Affirmed and Memorandum Opinion filed October 22, 2013.




                                           In The

                        Fourteenth Court of Appeals

                                  NO. 14-12-00645-CR
                                  NO. 14-12-00646-CR


                     RICHARD ANTHONY HEROD, Appellant

                                             V.

                          THE STATE OF TEXAS, Appellee

                      On Appeal from the 10th District Court
                             Galveston County, Texas
                    Trial Court Cause Nos. 10CR0325,10CR0326

                    MEMORANDUM                         OPINION

      A jury convicted Richard Anthony Herod of aggravated robbery1 in cause
number 10CR0326 and aggravated sexual assault2 in cause number 10CR0325.
The jury assessed appellant‘s punishment at confinement for ―99 years or life,‖ and

      1
          See Tex. Pen. Code Ann. § 29.03 (Vernon 2011).
      2
          See Tex. Pen. Code Ann. § 22.021 (Vernon 2011).
the trial court‘s written judgment reflects appellant‘s sentence to be 99 years‘
confinement for both offenses to run concurrently.        Appellant challenges his
conviction and sentence. He contends that (1) the jury verdict of ―99 years or life‖
for each offense violated Texas law and the trial court was without authority to
reform his sentence to ―99 years;‖ and (2) the trial court erred by denying his
motion to suppress evidence. We affirm.

                                    Background

      Appellant was indicted for aggravated robbery on March 24, 2010; he was
indicted for aggravated sexual assault on April 9, 2010. A jury trial was held from
June 4, 2012 to June 12, 2012. During the guilt-innocence phase of his trial, the
following evidence was presented.

       On January 7, 2010, two robbers with guns broke into the home of Alissia
and Ronnie Gallagher. Ronnie recognized the first robber as ―Ricky D‖ — the
appellant. The man Ronnie identified as ―Ricky D‖ blindfolded Ronnie, used a zip
tie to restrain him, and took codeine and $500 in cash. ―Ricky D‖ also sexually
assaulted Alissia and asked for her cell phone number, which she gave him.
Ronnie heard the sound of a diesel truck pulling away when the robbers left.
Alissia went to the neighbor‘s house to call 9-1-1, and police arrived to investigate
the scene.

      On January 8, 2010, Alissia received two cell phone calls in quick
succession; she recognized the voice as that of her assailant from the night before,
the man Ronnie identified as appellant.         Alissia called 9-1-1 immediately
afterwards. Detective Robles of the Texas City Police Department, who was in
charge of investigating the aggravated robbery and sexual assault, obtained arrest
warrants for appellant in connection with both offenses. Detective Robles also
requested Alissia‘s cell phone records from her service provider.
                                          2
      Police officers stopped and arrested appellant on January 28, 2010, while he
was driving in his truck. The arresting officers started conducting an inventory of
the truck on the grass embankment next to the highway where they had stopped
appellant. One of the police officers present at the scene, Officer Johnson of the
Texas City Police Department, noticed dark-colored clothing and what looked like
a black beanie or ski mask in the truck and contacted his supervisor, Sergeant Pope
of the Texas City Police Department. Johnson claimed he contacted Pope because
the police reports from the aggravated robbery and sexual assault indicated that the
robbers had their faces covered and were wearing dark-colored clothing. Pope told
Johnson to stop the inventory so that he could determine if consent to search or a
warrant was necessary. Officer Johnson then drove the truck to the Texas City
Police Department, leaving everything in the truck where it was.

      At the police department, appellant was taken to Detective Robles‘s office.
Robles explained to appellant the investigation and the charges against him.
Appellant was offered food, water, cigarettes, and a chance to use the restroom.
Robles then asked whether appellant would consent to a search of his truck. After
Robles read and explained the Consent to Search form, appellant signed it,
granting Detectives Robles and Flores (also of the Texas City Police Department)
permission to search the vehicle, ―[i]ncluding the containers and contents located
therein.‖ Robles described appellant‘s demeanor at the time as ―calm.‖ Appellant
also gave verbal permission to search the truck, and Robles explained to appellant
that he could withdraw his consent at any time. Appellant was present in leg
shackles with Robles and Flores as Robles conducted the search. Appellant did not
withdraw his consent at any time.

