AFFIRMED and Opinion Filed December 31, 2021 

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In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-20-00223-CR ROBERT SAMUEL VEAL, Appellant V. THE STATE OF TE XAS, Appellee On Appeal from the 199th Judicial District Court Collin County, Texas Trial Court Cause No. 199-80509-2019 MEMORANDUM OPINION Before Justices Schenck, Smith, and Garcia Opinion by Justice Schenck Appellant Robert Samuel Veal ap peals his capital murder conviction following a trial before a jury. In tw o issues, appellant urges the evidence is insufficient to support his c onviction and the trial court erred in failing to suppress the seizure and search of his cell phone. We affirm the trial court’s judgment. Because all issues are settl ed in law, we issue this memorandum opinion. T EX

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. P. 47.4.–2– B ACKGROUND Kelli Underwood was brutally murdered in her home on or about September 17, 2017. Her daughter disc overed her body on September 20, 2017, when she went to check on her. The State’s theory of the case was that U nderwood was killed in a murder-for-hire plot that involved her em ployer and paramour, Ronnie Welborn, and his girlfriend, Kadie Robinson, engaging appe llant to carry out the plot. The jury was charged and instructed on the law of ca pital murder and party liability and found appellant guilty. This appeal followed.
D ISCUSSION I. Sufficiency of the Evidence In his first issue, appella nt challenges the legal suffi ciency of the evidence supporting his conviction.
A. Standard of Review We review the sufficiency of the ev idence under the standard set out in Jackson v. Virginia , 443 U.S. 307 (1979), and Matlock v. State , 392 S.W.3d 662, 667 (Tex. Crim. App. 2013). We examine all the evidence in the light most favorable to the verdict and determine whether any ra tional trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson , 443 U.S. at 319; Matlock , 392 S.W.3d at 667. We defer to the trier of fact’s determinations of credibility and may not substitute our own judgment for that of the fact finder. Brooks v. State , 323 S.W.3d 893, 899 (Tex. Cr im. App. 2010) (plurality–3– op.); King v. State , 29 S.W.3d 556, 562 (Tex. Crim. A pp. 2000). Juries are permitted to draw reasonable inferences from the evid ence, but they are not permitted to draw conclusions based on speculation. Hooper v. State , 214 S.W.3d 9, 15 (Tex. Crim. App. 2007).
B. Capital Murder and Law of Parties In this case the jury found appellant guilty of capital murder for remuneration. 1 A person commits the offense of capital murder if he commits the murder for remuneration or the promise of remuneration or employs another to commit the murder for remuneration or the promise of remuneration. T EX

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. § 19.03(a)(3), (b). A person is a cr iminally responsible party for an offense if the offense is committed by hi s own conduct, by the conduct of another for whom he is criminally responsible, or by both. Id. § 7.01. A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the othe r person to commit the offense. Id. § 7.02(a)(2). To determine whether an individual is a party to an offense, we look to “events before, during, and after the commission of the offense.” Wygal v. State , 555 S.W.2d 465, 468–69 (Tex. Crim. App. 1977). We al so look to circumstantial evidence to prove party status. Ransom v. State , 920 S.W.2d 288, 302 (Tex. Crim. App. 1994).

