COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

TIMOTHY EARL WESLEY, §

No. 08-14-00121-CR

Appellant, §

Appeal from the

v. §

213th District Court

§

THE STATE OF TEXAS, of Tarrant County, Texas

§

Appellee. (TC#1290302D)

§

O P I N I O N

Appellant Timothy Earl Wesley was convicted of continuous sexual abuse of a child

under TEX.PENAL CODE ANN. § 21.02 (West Supp. 2015). His appeal challenges the trial court’s 

adverse ruling on a motion to suppress. Finding no error in that ruling, we affirm.1

FACTUAL SUMMARY

We recite only so much of the underlying facts as are necessary to decide the limited 

issues before us.

Underlying Facts

Appellant was charged with continuous sexual abuse of a child. The child, whom we 

refer to R.K., was his stepdaughter. She was eleven to twelve years of age during the events 

 

1 This case was transferred from our sister court in Fort Worth pursuant to the Texas Supreme Court’s docket 

equalization efforts. See TEX.GOV’T CODE ANN. § 73.001 (West 2013). We follow the precedents of the Fort 

Worth Court to the extent they might conflict with our own. See TEX.R.APP. P. 41.3.
2

described here, and Appellant was in his late 40s. R.K.’s mother married Appellant when R.K.

was eleven. Appellant moved in with R.K.’s mother, R.K., and her two siblings, all children 

from a previous marriage. Sometime after he moved in, Appellant initiated sexual contact with 

R.K. The contact progressed to frequent sexual intercourse.

While being examined at a local hospital for complaints of pain, R.K. confided to a nurse 

about her sexual contact with Appellant. The police became involved, leading to Appellant’s 

arrest, but the charges were dropped after R.K. recanted the allegation. Appellant lived apart 

from R.K.’s mother after the arrest, but he later moved back in. When he did so, his sexual 

relationship with R.K. resumed as well. Appellant and R.K.’s mother then permanently 

separated and Appellant moved out. But R.K. and Appellant kept in contact and they soon 

resumed their sexual relationship. Appellant would pick her up on a weekly basis and drive to a 

nearby wooded area, or sometimes she would sneak him into the house.

The Samsung Cell Phone

During this time, Appellant gave R.K. a Samsung cell phone. He told her that she could 

only use the phone to contact him and one of her friends. He also told her not to tell anyone 

about the phone. R.K.’s mother discovered the cell phone and viewed explicit text messages and 

photographs on it, leading the mother to again contact the police. A responding officer seized 

the phone and stored it in an evidence locker. Based on statements made by the mother, R.K., 

and a physical exam of R.K., the Grand Prairie police obtained a search warrant for the Samsung 

phone to be executed at the evidence locker room.

The Recorded Phone Call

Following the issuance of the search warrant, R.K. accompanied her mother to the Grand 

Prairie police station where they met with Sergeants Alan Frizzell and Christie Martinez. R.K.
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was twelve by this time.

The meeting is reflected on State Exhibit One which is a DVD video and audio recording 

of a conference room at the police station. The video is approximately fifty minutes long and

begins with R.K., her mother, and Sergeants Alan Frizzell and Martinez seated in the room. 

R.K. acknowledged that the Samsung phone was given to her by Appellant. The officers then 

began reading the text messages on the Samsung phone. The mother, the officers, and R.K.

discussed how to respond to a recent text message from Appellant. The discussion turned to 

having Appellant engage in a phone call whereby he would admit to the sexual relationship with 

R.K. Officer Martinez left the room to retrieve her recording equipment. When she returned, 

R.K.’s mother, by agreement, left the room. The officers explained to R.K. how the recording 

device worked, and she initiated the first of two calls to Appellant. In the first call, they 

discussed meeting later that afternoon and she asked him to send a photograph as the call 

concluded. Several minutes later he sent a photo of an erect penis. The second call included

R.K. and Appellant graphically discussing sexual acts they will engage in when they meet. 

Appellant also stated in the recording that the two had had thirty to forty sexual encounters over 

the past several months.

When Appellant was arrested that same day, the police seized his cell phone. Pursuant to 

a warrant, the contents of that phone were examined, and it contained some of the same photos 

as had been sent or received on the Samsung phone. The police also found a video of Appellant 

and R.K. apparently having sexual intercourse. 

