Affirmed and Memorandum Opinion filed October 17, 2017.




                                        In The

                      Fourteenth Court of Appeals

                                NO. 14-16-00355-CR

                          RONALD THOMAS, Appellant
                                          V.
                        THE STATE OF TEXAS, Appellee

                     On Appeal from the 339th District Court
                             Harris County, Texas
                         Trial Court Cause No. 1418275


                   MEMORANDUM OPINION

      Appellant Ronald Thomas appeals his conviction for the first degree offense of
aggravated robbery. A jury convicted appellant and assessed his punishment at life in
prison. Appellant raises two issues on appeal, both of which challenge the validity of
searches of his cellular phone. Because appellant did not preserve his first issue for
review and his second issue is incorrect, we affirm.
                                     Background

      On February 17, 2014, two men robbed a Game Stop location in the Houston
area. The robbers wore bandanas across their faces and had jacket hoods pulled down
to further obscure their features. Officers from the Houston Police Department (HPD)
arrived during the robbery, and the two men fled on foot. Officer Vu found appellant
at an apartment complex near the Game Stop immediately after the robbery. Vu became
suspicious of appellant because he looked nervous and out of breath. Appellant began
walking faster when he saw Vu and then disappeared from Vu’s sight as he rounded a
corner. Vu followed appellant around the corner and began looking for him in the area,
finding him crouching down behind a trailer. Vu returned appellant to the scene of the
robbery, where Game Stop employees positively identified appellant as one of the
robbers based in part on the distinctive blue jeans he was wearing. Vu left the scene
after HPD finished its investigation but was subsequently recalled several hours later
when Game Stop employees noticed a suspicious vehicle parked outside the store.

      Vu returned to the location to find an unoccupied car idling in the parking lot.
He noticed a large puddle of water underneath the car and surmised that the car had
been running for some time. The car was unlocked, and Vu testified that he entered it
in an attempt to find out who owned it. He found a wallet and two cellular phones
inside, one of which was an iPhone. Vu pressed the central button on the iPhone to
activate it, and the background photograph showed appellant, whom Vu had arrested
earlier. Vu did not search the phone further but collected both phones and the wallet as
evidence. Later, a search warrant was issued to allow forensic analysis of the phones.
Text messages between appellant and co-defendant Jonathan Galloway were recovered
along with other evidence.

      During trial, Vu testified without objection to finding appellant’s cell phone,
pressing a button on it, and seeing an image of appellant on the phone. When the State

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subsequently sought to introduce evidence obtained from the forensic search of
appellant’s phone, appellant urged the court to rule on his motion to suppress the
evidence obtained. The trial court then recessed the jury and held a hearing on the
motion. At the conclusion of the hearing, the trial court denied the motion to suppress;
trial then continued and the evidence from the phone was admitted.

      In his first issue, appellant challenges Vu’s warrantless search of appellant’s cell
phone. In his second issue, appellant contends the trial court erred in denying his
motion to suppress.

                                  Warrantless Search

      In his first issue, appellant contends that the trial court erred when it allowed Vu
to testify regarding appellant’s iPhone because simply turning the cellular phone on
constituted an unreasonable warrantless search. However, appellant has failed to
preserve this issue for appeal.

      To preserve alleged error for appellate review, Texas Rule of Appellate
Procedure 33.1(a) requires that a party make a timely objection, request, or motion that
states the specific grounds for the requested ruling if the grounds are not apparent from
the context. Tex. R. App. P. 33.1(a). Further, the trial court must have ruled or refused
to rule on the objection, request, or motion in order to preserve the complaint. Id.

      Appellant filed several pretrial motions to suppress. In the motion referenced
above, appellant requested the suppression of any photos found on appellant’s cell
phone, although appellant did not refer to Vu’s warrantless search. Nevertheless, we
will liberally construe the motion to suppress as challenging Vu’s search. As a general
rule, a sufficiently specific motion to suppress will preserve error in the admission of
evidence if the motion is overruled by the court following a pretrial hearing. Trung The
Luu v. State, 440 S.W.3d 123, 127 (Tex. App.—Houston [14th Dist.] 2013, no pet.).


