In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-16-00224-CR

___________________________

On Appeal from the 297th District Court

Tarrant County, Texas

Trial Court No. 1395158D

Before Walker and Pittman, JJ., and Charles Bleil, Senior Justice, Retired

Memorandum Opinion by Justice Pittman

CARTER CAROL CERVANTEZ, Appellant

V.

THE STATE OF TEXAS
2

MEMORANDUM OPINION

Carter Carol Cervantez appeals from her jury conviction for capital murder and 

automatic life sentence. She raises three points on appeal: (1) the trial court erred by 

denying her counsel’s motion to withdraw based on the State’s failure to comply with 

the Michael Morton Act; (2) the trial court erred by admitting recorded statements of 

her accomplice when he was not available for cross-examination; and (3) the trial 

court erred by denying her motions to suppress. We affirm.

BACKGROUND

Cervantez does not challenge the sufficiency of the evidence to support her 

conviction. Because her issues on appeal are procedural, we provide only a short 

background.

Our review of the record shows sufficient evidence to prove that Cervantez 

and her boyfriend Clarence David Mallory––former employees of an American Eagle 

Outfitters (AEO) store at Hulen Mall who had been suspected of stealing almost 

$18,000 from the store’s safe and were subsequently fired––drove to the assistant 

store manager Ashlea Harris’s apartment, hit and choked her, bound her hands and 

feet with duct tape, and set fire to the apartment and her body. The evidence also 

supports a reasonable inference that they stole Harris’s keys, which included the AEO

store keys, and attempted to burglarize the store again early the next morning, the day 

after Black Friday sales. Fort Worth police, who had been staking out Cervantez’s 

residence, followed the pair to the mall and arrested Mallory in his car outside after
3

Cervantez went inside. Police could not find Cervantez inside the mall but found her 

later in the laundry room at her apartment; surveillance video confirmed she had 

walked the two miles home. 

The police’s investigation of the crime scene had quickly led to Cervantez and 

Mallory because

• one witness at Harris’s apartment complex saw a 2008 black Infiniti with a 

toll tag parked next to Harris’s car at 7:00 a.m. and 7:30 a.m. the morning of 

the murder;

• a second witness who lived in the apartment below Harris’s saw a 2008 black 

Infiniti G351 leaving the apartment complex around 7:30 a.m. after hearing a

prolonged loud scream or yell, followed by a thud, labored breathing, and the 

door slamming, from Harris’s apartment; and

• the AEO store manager told police that Harris had been responsible for 

reporting Cervantez and Mallory as suspects in the prior theft and that 

Cervantez drove a black Infiniti.

After a grand jury indicted Cervantez, the State waived the death penalty and 

tried Cervantez before Mallory.

 1

Cervantez drove an Infiniti G37, which a witness testified look alike. 
4

DISCUSSION

I. Denial of Attorney Ray’s Motion to Withdraw Was Not An Abuse of 

Discretion

In her first point, Cervantez complains that the trial court erred by denying a 

motion to withdraw by one of her trial attorneys, Bill Ray,2 which was based on the 

State’s alleged delay in providing discovery items in violation of the Michael Morton 

Act. According to Cervantez, “[t]his is a case of first impression . . . as to what should 

happen when the State does not provide a significant percentage of its case and the 

defense is compelled to review the matters provided late, and continue without the 

adequate time to examine the case as a whole.” Although her argument appears to 

primarily complain about the trial court’s denial of her verbal motion for continuance, 

we cannot review that ruling on appeal. See Blackshear v. State, 385 S.W.3d 589, 591 

(Tex. Crim. App. 2012). Thus, we will instead review whether the trial judge abused 

his discretion by denying Ray’s motion to withdraw.

