Affirmed and Memorandum Opinion filed June 18, 2015.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-13-00920-CR

                    RONNIE HOYT ROYSTON, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee

                   On Appeal from the 178th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1354573

                  MEMORANDUM OPINION

      Appellant, Ronnie Hoyt Royston, appeals his conviction for improper
photography or visual recording. In two issues, he contends the trial court erred by
(1) refusing to submit a requested jury instruction, and (2) denying appellant’s
motion to suppress. We affirm.
                                               I. BACKGROUND

          On June 4, 2012, the sixteen-year-old female complainant, her thirteen-year-
old sister, her brother, and their mother were shopping at a department store. The
women noticed that a man, later identified as appellant, followed them while they
looked at clothes. Unbeknownst to the women at the time, appellant used his
iPhone to take numerous photographs focusing on the complainant’s buttocks
while she shopped. Appellant then placed the phone, set in the video-recording
mode, under a bench in a dressing room, partially concealed by some clothing.

          The three women then entered that dressing room, and the teenagers began
to try on clothes. When the sister dropped an item, she saw the hidden phone. She
picked it up and said, “I just got an iPhone” and “it’s mine, it’s mine,” while the
complainant replied, “no, it’s mine”—remarks which the complainant and her
mother characterized at trial as joking rather than indicating intent to keep the
phone.1 The mother immediately took the phone to determine the owner’s identity,
and the women noticed it was recording. While looking at the contents, they
recognized the phone as belonging to the man who had followed them and saw the
photographs of the complainant’s backside. The mother immediately locked the
phone so that it would stop recording. An employee knocked on the dressing-room
door, asking if the women had found a phone because someone had called looking
for it.        The mother responded that they had not because she was concerned
appellant might be nearby and she wanted to take the phone to store security. She
approached a manager and called the police after learning there was no store
security officer. She gave the phone to the responding police officer and reported
that it showed the teenagers “half-dressed.”


          1
              The sister did not testify at trial.

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      The police obtained a search warrant to access the contents of the locked
phone, based on the information provided by the women. The police found the
photographs of the complainant and the video which recorded appellant hiding the
phone in the dressing room and the women discovering it. The police determined
from accessing the phone that it belonged to appellant. They contacted him, and
he voluntarily went to the station for an interview. The police also learned that the
man who called the store inquiring about the phone did not leave his name or
contact information. Additionally, appellant did not return to the store, contact the
officers, or go to the police station in an attempt to retrieve the phone, and he never
reported it as stolen. Finally, the police obtained store surveillance videos showing
appellant enter the store while holding a cell phone and displaying an erection
through his gym shorts.

      Appellant was charged with the felony offense of improper photography or
visual recording under section 21.15(b)(2) of the Texas Penal Code.2 See Tex.
Penal Code Ann. § 21.15(b)(2) (West, Westlaw through 2015 R.S.) (providing that
a person commits an offense if he “photographs or by videotape or other electronic
means records . . . a visual image of another at a location that is a . . . private
dressing room . . . without the other person’s consent; and . . . with intent to: (i)
invade the privacy of the other person; or (ii) arouse or gratify the sexual desire of
any person”).

      Appellant moved to suppress all evidence regarding the phone and its
contents, or otherwise obtained from accessing the contents, on the ground this
evidence was obtained via an illegal search and seizure. After hearing testimony
and viewing the video recording contained on the phone, the trial court denied the
      2
        The Texas Court of Criminal Appeals has found section 21.15(b)(1) of the Penal Code
to be unconstitutional but that holding does not affect section 21.15(b)(2). See Ex Parte
Thompson, 442 S.W.3d 325 (Tex. Crim. App. 2014).

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motion. Subsequently, the trial court denied appellant’s request for an instruction
in the charge that the jury may not consider evidence it believed was obtained via
an illegal search and seizure.

      The jury found appellant guilty of the offense. The trial court assessed
punishment at two years’ confinement in state jail, probated for four years.

                                   II. ANALYSIS

      We will address together appellant’s two issues because we dispose of both
on the same basis.      Appellant contends the trial court erred by (1) denying
appellant’s motion to suppress, and (2) refusing to submit his requested jury
instruction.

A.    Applicable Law and Standard of Review

      To support both issues, appellant relies on Texas Code of Criminal
Procedure Article 38.23(1), which provides:
      (a) No evidence obtained by an officer or other person in violation of
      any provisions of the Constitution or laws of the State of Texas, or of
      the Constitution or laws of the United States of America, shall be
      admitted in evidence against the accused on the trial of any criminal
      case.
      In any case where the legal evidence raises an issue hereunder, the
      jury shall be instructed that if it believes, or has a reasonable doubt,
      that the evidence was obtained in violation of the provisions of this
      Article, then and in such event, the jury shall disregard any such
      evidence so obtained.
Tex. Code Crim. Proc. Ann. art. 38.23(a) (West, Westlaw through 2015 R.S.).

