Mario Hernan LopezGamez v. State

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00169-CR
___________________________
MARIO HERNAN LOPEZGAMEZ, Appellant
V.
THE STATE OF TEXAS
On Appeal from Criminal District Court No. 4
Tarrant County, Texas
Trial Court No. 1487696D
Before Sudderth, C.J.; Birdwell and Womack, JJ.
Memorandum Opinion by Chief Justice Sudderth
MEMORANDUM OPINION
Appellant Mario Hernan LopezGamez appeals his conviction for the capital
murder of April VanCleave, whom he shot and killed while stealing jewelry that she was
trying to sell to support her financially strapped family. In five points, he takes issue
with the trial court’s refusal to suppress certain evidence (points one through three),
admission of conditionally admitted evidence (point four), and rejection of his proposed
jury charge instruction (point five). We affirm his conviction.
Background
I. The murder
In December 2016, VanCleave decided to sell some of her jewelry, including two
gold chains and a gold ring, because she and her husband, Mustafah Zaatreh, were
struggling financially. Using the phone application 5miles, VanCleave listed the jewelry
and set up a meeting with a potential buyer, “Juana Ayala,” at a Starbucks inside a nearby
Target at 11:00 a.m. on December 15.
The evidence at trial indicated that VanCleave and Zaatreh were late for the
December 15 meeting. Just before 11:30 a.m. that day, the two arrived at Target and
parked their gold Kia in the lot to the side of the building. As they walked inside,
Zaatreh noticed two men standing outside the entrance. Once he and VanCleave
entered the Starbucks, they waited to meet Juana Ayala, but after receiving a text from
her indicating that she was not coming after all, they left Starbucks, returned to their
Kia, and drove back to their apartment, which was just minutes away. Zaatreh dropped
2
VanCleave off outside their apartment, and then he left to see a friend about a part-
time job. While dropping her off, he noticed a red pickup in the parking lot that stopped
when he stopped, but he thought nothing of it at the time. As Zaatreh drove away, he
had no idea his wife was about to be robbed and murdered.
Moises Castruita was walking through the apartment complex that morning
when he suddenly heard a woman loudly scream, “What are you doing? Get off me,”
or “Let go.” He looked up and saw VanCleave standing on the sidewalk ahead of him,
with a “stocky” Hispanic or Mexican man “very close to her” who “looked like he was
trying to strip her from like a bag or like he was pulling on her.” Then Castruita heard
a bang and saw the man turn and walk toward a nearby carport.
Neighbor Michael Arana heard the bang, looked out his apartment window, and
saw a “red truck with a man running towards the passenger-side door.” Arana testified
that the red truck was parked diagonally across two parking spots beneath a carport,
“probably about 30 to 50 feet away from [his] unit.” At trial, he described the man who
ran to and got in the truck as “heavier-set” and the man driving the truck as “skinny,”
and he said both appeared to be “Mexican.” As soon as the man got in the truck, it left
the apartment complex. Then Arana saw VanCleave lying on the sidewalk, so he and
his girlfriend both called 911. Police Officer Tasha Matthews found VanCleave lying
3
on her side, breathing with difficulty, and holding close to her face a keychain containing
a little girl’s photograph.1
VanCleave was rushed to the hospital where she died from the gunshot wound.
II. The initial investigation
Arlington Police Detective Caleb Blank took the lead in investigating
VanCleave’s murder. Based on Zaatreh’s account of the attempted jewelry sale,
Detective Blank went to the nearby Target and reviewed security footage. In it, he
noticed that two men matching the neighbors’ suspect descriptions—two Hispanic or
Mexican males, one heavy-set and the other thin—arrived at the Target parking lot at
approximately 11:18 a.m. on December 15 in a red Ford F-150. The two men entered
Target, walked to the Starbucks inside, and walked through the seating area.
Throughout the footage, the heavyset male looked at his phone often and appeared to
be typing on his phone. After walking through Starbucks and lingering outside the
Starbucks entrance for about five minutes, the men exited Target and stood outside by
the entry doors closest to Starbucks. At 11:30 a.m., as Zaatreh and VanCleave entered
Target through those doors, the heavyset man watched VanCleave closely. Within two
minutes, the two men followed Zaatreh and VanCleave into Target, lingering in the
produce area just outside of Starbucks while Zaatreh and VanCleave took a seat inside
1
VanCleave had a nine-year old daughter and wanted to sell her jewelry so that
her daughter could enjoy Christmas.
