Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-19-00084-CR

Gabriel MARTINEZ,

Appellant

v.

The STATE of Texas,

Appellee

From the 379th Judicial District Court, Bexar County, Texas

Trial Court No. 2016CR7552

Honorable Ron Rangel, Judge Presiding

Opinion by: Irene Rios, Justice

Sitting: Sandee Bryan Marion, Chief Justice

Rebeca C. Martinez, Justice

Irene Rios, Justice

Delivered and Filed: October 14, 2020

AFFIRMED

Appellant Gabriel Martinez appeals his conviction for the offense of murder. In a single 

issue, Martinez contends the trial court erred by admitting evidence extracted from a cell phone 

without the benefit of a search warrant. We affirm.

BACKGROUND

On May 18, 2016, San Antonio Police Department (“SAPD”) dispatched officers to 

respond to an emergency call for a shooting in progress. When officers arrived at the location, 

they found Martinez and the complainant, Lori Ortiz, lying on the bedroom floor. Both suffered 
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gunshot wounds. Paramedics transported both Martinez and Ortiz to the hospital, but Ortiz did 

not survive. The medical examiner later determined Ortiz “died as a result of multiple rifle 

wounds.”

Sergeant Seferino Alvarado obtained a search warrant for Martinez and Ortiz’s home and 

delivered the warrant to the location prior to officers processing the crime scene. The warrant

contained language providing for, among other things, the “collection of any cellular phones . . .

or any other electronic devices that would help in the establishment of the crime.” Detective Timm

Angell found a cell phone under a pile of bloody women’s clothing on the floor of the bedroom 

where the shooting took place. According to Detective Angell, the cell phone “was powered up”

and “[t]here was no lock code on it ... .” To determine if the cell phone belonged to Ortiz, 

Detective Angell engaged the cell phone, and opened a folder labeled “selfies.” In that folder, 

Detective Angell found “selfie” photos of Ortiz, and concluded the phone belonged to her. He 

collected the phone pursuant to the original search warrant and submitted it to the lab for a forensic 

download.

Ultimately, the State charged Martinez with causing Ortiz’s death. The jury found 

Martinez guilty of the offense of murder, and based upon the jury’s recommendation, the trial court 

sentenced Martinez to ninety-nine years’ imprisonment. This appeal followed.

ANALYSIS

In his sole issue, Martinez contends the trial court erred by admitting evidence extracted 

from Ortiz’s cell phone without a search warrant. The State responds that Martinez lacks standing 

to challenge the search of the cell phone because the cell phone does not belong to him and he 

does not have an expectation of privacy in the cell phone’s contents.
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Standard of Review

We apply a bifurcated standard to review a trial court’s denial of a motion to suppress 

evidence. Lerma v. State, 543 S.W.3d 184, 189-90 (Tex. Crim. App. 2018). “[W]e afford almost 

complete deference to the trial court in determining historical facts” but we review de novo the 

trial court’s application of the law to the facts. Id. at 190; Wade v. State, 422 S.W.3d 661, 667 

(Tex. Crim. App. 2013). When, as here, a trial court does not make explicit findings of fact, we 

review the evidence in a light most favorable to the trial court’s ruling. Walter v. State, 28 S.W.3d 

538, 540 (Tex. Crim. App. 2000). We give almost total deference to a trial court’s implied 

findings, especially those based on an evaluation of witness credibility or demeanor. Valtierra v. 

State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We sustain the trial court’s ruling if it is 

reasonably supported by the record and is correct on any theory of law applicable to the case. Id. 

at 447-48. Finally, if a trial court erroneously admits evidence obtained in violation of the Fourth 

Amendment, the error is subject to a harmless error analysis. TEX. R. APP. P. 44.2(a); Hernandez 

v. State, 60 S.W.3d 106, 108 (Tex. Crim. App. 2001).

Standing

As a threshold matter, we address whether Martinez had standing to challenge the 

lawfulness of the cell phone search. The Fourth Amendment of the U.S. Constitution protects

against unreasonable searches and seizures. U.S. CONST. amend. IV; State v. Betts, 397 S.W.3d 

198, 203 (Tex. 2013). “A person has ‘standing’ to contend that a search or seizure was 

unreasonable if (1) he has a subjective expectation of privacy in the place or object searched, and 

(2) society is prepared to recognize that expectation as ‘reasonable’ or ‘legitimate.’” State v. 

Granville, 423 S.W.3d 399, 405 (Tex. Crim. App. 2014). “The ‘standing’ doctrine ensures that a 

person may claim only that his own rights have been violated; he cannot assert that he is entitled 

to benefit because the rights of another have been violated.” Id. “A person’s constitutional right 
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to be free from unreasonable searches is a personal right that cannot be asserted vicariously.” Id. 

“A person who is aggrieved by an illegal search and seizure only through the introduction of 

damaging evidence secured by a search of a third person’s premises or property has not had any 

of his Fourth Amendment rights infringed.” Rakas v. Illinois, 439 U.S. 128, 134 (1978). 

“In Rakas v. Illinois, the substantive question of what constitutes a ‘search’ for purposes 

of the Fourth Amendment was effectively merged with what had been a procedural question of 

‘standing’ to challenge such a search.” Chapa v. State, 729 S.W.2d 723, 727 (Tex. Crim. App. 

