Affirmed and Memorandum Majority and Dissenting Opinions filed May 26, 

2022.

In The

Fourteenth Court of Appeals

NO. 14-20-00223-CR

NO. 14-20-00224-CR

NO. 14-20-00225-CR

JOSHUA ANTEE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Cause Nos. 1551742, 1551743, and 1551744

MEMORANDUM MAJORITY OPINION

Appellant Joshua Antee appeals his three convictions for possession of child 

pornography. In his sole issue, appellant complains that trial court reversibly erred 

when it denied his motion to suppress evidence obtained from his cell phone. 

Guided by recent binding precedent from this court, we conclude that the trial 

court did not err in denying the motion to suppress. We modify the judgments to 
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reflect that appellant pleaded not guilty and affirm them as modified. Tex. R. App.

P. 43.2(b).

I. FACTUAL AND PROCEDURAL BACKGROUND

On August 7, 2016, undercover narcotics officer, Luis Valle II, with the 

Houston Police Department (HPD), after having arrested and filed charges against 

appellant for “Possession of a Controlled Substance with Intent to

Distribute/Deliver”,

1

secured a search warrant for a cell phone discovered in 

appellant’s possession when he was arrested on July 27, 2016. 

In Valle’s search-warrant affidavit, he describes in detail his interactions 

with appellant leading to appellant’s arrest. Valle’s affidavit sets out how he 

engaged with appellant after discovering appellant’s chatroom post advertising the 

sale of “powder cocaine.” Valle’s affidavit states: 

Officer Valle made contact with [appellant] through the on-line 

chatroom and asked [appellant] how much was two “8-balls” of

powder cocaine (street slang for two 3.5 gram baggies of powder

cocaine). [Appellant] replied with a price of $200. Officer Valle then 

exchanged phone numbers with [appellant] and continued their 

conversation via text messaging. The number that [appellant]

provided Officer Valle was [713-XXX-XXXX]. Officer Valle made 

contact with [appellant] via text messaging which [appellant]

identified himself as “Carlito”. Officer Valle informed [appellant] that 

they could meet near Gulf Freeway and Wayside at a Walmart

parking lot. [Appellant] stated he would be coming from the north 

side of town and it would take him some time to get to the Gulf 

Freeway and Wayside. Officer Valle and [appellant] continued the 

text messaging conversation as [appellant] was asking if Officer Valle 

used powder cocaine or sold it, then [appellant] wanted to know if 

Officer Valle could provide any Heroin during their meeting. 

1 The State charged the controlled substance offense in a separate indictment, an action 

that is not under review in this appeal. State v. Antee, Cause No. 1518349 (182nd District Court, 

Harris County).
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[Appellant] repeatedly asked Officer Valle if he used cocaine and that 

he would let Officer Valle “sample” the product during their meeting. 

Then [appellant] provided the following text message “ok cool. Don’t

take no offense, I say this to everybody the first time we meeting. If 

you try to rob me, you gonna get shot, if you a cop, you gonna get 

shot at least twice. This is business, so I expect you to be cool, if not, 

we will have problems. I’m looking for good customers. If you cool 

with all that, just reply cool, if not, lose my number”.

The affidavit then explains how Officer Valle, with the assistance of his narcotics 

team, set up and carried out the drug-buy bust of appellant on July 27, 2016. It 

states that appellant described to Officer Valle in advance the vehicle he was 

driving, that after appellant arrived at the final agreed-upon location police 

detained appellant, and that members of the narcotics team located in plain view on 

the driver side floor-board were two plastic baggies with a white powdery 

substance later determined to be cocaine. Valle’s affidavit then explains the 

apprehension of appellant’s phone: 

Officer Valle then instructed the units to listen for a cell phone to ring 

as Officer Valle called the number that was provided to him from 

Defendant Antee. The marked units advised Officer Valle that a cell 

phone was ringing and that this cell phone was in Defendant Antee’s 

possession. Officer Valle had the marked units verify the number on 

Defendant Antee’s phone and it matched that of Officer Valle’s City 

of Houston cell phone number.

Based on Valle’s affidavit a Harris County magistrate issued the warrant for 

the search of the cell phone being stored in HPD’s property room. Tracking 

language in Valle’s affidavit, the warrant permitted search on the phone for:

1. Any photographs and videos,

2. Any text or multimedia messages (SMS and MMS).

3. Emails
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4. Internet browsing history, GPS history

5. Any contact information, including but not limited to email 

addresses, physical addresses, mailing addresses, phone numbers 

stored in the phones or computers,

6. Documents and evidence showing the identity of ownership and 

identity of the users of those described items.

7. Computer files or fragments of files, photographs. videos, CDROM’s, CD’s, DVD’s, thumb drives, SD Cards, flash drives or any 

other equipment attached or embedded in the above described device 

that can be used to store electronic data.

