Memorandum Opinion of January 22, 2014 Withdrawn; Reversed and 

Remanded and Corrected Memorandum Opinion filed January 22, 2015.

In The

Fourteenth Court of Appeals

NO. 14-13-00957-CR

CORREY OLIVER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 1346323

CORRECTED MEMORANDUM OPINION

This court withdraws its memorandum opinion dated January 22, 2014, and 

issues a corrected memorandum opinion in its place to include the correct date of 

issuance, January 22, 2015. We also issue a corrected judgment dated January 22, 

2015, to correct the clerical mistake.
The State indicted appellant Correy Oliver for (1) the possession with intent 

to deliver cocaine weighing 400 grams or more

1 and (2) the possession with intent 

to deliver a compound, mixture, or preparation containing not more than 200 

milligrams of codeine per 100 milliliters of non-narcotic active medicinal 

ingredients weighing 400 grams or more.

2

 The trial court directed a verdict of not 

guilty on the codeine charge, and the jury found appellant guilty on the cocaine 

charge. The court sentenced appellant to an agreed punishment of forty-five years’ 

confinement.

Appellant contends the trial court reversibly erred by denying his motion to 

suppress evidence discovered as a result of the warrantless search of his cell phone. 

We reverse the trial court’s judgment and remand for a new trial.

WARRANTLESS SEARCH OF CELL PHONE

In his first issue, appellant contends the trial court reversibly erred by 

denying his motion to suppress evidence of a text message on appellant’s cell 

phone, which a police officer found during a warrantless search of the phone. The 

State contends the search was justified by exigent circumstances—“to avoid the 

imminent destruction of evidence”—and that in any event, the error was harmless. 

We hold that the trial court erred by admitting evidence of the text message, and 

we must reverse the trial court’s judgment because we cannot determine beyond a 

reasonable doubt that the error did not contribute to appellant’s conviction.

A. Standard of Review

We apply a bifurcated standard of review, giving almost total deference to 

the trial court’s determination of historical facts and reviewing de novo the court’s 

1 See Tex. Health & Safety Code Ann. §§ 481.102(3)(D), 481.112(f).

2 See Tex. Health & Safety Code Ann. §§ 481.105(1), 481.114(e).

2

 
application of the law of search and seizure under the Fourth Amendment. 

Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We view the 

evidence in the light most favorable to the trial court’s ruling, and we assume that 

the trial court made implicit findings of fact supported in the record that buttress 

the court’s conclusion. Id. at 328. Unless it would be a manifest injustice, we will 

affirm a trial court’s ruling on a motion to suppress if it is correct under any theory 

of law that is applicable to the case. State v. Esparza, 413 S.W.3d 81, 89–90 (Tex. 

Crim. App. 2013).

B. Law Regarding Search of Cell Phones

While this appeal was pending, the United States Supreme Court held that 

under the Fourth Amendment’s prohibition of unreasonable searches, a person’s 

cell phone may not be searched incident to arrest. Riley v. California, 134 S. Ct. 

2473, 2494 (2014). Generally, a cell phone may be seized incident to arrest, but 

police must get a warrant to search it. Id. at 2495. One exception to the warrant 

requirement, however, is “when the exigencies of the situation make the needs of 

law enforcement so compelling that [a] warrantless search is objectively 

reasonable under the Fourth Amendment.” Id. at 2494 (quotation omitted; 

alteration in original). One such exigency could be “the need to prevent the 

imminent destruction of evidence.” Id. Another could be the need to assist 

persons who are “threatened with imminent injury.” Id. (citing as examples “a 

suspect texting an accomplice who, it is feared, is preparing to detonate a bomb or 

a child abductor who may have information about the child’s location on his cell 

phone”). The State has the burden to establish that an exigency existed; if the State 

does not, “then a warrantless [search] will not withstand judicial scrutiny.” 

Gutierrez v. State, 221 S.W.3d 680, 685–86 (Tex. Crim. App. 2007).

3
C. Evidence Regarding the Search and Exigent Circumstances

Houston Police Department Officer Andrew Wright stopped a car driven by 

Michael Floyd. Appellant was a passenger in the front seat. The car was 

registered to appellant and his girlfriend. In plain view in the front cup-holder area 

of the car, Wright saw a prescription bottle, a bottle of red Sunkist soda, and two 

Styrofoam cups with ice. Wright believed the prescription bottle contained 

codeine cough syrup because people who drink it commonly mix it with fruity red 

soda.3

 Floyd consented to a search of the vehicle, and appellant did not object. 

