuming
implicit findings of fact supported by the record were made, we conclude that Bowden himself
reinitiated contact about his case with the detectives. Bradshaw, 462 U.S. at 1044; Engleton, 2015
WL 1285202, at *4. The first step of the Edwards test was fully satisfied. Edwards, 451 U.S. at
484-85; Cross, 144 S.W.3d at 526. Even though Bowden testified he felt pressured by the officers
to tell his side of the story before he gave his second interview, Detective Ochoa denied having
any conversation about the case during the car ride. As the sole judge of the credibility of the
witnesses, the trial court was free to find Detective Ochoa more credible and accept his version of
events over the version given by Bowden. See Arellano, 600 S.W.3d at 57.
Having found the first step of Edwards fully satisfied, we turn next to the question of
whether Bowden’s waiver of his right to counsel was made knowingly, intelligently, and
voluntarily.
b. Bowden Knowingly, Intelligently, and Voluntarily Waived his Rights
Essentially, Bowden asserts he did not knowingly, intelligently, and voluntarily waive his
rights to counsel prior to the second video-recorded statement after previously requesting an
attorney. We address this step together with Bowden’s sub-argument arguing he was not provided
reasonable time and opportunity to consult with counsel as required by Article 15.17 of the Code
12
of Criminal Procedure. Bowden argues he was interrogated during a critical stage of the
prosecution in violation of his right to counsel.
The State has the burden of proving through a preponderance of the evidence that a
defendant knowingly, intelligently, and voluntarily waived his rights. TEX. CODE CRIM. PROC.
ANN. art. 38.22, § 2(b); Joseph v. State, 309 S.W.3d 20, 24 (Tex. Crim. App. 2010). In evaluating
whether the waiver was knowingly, intentionally, and voluntarily made, we determine: (1) whether
the waiver was voluntary by being a product of a free and deliberate choice rather than by
intimidation, coercion, or deception, and (2) whether it was made with full awareness of both the
nature of the right being abandoned and the consequences of the decision to abandon. Joseph, 309
S.W.3d at 25; Moreno v. State, No. 08-18-00179-CR, 2020 WL 7090696, at *3 (Tex. App.—El
Paso Dec. 4, 2020, no pet.) (not designated for publication). We consider the totality of the
circumstances surrounding the interrogation including the defendant’s experience, background,
and conduct. Joseph, 309 S.W.3d at 25. A showing of an express waiver is not required. Id. An
implied waiver will be evidenced by a showing that Miranda warnings were given and understood
by the defendant, and the defendant engaged in a course of conduct indicating waiver. Berghuis v.
Thompkins, 560 U.S. 370, 384 (2010). Conduct indicating waiver includes participating in the
interview and making an uncoerced statement. Id.Here, at the start of the interview, the recording of the second interview shows that
Detective Ochoa advised Bowden again of his previously invoked right to counsel seeking to
ensure that Bowden in fact wanted to waive his rights and reinitiate their interview. Bowden
indicated he understood his rights and wanted “the truth out there.” Detective Ochoa reiterated that
Bowden had already asked for a lawyer yet he had still indicated he wanted to talk to them. Bowden
13
responded, “Yes.” Detective Ochoa replied he would need to make sure that Bowden understood
his rights. As before, he read Bowden his Miranda rights and asked him to confirm that he
understood those rights but knowingly, intelligently, and voluntarily waived those rights. Bowden
answered, “Yes.” Detective Ochoa followed by stating, “And you care to talk to us about what
took place?” Bowden answered “Yes.” Starting with an open-ended question, Detective Ochoa
asked, “What happened?” Bowden began responding from the point he had left off in his first
interview.
Throughout the nearly 40-minute interview, there are no threats or promises made to
Bowden or any mention by him of previous threats or promises having been made prior to the
recording. Furthermore, Detective Ochoa himself testified that no promises, threats, or coercive
tactics on his part were used in attempting to get Bowden to reinitiate the interview. Detective
Ochoa testified he did not discuss anything pertaining to Bowden’s case between his first
invocation of his rights to the point when Bowden summoned him over to the holding cell to get
his attention. Detective Ochoa also testified he would have given Bowden an opportunity to contact
a lawyer if Bowden made such a request, but he never requested that he be permitted to call a
lawyer.
At the suppression hearing, Bowden testified solely about the short car ride back to the
police station after the magistrate hearing, asserting the detectives tried to get him to tell the whole
story. He testified the detectives told him, “if [he] didn’t tell [his] side of the story, the jury
wouldn’t hear it, and they would just see [him] as a murderer,” and he could possibly get his
charges to a lesser degree. Bowden admitted he did not mention the statement the detectives made
to him during the car ride at any point during his second video-recorded statement.
