AFFIRM; and Opinion Filed November 30, 2016.




                                           Court of Appeals
                                                           S      In The


                                    Fifth District of Texas at Dallas
                                                       No. 05-16-00070-CR

                                       DERRICK MITCHELL, JR., Appellant
                                                    V.
                                        THE STATE OF TEXAS, Appellee

                                On Appeal from the 416th Judicial District Court
                                             Collin County, Texas
                                    Trial Court Cause No. 416-82777-2014

                                          MEMORANDUM OPINION
                                     Before Justices Fillmore, Brown, and Richter 1
                                              Opinion by Justice Fillmore

          Appellant Derrick Mitchell, Jr. was indicted for the offense of aggravated sexual assault

with deadly weapons—a knife and a flashlight. See TEX. PENAL CODE ANN. § 22.021(a) (West

Supp. 2016). Without a plea agreement as to punishment, Derrick 2 pleaded guilty. The trial

court found Derrick guilty and that he used or exhibited deadly weapons and assessed

punishment of thirty-five years’ confinement with no fine. In two issues on appeal, Derrick

asserts the trial court erred in (1) denying his motion to suppress the search warrant which

permitted the examination of his cell phone and (2) overruling his objection to the admission into




   1
       The Hon. Martin Richter, Justice, Assigned.
   2
       Because appellant and the complainant Kimberly Mitchell have the same surname, we use their first names in this opinion.
evidence of cell phone text messages which were not authenticated at the time of admission. We

affirm the trial court’s judgment.

                                          Background

       Derrick was charged by indictment with the August 30, 2014 first degree felony of

aggravated sexual assault of his wife, Kimberly, with deadly weapons—a knife and a flashlight.

Derrick’s pretrial motion to suppress all evidence resulting from a search of his cell phone was

denied by the trial court. Derrick subsequently made an open plea of guilty to the charge in the

indictment, and the trial court found him guilty and found he used or exhibited deadly weapons

during commission of the offense. Following a punishment hearing, the trial court assessed

punishment of thirty-five years’ confinement.

                                      Motion to Suppress

       At the time of his arrest for the alleged aggravated sexual assault, Derrick’s personal

Samsung cell phone (Derrick’s cell phone) was taken into evidence by the arresting officer.

Detective James Phelan of the Plano Police Department applied for a search warrant for a

forensic examination of Derrick’s cell phone. In his affidavit in support of the request for a

search warrant, Phelan stated the data to be extracted from Derrick’s cell phone during a forensic

examination would include, among other things, logs of outgoing calls and “SMS / MMS

messages,” or text and picture messages. See Butler v. State, 459 S.W.3d 595, 600 (Tex. Crim.

App. 2015) (“Text messages are ‘short messages [sent] over a cellular phone network, typically

by means of a short message service (SMS).’”) (quoting Steven Goode, The Admissibility of

Electronic Evidence, 29 REV. LITIG. 1, 16 n.66 (Fall 2009)); see also United States v. Flores-

Lopez, 670 F.3d 803, 806 (7th Cir. 2012) (cellular phones include “MMS (multimedia messaging




                                                –2–
service) picture messaging”). 3 Derrick’s appellate brief acknowledged that Phelan’s affidavit

“set[ ] forth facts that established probable cause that [Derrick] had committed a sexual assault.”

Phelan’s attestation regarding probable cause also included the following “facts and

circumstances”:

          Affiant learned that the suspect had also committed the offense of Terroristic
          Threats by calling the victim numerous times and stated that he would commit
          further acts of sexual assault, degrading the victim and had access to a weapon
          and would kill her and himself if she did not immediately return to their home.

          In his first issue on appeal, Derrick asserts the trial court erred in denying his motion to

suppress the search warrant which permitted the forensic examination of his cell phone. Derrick

argues there were no facts set forth in Phelan’s affidavit in support of the request for a search

warrant which established a connection between Derrick’s cell phone and the commission of an

offense.

          A search warrant may not legally issue unless it is based on probable cause. U.S. CONST.

amend. IV; TEX. CONST. art. I, § 9; TEX. CODE CRIM. PROC. ANN. art. 1.06 (West 2005). Under

Texas law, “[n]o search warrant shall issue for any purpose in this state unless sufficient facts are

first presented to satisfy the issuing magistrate that probable cause does in fact exist for its

issuance.” TEX. CODE CRIM. PROC. ANN. art. 18.01(b) (West Supp. 2015). “A sworn affidavit

setting forth substantial facts establishing probable cause shall be filed in every instance in which

a search warrant is requested.” Id. For an evidentiary search warrant, the sworn affidavit must

set forth facts sufficient to establish probable cause:

          (1) that a specific offense has been committed,
          (2) that the specifically described property or items that are to be searched for or
          seized constitute evidence of that offense or evidence that a particular person
          committed that offense, and

     3
      See also In re Mobilactive Media, LLC, C.A. No. 5725-VCP, 2013 WL 297950, at *2 (Del. Ch. Jan. 25, 2013) (“Short Message Service
(‘SMS’)” is “known as ‘text messaging’” and “Multimedia Messaging Service (‘MMS’) is a messaging architecture that allows users to send
multimedia content, such as images, video, and audio, to and from mobile phones.”).