1 Remuneration is a reward give n or received because of some act. Beets v. State , 767 S.W.2d 711, 734 (Tex. Crim. App. 1987).–4– There must be sufficient evidence of an understanding and common design to commit the offense. Guevara v. State , 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). Each fact need not point directly to the guilt of the defendant, as long as the cumulative effect of the fact s is sufficient to support th e conviction under the law of parties. Id.
C. The Evidence Underwood, Robinson, and We lborn worked for the sa me company. Welborn was romantically involved with both women. Approximately nine months before her death, Underwood learned that Robinson was pregnant with Welborn’s child. Thereafter, Underwood began working fro m home because the office environment was uncomfortable. Welborn often pick ed up paperwork from Underwood at her home. Robinson took We lborn’s daughter from anot her relationship to an elementary school located near Underw ood’s house. From the school’s drop-off area, Robinson could see Underwood’s house and determine when Welborn was at her home. Text messages between Welborn a nd Robinson revealed Robinson was jealous over Underwood’s involvement with Welborn. On August 18, 2017, Robinson gave Welborn an ultimatum. She gave him a month to get rid of Underwood, or she was going to leave him. The initial plan to get rid of Underwood was to plant drugs in her truck and tip off the police so that she would be sent to prison. Welborn approached appellant–5– in this regard. Appellant was known to both Welborn and U nderwood as he had worked for Welborn and, beginning in late August 2017 until he r death, he was working for Underwood repair ing her pool and installi ng surveillance cameras on her property. On August 22, Welborn sent a text to Ro binson stating that appellant took the money, had the “stuff,” and ha d to place it in the truck. During that exchange, Robinson stated, “But I want you to promis e me that if this doesn’t work, you’re going to try the other.” It appears the plan quickly changed fro m planting drugs to killing Underwood. On August 26, appellant sent a message to an indivi dual named Delvin Powell stating that he had a job for him. In ea rly September, appellant sought out a “quiet” firearm while Powell sought out a .22-caliber firearm. On September 7, appellant told Powell that they “[h]ave to get it ASAP because Underw ood had just broke[n] the window of a friend’s truck with a two-m onth-old baby in it.” This reference was consistent with an alterc ation that had recently occurred between Robinson and Underwood. Powell res ponded, “Don’t forget to tell hi m nothing has been like said” and “he’s got to come off at least two mo re.” Powell clarified that he meant pay $2,000 or provide 2 ounces of drugs. Powell asked appella nt if he still had speakers hooked up at Underwood’s home . When appellant responde d in the affirmative, Powell explained that they could turn up the volume on the stereo, Powell could “go to work” and “come out lik e nothing happened.”–6– On September 10, appellant messa ged Powell, “Get pumped.” Powell responded, “All I ask is that you be 100, and we’ ll get her I’m pretty sure. I got the shells covered. Le t me know where you wanna meet so she can drop me off.” That same day, Powell messaged a nother person that he was going to be paid $2,500. On September 11, Welborn took Unde rwood’s keys and put them in her mailbox. On September 12, appellant told Robinson that she and Welborn were “going to owe him big.” That same day, Welborn asked Robi nson when “it” was going to happen, and Robins on responded that it was suppos ed to happen that night and that she was going to talk to appellant about it. On September 15, Robinson te xted Welborn that appellant “can easily get it done if he is sleeping on her couch.” We lborn advised Robinson that appellant was not going to do it, and Robi nson responded that Welbor n should tell appellant he wants the money back and he “better do the other like you said.” That same day, Underwood texted appellant that she wanted him to finish the backyard and that he should bring the cameras. Also, that day, Powell messaged his gi rlfriend that he was at the “mark’s” house putting an end to this and asked her to pray for him. And Powell messaged appellant’s wife , “If it needs to be done, I will do it. Not him. I’m doing this more for you and the kids first. Him second. Me third. Everything I do is for the sole purpose of everyone[’s] unity and survival. We are working hun. I swear. Trying to get it done ASAP.”–7– From September 15 to 16, appellant searched for information regarding a Uniden surveillance camera. Paperwork concerning this type of camera was found on Underwood’s bed after her death. On September 16, Welborn withdrew $4,000 from his personal bank account. On that same day, Powell showed up at the house of one of U nderwood’s neighbors. Powell and the neighbor were acquaintances from Powell’ s place of employment, a gas station. Powell was at th e neighbor’s house for two hour s and acted as if he were high on drugs. When Powell left the neighbo r’s house, he walked across the street to Underwood’s home. A su bsequent forensic study of Powell’s internet usage placed him in Underwood’s home on that day. Notwithstanding appellant’s waffling on September 15, on Septembe r 16, appellant communicated with Robinson eightyone times and continued to comm unicate with her thereafter. At 9:00 a.m. on September 17, U nderwood’s alarm company sent a notification that her monitor was no longer working. On September 20, Unde rwood’s neighbor saw Po well walk out of Underwood’s house but did not see Unde rwood, which was unus ual because she usually walked her guests out. A ma n and a woman carrying a baby carrier accompanied Powell. Underwood’s daughter tried to contact her mother on September 19 and 20 but received no response. On Septembe r 20, she went to Underwood’s home to check on her. When she arrived, she found the front door unlock ed and her mother’s–8– body on the floor in her craft room. She had been shot and stabbed. Music was playing on the television. The genre of music playing was not typical of the music Underwood listened to. In addition, items had been knocked over and dishes and food were left out in the kitchen, which was unusua l as Underwood kept a tidy hom e. The drawers in the bedroom were opened and a glass bowl had been knocked to the floor. The only item Underwood’s daughter could tell wa s missing was a monitor for the surveillance cameras. Unde rwood’s daughter called 9-1-1 at 6:14 p.m., followed by a call to Welborn at 6:20 p.m. Welborn then called appellant and Robinson. A sheriff’s deputy collected vari ous items from Underwood’s house, including spent .22-caliber cartridge casi ngs, eating utensils, and cigarette butts. Appellant’s DNA matched the DNA on one of the utensils. Powell’s cell phone was seized, and one of Underwood’ s cell phones was collected at the scene. After the police finished their investigation of the house, Underwood’s daughter cleaned the house and found drug paraphern alia and a clear substance behind the dresser. She disposed of the substance.
D. Analysis Appellant claims the evidence showed that Underwood’s daughter and her daughter’s boyfriend had a motive and opportunity to be perpetrators of the crime. The jury heard about the sometimes-vol atile relationship be tween Underwood and–9– her daughter, 2 text messages between the two, and the lead investigator’s view that Underwood’s daughter was not a suspect. Th e jury weighed this evidence against the evidence of others’ being involved and found appellant guilty . We must defer to the jury’s resolution of any evid entiary conflict in this regard. Wise v. State , 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). Next, appellant urges that Robinson a nd Welborn were the actual offenders and that there was no evidence that there was a prior or contemporaneous plan to commit the murder. We disa gree. The evidence estab lished that days after the ultimatum, Robinson and Welbor n discussed appellant over text messages. Shortly thereafter, appellant message d Powell telling him that he had a “job” for him, and then both men sought out guns. Powell s ought out the same caliber handgun that was used to kill Underwood, and appellant separately sought out a “quiet” gun. Powell also told appellant that he shoul d crank up the music while he got the job done, and when Underwood’s da ughter entered the house, there was a television paused on techno music, which Underwood did not listen to. Underwood was believed to have been killed betwee n September 16 and 17. A truck rented to appellant was seen at Underwood’s house in the days leading up to her murder. On September 15, Powell me ssaged his girlfriend that he was at the

