COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-10-00283-CR
THOMAS BLACK APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM THE 211TH DISTRICT COURT OF DENTON COUNTY
OPINION
----------
A jury convicted Appellant Thomas Black of the possession of at least four
grams of methamphetamine but less than 200 grams, with the intent to deliver.
The trial court sentenced him to forty years’ confinement. Appellant brings five
issues on appeal, challenging the sufficiency of the evidence linking him to the
contraband and contending that the trial court should have suppressed evidence
that Appellant argues was illegally seized and that the trial court abused its
discretion by admitting the hearsay contents of the cell phone found on
Appellant’s person. Because the evidence is sufficient to show a nexus between Appellant and the contraband and because the trial court did not commit
reversible error by admitting the evidence that Appellant sought to suppress,
including the hearsay contents of the cell phone, we affirm the trial court’s
judgment.
I. Background Facts
After receiving a tip from a bounty hunter, five Denton police officers went
to the apartment of siblings Laci and John Feagley to execute a felony warrant
for the arrest of Nick McBee, who was at the apartment. A number of other
people were also at the apartment, including Appellant, who had gone to the
apartment with John Owens. The officers found Appellant and John Feagley in
the parking lot working on the stereo in Laci’s car. Officer James Bolin detained
Appellant and John Feagley while the other officers went to the apartment.
Two of the officers went to the apartment door and knocked. Officer David
Acrey heard the door lock and then heard ―a lot of commotion inside.‖ Acrey
knocked again and identified himself as a police officer. A female in the
apartment stated that she was not dressed, ―and it would be a minute.‖ Acrey
heard the sound of plastic shades on a sliding door, ―like somebody might have
been trying to go out the balcony door.‖ Laci opened the door soon after that,
and the officers entered. One of the officers arrested McBee on the apartment’s
balcony.
In the apartment, officers saw in plain view marijuana, a bong, and scales.
Officer Craig Fitzgerald asked Laci for permission to search the apartment, and
2 she consented. The officers found a laptop bag and a glasses case, which
Owens and Laci identified as Appellant’s. In the laptop bag, officers found
Appellant’s identification, a small baggie of marijuana, and a piece of paper with
numbers written on it. They found several baggies containing methamphetamine
in the glasses case. Officers also found a baggie containing methamphetamine
next to a chair in the living room.
The baggie found by the chair contained 1.28 grams of methamphetamine;
the baggies found in the glasses case contained a combined total of sixteen
grams of methamphetamine.
The officers arrested Appellant and searched him. In their search of his
person, they found a cell phone. After obtaining a search warrant, the police
searched the contents of the cell phone. The phone showed outgoing text
messages to one number that said,
―no, cause he has to come from denton, and Id only be makin 3 an oz. plus you only have to take half as much‖; and
―Its gonna take him 45 to an hour to drive to your house from Denton‖;
and another outgoing text message to ―Crystal‖ stating, ―John just got here, let
me know if you still need that pretty quick, before he leaves Denton.‖
The phone had incoming text messages that said, ―I got a trick right now
so yeah but dnt no how much‖; ―Can u hook me up for 140? do u hav a ride?‖;
―Can you charge me fifteen an oz‖; and ―I have your money and want 2 i have
55.‖ The phone also had stored photographs of what looked like
methamphetamine.
3 At trial, Appellant objected to the admission of evidence from the laptop
bag on the ground that he had not consented to its search. He objected on
Fourth Amendment and hearsay grounds to the admission of the data taken from
the cell phone; he also complained about the denial of cross-examination.
Appellant additionally moved to suppress the evidence of the drugs and the cell
phone and moved for a directed verdict. The trial court denied the motions.
