Affirmed and Memorandum Majority and Dissenting Opinion s filed May 26 ,

2022.

In The



## Fourteenth Court of Appeals

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- CR NO

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- CR NO. 14

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- CR

JOSHUA ANTEE , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 182nd Dis tri c t Cou rt

Harris County, Texas Trial Court Cause No s . 1551742 , 155174 3 , and 155174 4

MEMORANDUM MAJORITY OPINION Appellant Joshua Ant ee appeals his three conviction s for p ossession of c hild
p ornography

. In his sole issue, appellant co mplains that trial court rev ers i b ly err ed 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 mo tion to suppress . W e mo dif y the judgments to2

reflect t h at appe llant pleaded not guilty and affirm them as modified

. Tex. R. App.
P. 43.2(b).

I. F ACTUAL AND P ROCEDURAL B ACKGROUND On August 7, 20 16 , u ndercover narcotics officer , Luis Valle II, wit h the Houston Police Department (HPD) , after having arrested and f ile d ch arges against

a ppellant for “ Possession of a Controlled Substance with Int ent t o Distribute/Deliver ” , 1 secured a search warrant for a cell phone discovered in appellant ’ s possession w hen he was arrested on July 27, 20 16

. In Valle ’ s search

- warrant aff idav it , he describes in detail his interactions with appellant leading to appel lant ’ s arrest

. Valle ’ s affida vit sets out how he engaged with appellant after di scover ing appellant ’ s chatr oom post advertising the sale of “powder cocaine. ” Valle ’ s affid a vit sta tes:
Officer Valle made contact with [appellant] through the on

- line chatr oom a nd asked [appellant] how much was two “ 8

- balls ” of p owder cocaine (street slang for two 3.5 gram bagg ies of powder cocaine). [Appellant] replied with a price of $200. O f fic er V alle then exchanged phone numbers with [appellant] and continued their
conv ersat ion via text messaging

. The numbe r that [appellant] provided Officer Valle was [ 713

- XXX

- XXXX ] . Officer V alle made contact with [appellant] via text messaging which [app e lla nt] identified himself as “ Carlito ”

. Officer Valle informed [appellant] that they coul d meet near Gulf Freeway and Wayside at a Walmart parking l ot. [Appellant] stated he would be comi ng from the north side of town and it would take him some time to ge t to the Gulf Freeway and Wayside. Officer Valle and [appellant] continued the text m essag ing conve rsation as [appellant] was asking if O fficer Valle used powder cocaine or sold it , then [ appellant] wanted to know if Officer Valle could provide any Heroin d uri ng t heir meeting

.

1 The State charged the con trolled substance offense in a separate indictment , an action that is n ot un der review in this ap peal

. Sta t e v. Antee , Cause No. 1518349 ( 182 nd Distr ict Court, H arris County).3

[Appellant] repeatedly asked Officer Valle if he used cocai ne an d that h e would l et Officer Valle “ sample ” the product during their meeting. Then [appellant] pr ovided the following text message “ ok cool. Don ’ t take no offense, I s a y t his to everybody the first time we meeting. If you try to rob me, you gonna get s hot, if y ou a cop, you gonna get shot at le ast 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 c o ol with all that, just reply cool, if not, lose my number ”

.

The affidavit then ex pl ains 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

stat es that a ppellant descri b ed to O fficer Valle in advance the vehicle he was driving , that a fter appellant ar ri ved a t the final agreed

- upon location p olice detained appellant , and that members of the narcotics team located in plain view on the driver side floor

- board were two plast i c b aggi es with a white powdery substance later determined to be cocaine. Valle ’ s af fid av it then explains the apprehensio n of appella nt ’ s phone:

Officer Valle then instructed the uni ts to listen for a cell p hone to ring as Officer Valle called the number tha t wa s provided to him from Defendant Antee. The marked units advised Officer Vall e tha t a cell phone was ringing and t hat this cel l phone was in Defendant Antee ’ s possession