      During the search, Robles found several articles of clothing and two cell
phones and tagged the clothing into evidence. Robles did not tag the two cell

                                         3
phones because he was not sure the cell phones had evidentiary value. Robles and
appellant returned to Robles‘s office immediately after the truck search was
completed. Robles called his office phone with each of the cell phones he found in
appellant‘s truck in order to get the cell phone numbers from his office phone‘s
caller identification. Robles documented the two numbers. After Robles made the
calls and documented the numbers, appellant requested that Robles return the cell
phones to appellant.    Robles handed the cell phones to appellant, who then
disassembled them and swallowed the SIM cards.

      Appellant filed two pretrial motions seeking to suppress: (1) ―all evidence
seized as a result of the arrest of defendant and the search of defendant‘s person,
papers and effects within defendant‘s vehicle‖ because the search of appellant‘s
vehicle was ―effected without a valid search warrant in violation of the Fourth and
Fourteenth Amendments to the United States Constitution, as well as Article I
Section 9 of the Texas Constitution;‖ and (2) ―all evidence seized as a result of the
Texas City Police Department and the Galveston County District Attorney[‘]s
illegal seizure of cell phone records to include but not limited to positioning
records obtained from cell towers that purportedly track this defendant[‘]s
movements‖ because the ―taking of the cell records without his consent from the
cell provider is an illegal search and seizure in violation of the Fourth and
Fourteenth Amendments to the United States Constitution, as well as Article I
Section 9 of the Texas Constitution.‖ The trial court denied appellant‘s motions to
suppress.

      The jury found appellant guilty of aggravated sexual assault and aggravated
robbery. Appellant elected to have the jury assess his punishment. The jury
charge for each offense included two enhancements, which the jury found to be
―true.‖     The court‘s charge also instructed the jury that if it found both

                                         4
enhancements to be ―true,‖ the appropriate punishment range for each offense was
confinement ―for a period of not less than twenty-five (25) years nor more than
ninety-nine (99) years or life.‖ When the jury returned the sentences for both
cause numbers, the court read the sentences aloud as ―99 years or life,‖ based on
what the jury wrote in the blanks on the verdict forms. The trial judge later
announced for the record in open court that the jury ―assessed punishment in this
case at 99 years confinement,‖ and the written judgment for both offenses reflects
a 99-year sentence.

      Appellant filed a ―Motion for New Trial and Motion in Arrest of Judgment,‖
alleging that (1) appellant‘s Sixth and Eighth Amendment rights under the United
States Constitution were ―violated with evidence illegally gathered from taped jail
phone calls between Appellate and his defense counsel;‖ (2) trial counsel failed to
call an essential fact witness, resulting in a violation of appellant‘s Sixth
Amendment right to effective assistance of counsel; (3) ―[t]rial counsel from the
[S]tate presented, and the trial court admitted as evidence, an incomplete DNA
laboratory report resulting in a Brady violation as described in Brady v. Maryland,
373 U.S. 83;‖ and (4) ―Police actions, regarding the confiscation of cell phones
were in violation of Appellant‘s 4th amendment constitutional right regarding
search and seizure.‖ The trial court did not rule on the motion for a new trial, and
it was overruled by operation of law. See Tex. R. App. P. 21.8. Appellant filed a
timely appeal.

                                     Analysis

I.    Punishment

      In his first issue, appellant contends that the jury‘s assessment of ―99 years
or life‖ as punishment for each offense creates an illegal and void punishment
outside the maximum range of punishment, and requires reversal and remand for a
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new sentencing hearing. Appellant asserts that he has an absolute right to be
sentenced within the proper range of punishment, and the trial court did not have
authority to correct the jury‘s error ―by simply inserting an appropriate sentence in
the judgment.‖ According to appellant, the court cannot reform or change a verdict
to conform to the proper statutory range unless it is with the jury‘s consent and
before the jury is released.

      Texas Code of Criminal Procedure section 37.07(2)(b) allows a defendant to
elect to have the jury assess punishment. See Tex. Code Crim. Proc. Ann. art.
37.07(2)(b) (Vernon 2011). Before the trial began, appellant elected to have the jury
assess punishment.