2 Underwood’s daughter indicated that she and her moth er had petty arguments, her mother was arrested for assaulting her in June or July before her death, her mother kicked her out of the house and took away her car. She recalled telling her mother that she and her boyfriend were going to do a drive-by, but she could not recall when she told her this.–10– mark’s house putting an end to this. Powe ll messaged appellant’ s wife about doing “it.” Powell was seen at Underwood’s house on September 16. Forensic evidence placed both appellant and Powell in Underwood’ s house near the time of her death. Underwood’s neighbor saw Powell at Underwood’s house walking with a man and a woman carrying a baby carrier the same day that her body was found. Underwood’s daughter made the 9-1-1 call at 6:14 p.m. and called Welborn at 6:20 p.m.; Welborn then called a ppellant and Robinson. Appe llant was the only person connected to Powell. All communications with Powell came through appellant. We conclude that based on the events before, during, and after the commission of the offense, the jury could rationally in fer that appellant, ac ting with intent to promote or assist the commission of the o ffense, solicited, encouraged, directed, aided, or attempted to aid others in committing the offense. Accordingly, the evidence was sufficient to support appella nt’s conviction as a party to capital murder. We overrule appellant’s first issue.
II. Motion to Suppress In his second issue, appellant asserts th e trial court erred in denying his motion to suppress the seizure and search of his phone without a warrant in violation of the Fourth Amendment of the United States C onstitution and Article I, Section 9 of the Texas Constitution. U.S. C ONST . amend. IV; T EX

