             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
      ___________________________

           No. 02-17-00310-CR
      ___________________________

   CRISTI JEANETTE SNOW, Appellant

                      V.

          THE STATE OF TEXAS


On Appeal from Criminal District Court No. 1
           Tarrant County, Texas
        Trial Court No. 1445315D


 Before Sudderth, C.J.; Pittman and Bassel, JJ.
   Memorandum Opinion by Justice Bassel
                          MEMORANDUM OPINION

      A jury convicted Cristi Jeanette Snow of two counts of sexual performance of a

child under age fourteen. See Tex. Penal Code Ann. § 43.25(b), (c). The jury assessed

Snow’s punishment at thirty years’ confinement on both counts. The trial court

ordered the sentences to run concurrently. Snow appeals, raising eight issues.

      Most of Snow’s issues center on the search of her cell phone and the admission

of a transcription of a social media chat and photographs that law enforcement

extracted from her cell phone. Snow forfeited most of the arguments she makes on

appeal. But even if we reached the merits of her arguments, the trial court would

have acted well within its discretion to overrule Snow’s contentions that (1) evidence

of the chat and photos were not properly authenticated, (2) introduction of the chat

violated Snow’s right to confront a witness against her or allowed the introduction of

hearsay, (3) an omission from the affidavit used to obtain a warrant to search the cell

phone’s contents vitiated the finding of probable cause required to issue the warrant,

and (4) the theft of the cell phone from Snow warranted its suppression.

      We also overrule Snow’s contentions that do not center on her cell phone. The

trial court did not abuse its discretion by excluding evidence of Complainant’s sexual

history or that she might be gay. Nor did the trial court abuse its discretion by

excluding a psychologist’s opinions that Snow has a low IQ and suffers from

dependent personality disorder.

      Because we overrule each of Snow’s complaints, we affirm.

                                          2
I. Background1

      Complainant occupied a home with several other adults and children. Some of

the occupants were Complainant’s relatives, and some were not. Snow had lived with

and had a child with Complainant’s uncle. Though the relationship had ended, Snow

continued to live in the home. Complainant viewed Snow as her best friend.

      Both Complainant and Snow used a third-party messaging app called KIK.

Snow admitted that she had numerous chats on KIK.

      On an occasion when most of the others living in the home were gone, Snow

was chatting with an individual who used the name King gnol. Both Complainant and

Snow were in Snow’s bedroom while Snow chatted with King gnol. During the chat,

King gnol asked that Snow take nude photos of both her and Complainant and send

those to him.    Complainant was thirteen years old at the time.         Eventually,

Complainant took a nude photo of Snow, and Snow took nude photos of

Complainant. Snow transmitted these pictures to King gnol.

      The existence of the photos came to light when Complainant’s uncle examined

the photo gallery on Snow’s cell phone. The uncle knew that Snow stored nude

pictures of herself on her cell phone. Children in the home sometimes used Snow’s

cell phone, and the uncle did not want them seeing the nude pictures. When the



      1
       Snow does not raise a sufficiency challenge. At this point, we provide only
those facts necessary to give context to Snow’s complaints on appeal. Our discussion
of Snow’s issues will outline additional facts relevant to her arguments.

                                         3
uncle checked the cell phone to determine if the photos of Snow had been deleted, he

discovered nude photos of Complainant.

      The uncle showed the photos to his mother—Complainant’s grandmother.

Complainant’s grandmother took possession of the cell phone and then delivered it to

the police the next day.

      A forensic interview of Complainant was conducted to obtain her recollection

of events. After obtaining a search warrant, police forensically examined Snow’s cell

phone. The examination revealed the chat between Snow and King gnol and the

photos of Snow and Complainant that had been transmitted during the chat. Police

subsequently interviewed and arrested Snow.

II. Standard of Review and Law on Preservation 2

      A trial court’s decision concerning the admission or exclusion of evidence and

concerning the extent of cross-examination is reviewed under an abuse-of-discretion

standard. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011) (concerning

the admission or exclusion of evidence); Cantu v. State, 939 S.W.2d 627, 635 (Tex.

Crim. App.) (concerning the extent of cross-examination). A trial court abuses its

discretion when its decision falls outside the zone of reasonable disagreement. Green

v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996).

      2
       Because many of Snow’s arguments challenge the admission or exclusion of
evidence and involve questions of preservation, we set forth the standard of review
for the admission or exclusion of evidence, as well as the law on preservation, only
once and refer to it as necessary. When warranted, other standards of review are set
forth within the issues.

                                          4
      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. Tex. R. App. P. 33.1(a)(1); Douds v. State, 472 S.W.3d 670, 674 (Tex. Crim.

App. 2015). The proponent also has the responsibility to, “at the earliest opportunity,

[do] everything necessary to bring to the judge’s attention the evidence rule [or

statute] in question and its precise and proper application to the evidence in

question.” Bonilla v. State, 452 S.W.3d 811, 817 (Tex. Crim. App. 2014). A complaint

is not preserved “if the legal basis of the complaint raised on appeal varies from the

complaint made at trial.” See Lovill v. State, 319 S.W.3d 687, 691–92 (Tex. Crim. App.

2009). To determine whether a complaint on appeal comports with a complaint made

at trial, we consider the context in which the complaint was made and the parties’

shared understanding at that time. Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim.

App. 2012). A reviewing court should not address the merits of an issue that has not

been preserved for appeal. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009).

III. Snow forfeited her contention that the trial court erred by admitting text
messages and pictures from her cell phone because the messages and pictures
were not properly authenticated. Even if error were not forfeited, her
contention is meritless.

      In her first issue, Snow argues that the text messages and pictures on her cell

phone were not properly authenticated without proof from a sponsoring witness who

had “direct knowledge” that Snow had sent the messages or had personally observed


                                          5
Snow type the messages. Snow forfeited this contention by failing to make an

adequate objection in the trial court. And even if an adequate objection were made,

the arguments that Snow raises go to the weight that the jury should have accorded

the evidence and not its admissibility. Finally, even if we were to adopt Snow’s

“direct knowledge” standard of authentication, the record contains proof that Snow

authored the texts and took the photos.

A. Snow’s vague statements at the time of the proffer of the messages and
pictures forfeited an objection that the evidence was not properly
authenticated.

         The record is a muddle of statements not phrased as objections, objections that

did not mention the statements that Snow now relies on as authentication objections,

and confusion as to what exhibits the statements and the objections were directed.

This muddle failed to preserve the appellate complaint that Snow makes in her first

issue.

         Snow phrases her first issue as a challenge to the admission of both the pictures

and text messages. Her brief mentions a statement made by her counsel that asked if

the sponsoring witness knew who had sent State’s Exhibit 24, which was a photo.