      The jury charge for both cause numbers included the following instructions
regarding the two enhancements and the allowable punishment range: ―[I]f you
find that both of these allegations are ‗True,‘ you are to assess punishment at
confinement in the Institutional Division of the Texas Department of Criminal
Justice for a period of not less than twenty-five (25) years nor more than ninety-
nine (99) years or life, and so state in your verdict.‖3                 The jury found the
enhancements to be ―true.‖ Each verdict form read:

      We, the Jury, find that the allegations in both Enhancement paragraphs of
      this indictment are TRUE, and assess the Defendant‘s punishment at
      confinement in the Institutional Division of the Texas Department of
      Criminal Justice for ________ years.

      3
          Texas Penal Code section 12.42(d) states:
               . . . if it is shown on the trial of a felony offense . . . that the
               defendant has previously been finally convicted of two felony
               offenses, . . . on conviction the defendant shall be punished by
               imprisonment . . . for life, or for any term of not more than 99
               years or less than 25 years.
      Tex. Penal Code Ann. § 12.42(d) (Vernon Supp. 2012).


                                                6
                                             _________________________
                                             FOREPERSON OF THE JURY
The jury assessed punishment by writing ―99 or life‖ in the blank for cause number
10CR0325, and ―99 years or life‖ in the blank for cause number 10CR0326. The
jury foreperson signed both forms. When the jury returned the sentence for both
cause numbers, the court read both sentences aloud in open court, including the
―99 years or life‖ language. Defense counsel requested that the court poll the jury.
The court asked each juror, ―[A]re the verdicts that I have read here in open court
on punishment, are those verdicts your verdicts?‖           All jurors responded
affirmatively, and the court announced: ―The court confirming these are the
unanimous verdicts of the jury in these two cases, the court accepts these verdicts
and orders them filed of record.‖

      After dismissing the jury, the trial court announced: ―[M]ay the record
reflect . . . the jury having found the enhancement provisions of the indictments to
be true and having assessed punishment, assessed punishment in this case at 99
years‘ confinement in the penitentiary.‖ The written judgment for both offenses
read: ―Punishment and Place of Confinement: NINETY-NINE (99) YEARS
INSTITUTIONAL DIVISION, TDCJ.‖

      Although neither party objected to the trial court‘s assessment of
punishment, appellant‘s argument regarding the legality of his sentence properly is
before this court.   ―Unlike most trial errors which are forfeited if not timely
asserted, a party is not required to make a contemporaneous objection to the
imposition of an illegal sentence.‖ Tufele v. State, 130 S.W.3d 267, 274 (Tex.
App.—Houston [14th Dist.] 2004, no pet.) (quoting Mizell v. State, 119 S.W.3d
804, 806 n.6 (Tex. Crim. App. 2003)). In addition, an illegal sentence has ―no
legal effect‖ and any court with jurisdiction may notice and take action upon a void
                                         7
or illegal sentence at any time. Baker v. State, 278 S.W.3d 923, 926-27 (Tex.
App.—Houston [14th Dist.] 2009, no pet.) (citing Mizell, 119 S.W.3d at 805-07).
An appellant is not barred from complaining of a void sentence on direct appeal
even if the issue was not first raised before the trial court. Heath v. State, 817
S.W.2d 335, 336 (Tex. Crim. App. 1991), overruled on other grounds by Ex parte
Williams, 65 S.W.3d 656 (Tex. Crim. App. 2001).

      A sentence that is outside the maximum or minimum punishment range is
unauthorized by law and thus void and illegal. See Mizell v. State, 119 S.W.3d
804, 806 (Tex. Crim. App. 2003); Baker, 278 S.W.3d at 926. Here, the jury found
appellant guilty of both offenses, and further found that appellant had been
convicted of two prior felonies. The statutory punishment for a defendant who has
previously been finally convicted of two felony offenses is imprisonment for life,
or for any term of not more than 99 years or less than 25 years. See Tex. Penal
Code Ann. § 12.42(d) (Vernon Supp. 2012).

      Appellant relies on Baker for the proposition that a trial court may not revise
a jury verdict when the punishment assessed by the jury is illegal. In Baker, the
jury was instructed to assess a punishment of ―between 180 days and two years in a
state jail facility plus a fine of up to $10,000.‖ Baker, 278 S.W.3d at 925. The
jury assessed five years and a $10,000 fine as punishment. Id. The term of
imprisonment was more than the maximum allowed by statute for the relevant
offense. Id. The court held that a sentence that is outside the maximum or
minimum range of punishment is unauthorized by law and therefore illegal. Id.
(quoting Mizell, 119 S.W.3d at 806).

