Opinion filed December 8, 2022

In The

Eleventh Court of Appeals __________

No. 11-21-00053-CR

__________

ROBERT WAYNE MCGAUGH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 266th District Court

Erath County, Texas

Trial Court Cause No. 15316

M E M O R A N D U M O P I N I O N

Appellant, Robert Wayne McGaugh, appeals his convictions for three counts 

of sexual assault of a child, all second-degree felonies. See TEX. PENAL CODE

§ 22.011(a)(2)(A), (c)(1), (f) (West Supp. 2022). Appellant filed a motion to 

suppress, alleging that evidence was discovered on his cell phone in violation of his 

Fourth, Fifth, Sixth, and Fourteenth Amendment rights. Following a hearing, the 

trial court denied Appellant’s motion and allowed the State to present the disputed
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evidence during trial, over Appellant’s objections. In his sole issue on appeal, 

Appellant claims that the trial court erred in denying Appellant’s motion to suppress

because Appellant did not voluntarily consent to the search and seizure of his cell 

phone and because he was coerced into sharing the passcode to unlock his cell phone. 

We affirm.

Factual and Procedural History

On the evening of April 4, 2019, “Jane OJB”1 was discovered in a hotel room 

in Stephenville, Texas, with Appellant. Jane was sixteen years old at the time, and 

Appellant was forty-eight years old. Appellant admitted to officers that he met Jane 

on a dating website and that they had communicated electronically since that time. 

Jane confirmed that she and Appellant met on a dating website approximately one 

year prior to April 4, 2019, and that she and Appellant had exchanged nude 

photographs of themselves. Jane further shared with officers that she and Appellant 

had had sexual intercourse at least two times during that time period, though both 

deny that there was any sexual activity on April 4, 2019. 

Appellant voluntarily accompanied officers to the Stephenville Police 

Department on April 4, 2019. Appellant was not under arrest but was read his 

Miranda2 warnings and agreed to speak with officers. Appellant spoke with 

Stephenville Police Sergeant Jeremy Lanier. After about twenty minutes, Appellant 

told Sergeant Lanier that he was tired and asked what would happen if he stopped 

the conversation and continued at another time. Sergeant Lanier told Appellant that 

he could stop the interview, but informed Appellant that his cell phone was staying 

with the officers, “either way.” Sergeant Lanier told Appellant he would be able to 

1

This pseudonym was used in the indictment and during the proceedings below to protect the minor 

child’s identity.

2

Miranda v. Arizona, 384 U.S. 436 (1966).
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download the contents of his cell phone immediately, and asked Appellant for the 

passcode to his cell phone. Sergeant Lanier also told Appellant that if he did not 

share the passcode, the cell phone would have to be sent off and could possibly be 

taken apart and destroyed while retrieving the cell phone’s data. During this 

conversation, Sergeant Lanier informed Appellant that he had probable cause to 

seize Appellant’s cell phone that evening. Sergeant Lanier told Appellant that the 

probable cause consisted of admissions that he and Jane had met on an adult dating 

website, that they had communicated on the cell phone and discussed sex, and that 

Jane admitted the two of them previously had had sex. After confirming that he 

would be allowed to leave that night, Appellant shared his cell phone passcode with 

Sergeant Lanier. 

The next day, April 5, 2019, Appellant was arrested pursuant to an arrest 

warrant, and he was later interviewed by Stephenville Police Detective Kevin 

Fincher. Prior to beginning the formal interview, Detective Fincher read Appellant 

his Miranda rights, which Appellant waived. During the interview, Appellant told 

Detective Fincher that he had “no reason to lie” and that Detective Fincher should 

“go check [his] phone.” Appellant also told Detective Fincher that there were “lots 

of pictures of [Jane]” on his cell phone, and he shared the phone’s passcode when 

asked by Detective Fincher. 