The sponsoring witness answered that “sillygirlgonewild Cristi Snow” had sent the

photo. The State, however, did not proffer the photo until five pages later in the

record, when it proffered the photo and seven other exhibits. After the officer stated

who had sent the photo, Snow objected to the witness reading from a document not

in evidence and stated, “[W]ho sent it is a different question than what the phone

                                             6
actually shows.”     At the prompting of the trial court, the State then offered

Exhibit 21, which contained the text message “chat” with King gnol and which was

the document the witness had read from to identify who had sent the photos (such as

State’s Exhibit 24) that were attached to it. The objection made to the introduction of

State’s Exhibit 21 stated its grounds as only hearsay and denial of the right to

confrontation.     When State’s Exhibit 24 and seven other documents were later

proffered, Snow’s counsel stated only, “Same objection.”

      Thus, what Snow relies on as an objection was a vague statement, not phrased

as an objection, that was made about a photo that was not even being proffered at the

time the statement was made and in response to which the trial court made no ruling.

When the text of the chat was proffered, Snow made no objection based on a lack of

proper authentication. When the photo was eventually proffered, Snow made no

authentication objection.   We have searched the record and have not found a

reference to the word “authentication” or to Texas Rule of Evidence 901 that states

the standard for authentication.

      Even a general authentication objection, without more, is not adequate to

preserve a complaint on appeal. Guaderrama v. State, No. 02-14-00500-CR, 2016 WL

828325, at *4 (Tex. App.—Fort Worth Mar. 3, 2016, no pet.) (mem. op., not

designated for publication) (concluding that general authentication objection was

“improper authentication objection” and inadequate to preserve complaint on appeal);

Trotty v. State, No. 02-12-00537-CR, 2014 WL 2538806, at *3 (Tex. App.—Fort Worth

                                          7
June 5, 2014, no pet.) (mem. op., not designated for publication) (same). And what

Snow relies on as an objection falls short of even a general authentication objection.

It is not phrased as an objection. It is not directed to the exhibit being proffered. It

is not referenced in the objection that was actually made. The record contains no

objection claiming that any exhibit was not properly authenticated or anything that

could be construed as making such an objection. We therefore conclude that Snow

failed to preserve her first issue.

B. Authentication of material extracted from a cell phone does not require
“direct knowledge” from a sponsoring witness that the defendant typed the
extracted data into the phone or took a picture contained on the phone.

       Even assuming that Snow preserved her first issue, she nevertheless would not

prevail. Snow does not contest that she owned the cell phone from which the chat

and photographs were extracted. In fact, one of her issues on appeal is that the

material extracted from the cell phone should have been excluded from evidence

because the phone was allegedly stolen from her and given to law enforcement. Nor

can she sincerely contend that she did not participate in the chat forensically extracted

from the cell phone; the jury watched her interview by law enforcement in which she

admitted both that she had participated in the chat and that she had taken the pictures

transmitted during that chat. 3 Still, she claims that a possibility exists that someone

else accessed her cell phone, participated in the chat, and took the pictures. In

       3
        This opinion will later outline in detail what Snow said about the chat during
her interview with police.


                                           8
essence, Snow claims that the State bore the burden to negate any possibility

inconsistent with her being a participant in the chat in order to authenticate data

extracted from the cell phone. The State, however, did not bear that burden in order

to authenticate the cell phone data.

       This court recently discussed how to authenticate data extracted from a cell

phone. See McLemore v. State, No. 02-15-00229-CR, 2016 WL 4395778, at *5–6 (Tex.

App.—Fort Worth Aug. 18, 2016, pet. ref’d) (mem. op., not designated for

publication).   The appellant in McLemore made an argument similar to Snow’s,

contending that the ease of accessing a cell phone should cause “this [c]ourt [to] adopt

a standard by which contents of a cell phone must be authenticated in a way that

definitely shows who accessed the certain website and who performed the internet

search” found on the phone. Id. at *5. This court disagreed, initially noting that

Texas Rule of Evidence 901(a) provides that “authentication requires a proponent of

evidence to show that an item is what the proponent claims it is.” Id. “Authenticity

of evidence is a preliminary admissibility question” that the trial court makes in its

discretion. Id. But the ultimate question of whether evidence is what the proponent

of the evidence claims it to be is left to the factfinder. Id.

       Circumstantial evidence is one means of proof to meet the initial burden of

showing that proffered evidence is what the proponent claims that it is. Id. at 6. In

McLemore, the appellant’s control of the cell phone and the fact that the victim was

shown material on the phone that corresponded to the data extracted from the phone

                                              9
was circumstantial evidence of the appellant’s ownership and that the data extracted

from it resulted from his use of the phone. Id.

       The opinion in McLemore concluded by holding that the burden of

authentication does not require the proponent to negate “all other possibilities

inconsistent with authenticity.” Id. Instead, the jury could assess those possibilities

when it ultimately weighed the evidence—“the possibilities that someone accessed the

data before appellant owned the phone or while he owned it but was not in

possession of it are alternate scenarios that the jury was entitled to assess upon the

admission of the evidence.” Id.

       Here, direct evidence established Snow’s ownership of the cell phone. Others

in the household took the cell phone from Snow and delivered it to police. The

record also contains direct evidence—Snow’s admissions during her interview by

police—that she had participated in the chat extracted from the cell phone. Even if

we were to hold that the State bore the burden to negate possibilities inconsistent

with the State’s claims of authenticity, the record in this case negates those

possibilities.

       Simply, Snow repeats the arguments that we rejected in McLemore. Beyond that,

the record negates any challenge that Snow could make that some other person

participated in the chat that was extracted from the cell phone or took the pictures

attached to that chat. If the trial court had faced a valid objection challenging the



                                          10
authentication of the cell phone data, it would have acted within its discretion to reject

that objection.

      We overrule Snow’s first issue.

IV. Snow forfeited her contention that admitting text messages from her cell
phone deprived her of the right to confront a witness against her. Even if error
were not forfeited, her contention is meritless.

      In her second issue, Snow renews her attack on the admission of the text

message chat between her and King gnol. This attack fails because Snow’s global

objection forfeited the claim of error that she raises in her second issue. Further,

Snow admits, and case law confirms, that the text messages were not testimonial

statements that implicate the right to confrontation.

A. Snow’s global objection forfeited her objection.

      We again deal with the muddle highlighted in our discussion of Snow’s first

issue. In this discussion, we must also interpret what Snow’s brief is asking us to

review. After this exercise, we conclude that Snow contends that State’s Exhibit 21,

which portrays the text chat between “sillygirlgonewild Cristi Snow” and “King gnol,”

should have been excluded because Snow did not have the ability to cross-examine

the person sending the King gnol texts. Moving forward from this premise, the

exhibit also contained material that Snow does not contend should have been

excluded—the “sillygirlgonewild Cristi Snow” texts.             Snow, however, never

differentiated for the trial court which part of the exhibit should have been excluded.