4
Starbucks. After a minute, the two men walked to the exit on the other side of Target,
got back into the red F-150, and drove to the side parking lot where they had seen
VanCleave and Zaatreh walk from before entering Target. At 11:47 a.m., VanCleave
and Zaatreh left Target, walked around the building, and got into their Kia, which was
two parking spots away from the red F-150 with the two men. Within seconds of
Zaatreh’s backing the Kia from its spot and driving out of the lot, the red pickup pulled
out of its spot and followed in the same direction. Footage obtained from a pharmacy
across the street from Zaatreh’s and VanCleave’s apartment complex showed the Kia
turning into the complex at approximately 11:51 a.m. and the red F -150 turning in
behind it about 20 seconds later. The same camera captured the red F-150 speeding
out of and away from the complex five minutes later.
To identify the two men, Detective Blank found VanCleave’s 5miles posting for
the jewelry under the profile name “Kameyla.” With a search warrant served on 5miles,
he obtained VanCleave’s 5miles profile information and communications, including the
following December 15 communication with “Juana Ayala” about the December 15
meeting:
11:08 a.m.[2] Ayala: Are you on the way?
11:10 a.m. Ayala: ?
11:15 a.m. Ayala: How long till you arrive so I can manage time?
11:19 a.m. VanCleave: Are you there?
2
Detective Blank testified that the original records were timestamped in
coordinated universal time, six hours ahead of the local time zone. We have adjusted
the time to reflect Central Standard Time, as testified to by Detective Blank.
5
11:19 a.m. Ayala: I need to know how long you will take
11:21 a.m. VanCleave: 10 minutes
11:21 a.m. Ayala: Ok
11:25 a.m. VanCleave: Where are you
11:27 a.m. VanCleave: Here
11:28 a.m. Ayala: Hello
11:30 a.m. VanCleave: I’m in Starbucks
11:31 a.m. VanCleave: Waiting
11:32 a.m. Ayala: Where are you sit[t]ing
11:33 a.m. VanCleave: ?
11:34 a.m. VanCleave: How long
11:38 a.m. VanCleave: ?
11:39 a.m. VanCleave: Waiting
11:42 a.m. VanCleave: Are you here?
11:43 a.m. VanCleave: Response please
11:44 a.m. Ayala: I have emergencia in my home
11:44 a.m. Ayala: I see you later
GPS coordinate information disclosed by 5miles indicated that the person using
the Juana Ayala profile was in the same area as Target during these communications
with VanCleave. Detective Blank also used the GPS information obtained from 5miles
to ascertain that the profile user lived in the same apartment complex in Dallas where
two apartment-complex employees identified Appellant and his wife, Keyla Pineda
Ayala, as former tenants.3 GPS data obtained from 5miles also led Detective Blank to
3
Those employees also informed Detective Blank that Appellant, his wife, and
his two children had abandoned their apartment in mid-December. They identified
Appellant and his wife as the owners of the red F-150 recorded in the Target
surveillance footage and provided photographs of all of the property that had been left
behind, including children’s toys, furniture, and sneakers left soaking in tubs of bleach
in the apartment bathtub.
6
believe that Appellant and his wife may have moved to Houston after abandoning their
Dallas apartment.
III. The arrest and subsequent searches
A. Arrest
Detective Blank obtained an arrest warrant for Appellant and forwarded it with
copies of documents regarding Appellant’s red F-150 to Arlington Police Department
Detective Troy Medina and special deputy with the U.S. Marshals Task Force.
Detective Medina determined that Appellant purchased a red F-150 from Don Carro,
a Dallas-area “tote-the-note” dealership, and that part of the purchase agreement
included permission for Don Carro to track the GPS location of the pickup in the event
it had to be repossessed. Detective Medina visited the dealership and , using this GPS
tracking device, a Don Carro representative identified the real-time GPS location of the
red F-150 as in a Houston trailer park. That information was passed along to the Gulf
Coast Fugitive Task Force, which conducted surveillance on the park, located the F-
150, and identified and arrested Appellant.
B. Search of trailer
Upon learning of the arrest, Detective Blank went to Houston to see the trailer
in which Appellant and his family had been living and to seize the red F-150. When he
arrived at the trailer with two other officers, no one was home, but the back door to
the trailer was open. Through it, Detective Blank could see shoes resembling those
worn by Appellant in the Target surveillance footage—grey shoes with distinctive
7
orange stripes. He obtained a warrant to search inside the trailer, and in addition to the
shoes he found a white and blue shirt resembling that worn by Appellant in the Target
surveillance footage, a set of tires resembling those on the F-150 in the Target
surveillance footage, and a black Samsung Galaxy Note 7.
