      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-17-00276-CR



                                  Donald Ray King, Appellant

                                                 v.

                                  The State of Texas, Appellee


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT
     NO. 15-1737-K26, HONORABLE DONNA GAYLE KING, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Following the denial of his motion to suppress evidence, appellant Donald Ray King

pleaded guilty to the offense of possession of a controlled substance, methamphetamine, with intent

to deliver. See Tex. Health & Safety Code § 481.112(e). The district court sentenced King to

55 years’ imprisonment. In five issues on appeal, King asserts that the district court abused its

discretion in denying his motion to suppress and contends that the judgment of conviction should

be modified to correct an erroneous description of the crime for which he was convicted. We will

modify the judgment of conviction to correct its erroneous description of the offense and affirm the

judgment as modified.
                                         BACKGROUND

                According to the evidence presented at the hearing on the motion to suppress,1 on the

night of July 25, 2015, Officer Alex Wakim of the Cedar Park Police Department initiated a traffic

stop on a vehicle occupied by Pamela Flowers, the driver, and King, the sole passenger. Following

the stop, Officer Wakim “requested and was granted written consent to search the vehicle from

Flowers.” During that search, Wakim and another officer, Erik Detlefsen of the Cedar Park Police

Department, found approximately 234 grams of methamphetamine inside the vehicle. The affidavit

reflects that the methamphetamine was found in three plastic bags contained within a “Caselogic”

satchel that was located in a “storage compartment under the back driver’s seat.” At some point

“during his investigation,” Wakim also seized an “LG Smartphone” that was “found to be in the

possession of [King] and [Flowers] and was believed to be used by King and Flowers.” Wakim then

gave the phone to Sergeant William Mauer, also of the Cedar Park Police Department, who had

assisted the officers with the investigation. The seizure and subsequent search of the LG cell phone

is the focus of this appeal.2

                The record further reflects that after the phone was seized, it was placed in storage

at the Cedar Park Police Department, where it remained until December 2015, when the contents of

the phone were searched pursuant to a warrant. In January 2017, King filed a motion to suppress the

evidence obtained from that search, contending, among other grounds, that neither the seizure nor

        1
         Specifically, the district court admitted into evidence a March 2017 search warrant and
supporting affidavit that authorized the search of a cell phone that belonged to King.
        2
        A second cell phone, belonging to Flowers, was also seized during the search by Corporal
Melissa Fautheree, also of the Cedar Park Police Department. The legality of the seizure of
Flowers’s phone was not an issue at the suppression hearing.

                                                  2
the search of the phone were supported by probable cause. A second search warrant was issued in

March 2017, and the phone was searched again. King then filed a second motion to suppress,

focused on the legality of the second search.3

               During the suppression hearing, King made several arguments for suppressing the

evidence obtained from the search of the phone, including that (1) the initial warrantless seizure of

the phone was not supported by probable cause; (2) the delay between the seizure of the phone in

July 2015 and the issuance of the second search warrant in March 2017 was unreasonable; (3) the

search-warrant affidavit did not establish probable cause to believe that the phone would contain

evidence of a drug crime; and (4) the affidavit contained deliberate misstatements such that the court

should hold a Franks hearing to determine the truth or falsity of the representations made in the

affidavit. See Franks v. Delaware, 438 U.S. 154, 155–56 (1978) (holding that “where the defendant

makes a substantial preliminary showing that a false statement . . . was included by the affiant in the

warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause,

the Fourth Amendment requires that a hearing be held at the defendant’s request”). The district court

denied King’s request for a Franks hearing and concluded that there was “probable cause [] within

the four corners of the affidavit to [] conduct the search of the phone requested to be searched.”

Following further argument from the parties, the district court also concluded, “after [its] review of

. . . the March search warrant and the supporting affidavit,” that there was “probable cause to believe

that the phone was an instrument of a crime” so as to justify its warrantless seizure.


       3
          At the suppression hearing, the State indicated that it was relying solely on the second
warrant to support the legality of the search. The State explained, “We’re going to be proceeding
on the second search warrant without any regard to what happened in the first search warrant . . . .”

                                                  3
                After also hearing evidence as to the legality of the initial traffic stop (an issue that

King has not raised on appeal), the district court denied King’s motion to suppress. King

subsequently pleaded guilty to the offense of possession of methamphetamine with intent to deliver

and was sentenced to 55 years’ imprisonment as noted above. This appeal followed.


                                    STANDARD OF REVIEW

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

State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014) (citing State v. Dixon, 206 S.W.3d 587,

590 (Tex. Crim. App. 2006)). “The record will be viewed in the light most favorable to the trial

court’s determination, and the judgment will be reversed only if it is arbitrary, unreasonable, or

‘outside the zone of reasonable disagreement.’” Id. (citing Dixon, 206 S.W.3d at 590; Montgomery

v. State, 810 S.W.2d 372, 391–92 (Tex. Crim. App. 1991) (on reh’g)). Moreover, a trial court’s

ruling on the motion will be upheld if it is correct under any theory of law applicable to the case,

regardless of whether the trial court based its ruling on that theory. Id.

                Additionally, “[w]e review a motion to suppress evidence under a bifurcated

standard.” State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App. 2013) (citing Guzman v. State,

955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). “Under the appellate standard of review on Fourth

Amendment claims, an appellate court is to afford almost total deference to the trial court’s

determination of historical facts, and of application-of-law-to-fact issues that turn on credibility and

demeanor, while reviewing de novo other application-of-law-to-fact issues.” State v. Ford,

537 S.W.3d 19, 23 (Tex. Crim. App. 2017) (citing Guzman, 955 S.W.2d at 89). In other words, the

prevailing party in the trial court “gains the benefit of deference on factual findings made in [its]

                                                   4
favor.” Id. “However, whether the facts, as determined by the trial court, add up to reasonable

suspicion or probable cause is a question to be reviewed de novo.” Id.


                                             ANALYSIS

Probable cause to seize and search the cell phone

                We address King’s first and third issues together, as they both concern the district

court’s probable-cause determinations. In his first issue, King asserts that the officers lacked

probable cause to seize his phone without a warrant. In his third issue, King contends that the

second search-warrant affidavit did not establish probable cause to believe that the phone would

contain evidence of a drug crime so as to authorize the search of the phone.