Thus, the flaw in the objection and why she forfeited error.

                                           11
      Specifically, the record reveals that State’s Exhibit 21 is twenty pages long and

has approximately ten texts per page. The participants in the chat are identified as

sillygirlgonewild Cristi Snow and King gnol. When the State proffered Exhibit 21,

Snow objected, “I will object to State’s Exhibit 21 on the grounds that it[]--contains

hearsay, as well as denies us the right to confrontation of whoever may all be using

these assumed names.” Snow also obtained a running objection of an unspecified

nature. Pictures sent during the chat were later proffered, and at that point, Snow

stated, “Same objection.”

      Snow’s brief focuses on the location of King gnol and the consequences of the

admission of his texts. Specifically, Snow references the testimony of the officer who

extracted the information from her cell phone and how he highlighted that the texts

from King gnol originated from an IP address in Australia. Her brief identifies the

problem with the King gnol texts as follows: “Appellant never had access to him[,]

and Appellant was not able to cross[-]examine him. Allowing these messages to come

into the trial violated Appellant’s rights to confront [her] accusers under the 6th

[A]mendment.”

      Thus, we view Snow’s issue as complaining that the trial court admitted State’s

Exhibit 21 without redacting the texts of King gnol.          But Snow brought that

complaint to the attention of the trial court through a global objection that placed the

burden on the trial court to sift the portions of State’s Exhibit 21 that Snow felt were



                                          12
admissible and those that were not. The Texas Court of Criminal Appeals is clear that

this approach gives the trial court carte blanche to overrule the objection:

      The trial court need never sort through challenged evidence in order to
      segregate the admissible from the excludable, nor is the trial court
      required to admit only the former part or exclude only the latter part. If
      evidence is offered and challenged which contains some of each, the trial
      court may safely admit it all or exclude it all, and the losing party, no
      matter who he is, will be made to suffer on appeal the consequences of
      his insufficiently specific offer or objection.

Jones v. State, 843 S.W.2d 487, 492 (Tex. Crim. App. 1992), overruled on other grounds by

Maxwell v. State, 48 S.W.3d 196 (Tex. Crim. App. 2001); see Mims v. State, No. 03-13-

00266-CR, 2015 WL 7166026, at *7 n.31 (Tex. App.—Austin Nov. 10, 2015, pet.

ref’d) (mem. op., not designated for publication) (collecting cases holding that the

failure to identify which portion of the items within a proffered exhibit are

inadmissible forfeits a claim of error). Snow’s global objection to State’s Exhibit 21

preserved nothing for our review.

B. The text messages exchanged in the chat were not testimonial statements;
thus, Snow does not have a Confrontation Clause complaint.

      Even if Snow had not forfeited her complaint by making a global objection to

State’s Exhibit 21, she concedes, and we agree, that the text messages were

nontestimonial statements. Thus, the admission of the texts did not implicate Snow’s

Sixth Amendment right to confront a witness against her. Further, the nontestimonial

character of the texts ends the discussion of the application of the Confrontation

Clause.


                                           13
1. Standard of review to determine Snow’s Confrontation Clause contentions

      We review whether a statement is testimonial or nontestimonial for purposes

of determining the application of the Sixth Amendment under a de novo standard of

review. Wall v. State, 184 S.W.3d 730, 742–43 (Tex. Crim. App. 2006).

2. Snow concedes the text messages are nontestimonial statements, and we
agree.

      At its most elementary level, the Confrontation Clause of the United States

Constitution ensures the right of a defendant to cross-examine witnesses whose

statements are used against him or her. Crawford v. Washington, 541 U.S. 36, 59, 124 S.

Ct. 1354, 1369 (2004). But only statements that are testimonial in nature potentially

violate the Confrontation Clause. See id. at 68, 124 S. Ct. at 1374.

      To distinguish between testimonial and nontestimonial statements, this court

recently explained:

      “[T]estimonial statements are those ‘that were made under circumstances
      which would lead an objective witness reasonably to believe that the
      statement would be available for use at a later trial.’” Burch v. State, 401
      S.W.3d 634, 636 (Tex. Crim. App. 2013). In determining whether a
      statement is testimonial, we review the objective purpose of the
      statement, not the declarant’s expectations. Coronado v. State, 351 S.W.3d
      315, 324 (Tex. Crim. App. 2011). Statements are testimonial when the
      circumstances objectively indicate that the primary purpose of the
      interrogation is to establish or prove past events potentially relevant to
      later criminal prosecution. Id.

Florez v. State, No. 02-16-00195-CR, 2017 WL 2471095, at *5 (Tex. App.—Fort Worth

June 8, 2017, no pet.) (mem. op., not designated for publication).



                                           14
       We cannot see how the texts exchanged in State’s Exhibit 21 constitute

testimonial statements. Many courts hold that conversations like those reflected in

State’s Exhibit 21 are not testimonial statements. See Stephenson v. State, No. 07-11-

00017-CR, 2011 WL 4027721, at *1 (Tex. App.—Amarillo Sept. 12, 2011, no pet.)

(mem. op., not designated for publication) (text messages sent during a confidential

conversation between friends were not testimonial); Davis v. State, 268 S.W.3d 683,

709 (Tex. App.—Fort Worth 2008, pet. ref’d) (holding that statements made in a cell

phone call conducted in the presence of a friend were not testimonial because there

was no indication they were made under circumstances that would lead an objective

witness to believe they would be available for use at a later trial); see also Woods v. State,

152 S.W.3d 105, 114 (Tex. Crim. App. 2004) (stating that spontaneous statements to

acquaintances are not testimonial); Freeman v. State, 230 S.W.3d 392, 401 (Tex. App.—

Eastland 2007, pet. ref’d) (stating the same). In her brief, Snow agrees that the text

messages were not testimonial statements.

       Having conceded that the statements at issue are nontestimonial, Snow relies

on the pre-Crawford case of Ohio v. Roberts, arguing that because Crawford did not

“directly address” nontestimonial statements, “the earlier Supreme Court decision in

Ohio v. Roberts should be the proper test.” 448 U.S. 56, 100 S. Ct. 2531 (1980), overruled

by Crawford, 541 U.S. at 58–68, 124 S. Ct. at 1368–74. Snow further argues that under

Roberts, the Confrontation Clause applies to the nontestimonial statements that she

challenges. But this court has held the contrary. See Gongora v. State, 214 S.W.3d 58,

                                             15
63 (Tex. App.—Fort Worth 2006, pet. ref’d) (noting that the United States Supreme

Court has “unequivocally limit[ed] any analysis under the Confrontation Clause to

only those statements that are testimonial in nature” and holding that “the Roberts

standard no longer governs the analysis of a non[]testimonial statement under the

Confrontation Clause”). And Snow has not asked us to revisit our holding, let alone

argued why it is incorrect. We decline to revisit Gongora here.