The Samsung phone was particularly significant because the materials produced
by 5miles indicated that the “Juana Ayala” profile was accessed and used through a
Samsung Galaxy Note 7. Arlington police later extracted data from the phone,4
including several photos and text-message conversations, including:
• photos of Appellant wearing a brown jacket with a gray hood similar to
the jacket he wore in the Target surveillance footage;
• photos that showed Appellant and his family in their later-abandoned
Dallas apartment;
• photos of Appellant wearing gray Nike shoes with orange trim similar to
those he wore in the Target surveillance footage and which were
recovered from the Houston trailer;
• a photo of Appellant wearing a white shirt with a blue pattern similar to
the one he wore in the Target surveillance footage;
• a photo of a gold chain;
• a video from the day before the murder depicting Appellant and his family
in their Dallas apartment, and in which Appellant had longer hair and
facial hair;
• a video from the day after the murder in which Appellant’s hair was
shorter, he had no facial hair, and he was in a Houston-area mall with his
family;
4
The extraction was performed pursuant to a search warrant.
8
• the profile photo used in the “Juana Ayala” profile on 5miles; and
• text-message conversations between Appellant and his suspected
codefendant, Alex Menor, in the days before and after the murder.
The extracted data also revealed that the 5miles app had previously been
downloaded to the phone, registered to “Juana Ayala,” and later deleted . It also
indicated that a user had searched for the app within the Samsung “Play” store on
December 15, 16, and 27.
C. Search of the pickup
The F-150 was seized by the U.S. Marshals upon Appellant’s arrest and was
subsequently escorted by Detective Blank to Arlington via a wrecker service. After
acquiring a search warrant for the F-150, Detective Blank found a Blue ZTE phone in
the driver’s side door pocket. It was damaged beyond repair and could not be turned
on.
D. Pawn shop recovery
Detective Blank also obtained evidence from a database of Texas pawnshop
transactions showing that Keyla Ayala had sold a gold ring to a Houston pawnshop on
January 4, 2017. He contacted the Houston pawnshop, confirmed that Keyla Ayala had
pawned a gold ring, and retrieved the gold ring. He testified that the ring matched the
photograph of a gold ring posted by VanCleave on 5miles.
9
IV. The trial and conviction
A jury convicted Appellant of the capital murder of VanCleave. The trial court
sentenced him to life in prison without parole. This appeal followed.
Discussion
Appellant brings five points on appeal. His first, second, and third points relate
to the denial of his pretrial motions to suppress certain evidence recovered by the State.
His fourth point complains about the admission of evidence found in the red F-150.
His fifth and final point complains about the trial court’s refusal to include a requested
instruction in the jury charge.
I. Suppression motions
Appellant’s first three points challenge the trial court’s denial of his motions to
suppress (1) evidence gained as a result of Appellant’s arrest with the aid of GPS
tracking from the car dealership and (2–3) evidence obtained from the Samsung phone.
A. Standard of Review
We apply a bifurcated standard of review to a trial court’s ruling on a motion to
suppress evidence. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007);
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). In reviewing the trial court’s
decision, we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539,
543 (Tex. Crim. App. 1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth
2003, no pet.). Because the trial judge is the sole trier of fact and judge of the witnesses’
credibility and the weight to be given their testimony, Wiede v. State, 214 S.W.3d 17, 24–
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25 (Tex. Crim. App. 2007), we defer almost totally to the trial court’s rulings on
(1) questions of historical fact, even if the trial court determined those facts on a basis
other than evaluating credibility and demeanor, and (2) application-of-law-to-fact
questions that turn on evaluating credibility and demeanor. Amador, 221 S.W.3d at 673;
Montanez, 195 S.W.3d at 108–09; Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim.
App. 2002). But when application-of-law-to-fact questions do not turn on the
witnesses’ credibility and demeanor, we review the trial court’s rulings on those
questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607
(Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.
We must view the evidence in the light most favorable to the trial court’s ruling.
Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).
When the record is silent on the reasons for the trial court’s ruling, or when there are
no explicit fact findings and neither party timely requested findings and conclusions
from the trial court, we imply the necessary fact findings that would support the trial
court’s ruling if the evidence, viewed in the light most favorable to the trial court’s
ruling, supports those findings. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim.
App. 2008); see Wiede, 214 S.W.3d at 25. We then review the trial court’s legal ruling
de novo unless the implied fact findings supported by the record are also dispositive of
the legal ruling. Kelly, 204 S.W.3d at 819.
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B. GPS tracking and Appellant’s arrest
In his first issue, Appellant argues that the trial court erred by denying his motion
to suppress all evidence stemming from his arrest because Detective Medina’s
procurement of GPS tracking information from Don Carro violated his Fourth
Amendment right against unreasonable searches.
The Fourth Amendment protects against unreasonable searches and seizures by
government officials. U.S. Const. amend. IV; Wiede, 214 S.W.3d at 24. A defendant
seeking to suppress evidence on Fourth Amendment grounds bears the initial burden
to produce some evidence that the government conducted a warrantless search or
seizure that he has standing to contest. State v. Martinez, 569 S.W.3d 621, 623 (Tex.