. C ONST . art. I, § 9. The record–11– establishes a warrant issued for the search of appellant’s phone, and only the seizure of same is at issue here.
A. Standard of Review and Legal Principles We review a trial court’s ruling on a motion to suppress applying a bifurcated standard of review, giving almost total defe rence to a trial court’s determination of historic facts and mixed questions of law a nd fact that rely upon the credibility of a witness, but applying a de novo standard of review to pure questions of law and mixed questions that do not depend on credibility determinations. Martinez v. State , 348 S.W.3d 919, 922 (Tex. Crim . App. 2011). When, as he re, the trial court does not make explicit findings of fact, we view the evidence in the light most favorable to the trial court’s ruling and assume the trial court made impl icit findings of fact supported by the record. Lerma v. State , 543 S.W.3d 184, 190 (Tex. Crim. App. 2018). We will sustain the ruling of the tria l court if it is correct under any applicable theory of law. Id. The Fourth Amendment guarantees individuals “the right . . . to be secure in their persons, houses, papers, and effect s, against unreasona ble searches and seizures.” Gutierrez v. State , 221 S.W.3d 680, 684–85 (Tex. Crim. App. 2007); see U.S. C ONST . amend. IV. The Texas Constituti on similarly provide s: “The people shall be secure in their persons, ho uses, papers and possessions, from all unreasonable seizures or searches . . . .” T EX

. C ONST . art. I, § 9. Generally, the seizure of an individual’s personal property is per se unreasonable within the–12– meaning of the Fourth Amendment unless th e seizure is accomplished pursuant to a judicial warrant issued upon probable cause and particularly desc ribing the items to be seized. United States v. Place , 462 U.S. 696, 701 (1983); Kothe v. State , 152 S.W.3d 54, 59 n.10 (Tex. Crim. App. 2004). But there are exceptions to the warrant requirement. Missouri v. McNeely , 569 U.S. 141, 148 (2013); State v. Villarreal , 475 S.W.3d 784, 796 (Tex. Crim . App. 2014). A well-rec ognized exception applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search or seizure is objectively reasonable under the Fourth Amendment. Weems v. State , 493 S.W.3d 574, 578 (Tex. Crim. App. 2016). Once a defendant establishes that a se arch or seizure wa s conducted without a warrant, the burden shifts to the State to prove that the search or seizure was reasonable. See Ford v. State , 158 S.W.3d 488, 492 (T ex. Crim. App. 2005). The State can meet this burden by showing the existence of exigent circumstances and that the officer had probable cause for the seizure. Gutierrez v. State , 585 S.W.3d 599, 609 (Tex. App.—Houston [14t h Dist.] 2019, no pet.). The exigent circumstances test is met if the risk of the item’s disappearance before a warrant may be obt ained outweighs the suspect’s interest in possession. Place , 462 U.S. at 701. For example, an exig ency could be shown if a suspect has control over easily disp osable evidence. See McNeely , 569 U.S. at 153. To determine whether a law enforcement offi cer faced an emergency that justified acting without a warrant, we look to the totality of the circumstances. Id. at 149.–13– In addition to proving exigent circumstan ces, the State must also prove that the officer had probable cause to associat e the property with criminal activity. Tex.
v. Brown , 460 U.S. 730, 741–42 (1983). Proba ble cause is not a high bar. Dist. of Columbia v. Wesby , 138 S. Ct. 577, 586 (2018). Proba ble cause obtains if the facts available to the officer w ould warrant a person of reas onable caution in the belief that certain items may be useful as evidence of a crime. See Brown , 460 U.S. at 742. “Because probable cause deals with proba bilities and depends on the totality of the circumstances, it is a fluid concept that is not readily, or even usefully, reduced to a neat set of legal rules.” Wesby , 138 S. Ct. at 586 (quotations and citations omitted). A practical, nontechnical probability that in criminating evidence is involved is all that is required. Brown , 460 U.S. at 742. The State doe s not need to show that the officer’s belief was correct or mo re likely true than false. Id. Probable cause requires only a “probability or substan tial chance” of criminal activity. Wesby , 138 S. Ct. at 586 (quotation omitted).
B. The Evidence Appellant established his cell phone was seized without a warrant. Thus, the burden shifted to the State to establish an exception to the warrant requirement. The State relied on the exigent circumstances exception. At the suppression hearing, Texas Range r Bruce Sherman testified that on September 28, 2017, he obtaine d a warrant to obtain a samp le of appellant’s DNA. At that time, Ranger Sherman was investig ating the case and had discovered that–14– there had been a great deal of elec tronic communication between Underwood and appellant in the days leadi ng up to Underwood’s death and that appellant had rented a black truck that had been seen at Unde rwood’s home. He did not have a warrant to seize appellant’s p hone at that time. Ranger Sherman interviewed appellant wh ile he was at his home collecting appellant’s DNA. The interview lasted for approximately two hours. Two other officers were present during most of the time as well as appellant’s wife and infant child. During the interview, Ranger Sherma n asked appellant not to be on his phone and appellant indicated his phone would cont ain incriminating evidence, specifically regarding drug activity. A ppellant admitted to Ranger Sh erman that he had cleared his phone the day before and that he r outinely does so. Ranger Sherman explained that while deleted content can sometimes be recovered from cell phones, it is not always possible, and an en tire phone can be reset. Ra nger Sherman as ked appellant for his phone. Appellant’s wife object ed to appellant turning over the phone claiming the phone contained nude photogra phs of her. Appellant, meanwhile, refused to turn over the phone claiming he needed it for work. Ranger Sherman represented that, if appellant turned ove r the phone, officers would not look at the photographs of appellant’s wife and he would do his best to have the phone returned to appellant the following day. Appellant asked, “[W]hat if I say no?” The response was, “[W]e will take it by force.” Appellant gra bbed his phone and started–15– manipulating it. At that point, Range r Sherman determined that exigent circumstances existed.
C. Analysis Appellant does not contest Ranger Sherman’s testimony concerning numerous text messages be tween appellant and Underw ood, the possibility of incriminating evidence on the phone, and th at appellant routin ely deletes content from his phone. Appellant, relying on King v. Kentucky and Turrubiate v. State , asserts the exigency exception requires th at the record show proof of imminent destruction based on affirma tive conduct and the record does not contain evidence appellant was actively deletin g evidence from his phone. King v. Kentucky , 563 U.S. 452, 460 (2011); Turrubiate v. State , 399 S.W.3d 147, 151 (Tex. Crim. App. 2013).
But King and Turrubiate were warrantless search cases, not warrantless seizure