. Offic er Valle had the marked units verify the number on Defendant Antee ’ s pho n e a nd i t matched that of Officer Valle ’ s City of Houston cell phone number

. Based on Vall e ’ s affidavit a Harris County magistrate issued t he warrant for the search of t he cell phone being stored in HPD ’ s property room. Tracking language in Valle ’ s affidav i t, the warrant permitted search on the phone for:

1. Any photographs and videos, 2. Any t ext o r multimedia messages (SMS and M MS). 3. Ema ils4

4. Internet browsing history, GPS h istory 5. Any contact information, including but not limited to email addresses , ph ysic al addresses, mailing addresses, phone numbers stored in the phones or computers, 6. Do cuments and evidence showing the identity o f ownership and identity of the users o f those described items. 7. Computer files or fr agments of files, photographs. v ide os, C D

ROM ’ s, CD ’ s, DVD ’ s, thumb drives, SD Cards, flash drives or any other equipment atta ched or embedded in the above de scribed dev ice that can be used to store electroni c data. On November 7, 2016, Officer Douglas Ertons, an HPD officer a ssigned to the Hou ston Forensic Science Center began executing the cell phone search

. As he recalled at t rial, be fore copying the content s of the ph one, when Erton s began previewing the c ontents of the cell phone data , h e noticed what appeared to be child pornograph y

. Erto n s discontinue d his search and contacted Valle to advise
him that an additional se arch warrant was necessary for the search of c hild pornography. When the second search warrant was executed , the police confirmed the contents of the phone contained chi ld p ornography

. This s purred a nother warrant, for appellant ’ s arrest and for the search of his home. Appellant was charged by three indi ct ment s for p ossession o f c hild
p ornography

. Under each cas e , appellant filed global motions to suppress his
arrest, evi den c e , and statements seized or obtained in violation of his rights under the United S tates and Te xas C onstitutions and the Code of Criminal Proc edure

. After the cases were consolidated f or trial, appellant filed a second motion to
suppress asserting l ack of probable cause to search his cell phone following its seizure on July 27, 2 016, and in suppo rt of suppression under Franks v. Delaware , asserting Officer Valle ’ s a ffidavit contained false or misleading statem ents

. 438 U.S. 154 (1978)

. The court hea r d t he s uppression motion at trial.5

Appellant waived his right to jury trial and pleaded “ not guilty

. ” 2 The first

t wo da ys of appellant ’ s consol idate d bench trial comprised of testimony , argument, and the co urt ’ s ruling on appellant ’ s motion to suppress

. A fte r t h e trial court den i ed appellant ’ s motion to suppress , the guilt

- i nnocence phase of trial proceeded with the admission of ev idenc e disc ove red on appellant ’ s c el l phone . The trial judge found a ppellant guilty in each of the three cases and sentenced h im to i mp risonment for 8 years for each offense , to run concurrently

. II. M OTION TO S UPPRESS
A ppellant challenges the trial cou rt ’ s ruling on his motion to suppress cell phone evide nce o n the sole ground that the initial s earch warrant was impermissibly o v erb roa d , thus tainting evidence admitted at trial obtained by the
State under subsequent search warrants

. Our resolution of th is issue is guided by this court ’ s holding in Diaz v. Stat e , a case recently affirmed by the Court of Criminal Appeals. 604 S.W. 3 d 5 95, 603 (Tex. App.

— Houston [14th Dist.] 2020), aff ’ d , 632 S.W.3d 889 (Tex. Crim. App. 2021)

. W hen reviewing a magis trate ’ s d ecision to issue a warrant, appel late courts apply a hi ghly deferential standard of review because of the constitutional prefere n ce for searches conducted pursuant to a warrant over warrantless searches.
State v. McLain , 337 S .W.3d 268, 271

– 7 2 (T ex. Crim. App. 2011). When ruling on a moti on to suppress ev idenc e ob t ained pursuant to a search warrant, a trial court is limited to the f

our c or ners of the warrant and affidavit supporting the warrant. Id

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

2 C ontrar y t o appellant ’ s “ not guilty ”

- plea s and the trial court judgments of guilt as reflected in the report er ’ s record, t he writte n judgment s signed by the trial court state app ellan t entered plea s of gui l ty and that terms of a plea bargain were “withou t 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) (approvi ng rea sonin g of Asberry v. State , 813 S.W.2d 526 (Tex. App.