II. Suppression Issues
In his first two issues, Appellant argues that the trial court reversibly erred
by denying his motion to suppress the contraband and the contents of the cell
phone. He did not file a written motion to suppress but, rather, argued an oral
motion to suppress after the State rested its case in chief. That is, he waited until
the complained-of evidence had been admitted before lodging his motion to
suppress that evidence, although he did object to a greater or lesser degree
when the evidence was offered. A visiting judge heard the trial and did not enter
findings of fact or conclusions of law when she denied Appellant’s motion to
suppress.
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review.1 We give almost total deference to a trial court’s
rulings on questions of historical fact and application-of-law-to-fact questions that
1 Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
4 turn on an evaluation of credibility and demeanor, but we review de novo
application-of-law-to-fact questions that do not turn on credibility and demeanor.2
When the record is silent on the reasons for the trial court’s ruling, or
when, as here, there are no explicit fact findings and neither party timely
requested findings and conclusions from the trial court, we imply the necessary
fact findings that would support the trial court’s ruling if the evidence, viewed in
the light most favorable to the trial court’s ruling, supports those findings.3 We
then review the trial court’s legal ruling de novo unless the implied fact findings
supported by the record are also dispositive of the legal ruling.4
We must uphold the trial court’s ruling if it is supported by the record and
correct under any theory of law applicable to the case even if the trial court gave
the wrong reason for its ruling.5
Appellant argued in his oral motion to suppress that the Fourth
Amendment to the Constitution of the United States mandated suppression of the
contraband found inside the house because the only evidence of a nexus
2 Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002). 3 State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007). 4 State v. Kelly, 204 S.W.3d 808, 819 (Tex. Crim. App. 2006). 5 State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003), cert. denied, 541 U.S. 974 (2004).
5 between the methamphetamine and him was uncorroborated accomplice
testimony. He argued that the Fourth Amendment also mandated suppression of
the contents of the cell phone found on his person because the cell phone was
not in his name and did not identify the person texting.
Appellant argued that the underlying sources of the information provided
the police in support of his arrest—Owens and Laci, the two accomplices in the
apartment who identified him as the owner of the glasses case containing
multiple baggies of methamphetamine—were unreliable because they were
accomplices. That is, the evidence of a nexus between Appellant and the
methamphetamine found inside the apartment was provided by Laci, who lived in
the apartment with her brother, and Owens. Appellant argued that Laci and
Owens were equally unreliable. He based this argument on the facts that Owens
testified that everyone in the apartment was smoking methamphetamine and ice,
and the police testified that they had observed a bong, scales, marijuana, and
methamphetamine in plain view inside the apartment, but Laci denied any
knowledge of the presence of any drugs or drug paraphernalia inside her
apartment.
Appellant also contended in his oral motion to suppress that the contents
of the cell phone were necessary to corroborate the accomplice testimony. The
police officers stated that they had seized the cell phone incident to Appellant’s
arrest. The officers first seized and handcuffed Appellant either for officer safety
or because they believed that he was McBee, for whom the officers had an arrest
6 warrant. When the police realized that Appellant was not McBee, they removed
the handcuffs. The search of Appellant for officer safety does not appear to have
revealed the cell phone. After the officers found the methamphetamine and were
told by Owens and Laci that the methamphetamine belonged to Appellant, the
officers again handcuffed Appellant and searched him. It appears that this was
the search that yielded the cell phone.
The officers viewed the picture of methamphetamine that was used as the
screensaver upon Appellant’s arrest, but, instead of continuing to scroll through
the contents of the cell phone, the officers showed a conscientious knowledge
and regard for the law by properly securing a search warrant. Only after securing
the search warrant did any police officer search the contents of the cell phone.
Although the initial seizure of the cell phone was not pursuant to a warrant,
Appellant states in his brief that seizure of the cell phone was not the crucial
element of his complaint. Rather, he argues that the search of the cell phone
required a warrant. But the record provides that the officers had a warrant before
they searched the cell phone. We hold that merely viewing the screensaver did
not constitute a search. No search occurred until after the officers had secured a
search warrant for the cell phone. We overrule Appellant’s first issue.