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But when, as here, the trial court does not hold a pretrial hearing on the motion, the
defendant must make a timely objection to the evidence when it is offered at trial in
order to preserve error. See Tex. R. App. P. 33.1(a); Luu, 440 S.W.3d at 123. Even
constitutional errors may be waived by failure to object at trial. Luu, 440 S.W.3d at
123.

       At trial, Vu testified as to the initial search of the car and his examination of
appellant’s phone. During this testimony, the prosecutor and Vu engaged in the
following exchange:

       Q: Were the cellular phones on?
       A: Yes.
       Q: Were you able to—when you have a cellular phone, are you able to
       press a button to get information?
       A: Yes ma’am.
       Q: What kind of cellular phones were they?
       A: One cellular phone was an iPhone, and the other one was a Samsung.
       Q: Now, for the iPhone, were you—how—do you have an iPhone?
       A: Used to, yes.
       Q: How does an iPhone work? Like how, when you have an iPhone, how
       do you turn it on?
       A: You can press the center [button] on the bottom.
       Q: And then what happens when you pressed the center button on the
       bottom?
       A: There was a picture of the defendant in the background.
       Q: So in this case, you pressed the center button?
       A: Yes.
       Q: And whose picture?
       A: The defendant.
       Q: How do you know it was the defendant?
       A: His picture was on the background of the iPhone.
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         Q: What about the other phone?
         A: Other phone, I don’t remember on the other phone.
         Q: Now, did you recognize the person on the phone as the person you had
         just apprehended in the apartment complex?
         A: Yes, ma’am.
         Appellant did not object to this testimony prior to its admission.1 Appellant did
not refer to Vu’s actions in the subsequent suppression hearing. Appellant did not
obtain a ruling on his motion to suppress until several days after the jury had heard this
testimony. Accordingly, appellant did not preserve his first issue for review, and we
overrule that issue.

                                         Probable Cause

         In his second issue, appellant contends that the trial court erred when it admitted
evidence from a forensic search of appellant’s phone because the underlying
evidentiary search warrant was not supported by probable cause as required by the
Fourth Amendment of the United States Constitution and Chapter 18 of the Texas Code
of Criminal Procedure. See U.S. Const. amend. IV; Tex. Code Crim. Proc. arts. 18.01-
18.24.

         An officer must present a sworn affidavit to a magistrate in order to be issued a
search warrant for items constituting evidence of an offense or tending to show a
particular person committed an offense. Tex. Code Crim. Proc. art. 18.01(b). The
affidavit should set forth sufficient facts to establish probable cause that (1) a specific
offense has been committed, (2) the specifically-described property or items to be
searched for or seized constitute evidence of that offense or evidence that a particular

         1
          Appellant, however, did raise a hearsay objection to the prosecutor’s question that
immediately preceded the excerpted exchange. The trial court instructed the prosecutor to rephrase,
and the prosecutor did so. This earlier hearsay objection did not preserve any argument relating to the
legality of the warrantless search.

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person committed that offense, and (3) the property or items constituting such evidence
are located at the place to be searched. Id. arts. 18.01(c), 18.02(a)(10). 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). It is a flexible
and nondemanding standard. Id. Our review of the magistrate’s decision to issue a
search warrant is limited to the four corners of the affidavit. Id. We review that decision
under a highly deferential standard of review, pursuant to the constitutional preference
for warrant-based searches. Id. We will uphold the magistrate’s probable-cause
determination so long as the supporting affidavit reveals a substantial basis for
concluding that probable cause existed. Id. The magistrate should interpret the affidavit
in a non-technical, common-sense manner and may draw reasonable inferences solely
from the facts and circumstances contained within the affidavit’s four corners. Id. In
turn, we should not invalidate a warrant by interpreting the affidavit in a hyper-
technical manner; when in doubt, we defer to all reasonable inferences that the
magistrate could have made. Id.

      In his affidavit in support of the search warrant, Officer Mora stated that he had
reviewed the relevant offense report prepared by officers Vu and Yusuf. These officers
responded to a reported armed robbery at a Game Stop location on February 17, 2014.
Yusuf stated that two black males wearing bandanas over their faces fled from the back
of the store when officers arrived. According to Game Stop employees, the two men
had entered the store with guns, demanded money, and then took money from the cash
register. Officers pursued the men, and Yusuf described several clothing items and a
gun being found along the route taken by the suspects. The clothing matched items
reportedly worn by the robbers, including two black and white bandanas. Vu tracked
one of the suspects, later identified as appellant. When found, appellant was wearing


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the same clothing that he was wearing when he committed the robbery. Officers were
unable to locate the other suspect at that time.

