Affirmed and Memorandum Opinion filed August 29 , 2023.

In The 

## Fourteenth Court of Appeals

NO. 14

- 22

- 00331

- CR

JEFFERY ANDRE MCDONALD , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 232nd District Court

Harris County, Texas Trial Cou rt Cau s e No. 1599898

MEMORANDUM OPINION
A jury found a ppellant Jeffery Andre McDonald g uilty of murder and found

true a ppellant ’ s plea s of “ true ” to prior felony convi ctions for (1) delivery of
cocaine and (2) possession with intent to deliver coc aine

. S ee T e x. Pen . Code Ann. § § 19.02(b)(1) ; Texas Controlled Subst ances Act, Tex. Health & Safety Code Ann. § 481.112. T he jury assessed punishment at imprisonment for life

. See Te x. Pen

. Code Ann. § 12. 4 2 (d)

.
In a two i ssue s on appeal, app ellant arg u es ( 1 ) the t rial co urt erred in2

denying his motion t o su ppr ess the search warrant becau se it was supported b y probable cause and (2) he was har med by the introduc t ion of the cell phone

g eolocation data

. We affirm.

I. B ACKGRO UN D In 2018, appellant wa s dating Rebecca “ Beck y ” Suhrheinrich , who lived in

an a partment comp lex

. O n Ju l y 30 , 2018, the apartment complex ’ s “ courtesy patrol officer ” received a welfare call to check on Becky. 1 After knocking on the door and receiving no response, the “ courtesy patrol officer ” knocked down the
locked door and saw “scattered blood o n the wa l l

. ” The “ courtesy patrol officer ”

searc hed the apartment and did not fin d Becky

. O n July 31
, afte r news coverage of Becky ’ s disappearance, appellant ’ s sister gave detectives information that led them to Greens Bayou Bridge
, where they found Becky ’ s tor so w rapped in a bed sheet under the bridge . Becky ’ s head, arms,
and legs were dismembered from her to rso b y what appeared to be a saw. Beck y ’ s cell phone was late r found in the landfill where her apartmen t complex d umped its
trash.
On August 1 4, Inve stigat or C rain applied for a search warrant dire cted at
ap pellant ’ s cell ular ca rrier to obtain the call records and geolocation data for

app ellant ’ s cell pho ne . In the search

- warrant affidavit, Investigator Cra in swore to
the fol lowing:

• Crai n spoke with Be cky ’ s empl oyer, Demetria G oode, who told him tha t Becky did not show up for work on July 27th or 30th. Becky last left work at 5:07 p.m. on July 26, 2018, and was picked up by her boyfriend, known to Ms. Goode only as “Jeff” or “Jeffrey,” who was driving her bla ck 2 018 For d Escape SUV.

1 It is unclear f

ro m the record i f the “ courtesy patrol of ficer ” is a peace officer.3

• Goode contacted B ecky ’ s apartment complex because it was unlike Becky not to show up for work. The courtesy patro l officer conducted a welfare check on Becky ’ s apartment and disco vered the crime scene.

• Crain spoke with Becky ’ s upst airs neighbor Bria na Talford, who m he foun d to be credible and reliable. Briana said she heard loud noises coming from Becky ’ s apartment the night of July 26th. Her roommate had also heard a female voice yell
, “ H elp me!”

• The GPS data for Becky ’ s cel l phone
, wh ich Crain lawfully obtained
, show ed th at at around 8:00 a.m. on July 28 , Becky ’ s phone was in or near a landfill in Lake Jackson, Texas operated by the same company that provided trash service to Beck y ’ s apartment complex.

• Cra in learned that a pp ellant h ad been dating Becky and was the

man who had picked her up from work o n July 26th and had been driving her SUV.

• Crain interviewed Felicia Fuller, w ho lived in the same apartment complex as Becky and had previously dated

a ppellant

. She said that a pp ellant visi ted her apartment on July 30th an d was acting “very strange.” She also claimed that appellant had his cell phone with him when he left her apart ment

.