The Motion to Suppress and Suppression Hearing

Appellant filed a motion to suppress which sought to exclude the Samsung cell phone and 

its contents, Appellant’s phone and its contents, and the recorded conversation. Only the issues
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of the Samsung cell phone and the recorded conversations are challenged on appeal. Appellant

contended below that the warrant to seize the Samsung cell phone lacked probable cause and 

only extended to the phone itself, not its contents. The only evidence that Appellant offered at 

the suppression hearing with regard to the Samsung cell phone was the search warrant which

contains a supporting affidavit from an investigating officer. The affidavit stated that appellant 

gave R.K. the phone as their means of communication and he told her not to tell anyone about 

the phone. Appellant’s counsel conceded at the hearing that Appellant had bought the phone for 

R.K. to use. The trial court denied that portion of the motion because Appellant had no standing 

to raise a Fourth Amendment challenge to a phone that he had given to R.K.

Appellant also challenged the recorded phone conversation. Noting that the State is 

precluded from using evidence that is illegally obtained, he claimed that the call was illegally 

recorded under TEX.PENAL CODE ANN. § 16.02 (West Supp. 2015). That statute prohibits the 

interception of a wire communication unless (as is relevant here) one of the participants 

intercepts the call, or consents in advance to the interception. Id. at § 16.02(c)(3)(A)(B) and 

(c)(4)(A)(B). Appellant argued below that R.K. as a minor cannot consent, and the mother never 

did consent.

Officer Martinez testified at the suppression hearing that both R.K. and her mother 

cooperated in the phone call and consented to the recording. She agreed, however, that all the 

discussions regarding consent and the call are contained on the DVD (State’s Exhibit One) which 

is a part of our record. The term “consent” was never directly used in the conversations reflected 

on the DVD. The trial court overruled the motion to suppress, finding there was consent by both 

R.K. and her mother.

The Trial
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Appellant re-urged the illegality of the State’s evidence at trial. Appellant sought and 

obtained an instruction in the jury charge which would allow the jury to disregard any evidence 

illegally obtained. Appellant cross-examined Sergeant Martinez at trial, again pressing his 

contention that the mother never consented to the recorded phone call, and that R.K. was too 

young to consent. R.K. testified at trial that both she and her mother were aware of and 

consented to recording the call. Appellant’s counsel pressed the illegality defense in closing 

argument. The jury apparently disagreed and convicted Appellant of continuous sexual assault.2 

The trial court sentenced him to sixty years’ confinement.

SUPPRESSION ISSUES

Appellant raises two issues for our consideration. Issue One contends the trial court erred 

in not suppressing the contents of the Samsung cell phone that he had given to R.K. In Issue 

Two, he presses the claim that the recorded phone conversation was illegally obtained because 

neither party to the conversation consented to it.

Seizure of the Phone

The Fourth Amendment protects one in their person, houses, papers, and effects against 

unreasonable searches and seizures. U.S. CONST. Amend. IV. But an accused may challenge a 

search or seizure under the federal (and state constitution) only if he has a legitimate expectation 

of privacy in the thing being searched or seized. Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 

421, 430, 58 L.Ed.2d 387 (1978); Granados v. State, 85 S.W.3d 217, 222–23 (Tex.Crim.App.

2002). The accused carries the burden of demonstrating such a legitimate expectation of privacy, 

which the trial court here in short-hand referred to as standing. Granados, 85 S.W.3d at 223; 

Calloway v. State, 743 S.W.2d 645, 650 (Tex.Crim.App. 1988)(because the accused has greater 

access to the relevant evidence, he has the burden of proving facts establishing a legitimate 

 

2 The record shows the jury deliberated for eleven minutes before reaching a verdict.
6

expectation of privacy).

Whether a defendant has standing to contest a search and seizure is a question of law 

which we review de novo. Parker v. State, 182 S.W.3d 923, 925 (Tex.Crim.App. 2006). But 

these issues arise in fact-specific, and often fact-disputed, situations where credibility and 

demeanor come into play. In that situation, we use a bifurcated standard of review giving

“almost total deference to a trial court’s determination of historical facts” and review de novo the 

court’s application of the law to those facts. Montanez v. State, 195 S.W.3d 101, 106 

(Tex.Crim.App. 2006). Mixed questions of law and fact that do not turn on the credibility or

demeanor of witnesses are reviewed de novo. Id.3 When the trial court makes no explicit 

findings of historical facts, as in this case, we view the evidence in the light most favorable to the 

trial court’s ruling. Id.

In making that determination, we would normally only consider the evidence admitted at 

the suppression hearing. Rachal v. State, 917 S.W.2d 799, 809 (Tex.Crim.App. 1996). 

