Memorandum Opinion of January 22, 2014 Withdrawn; Reversed and
Remanded and Corrected Memorandum Opinion filed January 22, 2015.




                                         In The

                     Fourteenth Court of Appeals

                               NO. 14-13-00957-CR

                          CORREY OLIVER, Appellant
                                          V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 177th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1346323

    CORRECTED MEMORANDUM                                   OPINION

      This court withdraws its memorandum opinion dated January 22, 2014, and
issues a corrected memorandum opinion in its place to include the correct date of
issuance, January 22, 2015. We also issue a corrected judgment dated January 22,
2015, to correct the clerical mistake.
      The State indicted appellant Correy Oliver for (1) the possession with intent
to deliver cocaine weighing 400 grams or more 1 and (2) the possession with intent
to deliver a compound, mixture, or preparation containing not more than 200
milligrams of codeine per 100 milliliters of non-narcotic active medicinal
ingredients weighing 400 grams or more. 2 The trial court directed a verdict of not
guilty on the codeine charge, and the jury found appellant guilty on the cocaine
charge. The court sentenced appellant to an agreed punishment of forty-five years’
confinement.

      Appellant contends the trial court reversibly erred by denying his motion to
suppress evidence discovered as a result of the warrantless search of his cell phone.
We reverse the trial court’s judgment and remand for a new trial.

                        WARRANTLESS SEARCH OF CELL PHONE

      In his first issue, appellant contends the trial court reversibly erred by
denying his motion to suppress evidence of a text message on appellant’s cell
phone, which a police officer found during a warrantless search of the phone. The
State contends the search was justified by exigent circumstances—“to avoid the
imminent destruction of evidence”—and that in any event, the error was harmless.
We hold that the trial court erred by admitting evidence of the text message, and
we must reverse the trial court’s judgment because we cannot determine beyond a
reasonable doubt that the error did not contribute to appellant’s conviction.

A.    Standard of Review

      We apply a bifurcated standard of review, giving almost total deference to
the trial court’s determination of historical facts and reviewing de novo the court’s

      1
          See Tex. Health & Safety Code Ann. §§ 481.102(3)(D), 481.112(f).
      2
          See Tex. Health & Safety Code Ann. §§ 481.105(1), 481.114(e).

                                               2
application of the law of search and seizure under the Fourth Amendment.
Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We view the
evidence in the light most favorable to the trial court’s ruling, and we assume that
the trial court made implicit findings of fact supported in the record that buttress
the court’s conclusion. Id. at 328. Unless it would be a manifest injustice, we will
affirm a trial court’s ruling on a motion to suppress if it is correct under any theory
of law that is applicable to the case. State v. Esparza, 413 S.W.3d 81, 89–90 (Tex.
Crim. App. 2013).

B.    Law Regarding Search of Cell Phones

      While this appeal was pending, the United States Supreme Court held that
under the Fourth Amendment’s prohibition of unreasonable searches, a person’s
cell phone may not be searched incident to arrest. Riley v. California, 134 S. Ct.
2473, 2494 (2014). Generally, a cell phone may be seized incident to arrest, but
police must get a warrant to search it. Id. at 2495. One exception to the warrant
requirement, however, is “when the exigencies of the situation make the needs of
law enforcement so compelling that [a] warrantless search is objectively
reasonable under the Fourth Amendment.”            Id. at 2494 (quotation omitted;
alteration in original). One such exigency could be “the need to prevent the
imminent destruction of evidence.” Id. Another could be the need to assist
persons who are “threatened with imminent injury.” Id. (citing as examples “a
suspect texting an accomplice who, it is feared, is preparing to detonate a bomb or
a child abductor who may have information about the child’s location on his cell
phone”). The State has the burden to establish that an exigency existed; if the State
does not, “then a warrantless [search] will not withstand judicial scrutiny.”
Gutierrez v. State, 221 S.W.3d 680, 685–86 (Tex. Crim. App. 2007).