Crim. App. 2019) (quoting Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim. App. 1986),
disavowed in part on other grounds by Handy v. State, 189 S.W.3d 296, 299 n.2 (Tex. Crim.
App. 2006)); Handy, 189 S.W.3d at 298–99; see, e.g., Rawlings v. Kentucky, 448 U.S. 98,
104–05, 100 S. Ct. 2556, 2561 (1980). Once the defendant does so, the burden shifts
to the State to prove either that the search or seizure was conducted pursuant to a
warrant or, if warrantless, was otherwise reasonable. Martinez, 569 S.W.3d at 623
(quoting Russell, 717 S.W.2d at 9); Amador, 221 S.W.3d at 672–73.
Whether a search is reasonable is a question of law that we review de novo,
measuring reasonableness by examining the totality of the circumstances. Kothe v. State,
152 S.W.3d 54, 62–63 (Tex. Crim. App. 2004). In the process, we must balance the
public interest and the individual’s right to be free from arbitrary detentions and
12
intrusions. Id. at 63. A warrantless search is per se unreasonable unless it falls within
one of the “specifically defined and well established” exceptions to the warrant
requirement. McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003); see Best, 118
S.W.3d at 862.
To argue that the acquisition of the pickup’s GPS location from Don Carro was
an unreasonable and therefore unlawful search, Appellant relies primarily on the United
States Supreme Court’s 2012 Jones and 2018 Carpenter decisions’ applications of the
Fourth Amendment to situations of GPS tracking using modern-day technology.
Carpenter v. United States, 138 S. Ct. 2206 (2018); United States v. Jones, 565 U.S. 400, 132
S. Ct. 945 (2012). But both Jones and Carpenter (which was limited to cell-site location
information) are distinguishable from the situation at hand.
Jones involved the government’s attachment of a GPS tracking device to a
suspect’s car without the suspect’s knowledge and its use of the device to track his
movements for about a month. 565 U.S. at 403, 132 S. Ct. at 948. The Supreme Court
held that the attachment of the device was a search within the meaning of the Fourth
Amendment and emphasized that “[t]he Government physically occupied private
property for the purpose of obtaining information.” Id. at 404, 132 S. Ct. at 949. Here,
the government did not attach the GPS tracking device to Appellant’s pickup. The
tracking device was installed by Don Carro alone, and with Appellant’s permission.
Jones is therefore inapplicable to these facts.
13
In its examination of cell-site location information (“CSLI”) obtained from a cell
phone, the Supreme Court in Carpenter traced the evolution of Fourth Amendment law
in light of “innovations in surveillance tools,” which have “enhanced the Government’s
capacity to encroach upon areas normally guarded from inquisitive eyes.” 138 S. Ct. at
2214. Recognizing that the digital data collected by cell phones in particular did not fit
neatly under existing precedents addressing “personal location information maintained
by a third party,” the Court distinguished CSLI from other surveillance methods. Id. at
2214–15. While it recognized and kept intact the precedent that a person holds no
legitimate privacy interest in information he voluntarily turns over to third parties,
“even if the information is revealed on the assumption that it will be used only for a
limited purpose,” id. at 2216 (citing Smith v. Maryland, 442 U.S. 735, 743–44, 99 S. Ct.
2577, 2582 (1979); and quoting United States v. Miller, 425 U.S. 435, 443, 96 S. Ct. 1619,
1624 (1976)), the Court declined to extend these concepts to cover CSLI, holding,
Given the unique nature of cell phone location records, the fact that the
information is held by a third party does not by itself overcome the user’s
claim to Fourth Amendment protection. Whether the government
employs its own surveillance technology as in Jones or leverages the
technology of a wireless carrier, we hold that an individual maintains a
legitimate expectation of privacy in the record of his physical movements
as captured through CSLI.
Id. at 2217. It went on to expressly state that CSLI “present[s] even greater privacy
concerns than the GPS monitoring of a vehicle . . . considered in Jones,” labelling cell
phones as “almost a ‘feature of human anatomy.’” Id. (quoting Riley v. California, 573
U.S. 373, 385, 134 S. Ct. 2473, 2484 (2014)). “[W]hen the government tracks the
14
location of a cell phone it achieves near perfect surveillance, as if it had attached an
ankle monitor to the phone’s user.” Id. Comparatively, “individuals regularly leave
their vehicles.” Id. In Carpenter, the Court made a point of not addressing the collection
by law enforcement of real-time GPS information. Id. at 2220 (“We do not express a
view on matters not before us: real-time CSLI . . . .”); see also Sims v. State, 569 S.W.3d
634, 645–46 (2019) (holding there was no violation of defendant’s privacy expectations
by law enforcement’s retrieval of less than three hours of real-time CSLI tracking).
