Opinion issued July 19, 2018




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-16-00863-CR
                            ———————————
                      BILLY GASTON YOUNG, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 117th District Court
                            Harris County, Texas
                        Trial Court Case No. 1512286


                          MEMORANDUM OPINION

      Appellant, Billy Gaston Young, pleaded guilty to continuous sexual abuse of

a young child,1 and the trial court assessed punishment at 30 years’ confinement. In

his sole issue on appeal, appellant contends that the trial court erred in denying his


1
      TEX. PENAL CODE § 21.02 (West 2011 & Supp. 2017).
motion to suppress, claiming that, because the cell phone that provided the evidence

leading to his arrest had been stolen by a third party, both his confession and the SD

cards discovered after his arrest were “fruit of the poisonous tree.”

      We affirm.

                                  BACKGROUND

      When a Cricket Wireless employee began transferring files on Jamaul

Langham’s phone, she saw images of the apparent sexual assault of a minor by an

adult male. Jamaul allowed the employee to copy the images onto a USB drive and

call the police, but he kept the cell phone. After Sergeant Jones was assigned the

case, she viewed the files on the USB drive, which showed an adult man (later

identified as appellant) sexually assaulting two girls (later identified as sixteen-year-

old A.G. and eleven-year-old H.G). Jones printed pictures of the three for

identification purposes. She then called Jamaul, who still had the cell phone, and

asked to meet with him.

      Jamaul told Jones that a seventeen-year-old male living in the Sugar Branch

Apartments sold him the phone for $100. Although he told Jones the seller’s first

name, he had no further information. Jamaul gave Jones written consent to search

the phone. He also recognized the man in the images as appellant, the Sugar Branch

Apartments’ maintenance man.




                                           2
      Jones drove to the apartments, where she recognized appellant in the parking

lot. Jones showed pictures of appellant, A.G., and H.G. to the apartment manager,

who identified appellant as the maintenance man and the girls as children of one of

the residents. Jones confirmed that A.G. and H.G. were minors.

      After speaking to the girls’ mother, Jones picked the girls up from school to

meet with a forensic interviewer. When the interviewer asked H.G. about the abuse,

H.G. began crying and was unresponsive. But, when the interviewer asked A.G.

about the abuse, A.G. stated that she knew appellant and that he had touched and

taken photos of her naked body. After the interview, Jones told A.G. about the

images, and A.G. admitted to having sex with appellant on many occasions.

      Jones obtained an arrest warrant for appellant. Houston Police Department

(HPD) officers awakened appellant around 10 p.m. and entered his apartment when

he opened the door. The HPD officers arrested appellant, handcuffed him, and

placed him in the back of their car. About twenty minutes later, Jones arrived and

spoke with appellant. She asked for consent to search the apartment, which appellant

granted both verbally and in writing. Jones seized eleven SD cards, which were

wrapped in pieces of paper labeled with girls’ names, from a Mentos tin in

appellant’s apartment. Jones obtained a search warrant before viewing the files on

the SD cards.




                                         3
      Jones then took appellant to the police station and read him his statutory rights.

Appellant stated that he understood his rights, agreed to waive them, and spoke with

Jones. During the interview, appellant claimed that his phone had been stolen. He

ultimately confessed to sexually abusing A.G. and H.G.

                        SUPPRESSION OF EVIDENCE

      In his sole issue, appellant argues that the trial court erred in denying his

motion to suppress evidence. Specifically, he claims that, because the cell phone

containing the photos of him with A.G. and H.G. had been stolen by a third party,

all subsequent evidence should be considered “fruit of the poisonous tree” and

suppressed because of article 38.23 of the Texas Code of Criminal Procedure.

Applicable Principles of Law

      The Texas exclusionary rule found in article 38.23(a) provides:

      No 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. ANN. art. 38.23(a) (West 2018) (emphasis added).

      Article 38.23 is “broader than its federal counterpart.” Miles v. State, 241

S.W.3d 28, 34 (Tex. Crim. App. 2007). The Fourth Amendment (as well as article I,

section 9 of the Texas Constitution) applies only to government action; it does not

extend to the conduct of private citizens. See Tin Man Lee v. State, 773 S.W.2d 47,

48 (Tex. App.—Houston [1st Dist.] 1989, no pet.) In contrast, article 38.23 applies

                                           4
to illegal searches or seizures conducted by law enforcement officers or “other

persons,” even when those private individuals are not acting in conjunction with, or

at the request of, government officials. Miles, 241 S.W.3d at 36. The Court of

Criminal Appeals stated that the “plain language” of article 38.23 leads to this

“inescapable conclusion”:

      [I]f an officer violates a person’s privacy rights by his illegal conduct
      making the fruits of his search or seizure inadmissible in a criminal
      proceeding under Article 38.23, that same illegal conduct undertaken
      by an “other person” is also subject to the Texas exclusionary rule. If
      the police cannot search or seize, then neither can the private citizen.

      Id. (footnote omitted).

