Affirmed and Opinion filed August 4, 2016.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-15-00685-CR

                   JAMON DERRELL WALKER, Appellant
                                          V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 351st District Court
                            Harris County, Texas
                        Trial Court Cause No. 1395164

                                  OPINION
      Appellant Jamon Derrell Walker challenges his conviction for capital
murder, arguing in a single issue that the trial court should have granted his motion
to suppress evidence found on appellant’s cell phone pursuant to a search warrant
because the warrant’s supporting affidavit did not establish probable cause.
Concluding the affidavit was sufficient to support a finding of probable cause and
that the trial court did not err in denying appellant’s motion to suppress, we affirm.
                                   BACKGROUND

      At about 2:00 a.m. on July 18, 2013, officers from the Houston Police
Department responded to a 911 call and found the complainant, Gerald Williams,
shot to death in a church parking lot. A witness who lived next door to the church
told police that after he had heard a gunshot, he looked out from his porch and saw
someone put what looked like a rifle into the backseat of a dark-colored car and
drive away.     Police determined the car seen leaving the scene was the
complainant’s car, and the complainant’s cell phone was missing from his cell
phone belt clip. When police located the complainant’s car the next day and
initiated a traffic stop, appellant was driving the car and had the complainant’s cell
phone in his hand. Police also found a cell phone belonging to appellant in the car.

      Police took appellant to the station for questioning. In a recorded statement,
appellant admitted to being involved in the shooting. Officer Jesus Sosa obtained a
search warrant to examine the contents of appellant’s cell phone.                 The
complainant’s cell phone number was saved as a contact in appellant’s phone. The
complainant and appellant had exchanged multiple calls and text messages during
the time period leading up to the shooting. Texts between appellant and the
complainant on the night of the shooting indicated that the two men were planning
to meet and that appellant was bringing a gun. Appellant’s text message to the
complainant read, “I got the heat nd everything lets doit nd move on homie! [sic]”
Appellant’s text messages to others indicated that appellant not only had a shotgun
but also that he intended to obtain a car and expected to get money the night of the
shooting.   Police also recovered a shotgun from appellant’s residence.          The
recovered weapon was consistent with the shotgun shell found at the scene where
the complainant’s dead body was discovered.



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      Charged with capital murder, appellant pleaded “not guilty.” At a bench
trial, appellant moved to suppress the evidence from his cell phone on the grounds
that the search warrant’s supporting affidavit failed to establish probable cause.
The trial court denied appellant’s motion, finding that the affidavit provided a
substantial basis for probable cause. The trial court admitted the text and call
information from appellant’s cell phone into evidence.

      The trial court found appellant guilty as charged and sentenced him to life
confinement without parole. Appellant now appeals his conviction, challenging
the trial court’s ruling on the motion to suppress.

                               STANDARD OF REVIEW

      While we typically review a trial judge’s motion-to-suppress ruling under a
bifurcated standard, a trial court’s determination whether probable cause exists to
support a search warrant’s issuance is restricted solely to the affidavit’s four
corners. Bonds v. State, 403 S.W.3d 867, 873 (Tex. Crim. App. 2013). When
reviewing a magistrate’s decision to issue a warrant, appellate courts as well as
trial courts apply a highly deferential standard of review because of the
constitutional preference for searches conducted pursuant to a warrant over
warrantless searches. State v. McLain, 337 S.W.3d 268, 271–72 (Tex. Crim. App.
2011). If the magistrate had a substantial basis for concluding that a search
warrant probably would uncover evidence of wrongdoing, we will uphold the
magistrate’s probable-cause determination. Illinois v. Gates, 462 U.S. 213, 236
(1983); Bonds, 403 S.W.3d at 873. The magistrate may interpret the affidavit in a
non-technical, common-sense manner, drawing reasonable inferences solely from
the facts and circumstances contained within the affidavit’s four corners. Bonds,
403 S.W.3d at 873. We are not to invalidate a warrant by interpreting the affidavit



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in a hypertechnical, rather than a common-sense, manner. Id. When in doubt, we
are to defer to all reasonable inferences that the magistrate could have made. Id.