Carpenter does not apply to the facts here. Here, Appellant and his wife agreed,
as a condition of their purchase, to allow Don Carro to access the F-150’s whereabouts
through a real-time GPS tracking device. Thus, they voluntarily turned over their
location information to a third party, and by so doing they relinquished their expectation
of privacy in that information. See Smith, 442 U.S. at 743–44, 99 S. Ct. 2577, 2582;
Miller, 425 U.S. at 443, 132 S. Ct. at 1624.
Appellant’s argument also ignores a fundamental difference between CSLI from
a cell phone and vehicle GPS-tracking devices. The purpose of a cell phone is to
communicate. Due to the technology that enables cell phones to work, a cell phone
can also reveal its user’s location and movements. Although this tracking capability is
a consequence of a cell phone’s use, location, and movement, tracking is not the cell
phone’s primary purpose. See, e.g., Carpenter, 138 S. Ct. at 2217 (highlighting the “unique
nature of cell phone location records”). On the other hand, the essential purpose of a
GPS device is to track a person’s movements. When a person permits a GPS device to
15
be installed on a vehicle, that person has an affirmative expectation that his or her
movements and locations will be tracked. Because of this fundamental difference
between cell phones and GPS devices, we decline Appellant’s request to extend the
Carpenter holding with regard to CSLI to the retrieval of real-time GPS location
information under the facts of this case. 5
The trial court therefore did not err by denying Appellant’s motion to suppress
related to his arrest, and we overrule Appellant’s first point.
C. Samsung phone
In his second and third points, Appellant argues that the trial court erred by
denying his motion to suppress evidence seized from his cell phone because the cell
phone’s seizure from the trailer was outside the scope of the search warrant .6 He
5
In any event, even if we were to hold that the location information was
impermissibly obtained without a warrant, it would not taint all of the evidence
procured as a result of Appellant’s arrest. See, e.g., State v. Jackson, 464 S.W.3d 724, 731
(Tex. Crim. App. 2015) (“[N]ot every but/for product of police illegality will constitute
evidence ‘obtained’ from that illegality for either federal or state exclusionary rule
purposes; evidence is not subject to suppression, in other words, ‘simply because it
would not have come to light but for the illegal actions of the police.’”) (quoting State
v. Mazuca, 375 S.W.3d 294, 300 (Tex. Crim. App. 2012)). And, since the location
information was never introduced at trial, any error in failing to suppress it was
harmless.
6
Appellant labeled his argument as two points of error, but he phrased the point
as one sentence and consolidated his argument into one section. We will likewise
consolidate our discussion of the two points into one. Structurally, Appellant appears
to have asserted his arguments in two points—one under Chapter 18 and the other
under the Fourth Amendment.
16
contends that the seizure of the phone therefore violated Code of Criminal Procedure
Chapter 18 and the Fourth Amendment. We disagree.
Article 18.02 authorizes the issuance of search warrants for certain enumerated
categories of items, including “implements or instruments used in the commission of a
crime” and, in a catchall provision, “property or items, except the personal writings by
the accused, constituting evidence of an offense or constituting evidence tending to
show that a particular person committed an offense.” Tex. Code Crim. Proc. Ann. art.
18.02(a)(9), (10). Commonly referred to as the “mere evidence” provision, this catchall
provision of Article 18.02(a)(10) applies only when the other articles do not. State v.
Young, 8 S.W.3d 695, 699 (Tex. App.—Fort Worth 1999, no pet.). It does not grant
unrestrained power; rather, Article 18.01(d) places a limitation on items seized, stating
that “[o]nly the specifically described property or items set forth in a search warrant
issued under Article 18.02(a)(10) or property, items[,] or contraband enumerated in
Article 18.02(a)(1), (2), (3), (4), (5), (6), (7), (8), (9), or (12) may be seized.” Id. art.
18.01(d). Appellant asserts that the trailer warrant is a “mere evidence” warrant, and
because it did not specifically name the Samsung phone as its target, the seizure of the
phone was unlawful.
We disagree. As we explained in Young, “plain view evidence” is not the same as
“mere evidence” collected under authority of Article 18.02(a)(10). Young, 8 S.W.3d at
699. “Plain view evidence” is evidence connected with a crime that does not consist of
fruits, instrumentalities, or contraband. Id. (citing Joseph v. State, 807 S.W.2d 303, 307
17
(Tex. Crim. App. 1991)). “Mere evidence,” on the other hand, refers “only to those
items sought and described in a warrant issued under [A]rticle 18.02[(a)](10).” Id. (citing
Reeves v. State, 969 S.W.2d 471, 482 (Tex. App.—Waco 1998, pet. ref’d)). “[W]hile ‘plain
view’ evidence may be properly seized with respect to searches authorized by [mere
evidence] warrants, . . . evidence discovered during a search authorized by a [mere
evidence] warrant . . . must be specifically described in that warrant.” Id. The plain
view doctrine permits the seizure of evidence only if: (1) the officer was in the proper
position to view the evidence or was lawfully present on the premises; and (2) the fact
that the officer has discovered evidence is immediately apparent. Id. (citing Joseph, 807
S.W.2d at 308).