14
As the sole judge of credibility of witnesses, the trial court was able to weigh Bowden’s
testimony against Detective Ochoa’s testimony and we must give deference to the trial court’s
resolution. See Wells v. State, No. 08-09-00110-CR, 2010 WL 3009306, at *5-6 (Tex. App.—El
Paso July 30, 2010, pet. ref’d) (not designated for publication) (finding an implied waiver when
defendant participated in an interview with authorities immediately following being read his rights
and not requesting counsel or terminating the interview). The record supports the trial court’s
inferred finding that Bowden was not under coercion or duress but rather gave his statement
voluntarily. See Joseph, 309 S.W.3d at 25; Moreno, 2020 WL 7090696, at *3.
Bowden also asserts that he lacked “full awareness” of the nature of his rights because of
“the violation of his rights in the first interview” and he believed the rights to be “insignificant”
and therefore “the decision to waive that right was insignificant.” Bowden does not cite to any
authority, and we are not aware of any, indicating that a detective requesting a clarification of an
invocation of a right to counsel is itself a violation. Without more, we are hard pressed to find that
Bowden lacked awareness of his rights to intelligently waive them. See Brown v. State, No. 06-
17-00047-CR, 2018 WL 387782, at *2-3 (Tex. App.—Texarkana Jan. 12, 2018, no pet.) (mem.
op., not designated for publication) (finding no violation of defendant’s rights when officers asked
whether defendant wanted to continue the interview or wanted a lawyer present and continued the
interview). Here, the officers stopped the interview after getting their clarification that Bowden
wanted to terminate and had no further communication with defendant until Bowden requested to
reinitiate another interview. The record supports Bowden affirmatively acknowledged he
understood his rights and wished to speak with the detectives. Furthermore, Bowden did not appear
to be under the influence but rather appeared to have the mental capacity to speak clearly and
15
cogently with the detectives. Moreno, 2020 WL 7090696, at *5.
Lastly, Bowden argues that his rights pursuant to article 15.17 were violated because he
was not afforded reasonable time and opportunity to consult with counsel after meeting with the
magistrate.2 Bowden never requested to call an attorney and the process to determine Bowden’s
eligibility for a court-appointed attorney was started and showed he initially failed to qualify.
Beyond informing a suspect of his rights, the State has no requirement to provide other assurances
or explanations. See Engleton, 2015 WL 1285202, at *5. The record shows no interrogation began
immediately following the magistrate hearing; but rather, it started only after Bowden himself
reinitiated communication about his case with the detective.
Under these circumstances, the evidence supports the trial court’s finding that Bowden
understood and waived his rights, and the trial court did not abuse its discretion in finding Bowden
had waived his rights with the requisite awareness to make the waiver knowingly and intelligently.
See Joseph, 309 S.W.3d at 26 (finding the defendant voluntarily waived when there was no
showing of coercion or undue promises, defendant was warned about his rights, willingly
participated in a six-hour interview, and did not request an attorney or ask to stop the interview);
Torres v. State, 543 S.W.3d 404, 411-12 (Tex. App.—El Paso 2018, pet. ref’d) (finding the
defendant voluntarily waived his rights when there was no evidence of coercion and defendant
2
Bowden relies on the concurring opinion of Justice Alcala to argue that he was not afforded an opportunity to attempt
to contact counsel. Pecina v. State, 361 S.W.3d 68, 81-83 (Tex. Crim. App. 2012) (Alcala, J., concurring) (arguing an
additional warning should be given to defendants after the magistrate hearing including, “If you desire to have an
attorney present during police interrogation, you must make that request at the time of the police questioning.”). We
reject this argument as Bowden was never questioned or interviewed by the detectives following his magistrate hearing
until he himself reinitiated communication. Here, Bowden reinitiated contact and knowingly, intentionally, and
voluntarily waived his rights before making his second statement as opposed to a custodial interrogation immediately
following his magistrate hearing. Serrano v. State, No. 03-14-00516-CR, 2015 WL 6835463, at *3 (Tex. App.—
Austin Nov. 6, 2015, no pet.) (mem. op., not designated for publication).
16
replied “Yes” after being warned and never asked that the interview terminate or invoked his right
to counsel through the duration of the interview).
The totality of the circumstances shows full compliance with the Edwards test and supports
a finding that Bowden’s waiver was made knowingly, intentionally, and voluntarily, and in
compliance with article 38.22.
Bowden’s first issue is overruled along with each sub-issue.