      Vu further reported observing a “suspicious” vehicle parked near the Game Stop
that appeared to have been left running with the doors unlocked for an extended period
of time due to the collection of fluids underneath the vehicle. Inside the vehicle, Vu
found two cell phones, including appellant’s iPhone, which Mora described by color
and serial number. Vu also discovered a wallet in the vehicle containing a credit card
and a probation identification card belonging to co-defendant Galloway. While waiting
for a wrecker to tow the vehicle, Vu was approached by an individual who claimed that
the vehicle was his and Galloway had borrowed it. The individual was upset that his
vehicle had been used in a robbery and granted Vu permission to search the vehicle.
The individual further told Vu that he had received a phone call from Galloway shortly
after the robbery in which Galloway told him “me and Jay hit a place and they caught
Jay.” Galloway further told the individual that the vehicle had been left at the Game
Stop. Mora subsequently showed the individual a photographic lineup, and the
individual identified a photograph of Galloway as the person who had told him on the
phone that he “hit a lick” and “they caught Jay.” Mora explained that “hit a lick” is
street slang for committing a robbery.

      Mora further averred, based on his training and experience, that robbery suspects
communicate through cell phones: texting, calling, and sending images in preparation
for committing the offense. Mora also stated that cell phones contain identifying
information such as photographs, messages, emails, and contact lists, and that a search
of the identified cell phones likely would provide evidence of the aggravated robbery
or evidence tending to show the identity of the robbers. In the resulting search warrant,
the magistrate authorized a forensic examination of appellant’s cell phone for
information constituting evidence of an offense or tending to show that a particular

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person committed an offense, including photographs, text or multimedia messages, call
logs, and contact information.

      Appellant asserts that Mora offered an insufficient explanation as to why the cell
phones would contain evidence relating to this particular armed robbery. He describes
the statements by the owner of the vehicle as providing “at best, a tenuous connection”
between the cell phones and Galloway. He further argues that Mora’s generalizations
regarding the possible uses of cell phones to facilitate crime do not create probable
cause regarding these particular phones in this case. He also emphasizes that this is not
a case where an officer’s specialized knowledge would be of benefit, such as in cases
where officers have explained that pedophiles store child pornography on their personal
computers, citing Checo v. State, 402 S.W.3d 440, 449 (Tex. App.—Houston [14th
Dist] 2013, no pet.).

      Despite appellant’s arguments, however, this is not a close case. In his affidavit,
Mora directly tied the vehicle in which the cell phones were found to the armed
robbery. The vehicle was found at the scene after the robbery and apparently had been
running and left unlocked for a prolonged period of time. The owner of the vehicle
reported that he had loaned the vehicle to Galloway, who subsequently admitted to the
owner that he had used the vehicle to “hit a lick,” which is street slang for robbery.
Galloway also told the owner that his cohort in the robbery had been caught, which is
exactly what happened to appellant. Identification belonging to Galloway was also
discovered in the vehicle. Additionally, Mora explained that based on his training and
experience, robbery suspects often communicate through cell phones in preparation for
committing the offense. We agree with appellant that there was no need for “specialized
knowledge” in this case. The magistrate reasonably could have inferred from common
sense and the facts recounted in Mora’s affidavit that there was a fair probability or
substantial chance that cell phones found in the apparent getaway car would contain

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evidence pertaining to the robbery or who committed the robbery. See Bonds, 403
S.W.3d at 873 (explaining that a magistrate should interpret an affidavit in a common-
sense manner, drawing reasonable inferences from the circumstances presented).

         Under the high level of deference we afford the issuing magistrate’s
determinations and based on the totality of the circumstances as presented in Mora’s
affidavit, we conclude that the magistrate had a substantial basis for determining that
probable cause existed for the search of appellant’s phone. See id. The trial court did
not err in denying appellant’s motion to suppress. We overrule appellant’s second
issue.

         We affirm the trial court’s judgment.




                                         /s/       Martha Hill Jamison
                                                   Justice



Panel consists of Chief Justice Frost and Justices Jamison and Busby.
Do Not Publish — Tex. R. App. P. 47.2(b).




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