      Here, the jury returned a verdict for each offense assessing the defendant‘s
punishment at ―confinement . . . for 99 or life years.‖ Both punishments are
authorized by the relevant statute; neither is an unauthorized punishment outside

                                         8
the statutory punishment range. See Tex. Pen. Code Ann. § 12.42(d). Therefore,
the assessed punishment is not an illegal sentence.

        To the extent appellant attempts to argue that the jury returned an informal
verdict which the trial court lacked authority to ―change‖ without the jury‘s
consent in violation of Texas Code of Criminal Procedure section 37.10(a), we will
address this argument next.

        We assume without deciding that the jury returned an informal verdict in
this case. An informal verdict is ―one that does not meet the legal requirements of
being written or answered as authorized.‖ Jennings v. State, 302 S.W.3d 306, 309
(Tex. Crim. App. 2010); see Tex. Code Crim. Proc. Ann. art. 37.10(a) (Vernon 2006).

        In addressing appellant‘s argument and determining whether the trial court
reversibly erred by ―changing‖ the jury‘s informal verdict, we look to our decision
in Perez v. State, 21 S.W.3d 628 (Tex. App.—Houston [14th Dist.] 2000, no pet.).
In Perez, the jury foreman signed three alternative punishment verdicts: one for life
imprisonment, one for life imprisonment with no fine, and one for 30 years‘
confinement. Perez, 21 S.W.3d at 630. The trial court read the verdict for 30
years‘ confinement in open court, and asked the jury if that was its verdict. Id.
The jury responded ―yes‖ in unison and then was excused. Id. The trial court
signed a judgment reflecting punishment for 30 years‘ confinement. Id. at 631.
This court held that, although the trial court should have sent the verdict back to
the jury to be corrected, the trial court did not commit error because a liberal
interpretation of the jury verdict establishes that the jury intended a sentence of 30
years‘ imprisonment without a fine.4 Id. This court also concluded that any trial

        4
          The Perez court noted that the ―general rule is that a jury‘s verdict should be held good if the
jury‘s intention can reasonably be ascertained. A verdict should receive a liberal rather than a strict
construction and, when a finding of the jury can be reasonably ascertained, the verdict is sufficient.‖
Perez, 21 S.W.3d at 631. The court also stated: ―In the instant case, we find that a reasonable and liberal
                                                    9
court error in receiving the conflicting verdict and signing a judgment to reflect a
30 year sentence would have been harmless. Id. at 630-31.

         Following Perez, we note it is the duty of the trial judge to reject
unresponsive, incomplete or insufficient verdicts, call the problem to the attention
of the jury and have the problem corrected with the jury‘s consent or
reconsideration. Id. at 631. When a jury returns an informal verdict, the court
shall call the jury‘s attention to the informal verdict, and with the jury‘s consent,
reduce the verdict to the proper form. Id.; see Tex. Code Crim. Proc. Code Ann. §
37.10(a); Reese v. State, 773 S.W.2d 314, 317 (Tex. Crim. App. 1989). ―As this
was not done in this case, nor did appellant object or otherwise bring the problem
to the court‘s attention,‖ we must determine whether this trial court error was
harmful. See Perez, 21 S.W.3d at 631 (Tex. App.—Houston [14th Dist.] 2000, no
pet.).

         When a trial court commits reversible error, an appellate court must
determine if the error is constitutional in nature or affects a substantial right. Tex.
R. App. P. 44.2.           A defendant does not have a constitutional right to have
punishment assessed by the jury; that right is granted to a defendant by statute. See
Tex. Code Crim. Proc. Ann. § 37.07(2)(b); Ivey v. State, 277 S.W.3d 43, 46-47
(Tex. Crim. App. 2009) (citing Barrow v. State, 207 S.W.3d 377, 380 (Tex. Crim.
App. 2006)). Further, this court stated in Perez that this error is not constitutional
in nature. Perez, 21 S.W.3d at 631. Therefore, we proceed to determine if the
error was harmless and must be disregarded under Rule 44.2(b). See Tex. R. App.
P. 44.2(b).


interpretation of the jury‘s verdict forms leads us to conclude that the jury intended a thirty year sentence
without a fine. This was the sentence that was read in open court and agreed to by the jury, and the
sentence that was reflected in the court‘s judgment.‖ Id. Here, the jury did not confirm or agree that
appellant‘s sentence should be for 99 years imprisonment as reflected in the trial court‘s judgment.

