                         In the
                    Court of Appeals
            Second Appellate District of Texas
                     at Fort Worth
                   ___________________________

                        No. 02-16-00224-CR
                   ___________________________

             CARTER CAROL CERVANTEZ, Appellant

                                   V.

                       THE STATE OF TEXAS


               On Appeal from the 297th District Court
                      Tarrant County, Texas
                    Trial Court No. 1395158D


Before Walker and Pittman, JJ., and Charles Bleil, Senior Justice, Retired
              Memorandum Opinion by Justice Pittman
                          MEMORANDUM OPINION

      Carter Carol Cervantez appeals from her jury conviction for capital murder and

automatic life sentence. She raises three points on appeal: (1) the trial court erred by

denying her counsel’s motion to withdraw based on the State’s failure to comply with

the Michael Morton Act; (2) the trial court erred by admitting recorded statements of

her accomplice when he was not available for cross-examination; and (3) the trial

court erred by denying her motions to suppress. We affirm.

                                  BACKGROUND

      Cervantez does not challenge the sufficiency of the evidence to support her

conviction. Because her issues on appeal are procedural, we provide only a short

background.

      Our review of the record shows sufficient evidence to prove that Cervantez

and her boyfriend Clarence David Mallory––former employees of an American Eagle

Outfitters (AEO) store at Hulen Mall who had been suspected of stealing almost

$18,000 from the store’s safe and were subsequently fired––drove to the assistant

store manager Ashlea Harris’s apartment, hit and choked her, bound her hands and

feet with duct tape, and set fire to the apartment and her body. The evidence also

supports a reasonable inference that they stole Harris’s keys, which included the AEO

store keys, and attempted to burglarize the store again early the next morning, the day

after Black Friday sales. Fort Worth police, who had been staking out Cervantez’s

residence, followed the pair to the mall and arrested Mallory in his car outside after

                                           2
Cervantez went inside. Police could not find Cervantez inside the mall but found her

later in the laundry room at her apartment; surveillance video confirmed she had

walked the two miles home.

      The police’s investigation of the crime scene had quickly led to Cervantez and

Mallory because

      • one witness at Harris’s apartment complex saw a 2008 black Infiniti with a

      toll tag parked next to Harris’s car at 7:00 a.m. and 7:30 a.m. the morning of

      the murder;

      • a second witness who lived in the apartment below Harris’s saw a 2008 black

      Infiniti G351 leaving the apartment complex around 7:30 a.m. after hearing a

      prolonged loud scream or yell, followed by a thud, labored breathing, and the

      door slamming, from Harris’s apartment; and

      • the AEO store manager told police that Harris had been responsible for

      reporting Cervantez and Mallory as suspects in the prior theft and that

      Cervantez drove a black Infiniti.

      After a grand jury indicted Cervantez, the State waived the death penalty and

tried Cervantez before Mallory.




      1
       Cervantez drove an Infiniti G37, which a witness testified look alike.


                                          3
                                    DISCUSSION

I.    Denial of Attorney Ray’s Motion to Withdraw Was Not An Abuse of
      Discretion

      In her first point, Cervantez complains that the trial court erred by denying a

motion to withdraw by one of her trial attorneys, Bill Ray,2 which was based on the

State’s alleged delay in providing discovery items in violation of the Michael Morton

Act. According to Cervantez, “[t]his is a case of first impression . . . as to what should

happen when the State does not provide a significant percentage of its case and the

defense is compelled to review the matters provided late, and continue without the

adequate time to examine the case as a whole.” Although her argument appears to

primarily complain about the trial court’s denial of her verbal motion for continuance,

we cannot review that ruling on appeal. See Blackshear v. State, 385 S.W.3d 589, 591

(Tex. Crim. App. 2012). Thus, we will instead review whether the trial judge abused

his discretion by denying Ray’s motion to withdraw.

