Delvin Ajair Powell v. State

In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-19-00346-CR
________________
DELVIN AJAIR POWELL, Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________________
On Appeal from the 199th District Court
Collin County, Texas
Trial Cause No. 199-80508-2019
________________________________________________________________________
MEMORANDUM OPINION
A jury convicted Delvin Ajair Powell of capital murder, specifically murder
for remuneration, and the trial court sentenced him to life in prison without the
possibility of parole. 1 See Tex. Penal Code Ann. § 19.03(a)(3). In three issues,
Powell challenges the sufficiency of the evidence to support the conviction and the
1 This case was transferred to this Court from the Fifth Court of Appeals in
Dallas, Texas pursuant to a docket equalization order. See Tex. Gov’t Code Ann. §
73.001.
1
trial court’s denial of a motion to suppress evidence obtained after a search of his
cell phone. We affirm the trial court’s judgment.
I. Background
Kayden Graham found her mother, Kelli Underwood, deceased in her home
on the evening of September 20, 2017. The evidence established that Underwood
was the victim of homicidal violence, suffering from multiple .22-caliber gunshot
wounds and multiple stab wounds. The evidence further established that by the time
Graham found her mother deceased, she had likely been dead for a few days, with
the medical examiner placing her time of death in a window from the night of
September 16 to the early morning hours of September 17, 2017.
A. Testimony of Kayden Graham
Graham testified that at the time of her death, Underwood worked for Ronnie
Welborn’s company. According to Graham, Underwood and Welborn had also been
engaged in a multi-year affair, despite him living with and recently having a child
with Kadie Robinson. Welborn had keys to Underwood’s home and truck. Graham
testified that when police asked her who may have been involved in her mother’s
murder, Robinson entered her mind first, because of “how much hate that she had”
for Underwood. Graham explained that not long before Underwood’s death,
Underwood and Robinson had a verbal confrontation in Underwood’s front yard.
2
During Graham’s testimony, the State questioned her about text messages
between Robinson and Welborn admitted into evidence. Graham confirmed that on
August 18, 2017, their messages referred to her mother. Specifically, Robinson told
Welborn that “[y]ou are not going to get rid of her[,]” and Welborn assured her he
would. Robinson then messaged Welborn and warned that he had a month, but if
“it’s not done by September 18th, I’m gone.” Graham testified that she last spoke to
her mother on September 15 and found her dead on September 20.
Graham also testified regarding messages between Welborn and Robinson on
August 22, 2017, which said that Robert Veal “already took the money [and] he has
the stuff[,] [h]e just has to place it in her truck[,] . . . then call in to police.” Graham
told the jury the messages also showed that Welborn and Robinson talked about
contacting Veal and getting copies of keys made. The messages revealed that
Robinson told Welborn she did not want to leave him, and Welborn responded
“[t]hat’s why I hope Robert can get it done.” At one point in the messages, Welborn
told Robinson that “Robert isn’t going to do it.” Robinson answered with “[t]ell him
you want the money back and you better do the other like you said.” Graham testified
that these messages just confirmed her suspicions regarding Robinson’s involvement
in her mother’s death.
Graham said her mother knew Robert Veal, because he previously worked at
Welborn’s shop. Before her death, Underwood hired Veal to install an above-ground
3
pool and new security cameras. Graham explained her mother tried to help Veal,
who needed money.
Graham told the jury she never met Delvin Powell, but following the murder,
she spoke to Underwood’s neighbors to determine if anyone observed anything. One
neighbor provided a name or a nickname, so she searched Facebook for the
individual. After she pulled the Facebook profile, the neighbor, Ben, confirmed that
was the person he mentioned. Graham provided the name to Texas Ranger Bruce
Sherman.
Graham testified that when she arrived at her mother’s home, the TV was
paused on a music channel Underwood would not listen to. Graham also said there
were several things out of place. Graham explained that her mother was “very OCD”
about cleanliness, but she found unwashed dishes in the kitchen, along with soda
cans, and cigarette butts in the backyard. Additionally, Underwood’s security
cameras and a monitor could not be located after the murder.