Wright and another officer detained Floyd and appellant in separate vehicles. 

Wright testified that he observed appellant touching the buttons on an open,

flip-style cell phone, so he took the phone from appellant and put in in a patrol car 

where it “would be difficult for him to get.” The search of the vehicle revealed a 

bag behind the driver’s seat containing 654 grams of cocaine and multiple bottles 

of codeine cough syrup. After Wright arrested appellant, Wright searched the 

phone “incident to arrest.”4

 

3 At some point, Wright examined and smelled the bottle, and he opined that the 

bottle contained codeine.

4 Wright testified, 

Q [the State]. At that point, without going into details, did you search the cell 

phone that Correy Oliver had on him?

A. Yes, I did.

Q. Was that a search incident to arrest?

A. Yes, it was.

. . . .

Q [defense counsel]. And you did that—once you arrested Mr. Oliver, you just 

searched it incident to arrest?

A. That’s correct.

. . . . 

Q [the State]. And after you had Correy Oliver, this defendant, under arrest, did 

you search that phone search [sic] incident to arrest?

A. Yes, I did.

4

 
Wright did not testify that an exigency caused him to search the phone. 

Wright testified that once the phone was seized, appellant did not have any 

opportunity to try to take the phone back or do anything with the phone. Wright 

also testified that he could have disabled the phone and obtained a warrant:

Q. Okay. Flip phones are sort of older technology. Do you think—

you could have figured out how to turn this phone off pretty easily, 

right?

A. Probably just take out the battery.

Q. Exactly. And that disables the phone, correct?

A. Right.

Q. Sometimes phones have cards or something that you can take out 

as well, correct?

A. Right.

Q. Okay. All of that would have stopped the phone from doing 

anything, from being a phone at all, correct?

A. Yes.

. . . .

Q. There was nothing preventing you from getting a warrant?

A. No, there was not.

Q. Turning off the phone would have disabled it so that nothing could 

have happened to it between the time you got the warrant and were 

able to search it?

A. Yes.

Wright testified that he found a text message sent to appellant, and Wright took a 

picture of it. Over appellant’s objection, the trial court admitted this picture—

Exhibit 7—as evidence. The text message reads, “U got some oil[.]” Wright 

testified that “oil” is slang for codeine cough syrup. And although there is no 

punctuation, Wright testified that based on his training and experience, the text 

message indicated, “Someone was asking him if he had any codeine syrup.”

5
D. Error to Admit Text Message

The State contends the trial court could have found that exigent 

circumstances justified the warrantless search of appellant’s cell phone because of 

the need “to avoid the imminent destruction of evidence.” The State acknowledges 

Wright’s testimony that the phone could have been disabled, but the State argues 

that disabling the phone “did not mean that the deleted items would remain 

recoverable or that it could later be reinstated to a working phone with the 

information intact.” The State contends that “appellant proffered no evidence that 

[disabling the phone] would have retained the information already deleted or 

rendered the phone operational when the officer later replaced the [SIM card or 

battery].” Ultimately, the State contends,

The lack of knowledge about what disabling the phone would do, or 

even closing the opened flip phone he held (much less removing the 

memory card) could do to it, along with appellant’s manipulations of 

the phone, created exigent circumstances from which the trial court 

could conclude the search was immediately necessary to prevent the 

destruction of evidence.

Initially, we note that it was the State’s burden to prove exigency, not 

appellant’s burden to prove a lack of exigency. See Gutierrez, 221 S.W.3d at 685–

86. Accordingly, the lack of evidence in this record concerning Wright’s 

knowledge about the effects of disabling the phone does not help prove that 

exigent circumstances existed. 

Regardless, the Supreme Court addressed some of the State’s practical

concerns in Riley. The Court noted that “once law enforcement officers have 

secured a cell phone, there is no longer any risk that the arrestee himself will be 

able to delete incriminating data from the phone.” 134 S. Ct. at 2486. Here, 

Wright acknowledged that appellant had no opportunity to delete data from the 

6
phone after Wright seized it. Further, the Supreme Court explained that if an 

officer seizes a phone in an unlocked state, as Wright did, the officer may be able 

to disable a phone’s locking feature to prevent locking and the encryption of data. 

