Reversed and Remanded and Opinion filed December 8 , 2022.

In The 

## Fourteenth Court of Appeals

NO. 14

- 21

- 00412

- CR

JAMIN KIDRON STOCKER , Appellant

V.
THE STATE OF TEXAS , Appellee
On Appeal from the 248th District Court

Harris County, Texas Trial Cour t Caus e No
. 1585987

O P I N I O N Appellant Jamin Kidron Stocker appeals his conviction for capital murder

. Among other issues, he complains of the sufficiency of the evidence to support his conviction , as well as the trial court ’ s denial of his motion to sup p ress e vidence obtained from his cell phone and his wireless carrier

. We hold that legally sufficient evidenc e supports the jury ’ s guilt y verdict. How ever, we agree with appellant that the trial court erred in refusing to suppress evidence obtained from his ce ll phone

. Although the State s ecured the evidence2

pursuant to a warrant , w e conc lude that the supporting affidavit s failed to artic ulate sufficient probable cause. Because we also conc lude that the erroneous admission harmed ap pellant , we reverse the tr ial co urt ’ s judgment and rem a n d for a new trial

. We overrule appellant ’ s re maining issue s

. Background

In August 2017, Brent Ta pp was living in a homeless encampme nt near downtown Houston

. Late at night on August 21 , Tapp was shot in the leg. T he

s hot ca me f

r o m the balcony of a nearby townhouse

. Tap p and his friend , Tramp u s Ed wa rds, told responding law enforcement offi cers that they kn e w the shooter and that he lived in the townhouse . Tapp a nd Edwards did not know the shooter ’ s name but identified the b a lcony of the unit in which they b elieved he re sided. A witness at trial est imated that the townhouse was less than fi f ty y ard s away from where Tapp was shot.
The officer s condu cted a computeriz ed search for the townho use ’ s address , and the re sult s howed that a ppellant ’ s name wa s “ ass o ciated ” wi th th e address. 1
P olice show ed Tapp a photo of appellant, and Tapp confirm ed that app ellant wa s the man who shot him. The police obtain ed and attempted t o execute a n arrest warrant for appella nt

. An o fficer call ed appel lant , who said th at h e was not pres ent at the townhouse. Officers entered the unit , found no one there , and seized a l ar ge number of guns and ammunition. Police d id not arres t appellant at that time because t hey could not locate him.
A few mo nths late r, on No vemb er 7, 2 017, police again respon d ed to a call originating from the homeless camp. Tapp had been shot three ti me s a nd died as a

1 Appellant did no t own or ren t the to wnhouse but, in lay man ’ s terms, w as a “ sq uatter. ”3

result of his injuries. The medical ex aminer recov ered a bullet from T app ’ s body, and police matched it to a gun known to belong to appellan t. Appellant wa s a r

rested in January 2018. A Harris Cou nty grand jury indicted him on a ch arge of capital murder. Appellant p leaded not guilty

. Prior to trial, appel lant moved to suppress evidence recovered from his cell phon e, whi ch police s eize d during his arrest, as we ll as cell site location information obtained from appellant ’ s wi reless carrier, T

- Mo bile, whi ch sh owed appellant ’ s general
movements from April 2015 to J anuary 2018

. After a hearing, t he trial court den ied a ppella nt ’ s motions to suppress. A jury f ound a ppellant guilty of c apital murder as charged in the indictment. T he State di d n o t seek the death p enalty, and the trial c ourt sentenced ap pellant to life im prisonment

. Analysis Appellant presents six iss ues f or our review :
1. T he trial court erred in deny ing appellant’s motion to suppress evidence seized, along wit h th e fruits of tha t evide nce, from his
re sidence without a search warrant. 2. The trial court erred in denying appellant’s motion to s uppress the S amsung cell phone. 3. T he trial court erred in overruling appe llant’s motion to suppress evidence obtained f

r om t he S amsung cel l ph one. 4. T he trial c ourt erred in den ying appellant’s motion to suppress T

M obile carrier information from appellant’s S a msung cell phone. 5. T he ev idence is legally insuffi cient to suppor t appellant’s conviction for capital murder. 6

. T h e trial co urt a bused its discretion in admitting substa ntial evidence of the extraneous ag gravated assault case over objection.4

A. S ufficie ncy o f the E vidence
We b egi n with appellant ’ s fifth issue, in which he challenge s the sufficiency of the evidence supporting the jur y ’ s v erd i ct. We address this issue first because, if app ellant is correct, he would be entitled t o the greatest relief. Se e Fin ley v. State , 529 S .W. 3d 198, 202 (Tex. App.

— Ho uston [ 14th Dist.] 2017, pet. ref ’ d)

. 1. Standard of review and applicable law
A ppellant was charged with commit ting the off ense of capital murder. A person commits the offense of murder if he intention ally or kno wingly causes th e death of an individual

. Tex . P enal Code § 19.02( b)(1). A person commits the offe ns e of capital murder if the person commits murder as defin ed under section 19.02(b)(1) and , relevant here , the person intentionally co mmi t s the murde r in t he course of com m itt ing or attempting t o commit o bstruction or retaliation

. Id. § 19.03(a)(2). A per son commits the offense of obstruction or retaliation i f the person intentionally or knowingly harms or threatens to harm another by an

u nlawfu l act : (1) in retaliation f

or o r on account of the s ervice o r status of another as
a: (A) public servant, wit ness , prospective witness, or informant;
or (B) person who has reported or who the actor knows intends to report the occurrence of a c rim e; o r (2) to pr event or delay the ser vice of another as a: ( A) public servant, witness, prospective witness, or informa nt;
or (B) person who has r eported or who the actor knows i ntends to report the occurrence of a crime.
Id. § 36.06(a). The State must pr ove beyond a re asonab le doubt that th e defend ant is the pers on who com mitted the charged offense. Johnson v. State , 673 S. W.2d5

190, 196 (Tex. Cri m. App. 1984); Bradley v. State , 359 S.W.3d 912, 91 6 (Tex. App.

— Houston [14th Dist.] 2012, pet. ref ’ d)

. In det erm i ning w hethe r the evidence is lega lly suff icient t o suppo rt a convi ction, “we consider all the evidence in the light mos t favorable to the verd ict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could hav e found the essent ial elements of the crim e beyond a reas on able dou bt.” Ho oper v. State , 214 S.W.3d 9, 13 (Tex. Crim. A pp. 2007) (citing Jacks on v. Virginia , 443 U.S. 307, 31 8

- 19 (1979)); see also Braughton v. State , 569 S.W.3d 592, 607

- 08 (Tex. Crim. App

. 2018)

. We presu me that the jury resolve d c onfli cting i nf erences in favor of the verdict, and we defer to its determin ation of the evidentiar y weight and witness credibility

. See Braughton , 569 S.W.3d at 608; Criff v. State , 438 S.W.3d 134, 136

- 37 (T ex. App.

— H ousto n [14t h Dist.] 2014, p et. ref ’ d). The scope of our rev iew includes all the evidence admitted at trial, whet her it was properly or improperly admitted. See Clayto n v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We consider both dire ct a nd cir cumst antial evidence, as we ll as an y reaso n able in fe rences t hat may be drawn from the evidence. See Balderas v. State , 517 S.W.3d 756, 766 (Tex. Crim. App. 2016). Cir cumstantial evidence is as probative as direct evidence in establishing the gu ilt of an actor , and circumstantial e vidence alone ca n be su ff icient t o establish guilt. See Hooper , 214 S.W.3d at 13.
2. L egally suffi cient evidence support s the jury ’ s verdict.

W e need only address the sufficiency of the evidence as it pe r tains to the ide ntity el ement of th e State ’ s case b ec ause a ppellan t does not challenge any other6

element. 2 See , e.g. , Murray v. State , 4 57 S. W.3d 446, 448 n.1 (Tex. Crim. App. 2015)

. On the night of the August shooting, Edwa rds heard Tapp yelling , “ I be en shot, I been shot. ” Ed wards asked Tapp who shot h i m, and Tapp said, “ the g uy in
t he townhouse. ” Edwards did not know who Tapp meant, s o he asked T app “ to show [him]. ” Tapp pointed to the second

- floor balcony of a nearby t own house. Tap p described the shooter to Edwards, who r ecogn ized T app ’ s desc riptio n

. Edwa rds did not know the sh o oter ’ s name, but he “ always s ee him coming and going. That ’ s how [E dwards] knew who [Tapp] was talking about. ” At trial, Edwards identified appellant as the man he had s een “ coming and going

. ”
Ed wards calle d 911 to r eport T app ’ s i njury because Tap p n e ed e d an

a mbul ance. Housto n Polic e De partment ( “ H PD ” ) of f icers, Sergeant Samuel Harris and O fficer Kerry Clopton , were dispatched to the scene