                                                                –3–
          (3) that the property or items constituting evidence to be searched for or seized are
          located at or on the particular person, place, or thing to be searched.

Id. art. 18.01(c); see also id. art. 18.02(10) (West Supp. 2015) 4; Carman v. State, 358 S.W.3d

285, 297 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). Probable cause exists when, under

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

a crime will be found at the specified location. Bonds v. State, 403 S.W.3d 867, 873 (Tex. Crim.

App. 2013); Baldwin v. State, 278 S.W.3d 367, 371 (Tex. Crim. App. 2009) (in context of

evidentiary searches, probable cause involves “a fair probability that contraband or evidence of a

crime will be found”) (quoting Alabama v. White, 496 U.S. 325, 330 (1990)).

          We typically review a trial judge’s motion-to-suppress ruling under a bifurcated standard,

giving almost total deference to the trial judge’s determination of historical facts and then

reviewing de novo the trial judge’s application of the law. Amador v. State, 221 S.W.3d 666,

673 (Tex. Crim. App. 2007). A trial court’s determination whether probable cause exists to

support issuance of a search warrant is based solely on the affidavit’s four corners. Bonds, 403

S.W.3d at 873. A magistrate’s decision to issue an evidentiary search warrant is reviewed under

a highly deferential standard of review. Id.                             If the magistrate had a substantial basis for

concluding that probable cause existed, then the magistrate’s decision should be upheld. Id.

(citing State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011). The magistrate may

interpret the affidavit in a non-technical, common-sense manner, drawing reasonable inferences

solely from the facts and circumstances contained within the affidavit’s four corners. Id. (citing

State v. Jordan, 342 S.W.3d 565, 569 (Tex. Crim. App. 2011)). Appellate courts should not




     4
       Article 18.0215 of the code of criminal procedure entitled “Access to Cellular Telephone or Other Wireless Communications Device” was
not in effect at the time of the issuance of the search warrant for the contents of Derrick’s cell phone. See TEX. CODE CRIM. PROC. ANN. art.
18.0215 (West Supp. 2015).



                                                                   –4–
invalidate a warrant through a hyper-technical interpretation of the affidavit if the warrant would

be valid through a common sense interpretation. Id. (citing McLain, 337 S.W.3d at 272).

        Derrick acknowledges in his appellate brief that Phelan’s affidavit in support of the

request for a search warrant sets forth facts that established probable cause that he had

committed a sexual assault. Phelan’s affidavit also sets forth the information he learned through

investigation of an offense report relating to terroristic threats; Phelan indicated that Derrick had

called Kimberly numerous times and stated he would commit further acts of sexual assault, had

degraded Kimberly, had access to a weapon, and would kill himself and Kimberly if she did not

return home. Phelan’s affidavit sets forth facts sufficient to establish probable cause that a

sexual assault and terroristic threats had occurred. See TEX. CODE CRIM. PROC. ANN. art.

18.01(c). The affidavit further set forth facts sufficient to establish probable cause that Derrick’s

cell phone, including the log of outgoing calls to be extracted from his phone, would constitute

evidence of his communications with Kimberly regarding the sexual assault and threats of

further acts of violence, including sexual assault. Under the totality of the circumstances, there

was a fair probability or substantial chance that evidence of a crime would be found through the

forensic examination of Derrick’s cell phone.         See Bonds, 403 S.W.3d at 873.         Further,

interpreting Phelan’s affidavit in a non-technical, common-sense manner, the magistrate could

have drawn the reasonable inference that, in addition to calls made to Kimberly, Derrick’s cell

phone could contain text messages to Kimberly that constitute evidence of the aggravated sexual

assault and terroristic threats. See id.

        We conclude the magistrate had a substantial basis for concluding that probable cause

existed to support the evidentiary search warrant for the forensic examination of Derrick’s cell

phone. See id. We resolve Derrick’s first issue against him.




                                                –5–
                                                      Admission of Evidence

           In his second issue, Derrick contends the trial court erred in overruling his objection to

the admission into evidence of text messages forensically extracted from his cell phone which

were not authenticated at the time of their admission. See TEX. R. EVID. 901(a). We generally

review the trial court’s admission of evidence under an abuse of discretion standard. Tienda v.

State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012); Tillman v. State, 354 S.W.3d 425, 435 (Tex.

Crim. App. 2011).                As long as the trial court’s ruling is within the “zone of reasonable

disagreement,” there is no abuse of discretion. Tillman, 354 S.W.3d at 435.

           Authentication of an item of evidence is a condition precedent to admissibility. TEX. R.

