The State of Texas v. Chandler Lezo Holloway

• Court: Court of Appeals of Texas
• Decided: July 26, 2024
• Docket: 03-23-00423-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-23-00423-CR

The State of Texas, Appellant

v.

Chandler Lezo Holloway, Appellee

FROM THE 264TH DISTRICT COURT OF BELL COUNTY NO. 78518, THE HONORABLE PAUL L. LEPAK, JUDGE PRESIDING

OPINION

The State brings this interlocutory appeal to challenge the trial court’s partial

grant of Appellee Chandler Lezo Holloway’s motion to suppress evidence. See Tex. Code Crim.

Proc. art. 44.01. We affirm the trial court’s order.

BACKGROUND

Holloway was charged with aggravated sexual assault of a child. See Tex. Penal

Code § 22.021. The testimonial evidence suppressed by the trial court relates to a different

alleged bad act from the one underlying the charged offense but involves the same alleged

victim, his stepdaughter. 1

Holloway filed a motion to suppress requesting that all evidence and testimony

that resulted from his estranged wife (“Wife”) accessing Holloway’s phone be suppressed

1 To protect the privacy of the minor victim, we will refer to her as “Stepdaughter,” and will refer to her mother and Holloway’s wife as “Wife.” See Tex. R. App. P. 9.10(a)(3). because she obtained the evidence in violation of state law and thus it was inadmissible. The

motion also requested that evidence of a police interview with Holloway and downloaded

contents of his phone obtained by police be suppressed.

At the suppression hearing, Wife testified that when she was still living with

Holloway, they had a fight in which he accused her of cheating and asked to see her phone. She

allowed him to do so, and after scrolling through her phone for about fifteen minutes, he was

satisfied and gave it back. She then asked to see his phone and he said, “No.” After he went to

sleep that night, she used his thumb to unlock his phone. She thought she would find evidence

that he had been viewing pornography. Wife also testified that she and Holloway had previously

installed an application on his phone to prevent him from viewing pornography. She testified

that instead she found inappropriate videos on his phone, one of which she alleges showed her

fourteen-year-old daughter sleeping and Holloway’s hand using a spatula to lift up her shirt. She

testified that she then “went crazy” and began hitting Holloway and screaming at him, which

woke him up. She called 911 while running to the bathroom and then locked herself inside. She

used his phone to text the videos to her own phone. Holloway broke into the bathroom and got

his phone from her by “clawing” at her. He also attempted to take her phone from her, but she

bit him hard enough to draw blood. He left the house with his own phone. Her phone ended up

in the bathtub, and when police arrived about 25 minutes later, she gave a report but did not

show, or attempt to show, the videos to police that night. The next morning a different officer

attempted to download the videos off her phone, but the links she had texted to herself had been

disabled and were no longer linked to the videos, which she believed was likely due to the source

video being deleted.

2 She testified that at that time, she and Holloway split household bills and part of

that split included her paying the full phone bill for the family’s five cellphones, including her

phone, Holloway’s phone, and her three children’s phones. She admitted on cross that the phone

bill was not in her name but in her mother-in-law’s name. She also admitted that she did not

have his consent to use his phone, that she used to have the password but did not that night, and

that she used to have biometric access to his phone using her own fingerprint, but that Holloway

had previously revoked her access to his phone. She also testified that she had a right to the

phone because they were married and because she paid the bill and bought the phone he was

using. She agreed with the State that the phone was marital property to which she had a 50

percent right.

Detective Robert Preston also testified at the hearing regarding an interview that

he conducted with Holloway about an outcry of child sexual abuse and an allegation that

inappropriate videos were on his phone. During that interview, Holloway gave the detective his

phone’s password and his cellphone to forensically download the contents of the cellphone.

Holloway informed the detective that he had factory reset the phone recently due to storage and

memory issues.

During Wife’s testimony she agreed with defense counsel that she told the

detective that she paid the phone bill but did not attempt to get possession of the phone from

police custody and that when the download was complete the phone was returned to Holloway

and not her.

3 The trial court granted the motion to suppress for the testimonial evidence

regarding Wife’s access of Holloway’s phone 2 but denied the motion for the evidence and

testimony regarding the police interview of Holloway and the contents of his phone extracted by

police. The State requested, and the trial court entered, findings of fact and conclusions of law.

The State appealed the trial court’s partial grant of the suppression motion.

LEGAL STANDARD

We review a trial court’s ruling on a motion to suppress evidence for an abuse of

discretion. State v. Espinosa, 666 S.W.3d 659, 667 (Tex. Crim. App. 2023). A trial court abuses

its discretion when its decision lies outside the zone of reasonable disagreement, is arbitrary or

unreasonable, or is without reference to any guiding rules or principles. State v. Thomas,

428 S.W.3d 99, 103 (Tex. Crim. App. 2014); State v. Mechler, 153 S.W.3d 435, 439–40 (Tex.

Crim. App. 2005) (citing Montgomery v. State, 810 S.W.2d 372, 378–79 (Tex. Crim. App.