                We begin with the warrantless seizure of the phone. The Fourth Amendment

provides in relevant part that “[t]he right of the people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause.” U.S. Const. amend. IV. The “central requirement” of the Fourth

Amendment is “reasonableness.” Illinois v. McArthur, 531 U.S. 326, 330 (2001) (citing Texas

v. Brown, 460 U.S. 730, 739 (1983)). “In the ordinary case, the [United States Supreme] Court has

viewed a seizure of personal property as per se unreasonable within the meaning of the Fourth

Amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause and

particularly describing the items to be seized.” United States v. Place, 462 U.S. 696, 701 (1983).

However, “there are exceptions to the warrant requirement.” McArthur, 531 U.S. at 330. “When

faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions,




                                                   5
or the like, the Court has found that certain general, or individual, circumstances may render a

warrantless search or seizure reasonable.” Id.

               “To suppress evidence on an alleged Fourth Amendment violation, the defendant

bears the initial burden of producing evidence that rebuts the presumption of proper police conduct.”

Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). “A defendant satisfies this burden by

establishing that a search or seizure occurred without a warrant.” Id. (citing Bishop v. State,

85 S.W.3d 819, 822 (Tex. Crim. App. 2002)). “The burden then shifts to the State to prove the

reasonableness of the seizure.” State v. Robinson, 334 S.W.3d 776, 779 (Tex. Crim. App. 2011).

“[T]he warrant requirement is not lightly set aside, and the State shoulders the burden to prove that

an exception to the warrant requirement applies.” Gutierrez v. State, 221 S.W.3d 680, 685 (Tex.

Crim. App. 2007); see also United States v. Robinson, 414 U.S. 218, 243 (1973) (“Exceptions to the

warrant requirement are not talismans precluding further judicial inquiry whenever they are invoked,

but rather are ‘jealously and carefully drawn.’” (internal citations omitted)). “To meet its burden,

the State may present the specific facts known to the officer at the moment the seizure occurred.”

State v. Woodard, 341 S.W.3d 404, 411–12 (Tex. Crim. App. 2011).

               The State stipulated in the court below that the phone was seized without a warrant.

Thus, the State “shouldered the burden” at the suppression hearing to prove that the warrantless

seizure fell within an exception to the warrant requirement. In this case, the exception on which the

State relies is the “plain view” doctrine. “Under that doctrine, if police are lawfully in a position

from which they view an object, if its incriminating character is immediately apparent, and if the




                                                 6
officers have a lawful right of access to the object, they may seize it without a warrant.”4 Minnesota

v. Dickerson, 508 U.S. 366, 375 (1993); see State v. Rodriguez, 521 S.W.3d 1, 18 (Tex. Crim. App.

2017); State v. Dobbs, 323 S.W.3d 184, 187 (Tex. Crim. App. 2010). “If, however, the police lack

probable cause to believe that an object in plain view is contraband without conducting some further

search of the object—i.e., if ‘its incriminating character [is not] “immediately apparent,”’—the

plain-view doctrine cannot justify its seizure.” Dickerson, 508 U.S. at 375 (internal citations

omitted). The United States Supreme Court has emphasized that for the plain-view doctrine to

apply, “probable cause is required.” Arizona v. Hicks, 480 U.S. 321, 326 (1987). Any lesser

requirement “would be to cut the ‘plain view’ doctrine loose from its theoretical and practical

moorings,” including “the desirability of sparing police, whose viewing of the object in the course

of a lawful search is as legitimate as it would have been in a public place, the inconvenience and the

risk—to themselves or to preservation of the evidence—of going to obtain a warrant.” Id. at 326–27.

In other words, under the plain-view doctrine, “seizures of effects that are not authorized by a

warrant are reasonable only because there is probable cause to associate the property with criminal

activity.” Soldal v. Cook Cty., 506 U.S. 56, 69 (1992).

               Probable cause for a warrantless seizure “requires that the facts available to the officer

would ‘warrant a man of reasonable caution in the belief’ that certain items may be contraband or

stolen property or useful as evidence of a crime; it does not demand any showing that such a belief




       4
          We note that it is undisputed that, as a result of Flowers’s consent to the search of the
vehicle, the officers were in a lawful position from which to view the cell phone and had a lawful
right of access to it. The parties join issue only as to whether the “incriminating character” of the
cell phone was “immediately apparent” to the officers.

                                                   7
be correct or more likely true than false.” Brown, 460 U.S. at 742 (internal citation omitted).

“When determining probable cause, an appellate court considers the totality of the circumstances”

and “must view the evidence in the light most favorable to the trial court’s ruling.” Wiede v. State,

214 S.W.3d 17, 25 (Tex. Crim. App. 2007). Moreover, “the training, knowledge, and experience

of law enforcement officials is taken into consideration.” Id. Reviewing courts allow officers “to

draw on their own experience and specialized training to make inferences from and deductions about

the cumulative information available to them that ‘might well elude an untrained person.’” United

States v. Arvizu, 534 U.S. 266, 273 (2002) (citing Ornelas v. United States, 517 U.S. 690, 699

(1996)). “Because probable cause ‘deals with probabilities and depends on the totality of the

circumstances,’ it is ‘a fluid concept’ that is ‘not readily, or even usefully, reduced to a neat set of

legal rules.’” District of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018) (internal citations omitted).

“It ‘requires only a probability or substantial chance of criminal activity, not an actual showing of

such activity.’” Id. (quoting Illinois v. Gates, 462 U.S. 213, 243–44 n.13 (1983)). “Probable cause

‘is not a high bar.’” Id. (quoting Kaley v. United States, 571 U.S. 320, 338 (2014)).

               Nevertheless, probable cause must exist “at the moment” the seizure is made,

Beck v. Ohio, 379 U.S. 89, 91 (1964); Woodard, 341 S.W.3d at 411–12; Amador v. State,

275 S.W.3d 872, 878 (Tex. Crim. App. 2009), and probable cause must be “based on facts and

circumstances within the officer’s personal knowledge or of which the officer has reasonably

trustworthy information,” Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005). Moreover,

“probable cause must be based on facts, not opinions” or “conclusory statements.” Torres,

182 S.W.3d at 902; Ford, 158 S.W.3d at 493. And “it is imperative that the facts be judged against



                                                   8
an objective standard: would the facts available to the officer at the moment of the seizure or the

search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?”

Terry v. Ohio, 392 U.S. 1, 21–22 (1968); see State v. Duran, 396 S.W.3d 563, 569 (Tex. Crim. App.

2013). When “[t]he record reveals an absence of any facts allowing an appellate court to determine

the circumstances upon which [the officer] could reasonably conclude” that the challenged action

was appropriate, “a court has no means in assessing whether [the officer’s] opinion was objectively

reasonable.” Ford, 158 S.W.3d at 493.