See id. at 2487. An officer can prevent a remote wipe of the phone’s data by

“disconnecting a phone from the network” in at least two simple ways: turning the 

phone off or removing the battery. Id. So, under appropriate circumstances, 

officers may take measures to preserve data on a phone without resorting to 

searching it. See id. The Supreme Court’s “answer to the question of what police 

must do before searching a cell phone seized incident to arrest is accordingly 

simple—get a warrant.” Id. at 2495.

Here, the trial court did not find that exigent circumstances justified the 

warrantless search of appellant’s cell phone, and based on this record, no rational

jurist could so find. Wright testified multiple times that he searched the phone 

“incident to arrest,” and there was “nothing” preventing him from getting a 

warrant. Appellant had no opportunity to delete data himself once the phone was 

seized, and “[t]urning off the phone would have disabled it so that nothing could 

have happened to it between the time [Wright] got the warrant and [would have 

been] able to search it.” Wright never testified about any of the concerns that the 

State now raises for the first time on appeal.5

5 For the first time at oral argument, the State suggested that exigent circumstances 

existed because appellant and Floyd were “calling their posse to the scene, . . . actively seeking 

to have people come and complicate an arrest situation.” Although courts have recognized 

exigent circumstances for the purpose of “protecting police officers from persons whom they 

reasonably believe to be present, armed, and dangerous,” Gutierrez, 221 S.W.3d at 685, Wright 

never testified that he searched the phone in an attempt to gain information that would help 

protect himself or others from harm. In fact, he testified that he was not in fear for his safety, 

and there were no circumstances regarding the phone that he found scary or harmful to himself. 

“Nothing” prevented Wright from obtaining a warrant. Accordingly, the State failed to adduce 

evidence of exigent circumstances based on an alleged desire for Wright to protect himself or 

others from danger.

7

 
Accordingly, the trial court erred by admitting the evidence gathered from 

the warrantless search of appellant’s cell phone.

E. Harm

Appellant and the State agree that this error is constitutional, and therefore, 

we must reverse appellant’s conviction unless we determine “beyond a reasonable 

doubt that the error did not contribute to the conviction.” Tex. R. App. P. 44.2(a). 

This standard for determining harmful error “should ultimately serve to vindicate 

the integrity of the fact-finding process rather than simply looking to the 

justifiability of the fact-finder’s result.” Snowden v. State, 353 S.W.3d 815, 819 

(Tex. Crim. App. 2011).

Accordingly, we must focus “not upon the perceived accuracy of the 

conviction or punishment, but upon the error itself in the context of the trial as a 

whole, in order to determine the likelihood that it genuinely corrupted the factfinding process.” Id. We focus not on “whether the jury verdict was supported by 

the evidence,” but rather, on whether “the error adversely affected the integrity of 

the process leading to the conviction.” Langham v. State, 305 S.W.3d 568, 582 

(Tex. Crim. App. 2010) (quotation omitted). We must “focus not on the weight of 

the other evidence of guilt, but rather on whether the error at issue might possibly 

have prejudiced the jurors’ decision-making.” Harris v. State, 790 S.W.2d 568, 

586 (Tex. Crim. App. 1989), overruled on other grounds by Snowden, 353 S.W.3d 

at 821–22; accord Daniels v. State, 25 S.W.3d 893, 899 (Tex. App.—Houston 

[14th Dist.] 2000, no pet.).

So, an error is not harmless “simply because the reviewing court is confident 

that the result the jury reached was objectively correct.” Snowden, 353 S.W.3d at 

819. Error is not harmless “if there is a reasonable likelihood that it materially 

affected the jury’s deliberations.” Neal v. State, 256 S.W.3d 264, 284 (Tex. Crim. 

8
App. 2008). Nor is error harmless if it “disrupted the jury’s orderly evaluation of 

the evidence.” Walker v. State, 180 S.W.3d 829, 835 (Tex. App.—Houston [14th 

Dist.] 2005, no pet.) (citing Harris, 790 S.W.2d at 588).