During the hearing on the motion to suppress, Appellant argued that he had 

been coerced into disclosing the passcode to his cell phone and that, without the 

passcode, the evidence from Appellant’s cell phone would have been unavailable. 

Sergeant Lanier and Detective Fincher both denied the use of threats or coercion,

and testified that no forensic analysis was performed on Appellant’s cell phone until 

a search warrant had been issued. Appellant also testified at the hearing. He stated

that he only gave officers his passcode because “they were going to destroy [his] 
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phone”3 and because he had “given [his] passcode over the day before, so what . . . 

was the sense in holding it” back the second day. The trial court denied the motion 

to suppress and, over Appellant’s renewed objection, allowed the data taken from 

Appellant’s cell phone to be presented during trial. In his sole issue on appeal, 

Appellant claims that the trial court erred in denying the motion to suppress.

Standard of Review

We review a trial court’s ruling on a motion to suppress evidence under a 

bifurcated standard of review. Hubert v. State, 312 S.W.3d 554, 559 (Tex. Crim.

App. 2010). At a hearing on a motion to suppress, the trial court is the sole trier of 

fact and judge of the credibility of witnesses and weight to be given to their 

testimony. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). 

Therefore, we afford almost complete deference to the trial court in determining 

historical facts. Id. However, we review de novo the application of the law of search 

and seizure to the facts. Id. When the trial court does not make explicit findings of 

fact, as here, “we view the evidence in the light most favorable to the trial court’s 

ruling and assume the trial court made implicit findings of fact supported by the 

record.” Lerma v. State, 543 S.W.3d 184, 190 (Tex. Crim. App. 2018). We will 

sustain the ruling of the trial court if it is correct under any applicable theory of law. 

Id.

Analysis

Appellant argues that he was made to be a witness against himself when he 

was unable to terminate an interview with officers and that he was coerced into 

sharing the passcode to his cell phone during the first interview with Sergeant Lanier. 

Appellant claims that, despite a valid search warrant issued for his cell phone, 

3

The State informed the trial court that without the passcode, the State would send the cell phone 

to the Secret Service or other forensic entity to perform a “chip off” which “may result in the destruction

of the phone.”
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without the phone’s passcode, the police would never have been able to access any 

data from the cell phone. However, Appellant offered no proof to the trial court that 

the passcode could not be forensically bypassed. Appellant claims that the trial court 

erred in denying his motion to suppress any evidence obtained from his cell phone 

and asks this court to overturn his convictions. The trial court asked Appellant 

whether he was challenging the basis for probable cause for the issuance of the 

search warrant, and Appellant responded that he was not. The search warrant

commanded retrieval of Appellant’s “cellular telephone” (described with 

particularity) and “any data, pictures videos and other similar data” thereon. This

included “but [was] not limited to: pictures, call logs, videos, data, geographical 

data, and other electronically stored information.”

Although a person may have a reasonable and legitimate expectation of 

privacy in the contents of his cell phone, he may lose that expectation under some 

circumstances, such as if he abandons his cell phone, lends it to others to use, or 

gives his consent to its search. State v. Granville, 423 S.W.3d 399, 409 (Tex. Crim. 

App. 2014). There is no contention that this was a warrantless search, which is

where the bulk of litigation regarding cell phone searches has occurred. Id. Here 

Appellant appears to argue that even though a warrant was issued, he provided his 

passcode to officers due to representations made by law enforcement regarding a 

risk of possible phone damage if the cell phone’s contents had to be accessed by 

other means. And, according to Appellant, that constituted impermissible coercion. 

With a search warrant, there is no requirement that the cell phone must be opened 

using the passcode—it would merely be a courtesy to the owner if it could be done 

without the attendant risk of destruction. As authorized by the warrant, law 

enforcement was entitled to open and obtain the cell phone’s contents without 

Appellant’s consent. Appellant provides no caselaw in support of his position that 
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he has been deprived of any constitutional right. There is no evidence in the record 

to suggest that what the officers told him about possible cell phone damage was 

untrue. All of the evidence before the trial court in the suppression hearing indicates 

that it was true. 