B. Testimony of Texas Ranger Bruce Sherman
Texas Ranger Bruce Sherman participated in the investigation of
Underwood’s murder. Sherman testified that upon arrival, they obtained a search
warrant and conducted interviews. There were indicators it was a homicide because
the initial responding officer observed .22-caliber bullet cartridges, which also told
him they were looking for a .22-caliber firearm.
4
Sherman testified that Welborn had a volatile relationship with both
Underwood and Robinson, each woman knew he was seeing the other. Sherman also
testified that not long before her death, Underwood and Robinson had a verbal
confrontation in the front yard of Underwood’s home. Following this confrontation,
Robinson pressured Welborn to “get rid of her[]” and threatened to leave if he
refused. On August 18, 2017, according to Sherman, Robinson gave Welborn an
ultimatum and deadline of one month.
Sherman explained that they initially planned to have illegal drugs planted in
Underwood’s truck, call in an anonymous tip, then have her arrested. To accomplish
this, they reached out to a former employee of Welborn’s, Robert Veal, who also
knew Underwood. When it became clear that planting the drugs in Underwood’s
truck was not a viable option, Robinson and Welborn escalated the plan. Ranger
Sherman testified that text messages between Welborn and Robinson discussed
obtaining copies of Welborn’s keys to Underwood’s home. Sherman confirmed that
cell phone records showed shortly after Robinson gave Welborn an ultimatum, she
began contacting Veal. Robinson’s cell phone records revealed an exponential
increase in her communication with Veal after that date culminating with eighty-one
contacts on September 16, 2017.
Sherman discussed Veal’s August 26, 2017 Facebook message to Powell
stating that “I have a job for you.” Sherman testified while that contact in isolation
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would not mean much, it was “pretty significant in that it appears that’s the time
period in which the plan to kill Ms. Underwood originated.” Sherman also noted that
the above-ground pool Underwood hired Veal to install was still in the box.
Additionally, Underwood’s security cameras and monitor were missing. Ranger
Sherman testified that Facebook messages indicated Powell looked for a .22 pistol,
beginning on August 30, 2017, and continuing until September 15, 2017.
Ranger Sherman testified that a woman by the name of Deborah Doris was
also at Underwood’s house while Powell and Veal were there, and although officers
corroborated some information she provided, they could not corroborate other
information. According to Sherman, Doris told law enforcement officers that she
saw Veal hand Powell a gun in Underwood’s home, which Powell put in a silver
case. Law enforcement officers located a silver case in Powell’s hotel room when
they arrested him. Sherman testified that when they arrested Powell, they seized his
cell phone and a knife. Additionally, law enforcement found a full box of .22-caliber
Federal ammunition, the same brand and caliber used in Underwood’s murder.
Ranger Sherman testified that while they acquired extensive information from
cell phones, they also obtained a search warrant for Facebook records, which “was
probably the primary source of communication for Mr. Powell[.]” Sherman testified
that the individuals in this case were charged with murder for remuneration, and each
of them separately and individually was a party to the offense.
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C. Testimony of Neighbor B. P.
Underwood’s neighbor B.P. testified that he saw Powell, with whom he was
acquainted, on Saturday morning September 16, 2017, when Powell came over to
talk to him for about thirty minutes. Later the same day, he saw Powell entering and
exiting Underwood’s home. The neighbor provided Powell’s nickname, “D” to
Underwood’s daughter, and when she brought over pictures, the neighbor identified
him as the man he knew as “D.” He testified that Powell told him he was “at a white
lady’s house chilling.” The neighbor next saw Powell at Underwood’s on September
20, which he remembered because later the same day, Underwood’s daughter came
out of the house “hysterical.” He last saw Powell leave the home “with a guy and a
woman carrying a baby carrier[.]”
D. Forensic Evidence
Detective Arthur Jumper with the Collin County Sheriff’s Office testified
regarding the evidence collected at the scene. Jumper explained that they collected
silverware, a camera monitor, a racing suit from the laundry room, cigarette butts
from the backyard, and five .22-caliber shell casings from the crime scene. Jumper
said they also collected buccal swabs from Robert Veal and Delvin Powell,
Underwood’s nail clippings, a knife with a missing tip that appeared to have blood
on it, Underwood’s Samsung Galaxy S7 cell phone, Powell’s ZTE android cell
phone, and Veal’s Samsung Galaxy phone.