. Ser geant Harris was unsure if there was an “ active shoo te r ” i nside t he townhouse, so anoth er po lice unit

se t up a perim eter to secure the area. Sergeant Harr is contact ed the HPD Comman d Center and gave them the suspected shooter ’ s add ress . The center ran a search and “ gave [Sergeant Harris ] a name , ” and he w as th en abl e to obtain

a ppe ll ant ’ s d river ’ s license phot ograph

. Sergeant Harris show ed the photograph to Tapp, w ho “ was adamant that ’ s [] t he person that shot him. ” Officer Clopton obtained a n arrest warrant for appellant based on a cha rge of aggravated a ssaul t wit h a deadly weapon

. A SWA T unit entered th e townhouse but did not find anyo ne inside. Sergea nt Harris then ente red and took into evidence a t least five firearms, including “ a rifle with a homemade sile ncer put on

2 In his b rief, appellant asserts, “ Th e dispu te concer n ing the jury’s dec ision in this matter has to do wit h th e l ack of evidence su pporting a finding that Appe l lant was the shooter. ”7

it with a scope on i t , ” and hun d reds o f unf ired ammunition rounds

. Sergeant H arris also took into evidence appellant ’ s driver ’ s license and pass port

. Rya n Hookano was the firearms examiner in the firearms section of the Houston Forensic Scienc e Center. Hookano examined two b ullet fragm ents that

w ere r e covered fr om the h ospital whe re Tap p r eceived t reatment after the Au gust shooting. According to Hookan o, they were consistent with being fired from a 22

- calib er gun. The rifle with the homemade silen cer that was recovered fro m the townho use w as a 2 2

- caliber semi

- a utomatic rifle. Ho wever, Ho okano c ould not determine conc lusively whether the fragmen ts had be en fired from that specific ri fle

. After the shooting, appellant left Texas and travel ed to Georgia , where he stayed for approxi mately sev en wee ks . Appellant t e xted hi s friends, saying that he had to leave Texas because he shot a homeless man an d the police were looking for him. Appellant returned to Houston in late October 2017. 3

On the night o f November 7, 2017, H P D received sev eral 911 calls re p orting gunsho ts n ear the homeless enca mpment

. HPD office rs and Houston Fire Department person n e l r esp onded to the scene, where they discovered T app ’ s body

. The emergency responders pronounced T app dead. The medical exami ner took Tapp ’ s body for exami na t ion.

3 Appellant challenges the admiss ion o f e vidence sho w ing h is general whereabouts , as well as the admission of ev idence recover e d from his phone, such as the text messages discussed he re. We ad dress appel lant ’ s evidentiary challenge s in the nex t section, but for purp oses o f our legal suffi ciency analysis , we consider all evi dence presented at trial, w hether prop erly or impro per ly admitted. S ee Clayto n , 235 S.W.3d at 778

.8

The medi cal examiner testified th at Tapp had been sh ot twice in the torso and once in the t hig h. 4 The upper body gunsho t wounds were fatal injurie s that caused Tapp to die from “ high volume rapid loss of blood

. ” The day after the murder, app ellant s ear ched for an d read (on his cell phone ) news article s regarding Tapp ’s murder . In subsequent weeks , appellant also researched the status of his outstanding warran t and how to “ dele te [] location history. ”
A ppellant was arrested in January 201 8 o n the a ggravated assaul t warr ant rela t ing to the A ugust shooting . At the time of appella nt ’ s arrest , he had a 45

- caliber Beretta pistol tucked in his waistband

. Kaitlyn Bongi or no , a firearms examiner f

or the H ouston Forensic Science Center, test

- fired the Ber et ta and compared its te st

- fired bullet s wi th bullets recovere d from the ground near the scene of t he No vember 2017 shooting and a bullet recovered from Tapp ’ s body during the au topsy. In Bongiorno ’ s op ini on, the Be retta fired the crime

- scene bull ets and th e bullet lodged in Tap p ’ s body that c ause d his death : [Prosecuto r : ] So this Beretta . . . is essentia lly the murder weapo n for this case ? [B ongiorno:] That is correct. Not only was ap pellant arres ted wi th the Ber etta that w as determined to be
t he m urder weapon , but the State further proved that appellant owned the gun prior to the November shooting. HPD O f ficer Artur o Garcia testified about arresting appellant in 20 16 on an unrelated warrant

. Officer G arc ia s eized two pistols from the trun k of a c ar app ellant was drivi ng. O ne was a 9

- mil i mete r Luger semiautomatic pistol and the other one was the 45

- cal ib e r Beretta later use d t o

4 Edwards tes t ified th a t he heard t hree shots on the ni ght of the November shooting , although he admitted that he did no t personally wi t ness Tap p being shot

.9

shoot and kill Tapp

. Officer Mich ael Harp , who was also present during the arrest, testified that, “ [w]hen asked abo ut t he wea pons that were f ound i n the car, [app ella nt] told [Officer Harp ] th at he had received them from family

m e m bers.

. . . They were his gun s. ” In fact, in June 2017, appellant sought a co urt order compelling HP D to return his w eapons

. A judge sign ed a n orde r, and HPD
retur ned th e two guns , inc ludi ng the Beretta, to appellant.
Th e State also in troduced e v ide nce of cell site location information obtained from appellant ’ s wir eless carrier and called a wi tness , HPD Officer Eric Po we ll, to explain to th e ju ry app ellant ’ s mo vements base d o n the carrier ’ s location data at and around the time of the November shooting

. 5 Officer Powell testified that HPD ob tained T

- Mobile records showing the general location of appellant ’ s p hone i n relation to the near est T

- Mobi le cel l t ower fo r a period of t ime shortly bef ore and a few days after the November shooting. According to Officer Powe ll, appellant ’ s phone wa s near the townhouse and crime s c ene on the morning of November 7 but then t ravelled several miles so uth w est be fo re “ go[ing] dar k ” for the rest of th e day and night . On the afternoon of November 8, appellant ’ s phone re

- joined the network , again in the general vic inity of the t ownhouse and crime scene. T

- Mobile did not have any location data for appellan t ’ s pho ne on the nig ht of t he murder. In Officer Powe ll ’ s exp e rience, it is “ not comm on ” to see a gap like that , and he agreed that criminal s “ who don ’ t want to g et caught . . . kn ow to tu r n their phone off or kind of disappear from the g rid. ”
View ed in t he l igh t m ost f a vorable to the jury ’ s verdict, we hold th at the evidence is l egally su fficient to p rove beyond a reasonab le doubt that appellant was the person who shot and killed Tapp in No vember 2017. See, e.g. , Lugo v.

5 Officer Powell also placed appell ant at the sc ene of the August s hooting, which
corr oborates Tapp ’ s positive i dent i fic a tion of appe llant as th e shoot er in August.10

State , 299 S.W.3d 445, 452 (T ex. App.

— Fo rt Worth 2009, pet. ref ’ d) ( among other evidence, evidence that bullet that kil led decedent was a .38 caliber bull et and witness ’ s testim ony that she had seen appellant carry a .38 revolver supported jury ’ s verdict); Johnson v. State , No. 05

- 05

- 0123 7

- CR , 2 006 WL 33 50780, a t *3 (Tex. App.

—

Dallas Nov. 20, 2 006 , no pet. ) (mem. op., not designate d fo r publication) ( among other evidence , f orensic evidenc e match ing the bullet from victim ’ s body as well as another bullet and two cartridge casings found at t he s cen e

o f the murders to the .9m m Luger in appellant ’ s possession at the t ime of hi s arrest

was sufficient to supp ort conviction for capital murder) ; Sa xer v. State , 115 S. W.3d 765, 770

- 7 2 (Tex. App.

— Beaumont 2003, pet. ref ’ d) (among other evidence, for ensi c ev id ence m at ching bullet reco vered ten feet from vi ctim ’ s b ody to gun

a lleged ly belonging to appellan t supported ju ry ’ s verdict)

. We overrule ap p ellant ’ s fifth issue.
B. Motions to Suppress

W hen l aw enforcement soug ht to execute an arrest warrant at the to wn house after the August shooting, officials seized several incriminating items, including several guns and am munition. When police ultimately arrested appellant in January 2018, they sei ze d hi s Samsung mobile phone

. Law enforcement obtained

a s earch war ra nt to se a r ch the d evice , and three separate search warrants to be served on T

- Mobi le, appellant ’ s wireless carrier

. A search of the phone pro duced appellant ’ s texts and brows er history ; and documents received from T

- Mobile revealed the general location of ap pel lant ’ s Sams u ng phone at various times

. Appe llant filed motions to suppress the fruits of these searches and seizures , which
t he trial court deni ed

. We summarize d some of this evidence above as it pertains to appellant ’ s legal s uff

icien cy chall eng e t o the identity e lement

.11

In his third and fourth i ssues, appellant challeng e s the trial court ’ s denial of his motions to suppress the Samsung phone evidence and T