In Young, a detective procured a warrant to search the appellee’s apartment for a
9mm pistol used by the appellee in committing a crime. Id. at 697. While in the
appellee’s apartment, the detective did not find the gun but did find several accessories
for a 9mm pistol, including a gun case, spent casings, and ammunition. Id. We held
that the evidence was admissible despite not being specifically identified in the warrant
because they were reasonably related to the offense. Id. We noted, “Officers do not
have to ‘know’ that the items are incriminating[,] . . . the facts available to the officer
must merely suffice to enable a reasonable person to believe the items observed may be
useful as evidence of a crime.” Id. at 700 (citing Texas v. Brown, 460 U.S. 730, 742, 103
S. Ct. 1535, 1543 (1983)).
Here, Detective Blank’s trailer-warrant affidavit alleged,
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• that VanCleave had communicated with the potential jewelry buyers
through a cell-phone application, 5miles;
• that in the Target surveillance video, Appellant was seen “using his cell
phone and appear[ed] to be using it to message another person” ;
• that another citizen recognized Appellant as someone who had previously
robbed her after setting up a transaction through another cell-phone
application, “OfferUp,” similar to 5miles; and
• that based on Detective Blank’s experience, it is common for suspects
involved in thefts and aggravated robberies to store proceeds “and other
evidence from their crimes in their residences.”
Detective Blank concluded, “Based upon seeing the suspect’s shoes in plain view in the
location, it is my belief that the location may have other evidence of the crimes of
Capital Murder, Aggravated Robbery, and Theft.” The trailer warrant incorporated the
affidavit’s contents for all purposes and authorized the search of the trailer and the
seizure of “property or items constituting evidence of the offenses of Aggravated
Robbery[,] Capital Murder, or Theft.” Detective Blank found the Samsung phone on
top of a shelf over the washer and dryer, just above his eye level.
The trailer warrant is therefore similar to that in Young, making clear that the
warrant was sought to search for the proceeds and instruments used to commit the
crime. See id. at 697. Detective Blank’s affidavit referred to the use of a cell phone in
the commission of the crime—it was used to set up the jewelry purchase with
VanCleave, to communicate with VanCleave, and possibly to orchestrate a prior
19
robbery. It clearly linked the use of a cell phone with the commission of the crime itself
and reflected “an intent to search for an instrument of the crime.” Id. at 698.
Additionally, the phone was found in plain view, despite Appellant’s argument
otherwise. Detective Blank testified at the suppression hearing that he could see the
Samsung phone sitting on the top shelf in the laundry room when he was stand ing on
his “tiptoes,” explaining, “it’s not too tall of a trailer to begin with.” The fact that he
used the camera application of his own cell phone to confirm that it was a cell phone
does not change the fact that he could see it in plain view from the outset . See, e.g., Ruiz
v. State, 907 S.W.2d 600, 605 (Tex. App.—Corpus Christi-Edinburg 1995, no writ)
(holding that use of a flashlight to see a gun did not prevent the gun from appea ring in
plain view). Detective Blank’s discovery of the Samsung phone therefore complies with
the plain-view doctrine: under the search warrant, he had a right to be in the space and
he had probable cause to believe that the cell phone might hold incriminating evidence
related to the crime. See id. at 699–700.
The trial court did not abuse its discretion by denying Appellant’s motion to
suppress the Samsung phone as evidence. We overrule Appellant’s second and third
points.
II. Evidence found in the F-150
In his fourth point, Appellant argues that the State “failed to ‘connect up’
conditionally admitted evidence concerning the search of the pickup found in
Houston.” In support, he relies on his objection, argued in a hearing outside the jury’s
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presence, to the crime scene investigator’s testimony to items found in a search of the
red F-150:
But the first point of objection is that the vehicle was seized in Houston
from [Appellant]. We don’t have the testimony on the record as to how
the vehicle was seized, how it was located, how - - whether it was
processed in Houston, and how it was transported from Houston to here.
So there’s no chain on the vehicle.
....
Well, my first issue is that there’s been no chain of custody shown
in front of the jury as to this vehicle, which we’re getting ready to discuss
a search of. So it’s - - we don’t have the beginning of a chain of custody
on it, so we object on that ground to start off with.