• On July 31st, Crain interviewed a ppellant ’ s sister
, Roshawnda
, who told Crain that on July 28 th
, she p icke d u p a ppellant from a p ark and g a ve hi m a ride to her sister ’ s house. There,

a ppellant acted “very peculiar” and asked Roshawnda for a Clorox wipe , bleach, and latex gloves. Roshawnda said

a ppellant p oured ble ach into two water bottles an d asked her to drive him back to t he park. While on the way, a ppellant asked her to stop the car ; a ppellant exited the car and walked under the b ridge that crosses Greens Bayou. After a few minut es,
a ppellant returned
, and she drove him to the park. Roshaw nda

rec ogni zed Becky from a telev i sion news repor t as the woman

a ppellant had been dating and worried that appellant might be responsible for Becky ’ s disappearance. Roshawnda to ld Crain that a ppellant generally o wned a nd used a cell phone

.4

• After speaking w ith Ros hawn da, Crain went to the bridge and disco vered a white fem ale ’ s torso under the bridge wrapped in a bed sheet. The remains had not yet been identified.

• Crain swore that a ppellant ’ s cell u lar si te data records an d geolocation information from the dat es of J uly 1, 2018 to August 1, 2018 would “const itute evidence of t he offense of Murder.”

• Specificall y, Crain claimed that the records “ may show contact with someone who may have been present as a witness at the time of this murder, and/or have informatio n curre ntly unknown to law enforcement about this murder.” Additiona lly, he asserted the records would show “the calls to and from [ a ppellant ’ s] cellular phone during and immediat ely after the incid ent under investigat ion.” Appellant filed a motion to supp ress th e ge olocation data from his cell phone, ar guing that the search

- wa rrant affidavit did not provide sufficient fa cts to
suppor t probable cause. More specifically, appellant argued that Crain ’ s affidavit : (1) faile d to allege facts indicating that appe llant w as i n possession of his phone
when the off

e nse was com mitted and (2) d id not set out why geolocation information would be relevant to the investigation

. During the tr ial, the tria l c ourt h eld a brief hearing on the motion to

suppress . A ppe llant ’ s cou nsel expan ded on the second argument:
[W]hen it comes to the [ geolocation information , Crain ] does not provide any information within the four corners as to what that is

su pposed to sho w.

. . . Wha t he would have to s ay is .

. . There ’ s a cell t ower. P hone s connect to cell towers. That will gi ve you locations and ba sed upon that we can determine what the location of that phone ’ s going to be at different times. There ’ s your r elevance. And that ’ s

. . . what they want thi s evidence for, is to put th e phone at the apartment where the complainant li ved and to put the phon e in the area where the torso was found. And that ’ s what they don ’ t provide, how you get to that point.5

The tr ial court reje cted appellant ’ s argument, reaso ning : [I]t sound[s] like he maybe [ Cra i n ’ s] looking for corroboration as to

w hether or not Ms. Ful ler was in contact with the defendant on July 30th, may have been a witness to the murder or have information

a bout the murde r.

. . . I think it does specify that locati on that could sho w conta ct w ith someone who may have been present as a witness at the t ime of this murder coupled with the fact that he said the defendant was in possession of a cellular phone on Ju ly 30th, 2018. I think it gets the State across the hurdle and it ’ s a fine line

. . . And [geolocation
, ] I think it ’ s a comm on enough used term t hat I think it gets us there

. . . [T]he way I read this in total I think it ’ s a close call. But I think it gets the State the re to allow that information to c ome in based on the warrant. So I h ave to deny the motion to suppress and all ow that to come in.