- Mo bile evidence obtained pursuant to the warran ts

. Appellant argues tha t th e search es of h is ph o ne ’ s con tents and of t he w ireless carrier ’ s cell site location information were not supported by probable cause , contrary to the Fourth Amend ment and Texas C onstitution, article I, section 9. In his first issue, appellant challenges the denial of h i s mot ion to suppress the evidence seiz ed from the townhouse in August on the ground that law e n forcement had no search warrant

. We begin with appellant ’ s comp laint reg arding the contents of the Samsung phone.
1. Standard of review
We review a trial court ’ s rul ing on a motion to suppress under a bifurcated standard of review. Lerma v. State , 543 S.W.3d 184, 189

- 90 (Tex. Crim. App. 2018). We review t he trial court’s factual findings for an abuse of discretion but review the trial court’s application of th e law to the f acts de novo. Id

. Our deferential review of the trial court’s factual determinations also applies to the trial court’s conclusions reg arding mixed questions of law and fact that turn on credibility or demeanor. State v. Ortiz , 382 S.W.3d 3 6 7, 37 2 (Tex. Crim. App. 2012); Valtierra v. State , 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We review mixed questions of law and fact that do not turn on credibility and demeanor, as well as purely legal questions, de novo. State v. Woodard , 341 S.W. 3 d 404 , 410 (T ex. Crim. App. 2011).
2

. Pr obable cause generally The Fourth Amendment mandates that “no Warrants shall issue, but upon probable cause, supported by O ath or affirmation, and particularly describing the place to be searched, and the persons o r thin gs to be seized. ” See U.S. Const. amend. IV. P robable cause exists for Fourth Amendment purposes when , “ under12

the totality of the circumstances, there is a fair probability or substantial chance that contraband or evidence of a crime will be found a t the specifi ed location.” Bonds v. State , 403 S.W.3d 867, 873 (Tex. Crim. App. 2013) ; see also State v. D uarte , 389 S.W.3d 3 49, 354 (Tex. Crim. App. 201 2) ; Illinois v. Gates , 4 6 2 U .S

. 213, 238

- 39 (1983)

. In other words, there must be “a sufficient nexu s betw een crim inal activity, the things to be seized, and the place to be searched.” Bonds , 403 S.W.3d at 873

. When reviewing a magistr ate’s decision to issue a warrant, appellate courts apply a highly deferential standard of review because of the const i tutio nal pref erenc e for searches conducted pursuant to a warrant over warrantless searches. State v. McLain , 337 S.W.3d 268, 271

- 72 (Tex. Crim. App. 2011). This is a flexible, non

- de manding standard. Duarte , 389 S.W.3d at 354. The duty of reviewing cou r ts is to ensu re a magistrate had a s ubstantial basis f o r concluding that probabl e ca use existed. Id. Reviewing courts must giv e great deference t o a magistrat e ’ s probable cause determination, including a magistrate ’ s implicit finding. McLain , 337 S.W.3 d at 2 71

- 72

. Eve n in close cases, reviewing co urts give great defe rence to a ma gistrate ’ s prob able cause determin ati on to enco urage police officers to use the warrant proce ss. Duarte , 389 S.W.3d at 354. When in doubt, reviewing courts sho uld defer to al l r eas onable i nfere nce s a magistrate could have made

. Rodriguez v. St ate , 232 S. W.3d 55, 61 (T ex. Crim. App. 2007)

. Reviewing courts should not invalidate a warrant by int erpreting an affidavit in a hyper

- technical rather than commonsen se manner. Id. at 61 n

. 25 ; McLa in , 337 S .W .3d at 271

- 72. In det ermini ng whether an affidavit provi des probable cause to support a se a rch warrant, an issuing court and a reviewing court are constrained to the four corners of the affid avit. McLain , 337 S. W.3 d at 271

- 72.13

3

. T he S amsung p hone Under the Fourth Amendment, law enforcement may not embark on “a general, evidence

- gathering search ” of a cell phone for personal information. Se e State v. Granville , 423 S.W.3d 399, 412 (Tex. Crim. App. 20 14) ; see also Butler v. St ate , 459 S.W.3d 595, 601 n.3 (Tex. Crim. App. 2015) (acknowledging that both the United States Supreme Court and the Texas Court of Criminal Appeals have recognized that cell phone users have a reasonable expectation of privacy in
content o f their cell phones). S earc h e s of a cellu lar telephone or other wireless communications de vi ce under Texas law are gove rn ed by a specifi c provision of th e Code of Criminal Procedure. See Tex. Code Cri m. Proc. art. 18.0215

. T o search a person ’ s cell ph one aft er a lawful ar re st, a p e ace officer mu st su bmit an application for a warrant to a magistrate. Id. a rt. 18.02 15( a ). The ap plication mu st “st ate the fac ts and c ircumstances that provide the applicant with probable cause to believe that (A) criminal activity has been, is, or wil l be committed ; and ( B ) searching the t elep hone or device is likely to produce evidence in the invest igation of t he cri minal activ ity desc ribed in Paragraph (A).” Id.
art. 18.0215(c)(5) ; see also State v. Baldwin , - - - S.W.3d

- - - , 2022 WL 149 9508, a t

* 8 (Tex. Cri m. App. 2 022)

. As this cou rt has also stated, an affidavit offered in support of a warrant to search cell phone contents must usually include facts that a cell phone was used during the crime or shortly before or after. Diaz v. State , 604 S.W. 3d 595 , 603 (Tex. A p p.

— Houston [14th Dist.] 2020), aff ’ d , 632 S.W.3d 889 (Tex. Crim. App. 2021) (citing Walker v. State , 494 S.W.3d 905, 908

- 09 (Tex. App.

— Houston [14th Dist.] 2016, pet. ref’d); Humaran v. State , 478 S.W.3d 887, 893

- 94 (Tex. App.

— Houston [ 14th Dist.] 20 15, pe t. ref’d) )

. A p r oba ble cause affidavit support ing a cell phone search must contain evidence of the requ isit e nexus with more than mere c onclusory allegati ons

. For14

example, t he Court of Criminal Appeals recently held that generic, boile rplate lang uag e abo u t cell phone use among criminals is n o t alone sufficie nt to esta blish
p ro bable cause to search a cell phone

. Baldwin , 2022 WL 1499508, at *11

. The court explained: Instead, specific facts connecting the items to be searched to the all eged offens e a re r e q ui red fo r the magistrate to reasonably determine probabl e cause. To hold otherwise w ould cond one th e s earch of a phone merely because a person is suspected to have committed a crime with an other person. Put another way, all parties
su spected of par tic i p a ti ng in an offense would be subject to having their cell phones searched, not because they use d thei r p hones to
c ommit the crime, but merely because they owned cell phones.
Id. I n Bal dwin , the cour t held that an insufficient f actual ne xus ex ist ed to sear c h the su spect ’ s cell phon e when the affidavit suppor ting the sea rch warrant set forth merely the off

icer ’ s generalized belief , based on his experience and train ing, that suspects plan crimes using their phones. 6 We will presume wi tho ut deciding th at th e s eizure of appellant ’ s p hone was lawful and , in so presuming, w e do not reach the me rits of appellant ’ s second issue. We proceed to appellant ’ s third issue and consider whether the subsequent

6 In Ba ldwin , the aff

idavit provided, in rel evant par t: Additionall y , based on your Affi ant ’ s training and experience, Affiant knows from othe r cases he has investigated and from training and experienc es that i t is common f

or suspects to communicate about their plans via text messaging, phone calls, or thro ugh other commu n ication applications

. Further, Affiant knows from training and experience s that someo ne who commits the offense of aggravated assaul t or murd e r often make s p hone cal ls and/or text messages imme diately prior and after the crime. Baldwin , 20 22 WL 1499508 , a t *4.15

search of the cel l phone ’ s contents was pe rmissible u nde r the Fo urth A mendment

. 7 We conclude it was not.