However, this general rule does not apply when the suppression hearing issues have been 

consensually re-litigated by the parties during a trial on the merits. Id. In that instance, we may 

also consider the relevant trial testimony. Id.; Flores v. State, 299 S.W.3d 843, 850 (Tex.App.--

El Paso 2009, pet ref’d).

To establish Fourth Amendment standing, appellant must show he had: (1) a subjective 

expectation of privacy (in the phone) that (2) society is prepared to recognize as reasonable. See

Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979); Katz v. 

United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516-17, 19 L.Ed.2d 576 (1967)(Harlan, J., 

 

3 Were we to reach the merits of Appellant’s challenge to the search warrant itself, we would apply a highly 

deferential standard to the magistrate’s decision based only on the four corners of the search warrant affidavit. State 

v. McLain, 337 S.W.3d 268, 271 (Tex.Crim.App. 2011). But we note that Appellant has not briefed the merits of the 

underlying challenge to the search warrant and has only addressed his standing to make such a challenge.
7

concurring); Parker, 182 S.W.3d at 926. With regard to the subjective element, the only 

evidence admitted at the suppression hearing was an affidavit attached to a search warrant 

attesting that appellant told R.K. not to tell anyone about the phone. At trial, R.K. additionally 

testified that she asked for the phone and appellant gave it to her, allowing her to only use it to 

call him and one other of her friends. Even assuming this meager evidence meets the subjective 

element, Appellant failed to prove the second objective element: that society should recognize a 

privacy right in this circumstance. Specifically here, we address an adult living outside the 

household secretly giving a phone to a minor in the household for the purposes of secret 

communications. 

We consider several factors in determining whether an accused’s claim of privacy is 

objectively reasonable: (1) whether the accused has a property or possessory interest in the item; 

(2) whether he legitimately possessed the item; (3) whether he had complete dominion or control 

and the right to exclude others; (4) whether, before the intrusion, he took normal precautions 

customarily taken by those seeking privacy; (5) whether he put the item to some private use; and 

(6) whether his claim of privacy is consistent with historical notions of privacy. Villarreal v. 

State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996); Smith v. State, 176 S.W.3d 907, 913 

(Tex.App.--Dallas 2005, pet. ref’d). None of these factors is dispositive; rather, “we examine the 

circumstances surrounding the search in their totality.” Smith, 176 S.W.3d at 913.

The evidence here does not establish that Appellant’s expectation of privacy was one that 

society is prepared to recognize as objectively reasonable under the circumstances. Our 

conclusion is grounded on the totality of the circumstances established by the evidence. There 

was, for example, no evidence that Appellant had complete dominion or control over the phone. 

Because he gave the phone to R.K., he effectively concedes he lost whatever property interest he 
8

may have had in it. See State v. Granville, 423 S.W.3d 399, 409 (Tex.Crim.App. 

2014)(“Although a person may have a reasonable and legitimate expectation of privacy in the 

contents of his cell phone, he may lose that expectation under some circumstances, such as if he 

abandons his cell phone, lends it to others to use, or gives his consent to its search.”)[Emphasis 

added]. And in our view, in circumstances such as these, our society is not willing to sanction as 

objectively reasonable an adult giving a child a cell phone with the intent that it should be kept a 

secret from the custodial parent. See Young v. State, No. 05-09-00267-CR, 2010 WL 5072174,

at *4 (Tex.App.--Dallas 2010, pet ref’d)(not designated for publication)(adult female who had 

given a minor, not her son, a cell phone to use did not have an objectively reasonable expectation 

of privacy in the phone). We overrule Issue One.

Admissibility of the Telephone Recording

“No evidence obtained by an officer or other person in violation of any provisions of the 

Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of 

America, shall be admitted in evidence against the accused on the trial of any criminal case.”

TEX.CODE CRIM.PROC.ANN. art 38.23(a)(West 2005). Relying on this rule, Appellant urges that 

his recorded phone call with R.K. was illegally obtained under TEX.PENAL CODE ANN. § 16.02 

(West Supp. 2014). That statute prohibits the interception of a telephone call unless: “the 

person is a party to the communication” or “one of the parties to the communication has given 

prior consent to the interception.” Id. at § 16.02(c)(4)(A)(B). Appellant contends there is no 

evidence to support the mother’s consent because she never expressed it on the record, and she 

left the room before the recorded conversation took place. Before the trial court, Appellant 

contended R.K. was legally incapable of giving consent. As a general rule, we review a trial 

court’s decision to admit or exclude evidence for an abuse of discretion and we will not reverse 
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the ruling as long as it falls within the zone of reasonable disagreement. See Rodriguez v. State, 

203 S.W.3d 837, 841 (Tex.Crim.App. 2006).

We disagree with Appellant’s argument on several levels. First, aside from the consent 

issue, one of the exceptions under the wiretap statute is when the person charged is a party to the 

conversation. TEX.PENAL CODE ANN. § 16.02(c)(4)(A)(B). The trial court could have found that 

R.K. not only consented to the recording, but she actually participated in the recording process 

itself. She initiated the call only once the recording device was hooked up. She stated the date 

and time of the call on the recording, before she dialed the number. She held the cell phone next 

to a specific microphone so the call could be recorded. As a party to the conversation making 

the recording, her consent, and thus her age, are not at issue.