                                          3
      Wright did not testify that an exigency caused him to search the phone.
Wright testified that once the phone was seized, appellant did not have any
opportunity to try to take the phone back or do anything with the phone. Wright
also testified that he could have disabled the phone and obtained a warrant:

      Q. Okay. Flip phones are sort of older technology. Do you think—
      you could have figured out how to turn this phone off pretty easily,
      right?
      A. Probably just take out the battery.
      Q. Exactly. And that disables the phone, correct?
      A. Right.
      Q. Sometimes phones have cards or something that you can take out
      as well, correct?
      A. Right.
      Q. Okay. All of that would have stopped the phone from doing
      anything, from being a phone at all, correct?
      A. Yes.
      ....
      Q. There was nothing preventing you from getting a warrant?
      A. No, there was not.
      Q. Turning off the phone would have disabled it so that nothing could
      have happened to it between the time you got the warrant and were
      able to search it?
      A. Yes.
Wright testified that he found a text message sent to appellant, and Wright took a
picture of it. Over appellant’s objection, the trial court admitted this picture—
Exhibit 7—as evidence. The text message reads, “U got some oil[.]” Wright
testified that “oil” is slang for codeine cough syrup. And although there is no
punctuation, Wright testified that based on his training and experience, the text
message indicated, “Someone was asking him if he had any codeine syrup.”

                                         5
      Wright did not testify that an exigency caused him to search the phone.
Wright testified that once the phone was seized, appellant did not have any
opportunity to try to take the phone back or do anything with the phone. Wright
also testified that he could have disabled the phone and obtained a warrant:

      Q. Okay. Flip phones are sort of older technology. Do you think—
      you could have figured out how to turn this phone off pretty easily,
      right?
      A. Probably just take out the battery.
      Q. Exactly. And that disables the phone, correct?
      A. Right.
      Q. Sometimes phones have cards or something that you can take out
      as well, correct?
      A. Right.
      Q. Okay. All of that would have stopped the phone from doing
      anything, from being a phone at all, correct?
      A. Yes.
      ....
      Q. There was nothing preventing you from getting a warrant?
      A. No, there was not.
      Q. Turning off the phone would have disabled it so that nothing could
      have happened to it between the time you got the warrant and were
      able to search it?
      A. Yes.
Wright testified that he found a text message sent to appellant, and Wright took a
picture of it. Over appellant’s objection, the trial court admitted this picture—
Exhibit 7—as evidence. The text message reads, “U got some oil[.]” Wright
testified that “oil” is slang for codeine cough syrup. And although there is no
punctuation, Wright testified that based on his training and experience, the text
message indicated, “Someone was asking him if he had any codeine syrup.”

                                         5
      Accordingly, the trial court erred by admitting the evidence gathered from
the warrantless search of appellant’s cell phone.

E.    Harm

      Appellant and the State agree that this error is constitutional, and therefore,
we must reverse appellant’s conviction unless we determine “beyond a reasonable
doubt that the error did not contribute to the conviction.” Tex. R. App. P. 44.2(a).
This standard for determining harmful error “should ultimately serve to vindicate
the integrity of the fact-finding process rather than simply looking to the
justifiability of the fact-finder’s result.” Snowden v. State, 353 S.W.3d 815, 819
(Tex. Crim. App. 2011).

      Accordingly, we must focus “not upon the perceived accuracy of the
conviction or punishment, but upon the error itself in the context of the trial as a
whole, in order to determine the likelihood that it genuinely corrupted the fact-
finding process.” Id. We focus not on “whether the jury verdict was supported by
the evidence,” but rather, on whether “the error adversely affected the integrity of
the process leading to the conviction.” Langham v. State, 305 S.W.3d 568, 582
(Tex. Crim. App. 2010) (quotation omitted). We must “focus not on the weight of
the other evidence of guilt, but rather on whether the error at issue might possibly
have prejudiced the jurors’ decision-making.” Harris v. State, 790 S.W.2d 568,
586 (Tex. Crim. App. 1989), overruled on other grounds by Snowden, 353 S.W.3d
at 821–22; accord Daniels v. State, 25 S.W.3d 893, 899 (Tex. App.—Houston
[14th Dist.] 2000, no pet.).