To determine whether constitutional error was harmless, we must “calculate, 

as nearly as possible, the probable impact of the error on the jury in light of the 

other evidence.” Neal, 256 S.W.3d at 284. Accordingly, the presence of 

“overwhelming evidence of guilt is a factor to be considered.” Motilla v. State, 78 

S.W.3d 352, 357 (Tex. Crim. App. 2002). Other factors to consider may include

the nature of the error, whether it was emphasized by the State, the probable 

implications of the error, and the weight the jury would likely have assigned to it in 

the course of its deliberations. Snowden, 353 S.W.3d at 822. These are not 

exclusive considerations or even necessary considerations in every case. See id. 

“At bottom, an analysis for whether a particular constitutional error is harmless 

should take into account any and every circumstance apparent in the record that 

logically informs an appellate determination whether ‘beyond a reasonable doubt 

[that particular] error did not contribute to the conviction or punishment.’” Id.

(alteration in original) (quoting Tex. R. App. P. 44.2(a)). We examine the entire 

record “in a neutral, impartial and even-handed manner and do not make our 

examination ‘in the light most favorable to the verdict.’” Daniels, 25 S.W.3d at 

899 (quoting Harris, 790 S.W.2d at 586); see also Tillman v. State, 376 S.W.3d 

188, 202 (Tex. App.—Houston [14th Dist.] 2012, no pet.).

We begin the analysis by reviewing the evidence of appellant’s guilt. The 

evidence of appellant’s possession with intent to deliver cocaine, viewed in 

isolation, was strong indeed: (1) a secretly recorded conversation between 

appellant and Floyd demonstrated appellant’s knowledge of the presence of the 

cocaine when he told Floyd there was “about a half” of a kilogram of cocaine in 

9
the car; (2) appellant had over $1,100 in small denomination bills on him at the 

time of the arrest, which indicated to Wright that appellant was “selling small 

quantities of narcotics or making change for other people buying”; (3) the car was 

registered to appellant and his girlfriend, not Floyd; (4) the cocaine was within 

easy reach of appellant, having been found in a bag behind the driver’s seat; (5) the 

cocaine weighed 654 grams and was worth about $60,000 on the street; (6) 

appellant was linked to several bottles of codeine cough syrup found in the same 

bag as the cocaine because a bottle of codeine was in plain view in the front seat, 

and the officers found a six-month-old prescription for codeine cough syrup in 

appellant’s name in the car; and (7) after appellant was informed he was being 

arrested for possession of cocaine and codeine and was told his money would be

seized, appellant said, “I’m going to keep doing what I do no matter what you do,” 

which Wright understood as, “He’s going to keep selling drugs and trying to make

money no matter if he gets arrested and charged.”6

 However, the evidence was 

sharply controverted by Floyd’s purposeful, self-incrimination. Floyd gave a 

recorded, Mirandized statement to Wright that he had borrowed the car from 

appellant the night before, that all the drugs were Floyd’s, and that he put the drugs

in the car before picking up appellant. 7

6 This statement may be a “persuasive admission of personal involvement,” but it is not 

necessarily an “explicit admission of guilt.” See Hutchinson v. State, 424 S.W.3d 164, 184 (Tex. 

App.—Texarkana 2014, no pet.) (referencing a statement made by a defendant after he was 

detained and told he would be arrested and his house searched, “I’ve just been doing what I’ve 

been doing for a little extra money”; reversing for constitutional error despite “relatively strong” 

evidence linking the defendant to 11.58 grams of methamphetamine, 32.51 grams of GHB, and 

some Xanax pills; evidence included the admissible statement quoted above, the defendant had 

$1,600 in cash on his person, he lived at the residence where drugs were found, he gave keys to 

police officers that unlocked his bedroom where the officers found the drugs; the State twice 

referenced appellant’s second, inadmissible statement during closing arguments).