B. Search Warrants
In his second issue, Bowden argues the trial court erred in not suppressing evidence
obtained from the execution of four warrants for data contained on his cellular device, and records
stored by his service provider. In three sub-issues, he further argues the trial court erred in ruling:
(a) the warrants all satisfied the constitutional requirements of particularity and probable cause;
(b) the warrants all satisfied the dictates of Article 18.21 of the Code of Criminal Procedure; and
(c) the third warrant for a dump of cell data physically stored on his cellular device had not facially
lapsed in its authority.
1. Standard of Review
We typically review a trial court’s ruling on a motion to suppress by using a bifurcated
standard of review giving almost total deference to credibility determinations and reviewing de
novo the trial court’s application of the law. State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim.
App. 2011). However, a trial court’s determination of probable cause to support issuance of search
warrants, require no credibility determinations. Id. Accordingly, the trial court is limited to the
four corners of the affidavit, and we therefore apply a highly deferential standard of review to a
magistrate’s decision to issue a warrant. Id. There is a constitutional preference for searches
17
conducted pursuant to a warrant over warrantless searches. Id. If the magistrate had a substantial
basis for finding probable cause existed, we must uphold the magistrate’s probable cause
determination. Id. We must not analyze the affidavit in a hyper-technical manner but in a
commonsensical and realistic manner. Rodriguez v. State, 232 S.W.3d 55, 61 (Tex. Crim. App.
2007). Given that a magistrate may draw reasonable inferences, we defer to all reasonable
inferences that the magistrate could have made. Id.
2. Applicable Law
Pursuant to the Fourth Amendment, probable cause supported by oath or affirmation
describing the place to be searched and the things to be seized is required in order for a warrant to
issue. U.S. CONST. AMEND. IV. Texas law requires that no search warrant shall be issued, “unless
sufficient facts are first presented to satisfy the issuing magistrate that probable cause does in fact
exist for its issuance.” TEX. CODE CRIM. PROC. ANN. art. 18.01(b). In every instance requesting a
search warrant be issued, a sworn affidavit must be filed and set forth substantial facts establishing
probable cause. Id.
Under the Fourth Amendment, authorities may not embark on a general search of a cell
phone as cell phone users have a reasonable expectation of privacy. Butler v. State, 459 S.W.3d
595, 601 n.3 (Tex. Crim. App. 2015). To comply with the Fourth Amendment, a search warrant
must describe the items to be seized with sufficient particularity so to avoid the possibility of a
general search. TEX. CODE CRIM. PROC. ANN. art. 18.01(b); Thacker v. State, 889 S.W.2d 380, 389
(Tex. App.—Houston [14th Dist.] 1994, pet. ref’d). “The constitutional objectives of requiring a
‘particular’ description of the place to be searched include: 1) ensuring that the officer searches
the right place; 2) confirming that probable cause is, in fact, established for the place described in
18
the warrant; 3) limiting the officer’s discretion and narrowing the scope of his search; 4)
minimizing the danger of mistakenly searching the person or property of an innocent bystander or
property owner; and 5) informing the owner of the officer’s authority to search that specific
location.” Long v. State, 132 S.W.3d 443, 447 (Tex. Crim. App. 2004).
The items to be seized must be described with sufficient particularity such that the officer
that executes has no discretion to decide what items may be seized. Thacker, 889 S.W.2d at 389.
But the requirements for particularity of the description may vary depending on the nature of the
thing to be seized. Id. A sworn affidavit for an evidentiary search warrant must set forth specific
facts to establish probable cause including “(1) that a specific offense has been committed, (2) that
the specifically described property or items that are to be searched for or seized constitute evidence
of that offense or evidence that a particular person committed that offense, and (3) that the property
or items constituting evidence to be searched for or seized are located at or on the particular person,
place, or thing to be searched.” TEX. CODE CRIM. PROC. ANN. art. 18.01(c); Sims v. State, 526
S.W.3d 638, 644 (Tex. App.—Texarkana 2017), aff’d, 569 S.W.3d 634 (Tex. Crim. App. 2019).
When dealing with computers or other electronic devices, a warrant must limit the search to
evidence of specific crimes or specific materials. Farek v. State, No. 01-18-00385-CR, 2019 WL
2588106, at *7-8 (Tex. App.—Houston [1st Dist.] June 25, 2019, pet. ref’d) (mem. op., not
designated for publication) (citing United States v. Burgess, 576 F.3d 1078, 1091 (10th Cir. 2009)).