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      In Tollett v. State, 799 S.W.2d 256, 259 (Tex. Crim. App. 1990), the Court
of Criminal Appeals noted the court of appeals‘ characterization that a 99-year
sentence and a sentence of life in prison are ―equivalent sentences‖ as ―a practical
matter.‖ Tollett, 799 S.W.2d at 259 (quoting Tollett v. State, 727 S.W.2d 714, 18
(Tex. App.—Austin 1987), reversed by 761 S.W.2d 376 (Tex. Crim. App. 1988)).
The Court of Criminal Appeals also noted the court of appeals‘ finding that ―‗[t]o
the extent that these terms of imprisonment differ, ninety-nine years . . . is the
lesser.‘‖ Id. (quoting Tollett, 727 S.W.2d at 718). The Court of Criminal Appeals
stated: ―We agree with the Court of Appeals‘ analysis of the relative severity of the
two sentences.‖ Id.

      In this case, the sentences were likewise equivalent as a practical matter; if
they were not equivalent, then the trial court‘s judgment assessed a lesser sentence.
Tollett, 799 S.W.2d at 259 n. 3 (―Theoretically, a ninety-nine year sentence may be
discharged during a prisoner‘s lifetime, but a life sentence will continue as long as
he lives. Thus a felon serving a life sentence will always be on parole, while a
felon with a ninety-nine year term could theoretically outlive his sentence.‖). We
hold that any error in failing to comply with the procedure set out in section
37.10(a) was not harmful to appellant.

      Accordingly, we overrule appellant‘s first issue.

II.   Motion to Suppress

      In his second issue, appellant argues that the trial court abused its discretion
when it refused to suppress ―information pulled from Appellant‘s cell phones
without a warrant‖ in violation of the Fourth Amendment of the United States
Constitution, and of Article I, Section 9 of the Texas Constitution.




                                         11
      We review a trial court‘s ruling on a motion to suppress by applying a
bifurcated standard of review, giving almost total deference to a trial court‘s
determination of historic facts and mixed questions of law and fact that rely upon
the credibility of a witness, but applying a de novo standard of review to pure
questions of law and mixed questions that do not depend on credibility
determinations. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011)
(citing Guzman v. State, 955 S.W.2d 85, 87–89 (Tex. Crim. App. 1997)). When a
trial court makes written findings of fact, as it did in this case, we must examine
the record in the light most favorable to the ruling and uphold those fact findings
so long as they are supported by the record. Baird v. State, 398 S.W.3d 220, 226
(Tex. Crim. App. 2013). We then proceed to a de novo determination of the legal
significance of the facts as found by the trial court. Id. We will sustain the trial
court‘s ruling if that ruling is reasonably supported by the record and is correct on
any theory of law applicable to the case. Valtierra v. State, 310 S.W.3d 442, 448-
49 (Tex. Crim. App. 2010).

      The Fourth Amendment guarantees individuals ―the right . . . to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures.‖ Gutierrez v. State, 221 S.W.3d 680, 684-85 (Tex. Crim. App. 2007); see
U.S. Const. amend. IV. The Texas Constitution similarly provides: ―The people
shall be secure in their persons, houses, papers and possessions, from all
unreasonable seizures or searches . . . .‖ Tex. Const. art. I, § 9. ―[A] warrantless
search of either person or property is considered per se unreasonable.‖ McGee v.
State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003); see also Schneckloth v.
Bustamonte, 412 U.S. 218, 219 (1973). There are certain recognized exceptions to
the warrant requirement, and it is the State‘s burden to prove that the search falls
within one of these exceptions. McGee, 105 S.W.3d at 615. Consent to search is


                                         12
one of the well-established exceptions to the constitutional warrant requirement.
Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000); see Welch v.
State, 93 S.W.3d 50, 52 (Tex. Crim. App. 2002). The test for a valid consent to
search is that the consent be voluntary, and voluntariness is a question of fact to be
determined from all the circumstances. Carmouche, 10 S.W.3d at 331.