EVID. 104, 901(a); Tienda, 358 S.W.3d at 638. 5 “To satisfy the requirement of authenticating or

identifying an item of evidence, the proponent must produce evidence sufficient to support a

finding that the item is what the proponent claims it is.” TEX. R. EVID. 901(a). “As with other

types of evidence, text messages may be authenticated by ‘evidence sufficient to support a

finding that the matter is what its proponent claims.’” Butler, 459 S.W.3d at 600-01 (quoting

TEX. R. EVID. 901(a)). The proponent of text message evidence may authenticate the message in

various ways, including witness testimony concerning an association between a cell-phone

number and a purported author or evidence of a text message’s appearance, contents, substance,

internal patterns, or other distinctive characteristics that support a conclusion the text message

emanated from the purported author. Id. at 602; see TEX. R. EVID. 901(b)(1), (4). 6



     5
       See Franklin v. State, No. 05-11-00990-CR, 2012 WL 4801522, at *6 (Tex. App.—Dallas Oct. 12, 2012, no pet.) (not designated for
publication) (“Electronic evidence such as text messages must be authenticated to be admissible.”).
     6
        See also Jackson v. State, No. 05-14-00274, 2015 WL 3797806, at *2 (Tex. App.—Dallas June 17, 2015, no pet.) (mem. op., not
designated for publication) (sponsoring witness may testify to association between cell-phone number and purported author of text message and
other evidence may include the message’s content or substance “which considered in conjunction with other circumstances support a conclusion
that a message indeed emanated from the purported author”) (quoting Butler, 459 S.W.3d at 602); Walker v. State, No. 06-15-00136-CR, 2016
WL 1600268, at *1–2 (Tex. App.—Texarkana April 21, 2016, pet. ref’d) (mem. op., not designated for publication) (State provided testimony of
witness who had knowledge about text message and evidence of distinctive characteristics of the message that tended to connect it to a particular
person as authenticating evidence).



                                                                     –6–
           Detective Brian Pfahning, employed in the Crimes Against Persons Unit of the Plano

Police Department, testified he performed forensic extraction of data from Derrick’s cell phone.

The cell phone extraction reports, including the contents of text messages sent from Derrick’s

cell phone to Kimberly’s cell phone, were admitted into evidence over Derrick’s objection that

the text messages had not been authenticated. Derrick acknowledges in his appellate brief that

the text messages forensically extracted from his cell phone and admitted into evidence

subsequently were authenticated by Kimberly’s testimony. See TEX. R. EVID. 901(a). However,

Derrick contends where evidence is erroneously admitted into evidence prematurely, it may be

rendered harmless only upon the subsequent actions of the defendant.

            “Evidence prematurely admitted in error may become admissible or be rendered

harmless by subsequent evidence.” James v. State, 102 S.W.3d 162, 175 (Tex. App.—Fort

Worth 2003, pet. ref’d); see Romo v. State, 700 S.W.2d 633, 634 (Tex. App.—Houston [14th

Dist.] 1985, no pet.) (“A conviction will not be reversed for error in receiving evidence that was

not admissible when received but which became admissible at a subsequent stage.”). Contrary to

Derrick’s position, subsequent authentication of the evidence need not necessarily occur as a

result of actions by the defendant. See Davis v. State, 687 S.W.2d 78, 82 (Tex. App.—Dallas

1985, pet. ref’d) (any error in admitting photograph into evidence without proper authentication

was “cured” when witness later testified she was present when photograph was taken). 7 Here,

even assuming the trial court admitted into evidence the text messages from Derrick’s cell phone

without proper authentication, the record shows and Derrick acknowledges in his appellate brief

that the evidence was subsequently authenticated. We conclude any error by the trial court in

     7
         See also Jernigan v. State, No. 05-13-00674-CR, 2014 WL 7171282, at *9 (Tex. App.—Dallas Dec. 16, 2014, no pet.) (mem. op., not
designated for publication); Vaughn v. State, No. 05-97-01210-CR, 1999 WL 605691, at *3, 4 (Tex. App.—Dallas Aug. 12, 1999, pet. ref’d) (not
designated for publication) (testimony after admission into evidence of videotape and photographs authenticated the evidence and cured any error
in trial court’s premature admission of the evidence); Sanchez v. State, No. 05-91-00733-CR, 1995 WL 790428, at *10 (Tex. App.—Dallas Dec.
13, 1995, no pet.) (not designated for publication) (any error in admitting complainant’s clothes into evidence was cured by later admission of
testimony identifying the clothes).



                                                                     –7–
admitting the text messages from Derrick’s cell phone into evidence was rendered harmless by

subsequent authentication. We resolve Derrick’s second issue against him.

                                          Conclusion

       Having resolved Derrick’s two issues against him, we affirm the trial court’s judgment.




                                                    /Robert M. Fillmore/
                                                    ROBERT M. FILLMORE
                                                    JUSTICE



Do Not Publish
TEX. R. APP. P. 47.2(b)

160070F.U05




                                              –8–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

DERRICK MITCHELL, JR., Appellant                    On Appeal from the 416th Judicial District
                                                    Court, Collin County, Texas,
No. 05-16-00070-CR        V.                        Trial Court Cause No. 416-82777-2014.
                                                    Opinion delivered by Justice Fillmore,
THE STATE OF TEXAS, Appellee                        Justices Brown and Richter participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 30th day of November, 2016.




                                             –9–