                We must also be mindful that in this case, the property subject to the warrantless

seizure was a cell phone, a device that the United States Supreme Court has described as “such a

pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude [it was]

an important feature of human anatomy.” Riley v. California, 134 S. Ct. 2473, 2484 (2014); see also

Carpenter v. United States, 138 S. Ct. 2206, 2214, 2220 (2018) (recognizing that cell phones contain

“vast store of sensitive information” and that “carrying one is indispensable to participation in

modern society”). And the Court of Criminal Appeals has observed that “a cell phone is unlike other

containers as it can receive, store, and transmit an almost unlimited amount of private information”

that “involve[s] the most intimate details of a person’s individual life, including text messages,

emails, banking, medical, or credit card information, pictures, and videos.” State v. Granville,

423 S.W.3d 399, 408 (Tex. Crim. App. 2014). Because such information may or may not be

“associated with criminal activity,” depending on the circumstances, the State must prove on a

case-by-case basis that the incriminating nature of the cell phone was immediately apparent to the

officers who seized it, based on the facts and circumstances known to the officers at the moment the



                                                   9
phone was seized. See, e.g., Cruse v. State, No. 01-13-00077-CR, 2014 Tex. App. LEXIS 7909, at

*8–9 (Tex. App.—Houston [1st Dist.] July 22, 2014, pet. ref’d) (mem. op., not designated for

publication) (incriminating nature of cell phones seized during sexual-assault investigation

immediately apparent when officer testified that, prior to seizing phones, he had interviewed

complainant and learned from her that cell phones had been used to record her assault); Quinonez

v. State, Nos. 05-11-00868-CR & 05-11-00925-CR, 2012 Tex. App. LEXIS 4770 at *7–8 (Tex.

App.—Dallas June 14, 2012, pet. ref’d) (op., not designated for publication) (incriminating nature

of cell phone seized during sexual-assault investigation immediately apparent when officer testified

that, prior to seizure, “ping” originating from complainant’s cell phone was traced to defendant’s

vehicle and phone “appeared to have been recently broken” when officer found phone inside

vehicle); see also United States v. Conlan, 786 F.3d 380, 388 (5th Cir. 2015) (incriminating nature

of laptops and cell phones found in hotel room during stalking investigation immediately apparent

when officer who had ordered seizure of items “was aware of [the defendant’s] harassing electronic

communications”); United States v. Key, 162 F. Supp. 3d 674, 679 (N.D. Ill. 2016) (incriminating

nature of cell phone found in motel room during prostitution investigation immediately apparent

when officer testified that “in his experience, individuals posting prostitution advertisements on [a

website] use their cellphone numbers as contact information” and that officer “commonly seized

cellphones in raiding hotel rooms related to these investigations”).

               The record in this case supports the district court’s finding that the State made the

necessary showing here. At the suppression hearing, the State offered into evidence the March 2017

search warrant and supporting affidavit that had been used to authorize the search of the phone. The



                                                 10
affidavit was prepared by William Mauer, who averred that he was “employed as a Narcotics

Detective Sergeant with the Cedar Park Police Department,” that his “full-time duties [were] to

investigate narcotic-related crimes [including] possession of, distribution of, and trafficking of

narcotics,” that he had “two years of narcotic unit supervisory, prior patrol officer and patrol

supervisory experience with numerous cases involving narcotics offenses,” and that he had “received

over 150 formal training hours in the investigation of narcotic-related offenses.” In this case, Mauer

recounted, he “was contacted by telephone and requested to assist officers with this narcotics

investigation” and had “arrived on scene while officers were completing the search of the vehicle.”

According to Mauer, the phone “was taken from the scene” of the traffic stop and “was found to be

in the possession of [King] and [Flowers] and was believed to be used by King and Flowers.” Mauer

further averred that he “was provided by Officer Wakim with [King’s phone] at the scene, which

Officer Wakim stated he located during his investigation.” This investigation, Mauer explained,

included a consensual search of Flowers’s vehicle, during which officers discovered a satchel that

“contained numerous small plastic baggies, a black digital scale, a small amount of mari[h]uana,

measuring spoons, rolling papers, and three (3) bags of a crystal-like substance” that field-tested

positive for methamphetamine. “The total weight of the crystal-like substance in the three baggies,”

Mauer added, “was approximately 234.3 grams.” Mauer also recounted that Wakim had told him

that he had found “a large sum of U.S. Currency on King’s person,” in the amount of $1,371.27.

Mauer explained that he “knows from numerous prior narcotics investigations that narcotic dealers

frequently keep baggies, measuring devices such as spoons, and digital scales about their person

in order to facilitate narcotics transactions” and that the presence of these items, combined with



                                                 11
“large sums of U.S. Currency about a person . . . suggest that [the currency] is proceeds of

narcotics trafficking.”

               Mauer further averred that he had “been involved in numerous cases where people

were arrested for possessing large amounts of controlled substances,” that “[t]ypically, those

individuals had cellular telephones on or about their persons when they were arrested,” and that these

individuals will “typically” have evidence of narcotics transactions contained in their cell phones.

According to Mauer, this evidence included: “listings of incoming and outgoing calls made from

and to persons who either sell drugs to or purchase drugs from the possessor of the cell phone”;

“listings of names and contact information of persons [who] they either buy drugs from or sell drugs

to”; “photographs of themselves and others in the possession of drugs and other contraband”;

“communication to arrange for the sale and purchase of controlled substances through applications”;

and “text messages from and to persons who either sell drugs to the possessor of the cell phone or

persons that this person sells drugs to.”

               The above evidence, when considered in its totality, supports an implied finding by

the district court that it would have been immediately apparent to Sergeant Mauer, based on his

training and experience, that a cell phone discovered contemporaneously with and in the same

vehicle as approximately 234 grams of methamphetamine and drug paraphernalia would be

“associated with criminal activity.” See, e.g., Brown, 460 U.S. at 742–43; Dobbs, 323 S.W.3d at

187–89; Wiede, 214 S.W.3d at 26–28; Gonzales v. State, 648 S.W.2d 684, 686–87 (Tex. Crim. App.

1983); Lopez v. State, 223 S.W.3d 408, 417 (Tex. App.—Amarillo 2006, no pet.); Nichols v. State,

886 S.W.2d 324, 326 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d); see also Key,



                                                 12
162 F. Supp. 3d at 679 (concluding that officer’s training and experience conducting prostitution

investigations provided him with probable cause to believe that cell phone found in motel room

would be associated with prostitution). However, King asserts that “Sergeant Mauer’s training and

experience has no bearing on whether the phone’s incriminating nature was immediately apparent

because Mauer did not seize the phone, nor was he part of the investigation when it was seized.”