In today ’ s cas e, the probable cause affi davit supporting the warrant to search the Sam sung phone stated:
Your A ffiant has been a law enforcement officer f or a pproxi mately 21 years, and has ex p erience i n i nvestig atin g crimes whe re cellu lar phones and so cial media have bee n used to commit offenses

. Yo ur Affiant knows fro m training and experience that i ndividuals eng aged i n criminal activities a nd the flight ther efrom, o ften use cell phones and s o cial medi a to comm unic ate. Your a ffi ant i s r equesting a se arch warrant be i ssued to “ download ” Jamin S tocke r ’ s cellular phone i n an attempt to discover any electronic data, including deleted data, associated with th e sho oting of

. . . t he victim related to the agg ravated
a ssau lt he was ch arg ed i n

. T he remainder o f the affidavit contains not hing about a cel l ph o ne b eing used before , during , or after the charged offense. In fact, the affidavit does not mention the offense of capital murder

. The offenses described i n the a ff idavit are those fo r which appellant was n ot tried and convicted here. There si mply are no f acts within the four c orners of the affidavit that tie appellan t ’ s Samsung phone to any offense , much less the c harged offense of capital murde r

. The af fidavit i n today ’ s case i s n otably w eaker than the one co nsidered and rejected in Baldwin

. Considering the four c o rners of the do cument , we conclude that the affidavit cont ains insufficient particularized facts t o have al lowed the magis trate to determine probable cause for a warr ant to sear ch appellant ’ s Samsung phone for two re asons: (1) the affidavit does not desc ribe the mu rder , and (2) it presents no factual nexus between the phone and the murder. S ee Baldwin , 2022 WL 1499508, a t *11

- 12

. It is diffi cult to s ee how th e a ffid av i t

7 Appellant ha d a legit imate expectati on of privacy in the c onten ts o f his cell ph o ne

. S ee Granville , 423 S.W.3d at 40 8

.16

could sufficiently a rticulate a factu al nexus between the Samsung phone and th e criminal activity described in the affidavit when the a ffidavit do es not desc ribe the crimina l activity at issue

— the Nov ember capital m urder. Mor eover, th e affidavit does no t contai n any fa cts suggesting that appellant used his phone during the crime or shortly before or after. See Diaz , 604 S.W.3d at 603. The trial co urt erred in den ying appe llant ’ s motion to suppress the ev idence obt ained f rom the se arc h of appellant ’ s Sa msung p h one

. 4

. The erron eo u s a dmission o f the Samsu ng phone evidence harmed appellant.
We ne xt consider whether the tria l court ’ s err or in admitting the Samsung phone evid ence harmed appel lant. Because the error imp licates the right to be free of unre asonable searches under the U.S. C o nstitution , we must con duct a constitutional harm analysi s. See Hernandez v. St ate , 60 S.W.3d 106, 108 (Tex. Cr im. App. 2001 ). We mus t reverse un l ess we determine beyond a reaso nable doubt that the err or did not “ contri but e ” to appellant ’ s conviction o r punishment

. See Tex. R. App. P. 44.2(a) ; Wells v. State , 611 S.W.3d 396, 410 (Tex. Crim. App. 2020)

. Accordingly, we focus “not upon the perceived acc u racy of the conviction or punish ment, but u pon the e rr or itself in t he context of the tr ial as a whol e , in order to determine the like lihood that it genuinely corru pted the fact

- finding process.” Sno wden v. State , 353 S.W.3d 815, 819 (Tex. Crim. App. 201 1 ). W e do

n o t consider “ ‘ whether the jury v e rdic t wa s supp orted by t he evidence, ’ ” but rat her the que s tion is the likelihood that the constitutional error was actua lly “ ‘ a contributing factor in the jury’s deliberations in arriving at that verdict. ’ ” Wells , 611 S.W. 3d at 410 (quoting Sc ott v. Stat e , 227 S

. W .3d 670, 690 (T ex. Crim. App. 2007))

. We are to calculate as much as p ossible the probable impact of the error on the jury in light of the existence of other evidence. Id

. A ruling that an error is17

harmless is, in essence, an assert ion that th e error c ould not have af fected the jury. Id

. In mak ing th i s determinatio n, factors to consider include the nature of the error (e. g., erroneous admission or exclusion of evidence, objectionable jury argument, etc.), whether the error was emphas ized by the State, t he probable impl ications of the error, and the we i ght the jury would likely have assigned to t he error in the co urse of it s deliberations. Wells , 611 S.W. 3d at 410 (citing Snowden , 353 S.W.3d at 822)

. This list is not exhaustive, and the reviewi ng court mu st take into a ccount any and every circums tance apparent in the record that logically informs an appellate det ermination whether “ ‘ beyond a reasonable doubt [that particular] error did not contribute to the convict ion or punishment. ’ ” Sno wden , 35 3 S.W.3d at 822 (quoting Tex. R. App. P. 44.2(a ))

.

a

. The e vidence
The State introduced seve r al exhibits containing eviden ce downl oad ed from appellant ’ s ph one and also calle d a n HPD officer , De t ecti ve Sergeant Michael Bur row, to discuss the r e levan ce of the proffered exhibi ts. The State i ntroduced
t he following e vidence rec overed from appe llant ’ s phone (1) between the August and November shoot ings , and (2) between the November s hooting and appellant ’ s
arrest in January 2018 :
F irst Period

• text mes s ages , in which appella nt said, “I ended up havi ng to shoo t a guy and I had to leave Te xas for a whil e.

. . . Cops looking for me.

. . . Laws still lo o king 4 me. . .

. They had my picture on the news. . . . H ad to shoot a guy. . .

. ”

• I nternet history s howing that app ellant r esearched “ fugitives cro ssing sta te lines

. ”18

• Inter n et history showing th at appellant read ne ws articles about the August sh oo tin g a nd articles abo ut appellant being a wanted fugitive.

• Internet history showing that a ppellant research ed ho w to “ ge t gun res idue off hands ” and how t o “ alter fingerprints tem p orarily

. ”

• Interne t h istory s howin g that appellant resear ched the jud ge and personnel at the cou rt to which the August aggravated assault charge was assigned , as wel l as th e status of the case

.

• In tern et history showing “ a lot of s earches o n SWAT, ” includi n g s earches of spe cific SW AT offic ers

. Second Period

• Internet hi story showing th at appellant sea r ched for and read news article s regarding Tapp ’s murder , in cluding an article written t he day after the November shooting ti tled “ Man Found Sho t Dead Near Sout h west Freeway , ” an d that app ellant searched for info rmation rega rding the HPD Criminal Apprehen s ion Team.

• Internet history showing th at appellant searched his warrant sta tus one month after the s ho ot ing

.

• Internet history showing th at appell ant searched ho w to “ delete your location history

. ”
b. A pplication
The nature of the err or was the erro neous admission of evidence from the Samsung phone. Much of the evidence rec overed from app el lan t ’ s phone

co r robo rated hi s role as the shoot er in Aug ust (and his sub s equent flight from the scene) , wh ich was never s eriously in dispute, and thus the evi d ence has little additional p rob ative value as to that issue

. Bu t t he State also sought to prov e the underlying crime of reta liation or obstruct io n, and th e evidence o bt a in e d from his phone wa s highly p r oba tive of that offense and necessary to convict appellant of capital murder. Se e Tex. Pen al Code § § 19.03(a)(2), 36.06(a). The Sta te pointed
to t he evidence tha t appellant kne w that law enforcem en t consi der ed him a susp e ct in th e August shoot ing , as gro unds to argue that appellant knew Tapp ’ s status as a19

prospecti ve witness and that a ppellant had a motive to late r kill or “ silence ” T app

. Sergeant Bu rrow testified that the evidence was s ignifican t to HPD ’ s investigation :

“ He knew that Brent h ad reported to the police and knew [Tapp ] was a witness in the case and [ appel lant ] knew the c harges had been filed. ”

T he cell phone evidence al so stre ngthened t he State ’ s th eory that appellant was the Novemb er shoote r

. The evidence that ap pe llant searched news arti cles of Ta pp ’ s murder t he day after the s hooting

— when consider ed along wi th the properly admitted 8 location d ata from T

- Mobi le pla cing appe llant near the crime

scene on the morning of and the day af ter the s hooting and the purport edly deliberate abs en ce of location data on the n ight of the sho oting

— was imp ortant to
t h e State ’s case. On e of the key di spute s was i dentity

— there was n o eyew itne ss t o the No vember shooting , and so the State needed to conn ect appel lant to the shoo ting w ith as much circumstant ial e vidence as possible. To be sure, the fact that a bullet recov e red from Tapp ’s body matched a gun owne d by a ppellant was signif i cant in tyi ng appella nt to t he crime. But the cell phone evidence al s o showed that appellant was sear ching for news coverage of the shooting , giv ing rise to an inference that he was g augin g whether po lice knew of his involvement. Ser g eant Burrow testifi ed tha t appe llant ’ s se arch fo r new s articles stoo d out to him bec a use “ the vict i m is not identi fied in tha t shooting. . . . So i t ’ s an ambi guous

s tory that ’ s not really flashy or high profil e, yet [appellant] searched for it and saved it in his phone. ”
The cell p hone evidenc e was no t cumulative of other evidence. The State did not present other e v idence that appellant was concerne d about law enfor cement ’ s susp icion of his role in both the Au g ust and November shooting s

. The State relied on t he phone to demonstr ate appellant ’ s atte mpts to hide or

8 See infra Part B.5.20

destroy inc ulp atory evidence , as indi ca ted by his Int ernet searches for how to
remove g un resid ue, how to alter his fingerprints, and how to delete h is location history , none of which was shown t hrough other means

. The State em phasi zed the importance of the Samsung phone evidence d uring

c lo sin g argumen ts:

And what does he do immediately af ter? I m ean immediately afte r? He goes to sleep and then he immediately begins res earching news articles about a man fatally shot n ear a homeless ca mp under the Sout hwest Freeway. Pretty odd thi ng to l oo k u p. First thin g you do when you wake up, first t hing you do when you get onto your phone is search for things like that. The only w ay he ’ s s earching for it is becaus e he knows it ’ s happ ened. Ho w d oes he know it ’ s happened? Because he ’ s the on e who d id it

