Affirmed and Opinion filed August 4 , 2016

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 15

- 00685

- CR

JAMON DERRELL WALKER , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 351st District Court

Harris County, Texas Trial Court Cause No. 139 5164

O P I N I O N Appellant Jamon Derrell Walker challenges his conviction for capital murder, arguing in a single issue that the trial court should have granted his motion to suppress evidence found on appellant’s cell phone pursuant to a search warrant
becau se the warrant’s supporting affidavit did not establish probable cause

. Concluding the affidavit was sufficient to support a finding of probable cause and that the trial court did not err in denying appellant’s motion to suppress, we affirm.2 B ACKGROUND

A t about 2:00 a.m. o n July 18 , 201 3
, officers from the Houston Police Department responded to a 911 call and found t he complainant
, Gerald Williams
, shot to death in a church parking lot. A witness who lived next door to the church told police that after h e had heard a gunshot, he looked out from his porch and saw

someone put what looked like a rifle into the backseat of a dark

- colored car and
drive away

. P olice determined the car seen leaving the scene was the complainant’s car
, and the complainant’s cell phone was missing from his cell phone belt clip. When police located the complainant’s car the next day and
initi ated a traffic stop
, appellant was driving the car and had the complainant’s cell phone in his hand

. Police also found a cell phone b elongin g to appellant in the car.
Police took appellant to the station for questioning

. In a recorded statement, appellant admitted to being involved in the shooting. Officer Jesus Sosa obtained a search warrant to examine the contents of appellant’s cell pho ne

. The complainant’s cell phone number was saved as a contact in appellant’s phone

. The complainant and appellant had exchanged multiple calls and text messages during the time period leading up to the shooting

. Texts between appellant and the complain ant on the night of the shooting indicat ed that the two men were planning to meet and that appellant was bringing a gun

. Appellant’s text message to the complainant read, “I got the heat nd everything lets doit nd move on homie! [sic] ” Appellant’s text messages to other s indicated that appellant not only had a shotgun
but also that he intended to obtain a car and expected to get money the night of the shooting

. Police also recovered a shotgun from appellant’s residence

. The recovered weapon was consis tent with the shotgun shell found at the scene where the complainant’s dead body was discovered

.3

Charged with capital murder, appellant pleaded “not guilty

. ” At a bench trial, appellant moved to suppress the evidence from his cell phone on the grounds

t hat the search warrant’s supporting affidavit failed to establish probable cause.
The trial court denied appellant’s motion , finding that the affidavit provided a substantial basis for probable cause

. The trial court admitted the text and call
informatio n from appellant’s cell phone into evidence

.
T he trial court found appellant guilty as charged and sentenced him to life
confinement without parole. Appellant now appeal s his conviction , challeng ing the trial court’s ruling on the motion to suppress.

S T ANDARD OF R EVIEW

While we typically review a trial judge’s motion

- to

- suppress ruling under a bifurcated standard, a trial court’s determination whether probable cause exists to support a search warrant’s issuance is restricted solely to the affidavit’s fou r

corners. Bonds v. State , 403 S.W.3d 867, 873 (Tex. Crim. App. 2013). When
review ing a magistrate’s decision to issue a warrant, appellate courts as well as
trial courts apply a highly deferential standard of review because of the constitutional prefere nce for searches conducted pursuant to a warrant over
warrantless searches. State v. McLain , 337 S.W.3d 268, 271

– 72 (Tex. Crim. App. 2011). If the magistrate had a substantial basis for concluding that a search warrant probably would uncover evidence of wrongdoing , we will uphold the magistrate’s probable

- cause determination. Illinois v. Gates , 462 U.S. 213, 236 (1983) ; Bonds , 403 S.W.3d at 873

. The magistrate may interpret the affidavit in a

non

- technical, common

- sense manner , draw ing reasonable infere nces solely from
the facts and circumstances contained within the affidavit’s four corners. Bonds
, 403 S.W.3d at 873. We are not to invalidate a warrant by interpreting the affidavit4

in a hypertechnical, rather than a common

- sense, manner. Id. When in doubt, we
are to defer to all reasonable inferences that the magistrate could have made. Id.