On November 7, 2016, Officer Douglas Ertons, an HPD officer assigned to

the Houston Forensic Science Center began executing the cell phone search. As he 

recalled at trial, before copying the contents of the phone, when Ertons began 

previewing the contents of the cell phone data, he noticed what appeared to be 

child pornography. Ertons discontinued his search and contacted Valle to advise

him that an additional search warrant was necessary for the search of child 

pornography. When the second search warrant was executed, the police confirmed 

the contents of the phone contained child pornography. This spurred another 

warrant, for appellant’s arrest and for the search of his home.

Appellant was charged by three indictments for possession of child 

pornography. Under each case, appellant filed global motions to suppress his 

arrest, evidence, and statements seized or obtained in violation of his rights under 

the United States and Texas Constitutions and the Code of Criminal Procedure. 

After the cases were consolidated for trial, appellant filed a second motion to 

suppress asserting lack of probable cause to search his cell phone following its 

seizure on July 27, 2016, and in support of suppression under Franks v. Delaware,

asserting Officer Valle’s affidavit contained false or misleading statements. 438 

U.S. 154 (1978). The court heard the suppression motion at trial.
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Appellant waived his right to jury trial and pleaded “not guilty.”

2 The first 

two days of appellant’s consolidated bench trial comprised of testimony, argument, 

and the court’s ruling on appellant’s motion to suppress. After the trial court 

denied appellant’s motion to suppress, the guilt-innocence phase of trial proceeded 

with the admission of evidence discovered on appellant’s cell phone. The trial 

judge found appellant guilty in each of the three cases and sentenced him to

imprisonment for 8 years for each offense, to run concurrently.

II. MOTION TO SUPPRESS

Appellant challenges the trial court’s ruling on his motion to suppress cell 

phone evidence on the sole ground that the initial search warrant was 

impermissibly overbroad, thus tainting evidence admitted at trial obtained by the 

State under subsequent search warrants. Our resolution of this issue is guided by 

this court’s holding in Diaz v. State, a case recently affirmed by the Court of 

Criminal Appeals. 604 S.W.3d 595, 603 (Tex. App.—Houston [14th Dist.] 2020), 

aff’d, 632 S.W.3d 889 (Tex. Crim. App. 2021).

When reviewing a magistrate’s decision to issue a warrant, appellate courts 

apply a highly deferential standard of review because of the constitutional 

preference for searches conducted pursuant to a warrant over warrantless searches. 

State v. McLain, 337 S.W.3d 268, 271–72 (Tex. Crim. App. 2011). When ruling on 

a motion to suppress evidence obtained pursuant to a search warrant, a trial court is 

limited to the four corners of the warrant and affidavit supporting the warrant. Id. 

at 271. In turn, the reviewing court’s determination cannot be based on facts not 

2 Contrary to appellant’s “not guilty”-pleas and the trial court judgments of guilt as 

reflected in the reporter’s record, the written judgments signed by the trial court state appellant

entered pleas of guilty and that terms of a plea bargain were “without an agreed

recommendation–court trial.” Accordingly, we must modify the judgments “to speak the truth.”

French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (approving reasoning of 

Asberry v. State, 813 S.W.2d 526 (Tex. App.—Dallas 1991, pet. ref'd)).
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contained within the four corners of the supporting affidavit. Diaz v. State, 632 

S.W.3d 889, 894 (Tex. Crim. App. 2021)(affirming the court of appeals judgment 

after first identifying supporting evidence within the four corners of the affidavit 

for a proposition the court of appeals had only found evidentiary support for in 

testimony at the suppression hearing). The affidavit is interpreted in a nontechnical, commonsense manner drawing reasonable inferences solely from the 

facts and circumstances contained within the four corners of the affidavit. See State 

v. Elrod, 538 S.W.3d 551, 554 (Tex. Crim. App. 2017); Bonds v. State, 403 

S.W.3d 867, 873 (Tex. Crim. App. 2013). Although a magistrate may not 

baselessly presume facts that the affidavit does not support, he or she is permitted 

to make reasonable inferences from the facts recited in the affidavit. Foreman v. 

State, 613 S.W.3d 160, 164 (Tex. Crim. App. 2020), cert. denied, 141 S. Ct. 2632, 

209 L. Ed. 2d 757 (2021). Probable cause is a flexible and non-demanding 

standard, and as long as the magistrate had a substantial basis for concluding that 

probable cause existed, we will uphold the magistrate’s probable cause 

determination. Diaz, 604 S.W.3d at 603).