7
James Jeffress is a forensic scientist who works in the firearm tool mark
section of the DPS crime lab. Jeffress testified that he concluded the shell casings
were all fired from the same unknown firearm. He received a total of three firearms
in this case, one pistol and two revolvers, all .22-caliber. Jeffress testified they
eliminated all these firearms as having fired the bullets or cartridge cases submitted
for analysis.
Clare Moyers, a forensic scientist in the DNA section of the Texas DPS Crime
Lab, also testified. She explained that they pulled a DNA profile from a fork in the
kitchen and compared it to a known sample from Powell; it was 467 septillion times
more likely Powell contributed the DNA than some unknown individual. Moyers
also testified that Powell was 357 septillion times more likely to be the contributor
of DNA on a sample pulled from a Camel cigarette butt than an unknown individual.
Another spoon swabbed at the scene was compared to a known DNA sample of Veal,
who was found 1.21 quintillion times more likely to be the contributor than an
unknown individual. Moyers testified DNA taken from Underwood’s right-hand
fingernail clippings were consistent with Powell’s Y-STR profile; neither he nor
anyone in his paternal line could be excluded as a contributor of the male DNA
profile found under her fingernails. Moyers explained the selected Y-STR profile is
found in 1,425 out of 5,717 total individuals in the database, but Veal was excluded
as a contributor.
8
The forensic pathologist, Dr. Stephanie Burton, testified that she could not
pinpoint an exact time of death but concluded that Underwood’s death likely
occurred late on September 16 or early September 17, 2017. Dr. Burton testified that
Underwood suffered from five .22-caliber gunshot wounds and multiple stab
wounds. Dr. Burton explained that the first two gunshot wounds could have been
fatal, but all the gunshot wounds and stab wounds contributed to Underwood’s death
in the form of blood loss. Dr. Burton ultimately concluded that Underwood died of
homicidal violence including gunshot wounds and sharp force trauma.
E. Other Testimony
An employee from Welborn’s bank testified, and banking records admitted at
trial showed, that on September 16, 2017, he withdrew $4,000.00 from his personal
account. The bank employee explained that while it was not uncommon for Welborn
to withdraw such a large sum, when he did so, it was usually from his business
account. This time it was from his personal account.
Shawn Talley, a friend of Powell’s, testified that Powell always carried a
knife. Talley also told the jury that after the murder, he met Powell, and Powell gave
him a Uniden video camera. Talley identified the camera as being like one shown
on an empty box in Underwood’s vehicle. Talley testified that Powell warned him
not to hook the camera up online and that he may have to destroy it. Talley explained
that shortly after Powell gave him the camera, Powell instructed him to destroy it,
9
which he did. Talley said on another occasion, Powell asked him to dispose of a bag.
Talley testified that he was unaware of the bag’s contents but did not take it with
him, because there were police officers at the hotel where he met Powell. Powell
became angry when Talley did not take the bag. Talley also testified that when he
met Powell after the murder, Powell appeared to have money to spend, which was
unusual.
F. Cell Phone Records, Text Messages, and Facebook Records
Beginning on August 30, 2017 and into early September, Powell’s Facebook
records established that he sought a .22-caliber weapon from multiple sources. One
Facebook message Powell sent on September 4, 2017, stated that he was “hiding out
trying to find a pistol to do a job then get paid[,]” which Ranger Sherman described
as “[c]ertainly[]” important in the investigation into capital murder for remuneration.
Facebook records revealed Powell and Veal discussed payment in the form of
“grand,” “ounces,” or “onions,” and Sherman explained “two onions” was a
common reference to two ounces of methamphetamine. Facebook messages also
showed Powell told an acquaintance on September 9, 2017, he was preparing to post
an ad of “murder for hire[]” online. Facebook records and Sherman’s testimony
confirmed Powell messaged a friend that after he finished “this one job for 2500[,]”
he would “be okay for a minute.” Ranger Sherman testified that those messages
supported the elements of capital murder for remuneration. Messages between
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Powell and Veal established he would “crank the stereo up . . . go to work . . . [and]
come out like nothing happened[,]” and Ranger Sherman testified that he believed
this described “[h]ow they are going to kill Ms. Underwood.”