      Because the statements that Snow challenges are nontestimonial, the

Confrontation Clause is inapplicable. We therefore overrule Snow’s second issue.

V. The trial court did not err by overruling Snow’s hearsay objection to the
transcription of the chat that she had with King gnol.

      In her third issue, Snow argues that the text messages and pictures constitute

inadmissible hearsay. We will discuss Snow’s hearsay contentions in the sequence she

presents them in her brief.

      Initially, Snow cites twenty-nine pages of the record and claims that the police

officer who sponsored State’s Exhibit 21 was not an eyewitness to the events and that

his statements could not be used as “substantive evidence.” The record reveals no

statements by the officer, other than describing the contents of the King gnol chat

and the attachments to it. Snow’s brief identifies no statements made by the officer

that were anything other than a description of what was extracted from the cell phone

as part of its forensic examination. We construe Snow’s contention to be a challenge

to the contents of the chat extracted from her cell phone. We hold that there was no


                                           16
error in the introduction of that document. Thus, the officer’s statements, which go

no further than describing the contents of an admissible document, are likewise not

objectionable.

      Next, Snow challenges the admission of King gnol’s texts in the exchange with

her. The chat was exactly that—a two-way conversation in which King gnol and

Snow responded to each other’s texts. King gnol’s side of the chat was admissible

because it gave context to Snow’s statements. When one party’s statements made

during a conversation constitute admissions, the statements by the other participant in

the conversation are admissible to give the other’s statements context. See United

States v. Catano, 65 F.3d 219, 225 (1st Cir. 1995) (“Because Nigro’s statements were

offered only for context and not for the truth of the matter asserted, those statements

are not hearsay under Federal Rule of Evidence 801(c).”). If Snow wanted the jury to

consider King gnol’s statements only for the limited purpose of giving the statements

context, it was her burden to request a limiting instruction, which she did not do. See

Tex. R. Evid. 105(a)(1) (“A party may claim error in a ruling to admit evidence that is

admissible against a party or for a purpose—but not against another party or for

another purpose—only if the party requests the court to restrict the evidence to its

proper scope and instruct the jury accordingly.”).

      Finally, Snow contends that the statements contained in State’s Exhibit 21 from

“sillygirlgonewild Cristi Snow” constitute hearsay “because it was not known whether

appellant was the person who [had] sent them.” Snow concedes that if she were a

                                          17
participant in the conversation, her statements would constitute admissions and be

admissible. The record is directly contrary to Snow’s contention that it was unknown

who had sent the texts from Snow’s side of the chat.

      The record demonstrates that Snow acknowledged her participation in the chat,

which was transcribed in State’s Exhibit 21. When interviewed by law enforcement, 4

Snow was shown a copy of the chat with King gnol, which was identified as chat 696.

State’s Exhibit 21 was a transcription of chat 696. Initially, Snow shrugged when

asked if the chat rang a bell and said that she did not remember that far back. The

officer conducting the interview went on to describe what had occurred during the

chat. At one point, the officer related that the other participant in the chat had asked

the age of Complainant, and Snow responded that she was fourteen. Snow stated at

that point, “That’s what she told me to tell him.” When again asked if the officer’s

description of the chat was ringing a bell, Snow said, “Some of it, but not really. I

can’t remember that far back. It’s been a long time ago.” When asked if she

remembered a photo of her transmitted during the chat, Snow responded, “Yeah.”

Snow also attempted to defend her actions by claiming that Complainant had told her

to take a picture during the chat. Snow continued to defend her actions by saying that

she could not have taken the picture transmitted during the chat if Complainant had

not told her to do so. Admittedly, Snow next said, “I don’t remember that far back.”

But when asked who King gnol was, Snow responded, “I don’t know who he is.

      4
       Snow’s brief makes no mention of the interview.

                                          18
Some guy from Australia.”         Snow’s own comments thus demonstrated her

participation in the chat.

       Accordingly, we hold that the trial court did not abuse its discretion by

overruling Snow’s hearsay objection to the transcription of the chat that she had with

King gnol, and we overrule her third issue.

VI. The trial court did not err by excluding statements that Complainant told
Snow that she was a lesbian or that she may have had sex with someone.
Neither Snow’s contention that the trial court mistakenly applied Texas Rule
of Evidence 412 nor her contention that the statements were relevant to
whether Snow had induced Complainant to engage in a sexual performance
show error in the exclusion of the statements.

       In her fourth issue, Snow argues that the trial court erred by redacting parts of

the video of her interview with law enforcement over her objections. The trial court

conducted a hearing under Texas Rule of Evidence 412 to determine whether to

exclude statements that Snow made during the interview with law enforcement—that

Complainant was a lesbian and had engaged in sexual relations. The trial court

concluded that the evidence was neither admissible nor relevant under rule 412 and

that none of the exceptions found in that rule applied. Snow did not argue, as she

does on appeal, that rule 412 did not apply to the offense with which Snow was

charged. Further, Snow’s complaint in the trial court—that the evidence went “to

show motive to not tell the truth”—has morphed on appeal into a claim that the

statements were relevant to the question of whether Snow induced Complainant’s

conduct. Snow forfeited both objections.


                                           19
       Further, the trial court’s mistaken reliance on rule 412 does not mean that the

statements were automatically admissible when another legal theory warranted their

exclusion.    The trial court may have given the wrong reason for excluding the

statements. But the statements’ lack of relevance still warranted their exclusion.

A. Snow has forfeited any complaint that the trial court erred by relying on
Texas Rule of Evidence 412 to exclude her statements to the investigator and
cannot make arguments on appeal that were not presented to the trial court
regarding why those statements were admissible.

       Snow argues that the trial court erred by relying on Texas Rule of Evidence 412

to exclude her statements about Complainant’s sexual orientation and history. Snow’s

point is that rule 412 applies only to prosecutions listed in the rule as “for sexual

assault, aggravated sexual assault” or an attempt to commit those offenses and does

not apply to sexual performance of a child because that offense is not listed in the

rule. See Tex. R. Evid. 412(a); Reyna v. State, 168 S.W.3d 173, 176 (Tex. Crim. App.

2005) (holding that rule 412 “applies to cases of sexual assault, aggravated sexual

assault, or an attempt to commit those offenses”).        Although we agree, Snow’s

argument comes too late. At no point did Snow object that the trial court conducted

a hearing based on rule 412 or challenge the trial court’s reliance on that rule as the

basis for its ruling.