Even were RK’s consent the issue, the trial court could have found she validly gave 

consent. Both she and the detective testified that she gave consent. On State’s Exhibit One, the 

detective can be heard explaining to her how the recording process would work before she made 

the call. Even if the word “consent” is not formally used, her participation in the telephone call 

in these circumstances would be some evidence of consent. Consent to interception of a wire 

communication can be inferred from a knowing participation in the telephone call being 

recorded. United States v. Axselle, 604 F.2d 1330, 1338 (10th Cir. 1979); United States v. 

Bonanno, 487 F.2d 654, 658–59 (2d Cir. 1973). From the circumstances surrounding the two 

phone calls, the trial court could have properly inferred that R.K. consented to the recording of 

her telephone conversation with Appellant. Cf. Allen v. State, 479 S.W.3d 341, 345 (Tex.App.--

El Paso 2015, no pet.)(“The evidence shows that T.B. knowingly participated in the telephone 

call with full knowledge that Detective Carney was recording the conversation.”); Mitchell v. 

State, No. 03-09-00643-CR, 2010 WL 5019123, at *1 n.1 (Tex.App.--Austin Dec. 8, 2010, no 
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pet.)(mem. op., not designated for publication)(“While the record does not reflect whether the 

victim specifically consented to the call being recorded or just consented to law enforcement 

listening in on the call” consent to listen is the same as consent to interception thus making the 

tape admissible).

Nor would R.K.’s age automatically disqualify her from giving consent. Appellant relied

below on the TEX.CIV.PRAC.&REM.CODE ANN. § 129.001 (West 2011)(“The age of majority in 

this state is 18 years.”). He does not demonstrate why this definition controls here, and does not 

present any arguments about R.K.’s consent. We note that the Court of Criminal Appeals takes a 

flexible approach in Fourth Amendment consent issues regarding minors. In Limon v. State, 340 

S.W.3d 753, 757 (Tex.Crim.App. 2011), the court concluded that a teenager had apparent 

authority to give consent to the police to enter a house late at night. “Under given circumstances, 

and taking into account widely shared social expectations and commonly held understanding, it 

may be reasonable or unreasonable to believe that a child has authority to consent to a particular 

intrusion.” Id. [Omitting internal quotations]; see also Green v. State, No. 02-10-00082-CR, 

2011 WL 3426278, at *3 (Tex.App.--Fort Worth Aug. 4, 2011, pet. ref’d)(mem. op., not 

designated for publication)(sixteen year old under circumstances of that case could consent to 

seizure of material from defendant’s bedroom); Russell v. State, 739 S.W.2d 923, 927 (Tex.App.-

-Dallas 1987, pet. dism’d)(holding under circumstances of that case sixteen-year-old defendant 

freely and voluntarily consented to search of her residence).

4

The trial court here specifically stated that R.K. had consented to the recording when the 

 

4

Several federal circuits have upheld searches based on a minor’s apparent authority to consent to the search of a 

premises. Lenz v. Winburn, 51 F.3d 1540, 1548 (11th Cir. 1995)(nine year old child had authority to consent to her 

guardian ad litem’s entry into their grandparent’s home); United States v. Clutter, 914 F.2d 775, 779 (6th Cir.

1990)(search of a residence conducted with the consent of a defendant’s fourteen-, twelve-, and ten-year-old 

children was valid); United States v. Gutierrez–Hermosillo, 142 F.3d 1225, 1231 (10th Cir. 1998)(warrantless search 

by the police following their admission into the defendant’s motel room by his fourteen-year-old daughter was 

valid).
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court denied the motion to suppress. An implied finding supporting that ruling was that R.K. had 

the sufficient understanding and maturity to give that consent. Appellant does not attack that 

finding on appeal. Below, Appellant only contended that as a per se rule a minor could not 

consent to recording a conversation. Finding that contention at odds with Limon, we overrule 

Issue Two.

Having overruled Issues One and Two, we affirm the conviction below.

April 29, 2016

ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)