In his second issue, Appellant challenges the search of the laptop bag and
the glasses case, contending that he did not give his consent to search them and
that the searches therefore violated the Fourth Amendment of the United States
Constitution and article I, section 9 of the Texas Constitution. He objected to the
7 admission of the contents of the laptop bag only on the grounds of chain of
custody and the scope of Laci’s consent to search the apartment. Appellant
argued that she had no authority or standing to give police consent to search the
bag. Yet, before the State offered into evidence the items found inside the bag,
Appellant himself proved up some of the contents of the bag—his ―ID‖ and ―a
little baggie of marijuana‖—in questioning Officer Acrey. The jury therefore
already knew about those contents before Appellant untimely objected to the
admission of the physical exhibits.
A trial court’s erroneous admission of evidence will not require reversal
when other such evidence was received without objection, either before or after
the complained-of ruling.6 This rule applies whether the other evidence was
introduced by the defendant or the State.7 Consequently, because the jury
already knew about the incriminating evidence connecting Appellant to both the
laptop bag and its contents, any error in admitting them is not reversible.
Additionally, after the State offered the piece of notebook paper with
notations into evidence over Appellant’s chain of custody and scope of consent
objections, he raised no objection to Officer Fitzgerald’s describing State’s
Exhibit No. 4 as a ―piece of notebook paper with what appears to be amounts,
quantities written on it.‖ Nor did Appellant object to Officer Fitzgerald’s further
explanation interpreting the notes written on the notebook paper:
6 Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998). 7 Id.
8 ―Methamphetamines, narcotic trafficking, nine grams, 1.9 grams, and the
amounts of methamphetamine.‖ Appellant also did not object when Officer
Fitzgerald agreed that in his experience in investigating narcotics cases, it was
common to come across ―what are generally termed as drug notes.‖
Generally, in order to preserve his complaint for appellate review,
Appellant was required to object each time the complained-of evidence was
discussed or to request and be granted a running objection.8 When, however, an
objection is presented as a motion to suppress heard outside the presence of the
jury, that single objection preserves the issue for appellate review.9
The question, then, is whether Appellant’s objection to the piece of
notebook paper was a simple objection or an objection presented as a motion to
suppress and heard outside the presence of the jury. After examining the record,
we hold that Appellant merely lodged an objection to the admission of the sheet
of notebook paper into evidence. Nothing in his objection would have suggested
to the trial court that he was lodging a motion to suppress. Nor did any
suppression hearing occur outside the presence of the jury. Because Appellant’s
objection to the evidence did not rise to the level of a motion to suppress, we
hold that Appellant was required to request a running objection or to object to
8 See Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003); Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003) (citing Ethington v. State, 819 S.W.2d 854, 858–59 (Tex. Crim. App. 1991)); Fuentes v. State, 991 S.W.2d 267, 273 (Tex. Crim. App.), cert. denied, 528 U.S. 1026 (1999). 9 Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. App. 1986).
9 each reference to the sheet of notebook paper or its contents. Appellant did
lodge a motion to suppress after the State had rested, but by that time all the
evidence of which he had complained was before the jury. His motion to
suppress lodged after the State had rested was not timely. Consequently,
Appellant has failed to preserve his complaint regarding the admission of the
sheet of notebook paper from the laptop bag. We overrule that portion of
Appellant’s second issue challenging the admission of the laptop bag and its
contents.
The glasses case was admitted as State’s Exhibit 14. Not only did
Appellant lodge no objection, he affirmatively stated that he had no objection to
its admission. When the State offered the methamphetamine that was contained
in the glasses case, Appellant again stated that he had no objection.
Additionally, Appellant had asked Officer Acrey the following questions,
Q. And there was nothing in that little case that identified my client, was there?
A. No.
Q. And it was a—was it a sunglass case or something like that?
A. Yea, or glasses or something.
Q. Or glasses or something, in plain view. Now, to be sure, there was a decent amount of—of—of methamphetamines in there. Right?