       Snow also appears to argue that even if rule 412 applied, her statements to the

investigator would still be admissible because the statements fall under one of the

exceptions to the rule that permits evidence of a victim’s past sexual behavior if that


                                           20
evidence “relates to the victim’s motive or bias.” See Tex. R. Evid. 412(b)(2)(C). But

as with many of Snow’s preceding arguments, she forfeited this argument because she

changed her arguments on appeal from the one she made in the trial court.

      Below, Snow argued that the statements were relevant because “we think it

goes to show motive to not tell the truth.” Here, she argues the statements were

relevant because Complainant’s past sexual behavior and orientation were relevant to

whether Snow induced Complainant to engage in sexual conduct or a sexual

performance. A party cannot use the appellate court as an audience to audition new-

and-improved arguments why the trial court should have admitted evidence. Lovill,

319 S.W.3d at 691–92. Snow’s argument in the trial court—that her statements to the

investigator demonstrated Complainant’s motive to lie—does not match her

argument on appeal—that Complainant’s sexual history and sexual orientation show a

proclivity to engage in sexual conduct without inducement from Snow.

B. Complainant’s alleged sexual history and sexual orientation were not
relevant to establish that she might have engaged in a lewd exhibition without
the inducement of Snow.

      Once again, even if Snow’s arguments on appeal matched those she made

below, the trial court would not have abused its discretion by excluding Snow’s

statements to the investigator.   Those statements were not relevant to prove a

proclivity to engage in sexual conduct without Snow’s inducement.

      Initially, the fact that the trial court made the right decision for the wrong

reason does not prevent us from sustaining the decision. See Qualls v. State, 547

                                         21
S.W.3d 663, 675 (Tex. App.—Fort Worth 2018, pet. ref’d) (citing De la Paz v. State,

279 S.W.3d 336, 344 (Tex. Crim. App. 2009)) (“If the trial court’s decision to admit or

exclude evidence is correct under any applicable legal theory, we will uphold that

decision even if the trial court gave a wrong or incomplete reason for its ruling.”). We

test the trial court’s underlying decision and not its stated justification to determine

whether it is “correct under any applicable legal theory.” Id.

      The core of Snow’s argument appears to be the fact that Complainant might be

a lesbian or had engaged in sexual relations makes it more or less probable that she

might also be an exhibitionist who volunteered to have her nude picture flashed

around the world. In our view, no rule of evidence justifies such a leap.

      All evidence must meet rule 401’s standard of relevance that the evidence “has

any tendency to make a fact more or less probable than it would be without the

evidence.” Tex. R. Evid. 401. Even in those cases falling under one of rule 412’s

exceptions that permit the introduction of a victim’s prior sexual history, there must

be a link between that history and the fact that the defendant wants to prove, such as

the victim’s motive or bias. Tex. R. Evid. 412(b)(2)(C); see Seery v. State, No. 12-11-

00095-CR, 2013 WL 683327, at *6 (Tex. App.—Tyler Feb. 21, 2013, pet. ref’d) (mem.

op., not designated for publication) (“But K.B.’s prior sexual history does not tend to

establish that K.B. fabricated the story because she was having sexual intercourse with

others.”); Franklin v. State, No. 12-08-00391-CR, 2010 WL 337334, at *5 (Tex. App.—

Tyler Jan. 29, 2010, no pet.) (mem. op., not designated for publication) (holding that

                                           22
there was no error in excluding sexual nature of victim’s relationship with boyfriend

to establish motive to fabricate when there was evidence that victim and defendant

frequently quarreled about her boyfriend who was ten years older than victim and

lived in the apartment rent-free); Chavira v. State, No. 12-03-00108-CR, 2004 WL

1418390, at *3 (Tex. App.—Tyler June 23, 2004, no pet.) (mem. op., not designated

for publication) (concluding that “past sexual conduct does no more than show [that

the victim] was sexually active” under circumstances in case); Stephens v. State, 978

S.W.2d 728, 734–35 (Tex. App.—Austin 1998, pet. ref’d) (holding that appellant failed

to demonstrate “definite and logical link” between complainant’s sexual behavior and

alleged motive); Cooper v. State, 959 S.W.2d 682, 684–85 (Tex. App.—Austin 1997, pet.

ref’d) (holding that evidence of complainant’s sexual relations with boyfriend to prove

she had fabricated accusation against defendant to conceal her relationship with

boyfriend was not sufficiently connected to her motive to fabricate).

      Here, the only explanation that Snow offers of a link between Complainant’s

alleged lesbianism or prior sexual history and a proclivity to engage in a lewd

exhibition is the conclusion that “this evidence could tend to show that the behavior

could have been self-induced, making it less likely that Appellant played a role.” We

do not see that link. Thus, even if Snow had offered the trial court the grounds that

she offers us to admit the statements she made to the investigator, the trial court

would have not abused its discretion by excluding the evidence.

      We overrule Snow’s fourth issue.

                                          23
VII. The trial court did not abuse its discretion by excluding the testimony of
a clinical psychologist that Snow had a low IQ and suffered from a personality
disorder.

      In her fifth issue, Snow argues that the trial court abused its discretion when it

refused to allow evidence of her mental capacity.       The trial court excluded the

testimony of a clinical psychologist who testified on voir dire that Snow had an IQ of

77 and exhibited a dependent personality disorder.          Snow contends that the

psychologist’s opinions were reliable. She then argues that the testimony was relevant

because it “could lead one to conclude” that Snow lacked the ability to form the mens

rea that was an element of the offense of sexual performance of a child. But Snow

never tells us how the psychologist’s testimony could have led to this conclusion

when he never offered an opinion that Snow lacked the ability to form the necessary

mens rea and testified that she knew what she had done was wrong.

A. Standard of review

      The decision to exclude evidence of a mental illness is tested by an abuse-of-

discretion standard. Jackson v. State, 160 S.W.3d 568, 575 (Tex. Crim. App. 2005).

B. The psychologist’s testimony

      During the guilt-innocence phase of her trial, Snow proffered the testimony of

a clinical psychologist who testified on voir dire about his qualifications, the

documents that he had reviewed, and the testing that he had performed on Snow.

The psychologist further testified that Snow has an IQ of 77 and exhibits traits of

dependent personality disorder. That disorder causes a person to be “dependent on

                                          24
other people, rely[] on other people and basically look[] to others for nurture and

some support and guidance and so on.” The psychologist also described what it

means for a person to have low IQ and expanded on the traits of dependent

personality disorder. But he never offered an opinion on whether Snow suffered

from a mental illness that rendered her incapable of forming the mens rea that is an

element of the offense of sexual performance of a child.

      Rather than undermining Snow’s ability to form the mens rea, the psychologist

admitted on cross-examination that Snow knew what she had done, that it was wrong,

and that she had the capacity to act knowingly and intentionally:

      Q. And she understood what she had done, and she actually explains
      that in your interview with her; is that right?

      A. That’s correct.

      Q. And she understands that what she did was wrong. And she states, I
      believe, and I’m going according to your report, that this was a one-time
      experience, and it was not repeated; is that correct?