— Dallas 1991, pet. ref'd) )

.6

contained within the four corners of the supporting affidavit

. Diaz v. State , 632 S.W.3d 889, 894 (Tex. Crim. A pp. 2021) ( affirming the court of appeals judgment after f irst identifying supporting evidence within the four corners of the affidavit for a proposition the court of appeals had only found evidentiary sup port for in testimony at the suppression hea r ing ). T he affidavit is int erpreted in a non

t echnical, c ommonsense manner drawing reasona ble inferences so lely from the facts and circumstances contained within the four corners of the affi davit

. See State

v . El rod , 538 S.W.3d 551, 554 (Tex. Crim. App. 20 1 7); Bon ds v. State , 403 S. W.3d 867, 873 (Tex. Crim. App. 2013 ). Although a magistrate may not ba selessly presum e fa cts that the affidavit does not support, he or she is permitted to make reasonable inference s fr om the facts recited in the affidavit. Fore m an v. S tate , 6 13 S.W.3d 16 0, 164 (Tex. Crim. App. 2020) , ce rt. denied , 141 S. Ct. 263 2, 209 L. E d. 2d 757 (2021)

. Probable cause is a flexible and non

- demanding standard , and a s long as the magistrate had a sub stantial basis for concluding that prob able c ause ex isted, we will uphold the mag istrate ’ s probable cause d etermination. Diaz , 604 S.W.3d at 6 0 3 )

. The average cell phone, capable of storing large volumes of pers ona l data, performing an array of functi ons, used in multiple sphe res of an individual ’ s life,
h as gained special prot ection in the searc h

- and

- s eizure jurisprudence of federal and

state co urts. See State v. Granville , 423 S.W.3d 399, 408 (Tex. Crim. App. 2 014 ) ; see also Riley v. California , 573 U.S. 373, 386, 134 S. Ct. 2 473 , ** , 189 L

. Ed.2 d
430 , ** (2014)

. O ur court has recently held that “ generic, boiler plate language [in an affidavit] t hat a smart phone may reveal information relevant to an offense and that suspe cts might communicate about th eir plans via cellphone is not suffi cient to

e st a blish p robable cause to seize and searc h a cellphone .” State v. Bal dwin , 614 S.W.3d 411 , 4 17

- 18 (Tex. App.

— H ouston [14th Dist.] 2020, pet. granted) ; aff ’ d ,7

N o . PD

- 0027

- 21 , 2022 W L 1499508,

— S.W.3d

— (Tex. C rim. App

. May 11, 2022)

. Rather, prob able cause to s ear ch a cell phone must be est ablished through “a connect ion 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 affid av it “m ust u sual ly include facts that a cell phone was used d uring t he crime or shortly before or after.” Baldwin , 614 S.W.3d at 415 ( citing Diaz , 604 S.W.3d at 603 )

. The affidavi t in appellant ’ s case s provides a variety of facts that connect the

c ell pho ne to t he narcoti cs o ff ense. Specifically, the affidavit sup p lies fa cts desc ribing how the cell phone i n question was used by appellant to ( 1) send
messages in connection with the s ale of cocaine , (2) threaten Officer Valle in his capacity as a pol ice officer, (3) s et up a ti me and location to conduct the cocai ne

s a le, and (4) assist Valle in identif ying appella nt and his vehicle in furtherance of meeting to make the sale. Suc h facts

— show ing appellant used his cell phone at multipl e instances throu ghout the underlying off ense , an attempted drug sale