A warrant that permits the search of all computer records without description or limitation will not
meet Fourth Amendment particularity requirements. Farek, 2019 WL 2588106, at *8. However, a
search limited to those records related to the offense at issue as set forth in the affidavit is
appropriately limited. Id.19
3. Analysis
a. Probable Cause, Particularity Requirements, and Facially Valid
All four warrants at issue contained probable-cause affidavits that were similar in detail
and contained the following facts. In all, the affiants stated the victim’s stepfather sought help
when he found the victim dead in the upstairs bedroom of their shared apartment. The victim was
a transgender prostitute and, according to her cousin, was scheduled to meet a client at her
apartment just prior to her murder. About an hour before police arrived at the scene, the victim’s
neighbor witnessed a tall, thin, light-skinned African American male arrive at the victim’s
apartment. There was no sign of a forced entry, but the crime scene reflected there had been a
struggle. The victim’s phone was missing from the scene and a search warrant—not at issue here—
was obtained for the victim’s cell phone records. The records revealed a certain number had
multiple completed calls with the victim at the date and time in question. Bowden was identified
as being linked to the number and additional information was obtained describing Bowden. With
this information, the affiants requested Bowden’s cell phone records. We will address Bowden’s
first and third sub complaints regarding each search warrant in turn.
August 12, 2016 Search Warrant
Detective Ochoa was the affiant for the first warrant at issue—2016-384-017, issued on
August 12, 2016—(August 12 warrant), which sought Bowden’s T-Mobile cell phone records
from August 7, 2016, through August 9, 2016. The August 12 warrant permitted Bowden’s T-
Mobile cell phone records to be searched for “cell phone records” pertaining to the cellular number
identified as Bowden’s cell phone number. The incorporated affidavit set forth pertinent facts to
establish probable cause including:
20
• affiant was investigating the murder of the victim;
• the crime scene revealed evidence of a struggle but no indicators of forced
entry;
• the victim’s cell phone was missing from the scene;
• an initial search warrant for the victim’s call records was secured;
• the initial search revealed a certain number to have multiple completed calls
with the victim during the date/time in question;
• Bowden was identified as the owner of said phone number; and
• a neighbor of the victim described a man who walked into victim’s
apartment about an hour prior to police arriving at the scene matched the
description of Bowden.
Bowden argues the August 12 search warrant does not provide any type of statement of
probable cause as the request was made to “continue the homicide investigation” and the warrant
was sought as a preliminary investigatory tool in an attempt to develop probable cause. Applying
a common-sense reading to the affidavit, we conclude it contained sufficient facts to support the
trial court’s probable cause finding.
Through the affidavit, Detective Ochoa stated the investigation showed the crime scene
had signs of a struggle but no sign of forced entry. The affidavit also stated the victim was a
transgender prostitute who met with clients at her apartment, and she was scheduled to meet with
a client at her apartment at the time of her murder. When this information is paired with the
victim’s neighbor witnessing someone who matched the description of Bowden entering the
victim’s apartment near the time of the murder, together the information created a substantial basis
for believing the victim had communicated with Bowden near the time of her murder. Under the
totality of circumstances, the magistrate reasonably inferred Bowden’s cell phone contained
information regarding the murder of the victim. Walker v. State, 494 S.W.3d 905, 909 (Tex.
App.—Houston [14th Dist.] 2016, pet. ref’d).
Bowden further argues the August 12 warrant did not include any statements of particular
21
items to be searched or seized but instead incorporated the affidavit by reference. However,
particularity requirements may be satisfied when described in the affidavit and the affidavit is
attached and incorporated into the search warrant. Strange v. State, 446 S.W.3d 567, 571 (Tex.
App.—Texarkana 2014, no pet.); Farek, 2019 WL 2588106, at *6. The search warrant sought
information pertaining to Bowden’s cell phone and incorporated the attached affidavit. The
affidavit was limited to the dates August 7, 2016, through August 9, 2016, and described the
victim’s murder with detail. See Roberts v. State, Nos. 07-16-00165-CR, 07-16-00166-CR, 2018
WL 1247590, at *6 (Tex. App.—Amarillo Mar. 9, 2018, pet. ref’d) (mem. op., not designated for
publication) (finding the search warrant was not overbroad when the attached affidavit established
a sufficient nexus between the items to be searched and the offenses being investigated); Farek,
2019 WL 2588106, at *8 (holding a search warrant was not overbroad when the supporting
affidavit directly linked the facts and circumstances of the investigation to the items to be seized,
even though the search warrant authorized a search for “[a]ny and all other digital data” and “[a]ny
and all deleted digital data”). The warrant requesting “cell phone records” for Bowden’s phone
was not overly broad when the incorporated affidavit to that request specified the type of data
sought and likely to contain relevant evidence, limited the time frame of the evidence, and
established the nexus between the records and the victim’s murder. Farek, 2019 WL 2588106, at
*8. Accordingly, the trial court did not err in denying Bowden’s motion to suppress as to the
August 12 search warrant.