A ppellant ’ s counsel objected and asked for a running objection to the geolocation evidence from his cell phone ; th e trial court did not explicitly rule on
his objection . A fte r trial resum ed, a pp ell ant ’ s counsel stated
, “ we have no objections ” w hen the geolocation data was introd uc ed into evidence by Erin Havelka, a c rimin al i ntell igence a nalyst

. At the beginning of the next day of trial, and outside the pre sence of the jury, appel l ant ’ s co unsel a sked the tr ial court to clarify for the record t h at th ere was a running objection to th e geolocation
evidence
, “

just for purposes of preserving that issue ” for appeal. The trial court

rema rked :
It was the Co urt ’ s und ersta ndi ng that on Ms. H avelka ’ s testimo ny in regards to any location data of any cell p h one, was objected to, and the Court di d understand that that objection would be running throughout the entirety of Ms. Havelka ’ s testimony, and it was my opin ion that was f

or expediency ’ s sak e to not object during her testimony. So, I considered it as hav i ng been objected to based on the

conve rsation we had previously. Ap pellant filed a timely notice of appeal.6 II. A N ALYSIS

In two issues
, a ppellant contends ( 1 ) the trial co urt e rred in denying his
motion t o su ppr ess the search warrant becau se it was supported b y probable cause and (2) appellant was har med by the introduc t ion of the cell phone g eolocation
data

. A

. Preservation of error

Before we re a c h the merits of issue 1
, w e fir st address the State ’ s argu ment tha t appellant failed to preserve t he issue for app e llate review

. In General

. As a prerequ isite to presenting a complaint for appellate review, the record must show that: (1) the com

plaint was made t o the trial court by a timely request, objection, or mo tion tha t: (A) stated the grounds for the ruling that t he c o mplaini ng party sought from the trial court with sufficient specificity to make the trial court aware of the complain t, unless the specific grou nds were apparent from the

con text; and (B) complied with the requ i rements of the Texas Rules of Evidence o r the T e xas Rules of Civil or Appellate Proced ure; and (2) the trial court: (A) ruled on the request, objection, or motion, either expressly or im plicitly; or (B) refu sed to rule on the request, ob j ection, o r motion, and the complaining party objecte d t o t he refusal. Tex. R. App. P. 33.1 (a)

.
H ere, as outlined above
, d e fen se counsel objected

— and asked for a running objection

—

to the geolocation d ata from his cel l phone

. The State ci tes to a case7

fro m our cou rt f

or the proposition that even if a running ob j ection has been requested, error can s till be waived if the party affi rmatively states “ n o objection ”
when the evidence is later introduced

. See Jones v. State , No. 14

- 08

- 00869

- CR
, 2010 WL 26527, at *2 (Tex. App.

— Houston [ 14th Dist.] Jan. 7, 2010, no pet .) (mem. op., not designated for publica tion) . However, in Jones , we no ted an exception to th a t general rule, observin g that error is not waiv ed when the trial court exp ressly state s on the record tha t it cons iders the issue to be preserved for appeal. See i d. M o re import antly, the c ourt of c rim inal a ppeals has explained that
whether a statement of “ no objection ” waive s earlier

- preserved e rror is “ context

dependent ” : [A] n appell ate c ourt should not focus exclus ively on the statement itself, in isolation, bu t should consider i t in the context of t he entirety of the record . If the record as a whole plainly demonstrates that the defendant did not intend, nor did the tr ial cou rt cons true, his “no objection” statemen t to constitute an abandonment of a claim of er ro r that he had ear lier preserved for ap peal, then the appellate court should not regard the claim as “waived,” but should resolve it on the merits.

Thomas v. State , 408 S.W.3d 877, 885 (Tex. Crim. App. 2013)

. Under the Thomas framework, it is clear appell an t did not intend, nor did the
trial co urt construe, appell ant ’ s statement of “ no objection ” to constitute an abandonment of his c laim of error regarding the motion to su ppress. Se e id. Having
concluded that appellant did not waive error, we now address i ss ue 1

. B. Standard of r eview and a pplic able l aw

W e review a trial court ’ s ruling on a motion to suppress eviden ce under a
bifurcated standard of review. See Ler ma v. St ate , 543 S.W .3 d 184, 189

– 90 (Tex.
Crim. App. 2018). At a motion

- to

- suppress hearing, th e trial court is the sole trier
of fa ct and judge of credibility of witnesses and the weight to be given to th eir8

testimony. See id. at 1 90

. Therefore, we afford almost complete def er ence to the
trial court in determi ning historical facts. See id. ; State v. Kerwic k
, 393 S.W.3d 270, 273 (Tex. Crim. Ap p. 2013)