But it would not have been outside the zone of reasonable disagreement for the district court to have

found otherwise, based on the “collective knowledge” doctrine. This doctrine provides that the

officer who initiates the seizure “need not be personally aware of every fact that objectively

supports” reasonable suspicion or probable cause. See Derichsweiler v. State, 348 S.W.3d 906, 914

(Tex. Crim. App. 2011) (citing Adams v. Williams, 407 U.S. 143, 147 (1972)). “Rather, ‘the

cumulative information known to the cooperating officers at the time of the [seizure] is to be

considered in determining whether reasonable suspicion [or probable cause] exists.’” See id. (citing

Hoag v. State, 728 S.W.2d 375, 380 (Tex. Crim. App. 1987)); see also Illinois v. Andreas,

463 U.S. 765, 771 n.5 (1983) (noting that “where law enforcement authorities are cooperating in an

investigation, the knowledge of one is presumed shared by all”); Woodward v. State,

668 S.W.2d 337, 344 (Tex. Crim. App. 1984) (op. on reh’g) (“[W]hen there has been some

cooperation between law enforcement agencies or between members of the same agency, the sum

of the information known to the cooperating agencies or officers at the time of an arrest or search

by any of the officers involved is to be considered in determining whether there was sufficient

probable cause therefor.”). The doctrine applies so long as there is “some degree of communication”

between the cooperating officers.      See Woodward, 668 S.W.2d at 344; Morgan v. State,



                                                 13
304 S.W.3d 861, 868 (Tex. App.—Amarillo 2010, no pet.); see also United States v. Zuniga,

860 F.3d 276, 283 (5th Cir. 2017) (“[T]he collective knowledge theory applies so long as there is

‘some degree of communication’ between the acting officer and the officer who has knowledge of

the necessary facts.” (internal citations omitted)).

                Here, Sergeant Mauer averred that he had been “contacted by telephone and requested

to assist officers with this narcotics investigation,” that he “arrived on scene while officers were

completing the search of the vehicle,” and that the cell phone had been given to him by Wakim, the

officer who had initiated the search of the vehicle and the seizure of the cell phone. This evidence,

when viewed in the light most favorable to the suppression ruling, supports implied findings by the

district court that Mauer and Wakim were cooperating during the narcotics investigation, that both

Mauer and Wakim had participated in the seizure of the cell phone, and that there was “some degree

of communication” between the officers so as to trigger the applicability of the “collective

knowledge” doctrine. See Derichsweiler, 348 S.W.3d at 917; Wiede, 214 S.W.3d at 26–28; Astran

v. State, 799 S.W.2d 761, 764 (Tex. Crim. App. 1990); Woodward, 668 S.W.2d at 346; Cook

v. State, 509 S.W.3d 591, 602–03 (Tex. App.—Fort Worth 2016, no pet.); Williams v. State,

440 S.W.3d 717, 720 (Tex. App.—Amarillo 2013, pet. ref’d); Porter v. State, 969 S.W.2d 60, 65

(Tex. App.—Austin 1998, pet. ref’d). Accordingly, we cannot conclude on this record that the

district court erred in determining that the officers had probable cause to seize the cell phone without

a warrant.

                We next consider whether the record supports the district court’s determination that

the subsequent search of the phone, pursuant to a warrant, was supported by probable cause. The



                                                  14
United States Supreme Court and the Texas Court of Criminal Appeals have held that in most cases,

police officers must obtain a warrant before searching a cell phone. See Riley, 134 S. Ct. at 2485;

Granville, 423 S.W.3d at 417. And no search warrant may issue without a sworn affidavit that sets

forth facts sufficient to establish probable cause. See U.S. Const. amend. IV; Tex. Const. art. I, § 9;

see also Tex. Code Crim. Proc. arts. 1.06, 18.01(b), (c), 18.0215(c)(5). “Ordinarily, the warrant

process involves the presentation to a neutral and detached magistrate of an affidavit that establishes

probable cause to conduct a search.” Jones v. State, 364 S.W.3d 854, 857 (Tex. Crim. App. 2012)

(citing Gibbs v. State, 819 S.W.2d 821, 830 (Tex. Crim. App. 1991)). “Probable cause exists when,

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

contraband or evidence of a crime will be found at the specified location.” Bonds v. State,

403 S.W.3d 867, 873 (Tex. Crim. App. 2013) (citing Flores v. State, 319 S.W.3d 697, 702 (Tex.

Crim. App. 2010); Rodriguez v. State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007)); State v. Duarte,

389 S.W.3d 349, 354 (Tex. Crim. App. 2012). As discussed above, probable cause is a “flexible and

non-demanding standard.” Bonds, 403 S.W.3d at 873; Rodriguez, 232 S.W.3d at 60. When

reviewing whether a search-warrant affidavit contains sufficient information to establish probable

cause, “the test is whether a reasonable reading by the magistrate would lead to the conclusion that

the affidavit provided a ‘substantial basis for the issuance of the warrant,’ thus, ‘the magistrate’s

sole concern should be probability.’” Rodriguez, 232 S.W.3d at 60 (quoting Johnson v. State,

803 S.W.2d 272, 288 (Tex. Crim. App. 1990)).

                “[W]hen the trial court is determining probable cause to support the issuance of a

search warrant, there are no credibility determinations, rather the trial court is constrained to the four



                                                   15
corners of the affidavit.” State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011) (citing

Hankins v. State, 132 S.W.3d 380, 388 (Tex. Crim. App. 2004)). Similarly, the reviewing court

“may look only to the four corners of the affidavit,” and we “should view the magistrate’s decision

to issue the warrant with great deference.” Jones, 364 S.W.3d at 857. “[W]e apply a highly

deferential standard because of the constitutional preference for searches to be conducted pursuant

to a warrant as opposed to a warrantless search.” McClain, 337 S.W.3d at 271 (citing Swearingen

v. State, 143 S.W.3d 808, 810–11 (Tex. Crim. App. 2004)). “As long as the magistrate had a

substantial basis for concluding that probable cause existed, we will uphold the magistrate’s probable

cause determination.” Id. (citing Illinois, 462 U.S. at 236).