1990)). In a suppression hearing, the trial judge is the sole trier of fact and judge of the

credibility of the witnesses and the weight to be given their testimony. Lerma v. State,

543 S.W.3d 184, 190 (Tex. Crim. App. 2018). We therefore defer to a trial court’s findings of

fact that are supported by the record. Espinosa, 666 S.W.3d at 667. We afford almost total

deference to a trial court’s rulings on mixed questions of law and fact if the resolution to those

questions turns on the evaluation of credibility and demeanor. State v. Hardin, 664 S.W.3d 867,

871–72 (Tex. Crim. App. 2022). We review de novo legal questions, such as the construction of

a statute, and mixed questions that do not turn on credibility and demeanor. Espinosa,

666 S.W.3d at 667; Hardin, 664 S.W.3d at 872. We view the evidence and all reasonable

2 The trial court’s order stated: “[Wife’s] seizure, entry, and observations of defendant’s phone are suppressed.” 4 inferences in the light most favorable to the trial court’s ruling, which must be upheld if it is

reasonably supported by the record and is correct under a theory of law applicable to the case.

Espinosa, 666 S.W.3d at 667.

Under the Code of Criminal Procedure, “[n]o evidence obtained by an officer or

other person in violation of any provisions of the Constitution or laws of the State of Texas, or of

the Constitution or laws of the United States of America, shall be admitted in evidence against

the accused on the trial of any criminal case.” Tex. Code Crim. Proc. art. 38.23(a). Unlike the

Fourth Amendment, which does not extend to private citizens acting in a private capacity, Article

38.23’s “other person” provision allows for suppression of evidence obtained by private

individuals in violation of state or federal constitutions or laws. State v. Ruiz, 577 S.W.3d 543,

546–47 (Tex. Crim. App. 2019). The burden of producing evidence to support a motion for

suppression under Article 38.23 is on the defendant, and only if met, shifts to the State to prove

compliance with the statute. State v. Robinson, 334 S.W.3d 776, 778–79 (Tex. Crim. App.

2011). “[T]he burden of persuasion is properly and permanently placed upon the shoulders of

the moving party.” Pham v. State, 175 S.W.3d 767, 773 (Tex. Crim. App. 2005).

Under the Penal Code, “[a] person commits an offense if the person knowingly

accesses a computer, computer network, or computer system without the effective consent of the

owner.” Tex. Penal Code § 33.02(a). The Penal Code creates two defenses to the breach of

computer security offense for when the accused acted with intent to aid legitimate law

enforcement purposes or when the accused was acting pursuant to a contract for security-related

services. See id. § 33.02 (e), (f).

Under the definitions applicable to the Penal Code chapter covering computer

crimes and as applicable here, “‘Computer’ means an electronic, magnetic, optical,

5 electrochemical, or other high-speed data processing device that performs logical, arithmetic, or

memory functions by the manipulations of electronic or magnetic impulses and includes all

input, output, processing, storage, or communication facilities that are connected or related to the

device.” Id. § 33.01(4). The “Owner” for purposes of computer crimes, is a person who either

“has title to the property, possession of the property, whether lawful or not, or a greater right to

possession of the property than the actor,” id. § 33.01(15)(A), or “has the right to restrict access

to the property,” id. § 33.01(15)(B); see also id. §1.07 (35)(A) (defining the general penal code

definition of “owner” identically to Section 33.01(15)(A)). “‘Possession’ means actual care,

custody, control, or management.” Id. § 1.07(39).

DISCUSSION

The trial court concluded that Wife’s access of Holloway’s phone was unlawful

and that “evidence obtained as a result of that access should be suppressed under Article 38.23(a)

of the Texas Code of Criminal Procedure.” The trial court found: that Holloway had taken

reasonable steps to prevent unauthorized persons, including Wife, from accessing his phone,

which included implementing a biometric password and specifically refusing Wife access

recently prior to her accessing it; that he had a reasonable expectation of privacy in his phone

and its contents; that the family shared a phone plan and each member was designated a specific

phone; that Holloway had a greater possessory right to his phone at the time Wife accessed it;

that Wife testified she did not have the passcode or biometric access of her own to Holloway’s

phone; that Wife “had neither actual authority nor apparent authority to access” Holloway’s

phone; that “[W]ife, manipulated [Holloway]’s finger to unlock his cellular phone, while he was

sleeping and without his consent”; that Wife had “committed the offense of Breach of Computer

6 Security under Texas Penal Code Section 33.02(a)”; that Wife was not seeking evidence of a

crime when she accessed the phone; and that because Wife’s access was unlawful, the resulting

evidence should be suppressed under Article 38.23(a) of the Texas Code of Criminal Procedure.