. A trial court ’ s ruling will be sustained if it is reasonably supported by the record and correct under any theory of law a ppli ca ble
to the case

. Laney v. State , 1 17 S.W.3d 854 , 857 (Tex. Crim. App. 2003).
Howe ve r, we review de novo mi xed questions o f law and fact that do not rely on

an evaluation of credibility and demeanor. See id.
When the trial court does not make explicit fin d ings of fact, as in the case
before us, we view the evidence in the light most fav or able to the trial court ’ s ruling and a ssume the trial court made implicit f indings of fact supported by the
record. See Ler

ma , 543 S.W.3 d at , 1 90

.
Because a cell phone ’ s geol oc ation data can contain “a detailed and comprehensive record of [a] person ’ s movements,” the police must obtain a warrant, supported by probable cause, for seven or mor e days of such data

. See Carpenter v. Un ited States
, 138 S. Ct. 2206, 2217
, n.3 (20 18); se e also Ho lder v.
State , 595 S.W.3d 691 , 703

– 04 (Tex. Crim. Ap p. 2020) (applying Carpenter to
Tex. Const

. a rt

. 1
, § 9 ). The search

- warrant application must “state the fa cts and
circum stances that provide the a pplicant with pr obable cause to believe t hat : (A ) criminal activity has been, is, or w il l be committed; and (B) searching the telephone or device is likely to produce evidence in the investigation of the
crimina l acti vity described in Paragraph (A).” T ex . C ode C rim

. P roc

. A nn

. art. 18.0215(c)(5)

. “Proba

bl e cause exists when, under the total it y of the circumstances, there is a f air probability that contraband or evidence of a crime will be found at a particular lo c ation .” State v. Baldwin , 664 S.W.3d 122, 130 (Tex. Crim. App. 2022)
, cert. denied , 1 43 S. Ct. 777 (2023)

. A reviewing cour t must “give great deference to a magistrate ’ s probable cause det e rmination to encourage9

police officers to use the warrant process .” Id.

In det ermining whether an affida vit provides pr obable cause to support a
search w arrant, an issuing c ourt and a revie wing court are constrained to the four
corners of the affidavit. See State v. McLain , 337 S.W.3d 268, 271 (Tex. Crim. App. 2011)

. “While a magistrate may not baselessly presume facts that the
af fidavit doe s not support, the magistrate is per mi tte d to make reasonable
inferences from the facts contained w ithin the affida vit ’ s ‘ four corners. ’ ” Forem an v. State , 613 S.W.3d 160, 164 (Tex. Crim. App. 2020). However, “ conclusory allegations alone are insuffi cient to su pport a f inding of probable cause.” Ba ld win , 664 S.W.3d at 132 . “Ultimately, the test is whether the affidav it, read in a

co mmo nsens ical and realistic manner and afforded all reasonable inferences from
the facts contai ned within, provided the magistrate with a ‘ sub stan tial basis ’ for the
issuance of a wa rr ant.” Foreman , 613 S.W.3d at 164.

T he admission of evid ence obtained in viola tion of the Fourth Amendment is
reviewed for harmless error. See Hernandez v. State , 60 S.W.3d 106, 108 (Tex. Crim. App. 2001). Under tha t standard, a conviction must be rever se d “unless the court determines beyond a reasonable dou bt that the error d i d not contribute to the conviction.” Tex. R. App. P. 44.2(a).

C. M o tion to suppress

1. Posse ssion of cell phone immediately before, during, o r after the alleged offense Appellant re l ies on Baldwin to claim that the search

- warrant affidavit in the

prese nt case was not supporte d by probable cause because it did not provide any evidence tha t appella nt possessed his cell phone immediatel y before , d uring, or
af ter the alleged murder. Se e Baldwin
, 664 S.W.3d at 135

. Howeve r , Baldwin does

not s tand fo r the general pro position tha t to be supported by probable cause
, a10

search warrant affidav it must provide fac ts t hat the defendant carried a cell phone
b e fore, during, or aft er the commission of the a ll eged crime. Instead, the court in
Baldwin summa rized its conclusion as follows:

Is generic, boilerplate language about cell phone use among criminals sufficient to est ablish probable cause to search a cell p h one? We hold it is n ot. Instead, specific fact s connecting the items to be searched to the alle ged o ffense are required for the mag istrate to reasonably determine probable cause.

