Affirmed and En Banc Majority, Concurring, and Dissenting Opinions filed 

December 10, 2020.

In The

Fourteenth Court of Appeals

NO. 14-19-00154-CR

THE STATE OF TEXAS, Appellant

V.

JOHN WESLEY BALDWIN, Appellee

On Appeal from the 208th District Court

Harris County, Texas

Trial Court Cause No. 1527611

EN BANC CONCURRING OPINION

In this interlocutory appeal from an order granting a motion to suppress the 

majority concludes the search warrant affidavit did not contain sufficient facts to 

establish a fair probability that a search of the cellphone found in Baldwin’s vehicle 

would likely produce evidence in the investigation of the murder. En route to that 

conclusion the majority analyzes the nexus between Baldwin’s vehicle and the 

offense and concludes there was no nexus between Baldwin’s vehicle and the alleged 
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capital murder. I disagree with the majority’s conclusion that there was no nexus 

between Baldwin’s vehicle and the offense. Because I agree with the majority’s 

conclusion that the search warrant affidavit did not establish a nexus between 

criminal activity and the cellphone I concur in the court’s judgment.

The background facts are sufficiently stated in the en banc majority and 

dissenting opinions. I write separately to address the trial court’s ruling on probable 

cause and reasonable inferences. 

I agree with the dissent’s analysis with regard to the nexus between the vehicle 

Baldwin was driving and the alleged offense1. As noted by the dissent, however, that 

does not end our analysis. Relying on Riley v. California, 573 U.S. 373, 401 (2014), 

which addressed the warrantless search of a cellphone incident to arrest, the dissent 

correctly notes that the evidence showing a nexus between the vehicle and the 

alleged offense is not sufficient by itself to support the search of the cellphone. There 

must have been additional facts in the affidavit establishing probable cause that a 

search of the cellphone would likely produce evidence in the investigation of the 

capital murder. See Tex. Code Crim. Proc. art. 18.0215(c)(5)(B).

We normally review a trial court’s motion-to-suppress ruling under a 

bifurcated standard of review, under which we give almost total deference to the trial 

court’s findings as to historical facts and review de novo the trial court’s application 

of the law. State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011). However, 

1 The affidavit references twice to a “white 4-door sedan”, once to “a white, 4-door Lexus vehicle, 

bearing Texas license plate #GTK-6426,” once to “a white, 4-door vehicle, similar in appearance 

to the white Lexus registered under license plate GTK-6426,” and once to “the vehicle” when 

referring to a vehicle observed to have circled three times in front of the crime scene. Known to 

the citizen informants, and to police, was distinctive body damage including a two to three foot 

gash in the right quarter panel and a distinctive dent on the rear facing portion of the trunk. 

However, since the facts describing the distinctive nature of the vehicle were not included in the 

affidavit, this specificity is not included in our analysis of the magistrate’s knowledge.
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when the trial court determines probable cause to support the issuance of a search 

warrant, credibility is not at issue; rather, the trial court grants or denies a motion to 

suppress based on what falls within the four corners of the affidavit. Id. When 

reviewing a magistrate’s decision to issue a warrant, appellate courts as well as trial 

courts apply a highly deferential standard of review because of the constitutional 

preference for searches conducted under a warrant over warrantless searches. Id. As 

long as the magistrate had a substantial basis for concluding that probable cause 

existed, we will uphold the magistrate’s probable-cause determination. Id. We are 

not to view the affidavit through hypertechnical lenses; instead, we must analyze the 

affidavit with common sense, recognizing that the magistrate may draw reasonable 

inferences from the facts and circumstances contained in the affidavit’s four corners. 

Id. When in doubt, we defer to all reasonable inferences that the magistrate could 

have made. Id. at 272; see also Foreman v. State, Nos. PD-1090-18; PD-1091-18, 

2020 WL 6930819 at *3 (Tex. Crim. App. Nov. 25, 2020).

Although no single rubric definitively resolves which expectations of privacy 

are entitled to protection under the Fourth Amendment to the United States

Constitution, the analysis is informed by historical understandings of what was 

deemed an unreasonable search and seizure when the Fourth Amendment was 

adopted. Carroll v. United States, 267 U.S. 132, 149 (1925). On this score, the 

Supreme Court has recognized that the Fourth Amendment seeks to secure “the 

privacies of life” against “arbitrary power.” Boyd v. United States, 116 U.S. 616, 630 

(1886). Second, and relatedly, the Court recognized that a central aim of the Framers 

was “to place obstacles in the way of a too permeating police surveillance.” 