      So, an error is not harmless “simply because the reviewing court is confident
that the result the jury reached was objectively correct.” Snowden, 353 S.W.3d at
819. Error is not harmless “if there is a reasonable likelihood that it materially
affected the jury’s deliberations.” Neal v. State, 256 S.W.3d 264, 284 (Tex. Crim.
                                          8
phone after Wright seized it. Further, the Supreme Court explained that if an
officer seizes a phone in an unlocked state, as Wright did, the officer may be able
to disable a phone’s locking feature to prevent locking and the encryption of data.
See id. at 2487. An officer can prevent a remote wipe of the phone’s data by
“disconnecting a phone from the network” in at least two simple ways: turning the
phone off or removing the battery. Id. So, under appropriate circumstances,
officers may take measures to preserve data on a phone without resorting to
searching it. See id. The Supreme Court’s “answer to the question of what police
must do before searching a cell phone seized incident to arrest is accordingly
simple—get a warrant.” Id. at 2495.

       Here, the trial court did not find that exigent circumstances justified the
warrantless search of appellant’s cell phone, and based on this record, no rational
jurist could so find. Wright testified multiple times that he searched the phone
“incident to arrest,” and there was “nothing” preventing him from getting a
warrant. Appellant had no opportunity to delete data himself once the phone was
seized, and “[t]urning off the phone would have disabled it so that nothing could
have happened to it between the time [Wright] got the warrant and [would have
been] able to search it.” Wright never testified about any of the concerns that the
State now raises for the first time on appeal.5


       5
          For the first time at oral argument, the State suggested that exigent circumstances
existed because appellant and Floyd were “calling their posse to the scene, . . . actively seeking
to have people come and complicate an arrest situation.” Although courts have recognized
exigent circumstances for the purpose of “protecting police officers from persons whom they
reasonably believe to be present, armed, and dangerous,” Gutierrez, 221 S.W.3d at 685, Wright
never testified that he searched the phone in an attempt to gain information that would help
protect himself or others from harm. In fact, he testified that he was not in fear for his safety,
and there were no circumstances regarding the phone that he found scary or harmful to himself.
“Nothing” prevented Wright from obtaining a warrant. Accordingly, the State failed to adduce
evidence of exigent circumstances based on an alleged desire for Wright to protect himself or
others from danger.

                                                7
      Accordingly, the trial court erred by admitting the evidence gathered from
the warrantless search of appellant’s cell phone.

E.    Harm

      Appellant and the State agree that this error is constitutional, and therefore,
we must reverse appellant’s conviction unless we determine “beyond a reasonable
doubt that the error did not contribute to the conviction.” Tex. R. App. P. 44.2(a).
This standard for determining harmful error “should ultimately serve to vindicate
the integrity of the fact-finding process rather than simply looking to the
justifiability of the fact-finder’s result.” Snowden v. State, 353 S.W.3d 815, 819
(Tex. Crim. App. 2011).

      Accordingly, we must focus “not upon the perceived accuracy of the
conviction or punishment, but upon the error itself in the context of the trial as a
whole, in order to determine the likelihood that it genuinely corrupted the fact-
finding process.” Id. We focus not on “whether the jury verdict was supported by
the evidence,” but rather, on whether “the error adversely affected the integrity of
the process leading to the conviction.” Langham v. State, 305 S.W.3d 568, 582
(Tex. Crim. App. 2010) (quotation omitted). We must “focus not on the weight of
the other evidence of guilt, but rather on whether the error at issue might possibly
have prejudiced the jurors’ decision-making.” Harris v. State, 790 S.W.2d 568,
586 (Tex. Crim. App. 1989), overruled on other grounds by Snowden, 353 S.W.3d
at 821–22; accord Daniels v. State, 25 S.W.3d 893, 899 (Tex. App.—Houston
[14th Dist.] 2000, no pet.).

      So, an error is not harmless “simply because the reviewing court is confident
that the result the jury reached was objectively correct.” Snowden, 353 S.W.3d at
819. Error is not harmless “if there is a reasonable likelihood that it materially
affected the jury’s deliberations.” Neal v. State, 256 S.W.3d 264, 284 (Tex. Crim.
                                          8
so that the color won’t have changed that much if you pour codeine in it.” The
State elicited Wright’s opinion, based on his training and experience, that the text
message indicated, “Someone was asking him if he had any codeine syrup.” Thus,
the text message and Wright’s opinion provided evidence that appellant was a drug
dealer, rather than merely a drug user.