. . . Id. at 134

. Ultimately
, t he court in B aldwin concluded that the affidav it in q uestion was not suppo r ted by probable ca use bec au se it relied on generic “boil erplate la nguag e ”
tha t it “ is common for s uspects to c ommunicate about their plans via text messaging, phone calls, or through other c ommu nication applicat ions. ” I d. at 12 6

. T he c ourt then deta iled th e affida vit ’ s lack of fact s connect ing the cell phone to the
all eged offense:

The af fidavit contain s nothing about t he phone being used before or during the offense. Suspicion and conjecture do n o t constitute probable cause, an d “the f acts as recited in the aff

idavit in this cause
ev idence nothing more than mere suspic ion.” Therefore, the magistrate err ed by substitutin g the evidentiary nexus for the officer ’ s training and experience and generaliz e d belief that suspects plan cri mes usin g their phones. The boiler plate language in its el f is not sufficient to provide proba ble c ause in this case, nor does th e remaining affid avit set forth details in sufficient facts to support probable cause. Consideri n g the whole of the affidavit, t here is no information included th at suggest anyt hing b ey ond mere speculation that Appellee ’ s cell phone was used before, during
, or after the cr ime.

Id. at 135 (internal q uotations omitted).

Months a fter Baldwi n was issued, t his court issued Stocker v. St ate , w hic h is procedurally similar to the present case

. See 65 6 S.W.3d 887, 899 (Tex. App.

— Houston [14th Dist.] 2022, pet. granted)

. St ocker was c harged with murder and11

filed a motion to suppress s ite

- location information associate d with his cell phone.
Th is court observed that :
a mere desire to learn the movem ents or locati on of a sus pect is not sufficient probable cause to obtain cell site loca tion i nformation from a suspect ’ s wireless carrier. The re must be some factual basis i n the affi davit providing a fair probability that law enforcement could expect to f

ind inculpator y loca tion information evidence from the carrier indicating that a specif ic per son committed a particular offense.

Id. at 906

– 07

. Then, analyzing the probable

- c ause affidavit fo r the sea rch wa rr ant , this court concluded that the affidavit was supported by probable cause:

C onside ring the four corners of the affidavit, we conclude that it contains sufficient factual as sertions from which the district judge

c ould reasonably determine there w as a fa ir pr ob ab ility that the location data relating to appellant ’ s phone would provi d e evid ence of the murder described in the affidavit and that appellant committed the

m urder. Alt hough the affidavit does contain some co nclusory statem ents, it also inc l udes ad ditio na l facts establishing the requisite nexus between the murder and the elec t ronic records to be searched. In particular, the affidavit contains facts conclusively linking

a ppellant to the murder weapon

— a handgun

— thereby connect ing appellant to t he spec ific lo ca tion of the murder. Thus, the facts contained in the affidavit give ri s e to a fair probability that a search of T

- Mobile ’ s cell site location information ass ociated wi th appellant ’ s phone would reveal inculp atory evidence that a particular person, appe ll an t, committed the murder because the location of his Samsung phone woul d be pl aced at or near the murder scene at the relevant time.

Id. at 908

. The search

- w arrant a ff

idavit in the present case is much more akin to the
aff idavit we approv ed of in Stock er t han the affidavit in Baldwin

. Crain did more than simply assert boilerp late l anguage concerning how crimi nals use cell phones.12

Based on the facts asserted in Crain ’ s a ffi d avit : Becky was last seen leaving he r place of empl oyment with appell ant ; ap pella nt ’ s ex