Carpenter v. United States, — U.S. —, 138 S. Ct. 2206, 2213–14 (2018) (quoting 

United States v. Di Re, 332 U.S. 581, 595 (1948)).

The Fourth Amendment, as well as Article 1, section 9 of the Texas 
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Constitution, requires that a warrant affidavit establish probable cause to believe a 

particular item is at a particular location. Jennings v. State, 531 S.W.3d 889, 892 

(Tex. App.—Houston [14th Dist.] 2017, pet. ref’d). The core of the Fourth 

Amendment’s warrant clause and article I, section 9, of the Texas Constitution is 

that a magistrate may not issue a search warrant without first finding probable cause 

that a particular item will be found in a particular location. State v. Duarte, 389 

S.W.3d 349, 354 (Tex. Crim. App. 2012); see U.S. Const. amend. IV; Tex. Const. 

art. I, § 9. Under the Fourth Amendment, probable cause exists when, under the 

totality of the circumstances, there is a fair probability or substantial chance that 

contraband or evidence of a crime will be found at a specified location. Bonds v. 

State, 403 S.W.3d 867, 873 (Tex. Crim. App. 2013); Long v. State, 525 S.W.3d 351, 

366 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d) (citing Illinois v. Gates, 462 

U.S. 213, 238 (1983)). This standard is “flexible and nondemanding.” Bonds, 403 

S.W.3d at 873.

Probable cause must be found within the “four corners” of the affidavit 

supporting the search warrant. McLain, 337 S.W.3d at 271. Magistrates are 

permitted to draw reasonable inferences from the facts and circumstances contained 

within the four corners of the affidavit. Davis v. State, 202 S.W.3d 149, 154 (Tex. 

Crim. App. 2006). However, “[w]hen too many inferences must be drawn, the result 

is a tenuous rather than substantial basis for the issuance of a warrant.” Id. at 157. 

Probability cannot be based on mere conclusory statements of an affiant’s belief. 

Rodriguez v. State, 232 S.W.3d 55, 61 (Tex. Crim. App. 2007). A reviewing court’s 

assessment of the affidavit’s sufficiency is limited to “a reasonable reading” within 

the four corners of the affidavit while simultaneously recognizing the magistrate’s 

discretion to draw reasonable inferences. Duarte, 389 S.W.3d at 354.

The Court of Criminal Appeals has observed that “a cell phone is unlike other 
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containers as it can receive, store, and transmit an almost unlimited amount of private 

information” that “involve[s] the most intimate details of a person’s individual life, 

including text messages, emails, banking, medical, or credit card information, 

pictures, and videos.” State v. Granville, 423 S.W.3d 399, 408 (Tex. Crim. App. 

2014). Because such information may or may not be “associated with criminal 

activity,” depending on the circumstances, the State must prove on a case-by-case 

basis that the incriminating nature of the cell phone was immediately apparent to the 

officers who seized it, based on the facts and circumstances known to the officers at 

the moment the phone was seized.

“Regarding computers and other electronic devices, such as cell phones, case 

law requires that warrants affirmatively limit the search to evidence of specific 

crimes or specific types of materials.” Diaz v. State, 604 S.W.3d 595, 605 (Tex. 

App.—Houston [14th Dist.] 2020, pet. granted). In Diaz, this court found the search 

warrant affidavit sufficiently connected the cellphone with the offense being 

investigated. Id. at 604 (“The affidavit stated that two men were involved in the 

home invasion and that police recovered several parts of one or more cell phones at 

the scene. From this, the magistrate reasonably could infer that the perpetrators 

possessed or utilized one or more cell phones before or during the planning or 

commission of the offense and that any recovered cell phones could have evidence 

of the offense.”). In coming to that conclusion, however, the court did not rely on 

the affiant’s assertions that “the majority of persons, especially those using cellular 

telephones, utilize electronic and wire communications almost daily” or that 

“individuals engaged in criminal activities utilize cellular telephones and other 

communication devices to communicate and share information regarding crimes 

they commit.” Id. The Diaz court found sufficient probable cause in the affidavit 

absent those broad generalizations. Id.
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This court has consistently followed the same analysis with regard to 

cellphone searches recognizing facts stated in the affidavits that connected the 

cellphone to be searched with the offense alleged. See Walker v. State, 494 S.W.3d 

905, 908–09 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d) (affidavit stated that 

defendant admitted shooting complainant and that defendant and complainant 

communicated by cellphone and exchanged messages and phone calls around the 

time of the shooting); Aguirre v. State, 490 S.W.3d 102, 116–17 (Tex. App.—

Houston [14th Dist.] 2016, no pet.) (affidavit stated that cellphone was used to 

photograph child complainant in child sexual assault prosecution); Humaran v. 