      A. That’s what I was told.

      Q. Okay.

      A. Yes.

      Q. And you were told that by the defendant?

      A. Yes, by the defendant.

      Q. All right. And so she does have the capacity to intentionally and
      knowingly perform the acts and comply with directions given by those?

      A. Yes.

                                          25
The trial court did not permit the psychologist to testify before the jury.

C. The psychologist’s testimony did not directly rebut Snow’s mens rea; the
trial court acted within its discretion to exclude that testimony.

      The Texas Penal Code states that a person commits the offense of sexual

performance of a child “if, knowing the character and content thereof, he employs,

authorizes, or induces a child younger than 18 years of age to engage in sexual

conduct or a sexual performance.” Tex. Penal Code Ann. § 43.25(b). Snow argues

that this definition requires the mens rea that the defendant know that the conduct

induced in the child is sexual in nature. See Dornbusch v. State, 156 S.W.3d 859, 869

(Tex. App.—Corpus Christi–Edinburg 2005, pet. ref’d) (“The phrase [knowing the

character and content thereof] precludes criminal culpability from arising unless the

actor knows that the conduct induced is sexual in nature.”). We agree.

      We also agree that expert testimony may be admitted on the issue of whether

the defendant suffered from a mental illness that rebuts the mens rea element of an

offense. See Mays v. State, 318 S.W.3d 368, 382 (Tex. Crim. App. 2010). Specifically,

“‘[a]s with the other elements of the offense, relevant evidence may be presented

which the jury may consider to negate the mens rea element[,] . . . includ[ing] evidence

of a defendant’s history of mental illness,’ provided that the evidence is admissible

under the Texas Rules of Evidence.” Henry v. State, 466 S.W.3d 294, 298–99 (Tex.

App.—Texarkana 2015) (quoting Jackson, 160 S.W.3d at 574), aff’d, 509 S.W.3d 915



                                           26
(Tex. Crim. App. 2016). The expert testimony must, however, “directly rebut a

defendant’s culpable mens rea, [or] a trial court is not required to admit it.” Id. at 299.

       We disagree with Snow that the opinions of the psychologist she offered

directly rebutted the mens rea element of the offense of sexual performance of a

child. The psychologist never offered an opinion that Snow’s reduced IQ or her

diagnosis of dependent personality disorder undermined her ability to formulate the

intent required to meet the mens rea element. To the contrary, on cross-examination,

the psychologist opined that Snow understood what she had done, knew it was

wrong, and was capable of acting intentionally and knowingly.             The trial court

therefore acted well within its discretion by excluding the testimony of the

psychologist.

       We overrule Snow’s fifth issue.

VIII. Snow forfeited her objection that the trial court erred by overruling her
motion to suppress a search of her cell phone based on her claim that the
affidavit used to obtain a warrant omitted a material fact. Further, the
omission of the fact that Snow highlights did not vitiate a finding that probable
cause existed to issue the warrant.

       Snow contends in her sixth and seventh issues that the trial court abused its

discretion by overruling her motion to suppress. In essence, she claims a fact omitted

from the affidavit supporting the issuance of the warrant to search her cell phone

vitiated a finding of probable cause. First, Snow forfeited error on two of the

arguments she makes on appeal. The effect of that forfeiture renders the argument

she preserved an exercise in futility. No matter our resolution of her preserved claim,

                                            27
the portions of the affidavit on which she forfeited her objection independently

support a finding of probable cause. Second, the record Snow made at the hearing on

the motion to suppress failed to carry her burden to establish that the officer

preparing the affidavit omitted the fact knowingly, intentionally, or with reckless

disregard for the truth and that consideration of the omitted fact undermined the

magistrate’s finding that probable cause existed to search the cell phone.

A. Snow has failed to preserve error.

      In her motion to suppress, Snow challenged a single paragraph of the search-

warrant affidavit. On appeal, she expands that challenge, now arguing that not only is

the paragraph that was the target of the motion to suppress defective but also that the

remaining paragraphs of the affidavit could not support the issuance of the warrant.

But she does not attack those remaining paragraphs claiming their statements did not

support the issuance of the warrant. Instead, she claims only that those statements

had unreliable sources, but she did not make that objection in the trial court. Thus,

she forfeited her reliability objections. With her reliability challenge to the remaining

paragraphs forfeited and no suggestion that those paragraphs, if reliable, were not

sufficient to support the issuance of the affidavit, Snow’s preserved challenge

becomes an exercise in futility. No matter the resolution of the preserved challenge,

the remaining—now unchallenged—paragraphs support the issuance of the warrant.

      Specifically, Snow’s motion to suppress attacks only paragraph six of the

affidavit (though it does not identify the paragraph by number). Her attacks on

                                           28
appeal broaden to include paragraphs three and four of the affidavit. The new

challenges focus only on the reliability of those paragraphs. Snow forfeited her

reliability challenges because she did not make them in the trial court. See Glenn v.

State, No. 09-16-00093-CR, 2017 WL 4274674, at *3 (Tex. App.—Beaumont Sept. 27,

2017, no pet.) (mem. op., not designated for publication) (“Glenn waived his right to

challenge the reliability of the confidential source because he presented his argument

on that ground for the first time in his appeal.”); Richardson v. State, No. 01-04-00833-

CR, 2006 WL 488661, at *3 (Tex. App.—Houston [1st Dist.] Mar. 2, 2006, pet. ref’d)

(mem. op., not designated for publication) (“Appellant neither objected to the trial

court nor asserted any complaints concerning the untimely execution of the search

warrant and the reliability of the canine unit and has thus waived those complaints on

appeal.”).

       The forfeited complaint leaves Snow in the posture that even if we concluded

her preserved issue were valid, we cannot agree that the remaining portions of the

affidavit did not support a finding of probable cause and the issuance of the warrant.

See Islas v. State, No. 14-17-00660-CR, 2018 WL 5261103, at *2 (Tex. App.—Houston

[14th Dist.] Oct. 23, 2018, pet. filed) (“If the defendant carries that burden [in the

hearing on the motion to suppress], then the false statement is removed from the affidavit, or

the true statement is added, and the reviewing court must determine whether probable

cause for the warrant still exists.” (emphasis added)).



                                             29
B. The trial court did not err by denying Snow’s motion to suppress.

1. Background of Snow’s motion to suppress the warrant

      Snow argues that paragraph six of the affidavit recited that “[d]uring the

[forensic] interview, the victim said that the suspect told her to take off her clothes, so

she could take a picture of her.” The motion to suppress argues that the affidavit

omitted the fact that Complainant also told the forensic interviewer that she did not

remove her bra and panties and was not naked when Snow took a photograph of her.