      A defendant challenging the admissibility of evidence as a violation of article

38.23(a) bears the legal burden of establishing that the evidence was obtained in

violation of the law. See TEX. CODE CRIM. PROC. ANN. art. 38.23(a). When moving

to suppress evidence after an alleged article 38.23(a) violation, the defendant bears

the burden of producing evidence of the violation of law. State v. Robinson, 334

S.W.3d 776, 779 (Tex. Crim. App. 2011). “Only when this burden is met does the

State bear a burden to prove compliance” with the law. Id. However, the ultimate

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) (internal

quotation omitted). “‘When a criminal defendant claims the right to protection under




                                         5
an exclusionary rule of evidence, it is his task to prove his case.’” Id. (quoting Mattei

v. State, 455 S.W.2d 761, 766 (Tex. Crim. App. 1970)).

Standard of Review

      We review a trial court’s denial of a motion to suppress under a bifurcated

standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App.

2013). We review the trial court’s factual findings for abuse of discretion and review

the trial court’s application of the law to the facts de novo. Id. Almost total deference

should be given to a trial court’s determination of historical facts, especially those

based on an evaluation of witness credibility or demeanor. Gonzales v. State, 369

S.W.3d 851, 854 (Tex. Crim. App. 2012). At a suppression hearing, the trial court is

the sole and exclusive trier of fact and judge of the witnesses’ credibility and may

choose to believe or disbelieve all or any part of the witnesses’ testimony, even if

that testimony is not controverted. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim.

App. 2002); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).

      When, as here, the trial court does not make findings of fact, we assume that

the trial court made implicit findings that support its ruling, provided those implied

findings are supported by the record. Sims v. State, 84 S.W.3d 805, 807–08 (Tex.

App.—Houston [1st Dist.] 2002, no pet.). We view the evidence in the light that

most favors the trial court’s ruling, and we uphold the ruling on any theory of law

supported by the evidence. Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App.


                                           6
2005); Brown v. State, 212 S.W.3d 851, 867 (Tex. App.—Houston [1st Dist.] 2006,

pet ref’d).

Analysis

       Appellant claimed that his phone had been stolen. He testified that, while

working on a light fixure in apartment 289, he set the phone down on the counter

and “when [he] got back, the phone was gone, and the kid [who lived in the

apartment] was gone.” He claimed that he called the police to make a report about

the stolen phone and then went to purchase another. When asked whether he knew

what had happened to his phone or where it went, appellant replied, “I have no idea.”

He also said that the young man in apartment 289 said that he would get the phone

back by the end of the day. In contrast, when Sergeant Jones interviewed appellant

at the police station, he denied reporting the theft.

       Jamaul, who took the phone to the Cricket Wireless store, told Jones that he

had purchased the phone for $100. Based on the conflicting evidence, the phone

might have been stolen, or it might have been sold or given away,2 lost and




2
       See Grant v. State, 531 S.W.3d 898 (Tex. App.—Houston [14th Dist.] 2017, pet.
       ref’d) (holding that, although defendant purchased cell phone, he no longer owned
       it at the time it was stolen, thus article 38.23 did not apply).

                                           7
abandoned,3 or improperly disposed of4 by appellant. Perhaps appellant sold the

phone to someone, but neglected to delete the images. We are not in a position to

determine appellant’s credibility—that is the sole province of the trial court. See

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). So, we must view the

evidence5 in the light most favorable to the trial court’s ruling. See Ross, 32 S.W.3d

at 855. The trial court may believe or disbelieve all or any part of a witness’s

testimony, even if that testimony is not controverted. Id.

      Because the trial court was entitled to believe Jamaul’s statement to police

that he lawfully bought the phone and disbelieve appellant’s testimony that the

phone was stolen, the trial court did not abuse its discretion in concluding that




3
      See Lopez v. State, 512 S.W.3d 416 (Tex. App.—Corpus Christi 2016, no pet.)
      (holding that appellant abandoned phone and had no standing to object to evidence
      retrieved from it when he forgot device at workplace, but never requested that it be
      returned to him).
4
      See Jackson v. State, 717 S.W.2d 713, 715 (Tex. App—San Antonio 1986, pet.
      ref’d) (stating that article 38.23 applies to illegally obtained evidence, not
      improperly disposed of evidence).
5
      During the suppression hearing, the following evidence was presented: (1) the
      testimony of Sergeant Jones, (2) the testimony of appellant, (3) the arrest warrant,
      (4) appellant’s voluntary consent-to-search form, (5) the search warrant for the SD
      cards, (6) the interview between Sergeant Jones and appellant, (7) a drawing by
      appellant during the interview of how far he penetrated H.G., (8) Jamaul’s voluntary
      consent-to-search form for the cell phone, (9) a photograph of various pictures of
      H.G. on appellant’s living room mirror, (10) a photograph of the SD cards and
      Mentos tin, and (10) a photograph of appellant’s apartment door.
                                           8
appellant had not carried his burden to show a violation of the law as required by

article 38.23.

      Thus, we overrule appellant’s sole point of error.




                                         9
                                CONCLUSION

      We affirm the trial court’s judgment.




                                                Sherry Radack
                                                Chief Justice

Panel consists of Chief Justice Radack and Justices Jennings and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




                                           10
