Opinion filed December 8 , 20 2 2



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 2 1

- 00 0 53

- CR

__________
ROBERT WAYNE MCGAUGH , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 266 th 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 conviction s for three counts
of sexual assault of a child , all second

- degree felonies. See T EX

. P ENAL C ODE § 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

. F ollowing a hearing, the trial court denied Appellant’s motion and allowed the State to present the disputed2 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 O J B ” 1 was d iscovered 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 electron ically 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 th emselves. 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 Stephe nville Police Department on April 4 , 2019

. Appellant was not under arrest but was read his
Miranda 2 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 stay ing with the officers, “either way.” Sergeant Lanier told Appellant he would be able to

1 This p seudonym 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).3 download the contents of his cell phon e immediately, and asked Appellant for the

pass code to his cell phone

. Sergeant Lanier also told Appellant that if he did not
sh are the passcode , the cell phone would have to be sent off and could possibly be taken apart and destroyed while re trieving 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 Lanie r 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 pass code 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, Appel lant 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 pass code when
asked by Detective Fincher

. During the hearing on the m otion to s uppress, Appellant argued that he had
been coerced into disclosing the passcode to his cell phone and that , without the

pass code , the evidence from Appellant’s cell phone would hav e been unavailable. Sergeant Lanier and Detective Fincher both denied th e 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]4 phone” 3 and because he had “given [his] passcode over the day before, so what

. . . was the sense in holding it ” back th e second day. The trial court d enied the m otion

to s uppress 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 defer ence 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 he re , “ 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. S tate , 543 S. W.3d 184, 190 (Tex. Crim. App. 2018). W e 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 int erview 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.”5 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 deny ing hi s motion to suppress any evidence obtained from his cell phone
and asks this court to overturn his conviction s

. T he trial court asked Appellant whether he was challenging the basis for probable cause for the issuance of the search warrant, and Appellant responded that h e was not. The search warrant
commanded retrieval of Appellant’s “ cellula r t elephone ” ( described with particularity ) and “ any data, pictures videos and other similar dat a” thereon . T his
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.3 d 3 9 9, 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 ha s occurred

. Id. Here Appellant appears to argue that even though a warr ant was issued, he provid ed his passcode to officers due to re presentations made by law enforcement regarding a risk of possible phone d a mage 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 , the re is no requirement that the cell phone must be opened using the pass code

— it would merely be a courtesy to the owner if it could be done
without the attendant risk of destruction

. A s au thorized 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 posi tion that6 he has been deprived of any constitutional right. There is no evidence in the record to suggest that what the officer s told him about possible cell phone d amage 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 t he State presented
evidence obtained from sources other than the cell phone. D uring t he hearing on the motion to suppress, the State provided video evidence of Sergeant Lanier having giv en 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 F incher 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 t hey 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 passco de, his cell phone might be damaged or destroyed in the process of retriev ing the information that was stored
there on

. 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 Ap pellant waived

— prior to asking Appellant for the passcode to his cell7 phone. Regardless of the conversations w ith S e rge ant 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. Cri m. App. 2011) ; Meekins v. State , 340 S.W.3d 454, 4 60 (Tex. Crim. App. 2011)

. There wa s

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, t he 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.
D igital media collections specialist s 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, 202 1 , no pet.) (mem. op., not designated for publication) ; see also In re X.M. , No. 07

- 19

- 00046

- CV, 2 020 WL 2203303 , at *3 (Tex. App.

— Amarillo May 06, 2020 , no pet.) (mem. op.)

. Because Appellant voluntarily provided the passcode to both O fficer Lanier
and De te ctive Fincher , b ecause a search warrant obviated the need for Appellant ’s consent, because law enforcement had the right and ability to open the cell p h one
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 admissio n 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 violation8 of A ppellant’s Fourt h , Fifth, Sixth or Fourteenth Amendment rights , and w e overrule Appellant’s sole issue. This Court’s Ruling We affirm the judgment of the trial court.

W. BRUCE WILLIAMS
JUSTICE

December 8 , 20 2 2 Do not publish. See T EX

. R. A PP

. P. 47.2(b).
Panel consists of: Bailey , C.J., Trotter, J., and Williams, J.