A PPLICABLE L AW A search warrant may not legally issue unless it is based on probable cause.
U.S

. C ONST . amend. IV; Tex. Const. art. I § 9; Tex. Code Crim. Proc. Ann. art. 1.06 (West 2005 ). Under Texas law, “[n]o search warrant shall issue

. . . unless sufficient facts are first presented to satisfy the issuing magistrate that probable cause does in fact exist for its issuance” and “[a] sworn affidavit setting for th substantial facts establishing probable cause” is filed with the search

- warrant request. Tex. Code Crim. Proc. Ann. art. 18.01(b) (West Supp. 2015 ). Probable cause exists when, under the totality of the circumstances, there is a fair probability

or su bstantial chance that evidence of a crime will be found at the specified
location. Bond

s , 40 3 S.W.3d at 872

– 7 3

. Probable cause is a flexible and non

demanding standard. Id

. at 873.
When a trial court examines whether there is probable cause to support a search warrant, the trial court is restricted to the four corners of the affidavit.
McLain , 3 3 7 S.W.3d at 271. For an evidentiary search warrant, t he sworn affidavit must set forth facts sufficient to establish probable cause that (1) a specific offense has been committed, (2) the specifically described property or items that are to be the subject of the search or seizure constitute evidence of that offense or evidence that a particular person committed that offense, and (3) the property or items
constit uting evidence to be searched for or seized are located at or on the particular person, place, or thing to be searched. Tex. Code Crim. Proc. Ann. art. 18.01(c)
, 18.02( a )(10) (West Supp. 2015 ). 1

1 T he Texas Code of Criminal Procedure contains provisions dealing specifically with search warrants for cell phones of arrestees

. But , because these provisions were not yet in effect5 A NALYSIS Appellant alleges that Officer Sosa’s affidavit did not provide a sufficient
basis to support the magistrate’s finding of probable cause. Specifically, appellant argues the affidavit did not establish the second requirement

— that the specifically described property or items made the subject of the proposed search or seizure
constitute evidence of the offense or evidence that a particular person committed
the offense. See Tex. Code Crim. Pro c. Ann. art. 18.01(c)(2) (West Supp. 2015 ).
Applying a common

- sense reading to the affidavit, we conclude it contained sufficient facts from which the trial court could find probable cause that the cell phone to be searched contained evidence tha t appellant committed capital murder

. The affiant established th e following pertinent facts :

 affiant was investigating the cap ital murder of the complainant;

 appellant was found with the complainant’s car and cell phone the day after the complainant’s shooting ;

 appellant’s cell phone was found in the complainant’s car after appellant was driving it;

 appellant was questioned as a suspect in the capital murder;

 appellant admitted he was involved in the complainant’s shooting and drove off in the complainant’s car;

 appellant planned to sell the complainant’s car and cell phone;

 appellant knew the complainant and communicated with the complainant primarily via cell phone; and

 appellant and the complainant had been planning to commit robberies together.

at the time of the underlying offense and trial, the provision gove rning search warrants for “mere evidence” is applicable.6

Appellant argues that, based on the facts set forth in the affidavit, the magistrate could not have inferred that evidence probably would be found in appellant’s cell phone, but rather made a guess based on the “general expectation that incriminating evidence exists on a cell phone.” A ppellant also argues that the affidavit established nothing more than “mere suspicion” that the cell phone might contain evidence, focusing on the absence of any specific allegation that appellant talked to the complainant via cell phone about shooting hi m.

A substantial basis for probable cause rests in t he allegations that appellant and the complaina nt had been communicating via appellant’s cell phone, planning robberies around the time that the complainant was killed while being robbed of possessions later found in appellant’s possession. From these facts, a magistrate properly could have inferred t hat appellant’s cell phone probably contained
information that evinced appellant robbing and killing the complainant, including communication between the two of them showing how and why they came to be in that parking lot together that night. We conclude there is a fair probability or substantial chance that evidence of a capital murder would be found in the contents of a cell phone belonging to a suspect who had confessed to shooting the complainant and who exchanged numerous text messages and phone calls with the complainant around the time of the shooting

. See Humaran v. State , 478 S.W.3d 887, 899

– 900 (Tex. App.

— Houston [14th Dist.] 2015, pet. ref’d).
Under the totality of the circumstances, the trial court could have concluded that there was a fair pro bability that evidence relating to the commission of an offense, capital murder, would be found on appellant’s cell phone. See id. The trial court did not abuse its discretion by denying appellant’s motion to suppress.7 C ONCLUSION When considering the tot ality of the circumstances, the warrant’s supporting affidavit provided a substantial basis for concluding that probable cause existed.
Therefore
, the trial court did not abuse its discretion in denying the motion to suppress evidence. Accordingly, we over rule appellant’s sole issue and affirm the trial court’s judgment.

/s/ Kem T hompson Frost Chief Justice

Panel consists of Chief Justice Frost and Justices McCally and Brown. Publish

— Tex. R. App. P

. 47.2( b).