A. Law Applicable to Attorney Ray’s Motion to Withdraw

We review a trial court’s decision on a motion to withdraw for an abuse of 

discretion. King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000); Johnson v. State, 

352 S.W.3d 224, 227 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). The trial 

court should balance the matters asserted with the potential for obstruction to the 

judicial process or interference with the administration of justice. King, 29 S.W.3d at 

 2

The trial court had appointed Steve Gordon as Cervantez’s other trial counsel. 
5

566; Ibarra v. State, 456 S.W.3d 349, 355 (Tex. App.—Houston [14th Dist.] 2015, pet. 

ref’d).

The Michael Morton Act amended and enlarged article 39.14 of the code of 

criminal procedure relating to the State’s duty to provide discovery to criminal 

defendants. See Act of May 14, 2013, 83rd Leg., R.S., ch. 49, §§ 1–2, 2013 Tex. Sess. 

Law Serv. 106, 106–08; Moody v. State, 551 S.W.3d 167, 171 (Tex. App.––Fort Worth 

2017, no pet.). Article 38.14(a) requires the State to provide discoverable material “as 

soon as practicable” upon receiving a defendant’s timely request, and subsection (j) 

requires that before trial the parties must “acknowledge in writing or on the record in 

open court the disclosure, receipt, and list of all documents, items, and information 

provided to the defendant” in accordance with the statute. Tex. Code Crim. Proc. 

Ann. art. 39.14(a), (j) (West Supp. 2018). Article 39.14 does not contain an express 

remedy for the State’s delay in providing discovery items. See id. art. 39.14.

B. Background Facts Applicable to Attorney Ray’s Motion to Withdraw

Immediately before trial began, Attorney Ray informed the trial court in the 

context of arguing a motion to suppress that the State had not made 162 discoverable 

items available to the defense until less than 40 days before trial and had not made 

46 or 48 of those items available to the defense until less than 30 days before trial. 

Ray did not list the specific items, and the State responded by identifying some items 

that had been available to the defense since 2014 and 2015. The prosecutor also told 

the trial judge that the State had transitioned to a different electronic discovery system 
6

while the case had been pending, that the transition had been “rocky,” and that in the 

past couple of months before trial––when Ray informed the State he was having 

trouble accessing documents––the State was able to show him where they were 

located in the system. But the prosecutor could not verify that every document had 

been made accessible to the defense. 

Attorney Ray referred specifically to a GPS unit upon which he was trying to 

obtain testing; he asserted that although the State had possessed the unit since January 

2015, he did not know about its existence until April 15, 2016, a month before trial.

He had filed a motion to suppress any information from the GPS and any cell phone 

and cell tower data that testing of the GPS unit could possibly support or contradict. 

The State told the trial judge it was not intending to offer the GPS records, and the 

trial judge indicated that he would suppress them anyway. But Ray stated that 

depending on whether he could get testing of the GPS unit, he might be able to use 

those results to support his motion to suppress the cell phone and cell tower records.

3

When the trial court asked, “So you’re making a possible Brady request?” he answered 

yes. 

The State responded,

We did not have a report on the GPS analysis. The -- just so 

we’re real clear on the record as to what we are talking about, there was a 

GPS unit in the vehicle, and that was analyzed, separate and apart from 

 3

Cervantez concedes in her brief that the GPS unit ultimately failed to yield any 

results. 
7

the telephones. That warrant and affidavit to do that has been in 

TechShare -- ECFS . . . for the pendency of this litigation. The -- there 

was an analysis going on, but we didn’t get the report until shortly before 

the -- a little while ago, March.

There was no need -- there was no reason why [Ray] had to wait, 

if he wanted to analyze that. All he had to do was ask. All he had to do 

was ask, and it would have been done. We had the copy made. We – we

did not need it physically anymore -- I mean, the unit. We could have 

given him anything he asked for at any time. The only thing that we 

were slow on was actually getting our report.

When we finally got our report, it said there’s nothing we can do. 

There is no information that we can discern from the hard drive or from 

the chip within -- that is within the system.

. . . .

[Ray’s] original concern was the fact the last sentence of the 

report essentially said more analysis is needed, or analysis is ongoing.