September 14, 2016 and September 27, 2016 Search Warrants
Detective Michael Aman was the affiant for the second and fourth search warrants at
issue—383-091416-02, issued on September 14, 2016, and 383-092716-01, issued on September
22
27, 2016—(September 14 and September 27 warrant). The September 14 and September 27
warrants both permitted the search and seizure of call detail records, subscriber information, and
location data for Bowden’s phone number for the five months prior to the victim’s murder based
on Bowden’s admission that he had a prior sexual encounter with the victim sometime during the
months before her murder. The facts set out in the affidavit were identical to those set out in the
August 12 warrant with the addition that “B[owden] was identified as the murder suspect” and he
had provided a voluntary statement admitting to killing the victim.
Bowden asserts the September 14 and September 27 warrants did not present probable
cause because the only justification offered for the search and seizure of the records is that they
would show previous contacts between the victim and the suspect. Bowden asserts the affiants
were using the search as a way to establish probable cause. However, under the totality of
circumstances, we find the affidavits for these warrants establish a fair probability that evidence
of the victim’s murder would be found on Bowden’s cell phone. See Walker, 494 S.W.3d at 909
(holding under the totality of circumstances, the trial court properly concluded there was a fair
probability that evidence relating to the capital murder would be found on the appellant’s cell
phone, when he confessed to shooting the victim and there was evidence of multiple text messages
and phone calls around the time of the shooting).
Bowden also asserts the September 14 and September 27 warrants were overbroad in their
request. However, as we found for the August 12 warrant, these warrants did not attempt to allow
an unlimited search but rather provided a time limit and facts that the search was for evidence that
was relevant to the victim’s murder. Farek, 2019 WL 2588106, at *10 (finding that any ambiguity
or potential overbreadth in the warrant’s phrase “including but not limited to” was cured by
23
limiting the search to evidence of specific crimes or specific types of data that would be seized);
Duenas v. State, No. 08-18-00022-CR, 2020 WL 858640, at *2 (Tex. App.—El Paso Feb. 21,
2020, no pet.) (not designated for publication) (holding the magistrate could infer that fair
probability of evidence existed and would likely be found on the named computer or other
computers or storage devices in defendant’s possession). The trial court did not err in denying
Bowden’s motion to suppress as to these search warrants.
September 13, 2016 Search Warrant
Detective Michael Aman was also the affiant for the third search warrant—JMAG16-
04772—(September 13 warrant). The September 13 warrant permitted a search and seizure of all
records physically stored on Bowden’s cell phone, specifically to include subscriber information,
image files, video files, text messages and log, and contacts. Again, the September 13 warrant
reiterated the facts established in the other three affidavits. Additionally, the affidavit stated
Bowden admitted to having sex with the victim near the time of her murder. Furthermore,
Bowden’s friend and fellow soldier stated that Bowden had told him that he had killed the victim.
The affidavit for the third warrant was signed on September 13, 2016, however, it reflected it was
issued on August 13, 2016, and executed on August 16, 2016.
Bowden argues the warrant requests records without any statement of probable cause as to
particularly listed types of records and was a general warrant. We disagree. With the belief that
Bowden’s cell phone would lead to information surrounding the victim’s murder, there was a
substantial basis for the trial court to determine probable cause. Martinez v. State, No. 13-15-
00441-CR, 2017 WL 1380530, at *3 (Tex. App.—Corpus Christi Feb. 2, 2017, no pet.) (mem. op.,
not designated for publication) (finding magistrate had substantial basis for finding probable cause
24
existed to search defendant’s cell phone based on facts that he communicated with his cohorts via
cell phone). Furthermore, as with the previous three warrants, the September 13 warrant was not
overly broad but specifically identified the items to be seized in accordance with the victim’s
murder. Farek, 2019 WL 2588106, at *6.
In his third sub-issue, Bowden argues the September 13 warrant was facially defective
based on the listed dates and therefore lapsed in authority. The supporting affidavit is dated
September 13, 2016, while the warrant itself is dated August 13, 2016, and returned August 16,
2016. The State asserts the date was a typographical error that did not invalidate the warrant.
The Texas Court of Criminal Appeals has held that technical discrepancies concerning
dates and times will not automatically vitiate the validity of search or arrest warrants. Green v.
State, 799 S.W.2d 756, 759 (Tex. Crim. App. 1990). When technical defects are at issue, the State
can offer explanatory testimony to show the defect is purely technical or clerical. Somoza v. State,
481 S.W.3d 693, 701 (Tex. App.—Houston [1st Dist.] 2015, no pet.). Here, the affiant of the
warrant, Detective Aman, testified the discrepancies in the dates between the affidavit and the
warrant was a “typo” and what he swore to in the affidavit was true on September 13, 2016.