      We review a trial court’s ruling on a motion to suppress under a bifurcated
standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App.
2007). We give almost total deference to the trial court’s findings of historical fact
that are supported by the record and its application of the law to facts if the

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resolution of those questions turns on an evaluation of credibility and demeanor.
Id. We review de novo the trial court’s application of the law to the facts when the
issue does not turn on credibility and demeanor. Id.

      Even when a trial court has resolved a factual conflict relative to a motion to
suppress against the defendant and admitted the evidence at issue, the defendant
may still be entitled to a jury instruction under the second paragraph of Article
38.23(a). See Tex. Code Crim. Proc. Ann. art. 38.23(a); Holmes v. State, 248
S.W.3d 194, 199–200 (Tex. Crim. App. 2008). A defendant’s right to submission
of a jury instruction under article 38.23(a) is “limited to disputed issues of fact that
are material to his claim of a constitutional or statutory violation that would render
evidence inadmissible.” Madden v. State, 242 S.W.3d 504, 509–10 (Tex. Crim.
App. 2007). If there is no dispute regarding a material fact issue, the legality of the
conduct is determined by the court alone, as a matter of law. Id. at 510. We
review a trial court’s refusal to submit an instruction in the jury charge for abuse of
discretion. See Wesbrook v. State, 29 S.W.3d 103, 122 (Tex. Crim. App. 2000).

B.    Analysis

      Appellant’s complaint regarding the search and seizure of the iPhone
focuses on the actions of the complainant’s sister.         Appellant cites authority
discussing application of the exclusionary rule to an improper search and seizure
by a private citizen: “if an officer violates a person’s privacy rights by his illegal
conduct making the fruits of his search or seizure inadmissible in a criminal
proceeding under Article 38.23, that same illegal conduct undertaken by an ‘other
person’ is also subject to the Texas exclusionary rule.” Miles v. State, 241 S.W.3d
28, 36 (Tex. Crim. App. 2007). Appellant contends the sister had effectively stolen
the phone when the women viewed the contents in the dressing room because (1)
the sister’s statements while picking up the phone—“I just got an iPhone” and “it’s

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mine, it’s mine”—demonstrate her intent to commit theft, and (2) the theft was
complete when she briefly held the phone, although the women decided to give it
to the police once they saw the contents.

       As we construe appellant’s position, he therefore maintains (1) the women’s
actions in obtaining the phone and viewing the contents constituted an illegal
search and seizure; (2) in turn, the search warrant based on the information they
provided was invalid; and (3) thus, the phone, evidence regarding its contents, and
any other evidence obtained via the search warrant, including appellant’s
statement, should have been suppressed as fruits of an illegal search and seizure.
Alternatively, appellant argues the sister’s statements at least raised a question of
fact before the jury on whether she committed theft, thereby entitling appellant to a
jury instruction.      See Holmes, 248 S.W.3d at 200 (recognizing State’s own
witnesses or evidence might affirmatively raise a factual dispute entitling
defendant to an Article 38.23(a) instruction).3

       The trial court issued numerous findings of fact and conclusions of law
which, in summary, reflect it denied the motion to suppress for three separate
reasons: (1) there was no theft; (2) appellant abandoned his interest in the phone
before the women discovered it; and (3) the complainant had an ownership interest
in the contents because they depicted her partially undressed body without her
consent. We agree with the trial court’s conclusion that appellant abandoned the
phone before the women discovered it and thus he lacks standing to challenge their
actions.    Consequently, we need not decide whether the trial court erred by


       3
         Appellant requested an instruction defining the elements of theft and stating, “if you
believe beyond a reasonable doubt that the cell phone in question was obtained in violation of the
law of the State of Texas, namely theft by [the complainant or her sister], then in such event, you
will wholly disregard such evidence and all other evidence that was derived from the theft, and
not consider it as any evidence whatsoever.”
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determining there was no theft or whether a disputed fact issue existed regarding a
theft, entitling appellant to a jury instruction.

       A person has standing to contend a search or seizure was unreasonable if (1)
he has a subjective expectation of privacy in the place or object searched, and (2)
society is prepared to recognize that expectation as “reasonable” or “legitimate.”
State v. Granville, 423 S.W.3d 399, 405 (Tex. Crim. App. 2014). Courts have held
that (1) a person has a subjective expectation of privacy in the contents of his cell
phone, and (2) this expectation of privacy is one society recognizes as reasonable
and legitimate. Id. at 405–06. However, a person may lose a reasonable and
legitimate expectation of privacy in the contents of his cell phone under some
circumstances, including if he abandons the phone. Id. at 409.