Facebook records showed Powell messaged his girlfriend on September 16,
2017 and told her he was at “the mark’s house[,]” which Ranger Sherman explained
usually meant “target.” Powell asked his girlfriend to “pray for me[,]” and reassured
her that she would be paid if anything happened to him. Additionally, Veal’s wife
messaged Powell on Facebook and asked him not to let Veal do anything “stupid.”
Powell responded to her and assured her that if anything had to be done, he would
do it instead of Veal.
II. Procedural History
A grand jury indicted Powell for the offense of capital murder, specifically,
murder for remuneration or the promise of remuneration from Robinson and
Welborn. The indictment further alleged that Powell did so by shooting Underwood
with a firearm, stabbing her with a knife, or stabbing her with a sharp object. The
court’s charge included an instruction on the law of parties. The jury found Powell
guilty of capital murder as charged in the indictment. Powell timely appealed.
A. Cell Phone Search Warrant
Law enforcement officers seized Powell’s cell phone discovered in the hotel
room where Powell stayed, which his girlfriend rented. Powell’s girlfriend identified
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the phone as Powell’s, and after obtaining a warrant, law enforcement searched the
phone. Ranger Sherman’s probable cause affidavit supported the warrant. The
warrant directed the specified device and its contents be searched and “to bring any
evidence of the crime described in the warrant application” before the judge.
B. Probable Cause Affidavit in Support of Warrant
In the probable cause affidavit, Ranger Sherman outlined his law enforcement
experience and explained in his experience, how cell phones are typically used by
criminals to communicate and store information of crimes. Specifically, he averred
that he knew based on his training and experience
individuals who possess evidence of a crime, to include murder, will
utilize cellular and/or electronic devices to facilitate actions such as
digital storage (video, audio, photographs), text communication via
SMS, MMS and/or application based communication systems, social
networking accounts and/or web based search engines used to
communicate or research prior to/during/after the offense is committed.
Cellular/personal electronic devices are commonly used by suspects of
a crime to harbor and conceal evidence of a crime from the innocent
public and law enforcement’s awareness with remote storage
capabilities using cloud and/or application based covert storage
capabilities. I know from experience that cellular/personal electronic
devices also have a geo-tag and coordinate capabilities that can provide
time and location information of that specific device. Call log history,
saved phone numbers and contact information with time/date stamps
will often identify frequent associates and/or co-conspirators of a crime.
Applications and/or notes containing passwords used for accessing
cloud based storage that will contain digital audio, video and
photograph evidence. Affiant knows that some forensic examiners and
technology have the capabilities of recovering information from
electronic devices which the user attempted to destroy, delete or erase
from the device.
12
He further averred that Powell owned the phone, described the phone’s make
and model, listed the phone’s serial number, and the phone’s IMEI. Sherman
explained law enforcement officials found the phone in Powell’s girlfriend’s hotel
room “during a written consensual search . . . after Powell was arrested for
outstanding felony warrants.” Sherman further averred Powell was a suspect in a
murder investigation. He described in detail the circumstances of Underwood’s
murder, the investigation, and Powell’s suspected involvement. Specifically,
Sherman outlined that Underwood’s neighbors identified Powell being at the
residence in the days leading up to the murder, and earlier in the day her body was
discovered. Sherman averred that neighbors positively identified photos of Powell
and Veal as being at Underwood’s residence in a black Ford F-150 pickup truck and
last left the home the morning of September 20, 2017 at approximately 10 a.m. with
an unknown white female holding a baby carrier.