. There ’ s no comm unications on his phone either in the r ecords themselves or the phone device itself, there i s none of it. The rea son he ne eded to look for those th ings is because he w as the on e o ut there killing Brent that night. It ’ s the on ly rea s on it ’ s there. It ’ s the only reason he ’ s doing it. It ’ s not a guess, it ’ s not s peculation, it ’ s a fact.
The over all str eng th of the State ’ s case, absent th e cell phone evidence, was f air ly st rong. The fact s that appell ant previously shot Tap p at the same loca tion and tha t a recovered bullet matched appel lant ’ s gun cons titute d strong ev idence of guilt. But t he Stat e needed to prove not only that appellant was the culprit, but also that he committed the offense in re t ali ation or obst ruction

. See T ex. Pen al Code § § 19.03 (a )(2), 36.06(a). T he State ’ s relia nce on the cell phone evide nce to prove that element is clear from closing argu ments: “ Then there ’ s some more here [i n the j ury charge] about you have a reasona ble doubt to whether he committed

an y off ense , it ’ s a not gui lty. Sure. You should not have a ny reas onable doubt. This was Jamin Stocker. Yo u saw his pho ne , you saw his p hone location data , you saw that it cam e from his 45. ” (Emphasis ad ded)

. The State ’ s repeated emphasi s21

on the erro ne ously adm itted evidence w eighs in favor of a finding of har m. See Snowden , 353 S.W.3d at 822

. The implication of the err or is that the jury heard, in appellant ’ s own words despite not testifying, that he a dmit ted to shooting Tapp in August an d that he was

concerne d about th e warr ant for his arrest

. Suppressi ng t he evidence pertaining to

a ppellant ’ s alleged re tal iation moti v e would have vitiated a central argument made by th e State relating to appellant ’ s m otiv e , and th us this e vidence weig hs in favor of a finding of harm. S ee Ch ung v. State , 475 S.W.3d 378, 389 (Te x. App.

— Waco 2014, pet. ref ’ d ) ( error in admittin g evid ence , which support ed State ’ s “ central
argume nt ” at punishment , was harmful)

. The jury li kely placed great weight upon the cell ph one evide nce, espe ciall y in c onjun ctio n with the ballistics evidence from the November shooting , in reaching its u ltimate findin g that appellant was guilty of capital murder

. The State presented the evidence throug h three exhibits, comprising nearly sixt y pages , and thro ugh the tes timon y of Sergea nt Burrows, who was the State ’ s last witness before resting and who testified for mos t of the last day of a four

- da y trial

. In sum, the cell ph one evidence “ helped the Stat e paint a clearer picture ” of appellant ’ s role i n and mot ive for the Nove mber shooting, and that is prec ise ly wha t the State argued to the jury. Oliver v. State , No. 14

- 13

- 00957

- CR, 2015 WL 1933389, at *7 (Tex. App.

— Houston [14th Dist.] Jan. 22, 2015 , pet

. ref ’ d ) (mem. op., not designated for pub licati on). T he cell phone evid ence more convinc ingly connected a ppellant, as opposed to some other unnamed as saila nt, to the f atal shooting of Tap p in November 20 1 7 . The cell phone evidence was “ important in the c o n t ext of the entire tr ial. ” Id. (internal qu o tation om itt ed).
Whi le th e State present ed other evidence s uggesting appellant ’ s guilt, after viewing th e ent ire record , we cannot determine beyond a reasona ble doubt that the22

erroneous admission of the cell p h on e e vidence did not contr ibute to appellant ’ s convicti on for capi tal m urder

. See id. at *8 ( e r ron eou s admissi on of te xt message connecting appel lant, as o p pose d to another party, to offense

— while “ not

necess arily ‘ essent ial ’ ” to the S tate ’ s case

— noneth eless was harmful bec a us e of the likely effect it had on jury ’ s deli berations ) ; Chung , 4 75 S. W.3d at 389

. We

s u stain appella nt ’ s third issue

. 5

. T he cell site location in formation
Altho ugh we are reversing the judgment and rema n d ing the case, we will addr ess appellant ’ s additional evidentiary challeng es that would like ly arise dur ing
a retr ial , in the interest of jud icial economy and because the parties have briefed them

. See Fox v. State , 115 S.W.3d 550, 565 (Tex. App.

— Houston [14th Dist.] 2002, pet. ref ’d) (after holding new trial warranted due to erroneous exclus ion of sexual

- a buse alleg a tio ns, court of appeals considered appellant’s additional evidentiary complaints that were likely to recur on retrial) ; Tissier v. State , 792 S.W.2d 120, 124

- 25 (Tex. A pp.

— Houston [1st Dist.] 1990, pet. ref’d) (after remanding for new trial, cou rt of appe a ls considered appellant’s evidentiary admissibility issue that was likely to recur on retrial) ; s ee also Cook v. State , 940 S.W.2d 623, 627

- 28 (Tex. Crim. App. 1996) (a ddressing admissibility of evidence in the event of a retrial) ; Ramirez v. St ate , 815 S

. W.2d 636, 640, 64 5 (Tex. Crim. App. 1991) ; Cuadros

- Fernandez v. State , 316 S.W.3d 645, 658 (Tex. App.

— Dallas 2009, no pet.) ; Jordan v. State , 1 S.W.3d 153, 158 (Tex. Ap p.

— Waco 1999, pet. ref’d) (remanding for new trial but address ing additional issues lik e ly to arise on retrial)

. I n his fourth issue, appellant argues that the trial court erred in denying his motion to suppr ess evidence obtained from T

- Mobile regard ing th e cell site location information associated with a ppellant ’ s c ell phone numbe r

.23

The Uni t ed Sta t e s S upreme Cour t has made clear: “ Before co mpelling a wireless carrier to turn over a subs c rib er ’ s [cell

- sit e location information] , the Government ’ s obligation is a familiar one

— get a warrant ” supported by pro bable

cause. Carp enter v. United Sta t es , 138 S. Ct. 2206, 2 221 (2018). In Texas,

s earche s to o btain electronic c ustomer data held in electronic stor ag e mu st compl y with Code of Criminal Proced ure article 18B.354

. See Tex. Code C rim. Proc.
art. 18 B

. 354

. T o o b tain such dat a from a pro vider of a n electronic communications service , a p e ace officer mu st su bmit an application for a warrant
to a district judge

. Id. art. 18B.354(a). The ap plication must provid e “ sufficient and substantial facts to establis h probable caus e that : (1) a specific off ens e has been c ommitted; a nd (2) the electronic custom er data sought: (A) constitutes evidence of that offen se or evidence that a particular person committed that offen se; and (B) is held in electro nic storage by th e service provider on which t he

warran t i s s erved under Article 18 B .355(c). ” Id. art. 18 B

. 3 54(b).

T he Court of Cri minal Appeals recently considered whether cell s ite location in formation relevant to a c apital murder charge was obtained in violation of Texas Con s titution art icl e I, secti on 9. Holde r v. State , 595 S.W .3d 691 (Tex. Crim. App. 2020). In H

o lder , the court adopted the Supreme Court ’ s rea soning in C arpe nter and applied it to article I, section 9. Id

. at 701. T he court ultimately concluded that , to c omply with a rticle I, secti on 9, a se a rch of the defenda nt ’ s cell site location information had to be supported by probable cause to be r easonable ( absent a n applicable exception to t he warrant requirem ent)

. Id

. at 704. There, the relevant document offer ed in suppor t of probable c ause state d : “ [t] he cellular telephone was used by a possible suspect to communicate with unknown persons and obtaining the locations of the handset will allow investigators to identify if this suspect was in the area at the tim e of the off ense and will p rovide inv e stigators24

leads in this case.” Id

. at 704 n.27. Notably, t he State in Holder conceded, and the court agree d, that this assertion was alone insu fficient to support a probable cause finding. Id

. at 704. Holder is consistent with the Fou rth Amendment p robable

ca u se framework , which require s a fa ctual indication or reasonab le inference establishing a fair probability or substantial chance that evidence of a crime wil l be found at the specified location. E.g. , Bonds , 403 S.W.3d at 873

. T h e supporting do cument in H

o lder articulated a n intent to conduct a search more akin to general evidence

- gathering

. But a mere desire to learn the move ments or location of a
susp ect is not sufficient probable cause to obtain cell site location infor mation f rom a suspect ’ s w ireless c arrier . There m us t be some factual basis in the affidavit
prov iding a fair probability that law enforcem ent could expect to find inc ulpatory location info rmation evidence from the carrier indi cating that a specific person

com mit ted a particula r offense

. The pro babl e cause affida vit for the w arrant to obtain the cel l site location information associated with appellant ’ s cell phone number stated:

I, M. Cond on, a peace officer employed by the Houston Police Department do solemnly swear that I h a ve reason to believe and do belie ve th at electroni c customer data held in s t o rage by T

- Mobile consti tutes evidence of the offense of Murder a nd Aggravated Assault , whi ch is more particularly described as, but not limited to electronic custom er data as def

i ned by Texas Code of Criminal Pro cedur e ( T .C.C.P) C hapter 18.B and is held i n electr onic storage by the service provider on which the warrant is served T

- Mobile [.] Sa id information includes any and all addressing and routing information and /or transactio n al data including any and all loc ation information used while accessing sai d service s and is not lim ited in scope by company specific nomencl ature, relative to [xxx

- xx x
- xxxx]

. . . . Affiant also learned during h is i nvestigation that the home less victim sh o t i n the August 22, 2017 aggravat ed as sault that St ocker was identified and c harged with was murdere d on November 7, 2017 in the same locatio n and about the same time as the original25

aggravated assault shooting. Affiant learned from the rep ort that firea r ms evidence (casings and projecti le) w as recovered at the murder scene and i n dicated a .45 caliber h andgun was used in the murder. Affiant l earned from HPD report sup plements authored by HPD Homicide Sgt. M. Burr ow i n report 1408397

- 17 that Stocker
was a r rested in February of 2016 with a 9mm and .45 calib er handguns i n HPD repor t #020392 2

- 16. Affiant a lso learned from the supplements that i n June of 2017 Stocker recov ered his 9mm and .45 caliber handguns from the HPD property room. Those t wo handguns
we r e test fired and the test fires w ere r etained by th e HPD Ballistics L aborat o r y. Aff

iant further lea rned from ballistics reports that the HPD Ballistics L aboratory com pared those test fires with the firearms evidence recovered from the homel ess victim mur d er on November 7, 2017. Affiant learn ed from the b allistics reports that S t o cker ’ s .45 test fires c onclusively matched to the firearms evide nce recovered from the mur der. Further, Affiant learned in Sgt. Burrow ’ s sup plements that in Januar y of 2018, Sto c ker was arrested for a bond viola tion on the aggrav ated assault case and th e bounty hunter who arres ted him found a .45 caliber handgun on hi s person and turned it in to the Harris County Sheriff ’ s Office Jail while tur ning Stocker i n to the jail. Affiant also learned from the reports tha t the serial numbe r of the .45 matched the t est fir es to the physic al .45 caliber handgun that Stocker
was a rrested with.

. . . Your A ffiant has be en a law enforcement offic er for
a pproximately 23 years, and has experience i n investigating crimes where cel l ular phones and s ocial media have been us e d to com mit offenses. Y our Affiant knows from training and exper ience t hat individuals eng aged i n crimi nal activities and the fli ght ther efrom, often use cell phone s and social m e dia to communicate, research t he
c rime before, duri ng and after i t happens, a nd use it to fle e

. Aff iant knows from training and experience t hat indi viduals engaged i n activities d esc r ibed herein often use cellular phones and social media to communicate i n furtherance of criminal activ ity

. Af fiant knows f rom past experience as w e l l that cellular phone a nd internet service providers maintain re cords

- in cl uding subscrib er informatio n, c ustomer use and accoun t inform ation, call detail informat ion, cell site location information, ge o
- loca tio n inf ormation, and internet protocol (IP) l o gs, as part of their no rmal course of business.26 Based on the afo rementioned probable cause , Affiant bel iev e s that information wil l be fou nd within the records maint ained by T

- Mo b ile pertaining to identifier c ell numb er [xxx

- xxx
- x xxx] that constitute evi d e nce of Murder and Aggra vated Assault. Affiant believes the phon e records will reveal the locations of the phone prior to, during , and af

ter the shooting of the peo ple listed abo v e as well as those people defe nda n t Ja min Stocker c ommunicated with prior t o , during , and after the shootings who may [have] information rela ted to the investigat ion t hat are unkno wn t o law enforcement. Af fiant al so believes that the record s from Jam i n S t ocker ’ s phone before, during, and afte r the shootin gs can help investigator s provide insight into hi s habits, motives, and intentions which c ould also provide leads as to the plans in r elation to each of th e shooti ngs and any flights from th e shootings. T herefore Affiant is requesting da t a fo r Jam in Stock er ’ s phone between the d a t es of A pril 1 , 2015 thr ough January 10, 2018. Considering the fo ur co rners of the affidavi t , we conclude that it cont ains sufficient factual assertions from which t he district jud ge could reasonably determine t here wa s a fai r prob ability that the locatio n data relating to ap pellant ’ s phone would provide evidence of the murder desc ribed in the a ffidavit and that appellant committed the murder. Although the affidavit does contain so me conclusor y statements, it also incl udes addition al facts e sta blishing th e requisite

nex us between the murder and the electronic records to be searched. In particul ar,
t he affidavit contains facts conclusively linking appella nt to the mur der w eapon

— a ha nd gun

— thereby connecting appellant to the specific location of the mur der

. T hus, the facts cont ained in the affidavit give rise to a fair probab il ity that a search of T

- Mobile ’ s cell site location information associated with appella nt ’ s pho ne woul d reveal incul patory evidenc e that a particul ar perso n , app ellant, committed the mu r d er becaus e the location of his Samsung phone would be placed at or nea r the murde r scene a t the relevant time

. See Martinez v. State , -- - S.W.3d

- - - , 2022 WL 3904699 , at *9

- 10 (Tex . App.

— San Antonio Aug. 31, 2022, no pet. h.) ( holding magistrate had subst a n tial basis for concluding probab le cause existed to27

support warrant to conduct search hist orical cell site data for defendant ’ s cell phone ) ; Bowden v. State , No. 08

- 19

- 00057

- CR, 2 021 WL 3661163 , at *9

- 10 (Tex. App.

— El Paso Aug. 18, 2021, pet. ref ’ d) (mem

. op., not des ignated for publication) (affidavit included eyewitness account of neighbor wh o said person matching defendan t ’s description entered the victim’s apartm ent near the ti me o f the murder; sufficient probable cause to obtain T

- Mobile re cords) ; Pa r k er v. State , No. 03

- 19

- 00293

- CR, 2021 WL 1567882, at * 5

- 6 (Tex. App.

— Austin Apr. 22, 2021 ) (mem. op., not designated for publication) , aff’d , - - - S.W.3d

- - - , 2022 WL 296 3533 (Tex. Crim. App. 2022) (affidavit c ont ained suff ic ient facts connecting def endant to Oregon offense to support probable cause t o obtain cell site location records from carrie r) ; a ccord, e.g. , Carpenter , 138 S. Ct. at 2218 ( “ [A ] cel l phon e

— almost a feature of human anatomy

— tracks nearly exac tly the movemen ts of its o wner.

. . . [People] compulsively carr y cell phone s with them a l l the time

. ” ) (internal citation a nd quotation o mitted) ; Ri ley v. California , 573 U.S. 373, 395 (201 4) ( “ Now it is the person who is not carrying a cell phone, with all that it

con tains, who is the exception. According to one pol l, nearly th re e
- quarters o f smart ph one users report being w ithin five fee t of their phones most of the time

. ” ) (emphasis adde d)

. This i s sufficient to show “ some quantum of ind ividual ized

s usp icio n ” to ju stify a s ea rch of T

- Mobile ’ s location data. Carpe nter , 138 S. Ct. at 2221 ( i nternal q uo tation omitted).

We also not e that the affidavit is consistent with Texas ’ s statutory

r equirements because it includes “ sufficient and substantial fact s ” t o have al lo wed the j udge to determine probab le cause to se arc h T

- Mobile ’ s cell site lo c a tio n information associate d with appellant ’ s ph one number

. See Tex. Code Crim. Proc. art. 18 B

. 3 54(b)

. The affidavit states that a specific offense ha d been commit ted , specifical ly the No vember 2017 murder

. Id. art. 18B.3 54(b)( 1). The affida vit28

descri b e s the electronic customer da ta sought , speci fic ally “ any and all location info rmation

. ” Id. art. 18B.354(b)(2). The affidavit establishes probable cause that the c el l site lo cat ion information would constitute evidence that app ellant

comm itte d the offe n s e because it contains fa cts linking appellant t o the murder
weapon

. Id. art. 18B.354(b)(2)(A). And finally, the affidavit states that the location data is held in el ectronic st o rage by T

- Mobi le. I d. art. 18B. 354(b)(2)(B).
The trial c o u rt did n ot err in denying appellant ’ s motion to sup press evidenc e obtained from the search of T

- Mob ile ’ s records , and we overrule his fourth issue

. 6. Evidence sei zed from the to wnhouse
In his first issue, appellant argues that the trial co u rt erred in denying his motion to suppress evidence s eize d from the townhouse f ollowing the August shooti ng. A ppellant contends: (1) Officer Clop ton ’ s affidavit supporting the A ugust aggravat ed assault arrest warrant contai n ed a material misstatement an d thus lacked probable cause ; and (2) entry into the town house was “ improp er as appellant was not present ” on the premises