Even if the validity of the issuance of the warrant depended on the survival of

paragraph six (which we have explained above that it does not), the trial court acted

within its discretion to deny the motion. The affidavit accurately represented what

Complainant told the forensic interviewer, and the omission of the information

highlighted by Snow was not necessary to the finding of probable cause to support

the issuance of a warrant.

      The affidavit accurately described Complainant’s statement to the forensic

interviewer. She told the forensic interviewer that her former aunt—Snow—took

pictures of her naked without her permission. But Complainant later stated that Snow

had said, “Take my clothes off so that she can take a picture of me.”               Then,

Complainant said that her bra was on when Snow took her photos. The detective

who prepared the affidavit apparently watched the forensic interview while it was in

progress. However, that detective did not testify during the hearing on the motion to



                                            30
suppress. Instead, the parties stipulated that the detective was present during the

forensic interview.

      As set forth above, the affidavit that supported the issuance of the search

warrant recited in paragraph six that “[d]uring the interview, the victim said that the

suspect told her to take off her clothes, so she could take a photo of her.” The

affidavit recited in paragraph three that Complainant’s uncle had searched Snow’s cell

phone and then had shown photos found on the phone to Complainant’s

grandmother. The grandmother looked at photos of Complainant and Snow and

described them as pornographic. Next, in paragraph four, the affidavit states that

Complainant’s mother and her grandmother spoke to Complainant. Paragraph four

also states that “[t]he victim said that the suspect had her undress, and the suspect

took nude photos of her.”

2. Standard of review

      The Fourteenth Court of Appeals recently set out the standard of review to

follow when testing a magistrate’s decision to issue a warrant:

      When reviewing a trial court’s ruling on a motion to suppress, we
      generally apply a bifurcated standard of review, giving almost total
      deference to the trial court’s determinations of fact and reviewing
      de novo the trial court’s application of the law. State v. McLain, 337
      S.W.3d 268, 271 (Tex. Crim. App. 2011). However, where the motion to
      suppress is based upon a magistrate’s decision to issue a warrant, there
      are no credibility determinations to which we must defer because the
      trial court is constrained to the four corners of the affidavit. Id.

            When we review the magistrate’s decision to issue a warrant, we
      apply a highly deferential standard because of the constitutional

                                           31
      preference for searches to be conducted pursuant to a warrant as
      opposed to a warrantless search. Id.; see Illinois v. Gates, 462 U.S. 213,
      236, 103 S. Ct. 2317, 76 L.Ed.2d 527 (1983). “As long as the magistrate
      had a substantial basis for concluding that probable cause existed, we
      will uphold that magistrate’s probable[-]cause determination.” McLain,
      337 S.W.3d at 271; see State v. Dugas, 296 S.W.3d 112, 115 (Tex. App.—
      Houston [14th Dist.] 2009, pet. ref’d) (explaining that review of
      magistrate’s issuance of search warrant is “not de novo” and that “great
      deference is given to the magistrate’s determination of probable cause”).
      Under this highly deferential review—which the Texas Court of
      Criminal Appeals calls the “substantial basis” standard—the reviewing
      court’s duty is simply to ensure the magistrate had a substantial basis for
      concluding that probable cause existed. Flores v. State, 319 S.W.3d 697,
      702 (Tex. Crim. App. 2010) (citing W. LaFave, Search and Seizure: A
      Treatise on the Fourth Amendment § 11.7(c) at 452 (4th ed. 2004 & Supp.
      2009–2010)).

Islas, 2018 WL 5261103, at *2.

      Both the United States and Texas Constitutions specify that no warrant shall

issue without a showing of probable cause found in an affidavit or oath. See U.S.

Const. amend. IV; Tex. Const. art. I, § 9. The Texas Code of Criminal Procedure

states the same requirement. See Tex. Code Crim. Proc. Ann. art. 18.01(b). “Probable

cause exists if, under the totality of the circumstances set forth in the affidavit before

the magistrate, there is a ‘fair probability’ that contraband or evidence of a crime will

be found in a particular place at the time the warrant is issued.” State v. Jordan, 342

S.W.3d 565, 568–69 (Tex. Crim. App. 2011) (footnote omitted).

      Here, Snow attacks the affidavit by claiming that it omitted a fact—

Complainant’s statement that she was photographed in her underwear. This court has

described how to make the determination of whether the omission of a fact from a


                                           32
warrant vitiates a warrant and the standard to apply in making that determination as

follows:

      The United States Supreme Court has held that an affirmative
      misrepresentation of a material fact that establishes probable cause,
      made knowingly or recklessly in a probable cause affidavit, will render a
      search warrant invalid under the Fourth Amendment. See Franks v.
      Delaware, 438 U.S. 154, 155–56, 98 S. Ct. 2674, 2676, 57 L.Ed.2d 667
      (1978). Although the Texas Court of Criminal Appeals has never
      directly decided whether a Franks analysis applies to omissions, this
      court, other Texas courts of appeals, and the Fifth Circuit have held that,
      when a defendant seeks to suppress evidence lawfully obtained by a
      warrant based on an alleged omission in the affidavit supporting the
      warrant, he must establish by a preponderance of the evidence that the
      omission was made knowingly, intentionally, or with reckless disregard
      for the truth in an attempt to mislead the magistrate. See Darby v. State,
      145 S.W.3d 714, 722 (Tex. App.—Fort Worth 2004, pet. ref’d); McKissick
      [v. State], 209 S.W.3d [205,] 211–14 [(Tex. App.—Houston [1st Dist.]
      2006, pet. ref’d)]; Heitman v. State, 789 S.W.2d 607, 610 (Tex. App.—
      Dallas 1990, pet. ref’d); Melton v. State, 750 S.W.2d 281, 284 (Tex. App.—
      Houston [14th Dist.] 1988, no pet.); see also United States v. Martin, 615
      F.2d 318, 328 (5th Cir. 1980). Accordingly, if a defendant establishes by
      a preponderance of the evidence that omissions of fact were made in a
      probable[-]cause affidavit and that such omissions were made knowingly,
      intentionally, or with reckless disregard for the truth, the warrant will be
      held invalid if the inclusion of the omitted facts would vitiate probable
      cause. Martin, 615 F.2d at 328.

Martin v. State, No. 02-08-00128-CR, 2009 WL 2414294, at *4 (Tex. App.—Fort

Worth Aug. 6, 2009, no pet.) (mem. op., not designated for publication); see also Islas,

2018 WL 5261103, at *4.

3. Snow failed to carry her burden at the hearing on the motion to suppress in
two ways.

      Snow failed to carry her burden to establish both (1) that by a preponderance

of the evidence an omission was made knowingly, intentionally, or recklessly in an

                                          33
attempt to mislead the magistrate and (2) that including the omitted fact would have

vitiated a finding of probable cause.