7 The State undermined Floyd’s confession with evidence that it was contrived and 

instigated by appellant. Before Floyd confessed, the officers had placed appellant and Floyd in 

the back of a patrol car together where their conversation was secretly recorded. Although 

10

 
Thus, the evidence of appellant’s possession with intent to deliver the 

cocaine was not overwhelming. Courts have considered several factors for 

measuring the weight of the evidence concerning an intent to deliver a controlled 

substance, such as: (1) the nature of the location at which the accused was arrested 

(whether an area known for drug dealing); (2) the quantity of contraband in the 

accused’s possession; (3) the manner of packaging (whether packaged in 

individual units for resale); (4) the presence or lack thereof of drug paraphernalia 

(whether for use or sale); (5) the accused’s possession of large amounts of cash 

(particularly in amounts indicative of drug sales); and (6) the accused’s status as a 

drug user. See Moreno v. State, 195 S.W.3d 321, 325 (Tex. App.—Houston [14th 

Dist.] 2006, pet. ref’d); see also Carter v. State, 419 S.W.3d 1, 18 (Tex. App.—

Amarillo 2009), rev’d on other grounds, 309 S.W.3d 31 (Tex. Crim. App. 2010).

The State contends that the “sheer volume” of cocaine was “sufficient 

evidence to demonstrate appellant’s intent to deliver.” But the test is not merely 

one of weight or sufficiency; we are concerned with the likelihood that the 

admission of the text message corrupted the fact-finding process, affected the 

integrity of the process leading to the conviction, or prejudiced the jurors’ 

decision-making. See Snowden, 353 S.W.3d at 819; Langham, 305 S.W.3d at 582; 

Harris, 790 S.W.2d at 586.

appellant and Floyd were “talking pretty quiet” and “mumbling” according to Wright, Wright 

identified appellant as saying “I got you.” Appellant also said, “I can’t go down,” and, “You 

would get probation.” Floyd asked, “How much work was in that [expletive],” and appellant 

responded, “About a half.” (Testimony at trial established that “work” is slang for cocaine.) 

Appellant then said, “I got you, though . . . . When you dropped me off last night, you put it in 

there. You hear me?” Floyd said, “I got you.” Appellant and Floyd then used a different cell 

phone (unbeknownst to the police officers at the time) to call someone. Appellant told Floyd, 

“Just tell them everything,” and Floyd said, “I got you, I got you.” Floyd told someone on the 

phone, “All that [expletive] was mine that I had with us,” and Floyd said he had “a half of a 

whole.” Floyd said he was going to tell the police “it was mine.”

11

 
In considering the remaining evidence, or lack thereof, about possession 

with an intent to deliver, we note that there was no evidence that Floyd and 

appellant were stopped in an area known for drug dealing although the area was 

“high crime.” The cocaine was not packaged in individual units for resale, nor was 

there any evidence of other drug-distribution paraphernalia found in appellant’s car 

(or any other location) that would have indicated an intent to deliver, such as 

baggies or measuring devices. Accordingly, the evidence of guilt was not 

overwhelming. See Carter, 419 S.W.3d at 18 & n.19 (reasoning that, other than 

the defendant’s confession, there was “virtually no evidence” establishing the 

defendant’s intent to deliver; holding error harmful when there were 491 grams of 

cocaine found in a vehicle with a passenger and a driver, and there was no 

evidence the defendant possessed an excessive amount of cash, that the cocaine 

was packaged in a manner indicating an intent to sell, that the defendant possessed 

any baggies, scales or other items used in drug transactions, that the defendant was 

arrested in an area known for drug sales, that the defendant had any weapons in the 

car, or that the defendant attempted to flee).

8

Further, there was drug paraphernalia indicative of appellant’s personal use 

of the codeine cough syrup. Wright testified that he observed a small prescription 

bottle of codeine in appellant’s name, two cups of ice, and a red fruity beverage 

bottle in the front cup-holder area of the car. These items were consistent with 

drug use according to Wright: “Typically they will mix the codeine with some kind 

of fruity soda beverage, and a lot of times they choose a fruity beverage that is red 

8 Viewing the record in a neutral light, we disagree with the State’s contention on appeal 

that “the appearance of the cocaine indicated it was meant to be delivered to someone else rather 

than possessed for appellant’s own use.” The State cites Wright’s testimony that the cocaine was 

“straight off the brick” and “not broken up or diluted in any way.” But Wright did not opine that 

this appearance indicated an intent to deliver. Such an intent perhaps could have been shown if 

the cocaine had been broken up into smaller quantities and diluted, ready for resale.