Additionally, Detective Aman testified that it would have been impossible for the warrant to have
been issued on August 16, 2016, as he did not have access to Bowden’s “tangible” phone at that
time. For these reasons, the trial court finding the discrepancy to be a typographical error which
did not invalidate the warrant was supported by the record. See id. at 703 (finding the evidence,
including the officer’s testimony regarding the correct time of the traffic stop and explaining the
noted time was a typographical error, supported the trial court’s finding). The trial court did not
err in denying Bowden’s motion to suppress as to the September 13 search warrant.
25
b. Article 18.21 of the Texas Code of Criminal Procedure
In his second sub-issue to Issue Two, Bowden argues the requested records were governed
by Article 18.21 of the Texas Code of Criminal Procedure. Bowden reiterates that the complained
of search warrants lacked “sufficient probable cause” to satisfy article 18.21. Bowden asserts no
other authority and no specific argument as to this sub-issue.
The Texas Court of Criminal Appeals has concluded that suppression is not an available
remedy under Article 18.21 of the Texas Code of Criminal Procedure unless the issuance of the
search warrant also violated state or federal constitutional provisions. Sims v. State, 569 S.W.3d
634, 637-38 (Tex. Crim. App. 2019) (holding appellant could not invoke article 38.23(a) to remedy
a non-constitutional violation of either the Stored Communications Act or former article 18.21 due
to the statutes exclusivity clauses); Hunter v. State, No. 05-18-00458-CR, 2019 WL 2521721, at
*8 n.4 (Tex. App.—Dallas June 19, 2019, pet. ref’d) (mem. op., not designated for publication);
see TEX. CODE CRIM. PROC. ANN. art. 18.21, § 5A(c) (stating search warrants for electronic
customer data may not be issues without a sworn affidavit with “sufficient and substantial facts to
establish probable cause” of a specific offense being committed and the data will evidence a
particular person committed the offense), repealed by Acts 2017, 85th Leg., ch. 1058 (H.B. 2931),
§ 5.01(2), eff. Jan. 1, 2019. For these reasons, we overrule Bowden’s second sub-issue.
c. Good Faith Exception
In his last sub-issue, Bowden asserts the search warrants could not be relied upon in good
faith because they were plainly invalid. Already having found that the four complained of search
warrants were valid and the trial court did not err in denying the motion to suppress, we need not
address Bowden’s good faith exception argument. See TEX. R. APP. P. 47.1
26
Bowden’s second issue is overruled.
C. Admission of Text Messages
Lastly, in his third issue, Bowden argues the trial court erred by admitting text messages
during the guilt/innocence phase of his trial over his objections. Under his three sub-issues of that
issue Bowden contests: (a) whether the text messages were relevant to any ultimate fact issue; (b)
whether the probative value of the text messages, if any, substantially outweighed their prejudicial
effect; and (c) whether Bowden was harmed by the erroneous admission of the messages.
1. Standard of Review
A trial court’s decision to admit evidence is reviewed for an abuse of discretion. Colone v.
State, 573 S.W.3d 249, 263-64 (Tex. Crim. App. 2019); Marcee v. State, No. 08-18-00148-CR,
2020 WL 4047970, at *2 (Tex. App.—El Paso July 20, 2020, no pet.) (not designated for
publication). The trial court’s decision on the admissibility of evidence will be upheld if it falls
within the “zone of reasonable disagreement.” Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim.
App. 2018).
2. Applicable Law
Evidence is relevant if (a) it has any tendency to make a fact more or less probable than it
would be without the evidence; and (b) the fact is of consequence in determining the action. TEX.
R. EVID. 401. Relevant evidence is admissible unless the United States Constitution, the Texas
Constitution, or Texas law provide otherwise. TEX. R. EVID. 402. “Evidence of a crime, wrong, or
other act is not admissible to prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character.” TEX. R. EVID. 404(b)(1). However,
such evidence will be admissible when it is relevant to prove something other than conformity
27
with character, as being offered to rebut a defensive theory. Casey v. State, 215 S.W.3d 870, 879
(Tex. Crim. App. 2007).
There is a presumption that relevant evidence will be more probative than prejudicial. Id;
Marcee, 2020 WL 4047970, at *2. However, the trial court may exclude relevant evidence if it
finds the probative value of the evidence is substantially outweighed by a danger of unfair
prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting
cumulative evidence. TEX. R. EVID. 403; Marcee, 2020 WL 4047970, at *2. The probative value
of evidence refers to how strongly it serves to make more or less probable the existence of a fact
of consequence to the case as well as the proponent’s need for the item. Casey, 215 S.W.3d at 879.