       The first failure results from the fact that the only evidence before the trial

court was the affidavit, the forensic interview, and the stipulation that the detective

was present during the interview. Thus, the record establishes that the forensic

interview contains a statement not reflected in the affidavit but does not contain any

explanation why the statement did not appear. As the record stands, the trial court

knew only that a statement made during the interview was not included in the

affidavit. Many innocent explanations exist why the statement did not appear—the

detective did not hear the statement, or he did not think that it was material in view of

the other statements made by Complainant. It was within the trial court’s discretion

to conclude that Snow failed to carry her burden of establishing by a preponderance

of the evidence that an omission was made knowingly, intentionally, or with reckless

disregard for the truth. See Martin, 2009 WL 2414294, at *4 (holding that record did

not reflect that officer intentionally or knowingly, with reckless disregard for the truth,

made any omissions in affidavit that would affect probable cause to support issuance

of search warrant); see also Islas, 2018 WL 5261103, at *4 (same).

       Snow’s contention also fails because, even if the true statement were included,

this does not vitiate a finding of probable cause. As noted above, Snow forfeited any

challenge to the reliability of the remaining paragraphs of the affidavit.          Those

paragraphs establish that Complainant’s grandmother saw what she described as

                                            34
pornographic pictures of Complainant on Snow’s cell phone and that Complainant

stated to her mother and her grandmother that Snow had “[taken] nude pictures of

her.” Certainly, Complainant did state in the interview that she was photographed in

her bra and panties. But that statement did not destroy the effect of the other

statements in the affidavit that both a pornographic photo was found on the cell

phone and that Complainant told her two closest relatives that she had been

photographed nude.      We hold that the trial court acted within its discretion to

overrule Snow’s motion to suppress.

      We overrule Snow’s sixth and seventh issues.

IX. The trial court did not abuse its discretion by failing to suppress the
search of the cell phone because the phone was “stolen” and then given to the
police.

      In her eighth issue, Snow argues that other members of the household stole her

cell phone. The alleged theft of the cell phone, in Snow’s view, demonstrates that the

phone was obtained in violation of the laws of the State of Texas and that the failure

to suppress a search of the phone violated the exclusionary rule found in article

38.23(a) of the Texas Code of Criminal Procedure. Snow forfeited this argument by

failing to make the argument she makes on appeal in the trial court. Even if we were

to reach the merits of her claim, the alleged theft of the cell phone did not warrant a

suppression of its search.




                                          35
A. Why Snow forfeited her complaint by not raising it in the trial court

         We have held that a motion to suppress functions as a specialized objection to

admissibility, and as with any other objection, “must meet the ordinary procedural

requirements of an objection, in that it must be timely and sufficiently specific.”

Torres v. State, No. 02-16-00322-CR, 2017 WL 3184494, at *2 (Tex. App.—Fort Worth

July 27, 2017, pet. ref’d) (mem. op., not designated for publication).

         Here, both Snow’s motion to suppress and her argument at the hearing on the

motion to suppress raised only the issue that we addressed above—the warrant

authorizing a search of the cell phone was invalid because the affidavit supporting the

issuance of the warrant omitted a fact. Snow cites us to no other objection raising a

violation of article 38.23. Indeed, we have searched the record and have found no

reference to that statute in the trial court. Because the complaint that Snow makes on

appeal in her eighth issue differs from that made at trial, she forfeited her claim of

error.

B. Even if Snow had not forfeited the complaint, the trial court would not have
abused its discretion by overruling an objection predicated on article 38.23.

         As set forth above, the trial court has discretion to resolve an objection seeking

to suppress evidence, and the trial court’s determinations receive almost total

deference on appeal with regard to rulings involving historical facts and the

application-of-law-to-fact questions that turn on an evaluation of credibility and

demeanor.      Two rationales would have supported an exercise of discretion and


                                             36
permitted the admission of the cell phone in the face of an objection relying on article

38.23.

         First, Snow surrendered access to the cell phone to other members of her

household, and by doing so, she faced the risk that others might give access to the

phone to additional people, including the police, or that her permission to use the

phone gave others “assent” to access the phone. See Mestas v. State, No. 07-12-00547-

CR, 2014 WL 3868067, at *2 (Tex. App.—Amarillo Aug. 5, 2014, pet. ref’d) (mem.

op., not designated for publication) (“A third party may consent to a search to the

detriment of another’s privacy interest if the third party has actual authority over the

place or thing to be searched[] or if the third party shares common authority over the

premises or property with the non[]consenting person’s interest.”) (citing Hubert v.

State, 312 S.W.3d 554, 560–61 (Tex. Crim. App. 2010)); Thomas v. State, Nos. 14-16-

00665-CR, 14-16-00666-CR, 2017 WL 4400116, at *5 (Tex. App.—Houston [14th

Dist.] Oct. 3, 2017, pet. ref’d) (discussing when unauthorized access to data contained

on a cell phone violates section 33.02 of the penal code that would warrant a violation

of the law sufficient to prompt exclusion under article 38.23). Presumably, to use the

cell phone, other members of the household knew the phone’s password. Snow

should not be able to complain that others accessed her cell phone when she

permitted that access.

         Second, the trial court could have relied on the Texas Court of Criminal

Appeals’s opinion in Jenschke v. State for its holding that the exclusionary rule of article

                                            37
38.23 is not violated when one person takes another’s property without the other’s

consent but does so with the intent to deliver the property to law enforcement. 147

S.W.3d 398, 402 (Tex. Crim. App. 2004); see Kane v. State, 458 S.W.3d 180, 186 (Tex.

App.—San Antonio 2015, pet. ref’d) (holding that when person takes possession of

property with the intent to turn it over to law enforcement, the conduct is not

criminal and does not warrant exclusion under article 38.23); Carlson v. State, 355

S.W.3d 78, 80–81 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (same).

         Here, the household member who accessed the cell phone gave it to

Complainant’s grandmother. Complainant’s grandmother held the cell phone because

she did not want it “messed with” and delivered it to the police the next day. This

evidence, in combination with the cited authority, gave the trial court ample latitude to

exercise its discretion to overrule any attempt to exclude the cell phone under article

38.32.

         Thus, even if Snow had preserved her complaint that her cell phone was

“stolen,” she would not have prevailed in her contention that the trial court should

have suppressed the admission of evidence obtained from the cell phone.

         We overrule Snow’s eighth issue.




                                            38
X. Conclusion

      We have carefully considered the eight issues that Snow raises on appeal and

have overruled each of them. We affirm the judgment of the trial court.


                                                    /s/ Dabney Bassel

                                                    Dabney Bassel
                                                    Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: January 17, 2019




                                         39