12

 
so that the color won’t have changed that much if you pour codeine in it.” The 

State elicited Wright’s opinion, based on his training and experience, that the text 

message indicated, “Someone was asking him if he had any codeine syrup.” Thus, 

the text message and Wright’s opinion provided evidence that appellant was a drug 

dealer, rather than merely a drug user. 

Despite the trial court directing a “not guilty” verdict on the codeine charge, 

the State relied on the text message during closing argument. First, the State 

rebuffed defense counsel’s suggestion that the text message was not incriminating, 

arguing:

You got oil. I guess he works for BP. I mean, my goodness, if you’ve 

got—if your car is low on oil and you need some, just text [appellant]. 

He’ll get it for you. No problem. Come on. You know, it’s common 

sense. What did Officer Wright tell you was one of the nicknames of 

codeine? Oil. Doesn’t take a rocket scientist to figure it out.

After referencing the amount of cocaine appellant possessed, the State argued,

“You want to tell me that’s not intent to deliver? You got oil. Unfortunately 

there’s nothing else we can bring you other than that, and it’s enough.” 

Accordingly, the State invited the jury to infer that because appellant intended to 

deliver codeine, he also intended to deliver the cocaine found in the same bag as 

the codeine.

On appeal, the State contends the “oil” text was of little significance because 

it contained no punctuation and there was “no clear indication that it referred to 

codeine.” But that argument directly contradicts the State’s evidence and its 

argument to the jury at the close of the case. Further, the State contends that the 

State mentioned the text during closing argument “only after defense counsel chose 

to mention it” first. But defense counsel’s attempt during closing argument to 

lessen the impact of the inadmissible evidence does not mean appellant suffered 

13
any less harm—in fact, it cuts the other way because a “probable implication” or 

“collateral consequence” of error in the admission of evidence is naturally that 

defense counsel will attempt to mitigate the effect of harmful, relevant evidence 

during closing argument. See Hutchinson v. State, 424 S.W.3d 164, 182, 184 (Tex. 

App.—Texarkana 2014, no pet.) (noting that courts must consider “probable 

collateral consequences” of the error) (citing Snowden, 353 S.W.3d at 822; 

Higginbotham v. State, 807 S.W.2d 732, 737 (Tex. Crim. App. 1991)). That both 

the State and defense counsel discussed the inadmissible evidence suggests the 

error might possibly have prejudiced the jurors’ decision-making or disrupted the 

jury’s orderly evaluation of the evidence. See Harris, 790 S.W.2d at 586, 588.

In sum, the text message helped the State paint a clearer picture of 

appellant’s possession with intent to deliver cocaine, and that is precisely the 

argument the State made to the jury. The text message connected appellant, as 

opposed to Floyd, to the distributable quantity of cocaine and a cell phone 

solicitation for distribution. The text message was “important in the context of the 

entire trial.” See Cabrales v. State, 932 S.W.2d 653, 657–59 (Tex. App.—Houston 

[14th Dist.] 1996, no writ) (reversing the defendant’s conviction under the beyonda-reasonable-doubt harm analysis when an officer improperly testified that the 

cocaine could be cracked out and worth $60 million whereas the powder cocaine 

appellant was charged with possessing with intent to deliver was worth only $15 

million; the defendant was the passenger in a vehicle driven by another person, 

wherein officers found four locked duffle bags containing 78 packages of cocaine 

weighing about 150 kilograms; the defendant had engaged in activity consistent 

with drug activity, i.e., keeping a lookout after the drugs were presumably loaded 

into the vehicle, and the defendant “directed the officers to the hidden keys which 

unlocked the bags” of cocaine; this court found harm because the evidence was 

14
“important in the context of the entire trial,” where the State had argued that the 

defendant knew “what was going on” based on the fact that the vehicle contained 

drugs worth up to $60 million).9

 

The sole case the State cites in support of its argument on harm is Neal v. 

State, where the Court of Criminal Appeals held that the admission of a gun and 

Blockbuster card did not contribute to Neal’s conviction for capital murder. See

256 S.W.3d at 284. The case is inapposite. Neal had confessed to raping and 

murdering the victim. Id. at 277. Cruz, the accomplice, testified about the rape 

and murder “in great detail at trial, from the conception of their plan through its 

execution, as well as the aftermath in which she confessed to the police and led 

them to [the] body.” Id. Neal also gave a general account of the rape and murder 

to his cellmate. Id. The evidence presented a “clear picture” that appellant

abducted the victim, stole some of her valuables, raped her, and fatally shot her 

several times. Id. Fingerprint and DNA evidence linked him to the crime. Id. 