Unfair prejudice is the tendency to suggest that decisions may be made on an improper basis—an
emotional one. Marcee, 2020 WL 4047970, at *3. All probative evidence is always prejudicial to
one side, therefore, rule 403 only applies when a clear disparity between the degree of prejudice
and the probative value of offered evidence exists. Hernandez v. State, 390 S.W.3d 310, 324 (Tex.
Crim. App. 2012).
Upon a proper rule 403 objection, the trial court must balance the following factors: “(1)
the inherent probative force of the proffered item of evidence along with (2) the proponent’s need
for the evidence against (3) any tendency of the evidence to suggest decision on an improper basis,
(4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any
tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate
the probative force of the evidence, and (6) the likelihood that presentation of the evidence will
consume an inordinate amount of time or merely repeat evidence already admitted.” Gigliobianco
v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006).
28
3. Analysis
During the guilt/innocence phase and outside the presence of the jury, the State informed
the trial court that Raul “Chyna” Fierro (Chyna) would testify that Bowden sent her a message
asking her to have sex knowing she was a transgender female. Bowden objected to the admission
of the messages on relevancy grounds and that the prejudicial impact of the evidence outweighed
its probative value. The State argued the messages were relevant to counter Bowden’s claim that
the first sexual encounter with the victim became nonconsensual when he discovered, during sex,
the victim was male. Bowden objected that it was never said by the defense that he “was raped
because it was a man, and not a wom[a]n.” The trial court overruled Bowden’s objections and the
text messages were admitted.
Through the testimony of Chyna, the State introduced photographs of the message
exchanges between Bowden and Chyna on a dating app called “MeetMe.” Chyna’s “MeetMe”
profile contained pictures of her and listed that she was a “trans girl.” On April 28, 2016, Bowden
sent Chyna a message through the app that stated, “Hey what’s up with you.” Chyna replied two
days later with a smiley face. The next message occurred on August 19, 2016, when Bowden sent
another message to Chyna that stated “DTF,” which Chyna testified meant “down to f***.” After
a few messages were exchanged, Chyna replied, “You done it to a trans before?” Bowden replied
he did not know she was transgender. Bowden then asked, “so where would we do this.” Chyna
clarified Bowden continued to attempt to meet up with her, but they never did. On cross-
examination, Chyna described a person could not send a message through the dating app without
first viewing her profile which listed she was a transgender woman.
29
a. Relevancy
Bowden argues the admission of the text messages between himself and Chyna were
irrelevant to prove any material fact of the State’s case. Countering, the State argues it offered the
messages to disprove Bowden’s claim of self-defense. During the first video-recorded statement,
Bowden stated he initially did not know the victim was male and was in shock when he discovered
that fact. He claimed he was raped but then continued to engage in oral sex and anal intercourse
with Tijerina. In the second video-recorded statement, Bowden asserted that Tijerina had started
to remove his shirt and he thought he was about to get raped again. When he asked for his money,
Bowden responded he had left it in his car. Then he went and retrieved the chisel from the stairs
where he left it, went back upstairs, and returned to stab him to death. Throughout trial, Bowden
presented other evidence asserting the victim was a prostitute who exploited her clients by
threatening them with exposure. Bowden also presented evidence that he had a below average IQ
and had a mild form of Autism Spectrum Disorder, which limited his ability to deal with threats,
especially threats of sexual assault. The State asserts the messages were relevant to rebut Bowden’s
claims he considered the victim’s actions to be rape only after he discovered the victim was male.
The State asserts the evidence showed Bowden did not kill the victim in defense of a rape, but
rather, because the victim had tried to blackmail him.
We agree the text messages were relevant to rebut Bowden’s assertion he was surprised to
learn the victim was a man, that he was raped, and, therefore, he had a reasonable belief that deadly
force was imminent at the time of the victim’s murder. The text messages at issue between him
and Chyna tended to show Bowden had a prior history of interacting with another transgender
female, making those messages relevant to disprove his contention he was surprised to learn the
30
victim was a transgender female and feared he would be sexually assaulted. Cf. Reighley v. State,
585 S.W.3d 98, 106 (Tex. App.—Amarillo 2019, pet. ref’d) (holding text messages where
defendant stated he had previously had oral sex with a fourteen-year-old girl was admissible to
rebut the defense that he believed the minor, for which he was charged with online solicitation of
a minor, was an adult).
b. Probative value outweighed by unfair prejudice
Bowden argues that even if the messages are deemed relevant, the probative value was
outweighed by its prejudicial effect. First, Bowden argues that showing he sought out a sexual
encounter with another transgender female does not disprove that he was raped by the victim. He
argues the element of surprise or shock when he found out that the victim was a male was never
brought up as part of his defense at trial. He contends the State only sought to introduce the
previous text messages with Chyna to invoke the jury’s hostility and “sway them to dislike” him.