On appeal, he claims that the trial court allowed the crime scene investigator to testify
to the search of the F-150 on the condition that Detective Blank “connect up” the
testimony later by providing details of the pickup’s chain of custody but that the
detective never followed up, leaving the chain of custody issue unresolved..
The doctrine of conditional relevance allows a trial court to admit evidence
lacking authentication on the condition that the party offering the evidence authenticate
it, or “connect it up,” at a later time. Powell v. State, 898 S.W.2d 821, 829 (Tex. Crim.
App. 1994). But here, the premise of Appellant’s complaint is fatally undermined by
the record. Contrary to his assertion in his brief that Detective Blank “never established
the chain of custody of the truck—specifically how it was retrieved from Houston,
where it was stored, or who was in charge of it,” Detective Blank did testify to those
details. He testified, in front of the jury, that he examined and photographed the F-150
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where it had been secured in the Harris County Sheriff’s Office’s enclosure bay, placed
evidence stickers and seals on the pickup, supervised the loading of the F-150 onto a
flatbed tow truck, and followed the tow truck during its transport from Houston to
Arlington, where he obtained a search warrant before searching its contents.
Furthermore, because the chain-of-custody requirement is not intended to be
stringently applied, if the trial court is satisfied that the evidence is what the proponent
claims, any purported gaps or theoretical breaches in the chain of custody go to the
weight of the evidence, not its admissibility. Avila v. State, 18 S.W.3d 736, 740 (Tex.
App.—San Antonio 2000, no pet.) (citing Medillin v. State, 617 S.W.2d 229, 232 (Tex.
Crim. App. [Panel Op.] 1981)); see also Stoker v. State, 788 S.W.2d 1, 10 (Tex. Crim. App.
1989) (“The chain of custody is conclusively proven if an officer is able to identify that
he or she seized the item of physical evidence, put an identification mark on it, placed
it in the property room, and then retrieved the item being offered on the day of trial.”).
Because the chain of custody for the F-150 was properly established, the trial
court did not abuse its discretion by overruling Appellant’s objection to admission of
evidence regarding the pickup and denying his motion to strike such evidence. We
overrule Appellant’s fourth point.
III. Jury instruction
In his fifth and final point, Appellant argues that the trial court erred by refusing
to include in the jury charge his requested language specifying that the jury should
consider the charge as a whole and was not required to acquit on a greater offense
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before considering a lesser offense. In considering his argument, we must first
determine whether error occurred; if not, our analysis ends. Kirsch v. State, 357 S.W.3d
645, 649 (Tex. Crim. App. 2012).
The charge referred the jury to the indicted offense of capital murder, as well as
the lesser-included offenses of murder, manslaughter, criminally negligent homicide,
robbery, and aggravated robbery. Appellant’s counsel proposed that each time the
charge referred to a lesser-included offense, it also instruct the jury to view the charge
as a whole and inform the jury that it did not have to first acquit Appellant of the greater
charge before considering the lesser. For example, with regard to the murder charge,
the State’s proposed charge read:
Unless you find from the evidence beyond a reasonable doubt, or if you
have a reasonable doubt thereof, you will acquit the defendant of capital
murder as charged in the indictment and next consider whether the
Defendant is guilty of the lesser-included offense of murder. If you,
however, find from the evidence beyond a reasonable doubt that the
defendant is guilty of capital murder, you need not proceed to the lesser
included offenses below.
Appellant requested the following language instead:
Unless you find from the evidence beyond a reasonable doubt, or if you
have reasonable doubt thereof, or if you cannot agree that the Defendant is guilty
of capital murder, you will next consider whether the defendant is guilty of
the lesser-included offense of murder. [Emphasis added.]
But the trial court declined to use that language, and instead the final charge given to
the jury read:
Unless you find from the evidence beyond a reasonable doubt, or if you
have a reasonable doubt thereof, you will acquit the defendant of capital
23
murder as charged in the indictment and next consider whether the
Defendant is guilty of a lesser-included offense. If you, however, find
from the evidence that the defendant is guilty of capital murder, you need
not proceed to the lesser included offenses below.
Appellant relies on Barrios v. State to argue that he was entitled to his requested
instruction. 283 S.W.3d 348, 349 (Tex. Crim. App. 2009). In Barrios, which also
involved a capital murder charge, the Court of Criminal Appeals found no error in the
jury charge’s instruction to acquit the defendant of capital murder before it could
consider the lesser-included offense of robbery. Id. (“Unless you so find from the
evidence beyond a reasonable doubt, or if you have reasonable doubt thereof, you will
acquit the defendant of capital murder and next consider whether the defendant is guilty
of robbery.”). But it also noted that the charge included a benefit-of-the-doubt
instruction:
If you believe from the evidence beyond a reasonable doubt that the
defendant is guilty of either capital murder on the one hand or robbery on
the other hand, but you have a reasonable doubt as to which of said
offenses he is guilty, then you must resolve that doubt in the defendant’s
favor and find him guilty of the lesser offense of robbery.