       When the police take possession of property that has been abandoned
independent of police misconduct, no seizure occurs under the Fourth Amendment.
Swearingen v. State, 101 S.W.3d 89, 101 (Tex. Crim. App. 2003). Further, no
person can reasonably expect privacy in property he abandons. Matthews v. State,
431 S.W.3d 596, 608 (Tex. Crim. App. 2014). Thus, when a defendant voluntarily
abandons property, he lacks standing to contest the reasonableness of the search of
the property. Id.; Swearingen, 101 S.W.3d at 101. The defendant must intend to
abandon the property, which may be inferred from words, acts, and other objective
facts—the question being whether the defendant has voluntarily discarded or
relinquished his interest in the property. See Matthews, 431 S.W.3d at 609. The
issue is not whether he intended to discard the property permanently, but instead
whether he abandoned the property in such a way “that he could no longer retain a
reasonable expectation of privacy with regard to it at the time of the search.” Id.
(quoting McDuff v. State, 939 S.W.2d 607, 616 (Tex. Crim. App. 1997)).



                                             7
       In this case, there were no disputed facts on whether appellant abandoned
the phone, and therefore that inquiry is solely a legal issue. See Madden, 242
S.W.3d at 510; Amador, 221 S.W.3d at 673.4 The trial court made the following
conclusions with respect to the abandonment issue:

       The Court further finds that neither [the sister] who had fleeting
       temporary possession of the iPhone, nor [the mother], took the iPhone
       from the defendant’s person, home or vehicle, but rather found it
       where the defendant had no right to be and where the defendant left it
       to commit the offense alleged in the indictment. As such, since the
       defendant did not report it stolen or lost to the police or inquire about
       it in person at the store or at the police station, he abandoned it.
       ...
       The Court further finds that the Defendant did not have a reasonable
       expectation of privacy in his iPhone when his iPhone and the contents
       therein were retained by the complainant’s mother and handed over to
       the police, where he had abandoned said iPhone in the women’s
       dressing room by entering said dressing room and surreptitiously
       placing it in a “record” mode and later made no attempt to reclaim it
       in person. . . .
We agree that before the sister discovered the phone, appellant abandoned it by
“surreptitiously” placing it in a public dressing room on record mode and then
walking away from not only the phone but also the store.5

       Appellant argues that conclusion is inconsistent with the State’s theory
necessary to prove an element of the offense. Appellant emphasizes he could not
have intended to abandon the phone if he also intended to “arouse or gratify [his]
sexual desire.” In other words, appellant suggests proving that element would
entail intent to later retrieve the phone so that he could view any recording of the


       4
        The evidence presented at both the motion-to-suppress hearing and at trial (as set forth
above) was substantially similar in pertinent respects.
       5
         It is a reasonable inference appellant left the store before the women found the phone
because he had called the store inquiring about the phone only minutes after the women found it.

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complainant.    In this regard, appellant cites the fact that he called the store
inquiring about the phone.

      However, the jury was correctly instructed that appellant must have made
the recording with intent to “invade the privacy of the other person; or . . . arouse
or gratify the sexual desire of any person.” (emphasis added). See Tex. Penal
Code Ann. § 21.15(b)(2). Thus, the State was not required to establish appellant
intended to “arouse or gratify [his] sexual desire.” See id. The jury could have
concluded that appellant intended “to invade [the complainant’s] privacy” even if
he had no intent to retrieve the phone because he placed it where any other person
could find it and view the recording.        Further, appellant does not challenge
sufficiency of the evidence, so we need not decide whether the State proved all of
the elements.

      Nonetheless, as set forth above, the inquiry is not whether appellant intended
to discard the phone permanently but whether he abandoned it in such a way “that
he could no longer retain a reasonable expectation of privacy with regard to it at
the time of the search.” See Matthews, 431 S.W.3d at 609 (emphasis added). We
note appellant’s subsequent attempt to retrieve the phone was tepid because he
failed to leave any contact information when he called the store, did not return in
person, and made no further efforts to retrieve it. Regardless, any intent, or actual
attempt, to later try to retrieve the phone does not negate that appellant
relinquished any “reasonable expectation of privacy” when he hid the phone in a
public dressing room in record mode and left the store. See id.

      In summary, because appellant abandoned the phone, he had no standing to
challenge the subsequent circumstances under which the women and then the
police accessed the contents. Accordingly, the trial court did not err by denying



                                         9
appellant’s motion to suppress and refusing to submit an Article 38.23(a) jury
instruction. We overrule both of appellant’s issues.

      We affirm the trial court’s judgment.




                                      /s/     John Donovan
                                              Justice




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




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