However, during the first video-recorded interview, Bowden himself described his encounter as
consensual up to the point he learned the victim was male. Additionally, Bowden introduced
evidence from a licensed psychologist testifying to Bowden’s perceptions and actions as being
consistent with those of a person who is diagnosed with autism. The psychologist testified that
when Bowden went to the victim’s apartment on August 8, and the victim began taking off
Bowden’s shirt, he believed he would be raped again and felt threatened. The psychologist also
testified that a person with autism would react differently to threats than others. The psychologist
testified that Bowden’s reaction to feeling threatened would not be typical and would be “very
concrete” because he was a “one-track thinker[],” and his reasonable belief of the threat would be
different than others. The State sought to disprove Bowden’s assertion he believed he was in fear
31
of being raped because he was not raped during the first encounter with the victim. Whether the
jury believed Bowden reacted aggressively based on his perception he was being raped became a
fact of consequence to the litigation. Hernandez, 390 S.W.3d at 323; Marcee, 2020 WL 4047970,
at *4. For that reason, the text messages with Chyna were probative to that issue and the evidence
was needed by the State to disprove Bowden’s claim of self-defense based on feeling he would be
raped again.
Bowden complains the messages did not help the jury decide the question of self-defense
on a rational basis but instead caused the jury to decide that issue on an improper basis. Also,
Bowden argues the evidence distracted the jury from other evidence that Bowden was fearful of
the victim given the victim’s reputation for violence. On this point, we do not find the evidence
would distract or confuse the jury because the messages did not contain excessively vulgar
language and did not contain any photographs that would shock the jury. The messages in
themselves were not likely to generate any emotional response from the jury. We also do not find
the jury would give the evidence undue weight. Lastly, the State did not spend an inordinate
amount of time introducing the evidence. Chyna’s entire testimony consisted of twenty pages out
of nearly two hundred pages of testimony during the guilt/innocence phase of the trial.
Additionally, Chyna was only one witness out of six witnesses, the others testifying more
extensively. We recognize that all probative evidence is prejudicial to one party or the other to
some degree. Marcee, 2020 WL 4047970, at *4. However, we need only determine whether any
unfair prejudice existed which resulted in a decision being made on an improper basis. Id. From
our review of the record, the text messages’ probative value was not substantially outweighed by
a danger of unfair prejudice. TEX. R. EVID. 403.
32
c. Harmless Error
Even if the admission of the messages was erroneous, we do not otherwise find Bowden
has shown the error had a substantial and injurious effect or influence on the jury’s verdict. TEX.
R. APP. P. 44.2(b). Any violation of evidentiary rules that results in an erroneous admission of
evidence is not constitutional in nature. Lam v. State, 25 S.W.3d 233, 237-38 (Tex. App.—San
Antonio 2000, no pet.); Altamirano v. State, No. 08-01-00235-CR, 2003 WL 1889947, at *6 (Tex.
App.—El Paso Apr. 17, 2003, no pet.) (not designated for publication). A non-constitutional error
that does not affect appellant’s substantial rights must be disregarded. TEX. R. APP. P. 44.2(b). A
substantial right is affected when an error has a substantial and injurious effect or influence in
determining the jury’s verdict. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). A
substantial right is not affected when there is fair assurance that an error did not influence the jury
or only had but a slight effect. Id. In making this determination, we review the following: the
testimony and evidence admitted for the jury’s consideration, the nature of evidence supporting
the verdict, the character of the alleged error, and how it may be considered in connection with the
other evidence of the case. Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000).
Bowden asserts the text messages only sought to show Bowden has a “voracious sexual
appetite” and to portray him as a “sexual fiend.” As mentioned above, we do not agree that such
was the State’s intent in admitting those messages. In addition to the messages, there was other
evidence of record rebutting Bowden’s theory of self-defense. For example, the jury heard his
video-recorded interview in which he provided details of his encounter with the victim.
Specifically, that when the victim asked him for money, he left the apartment, retrieved the chisel
from where he had left it on the stairs, and returned to stab the victim. From our review of the
33
record in whole, we cannot say the admission of the text messages between Bowden and Chyna
warranted a reversal of his conviction.
Bowden’s third issue is overruled.
III. CONCLUSION
We affirm.
GINA M. PALAFOX, Justice
August 18, 2021
Before Rodriguez, C.J., Palafox, and Alley, JJ.
(Do Not Publish)
34