Appellant argued that “without [the cell phone’s] passcode there’s no 

evidence”—and to that argument, the trial court responded that there was no 

“competent testimony” to support “that issue.” We note that the State presented 

evidence obtained from sources other than the cell phone. During the hearing on the 

motion to suppress, the State provided video evidence of Sergeant Lanier having 

given Appellant a list of reasons why he had probable cause for the issuance of a 

warrant before Appellant turned over his cell phone to police or provided officers 

with his cell phone passcode. Importantly, Detective Fincher testified that the cell 

phone was not searched until a valid search warrant had been issued. 

The police may legitimately “seize” a cell phone and hold it while they seek 

a search warrant. Granville, 423 S.W.3d at 412. The trial court, as the sole trier of 

fact and judge of the credibility of witnesses and the weight to be given to their 

testimony, could have fairly determined from the testimony that Appellant was not 

unconstitutionally coerced into sharing the passcode to his cell phone. Sergeant 

Lanier testified that he did not threaten or coerce Appellant into sharing his passcode;

he merely informed Appellant that without the passcode, his cell phone might be 

damaged or destroyed in the process of retrieving the information that was stored 

thereon. Sergeant Lanier testified that he told Appellant of this possibility to be 

honest with him, not to coerce or threaten him. The trial court also viewed a 

recording of the conversation between Sergeant Lanier and Appellant. 

The next day, Detective Fincher advised Appellant of his Miranda rights—

which Appellant waived—prior to asking Appellant for the passcode to his cell 
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phone. Regardless of the conversations with Sergeant Lanier, Appellant does not 

claim that Detective Fincher coerced him into sharing the cell phone’s passcode.

The voluntariness of consent to a search is a question of fact to be determined from 

all the circumstances. State v. Weaver, 349 S.W.3d 521, 526 (Tex. Crim. App. 

2011); Meekins v. State, 340 S.W.3d 454, 460 (Tex. Crim. App. 2011). There was 

a reasonable nexus between the crime and the cell phone, including contact with 

Jane by phone, discussions of sex on the cell phone, and an admission of sex. 

Appellant further admitted that there were “lots of pictures of [Jane]” on his cell 

phone. Accordingly, the trial court could have properly determined that the consent 

given by Appellant was “positive[,] unequivocal[,] and [without] duress or coercion, 

actual or implied.” Weaver, 349 S.W.3d at 526. 

Digital media collections specialists are trained to extract information stored 

on electronic devices, including from cell phones. See Clark v. State, No. 09-20-

00083-CR, 2021 WL 5498115, at *2 (Tex. App.—Beaumont Nov. 24, 2021, no pet.) 

(mem. op., not designated for publication); see also In re X.M., No. 07-19-00046-

CV, 2020 WL 2203303, at *3 (Tex. App.—Amarillo May 06, 2020, no pet.) (mem. 

op.). Because Appellant voluntarily provided the passcode to both Officer Lanier 

and Detective Fincher, because a search warrant obviated the need for Appellant’s

consent, because law enforcement had the right and ability to open the cell phone 

contents anyway, and since the uncontested evidence was that no search was 

performed until after a valid search warrant was issued, the trial court was within its 

discretion to determine that Appellant’s constitutional rights had not been violated. 

That, along with Appellant’s admission that he was not challenging the 

probable cause for issuance of the search warrant, are enough to support the trial 

court’s ruling on the motion to suppress. Accordingly, as determined from all the 

circumstances and based on our bifurcated standard of review, we find no violation 
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of Appellant’s Fourth, Fifth, Sixth or Fourteenth Amendment rights, and we overrule 

Appellant’s sole issue.

This Court’s Ruling

We affirm the judgment of the trial court. 

W. BRUCE WILLIAMS

JUSTICE

December 8, 2022

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Bailey, C.J., 

Trotter, J., and Williams, J.