1987). Accordingly, a Fourth Amendment claim may be based on a trespass theory of search, 

where one’s own personal effects have been trespassed, or a privacy theory of search, where one’s 

own expectation of privacy was breached. State v. Martinez, 570 S.W.3d 278, 283 (Tex. Crim. 

App. 2019). 

Under the privacy theory, an appellant must show that (1) he had a subjective expectation 

of privacy in the place or object searched and (2) “society is prepared to recognize that expectation 

as reasonable or legitimate.” Id.; see Betts, 397 S.W.3d at 203. When considering whether an 

appellant demonstrated a reasonable expectation of privacy, 

we examine the totality of the circumstances surrounding the search, including (1) 

whether the accused had a property or possessory interest in the place invaded; (2) 

whether he was legitimately in the place invaded; (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 place to some private use; and (6) whether his claim of 

privacy is consistent with historical notions of privacy.

 

Betts, 397 S.W.3d at 203-04. This is a non-exhaustive list and no one factor is dispositive. Id. at 

204.

Discussion

Martinez filed a motion to suppress the contents of the cell phone prior to trial, but the trial 

court did not rule upon that motion. During the testimony of Robert Rackley with the SAPD crime 
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scene unit, the State sought to admit an extraction report that detailed the contents found on the 

cell phone, as well as certain contents of the cell phone. Martinez objected, in part, on Fourth 

Amendment grounds, arguing that he had an expectation of privacy in the contents of the cell 

phone and thus the search of the cell phone required a warrant. The State responded that Martinez 

lacked standing because it was obvious the phone did not belong to Martinez. The trial court 

overruled the Fourth Amendment objection and admitted the report and cell phone contents.

Martinez relies on the United States Supreme Court’s opinion in Riley to support his 

argument that the SAPD improperly searched the cell phone without a warrant. See Riley v. 

California, 573 U.S. 373 (2014). Martinez additionally contends he “had a reasonable and 

legitimate expectation of privacy in the cell phone and its private contents” because the cell phone 

was found inside Martinez’s bedroom at his residence and within his reach. Martinez also argues 

his purchase of the cell phone and his use of the cell phone to send text messages and make calls 

the day before and the day of the offense required authorities to obtain a warrant to search it.1

Because the issue was litigated at trial, we consider the evidence admitted at trial in 

evaluating the trial court’s ruling. See Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 

2007) (recognizing that trial evidence may be considered in reviewing a suppression ruling when 

the suppression issue is litigated at trial). Detective Timm Angell testified he found the cell phone 

in question on the floor near Ortiz’s clothing. When the detective picked up the phone from the 

floor, it was powered on and it did not have a lock code. On the screen display, Detective Angell 

discovered a folder labeled “selfies,” which he opened. The folder contained “pictures of [Ortiz] 

holding the phone away from her, taking selfie photos.” The detective concluded the phone 

belonged to Ortiz. Detective Angell collected the cell phone pursuant to the original search warrant 

1 Despite his assertion in his brief, the record reflects Martinez testified, “We actually got new phones, his and hers,” 

without any mention of who specifically purchased Ortiz’s phone.
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that allowed for the “[c]ollection of any cellular phones or any other electronic devices that would 

help in the establishment of the crime.” He submitted the cell phone to the lab for a forensic 

download without obtaining an additional warrant. Rackley explained during his testimony that 

because the cell phone belonged to Ortiz, the complainant, there was implied consent to search the 

phone.

Tony Guzman, Ortiz’s boyfriend, received several text messages from Ortiz’s cell phone 

the day before the offense. According to Guzman, although the text messages came from Ortiz’s 

cell phone, the messages were actually from Martinez. Guzman also received phone calls made 

by Martinez from Ortiz’s phone on the day of the offense. When Martinez was questioned about 

text messages sent to Guzman from Ortiz’s cell phone—the cell phone in question—Martinez 

responded, “That’s not my phone.” Martinez stated that he saw the text message but reiterated 

that the phone did not belong to him. 

On this record, we defer to the trial court’s implied finding that Martinez held no reasonable 

expectation of privacy to the searched phone. The trial court was the sole judge of the credibility 

of the witnesses and evidence regarding the ownership, possession, and use of the phone. See 

Lerma, 543 S.W.3d at 190. Martinez testified the cell phone belonged to Ortiz and denied that the 

cell phone belonged to him. The evidence produced at trial reflected that the cell phone was 

recovered from under a pile of Ortiz’s clothes, the “selfie” photos found on the cell phone were of 

Ortiz, and the messages found on the cell phone were directed to Ortiz. The record supports the 

trial court’s implied finding that the cell phone belonged to Ortiz rather than Martinez and, more 

importantly, that Martinez held no subjective and reasonable expectation of privacy to the searched 

phone. As appellant lacks standing to challenge the fruits of the searched cell phone, we need not 

address the lawfulness of the cell phone search.
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An appellant who challenges a search bears the burden of proving facts demonstrating a 

legitimate expectation of privacy and, thus, standing to raise a Fourth Amendment claim 

challenging the search. Villareal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). Here,

Martinez has not met that burden. Accordingly, we sustain the trial court’s ruling as reasonably 

supported by the record and applicable law, and overrule appellant’s sole issue on appeal.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court.

Irene Rios, Justice

DO NOT PUBLISH