I have since, in the last -- well, two days ago or yesterday, I got an 

e-mail from Detective Randolph, who was conducting that analysis, who 

had shipped -- had shipped that question out to the current owners of 

the software, and they said there is nothing that we can do, and I’ve told 

[Ray] that this morning.

The trial judge then denied Cervantez’s pending suppression motions.

Attorney Ray responded that he was not ready to go to trial because so many 

discovery items had not been provided until the 30-day period before trial. He told 

the trial court that he feared he would be ineffective because he was “having trouble 

keeping up with what’s downloaded and what’s not.” The trial judge pointed out that 
8

Ray had been working on the case “pretty much ever[] since it got filed,” and he

agreed.4 The judge then denied Ray’s verbal motion for a continuance. 

After going off the record, the trial judge then explained on the record,

First of all, the Court’s satisfied with the competence of both the 

Defense lawyers . . . . The Court is very familiar with their qualifications 

and their abilities, and they are very competent lawyers of their own 

right.

Secondly, I realize everybody -- this case has a lot of information. 

Not all of it is going to be admissible or used against the Defense, and 

not all of it had been uploaded in the last 30 days. Some of it has. But 

nonetheless, I think the issues that [Ray] is talking about, for the most 

part, have been resolved in terms of DNA and in terms of the -- the 

possible introduction of any information on the 2008 Infiniti GPS.

At this stage, I will find the Defense is not ineffective, and that 

they have had time to go over the discovery. And the only thing I’m 

going to suppress right now is the information in regards to Amazon, 

Search Warrant Number 32677, because it just flatly wasn’t complied 

with under 39.14. I don’t think it’s anybody’s fault. I think it was just an 

accident.

Ray then asked to withdraw––but Attorney Gordon did not––and the trial court 

denied his motion to withdraw. 

The next day, the State filed a list of discovery items that it had provided to the 

defense, with the dates it had made those items available. Neither Ray nor Gordon 

signed the list. 

 4

The District Attorney’s office filed a sworn complaint on December 10, 2014, 

and the trial court appointed Gordon to represent Cervantez that day. The clerk’s 

record does not contain an order appointing Ray, but he signed a plea offer 

acknowledgement in April 2015, a little under two months after a grand jury indicted 

Cervantez. 
9

C. Attorney Ray Was Not Ineffective

Although Attorney Ray argued at trial that he believed he would be ineffective, 

Cervantez does not raise an ineffectiveness claim on appeal. See Smith v. State, 

Nos. 14-17-00330-CR, 14-17-00331-CR, 2018 WL 3354857, at *5 (Tex. App.—

Houston [14th Dist.] July 10, 2018, pets. filed) (mem. op., not designated for 

publication) (noting that although one of counsel’s stated reasons for asking to 

withdraw was an ineffectiveness concern, appellant did not raise ineffectiveness on 

appeal). Additionally, the record shows that Ray had been representing Cervantez for 

at least a year before trial. He did not ask to withdraw until a week before trial. 

Cf. Ibarra, 456 S.W.3d at 355 (“Appellant’s counsel filed a motion to withdraw less 

than a week before trial. Given the proximity of the trial setting, the length of time 

the case had been pending, and appellant’s failure to take steps to retain another 

lawyer or submit proof of indigency, the trial court did not abuse its discretion in 

denying counsel’s motion to withdraw.”). Ray and Gordon participated in a two-week 

trial at which part of their strategy was to show that the police could not definitively 

place Cervantez at Harris’s apartment simply because she drove a black Infiniti. Ray

filed and signed four motions to suppress, two of which expressly asserted this 

defensive theory. He also challenged all of the search warrant evidence based on this 

defensive theory––including any potential GPS results, cell phone and cell tower 

records, DNA and other items seized from Cervantez’s car, Cervantez’s bank records, 

and photographs.
10

Moreover, we cannot say that the trial court abused its discretion by denying 

the motion to withdraw when Ray was not able to identify the effect of the delay of 

obtaining any particular item, other than the GPS––which he could not have tested 

and which the trial court would have suppressed. We hold that the trial court did not 

abuse its discretion by denying Ray’s motion to withdraw, which was, in effect,

another attempt to obtain a continuance. We overrule Cervantez’s first point.