The State contends that Wife could not have committed the offense of breach of

computer security because she was a co-owner of the phone and thus gave herself permission to

view its contents. The State relies on the Family Code’s definition of community property for

support. Holloway contends that the definition of ownership in the Penal Code creates a

hierarchy of ownership in which a person may have a greater right of ownership that can be

violated by someone with a lesser right of ownership.

Based on the plain language of the breach of computer security statute and the

definition of “owner” in the Penal Code, we agree with Holloway and the trial court, that an

“owner” includes someone with “a greater right to possession of the property than the actor” and

that the breach of computer security statute on its face does not create an exception for a spouse,

community property, or a co-owner with a lesser possessory right to access a computer without

the owner’s consent. See Tex. Penal Code § 33.01(15)(A), (B) (defining “owner” for purposes

of computer crime offenses as having “greater right to possession of the property than the actor”

or having “the right to restrict access to the property”), .02 (establishing elements and defenses

for offense of breach of computer security); Lopez v. State, 600 S.W.3d 43, 45 (Tex. Crim. App.

2020) (explaining that “[s]tatutory construction depends on the plain meaning of the statute’s

language unless it is ambiguous or the plain meaning would lead to absurd results that the

legislature could not have possibly intended”).

The trial court found that Holloway had the greater possessory right to the phone

than Wife did. This finding was supported by evidence presented during the suppression

7 hearing. Specifically, Wife referred to the phone as Holloway’s phone, described asking to see it

and being told she could not, accessing it by using his thumb while he was asleep because she

had no other way to get through the phone’s security, and admitting she did not have his consent

to access his phone. Although she also testified that she paid for the phone and the bill, although

it was not in her name, the trial court reasonably resolved conflicts in the evidence in finding that

Holloway had the greater possessory right. See Tex. Penal Code § 1.07(39) (defining

“Possession” as “actual care, custody, control, or management”). Thus, because, as the trial

court found, Holloway had a greater possessory interest in his cellphone, he was the “owner” for

purposes of the breach of computer security statute and because Wife accessed his phone without

his consent as the “owner,” an offense was committed under the statute.

The State also contends that even if wife did not give herself effective consent to

access the cellphone, she still did not commit the offense because she did not knowingly access

the phone without the consent of the owner because she believed that she as a co-owner was

giving herself effective consent. “To establish a violation of [Section 33.02], the evidence must

show the person who accessed the computer did so when they knew they didn’t have the

effective consent of the computer’s owner to access the device.” Runyon v. State, 674 S.W.3d

624, 633 (Tex. App.—Beaumont 2023, pet. ref’d) (holding that girlfriend’s access of defendant’s

computer when he was not home did not violate offense because her testimony that there was

never discussion regarding not using each other’s computers unsupervised, that she had been

allowed to use it in past, and that computer was left on and unlocked when defendant left for

work supported trial court’s finding that she did not know she did not have his consent to use his

computer when he was not present); see also Thomas v. State, 586 S.W.3d 413, 421 (Tex.

App.—Houston [14th Dist.] 2017, pet. ref’d) (explaining that “the ‘knowing’ mental state

8 required by section 33.02 applies to both the ‘access’ and ‘effective consent’ elements of

the offense”).

Conflicting evidence was presented regarding this element. Wife testified that she

was an owner because they were married, and she bought and paid for the phone. She also used

the term “we” when describing that she and Holloway installed an application on his phone to

prevent him from viewing pornography. However, she also testified that the phone bill was in

his mother’s name, and that she had been denied access to it, waited until he fell asleep, and then

physically moved his finger onto his phone to gain access to it while he remained asleep because

she had no other way of accessing his phone. The trial court could have reasonably inferred

from some of the presented evidence that she did not believe she had effective consent to access

the phone, and the trial court could have determined that evidence to be more credible and

worthy of greater weight than her testimony supporting that she believed she was consenting to

access the phone herself. See Lerma, 543 S.W.3d at 190 (explaining trial judge is sole trier of

fact and judge of credibility of witnesses and weight to be given their testimony). Further, no

evidence was presented that Wife thought she had Holloway’s consent to access his phone, but

rather, Wife admitted that she did not have his consent.

Applying the applicable standard and viewing the evidence and all reasonable

inferences in the light most favorable to the trial court’s ruling, we conclude that the trial court

did not abuse its discretion when it determined that Holloway met his burden of establishing that

Wife illegally obtained the cellphone evidence, and thus, suppressed the evidence resulting from

Wife’s unauthorized search of Holloway’s phone. We overrule the State’s sole issue.

9 CONCLUSION

Because we overrule the State’s sole issue, we affirm the trial court’s order.

__________________________________________ Gisela D. Triana, Justice

Before Justices Baker, Triana, Kelly

Affirmed

Filed: July 26, 2024

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