— stark ly con tras t from t hose in our en banc d ecisi on recently affirmed by the Criminal Court of Appeals in which we discovered “ no facts showing [] that a cell phone was used d uring the crim e or shortly before or after [] ”

. See St ate v. Baldwin , 614 S.W.3d at 418

. Though ap p ellant conced es that the “ affidavit may have provided probable

cause ” to search for text messages on appellant ’ s c ell p hone, ” he argues that the

warrant allowed for an unfettered and unli mited search of th e phon e ’ s photographs , videos , emails, browsing hi s tory, c ontact information , and “ [c]omputer files or fragments of files, photographs, videos, CD

- ROM ’ s, CD ’ s, DVD ’ s, t humb dr ives, SD Cards, flash drives ”

. In Diaz , we explained that if a warrant permi ts a se ar ch o f “all computer records” without descrip t ion or l imitation, it will not meet Fourth Amendment8

particularity requirements ; ho w ever , a search of computer records that is limited to those relate d to the offense set forth in the affidavit is appro pri ately limi ted. Diaz , 60 4 S.W.3d at 605 ( “the warra n t must affirmatively limit the search to evidence of specific crimes or types of mat erial.” ) (emp has is ad ded ). Appellant ’ s position , much like the appellant in Diaz , is pr emised on the

cont ention that particul arit y re quirem ents are stricter than t he law demands , so as to render unconstitution al a search of a cell phone used to comm it an offense because the d ata perm itted by search m ight include some non

- offense related d ata

. Diaz , 604 S.W.3d at 606 ( “ T h ough th e ge neral object o f the warrant

— a ‘ for ensic

a n alysis ’ of specific categories of electronic data stored on appellant ’ s cell phones

— ‘ tacitly encomp asses electron ic da ta that might, upon a thorough forensic examination, be identified as bein g non

- offense rela ted, ’ we do not co nstrue the

warrant a nd the a ccompa nying affidavit as ‘ allow [ing] an unfettered and unlimited search ’ of appella nt ’ s cell phones ” ). The dissent takes on a similarly restrictive view , equating the result we reach as permitting an unfettere d an d unlimited search

. Diaz inst ructs us th a t it is sufficient her e that the sup porting affidavit states th at t he search was for evidence “ relevant and material to the criminal investigation noted in this affid avit ,” and the affidavit and warrant listed s pec i fic types of da ta that likely contained s uch rel evant an d material eviden c e

. See Dia z , 604 S.W.3d at 60 7

. Because the warran t and supporting affidavit dire ctly link the evidence being sought to the offense being investigated at the time the war rant wa s

o b tained, the search was not an overbroad g eneral search. See id

. citing Farek v.
State , No. 01

- 18

- 00385

- CR, 2019 WL 2588106, a t *8 (Tex. App.

— Houston [1 s t Di st.] June 25, 2 019, pet. ref ’ d) (me m. op., not designated for publication)

. A c cordingly , the se cond warrant leading the police to discover t he chil d9

pornogr aphy on appellant ’ s cellphone was not “ the fruit of the poi sonous t ree. ” We therefore overrule appe llant ’ s sole is sue.

III. M ODIFICA T ION OF THE J UDGMENT We modify the trial cour t ’ s judgment to d elet e the notation that appella nt entered pl e a s of “ guilty ” and that terms of plea bargain s were “without an agreed
recommendat ion

– court trial.” We modify th e judgment s to i ndicate appellan t ’ s

“ not guilty ” plea. We affirm the judgment a s so modified. See Tex . R. App. P. 43.2(b); see a lso French v

. S tate , 830 S.W. 2d 607, 609 (Tex. Crim. App. 1992) (“[A]n appellate court has author ity to reform a judgment to ... make the recor d speak the trut h w hen the matter has been called to its attenti on by any source”)

.

/s/ Randy Wilson Justic e
Panel consis ts of J ustic es Jewell , Spain , an d Wilson ( J. Spain, dissenting). Do Not Publish

— Tex. R. App. P. 47.2(b)