                Moreover, “[w]e are instructed not to analyze the affidavit in a hyper-technical

manner.” Id. (citing Gates, 462 U.S. at 236). Instead, we “should interpret the affidavit in a

commonsensical and realistic manner, recognizing that the magistrate may draw reasonable

inferences.” Rodriguez, 232 S.W.3d at 61 (citing Gates, 462 U.S. at 240). In other words, “although

the magistrate’s determination of probable cause must be based on the facts contained within the four

corners of the affidavit, the magistrate may use logic and common sense to make inferences based

on those facts.” State v. Elrod, 538 S.W.3d 551, 556 (Tex. Crim. App. 2017). “When in doubt, we

defer to all reasonable inferences that the magistrate could have made.” Rodriguez, 232 S.W.3d at

61. “The inquiry for reviewing courts, including the trial court, is whether there are sufficient facts,

coupled with inferences from those facts, to establish a ‘fair probability’ that evidence of a particular

crime will likely be found at a given location.” Id. at 62. “The issue is not whether there are other

facts that could have, or even should have, been included in the affidavit; we focus on the combined



                                                   16
logical force of facts that are in the affidavit, not those that are omitted from the affidavit.” Id.

“Provided the magistrate had a substantial basis for concluding that probable cause existed, we will

uphold the magistrate’s probable-cause determination.” Bonds, 403 S.W.3d at 873. “Although the

reviewing court is not a ‘rubber stamp,’ ‘the magistrate’s decision should carry the day in doubtful

or marginal cases, even if the reviewing court might reach a different result upon de novo review.’”

Jones, 364 S.W.3d at 857 (quoting Flores, 319 S.W.3d at 702); see also Elrod, 538 S.W.3d at 556

(“A magistrate’s decision to issue a search warrant is subject to a deferential standard of review, even

in close cases.”).

                In this case, the affidavit in support of the search warrant contained the

following information:


        •   Officer Wakim had initiated a traffic stop on the vehicle occupied by Flowers
            and King.

        •   During the stop, Wakim “noted that King appeared very nervous, would not
            make eye contact with him, and that his hands trembled.”

        •   “When questioned by Officer Wakim about past drug use, Flowers and King both
            admitted past methamphetamine use to him.”

        •   Wakim “requested and was granted written consent to search the vehicle from
            Flowers.” During that search, officers discovered approximately 234 grams of
            methamphetamine, “a small amount of mari[h]uana,” and drug paraphernalia.

        •   Wakim informed Mauer that “several baggies” of methamphetamine had been
            located inside the vehicle, “as well as a large sum of U.S. Currency on King’s
            person,” in the amount of $1,371.27.

        •   “[D]uring his investigation,” Wakim had found a cell phone and gave it to
            Mauer. The cell phone had been “taken from the scene” of the traffic stop,
            “incident to the arrests of [King] and [Flowers] for the [offense of] Possession of
            Controlled Substance with Intent to Deliver.” “At the time of the investigation,

                                                  17
            the phone was found to be in the possession of [King] and [Flowers] and was
            believed to be used by King and Flowers.”

        •   Based on his “numerous prior narcotic investigations,” Mauer knew that
            “narcotic dealers frequently keep baggies, measuring devices such as spoons, and
            digital scales about their person in order to facilitate narcotics transactions” and
            that “large sums of U.S. Currency about a person, with the presence of [the above
            items], suggest that [the currency] is proceeds of narcotics trafficking.”

        •   Based on his involvement “in numerous cases where people were arrested for
            possessing large amounts of controlled substances,” Mauer knew that
            “[t]ypically, those individuals had cellular telephones on or about their persons
            when they are arrested” and that those phones “typically” contain evidence of
            narcotic-related offenses, including contact information of drug buyers and
            sellers, text messages and emails arranging narcotics transactions, and
            photographic evidence of narcotics possession.

        •   Based on his “experience of commonly finding [the above] evidence on the cell
            phones of persons arrested with large amounts of drugs,” Mauer believed that he
            would “find similar evidence on said seized [cell phone].”


King asserts that the above information “failed to establish a nexus between the phone and criminal

activity.” In King’s view, the affidavit “relied on generalizations about drug possessors but provided

no facts indicating that the phone was used in connection with criminal activity.”

                However, when interpreting the affidavit “in a commonsensical and realistic manner,”

as we must, see Rodriguez, 232 S.W.3d at 61, we conclude that the magistrate could have reasonably

inferred that there was at least a “fair probability” that the phone would contain evidence of narcotics

trafficking. According to Mauer, approximately 234 grams of methamphetamine, contained in three

plastic bags, was found in a satchel inside the vehicle. The magistrate could have reasonably

inferred that this was a large quantity of narcotics that had been packaged for sale. Additionally, the

methamphetamine was found in the same container as “numerous small plastic baggies, a black



                                                  18
digital scale, a small amount of mari[h]uana, measuring spoons, [and] rolling papers,” which would

support an inference that the occupants of the vehicle were involved in narcotics trafficking. Such

an inference would also be supported by other statements in the affidavit, including that King had

“appeared very nervous” during the traffic stop, had admitted to past methamphetamine use, and had

been found with a large amount of U.S. currency on his person, in an amount over thirteen hundred

dollars. Mauer further averred that in his experience investigating narcotics offenses, individuals

who are arrested for possessing large amounts of controlled substances “typically” have cell phones

“on or about their persons when they are arrested” and that these phones “typically” contain evidence

of drug crimes. Although the affidavit did not indicate where, specifically, the cell phone was found,

the magistrate could have reasonably inferred that it had been found in the vehicle during the search,

because Mauer averred that Wakim had found the phone “during his investigation,” that it had been

“taken from the scene” of the traffic stop, and that, “[a]t the time of the investigation, the phone was

found to be in the possession of [King] and [Flowers] and was believed to be used by King and

Flowers.” And the magistrate could have further inferred, based on Mauer’s experience with

cell-phone searches in similar narcotics cases, that there was at least a “fair probability” that the

phone found in the vehicle would contain evidence connecting the occupants of that vehicle to the

sale or purchase of the large quantity of methamphetamine and drug paraphernalia that was also

found in the vehicle.

                Again, “[t]he issue is not whether there are other facts that could have, or even should

have, been included in the affidavit.” Id. at 62. Instead, we are to “focus on the combined logical

force of facts that are in the affidavit.” Id. We conclude that the combined logical force of the facts



                                                  19
in the affidavit and all reasonable inferences therefrom, particularly the 234 grams of

methamphetamine that was found in the vehicle, supports the magistrate’s determination that there

was probable cause to believe that evidence of a narcotics crime would be found in the cell phone.