State, 478 S.W.3d 887, 899 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d)

(affidavit identified defendant’s disturbance call as the reason that sheriff’s deputies 

were initially dispatched to the scene and stated that defendant acted with another 

person to destroy evidence).

The State relies on Thomas v. State, No. 14-16-00355-CR, 2017 WL 4679279, 

at *4 (Tex. App.—Houston [14th Dist.] Oct. 17, 2017, pet. ref’d) (mem. op. not 

designated for publication)2and Checo v. State, 402 S.W.3d 440, 448 (Tex. App.—

Houston [14th Dist.] 2013, pet. ref’d) each of which relied on affidavits with more 

specific facts than in this case. In Thomas, the affidavit noted that a cellphone was 

found in a vehicle connected to an armed robbery and that phone calls had been 

exchanged between co-defendants in which one of the co-defendants admitted that 

he “hit a lick,” which is street slang for robbery, and that the police had caught a codefendant. 2017 WL 4679279 at *3. In upholding the sufficiency of the affidavit to 

support the search of the cellphone this court referenced use of the phone to report 

the robbery and a co-defendant being caught. Id. at *4. In Checo, this court upheld 

2 We are not bound by this unpublished decision in a criminal case, see Tex. R. App. P. 

47.7(a), but address it here because the State cited it in support of its argument that the trial court 

erred in granting the motion to suppress.
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the sufficiency of an affidavit to support search of a computer for child pornography. 

402 S.W.3d at 449–50. The affidavit in Checo not only relied on the affiant’s training 

and experience that child pornographers kept child pornography on computers, but 

also stated that a complainant reported the defendant showing child pornography to 

her on a computer. Id. at 448. 

Each of the cases from this court cited by the State and by the dissent 

contained more particular facts tying the cellphone to the alleged offense than the 

affidavit in this case. The “bare bones” affidavit in this case lacks sufficient indicia 

of probable cause because it fails to establish a nexus between the specific crime for 

which evidence is sought and the cellphone to be searched. The affidavit in this case 

goes no further than broad statements that “criminals often use cellphones,” and 

“criminals often make plans on cellphones.” The dissent recognizes that these broad 

generalizations “exemplif[y] the sort of generalization that does not suffice to 

establish probable cause, at least under contemporary standards where cellphones 

are still used by nearly everyone, law-abiding or not.” 

Having analyzed the affidavit with common sense, recognizing that the 

magistrate may draw reasonable inferences from the facts and circumstances 

contained in the affidavit’s four corners and deferring to all reasonable inferences 

that the magistrate could have made, I agree with the en banc majority’s conclusion 

that the affidavit did not contain sufficient facts to establish a fair probability that a 

search of the cellphone found in Baldwin’s vehicle would likely produce evidence 

in the investigation of the murder. The affiant provided no facts that a cellphone was 

used during commission of the offense either directly or indirectly such that the 

magistrate could reasonably infer that evidence of the crime could be found on the 

cellphone. With these thoughts, I concur in that portion of the en banc majority

opinion addressing search of the cellphone.
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/s/ Jerry Zimmerer

Justice

En Banc Court consists of Chief Justice Frost and Justices Christopher, Wise, Jewell, 

Bourliot, Zimmerer, Spain, Hassan, and Poissant. Justice Bourliot authored an En 

Banc Majority Opinion, which Justices Spain, Hassan, and Poissant joined in full, 

and which Justice Zimmerer joined as to Part II. Justice Zimmerer authored an En 

Banc Concurring Opinion. Justice Christopher authored an En Banc Dissenting 

Opinion, which Chief Justice Frost and Justices Wise and Jewell joined.

Publish — Tex. R. App. P. 47.2(b).