      Despite the trial court directing a “not guilty” verdict on the codeine charge,
the State relied on the text message during closing argument. First, the State
rebuffed defense counsel’s suggestion that the text message was not incriminating,
arguing:

      You got oil. I guess he works for BP. I mean, my goodness, if you’ve
      got—if your car is low on oil and you need some, just text [appellant].
      He’ll get it for you. No problem. Come on. You know, it’s common
      sense. What did Officer Wright tell you was one of the nicknames of
      codeine? Oil. Doesn’t take a rocket scientist to figure it out.
After referencing the amount of cocaine appellant possessed, the State argued,
“You want to tell me that’s not intent to deliver? You got oil. Unfortunately
there’s nothing else we can bring you other than that, and it’s enough.”
Accordingly, the State invited the jury to infer that because appellant intended to
deliver codeine, he also intended to deliver the cocaine found in the same bag as
the codeine.

      On appeal, the State contends the “oil” text was of little significance because
it contained no punctuation and there was “no clear indication that it referred to
codeine.”   But that argument directly contradicts the State’s evidence and its
argument to the jury at the close of the case. Further, the State contends that the
State mentioned the text during closing argument “only after defense counsel chose
to mention it” first. But defense counsel’s attempt during closing argument to
lessen the impact of the inadmissible evidence does not mean appellant suffered

                                          13
the car; (2) appellant had over $1,100 in small denomination bills on him at the
time of the arrest, which indicated to Wright that appellant was “selling small
quantities of narcotics or making change for other people buying”; (3) the car was
registered to appellant and his girlfriend, not Floyd; (4) the cocaine was within
easy reach of appellant, having been found in a bag behind the driver’s seat; (5) the
cocaine weighed 654 grams and was worth about $60,000 on the street; (6)
appellant was linked to several bottles of codeine cough syrup found in the same
bag as the cocaine because a bottle of codeine was in plain view in the front seat,
and the officers found a six-month-old prescription for codeine cough syrup in
appellant’s name in the car; and (7) after appellant was informed he was being
arrested for possession of cocaine and codeine and was told his money would be
seized, appellant said, “I’m going to keep doing what I do no matter what you do,”
which Wright understood as, “He’s going to keep selling drugs and trying to make
money no matter if he gets arrested and charged.”6 However, the evidence was
sharply controverted by Floyd’s purposeful, self-incrimination.                   Floyd gave a
recorded, Mirandized statement to Wright that he had borrowed the car from
appellant the night before, that all the drugs were Floyd’s, and that he put the drugs
                                               7
in the car before picking up appellant.


       6
         This statement may be a “persuasive admission of personal involvement,” but it is not
necessarily an “explicit admission of guilt.” See Hutchinson v. State, 424 S.W.3d 164, 184 (Tex.
App.—Texarkana 2014, no pet.) (referencing a statement made by a defendant after he was
detained and told he would be arrested and his house searched, “I’ve just been doing what I’ve
been doing for a little extra money”; reversing for constitutional error despite “relatively strong”
evidence linking the defendant to 11.58 grams of methamphetamine, 32.51 grams of GHB, and
some Xanax pills; evidence included the admissible statement quoted above, the defendant had
$1,600 in cash on his person, he lived at the residence where drugs were found, he gave keys to
police officers that unlocked his bedroom where the officers found the drugs; the State twice
referenced appellant’s second, inadmissible statement during closing arguments).
       7
          The State undermined Floyd’s confession with evidence that it was contrived and
instigated by appellant. Before Floyd confessed, the officers had placed appellant and Floyd in
the back of a patrol car together where their conversation was secretly recorded. Although
                                                   10
       Thus, the evidence of appellant’s possession with intent to deliver the
cocaine was not overwhelming.              Courts have considered several factors for
measuring the weight of the evidence concerning an intent to deliver a controlled
substance, such as: (1) the nature of the location at which the accused was arrested
(whether an area known for drug dealing); (2) the quantity of contraband in the
accused’s possession; (3) the manner of packaging (whether packaged in
individual units for resale); (4) the presence or lack thereof of drug paraphernalia
(whether for use or sale); (5) the accused’s possession of large amounts of cash
(particularly in amounts indicative of drug sales); and (6) the accused’s status as a
drug user. See Moreno v. State, 195 S.W.3d 321, 325 (Tex. App.—Houston [14th
Dist.] 2006, pet. ref’d); see also Carter v. State, 419 S.W.3d 1, 18 (Tex. App.—
Amarillo 2009), rev’d on other grounds, 309 S.W.3d 31 (Tex. Crim. App. 2010).