II. Admission of Recording with Mallory’s Voice in Background Not Error

In her second point, Cervantez contends that the trial court erred by admitting 

part of the audio of a recording from Mallory’s cell phone in which Mallory can be 

heard talking in the background with Cervantez about where AEO employees park at 

the mall. According to Cervantez, the trial court’s admission of the audio of Mallory’s 

comments violated her Confrontation Clause rights because she could not call him as 

a witness or cross-examine him about what he said. See U.S. Const. amends. VI, XIV.

A. Cervantez Preserved Her Objection to Admission of the Recording

The State contends that Cervantez’s objection to its playing the audio of the 

recording for the jury was untimely and, thus, that she did not preserve her complaint. 

An objection must be made as soon as the basis for the objection becomes apparent. 

Tex. R. Evid. 103(a)(1); London v. State, 490 S.W.3d 503, 507 (Tex. Crim. App. 2016).

Ordinarily, this is before the trial court admits evidence. See Ethington v. State, 

819 S.W.2d 854, 858 (Tex. Crim. App. 1991). But if the grounds for the objection 
11

were not present until after the evidence was admitted, an objection after admission is 

timely. Lackey v. State, 364 S.W.3d 837, 843–44 (Tex. Crim. App. 2012).

When the State initially offered the cell phone recording, State’s Exhibit 372, 

the trial judge asked if Cervantez had any objection, and counsel responded, “Not at 

this time.” The trial court then admitted the exhibit “for all purposes.” But when the 

State published the video to the jury, it did not play the audio portion on which 

Mallory’s statements can be heard. When the State attempted to replay the video for 

the jury along with the audio from both Mallory and Cervantez, Cervantez objected 

because Mallory was not subject to cross-examination about what he said. Although 

the trial judge initially stated that Cervantez’s objection was untimely, he entertained 

argument on the objection from both parties. 

Ultimately, the trial court ruled that the jury could hear Mallory’s statements on 

the video because they are nontestimonial, overruled Cervantez’s objection, and 

allowed the State to publish the video and audio in their entirety to the jury.

Although Cervantez did not object when the trial court admitted the exhibit 

“for all purposes,” the State did not initially publish the audio of Mallory’s voice. 

Cervantez immediately objected when the State asked to do so. Because it is unclear 

whether the State intended to publish the audio of Mallory’s statements at the time 

the evidence was first admitted or whether that ground for objection was not 

apparent to Cervantez until the State specifically requested to publish it––and because 
12

the trial court considered and ruled on the merits of the specific complaint––we will 

review this point. See id.

B. Cervantez’s Sixth Amendment Rights Were Not Violated

At trial and on appeal, Cervantez argues that the publication of Mallory’s part 

of the audio in State’s Exhibit 372 violated her Sixth Amendment right to 

confrontation. She relies on cases that involved the admission of accomplice 

confessions to law enforcement that implicated the defendant. See Gray v. Maryland, 

523 U.S. 185, 196–97, 118 S. Ct. 1151, 1157 (1998); Richardson v. Marsh, 481 U.S. 200, 

208–09, 107 S. Ct. 1702, 1707–08 (1987); Bruton v. United States, 391 U.S. 123, 135–36, 

88 S. Ct. 1620, 1627–28 (1968); Harper v. United States, 527 F.3d 396, 403 (5th Cir. 

2008); U.S. v. Garcia, 836 F.2d 385, 390 (8th Cir. 1987); Clark v. Maggio, 737 F.2d 471, 

477–78 (5th Cir. 1984), cert. denied, 470 U.S. 1055 (1985). But those holdings are 

inapposite because the admitted statements in those cases were all confessions to law 

enforcement and thus testimonial in nature; the Sixth Amendment does not exclude 

nontestimonial statements by an unavailable witness. See Michigan v. Bryant, 562 U.S. 