A. Yes.
This exchange occurred before the State ever sought to offer evidence of the
contents of the glasses case.
10 To preserve a complaint for our review, a party must have presented to the
trial court a timely request, objection, or motion that states the specific grounds
for the desired ruling if they are not apparent from the context of the request,
objection, or motion.10 Further, the trial court must have ruled on the request,
objection, or motion, either expressly or implicitly, or the complaining party must
have objected to the trial court’s refusal to rule.11 A reviewing court should not
address the merits of an issue that has not been preserved for appeal.12
For the reasons stated above, Appellant failed to preserve his complaint
regarding the admission of the glasses case and its contents. We overrule the
remainder of his second issue.
III. Admission of Text Messages
In his third issue, Appellant contends that the trial court abused its
discretion by ―admitting, over hearsay objection, text messages when the State
used pictures of texts from a cell phone found on Appellant’s person and the
pictures were used to apply the content of the texts to link him to possession of
controlled substances.‖
10 Tex. R. App. P. 33.1(a)(1); Lovill v. State, 319 S.W.3d 687, 691–92 (Tex. Crim. App. 2009). 11 Tex. R. App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). 12 Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim. App. 2010) (op. on reh’g).
11 At trial, in addition to his Fourth Amendment complaint, Appellant objected
that the contents of the cell phone were hearsay because there was no way to
tell who made the statements found on the cell phone and because they were
offered for the truth of the matter asserted. He also argued that he had no way to
cross-examine an unknown person:
[T]he issue is it becomes hearsay because, number one, it’s unreliable. We don’t know, number one, who is sending those text messages. It doesn’t identify the person talking. We can’t just assume that it’s the Defendant, and it’s definitely offered to prove the truth of the matter asserted, so it’s a hearsay statement I don’t have any way of cross-examining. Number one, I don’t know who is receiving it, and I don’t know who sent it.
....
How could it not be offered for the proof of the matter asserted? We don’t know who’s sending those. We can’t just assume that he is just because he was the person that was found with it in his possession at the time of the arrest.
Appellant does not raise the violation of his right to cross-examination on
appeal. Further, we note that Appellant offers a conclusory, unsupported
subsidiary complaint on appeal that none of the exhibits was produced by
business records affidavit, but, rather, through the State’s crime scene technician
who took pictures of the cell phone screen. We overrule this complaint as
inadequately briefed.13
13 See Tex. R. App. P. 38.1(i); Russeau v. State, 171 S.W.3d 871, 881 (Tex. Crim. App. 2005), cert. denied, 548 U.S. 926 (2006); Tong v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 1053 (2001).
12 The evidence shows that Appellant was released from prison at least a
week before the dates on the text messages. The cell phone was in his
possession when it was confiscated. Appellant does not challenge the fact that
the text messages were sent, the reliability of the notation of the date on the text
messages, or the nexus between the messages and himself other than to argue
that there was no way to determine who sent or received the messages.
We view Appellant’s complaint on appeal as one of hearsay and
authentication. Appellant’s authentication complaint seems to be two-fold: no
showing of who sent the messages and no showing of who received the
messages.
The law Appellant cites for this issue is not helpful. He distinguishes
Lozano v. State, an unpublished case holding that a defendant’s own out-of-court
statement against interest found in a text message is not hearsay,14 and a similar
case15 by pointing out that there is no evidence in the case before us that he
authored any of the texts. He also references a case that he incorrectly states
upheld text message evidence on the basis of optional completeness but which
in fact upheld the admission of a text message over a rule 403 objection.16
14 No. 02-06-00379-CR, 2007 WL 4216349, at *8 (Tex. App.—Fort Worth Nov. 29, 2007, no pet.) (mem. op., not designated for publication). 15 Everett v. State, No. 14-01-00588-CR, 2002 WL 534124, at *2 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (not designated for publication). 16 See Roberson v. State, No. 02-08-00152-CR, 2010 WL 3075612, at *4 (Tex. App.—Fort Worth Aug. 5, 2010, pet. ref’d) (mem. op., not designated for publication).