The average cell phone, capable of storing large volumes of personal data, 

performing an array of functions, used in multiple spheres of an individual’s life, 

has gained special protection in the search-and-seizure jurisprudence of federal and 

state courts. See State v. Granville, 423 S.W.3d 399, 408 (Tex. Crim. App. 2014);

see also Riley v. California, 573 U.S. 373, 386, 134 S. Ct. 2473, **, 189 L. Ed.2d

430, ** (2014). Our court has recently held that “generic, boilerplate language [in 

an affidavit] that a smart phone may reveal information relevant to an offense and 

that suspects might communicate about their plans via cellphone is not sufficient to 

establish probable cause to seize and search a cellphone.” State v. Baldwin, 614 

S.W.3d 411, 417-18 (Tex. App.—Houston [14th Dist.] 2020, pet. granted); aff’d, 
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No. PD-0027-21, 2022 WL 1499508, — S.W.3d — (Tex. Crim. App. May 11, 

2022). Rather, probable cause to search a cell phone must be established through 

“a connection between the cellphone usage and the offense.” Baldwin, 614 S.W.3d 

at 418; Diaz, 604 S.W.3d at 604. We have held that such an affidavit “must usually 

include facts that a cell phone was used during the crime or shortly before or 

after.” Baldwin, 614 S.W.3d at 415 (citing Diaz, 604 S.W.3d at 603).

The affidavit in appellant’s cases provides a variety of facts that connect the 

cell phone to the narcotics offense. Specifically, the affidavit supplies facts 

describing how the cell phone in question was used by appellant to (1) send

messages in connection with the sale of cocaine, (2) threaten Officer Valle in his 

capacity as a police officer, (3) set up a time and location to conduct the cocaine 

sale, and (4) assist Valle in identifying appellant and his vehicle in furtherance of 

meeting to make the sale. Such facts—showing appellant used his cell phone at 

multiple instances throughout the underlying offense, an attempted drug sale—

starkly contrast from those in our en banc decision recently affirmed by the 

Criminal Court of Appeals in which we discovered “no facts showing []that a cell 

phone was used during the crime or shortly before or after[]”. See State v. Baldwin, 

614 S.W.3d at 418.

Though appellant concedes that the “affidavit may have provided probable 

cause” to search for text messages on appellant’s cell phone,” he argues that the 

warrant allowed for an unfettered and unlimited search of the phone’s photographs, 

videos, emails, browsing history, contact information, and “[c]omputer files or 

fragments of files, photographs, videos, CD-ROM’s, CD’s, DVD’s, thumb drives, 

SD Cards, flash drives”. 

In Diaz, we explained that if a warrant permits a search of “all computer

records” without description or limitation, it will not meet Fourth Amendment 
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particularity requirements; however, a search of computer records that is limited to 

those related to the offense set forth in the affidavit is appropriately limited. Diaz, 

604 S.W.3d at 605 (“the warrant must affirmatively limit the search to evidence of 

specific crimes or types of material.”) (emphasis added). 

Appellant’s position, much like the appellant in Diaz, is premised on the 

contention that particularity requirements are stricter than the law demands, so as 

to render unconstitutional a search of a cell phone used to commit an offense 

because the data permitted by search might include some non-offense related data. 

Diaz, 604 S.W.3d at 606 (“Though the general object of the warrant—a ‘forensic 

analysis’ of specific categories of electronic data stored on appellant’s cell 

phones—‘tacitly encompasses electronic data that might, upon a thorough forensic 

examination, be identified as being non-offense related,’ we do not construe the 

warrant and the accompanying affidavit as ‘allow[ing] an unfettered and unlimited 

search’ of appellant’s cell phones”). The dissent takes on a similarly restrictive

view, equating the result we reach as permitting an unfettered and unlimited 

search.

Diaz instructs us that it is sufficient here that the supporting affidavit states 

that the search was for evidence “relevant and material to the criminal 

investigation noted in this affidavit,” and the affidavit and warrant listed specific 

types of data that likely contained such relevant and material evidence. See Diaz, 

604 S.W.3d at 607. Because the warrant and supporting affidavit directly link the 

evidence being sought to the offense being investigated at the time the warrant was 

obtained, the search was not an overbroad general search. See id. citing Farek v. 

State, No. 01-18-00385-CR, 2019 WL 2588106, at *8 (Tex. App.—Houston [1st

Dist.] June 25, 2019, pet. ref’d) (mem. op., not designated for publication). 

Accordingly, the second warrant leading the police to discover the child 
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pornography on appellant’s cellphone was not “the fruit of the poisonous tree.”

We therefore overrule appellant’s sole issue. 

III. MODIFICATION OF THE JUDGMENT

We modify the trial court’s judgment to delete the notation that appellant 

entered pleas of “guilty” and that terms of plea bargains were “without an agreed

recommendation–court trial.” We modify the judgments to indicate appellant’s 

“not guilty” plea. We affirm the judgment as so modified. See Tex. R. App. P. 

43.2(b); see also French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) 

(“[A]n appellate court has authority to reform a judgment to ... make the record 

speak the truth when the matter has been called to its attention by any source”). 

/s/ Randy Wilson

Justice

Panel consists of Justices Jewell, Spain, and Wilson (J. Spain, dissenting).

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