Sherman explained that officers had the victim’s cellphone, which contained
text communications with Veal, who Powell had been with at the scene, and outlined
those communications. Sherman also explained in the affidavit that a sharp force
object and a .22-caliber firearm were used in Underwood’s murder. Ranger Sherman
described evidence found in Powell’s girlfriend’s hotel room and vehicle following
a consensual search that Powell’s girlfriend identified as his, including a broken-
13
tipped knife identified as Powell’s with an apparent blood stain,2 and ammunition
matching the caliber and brand used in Underwood’s murder.
Finally, Sherman’s affidavit provided information he received from Powell
during an interview. Sherman stated Powell admitted being at the scene with Veal
shortly before the murder, was caught lying several times about when he was last at
Underwood’s residence and confirmed “a blue racing suit” found in Underwood’s
dryer “belonged to Veal[,]” which was corroborated by evidence investigators found
at the scene.
C. Filing of Motions to Suppress
Prior to trial, Powell filed a Motion to Suppress Cell Phone Analysis and a
Motion to Suppress Cell Phone Records and Analysis. In both motions, Powell
complained that the probable cause affidavit supporting the warrant was inadequate,
and the search violated: (1) the Fourth, Fifth, Sixth and Fourteenth Amendments of
the U.S. Constitution; (2) Texas Constitution Article I, section 9; (3) Texas Code of
Criminal Procedure article 18.0215; and (4) Texas Code of Criminal Procedure
article 38.23. The trial court conducted a hearing and denied both motions.
III. Issues One and Two: Sufficiency of the Evidence
In his first two issues, Powell complains that the evidence is insufficient to
support the jury’s verdict convicting him of capital murder. He argues the evidence
2 Subsequent presumptive tests for the presence of blood were negative.
14
is insufficient to show that he committed any act that caused Kelli Underwood’s
death and to establish that he did so for remuneration or the promise of remuneration.
A. Standard of Review
In evaluating legal sufficiency of the evidence to prove the charged offense,
we must review all the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318–19
(1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); see also Metcalf
v. State, 597 S.W.3d 847, 855 (Tex. Crim. App. 2020). Under the Jackson standard,
the reviewing court gives full deference to the jury’s responsibility to fairly resolve
conflicting testimony, weigh the evidence, and draw reasonable inferences from
basic facts to ultimate facts. Hooper, 214 S.W.3d at 13. The jury may accept or reject
all or part of any witness’s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.
Crim. App. 1986). “Our review of ‘all of the evidence’ includes evidence that was
properly and improperly admitted.” Clayton v. State, 235 S.W.3d 772, 778 (Tex.
Crim. App. 2007); see also Balderas v. State, 517 S.W.3d 756, 766 (Tex. Crim. App.
2016). “Each fact need not point directly and independently to a defendant’s guilt,
as long as the cumulative force of all the incriminating circumstances is sufficient to
support the conviction.” Balderas, 517 S.W.3d at 766 (citation omitted).
15
B. Analysis
A person commits murder “if he [] intentionally or knowingly causes the death
of an individual[.]” Tex. Penal Code Ann. § 19.02(b)(1). A person commits capital
murder if he commits murder as defined by Section 19.02.(b)(1) and “commits the
murder for remuneration or the promise of remuneration[.]” Id. § 19.03(a)(3). Under
the law of parties, a person is criminally responsible for an offense committed by
another if “acting with intent to promote or assist the commission of the offense, he
solicits, encourages, directs, aids, or attempts to aid the other person to commit the
offense[.]” Id. § 7.02(a)(2). In determining whether one is a party to the offense, we
look to events before, during, and after commission of the offense. Gross v. State,
380 S.W.3d 181, 186 (Tex. Crim. App. 2012) (citation omitted).
The evidence established that Robinson and Welborn conspired to “get rid of”
Underwood due to a volatile romantic entanglement between Welborn, Robinson,
and Underwood. The evidence showed they enlisted Veal to help them do so, and
shortly thereafter, Veal reached out to Powell about “a job,” and Powell told people
he would get paid. DNA evidence placed Powell inside the victim’s home, and Y-
STR analysis performed on Underwood’s fingernail clippings could not exclude
Powell as a possible source. Neighbors identified Powell as being in Underwood’s
home with Veal during the estimated time window of the murder. Neighbors also
observed Powell leaving Underwood’s home with a woman holding a baby carrier
16
early on the day Underwood’s body was discovered, which was significant since
Robinson recently had a baby.