See id. at 62–63 (concluding that reasonable inferences supported probable-cause determination that

evidence of narcotics offense would be found at specified location and criticizing intermediate

appellate court’s “fail[ure] to defer to the reasonable inferences” and its impermissible “focus[] on

various facts that the affidavit did not contain, rather than the facts it did contain); Checo v. State,

402 S.W.3d 440, 449 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (concluding that magistrate

was “within his discretion” in relying on officer’s training and experience to make its probable-cause

determination and “[a]pplying a high degree of deference to magistrate’s determination”); Arrick

v. State, 107 S.W.3d 710, 717 (Tex. App.—Austin 2003, pet. ref’d) (relying on reasonable inferences

to conclude that there was probable cause to believe that murder victim’s blood “might be found”

in location specified in affidavit); see also Gates, 462 U.S. at 246 (explaining that “probable cause

does not demand the certainty we associate with formal trials”); Elrod, 538 S.W.3d at 560 (observing

that reasonable inferences can be “based upon ‘certain common-sense conclusions about human

behavior . . . [as] understood by those versed in the field of law enforcement” (quoting Gates,

462 U.S. at 231–32)). On this record, we cannot conclude that the district court erred in deferring

to the magistrate’s determination of probable cause.5 We overrule King’s first and third issues.


       5
           In arguing that the affidavit did not contain sufficient facts to support the magistrate’s
probable-cause determination, King cites to this Court’s opinion in State v. Elrod, 395 S.W.3d 869
(Tex. App.—Austin 2013, no pet.), a child-abuse case in which this Court concluded that the
search-warrant affidavit was insufficient to support the magistrate’s probable-cause determination.
See id. at 881–82. However, the affidavit in that case, among other deficiencies, contained “no

                                                  20
Delay between warrantless seizure of cell phone and its subsequent search

                The record reflects that King’s cell phone was seized in July 2015 but that the second

search warrant was not issued until March 2017. In his second issue, King asserts that this delay

made the seizure unreasonable under the Fourth Amendment,6 urging that the delay of approximately

twenty months was “per se unreasonable.”

                When law enforcement officers have probable cause to believe that property contains

contraband or other evidence of a crime, they are permitted to seize that property, pending issuance

of a search warrant. See Place, 462 U.S. at 701. However, “a seizure that is reasonable at its

inception . . . may become unreasonable as a result of its duration or for other reasons.” Segura

v. United States, 468 U.S. 796, 812 (1984). But there is no “per se rule of unreasonableness” and



information . . . about the detective’s training and experience, his general knowledge of child abuse
crimes, or his familiarity with injuries sustained in such crimes based on his training and
experience.” Id. In contrast, the affidavit here included information on Mauer’s training and
experience in investigating narcotics offenses, including cases “where people were arrested for
possessing large amounts of controlled substances.” Mauer averred that based on his experience “of
commonly finding [] evidence [of narcotics trafficking] on the cell phones of persons arrested with
large amounts of drugs,” he believed that he would find “similar evidence on said seized [cell
phone].” Thus, unlike in Elrod, the affidavit here provided the magistrate with sufficient
information to assess the reliability of the affiant’s beliefs as to the likelihood that evidence of the
crime would be found on the cell phone.
        6
          The State asserts that King failed to preserve this issue because he did not raise it in his
written motion to suppress. However, the record reflects that King argued during the suppression
hearing that the delay between the seizure and search was unreasonable and that the district court
considered that argument in its decision to deny the motion to suppress. Accordingly, this issue was
preserved for review. See Tex. R. App. P. 33.1(a); Thomas v. State, 505 S.W.3d 916, 924 (Tex.
Crim. App. 2016); see also Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)
(explaining that “all a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial
judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the
judge to understand him at a time when the trial court is in a proper position to do something
about it”).

                                                    21
“no bright line past which a delay becomes unreasonable.” See McArthur, 531 U.S. at 331; United

States v. Burgard, 675 F.3d 1029, 1033 (7th Cir. 2012). Instead, courts “must balance the nature and

quality of the intrusion on the individual’s Fourth Amendment interests against the importance of

the governmental interests alleged to justify the intrusion.” Place, 462 U.S. at 703; Hereford

v. State, 339 S.W.3d 111, 119 (Tex. Crim. App. 2011). Factors to consider in the reasonableness

inquiry include: “first, the significance of the interference with the person’s possessory interest;

second, the duration of the delay; third, whether or not the person consented to the seizure; and

fourth, the government’s legitimate interest in holding the property as evidence.” United States

v. Laist, 702 F.3d 608, 613–14 (11th Cir. 2012) (internal citations omitted). We must also “take into

account whether the police diligently pursue[d] their investigation.” Place, 462 U.S. at 709.

“Despite its fact-sensitive analysis, ‘reasonableness’ is ultimately a question of substantive Fourth

Amendment law.” Kothe v. State, 152 S.W.3d 54, 62 (Tex. Crim. App. 2004). Therefore, “[o]n

appeal, the question of whether a specific search or seizure is ‘reasonable’ under the Fourth

Amendment is subject to de novo review.” Id.

               In this case, the delay between the seizure of the phone in July 2015 and the issuance

of the second search warrant in March 2017 was approximately twenty months. The State presented

no evidence at the suppression hearing to explain that delay.7 Also, it is undisputed that King did


       7
          Instead, the State claimed that the delay was “a function of a lot of things that we don’t
know. We don’t know the capabilities of some of our agencies around here to actually go ahead and
conduct [the search]. We don’t know where we are within the investigation of this case.” But the
State insisted that, despite the delay, it had a “validly applied for, timely search warrant supported
by probable cause.” We also note that, although the State failed to explain the delay, there is nothing
in the record to suggest that law enforcement, acting “in bad faith, purposely delayed obtaining the
warrant.” See Segura v. United States, 468 U.S. 796, 812 (1984).