       The State contends that the “sheer volume” of cocaine was “sufficient
evidence to demonstrate appellant’s intent to deliver.” But the test is not merely
one of weight or sufficiency; we are concerned with the likelihood that the
admission of the text message corrupted the fact-finding process, affected the
integrity of the process leading to the conviction, or prejudiced the jurors’
decision-making. See Snowden, 353 S.W.3d at 819; Langham, 305 S.W.3d at 582;
Harris, 790 S.W.2d at 586.



appellant and Floyd were “talking pretty quiet” and “mumbling” according to Wright, Wright
identified appellant as saying “I got you.” Appellant also said, “I can’t go down,” and, “You
would get probation.” Floyd asked, “How much work was in that [expletive],” and appellant
responded, “About a half.” (Testimony at trial established that “work” is slang for cocaine.)
Appellant then said, “I got you, though . . . . When you dropped me off last night, you put it in
there. You hear me?” Floyd said, “I got you.” Appellant and Floyd then used a different cell
phone (unbeknownst to the police officers at the time) to call someone. Appellant told Floyd,
“Just tell them everything,” and Floyd said, “I got you, I got you.” Floyd told someone on the
phone, “All that [expletive] was mine that I had with us,” and Floyd said he had “a half of a
whole.” Floyd said he was going to tell the police “it was mine.”

                                               11
       In considering the remaining evidence, or lack thereof, about possession
with an intent to deliver, we note that there was no evidence that Floyd and
appellant were stopped in an area known for drug dealing although the area was
“high crime.” The cocaine was not packaged in individual units for resale, nor was
there any evidence of other drug-distribution paraphernalia found in appellant’s car
(or any other location) that would have indicated an intent to deliver, such as
baggies or measuring devices.            Accordingly, the evidence of guilt was not
overwhelming. See Carter, 419 S.W.3d at 18 & n.19 (reasoning that, other than
the defendant’s confession, there was “virtually no evidence” establishing the
defendant’s intent to deliver; holding error harmful when there were 491 grams of
cocaine found in a vehicle with a passenger and a driver, and there was no
evidence the defendant possessed an excessive amount of cash, that the cocaine
was packaged in a manner indicating an intent to sell, that the defendant possessed
any baggies, scales or other items used in drug transactions, that the defendant was
arrested in an area known for drug sales, that the defendant had any weapons in the
car, or that the defendant attempted to flee). 8

       Further, there was drug paraphernalia indicative of appellant’s personal use
of the codeine cough syrup. Wright testified that he observed a small prescription
bottle of codeine in appellant’s name, two cups of ice, and a red fruity beverage
bottle in the front cup-holder area of the car. These items were consistent with
drug use according to Wright: “Typically they will mix the codeine with some kind
of fruity soda beverage, and a lot of times they choose a fruity beverage that is red

       8
          Viewing the record in a neutral light, we disagree with the State’s contention on appeal
that “the appearance of the cocaine indicated it was meant to be delivered to someone else rather
than possessed for appellant’s own use.” The State cites Wright’s testimony that the cocaine was
“straight off the brick” and “not broken up or diluted in any way.” But Wright did not opine that
this appearance indicated an intent to deliver. Such an intent perhaps could have been shown if
the cocaine had been broken up into smaller quantities and diluted, ready for resale.