.

a. Miss tatement in the affid avit
An arrest warrant aff

idavit must pro vide the magistrate with sufficient i nformation to support an independent d etermination t hat probable cause exists f or the warrant

. Duarte , 3 89 S.W.3d at 354

. Probable cause exists when the facts and circumstances within an officer ’ s perso nal knowledge a nd of which he has reasonably trustw o rthy information are sufficient to war rant a person of reasonable caution in the belief that, more likely than not, a p ar ticular suspect has committed the crime. Muniz v. State , 851 S. W.2d 238, 251 (Tex. Crim. App. 199 3)

. The test is whether a reasonabl e reading of the supporting affidavit p rovides a substantial29

basis for the magistrate ’ s conclusion that pr obable cause e xisted. Duarte , 389 S.W.3d at 354. A criminal defendant may chall enge the truthfulne ss of factual s tatements made in a probable cause a f fidavit. Franks v. Delaware , 438 U.S. 154, 1 71

- 72 (1978)

. Under Franks , a warrant must be voided

— and an y evidence obt ained pursuant to the warrant suppressed

— if (1) the defendant can e stablish by a
prep onder ance of th e evidence that the affidavit suppor t ing the warrant contains a material mi sstatem ent that the affiant made knowingly, intentionally, or with reckless disre gard for the truth, and (2) excising the false statement, the affid avit ’ s remaining c onten t is insuf ficient to establish probable cause. Id. at 155

- 56 ; see also Janecka v. St ate , 93 7 S.W.2 d 456, 462 (Tex. Crim. App. 1996).
Acco rding to appel lant, the probable cause affidavit misstated the complainant ’ s last name as “ Green ” instead of “ Tap p

. ” Appellant contends : The probable cau se statement attested to by Officer Clopton liste d the Complainan t [for th e August shooting] as Brent Green. This w as a false statement as his name was Brent Ta pp. At the least, this misstatement by Clopton was re ckless as he wa s aware pr ior to swearing to the statement that his partner, Officer Harris , while with Clo p ton, had tried to pull up Brent Green [on a comput er search] and was unable to do so. In appe llant ’ s view, t his misstatement undermined Officer Clop ton ’ s assertion in the aff idav it that Tapp w as reliable and credible

. At the pre trial su ppression hea rin g on this issue, Officer Clopton testified that he did not learn that Tapp had given him a f alse name until after he had obtained the arrest warrant. Officer Clopto n said that , i n his experience, it was not uncommon for people to give a fa lse name to p oli c e, but that such people may stil l be cr edibl e and reliable, as he considered Tapp to be

. Officer Clopton had no reason to doubt Tapp ’ s credibility b ecause Officer Clopton personall y o bserved30

that Tapp had suffered a gunshot wound to his l eg , which alig ne d w ith the events described by Tapp that Clopton in cluded in the probable cause affidavit. The reliability of the affiant and his sources of informati on are part of the totality of t he circumstances that the magistrate should evaluate in ma king a probable c au se determination. Johnson v. State , 803 S.W.2d 272, 289 (Tex. Crim. App. 1990), overruled on other grounds by Heitman v. State , 815 S.W.2d 681 (Te x. Crim. App. 1 991). “ [W]here a crime victim, who is a private citizen, reports the commi ssion of a c rimi n al offense, and whose only contact with law enforc ement authorities is a result of having been victimized at the hands of another, the credibility an d reliability o f the in forma ti on is inherent.” Nelson v. State , 855 S.W.2d 26, 30 (Tex. A pp.

— El Paso 1993 , no pet.). Therefore, in making a probable cause determination, a magistrate is entitled to rely on source information supplied by a victim eyewitne ss without an i ndependent sh ow ing of reliability. Id. ; see also Gonzales v. State , 481 S. W.3d 3 00, 30 8 (T e x. App.

— San Antonio 2015, no pet.)

. As the victim of the reported crime, Tapp was inherently reliable. Nelson , 855 S.W.2d at 30

. Further, Officer C lopton testifie d that he was u naware of the in ac curacy in Tapp ’ s last name until after the warrant was sig n ed and issued. The trial cou rt could have reasona bly concluded that Officer Clopton did not incl ude the inaccuracy in the affidavit deliberately or with a reckless disregard fo r the truth. See Fran ks , 438 U.S. at 171

- 72 ; see also Warren v. State , No . 03

- 11

- 00343

- CR, 2014 WL 1207986, at * 7 (Tex. App.

— Aus tin Mar. 20, 2014, pet. ref ’d) (mem. op., not designated for publication) ( inclusion of wrong name in affidavit w a s not made wi th the type of knowledge, intent, or recklessness contemplated by Franks :

“ In fact, appellant never established that Detective P ergande was aware that his statement concerning the name on the water account was i ncorrect at the time he31

include d the stateme nt in his affidavit. Detective Pergande testified that he onl y found out abou t the error two days after obtaining the warrant. ”)

. 9 Finally, the mi s identification of the complainant as “ Brent Green , ” instead of Brent Tapp , was not material t o establish pr ob able cause. It was rea son able for the magistrate to conclu de , under the tot a lity of the circumstances presented within the fo ur corners of the affidavit , that there was probable cause to suspect appellant of a ggrav ated assau lt , despite the complainant providing an incorrect last name to the officer

. Hyland v. St ate , 574 S.W.3d 904, 911 (Tex. Cr im. A pp. 2019) (we defe r to the ma gistrate ’ s finding of probable cause if, under the totality of the circumstances, the affidavit sho ws a substantia l basis for the conclusion )

.

b. Not present on premises In the next part o f his first issue, a ppellant argues that , no twith s t anding the legal it y of the arrest warrant, the search of the townhouse was “ improper ” because appellant told the ho stage negotiato r that he was not present on the premises. Appellant does not ci te a ny leg al authority for this prop osition, but it is well

established that a la w enforcement officer who execute s an arrest warrant at a private residence must have a reasona ble belief that the suspect resides at the place to be entered and have reason to beli eve that the suspect is present at the time the warrant is executed. S ee P a yton v. New York , 445 U.S. 573, 601

- 05 (1980) ; Morgan v. State , 963 S.W.2d 201, 204 (Tex. App.

— Houston [ 14th Dist.] 1998, no pet. )

. When executing an arrest warrant, officers may seiz e evidence in plain view.

9 Th e Fourth Amendment requires a truthful factual showing when determining pro bable
cause. S ee Franks , 438 U.S. at 164

- 65. “Truthful,” however , does not mean that eve ry fact recited in th e affidavit must be precisely accurate, “for pr o b able cause may be founded upon hearsay and upon information received from informants, as well as upon informati on within the affiant ’ s own know ledge that sometime s must be garnered hasti ly.” Id. at 165. Ra ther, “truthful” in this context means that the i nformation put forth in the affidavit is believed or appropriately accepted by the affiant as tr ue. Id.32

Jones v. State , 568 S.W.2d 847, 857 (Tex

. Cr i m. App. 1978) (upholding admission of evidence seized during the execution of an arrest warran t because the a rrest warrant authorized entry into the appellant ’ s apartment, the offi cers ’ intrusions into the bathroom and bedroo m were justified, and the it em s seized were in plain view in those areas); Collins v. State , 462 S.W.3d 617, 622

- 23 (Tex. App

. — Fort Worth 20 15, no pet.) (officers were authorized to seize evidence in plain view in t he defendant ’ s bedroom while they were ex ecuting arrest warrants). Tapp told responding officers that he had been shot by someone standing on the second

- floor ba lcony of the townhou se

. Officer Harris testified that he “had the Command Center run that ad dr ess. Command Center ran the addres s [of the townhouse] and they h a d a name associated to th at address, ” which was appellant ’s

name

. HPD officers testified during th e suppression h earing that there was a light on in the townhouse and a car parke d in the d riveway . One of the SWAT officers said that the HPD patrol offic e r s establis hed a perimeter as quickly as possible and, prior to that, “ they did not see the suspect flee so [their] assumption is he ’ s still inside. ” The same SWAT officer admitte d that app ellant said t hat he was not present in the town house, but the off i c er explained that SWAT ’ s policy is not to believe such statements: “ We ’ ve been told many times by suspects on pho nes that they ’ re not inside and we found o ut later that they are inside. ”

B ased on these facts, the trial cour t reasonably could conclude th a t the officers executing the arrest warrant believed that appellant was inside the townhouse. See M

organ , 963 S.W. 2d at 204 ; see also , e.g. , Rice v. State , No. 01

- 02

- 00094

- CR, 200 3 WL 13426 05, at *5 (Tex. App.