344, 354, 131 S. Ct. 1143, 1153 (2011) (discussing Crawford v. Washington, 541 U.S. 36, 

68, 124 S. Ct. 1354, 1374 (2004)); Sanchez v. State, 354 S.W.3d 476, 485 (Tex. Crim. 

App. 2011). 

Cervantez has not analyzed whether Mallory’s statements on the video are 

testimonial, but they clearly are not. Testimonial statements include those “made 

under circumstances which would lead an objective witness reasonably to believe that 
13

the statement would be available for use at a later trial.” Crawford, 541 U.S. at 52, 

124 S. Ct. at 1364; Burch v. State, 401 S.W.3d 634, 636 (Tex. Crim. App. 2013) (“While 

the exact contours of what is testimonial continue to be defined by the courts, such 

statements are formal and similar to trial testimony.”). Generally, a co-conspirator’s 

statements made in the furtherance of the conspiracy are nontestimonial. See King v. 

State, 189 S.W.3d 347, 359 (Tex. App––Fort Worth 2006, no pet.) (citing Crawford,

541 U.S. at 56, 124 S. Ct. at 1367). Here, the video, when viewed in context of the 

other cell phone evidence (including text messages), does not show that Mallory had a 

reasonable belief that it would be used at trial; instead, it is further documentation of 

Cervantez’s and Mallory’s orchestrated plan to break into and steal cash in the safe of 

the AEO store, statements they could hardly have desired or anticipated would be 

admitted in court had they effected their plan. Thus, we hold that the trial court’s 

admission of the entirety of State’s Exhibit 372 did not violate Cervantez’s 

Confrontation Clause rights.5

We overrule Cervantez’s second point.

 5

Although Cervantez states in her brief––without citing any authority––that 

Mallory’s statements on the audio are not “the statement[s] of a co-conspirator” for 

purposes of admissibility under rule 801(e)(2)(E), she provides no authority for this 

statement. Tex. R. Evid. 801(e)(2)(E). When the trial judge asked whether Mallory’s 

statements should be admissible as a statement of a co-conspirator, her counsel 

conceded, “I don’t see how it couldn’t be.” Regardless, she does not include 

argument or citations in her brief for the assertion that Mallory’s statements were 

inadmissible under general hearsay rules. See Tex. R. App. P. 38.1(i).
14

III. Trial Court Did Not Abuse Discretion by Denying Motions to Suppress

In her third point, Cervantez challenges the trial court’s denial of her motions 

to suppress that challenged all of the evidence obtained pursuant to nine search 

warrants and accompanying affidavits because, on their faces, they fail to show that 

the black Infiniti witnesses saw at the apartment complex was Cervantez’s black 

Infiniti and therefore fail to show probable cause. For the reasons set forth below, we 

disagree.

A. Law Applicable to Our Review of the Search Warrants

We uphold a magistrate’s probable cause determination if the magistrate had a 

substantial basis for concluding that a search would uncover evidence of wrongdoing.

Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 2331 (1983); Swearingen v. State, 

143 S.W.3d 808, 810 (Tex. Crim. App. 2004). In assessing the sufficiency of a

supporting affidavit for an arrest or a search warrant, we review only the four corners 

of the affidavit, Jones v. State, 833 S.W.2d 118, 123 (Tex. Crim. App. 1992), cert. denied, 

507 U.S. 921 (1993), and interpret it in a common sense and realistic manner, 

recognizing that the magistrate was permitted to draw reasonable inferences, Davis v. 

State, 202 S.W.3d 149, 154 (Tex. Crim. App. 2006).

Probable cause exists when the facts and circumstances shown in the affidavit 

would warrant someone of reasonable caution to believe that the items to be seized 

were in the stated place. State v. Elrod, 538 S.W.3d 551, 556 (Tex. Crim. App. 2017). 