The inadmissible gun was not the murder weapon, but Cruz had used it to hold-up 

the victim. Id. at 283. At trial, the State had Cruz demonstrate how she held the 

gun. Id. The Court of Criminal Appeals found the admission of the gun and 

Blockbuster card harmless because, although the examination of Cruz regarding

the gun “may have added a dramatic flourish at trial,” the testimony was brief, the 

evidence of Neal’s guilt was overwhelming, the handgun was not essential to the 

State’s case, and the Blockbuster card “was of little significance.” Id. at 284.

9 Although appellant and the State do not squarely address the issue, appellant was 

charged under the law of parties, so the jury could have convicted him if he was criminally 

responsible for Floyd’s possession of the cocaine with intent to deliver. Just as the text message 

supported the State’s theory that appellant had an intent to deliver cocaine, it would have 

supported the State’s theory that appellant had the intent to promote or assist Floyd’s 

commission of the crime and, at a minimum, was attempting to aid Floyd’s commission of the 

crime.

15

 
Unlike in Neal, however, here the text message was an item of evidence, 

among others, that the jury might well have considered in reaching the conclusion 

that appellant possessed the cocaine with the intent to deliver it or intended to 

promote or assist Floyd’s possession with intent to deliver.

10 Appellant cites this 

court’s prior decision in Johnson v. State, which is somewhat more analogous. See

899 S.W.2d 250 (Tex. App.—Houston [14th Dist.] 1995, no writ). In Johnson, an 

officer photocopied a $10 bill. Id. at 252. When the officer knocked on the door 

to a residence to make an undercover drug purchase, Johnson answered and asked 

the officer what he needed. Id. The officer said a “dime,” which is street slang for 

one-eighth of a gram of cocaine. Id. Johnson told Harden, the State’s accomplice 

witness, to get the officer “what he wanted.” Id. Harden took a rock of cocaine 

from the table in the living room and gave it to the officer. Id. The officer paid 

Harden the $10 bill. Id. After the officer left, the police raided the apartment 

without a warrant. Id. When the police searched Johnson, the $10 bill was found 

in his pocket. Id. He was tried for the delivery of cocaine. Id. The State 

referenced the $10 bill during closing argument and referenced Harden’s testimony

that he gave the $10 to Johnson because the drugs belonged to Johnson. Id. The 

jury also sent notes during deliberations “requesting copies of the testimony about 

the seizure of the ten dollar bill from appellant.” Id. at 252–53. Despite the

testimony from Harden and the undercover officer, this court reversed Johnson’s 

conviction because the $10 bill was “essential” to corroborate their testimony and 

it seemed clear that the evidence of the $10 bill “prejudiced the juror’s decisionmaking process and disrupted their orderly evaluation of the evidence.” Id.

10 The jury charge also allowed the jury to convict appellant under the theory of the law 

of parties. See Tex. Penal Code Ann. § 7.02 (a)(2).

16

 
Although there is no jury note in this case comparable to the one in 

Johnson11 and the text message was not necessarily “essential” to the State’s case,

after reviewing the entire record, we hold there is a reasonable likelihood that the 

error materially affected the jury’s deliberations and disrupted the jury’s orderly 

evaluation of the evidence. We cannot conclude beyond a reasonable doubt that 

the error in admitting evidence from the warrantless search of appellant’s cell 

phone did not contribute to appellant’s conviction.

Appellant’s first issue is sustained.

CONCLUSION

Having sustained appellant’s first issue, we reverse the trial court’s judgment 

and remand for a new trial.12

/s/ Sharon McCally

Justice

Panel consists of Justices McCally, Brown, and Wise.

Do Not Publish — Tex. R. App. P. 47.2(b).

11 Here, the jury asked for copies of the recordings of Floyd’s confession and the secretly 

recorded discussion between Floyd and appellant. 

12 Because we sustain appellant’s first issue, we do not address appellant’s second issue 

concerning the Confrontation Clause. See Tex. R. App. P. 47.1.

17