13 This court is sympathetic with Appellant’s position in trying to find law
directly on point, given the speed with which technology has changed. To guide
parties in raising and preserving such issues, courts are going to have to
determine at some point whether a cell phone is akin to a computer, a file
cabinet, a personal notebook or diary, or something else, and the rules of
evidence should be modernized. But Appellant does not challenge the
technology. Nor does he challenge the rule 901 predicate required for the
authentication or identification of most electronic devices.17
As to Appellant’s hearsay complaint, to the extent that the State offered
any of the photographs of the images from the cell phone for some purpose other
than the truth of the matter asserted, then such evidence was not hearsay.
Further, the screensaver picture of what appeared to be methamphetamine was
not a statement; it was therefore not hearsay.18
But as to the remaining images from the cell phone, what the police viewed
were clearly messages. A police officer could testify that she saw a message on
the cell phone screen. The ticklish question is the degree to which the officer
could properly describe the message. The officer could say that the message
was short or long but could not lawfully describe its nature absent a hearsay
exception. For example, the officer could testify that the message was three
17 See Tex. R. Evid. 901. 18 See Tex R. Evid. 801(a); Wood v. State, 299 S.W.3d 200, 214 (Tex. App.—Austin 2009, pet. ref’d).
14 lines long but could not testify to the contents of the three lines. The officer could
testify that it was a page of words and numbers, but not that the message was a
receipt for furniture.
The text messages here purport to be expressions of a desire to engage in
a drug transaction. This is a drug case. We therefore disagree with the State
that the text messages were not offered for the truth of the matter asserted.
Further, because a person (although not identified in court) generated each text
message—that is, the contents of the messages were produced by human
thought and action—the messages are not computer-generated data and
therefore not classified as nonhearsay.19 We consequently conclude that they
are hearsay.
Further, no hearsay exception justifies the admission of the text messages.
Because there was no showing that Appellant wrote or ratified any of the
messages, and indeed, no showing that the messages were written while the cell
phone was in Appellant’s possession, the messages did not qualify as
statements that he made against his penal interest and therefore did not fall
under that hearsay exception.20
19 See United States v. Washington, 498 F.3d 225, 231 (4th Cir. 2007), cert. denied, 129 S. Ct. 2856 (2009); Hamilton v. State, 300 S.W.3d 14, 21–22 (Tex. App.—San Antonio 2009, pet. ref’d), cert. denied, 131 S. Ct. 2905 (2011); Miller v. State, 208 S.W.3d 554, 563 (Tex. App.—Austin 2006, pet. ref’d); see also Tex. R. Evid. 801(b). 20 See Tex. R. Evid. 803(24).
15 Consequently, we hold that the contents of the messages were
inadmissible hearsay and that the fact that ―drug messages‖ were on the cell
phone was likewise inadmissible hearsay. The trial court therefore abused its
discretion by admitting this evidence.
We have already held that the police lawfully searched the cell phone, and
Appellant did not raise his Sixth Amendment claim that his right to cross-
examination had been violated on appeal. The erroneous admission of the cell
phone’s contents and the characterization thereof as ―drug messages‖—
inadmissible hearsay—is therefore nonconstitutional error governed by rule
44.2(b), which provides that an error that does not affect substantial rights must
be disregarded.21 A substantial right is affected when the error had a substantial
and injurious effect or influence in determining the jury=s verdict.22 Conversely,
an error does not affect a substantial right if we have Afair assurance that the
error did not influence the jury, or had but a slight effect.@23
In making these determinations, we review the record as a whole,
including any testimony or physical evidence admitted for the jury=s
consideration, the nature of the evidence supporting the verdict, and the
21 See Tex. R. App. P. 44.2(b); Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001). 22 King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)). 23 Solomon, 49 S.W.3d at 365; Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
16 character of the alleged error and how it might be considered in connection with
other evidence in the case.24 We may also consider the jury instructions, the
State=s theory and any defensive theories, whether the State emphasized the
error, closing arguments, and even voir dire, if applicable.25
Ignoring the inadmissible cell phone messages and the characterization of
them as ―drug messages,‖ the fact that Appellant possessed the cell phone was
admissible. The fact that drug dealers use cell phones was also admissible.