In reviewing a magistrate’s probable cause determination, we need not “delve into all 
15

of the facts that were omitted by the affiant, facts that could have been included in the 

affidavit, or contrary inferences that could have been made by the magistrate”; 

instead, “[t]he only issue is whether the facts that actually were in the affidavit, 

combined with all reasonable inferences that might flow from those facts, are 

sufficient to establish a ‘fair probability’” that evidence would be found in the 

specified location. See Rodriguez v. State, 232 S.W.3d 55, 64 (Tex. Crim. App. 2007).

B. Facts Applicable to the Nine Search Warrants

Cervantez challenges the trial court’s denial of her motions to suppress all of 

the evidence obtained pursuant to nine warrants and accompanying affidavits6 on one 

ground: on their faces, they did not sufficiently connect the black Infiniti witnesses 

saw at Harris’s apartment complex to Cervantez’s black Infiniti. We can classify the 

warrants into two groups: (1) the capital murder arrest warrant,

7 warrant to obtain 

Cervantez’s DNA, and the two warrants to search Cervantez’s apartment (the First 

 6

In her briefing, Cervantez challenges the evidence obtained from all of the 

twenty-two warrants included in Defendant’s Exhibit 11, which the trial court 

admitted for record purposes only. But the trial court determined that she did not 

have standing to challenge thirteen of them. Although Cervantez contends that the 

trial court was wrong about standing as to two of these warrants, she does not provide 

argument or authority in support of her contention. See Tex. R. App. P. 38.1(i). 

Nevertheless, even if the trial court erred by determining that Cervantez lacked 

standing to challenge evidence obtained pursuant to those two warrants, the same 

merits analysis that we apply to the other nine would apply to those two.

7

The trial court appears to have misread the number for Cervantez’s arrest 

warrant in determining standing; however, the facts in support of both Cervantez’s 

and Mallory’s arrest warrants are substantially the same. 
16

Group); and (2) the warrants to search Cervantez’s cell phone, car, and GPS (the 

Second Group).

(1) The First Group of Search Warrants

The affidavits in support of the warrants in the First Group are more detailed 

than those in the Second Group and contain the following pertinent facts:

• Harris worked at the AEO store at Hulen Mall; 

• several months before the murder, Harris had reported Cervantez and 

Mallory as suspects in the theft of “a large amount” of currency from the store;

• after Harris made the report, Cervantez’s and Mallory’s employment was 

terminated;

• Steve Lee, a neighbor of Harris’s, saw a black Infiniti with a toll tag parked 

outside the apartment complex next to Harris’s truck around 7:20 a.m. the 

morning of the murder;

• another neighbor, Patrick Sweet, who lived in the apartment below Harris’s, 

heard a loud thump and screaming around 7:30 a.m. that morning; when he 

looked out his window, he saw a black Infiniti driving away from the complex;

• Cervantez owned a 2008 black Infiniti;

• the day after the murder, police followed Cervantez and Mallory in her black 

Infiniti to Hulen Mall, where Mallory dropped off Cervantez, who went inside 

but never came back out;
17

• a Fort Worth police officer found Cervantez walking in her apartment 

complex about three hours later; and 

• a Fort Worth police officer took a picture of Cervantez’s Infiniti and showed 

it to Lee, who said it looked the same as the car he saw parked by Harris’s truck 

the morning of the murder.

(2) The Second Group of Search Warrants

The affidavits supporting the warrants in the Second Group contain 

substantially similar facts but do not state that Lee identified a photograph of 

Cervantez’s Infiniti. Instead, they contain the following:

• shortly before the fire department and police arrived at Harris’s apartment on 

the morning of the murder, two witnesses saw a black Infiniti G35 with a toll 

tag leave the parking spot next to Harris’s truck;

• Cervantez and Mallory had worked with Harris at the AEO store, Harris had 

recently reported them both as suspects in a theft of $18,000 from the store, 

and they were both terminated from employment;

• Fort Worth police learned that Cervantez had a 2008 black Infiniti G37 and 

were able to verify Cervantez’s license plate number and address;

• police followed Cervantez and Mallory in the black Infiniti to Hulen Mall, 

where they parked the Infiniti in different areas of the lot and then Cervantez 

went inside;

• the mall was closed and their behavior was suspicious; and
18

• when police contacted Mallory in the parking lot, he told them Cervantez was 

a manager of Aeropostale and was going inside to do paperwork, but an officer 

who talked to a person inside the mall discovered Cervantez was not an 

Aeropostale employee.