- girlfriend , who lives in the same apartment complex as Becky, told Crain that ap pellant was acting strange when he visited her apartmen t several days aft er Becky ’ s disappearance ; o n July 28, appellant ’ s sister picke d u p appellant from a park a nd dr ov e him “ to her sister ’ s home ” ; after asking his sister for a Clorox wipe
, ble ach, and latex gloves, appellant
asked her to return him to the park , where appellant then walke d under the nearby bridge ; and Becky ’ s c orpse was locat e d under the sa me brid ge

. S tated d ifferently, the test is not whether the State alleged facts showing tha t the defendant possessed a cell phone before, during , or after the alleged offense,
b ut “ whethe r the affidav it, read in a commonsensica l and realisti c manner and
aff orded a ll re asona

bl e inferences from the facts contained within, provided the magistrate w ith a ‘ substantial basis ’ for the issuance of a warrant.” Foreman , 613
S.W.3d at 16 4. We concl ude that t he facts contained in the affi davit give ris e to a fair probab ili ty that the wireless carrier ’ s g eo location information associated with appellant ’ s cell phon e would reveal inculpatory evidence that a particular person, appellant, committ ed the murd er because the location of his cell phon e would be pla c ed at or near b oth the mur der sc en e

— B ecky ’ s apartment

— and the location
where the torso was recovered

— unde rneat h the bridge

— at the relevant times.

2. Explanation of g eolocation data
Appellan t next argues th at the affidav i t was i nsufficient because it di d not explain what geolocation data is or how it would connect him to the murd er . But appellant does not cite to any cases that have required a search warrant affidavit to specifically explain what geolocation data is. Furt h ermore, in Sto c ker , this court
conclude d ( 1 ) the af

fidavit contain ed sufficient factual ass ertions from which the district judge could reasonably determine there was a fair probability that the13

geo location dat a from defendant ’ s ce ll phon e wo uld p ro vide evidence of the
murder described in the af fidavit and (2) the defendant committed the murder
, despite the affidav it not defining geolocation data. See Stocker, 656 S.W.3d at 908

. We also note that the controll ing statutory a uthority f or obtaini ng a se ar ch warrant of geolocation data imposes no r eq uirement of defining geolocation data : ( b) A se arch warrant may not be issued under this article unless the sworn affidavit required by Article 18.01(b) provides suffi cien t and subst antial fac ts to es ta blish p robable cause that: (1) a specific offen se has been committ ed; and (2) the electronic customer data sought: (A) constitutes evidence of that offense or evidence that a particu lar person com mitted that offense; an d (B) is held in electronic storage by t he service provider on which the warrant is served under Articl e 18B.355( c).
T ex. Code Crim. Pro. Ann. art. 18B.354

. T hus, like our discussion above
, the test
here fo r prob able cause is not guided by wh ether t he State defined geolocation data
in the affid a v it, but “ whether the affidav it, read in a commonsensical and r ealistic
manner and afforded all reasonable inferences from the facts contained with in, provided the magi stra te with a ‘ substantial basis ’ for th e issuance of a warrant.”
F oreman , 613 S.W.3d a t 164.

T he search

- warrant affidavit in the present case provided substa ntial facts
establis hing that a specific off ense had been committed

— murder

— and that the
electro nic data sought constituted evid ence of t hat murder. See Tex. Code Cr im.
Pro. Ann. art. 1 8B.354

. Therefore, w e conc lude that the affidavit provides probab le

cau se to support issuance of a sear ch warrant. See Baldwin
, 664 S.W.3d at 13 0 ; s ee also Stocker, 656 S.W.3d at 9 08

. According ly, the t rial court d id not err in denying appellant ’ s motion to su p press ev idence obtai ned from the search of the cellular

carr ier ’ s records

. See Lerm a , 543 S.W.3d at 189

– 90

. W e o verrule issue 1

.14

Be cause we have concluded the trial court did not err , we need not address
i s sue 2 , which addresses harm

. Tex. R. App. P. 471.

II I. C ONCLUSION

We affi rm the judgment of the trial court as challenge d on appeal

.

/s/ C harles A. Spain Jus tice

Panel consists of Chief Justice Christopher a nd Justice s Jewell and Spain

. Do Not Publish

— Tex. R. App. P. 47.2(b).