                                                  22
not consent to the seizure of his phone. These considerations weigh against a finding of

reasonableness. See Place, 462 U.S. at 709; United States v. Mitchell, 565 F.3d 1347, 1351–52 (11th

Cir. 2009). We note, however, that the first warrant was issued in December 2015, less than six

months after the seizure of the cell phone, and that King did not challenge the legality of that warrant

until January 2017. Under such circumstance, the record supports a finding that there would be no

reason for the State to obtain a new warrant prior to that time. Additionally, the State presented

evidence tending to show that the cell phone was found in the same vehicle as approximately

234 grams of methamphetamine, which provided law enforcement with probable cause to believe

that the cell phone contained evidence of narcotics trafficking. Moreover, the record reflects that

King was in jail for almost the entire time his phone was seized (with the exception of two months

when King had been released on bail and placed under house arrest), and King presented no evidence

at the suppression hearing tending to show that he had sought the return of the phone during that

time or that being deprived of the phone adversely affected him in any manner. See McArthur,

531 U.S. at 331 (no “per se rule of unreasonableness” in the context of seizures of property that are

supported by probable cause). These considerations weigh in favor of a finding that the delay was

reasonable. See id. at 331–32 (concluding that seizure was reasonable because, among other reasons,

police had probable cause to believe that property contained evidence of unlawful drugs); United

States v. Johns, 469 U.S. 478, 487 (1985) (observing that when defendants “never sought return of

the property,” this weighed against finding “that the delay in the search of [the seized property]

adversely affected legitimate interests protected by the Fourth Amendment”); Segura, 468 U.S. at

813 (concluding that when defendants “were under arrest and in the custody of the police throughout



                                                  23
the entire period” that property was seized, “[t]he actual interference with their possessory interests

in the [property] and its contents was, thus, virtually nonexistent”); Orosco v. State,

No. 03-15-00383-CR, 2017 Tex. App. LEXIS 6111, at *21–22 (Tex. App.—Austin June 29, 2017,

pet. ref’d) (mem. op., not designated for publication) (concluding that “the State’s interest in seizing

the phone was strong because the State had probable cause to believe that the phone contained

evidence” connecting defendant to charged offense); see also United States v. Sullivan, 797 F.3d

623, 633 (9th Cir. 2015) (“Where individuals are incarcerated and cannot make use of seized

property, their possessory interest in that property is reduced.”); Burgard, 675 F.3d at 1033 (“The

state has a stronger interest in seizures made on the basis of probable cause than in those resting only

on reasonable suspicion. All else being equal, the Fourth Amendment will tolerate greater delays

after probable-cause seizures.”); United States v. Clutter, 674 F.3d 980, 984–85 (8th Cir. 2012)

(concluding that seizure of defendant’s computers while he was in jail “did not meaningfully

interfere with his possessory interests”); United States v. Stabile, 633 F.3d 219, 235–36 (3d Cir.

2011) (concluding that defendant’s failure to ask for return of his hard drives until eighteen months

after initial seizure of property weighed against finding that delay was unreasonable). Cf. Burgard,

675 F.3d at 1034 (observing that “checking on the status of the seizure or looking for assurances that

the item would be returned” provides “some evidence” that seizure affected defendant’s possessory

interests).

                In summary, the record supports findings that the duration of the delay, the State’s

failure to explain that delay, and the absence of consent to the seizure weigh against a determination

that the delay was reasonable. However, the record also supports findings that the State had a



                                                  24
legitimate interest in retaining possession of the phone and that any interference with King’s

possessory interest in the phone was minimal.8 On this record, we cannot conclude that the district

court erred in determining that the balance of interests weighed in favor of the State and in failing

to find that the delay in obtaining a search warrant made the seizure unreasonable. See McArthur,

531 U.S. at 331–34. We overrule King’s second issue.


The independent-source doctrine and Franks v. Delaware

                In his fourth issue, King asserts that, “[b]ecause the State conceded that the first

search was unlawful,” the district court erred in failing to hold an evidentiary hearing to determine

if “the second [search] warrant was based on a source independent from the fruits of the first search.”

King further asserts that the district court also should have held a Franks hearing to determine if the

second search-warrant affidavit contained false or deceptive statements. Franks, 438 U.S. at 155–56.




        8
           In his reply brief, King claims that “prisoners retain a possessory interest in their personal
property,” citing to State v. Granville, 423 S.W.3d 399 (Tex. Crim. App. 2014). However, the sole
issue in Granville was “whether a person retains a legitimate expectation of privacy in the contents
of his cell phone when that phone is being temporarily stored in a jail property room.” Id. at 402
(emphasis added). The court held that “a citizen does not lose his reasonable expectation of privacy
in the contents of his cell phone merely because that cell phone is being stored in a jail property
room.” Id. at 417. Granville did not address the scope of a prisoner’s possessory interest in a seized
cell phone and is thus not applicable to the issue here. See Segura, 468 U.S. at 806 (“A seizure
affects only the person’s possessory interests; a search affects a person’s privacy interests.”);
Burgard, 675 F.3d at 1033 (“On the individual person’s side of this balance, the critical question
relates to any possessory interest in the seized object, not to privacy or liberty interests.”); see also
Orosco v. State, No. 03-15-00383-CR, 2017 Tex. App. LEXIS 6111, at *21 (Tex. App.—Austin
June 29, 2017, pet. ref’d) (mem. op., not designated for publication) (concluding that defendant’s
“privacy interests in the contents of his cell phone were not infringed” during delay in obtaining
search warrant “because no search was performed until after a search warrant was obtained”).

                                                   25
               Initially, we observe that, contrary to King’s assertion, at no point during the

suppression hearing did the State “concede” that the first search was unlawful. Instead, the State

indicated at the hearing that it would “proceed[] on the second search warrant without any regard to

what happened in the first search warrant” and that it “intend[ed] to offer evidence obtained as a

result of the search of the LG phone in question that was done pursuant to the second search

warrant.” These statements do not rise to the level of “conceding” the illegality of the first search.

Nevertheless, in its argument on appeal, the State “assume[s], without conceding, that law

enforcement’s initial search of the cell phone herein was illegal.” For purposes of our analysis, we

will similarly assume, without deciding, that the first search was unlawful.

               “[T]he federal exclusionary rule generally requires suppression of both primary

evidence obtained as a direct result of an illegal search or seizure, as well as derivative evidence

acquired as an indirect result of unlawful conduct.” Wehrenberg v. State, 416 S.W.3d 458, 464 (Tex.

Crim. App. 2013) (citing Segura, 468 U.S. at 804). However, there are several exceptions to this

rule, including the “independent source” doctrine. Id. “At its core, the independent source doctrine

provides that evidence derived from or obtained from a lawful source, separate and apart from any

illegal conduct by law enforcement, is not subject to exclusion.” Id. at 465 (citing Murray v. United

States, 487 U.S. 533, 537 (1988); Nix v. Williams, 467 U.S. 431, 443 (1984)). In other words,

“notwithstanding a prior instance of unlawful police conduct, evidence actually discovered and

obtained pursuant to a valid search warrant is not subject to suppression, so long as the police would

have sought the warrant regardless of any observations made during the illegal [conduct].” Id. at

465–66 (citing Segura, 468 U.S. at 799, 813–15). “Thus, in determining whether challenged



                                                 26
evidence is admissible under the independent source doctrine, the central question is ‘whether the

evidence at issue was obtained by independent legal means.’” Id. at 465 (quoting United States

v. May, 214 F.3d 900, 906 (7th Cir. 2000)).