C. The Affidavits Are Sufficient to Support the Issuance of the Nine 

Search Warrants

We hold that these facts are sufficient to show a substantial basis for 

concluding that the searches would uncover evidence of wrongdoing. 

For the First Group affidavits, an eyewitness identified Cervantez’s car as 

looking the same as the car he saw that morning parked at the apartment complex by 

Harris’s truck close to the time firefighters found her bound and burned body. 

Together with the information that Harris, an employee of AEO, had recently 

reported both Cervantez and Mallory as suspects in a theft from the same store, that 

they were both terminated from employment thereafter, and that Cervantez owned a 

black Infiniti, these facts and circumstances would warrant a person of reasonable 

caution to conclude that the police would find evidence of the murder in Cervantez’s 

apartment and from her DNA. See Black v. State, No. 08-12-00338-CR, 2015 WL 

5604388, at *5–9 (Tex. App.––El Paso Sept. 23, 2015, pet. ref’d) (not designated for 

publication); Ford v. State, 444 S.W.3d 171, 193 (Tex. App.––San Antonio 2014), aff’d, 

477 S.W.3d 321 (Tex. Crim. App. 2015), cert. denied, 136 S. Ct. 2380 (2016); cf. Williams 

v. State, No. 01-14-00165-CR, 2015 WL 1135715, at *5–6 (Tex. App.––Houston [1st
19

Dist.] Mar. 12, 2015, pet. ref’d) (mem. op., not designated for publication) (holding 

that search warrant for appellant’s cell phone to find evidence of smash-and-grab 

robbery of jewelry store employees was supported by probable cause when facts 

showed confidential informant obtained watches stolen in the robbery from 

appellant). Although Cervantez argues that no one saw her or a car specifically 

known to belong to her at the crime scene, the police are not required to prove to a 

magistrate that a suspect was actually present at a crime scene before obtaining a 

warrant to look for evidence that could place that suspect at the crime scene. See 

generally Gates, 462 U.S. at 231–32, 103 S. Ct. at 2328–29 (quoting United States v. Cortez,

449 U.S. 411, 418, 101 S. Ct. 690, 695 (1981), for the proposition that probable cause 

“does not deal with hard certainties, but with probabilities”); cf. Lewis v. State, Nos. 01-

09-00530-CR, 01-09-00531-CR, 2010 WL 3450246, at *3 (Tex. App.––Houston [1st

Dist.] Aug. 31, 2010, no pet.) (mem. op., not designated for publication) (“Rangel was 

not required to confirm that the suspected joint actually contained marijuana before 

he could have probable cause to arrest appellant for possession of marijuana.”). 

Although the affidavits supporting the warrants in the Second Group do not 

include the information that Lee identified a photograph of Cervantez’s car, they are 

nevertheless sufficient to support the judges’ probable cause determinations. We are 

not to focus on what facts are not included in the affidavit. See Rodriguez, 232 S.W.3d 

at 62. We hold that the facts set forth in the Second Group affidavits are sufficient to 
20

establish a fair probability that evidence would be found in those locations. See Black, 

2015 WL 5604388, at *5–9; Ford, 444 S.W.3d at 193.

We overrule Cervantez’s third point. 

CONCLUSION

Having overruled all three of Cervantez’s points, we affirm the trial court’s 

judgment. 

/s/ Mark T. Pittman

Mark T. Pittman

Justice

Do Not Publish

Tex. R. App. P. 47.2(b)

Delivered: October 25, 2018