                                      APPLICABLE LAW

       A search warrant may not legally issue unless it is based on probable cause.
U.S. CONST. amend. IV; Tex. Const. art. I § 9; Tex. Code Crim. Proc. Ann. art.
1.06 (West 2005). Under Texas law, “[n]o search warrant shall issue . . . unless
sufficient facts are first presented to satisfy the issuing magistrate that probable
cause does in fact exist for its issuance” and “[a] sworn affidavit setting forth
substantial facts establishing probable cause” is filed with the search-warrant
request. Tex. Code Crim. Proc. Ann. art. 18.01(b) (West Supp. 2015). Probable
cause exists when, under the totality of the circumstances, there is a fair probability
or substantial chance that evidence of a crime will be found at the specified
location. Bonds, 403 S.W.3d at 872–73. Probable cause is a flexible and non-
demanding standard. Id. at 873.

       When a trial court examines whether there is probable cause to support a
search warrant, the trial court is restricted to the four corners of the affidavit.
McLain, 337 S.W.3d at 271. For an evidentiary search warrant, the sworn affidavit
must set forth facts sufficient to establish probable cause that (1) a specific offense
has been committed, (2) the specifically described property or items that are to be
the subject of the search or seizure constitute evidence of that offense or evidence
that a particular person committed that offense, and (3) the property or items
constituting evidence to be searched for or seized are located at or on the particular
person, place, or thing to be searched. Tex. Code Crim. Proc. Ann. art. 18.01(c),
18.02(a)(10) (West Supp. 2015).1

       1
        The Texas Code of Criminal Procedure contains provisions dealing specifically with
search warrants for cell phones of arrestees. But, because these provisions were not yet in effect
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                                          ANALYSIS

       Appellant alleges that Officer Sosa’s affidavit did not provide a sufficient
basis to support the magistrate’s finding of probable cause. Specifically, appellant
argues the affidavit did not establish the second requirement—that the specifically
described property or items made the subject of the proposed search or seizure
constitute evidence of the offense or evidence that a particular person committed
the offense. See Tex. Code Crim. Proc. Ann. art. 18.01(c)(2) (West Supp. 2015).

       Applying a common-sense reading to the affidavit, we conclude it contained
sufficient facts from which the trial court could find probable cause that the cell
phone to be searched contained evidence that appellant committed capital murder.
The affiant established the following pertinent facts:

        affiant was investigating the capital murder of the complainant;

        appellant was found with the complainant’s car and cell phone the day
         after the complainant’s shooting;
        appellant’s cell phone was found in the complainant’s car after appellant
         was driving it;
        appellant was questioned as a suspect in the capital murder;

        appellant admitted he was involved in the complainant’s shooting and
         drove off in the complainant’s car;
        appellant planned to sell the complainant’s car and cell phone;

        appellant knew the complainant and communicated with the complainant
         primarily via cell phone; and
        appellant and the complainant had been planning to commit robberies
         together.



at the time of the underlying offense and trial, the provision governing search warrants for “mere
evidence” is applicable.

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      Appellant argues that, based on the facts set forth in the affidavit, the
magistrate could not have inferred that evidence probably would be found in
appellant’s cell phone, but rather made a guess based on the “general expectation
that incriminating evidence exists on a cell phone.” Appellant also argues that the
affidavit established nothing more than “mere suspicion” that the cell phone might
contain evidence, focusing on the absence of any specific allegation that appellant
talked to the complainant via cell phone about shooting him.

      A substantial basis for probable cause rests in the allegations that appellant
and the complainant had been communicating via appellant’s cell phone, planning
robberies around the time that the complainant was killed while being robbed of
possessions later found in appellant’s possession. From these facts, a magistrate
properly could have inferred that appellant’s cell phone probably contained
information that evinced appellant robbing and killing the complainant, including
communication between the two of them showing how and why they came to be in
that parking lot together that night. We conclude there is a fair probability or
substantial chance that evidence of a capital murder would be found in the contents
of a cell phone belonging to a suspect who had confessed to shooting the
complainant and who exchanged numerous text messages and phone calls with the
complainant around the time of the shooting. See Humaran v. State, 478 S.W.3d
887, 899–900 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d).

      Under the totality of the circumstances, the trial court could have concluded
that there was a fair probability that evidence relating to the commission of an
offense, capital murder, would be found on appellant’s cell phone. See id. The
trial court did not abuse its discretion by denying appellant’s motion to suppress.




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                                  CONCLUSION

      When considering the totality of the circumstances, the warrant’s supporting
affidavit provided a substantial basis for concluding that probable cause existed.
Therefore, the trial court did not abuse its discretion in denying the motion to
suppress evidence. Accordingly, we overrule appellant’s sole issue and affirm the
trial court’s judgment.




                                     /s/       Kem Thompson Frost
                                               Chief Justice



Panel consists of Chief Justice Frost and Justices McCally and Brown.
Publish — Tex. R. App. P. 47.2(b).




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