Id. at 349–50.
In evaluating the charge, the court acknowledged that the use of “acquit” can be
troublesome and it suggested that
[i]t may be that better practice is for trial courts to include an instruction
that explicitly informs the jury that it may read the charge as a whole, and
to substitute “or if you are unable to agree, you will next consider” for
“you will acquit . . . and next consider” so that the charge makes clear to
the jury that, at its discretion, it may consider the lesser-included offenses
before making a final decision as to the greater offense.
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Id. at 353. But, contrary to Appellant’s argument, the court did not require the use of
the “unable to agree” language that he sought to include in the charge. Instead, it
reiterated the longstanding jurisprudence that charges are to be considered “as a whole”:
“The purpose of the law is to allow free discussion and interchange of
opinions among jurors in order that proper verdicts may be rendered.”
Caesar v. State, 135 Tex. Crim. 5, 117 S.W.2d 66, 68 (Tex. Crim. App. 1983).
They may consider the evidence “in light of the entire charge read as a
whole.” Boyett [v. State], 692 S.W.2d [512,] 516 [(Tex. Crim. App. 1985)].
The trial judge reads the entire charge to the jury before it retires to
deliberate; the jurors will thereby have heard the instruction on the benefit
of the doubt before considering the issue of guilt on any of the offenses
included in the charge. Therefore, even if, and perhaps especially if, the
jurors cannot agree as to guilt on the greater offense, they have already
been instructed that they may consider guilt as to the lesser offense before
deciding on a verdict as to the greater offense.
Id. at 352–53; see also Slater v. State, No. 02-11-00368-CR, 2013 WL 2631194 (Tex.
App.—Fort Worth June 13, 2013, pet. ref’d) (mem. op., not designated for publication)
(interpreting Barrios as reaffirming prior holdings that a sequencing instruction
“adequately instructs jurors to consider the defendant’s requested instructions on lesser
included offenses”).
The sequenced instructions used in this case were not error; they ensured that a
conviction was rendered only on proof beyond a reasonable doubt. Each lesser-
included-offense instruction required such proof and instructed the jury to acquit
Appellant if the proof did not meet that burden and to then continue to the next lesser-
included offense. The absence of a benefit-of-the-doubt instruction like that in Barrios
did not “prevent [the jury] from considering the greater and lesser offenses together, as
25
was sanctioned in Barrios,” as Appellant asserts.7 After the offense instructions, the
court instructed, “Unless you find from the evidence beyond a reasonable doubt, or if
you have reasonable doubt thereof, you will acquit the defendant and say by your verdict
‘Not Guilty.’” And, as the court observed in Barrios, the trial court here read the entire
charge to the jury before they began deliberating, allowing them to hear this instruction
before considering Appellant’s guilt.
Viewing the charge as a whole, the trial court did not err by declining to include
the requested instruction. See Barrios, 283 S.W.3d at 353 (holding there was no error
where the charge allowed the jury to consider the entire charge as a whole and the
complained-of instruction did not require the jury to unanimously agree that the
7
Appellant did not request such an instruction. Even if we found its absence to
constitute error on its own, it would only be reversible if we found it resulted in
egregious harm. Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013); Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g); see Tex. Code Crim.
Proc. Ann. art. 36.19. We do not find such egregious harm—it did not “affect the very
basis of the case, deprive the defendant of a valuable right, vitally affect the defensive
theory, or make a case for conviction clearly and significantly more persuasive.” See
Taylor v. State, 332 S.W.3d 483, 490 (Tex. Crim. App. 2001) (citing Almanza, 686 S.W.2d
at 172). As we have discussed above, the charge as a whole instructed the jury that
Appellant was not to be convicted of a greater offense without proof beyond a
reasonable doubt and the absence of such proof required a not guilty verdict.
Significant evidence of Appellant’s guilt was provided at trial—his arrangement of his
meeting with VanCleave through 5miles, his following her to her apartment, his struggle
with her outside the apartment and shooting her with his gun, and then his abandoning
her on the sidewalk to die and escaping with his family to Houston. Thus, to the extent
Appellant’s argument can be construed to take issue with the instruction’s absence, any
error was harmless.
26
defendant was not guilty of the greater offense before considering a lesser-included
offense). We overrule Appellant’s fifth point.
Conclusion
Having overruled Appellant’s five points, we affirm the trial court’s judgment.
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: September 3, 2020
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