               In this case, the record supports an implied finding by the district court that the second

search was independent from the first. At the hearing on the motion to suppress, both the first and

second search-warrant affidavits were admitted into evidence. Each affidavit was prepared by a

different officer with the Cedar Park Police Department. The first affidavit was prepared by

Detective Jason LeMond, who provided no information in the affidavit indicating that he had

participated in the search of the vehicle or the subsequent seizure of the cell phone. The second

affidavit, submitted to the magistrate over 14 months after the first, was prepared by Sergeant

William Mauer, who averred that he was “contacted by telephone and requested to assist officers

with this narcotics investigation,” that he “arrived on scene while officers were completing the

search of the vehicle,” and that the cell phone had been given to him at the scene by Officer Wakim,

the officer who had initiated the search of the vehicle. Mauer also averred that Wakim had told him

that “several baggies of what he believed to be methamphetamine had been located in the vehicle,

as well as a large sum of U.S. currency on King’s person.” This evidence supports findings by the

district court that Mauer was at the scene of the narcotics investigation and that he was made aware,

at that time, of the facts that provided the officers with probable cause to believe that the phone

would contain evidence of narcotics trafficking. The district court could have reasonably inferred

from this evidence that Mauer’s knowledge of the facts that gave rise to probable cause was

independent of any results from the first search of the phone that occurred months later.



                                                  27
                Moreover, as the State argued at the hearing, there was no reference in Mauer’s

affidavit to the first search of the phone or the results from that search. Instead, Mauer stated in the

affidavit that the basis for his belief that the cell phone would contain evidence of a drug crime was

his training and experience investigating narcotics offenses. The district court would not have

abused its discretion in crediting Mauer’s statements and in finding that this training and experience,

combined with Mauer’s participation in the narcotics investigation that led to the discovery of the

cell phone, provided an independent legal basis for the second search warrant. Thus, even assuming

that the first search was unlawful, we cannot conclude on this record that the district court erred in

determining that the results from the second search of the phone were admissible under the

independent-source doctrine. See Murray, 487 U.S. at 535–36, 541–42; Segura, 468 U.S. at 813–16;

see also United States v. Runyan, 290 F.3d 223, 235–37 (5th Cir. 2002).

                Finally, we address King’s claim that he was entitled to a Franks v. Delaware

hearing. 438 U.S. at 155–56. “Under Franks, a defendant who makes a substantial preliminary

showing that a false statement was made in a warrant affidavit knowingly and intentionally, or with

reckless disregard for the truth, may be entitled by the Fourth Amendment to a hearing, upon the

defendant’s request.” Harris v. State, 227 S.W.3d 83, 85 (Tex. Crim. App. 2007). “This hearing

is required only where the false statement is essential to the probable cause finding.” Id. “If at the

hearing the defendant establishes the allegation of perjury or reckless disregard by a preponderance

of the evidence, the affidavit’s false material is set aside.” Id. “If the remaining content of the

affidavit does not then still establish sufficient probable cause, the search warrant must be voided

and the evidence resulting from that search excluded.” Id.



                                                  28
               “[I]n order to be granted a Franks hearing, a defendant must: (1) [a]llege deliberate

falsehood or reckless disregard for the truth by the affiant, specifically pointing out the portion of

the affidavit claimed to be false; (2) accompany these allegations with an offer of proof stating the

supporting reasons; and (3) show that when the portion of the affidavit alleged to be false is excised

from the affidavit, the remaining content is insufficient to support issuance of the warrant.” Id.

(citing Cates v. State, 120 S.W.3d 352, 356 (Tex. Crim. App. 2003)). “Thus, specific allegations

and evidence must be apparent in the pleadings in order for a trial court to even entertain a Franks

proceeding.” Id. We review a trial court’s refusal to hold a Franks hearing for abuse of discretion.

See Cates, 120 S.W.3d at 354.

               In his motion to suppress, King asserted that the following statement in the affidavit

was either intentionally false or made with a reckless disregard for the truth: “At the time of the

investigation, the phone was found to be in the possession of [King] and [Flowers] and was believed

to be used by King and Flowers.” King claimed that a video recording of the vehicle search “and

other evidence” would show that King was not in possession of the cell phone. However, at the

suppression hearing, King made no offer of proof as to what the recording would show or what the

“other evidence” would demonstrate, other than making a vague assertion that the evidence would

enable the district court to determine “who actually possessed the cell phone, who actually owned

the cell phone, and where the cell phone was found.” Moreover, although King alluded to possible

testimony by Sergeant Mauer and Officer Wakim, he failed to provide the district court with any

details as to the nature of that testimony or any information to suggest that their testimony might

reveal that the challenged statement was either intentionally false or made with a reckless disregard



                                                 29
for the truth. On this record, we cannot conclude that the district court abused its discretion in

refusing King’s request to hold a Franks hearing. See Franks, 438 U.S. at 171 (“To mandate an

evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported by

more than a mere desire to cross-examine.”). We overrule King’s fourth issue.


Modification of judgment

               In his fifth issue, King contends that the judgment of conviction should be modified

to correct an erroneous description of the crime for which he was convicted. The record reflects that

King was charged with and convicted of the offense of possession of a controlled substance with

intent to deliver. However, the judgment of conviction indicates that King was convicted of the

offense of manufacture of a controlled substance with intent to deliver. The State concedes that this

description of the offense is erroneous, and we agree that it is. This Court has the authority to

modify incorrect judgments when the necessary information is available to do so. See Tex. R. App.

P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Asberry v. State,

813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d). We sustain King’s fifth issue.


                                         CONCLUSION

               We modify the judgment of conviction to reflect that King was convicted of the

offense of possession of a controlled substance with intent to deliver. As modified, we affirm the

judgment of the district court.




                                                 30
                                                  ____________________________________
                                                  Melissa Goodwin, Justice
Before Chief Justice Rose, Justices Goodwin and Field

Modified and, as Modified, Affirmed

Filed: November 2, 2018

Do Not Publish




                                             31