— Houston [1st Dist.] Mar. 20, 2003 , pet. ref ’ d ) (mem. op., not designated for publication) ( officers had e vidence from public records that suspect lived at the a ddress and were told by two people outsi de the house that appella nt was ins ide; court held that this was sufficient to33

provide a reasonable b e lief that appellant re sided at and was present in the house at the t ime officers executed the warra nt).
There be ing no other challenge to the August sea rch of the t ownhouse , we hold that the trial court did not err in denying the motion to suppress. W e overrule appellant ’ s first issue. 10
C. Admission of Evidence In his sixth issue, appellant argues t hat the trial c ourt erred in admitting evidence regarding an “ extraneous offense ”

— i.e., th e August shooting. A ppellant argues that the evide n ce should have excluded under ei ther Rule 40 3 or Rule 404 of the Texas Rules of Evidence.
1. Standard of review a nd applicable l aw Evidence of a person ’ s crime, wrong, or other act generally is no t admis sible to prove that pe rson ’ s character in order to s how that he act ed in conformity therewith when allegedly committing the charged crime. See Tex. R. Evid. 404(b); see also Powell v. State , 63 S.W.3d 435, 438 (Tex. Crim. App. 2001); Montgomery

v. State , 810 S.W.2d 372, 386

- 88 (Tex. Crim. App. 1990) (op. o n reh ’ g). Evid ence of other offenses may, however, be admissible when it is relevant to a fact of consequence in the case. See Tex. R . Evid. 404(b)(2); Montgomery , 810 S.W.2d at 387

- 88. For instance, t he evidence may be adm issible if it tends to establ i sh some element al fact, such as identity or intent; tends to establish some evidentiary fact, such as motive, oppo rtunity, or pre paratio n, leading inferentially to an elemental fact; or rebuts a defensive theory by showing, e. g., absence of mistake or acc i dent.

10 Beca use we reject appellant ’ s arguments against the tri al court ’ s ruling , we ne ed not ad dress the State ’ s alternative argument that appellant lacke d standing to challenge the search. See Silva v. State , No. 01

- 10

- 00245

- CR, 2012 WL 1564541, at * 7 (Tex. App.

— Ho uston [1st Dist.] May 3, 2012 , pet. ref ’ d ) (mem. op ., not designated fo r pu blication ) ; Tex. R. App. P. 47.1.34

Montgome ry , 810 S.W.2d at 387

- 88; see also Tex. R. Evid. 404(b). If the trial court determines the offered evidence has r elevance apart from or beyond chara cter conformity, it may admit the eviden ce and instruct the ju ry the evidence is limited
to the specific pu rpose the proponent advocated. Prince v. State , 192 S.W.3d 49, 54 (Tex. App.

— Houston [14th Dist.] 2006, pet. ref ’ d) (citing Montgomery , 810 S.W.2d a t 387

- 88).
But even if a trial court det ermines that evidence of other crimes or wrongs is n ot barred under Rule 404(b), the trial court must still conduct a Rule 403 balancing test upon proper objection or request before admitting the evidence. Id. at 56 ; see also Magee v. State , No. 14

- 16

- 004 08

- CR, 2017 WL 2818229 , at *7 (Tex. App.

— Houston [1 4 th Dist.] June 29, 2017 , pet. ref ’ d ) (mem. op., not designated for publication)

. Rule 403 authorizes a trial cour t to exclude re levant evidence if its probative va lue is substantially outweighed by a dan ger of unfair prejudic e, con fusion of the issues, m i sleading the ju ry, undue delay, or needlessly presenting cumulative evidence. Tex. R. Evid. 403; Magee , 2017 WL 2 818229, at *7

. Here, appellant raised a Rule 403 objection on unfair

- prejudice grounds.
Courts should ba lance the following factors under a Rule 403 analy sis: (1) the strength of the evidence in making a fact more or less probable; (2) the potential of the extraneous offense evidence to impress th e jury in some irrational but indelible way; (3) the amount of time the proponent needed to deve l op the evidence ; and (4) the strength of the proponent ’ s need for this evidence to prove a fact of consequence. M ozon v. State , 991 S.W.2d 841, 847 (Tex. Crim. App. 1999); Fuentes v. State , No. 14

- 08

- 006 13

- CR, 2009 WL 9 9 7508, at *5 (Tex. App.

— Houston [14 t h Dist.] Apr. 1 4, 2009, pet. ref ’ d) (mem. op., not designated for publication).35

Because trial courts are best

- sui ted to make t he call on these substantive admissibility questions, an appellate court revi ews admissibil ity rulings under an abuse of discret i on standard. P owell , 63 S.W.3d at 438. This standard requires an appellate court to uphold a trial court ’ s admis sibility ruli ng when that decision is within the zone of reasonable disagreement. Id.
2. Application
The e vi dence at issue concerned the Au g ust 2017 shooti ng. Prior to trial, appellant asked the court to limit the State to d iscu ssing only the fact that appellant

was i ndicted for the aggravated assault . The State argued in response that it

n eeded the evidence of the August shooting to establ i sh appellant ’ s motive for the November shooting: “ There was a witness, prospective witness, that the victim on th e ag [gravated] assault who is now dece ased goes to everything that this case is about. ” T he pro secutor beli eve d the evidence was necessary s o “ the jury can understand why it is that the defendant two months later came back and made sure to kill the only w i tness against him truly in an aggravated assault who identified him as the per son who sho t him. ” We agree w ith the State that the evidence r e garding the Au g ust 2017 shooting was admissible under Rule 404(b). Sergeant Harris testified that Tapp

was “ adama nt ” that appel l ant was the person who shot hi m in the leg in Au gust 2017. Edwards testifi ed that he saw app ellant regularly in the area. Th e record also ma kes clear that law enforcement spoke to appellant in the immediate aftermath of the shooting , thus establishing T a pp ’ s status as a prospective witness and appellant ’ s knowledge of the same

. This evidence sp eak s to app el lan t ’ s possible moti v e or opportunit y in later shooting Tapp in November, which lead s inferentially to certain elemental fact s , namely appellant ’ s i de nti ty as the assailant and appellant ’ s intent in committing the offense of murder. See Colone v. State ,36

573 S.W.3d 24 9 , 266 (Tex. Crim. App. 2019) ( “ Although motive is not an element of murder, it is a circumstance indicative of guilt. A witness ’ s an ticipated testimony that the defendant committed a prior offense can provid e a motive to kill the witness. ” ) (internal quo t ation and footnote omit ted).

Ba sed on the record before us, we find that the trial court could have reasonably conclud ed the extraneo us offense evidence was not offered solely for character con formity pur pose s, but was offered to show a material, nonprope n sity issue. See Devoe v. State , 354 S.W.3d 457, 469 (Tex. Crim. App. 2011) (admission of evidence under Rule 404(b) i s generally wit hin the zone of reasonable disagreement and not an abuse of discretion if t here is evidence supporting tha t an extraneous o ffense is relevant to a materia l , nonpropensity issue). Next, we address whether the probative value of the ex traneous offense eviden ce was substantially outweighed by the danger of unfair prejudice. H ere, t he evidence of the August shooting was highly p r obative as it was relev ant to s h ow the contextual background of the November murder . The first factor thus fa vors adm ission. In reg ard to the second factor, there is nothin g in the record or about the natur e of the extraneous offense that would indicate the evidence had t he
po tenti al t o impress the jury in an irrational and indelible way. The second factor also fa vors admission. As to the third fact or, the time needed to develop the evidence, we note that the State presented twenty

- one witnesses during its case

- in

chief, nine of whom testified about the August shooting and the immed iate aftermath. While not insignific a nt, thi s is no t a n overwhelming amount of trial time or number of witnesses

. At best to appellant ’ s per spective, t his factor is

ne utral

. Lastly, because appel lant ’ s i d enti ty was a contested issue at trial and because there were no eyewitnes ses to the No vember shooting , the evidence of the37

August shooting was at least hel pful if not necessary to explain the contextual background of both shootings , to show tha t a ppellant was regularly in the vicinity, and to establish ap pellant ’ s motive. The trial court c ould have concl uded that the State ’ s need for the extraneous offense evidence was great, a nd thus the fourth factor weighs in favor of admissibility. See, e. g
. , Colone , 573 S.W.3d at 267

- 68 (evidence of prio r assault was relevant to show motive, did not r equire an in ord inate amount of trial time, and was necess ary for State to link appellant t o murder since appellant wo re a mask during charged offense ).
We con c lu de the trial court did not ab u s e its discretion in determining that the probative value of the extraneous offe nse evidence was not substantially outweighed by the danger of unfair preju dice. See Tex. R. Evid

. 403 ; De La Paz v. State , 279 S.W.3d 336, 34 4 , 349 (Tex. Crim. App. 2009)

. W e overrule appellant ’ s sixth issue.
Conclus ion

We rev erse the tri al court ’ s judg me nt and remand for a new t rial.

/s/ Ke vin Jewel l Justice

Panel consists of Justices Jewell, B o urliot, an d Zimme rer

. Publish

— Tex. R. App. P. 4 7.2( b).