Further, the police found Appellant’s identification in the computer bag. The
baggies of methamphetamine in the eyeglasses case themselves provided
evidence that the drugs were packaged to sell. Notations on the sheet of paper
the police found in the computer bag also indicate drug sales. We hold that the
―drug notes‖ indicating methamphetamine sales and Appellant’s identification,
both found in the computer bag, sufficiently corroborate the accomplice
testimony. The screensaver picture of methamphetamine would not alone be
sufficient corroboration, but it does serve as additional corroboration.
We also point out that the corroboration goes only to Appellant’s nexus to
the methamphetamine. The methamphetamine itself was properly admitted, and
Appellant’s trial counsel specifically stated that he had no objection to its
admission.
24 Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). 25 Id. at 355–56.
17 Consequently, we hold that in the context of the entire case against
Appellant, the erroneous admission of the hearsay text messages from the cell
phone and their characterization as ―drug messages‖ did not have a substantial
or injurious effect on the jury=s verdict and did not affect his substantial rights.26
Thus, we disregard the error.27 We overrule Appellant’s third issue as presented
at trial and in Appellant’s brief.
IV. Sufficiency of the Evidence Affirmatively Linking Appellant to the Contraband
Appellant argues in his fourth and fifth issues that the trial court erred by
denying his motion for a directed verdict of acquittal because the evidence is
insufficient to show an affirmative link between Appellant and the
methamphetamine. He bases his argument in large part on the facts that the
contraband was located in the Feagleys’ locked apartment while he was outside
in the parking lot and the cell phone data referencing some kind of transaction
could not be directly tied to him.
To prove unlawful possession of a controlled substance, the State must
show that Appellant (1) exercised control, management, or care over the
substance and (2) knew that it was contraband.28 The evidence, direct or
circumstantial, must establish, to the requisite level of confidence, that
26 See King, 953 S.W.2d at 271. 27 See Tex. R. App. P. 44.2(b). 28 See Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005); Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995).
18 Appellant’s connection with the methamphetamine was more than just
fortuitous.29
There is no evidence that the baggie of methamphetamine sitting beside
the chair belonged to Appellant, but Appellant does not challenge his nexus to
that methamphetamine.
Sufficient evidence does, however, support the conclusion that the sixteen
grams of methamphetamine found in the glasses case belonged to Appellant.
The record contains evidence to support a conclusion that Appellant had been
inside the apartment: Witnesses testified that he had been there, and a
computer bag containing his identification was found inside the apartment but in
a different location that the baggie of methamphetamine by the chair. Laci and
Owens told the police and testified that the methamphetamine in the glasses
case belonged to Appellant. The record shows that Owens provided Appellant
the glasses case knowing that he would use it to house his methamphetamine.
Laci claimed that she knew that the methamphetamine was Appellant’s but that
she did not notice the scales or bong in her apartment or see the marijuana in
her bathroom. We hold that the evidence sufficiently links Appellant to the
sixteen grams of methamphetamine in the glasses case. We overrule
Appellant’s fourth and fifth issues.
V. Conclusion
29 See Poindexter, 153 S.W.3d at 405–06.
19 Having overruled Appellant’s five issues on appeal, we affirm the trial
court’s judgment.
LEE ANN DAUPHINOT JUSTICE
PANEL: DAUPHINOT, GARDNER, and MCCOY, JJ.
PUBLISH
DELIVERED: January 12, 2012