                                               12
so that the color won’t have changed that much if you pour codeine in it.” The
State elicited Wright’s opinion, based on his training and experience, that the text
message indicated, “Someone was asking him if he had any codeine syrup.” Thus,
the text message and Wright’s opinion provided evidence that appellant was a drug
dealer, rather than merely a drug user.

      Despite the trial court directing a “not guilty” verdict on the codeine charge,
the State relied on the text message during closing argument. First, the State
rebuffed defense counsel’s suggestion that the text message was not incriminating,
arguing:

      You got oil. I guess he works for BP. I mean, my goodness, if you’ve
      got—if your car is low on oil and you need some, just text [appellant].
      He’ll get it for you. No problem. Come on. You know, it’s common
      sense. What did Officer Wright tell you was one of the nicknames of
      codeine? Oil. Doesn’t take a rocket scientist to figure it out.
After referencing the amount of cocaine appellant possessed, the State argued,
“You want to tell me that’s not intent to deliver? You got oil. Unfortunately
there’s nothing else we can bring you other than that, and it’s enough.”
Accordingly, the State invited the jury to infer that because appellant intended to
deliver codeine, he also intended to deliver the cocaine found in the same bag as
the codeine.

      On appeal, the State contends the “oil” text was of little significance because
it contained no punctuation and there was “no clear indication that it referred to
codeine.”   But that argument directly contradicts the State’s evidence and its
argument to the jury at the close of the case. Further, the State contends that the
State mentioned the text during closing argument “only after defense counsel chose
to mention it” first. But defense counsel’s attempt during closing argument to
lessen the impact of the inadmissible evidence does not mean appellant suffered

                                          13
any less harm—in fact, it cuts the other way because a “probable implication” or
“collateral consequence” of error in the admission of evidence is naturally that
defense counsel will attempt to mitigate the effect of harmful, relevant evidence
during closing argument. See Hutchinson v. State, 424 S.W.3d 164, 182, 184 (Tex.
App.—Texarkana 2014, no pet.) (noting that courts must consider “probable
collateral consequences” of the error) (citing Snowden, 353 S.W.3d at 822;
Higginbotham v. State, 807 S.W.2d 732, 737 (Tex. Crim. App. 1991)). That both
the State and defense counsel discussed the inadmissible evidence suggests the
error might possibly have prejudiced the jurors’ decision-making or disrupted the
jury’s orderly evaluation of the evidence. See Harris, 790 S.W.2d at 586, 588.

      In sum, the text message helped the State paint a clearer picture of
appellant’s possession with intent to deliver cocaine, and that is precisely the
argument the State made to the jury. The text message connected appellant, as
opposed to Floyd, to the distributable quantity of cocaine and a cell phone
solicitation for distribution. The text message was “important in the context of the
entire trial.” See Cabrales v. State, 932 S.W.2d 653, 657–59 (Tex. App.—Houston
[14th Dist.] 1996, no writ) (reversing the defendant’s conviction under the beyond-
a-reasonable-doubt harm analysis when an officer improperly testified that the
cocaine could be cracked out and worth $60 million whereas the powder cocaine
appellant was charged with possessing with intent to deliver was worth only $15
million; the defendant was the passenger in a vehicle driven by another person,
wherein officers found four locked duffle bags containing 78 packages of cocaine
weighing about 150 kilograms; the defendant had engaged in activity consistent
with drug activity, i.e., keeping a lookout after the drugs were presumably loaded
into the vehicle, and the defendant “directed the officers to the hidden keys which
unlocked the bags” of cocaine; this court found harm because the evidence was


                                        14
“important in the context of the entire trial,” where the State had argued that the
defendant knew “what was going on” based on the fact that the vehicle contained
drugs worth up to $60 million). 9