cases. A seizure does not invade the same sort of privacy interests as a search. See Cruse v. State , No. 01-13-00077-CR, 2014 WL 3607250, at *2 (Tex. App.— Houston [1st Dist.] July 22, 2014, pe t. ref’d) (mem. op., not designated for publication). In fact, the prohibition on unreasonable seizures is distinct from the prohibition on unreasonable searches. United State v. Jacobsen , 466 U.S. 109, 113 (1984). “A ‘seizure’ of property occurs wh en there is some meaningful interference with an individual’s possessory interests in that property.” Id. “A ‘search’ occurs when an expectation of privacy that societ y is prepared to consider reasonable is–16– infringed.” Id. Accordingly, neither King nor Turrubiate is controlling or instructive here. Viewing the evidence in the light most fa vorable to the trial court’s ruling, the court could have concluded appellant routinely deleted content from his cell phone, including the day before the phone was seized, and when a ppellant believed the officers were going to seize his phone, he began to manipulate it in a manner that led Ranger Sherman, an expe rienced law enforcement officer, to believe he intended to destroy probative evidence. We conc lude, under these circ umstances, the State showed exigent circumstances for seizing the phone and established the phone might contain evidence of a crime. See McNeely , 569 U.S. at 153; Gutierrez , 585 S.W.3d at 610 (holding exigent circumstances exis ted to seize cell phone where trial court could have found Gutierrez wa s manipulating gallery sec tion of his phone and was in control over easily disposable evidence) . We overrule appellant’s second issue.
C ONCLUSION We affirm the trial court’s judgment.

D O N OT P UBLISH T EX

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. P. 47 200223F.U05 /David J. Schenck / DAVID J. SCHENCK JUSTICE–17– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ROBERT SAMUEL VEAL, Appellant

No. 05-20-00223-CR V. THE STATE OF TEXAS, Appellee On Appeal from the 199th Judicial District Court, Collin County, Texas Trial Court Cause No. 199-80509- 2019. Opinion delivered by Justice Schenck. Justices Smith and Garcia participating. Based on the Court’s opinion of this da te, the judgment of the trial court is AFFIRMED

. Judgment entered this 31st day of December, 2021.