The evidence showed that Underwood suffered multiple .22-caliber gunshot
wounds fired from a single weapon and multiple sharp force stab wounds, all of
which the coroner concluded contributed to her death. Facebook records established
Powell sought a .22-caliber weapon from multiple sources shortly before the murder
and stated he needed it for “a job.” Powell’s friend, Talley, testified he always saw
Powell carry a knife. Law enforcement officers seized a full box of the same brand
of .22-caliber ammunition as that used in the murder, from Powell’s hotel room. One
witness told investigating officers she saw Veal hand Powell a gun while in
Underwood’s house, which Powell put in a silver carrying case. Police later found a
case matching that description in Powell’s hotel room.
Powell told his girlfriend via Facebook message that he was at “the mark’s
house” and assured her she would receive payment if something happened to him.
Talley also testified that after the murder, Powell had him destroy a Uniden security
camera, which matched an empty box found in Underwood’s truck, and shortly after
the murder, Powell appeared to have money to spend, which was unusual.
“[R]emuneration is given a broad definition which . . . includes the idea of a
reward given or received because of some act.” Rice v. State, 805 S.W.2d 432, 434
(Tex. Crim. App. 1991) (citations omitted). A teller from Welborn’s bank testified
17
that on September 16, 2017, Welborn made an unusually large withdrawal from his
personal account. While Powell contends some cellphone records and social media
messaging are open to interpretation, Ranger Sherman explained the slang Powell
and Veal used referred to payment in drugs measured in ounces, as well as cash. The
jury was free to disbelieve or believe this testimony. Sharp, 707 S.W.2d at 614.
Powell complains the evidence was insufficient to show he committed any act
that caused Underwood’s death. However, under a party theory, Powell is criminally
responsible for the acts of others if, with intent to promote or assist in the murder,
he “solicits, encourages, directs, aids, or attempts to aid the other person to commit
the offense[.]” Tex. Penal Code Ann. § 7.02(a)(2). He also challenges the credibility
of certain witnesses and points to the “unsavory characters” who had access to
Underwood. We defer to the jury’s role to weigh the credibility of the witnesses and
resolve conflicts in their testimony. See Hooper, 214 S.W.3d at 13.
We look to the events before, during, and after the commission of the offense.
See Gross, 380 S.W.3d at 186. In doing so, we see that Welborn and Robinson
conspired to “get rid of” Underwood and enlisted Veal to aid them. Veal, in turn,
reached out to Powell to help with “a job[.]” Shortly thereafter, Powell sought out
the same caliber of weapon used in Underwood’s murder, mentioned putting an
advertisement out for murder for hire, assured his girlfriend she would be paid
money if anything happened to him, and told Veal’s wife “[i]f it needs to be done[,]
18
I will do it.” DNA evidence and eyewitnesses placed Powell at the scene with Veal
during the time window of the victim’s murder. Powell asked a friend to destroy
property matching items taken from the victim’s vehicle, and officers found a knife
and the same brand and caliber of ammunition as used in the murder with Powell’s
belongings.
The cumulative force of the incriminating evidence is sufficient to support a
capital murder conviction, specifically that Powell committed murder for
remuneration. See Balderas, 517 S.W.3d at 766. The evidence was sufficient to
support the capital murder conviction under a party theory. See Turner v. State, 414
S.W.3d 791, 797 (Tex. App.—Houston [1st Dist.] 2013), aff’d as modified, 443
S.W.3d 128 (Tex. Crim. App. 2014) (“The Court of Criminal Appeals has long held
that the law of parties applies to capital murder.”) (citations omitted). There was
ample evidence from which the jury could reasonably infer Powell acted to kill
Underwood either with a knife or firearm. We overrule issues one and two.
IV. Issue Three: Motion to Suppress
In his third issue, Powell argues that the trial court erred by denying his
Motion to Suppress Cell Phone Analysis. In support of this issue, Powell contends
the search warrant affidavit failed to establish probable cause for the search of
Powell’s phone. We disagree.