       The sole case the State cites in support of its argument on harm is Neal v.
State, where the Court of Criminal Appeals held that the admission of a gun and
Blockbuster card did not contribute to Neal’s conviction for capital murder. See
256 S.W.3d at 284. The case is inapposite. Neal had confessed to raping and
murdering the victim. Id. at 277. Cruz, the accomplice, testified about the rape
and murder “in great detail at trial, from the conception of their plan through its
execution, as well as the aftermath in which she confessed to the police and led
them to [the] body.” Id. Neal also gave a general account of the rape and murder
to his cellmate.      Id.   The evidence presented a “clear picture” that appellant
abducted the victim, stole some of her valuables, raped her, and fatally shot her
several times. Id. Fingerprint and DNA evidence linked him to the crime. Id.
The inadmissible gun was not the murder weapon, but Cruz had used it to hold-up
the victim. Id. at 283. At trial, the State had Cruz demonstrate how she held the
gun. Id. The Court of Criminal Appeals found the admission of the gun and
Blockbuster card harmless because, although the examination of Cruz regarding
the gun “may have added a dramatic flourish at trial,” the testimony was brief, the
evidence of Neal’s guilt was overwhelming, the handgun was not essential to the
State’s case, and the Blockbuster card “was of little significance.” Id. at 284.


       9
         Although appellant and the State do not squarely address the issue, appellant was
charged under the law of parties, so the jury could have convicted him if he was criminally
responsible for Floyd’s possession of the cocaine with intent to deliver. Just as the text message
supported the State’s theory that appellant had an intent to deliver cocaine, it would have
supported the State’s theory that appellant had the intent to promote or assist Floyd’s
commission of the crime and, at a minimum, was attempting to aid Floyd’s commission of the
crime.

                                               15
       Unlike in Neal, however, here the text message was an item of evidence,
among others, that the jury might well have considered in reaching the conclusion
that appellant possessed the cocaine with the intent to deliver it or intended to
promote or assist Floyd’s possession with intent to deliver. 10 Appellant cites this
court’s prior decision in Johnson v. State, which is somewhat more analogous. See
899 S.W.2d 250 (Tex. App.—Houston [14th Dist.] 1995, no writ). In Johnson, an
officer photocopied a $10 bill. Id. at 252. When the officer knocked on the door
to a residence to make an undercover drug purchase, Johnson answered and asked
the officer what he needed. Id. The officer said a “dime,” which is street slang for
one-eighth of a gram of cocaine. Id. Johnson told Harden, the State’s accomplice
witness, to get the officer “what he wanted.” Id. Harden took a rock of cocaine
from the table in the living room and gave it to the officer. Id. The officer paid
Harden the $10 bill. Id. After the officer left, the police raided the apartment
without a warrant. Id. When the police searched Johnson, the $10 bill was found
in his pocket. Id. He was tried for the delivery of cocaine. Id. The State
referenced the $10 bill during closing argument and referenced Harden’s testimony
that he gave the $10 to Johnson because the drugs belonged to Johnson. Id. The
jury also sent notes during deliberations “requesting copies of the testimony about
the seizure of the ten dollar bill from appellant.” Id. at 252–53. Despite the
testimony from Harden and the undercover officer, this court reversed Johnson’s
conviction because the $10 bill was “essential” to corroborate their testimony and
it seemed clear that the evidence of the $10 bill “prejudiced the juror’s decision-
making process and disrupted their orderly evaluation of the evidence.” Id.




       10
           The jury charge also allowed the jury to convict appellant under the theory of the law
of parties. See Tex. Penal Code Ann. § 7.02 (a)(2).

                                               16
       Although there is no jury note in this case comparable to the one in
Johnson11 and the text message was not necessarily “essential” to the State’s case,
after reviewing the entire record, we hold there is a reasonable likelihood that the
error materially affected the jury’s deliberations and disrupted the jury’s orderly
evaluation of the evidence. We cannot conclude beyond a reasonable doubt that
the error in admitting evidence from the warrantless search of appellant’s cell
phone did not contribute to appellant’s conviction.

       Appellant’s first issue is sustained.

                                           CONCLUSION

       Having sustained appellant’s first issue, we reverse the trial court’s judgment
and remand for a new trial.12




                                     /s/            Sharon McCally
                                                    Justice


Panel consists of Justices McCally, Brown, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).




       11
         Here, the jury asked for copies of the recordings of Floyd’s confession and the secretly
recorded discussion between Floyd and appellant.
       12
         Because we sustain appellant’s first issue, we do not address appellant’s second issue
concerning the Confrontation Clause. See Tex. R. App. P. 47.1.

                                               17