      Appellant argues that ―[n]o authority allows the State to search property
merely because its officers have probable cause to believe a crime occurred and
evidence of that crime can be found on the property to be searched.‖ Appellant
complains that evidence of the two cell phone numbers Robles obtained by calling
his office phone after he had removed the two cell phones from appellant‘s truck
should have been suppressed. Appellant does not address his verbal or written
consent to search his vehicle.

      Appellant gave verbal permission to search his truck, saying ―you can search
my truck,‖ and Robles explained to appellant that he could withdraw his consent at
any time. Appellant also signed a Consent to Search form after Robles read and
explained it to him. The consent form stated: ―I, Richard Herod, hereby grant my
consent to Det. Robles and Det. Flores, officers of the Texas City P.D. to search
the following: vehicle . . . Including the containers and contents located therein.‖
Immediately above appellant‘s signature line, the form stated: ―I understand that I
have the right to consent to the search described above and to refuse to sign this
form. I further state that no promises, threats, or physical or mental coercion of
any kind whatsoever have been used against me to get me to consent to the above
described search or to sign this form.‖

      Appellant was present as Robles and Flores searched his truck; appellant
was present when Robles removed two cell phones from his truck and brought
them to his office. Appellant was also present in Robles‘s office when Robles used

                                          13
the cell phones to call his desk phone. Appellant did not withdraw his consent at
any time. After Robles called his desk phone, appellant asked Robles to return the
cell phones to appellant and Robles returned the phones.

      Further, the trial court made findings of fact concerning appellant‘s motion
to suppress evidence obtained from the two cell phones that were removed from
appellant‘s vehicle, in pertinent part, as follows:

      12. After explaining to the Defendant that he had the right to refuse to
      allow the Texas City police to search his vehicle, the Defendant
      provided written consent to search his vehicle. The Court finds the
      Defendant consented knowingly and voluntarily.
      13. The Defendant provided written consent to allow Texas City
      Police to search his vehicle with the understanding that the consent
      could be withdrawn at any time. The Defendant was taken to the
      vehicle during the search so that he could be present to withdraw that
      consent at any time. At no time did the Defendant withdraw his
      consent to Texas City Police Department‘s search of his vehicle.
In one of its conclusions of law, the trial court stated: ―3. The Defendant provided
lawful, voluntary written consent to Texas City Police Detective Ernest Robles to
search his vehicle and its contents. At no time did the Defendant withdraw that
voluntary consent.‖

      The record shows that the removal of the two cell phones from appellant‘s
vehicle and the call from the two cell phones to Robles‘s office phone to obtain the
cell phone numbers constituted a valid search. See Kirsch v. State, 276 S.W.3d
579, 588 (Tex. App.—Houston [1st Dist.] 2008), aff’d, 306 S.W.3d 738 (Tex.
Crim. App. 2010) (holding that trial court properly denied a motion to suppress
evidence that had been retrieved from a car‘s black box when the car owner told
police they could do whatever they needed to the vehicle to complete their
investigation and police officers removed the black box from the car because they
were unable to download the data from the black box and took the black box to a

                                           14
private crash reconstructionist who had appropriate tools to download the data
from the black box).

      Appellant does not challenge the validity of his oral and written consent to
search his vehicle and the contents therein on any grounds. Nor does appellant
challenge the scope of his consent, or argue that his consent to search his vehicle
and its contents did not include the two cell phones in his vehicle. Appellant does
not assert that the two phones were not part of the contents of the vehicle and thus
were not encompassed by his consent to search. Appellant does not contend that
he ever withdrew or limited his consent after signing the consent form.
Appellant‘s consent to the search of his truck rendered the search valid under the
Fourth Amendment. See Kirsch, 276 S.W.3d at 588-89 (citing Welch v. State, 93
S.W.3d 50, 52-53 ((Tex. Crim. App. 2002)).

      We hold that Robles‘s removal of the cell phones and his call from the two
cell phones to his office phone did not violate appellant‘s federal and state
constitutional right not to be subjected to unreasonable search and seizure. See id.
Accordingly, we overrule appellant‘s second issue.

                                    Conclusion

      We affirm the trial court‘s judgment.


                                       /s/       William J. Boyce
                                                 Justice



Panel consists of Justices Boyce, Jamison and Busby.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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