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A. Standard of Review
We typically review a trial court’s ruling on a motion to suppress under a
bifurcated standard. Bonds v. State, 403 S.W.3d 867, 873 (Tex. Crim. App. 2013).
However, a trial court’s determination regarding the existence of probable cause to
support a search warrant “is constrained to the four corners of the affidavit.” State v.
McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011) (citation omitted). In
reviewing a magistrate’s decision to issue a warrant, “we apply a highly deferential
standard of review because of the constitutional preference for searches conducted
pursuant to a warrant over warrantless searches.” Bonds, 403 S.W.3d at 873 (citing
Swearingen v. State, 143 S.W.3d 808, 810–11 (Tex. Crim. App. 2004)). If the
magistrate had a substantial basis for concluding probable cause existed, we uphold
the magistrate’s probable cause determination. See id.; see also McLain, 337 S.W.3d
at 271. A magistrate should not use a hyper-technical approach and may draw
reasonable inferences solely based on the facts and circumstances in the affidavit’s
four corners. See Bonds, 403 S.W.3d at 873. “When in doubt, the appellate court
should defer to all reasonable inferences that the magistrate could have made.”
McLain, 337 S.W.3d at 272. In reviewing whether a warrant affidavit supports
probable cause, we do not consider facts in isolation, rather we examine the affidavit
from the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 238–39
(1983); Rodriguez v. State, 232 S.W.3d 55, 59–60 (Tex. Crim. App. 2007).
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B. Analysis
The Fourth Amendment of the U.S. Constitution and Article I, section 9 of
the Texas Constitution protects citizens from unlawful searches and seizures. See
U.S. CONST. amend IV; Tex. Const. art. I, § 9. While there are exceptions to the
warrant requirement, there is a preference for searches conducted pursuant to a
warrant executed on probable cause. McLain, 337 S.W.3d at 271. The affidavit’s
recited facts must be
sufficient to support conclusions (1) that a specific offense was
committed, (2) that the property or items to be searched for or seized
constitute evidence of the offense or evidence that a particular person
committed it, and (3) that the evidence sought is located at or within the
thing to be searched.
Sims v. State, 526 S.W.3d 638, 644 (Tex. App.—Texarkana 2017), aff’d 569 S.W.3d
634 (Tex. Crim. App. 2019) (citation omitted); see also Tex. Code Crim. Proc. Ann.
art. 18.01(c).
Sherman’s affidavit recited that cellphones are commonly used in the
commission of crimes, including murder. Sherman also averred those devices will
commonly contain evidence of criminal activity such as text messages, web-based
applications, and social media information. The affidavit stated that Powell was
suspected of committing a murder, described Underwood’s murder at her residence,
noted Powell’s confirmed presence at the residence with Veal, outlined Veal’s text
messages with the victim, described evidence seized from Powell consistent with
21
evidence found at the crime scene, and identified the cellphone to be searched with
particularity and that it belonged to Powell.
In determining whether probable cause exists, magistrates may make
reasonable inferences based on the allegations within the four corners of the affidavit
and use a common-sense approach. Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim.
App. 2010). Here, the affidavit noted how cellphones are frequently used in crimes,
including murder, that Powell was suspected of committing murder, the facts that
led to Powell being a suspect, and identified with particularity the cellphone
belonging to Powell. It is reasonable to conclude, and the magistrate could have
reasonably inferred from the four corners of the affidavit, a fair probability existed
that evidence of the described crime would be found on Powell’s cellphone. See
Sims, 526 S.W.3d at 646 (citations omitted). Accordingly, the trial court did not err
in denying the motion to suppress. We overrule Powell’s third issue.
V. Conclusion
Having determined that the evidence was sufficient to support Powell’s
capital murder conviction and that the trial court did not err in denying Powell’s
Motion to Suppress Cell Phone Analysis, we affirm the trial court’s judgment.
AFFIRMED.
________________________________
CHARLES KREGER
Justice
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Submitted on February 1, 2021
Opinion Delivered April 7, 2021
Do Not Publish
Before Golemon, C.J., Kreger, and Johnson, JJ.
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