      A. Law Applicable to Attorney Ray’s Motion to Withdraw

      We review a trial court’s decision on a motion to withdraw for an abuse of

discretion. King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000); Johnson v. State,

352 S.W.3d 224, 227 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). The trial

court should balance the matters asserted with the potential for obstruction to the

judicial process or interference with the administration of justice. King, 29 S.W.3d at

      2
       The trial court had appointed Steve Gordon as Cervantez’s other trial counsel.


                                            4
566; Ibarra v. State, 456 S.W.3d 349, 355 (Tex. App.—Houston [14th Dist.] 2015, pet.

ref’d).

          The Michael Morton Act amended and enlarged article 39.14 of the code of

criminal procedure relating to the State’s duty to provide discovery to criminal

defendants. See Act of May 14, 2013, 83rd Leg., R.S., ch. 49, §§ 1–2, 2013 Tex. Sess.

Law Serv. 106, 106–08; Moody v. State, 551 S.W.3d 167, 171 (Tex. App.––Fort Worth

2017, no pet.). Article 38.14(a) requires the State to provide discoverable material “as

soon as practicable” upon receiving a defendant’s timely request, and subsection (j)

requires that before trial the parties must “acknowledge in writing or on the record in

open court the disclosure, receipt, and list of all documents, items, and information

provided to the defendant” in accordance with the statute. Tex. Code Crim. Proc.

Ann. art. 39.14(a), (j) (West Supp. 2018). Article 39.14 does not contain an express

remedy for the State’s delay in providing discovery items. See id. art. 39.14.

          B. Background Facts Applicable to Attorney Ray’s Motion to Withdraw

          Immediately before trial began, Attorney Ray informed the trial court in the

context of arguing a motion to suppress that the State had not made 162 discoverable

items available to the defense until less than 40 days before trial and had not made

46 or 48 of those items available to the defense until less than 30 days before trial.

Ray did not list the specific items, and the State responded by identifying some items

that had been available to the defense since 2014 and 2015. The prosecutor also told

the trial judge that the State had transitioned to a different electronic discovery system

                                            5
while the case had been pending, that the transition had been “rocky,” and that in the

past couple of months before trial––when Ray informed the State he was having

trouble accessing documents––the State was able to show him where they were

located in the system. But the prosecutor could not verify that every document had

been made accessible to the defense.

       Attorney Ray referred specifically to a GPS unit upon which he was trying to

obtain testing; he asserted that although the State had possessed the unit since January

2015, he did not know about its existence until April 15, 2016, a month before trial.

He had filed a motion to suppress any information from the GPS and any cell phone

and cell tower data that testing of the GPS unit could possibly support or contradict.

The State told the trial judge it was not intending to offer the GPS records, and the

trial judge indicated that he would suppress them anyway. But Ray stated that

depending on whether he could get testing of the GPS unit, he might be able to use

those results to support his motion to suppress the cell phone and cell tower records.3

When the trial court asked, “So you’re making a possible Brady request?” he answered

yes.

       The State responded,

              We did not have a report on the GPS analysis. The -- just so
       we’re real clear on the record as to what we are talking about, there was a
       GPS unit in the vehicle, and that was analyzed, separate and apart from

       3
           Cervantez concedes in her brief that the GPS unit ultimately failed to yield any
results.


                                              6
      the telephones. That warrant and affidavit to do that has been in
      TechShare -- ECFS . . . for the pendency of this litigation. The -- there
      was an analysis going on, but we didn’t get the report until shortly before
      the -- a little while ago, March.

             There was no need -- there was no reason why [Ray] had to wait,
      if he wanted to analyze that. All he had to do was ask. All he had to do
      was ask, and it would have been done. We had the copy made. We – we
      did not need it physically anymore -- I mean, the unit. We could have
      given him anything he asked for at any time. The only thing that we
      were slow on was actually getting our report.

             When we finally got our report, it said there’s nothing we can do.
      There is no information that we can discern from the hard drive or from
      the chip within -- that is within the system.

             ....

             [Ray’s] original concern was the fact the last sentence of the
      report essentially said more analysis is needed, or analysis is ongoing.

             I have since, in the last -- well, two days ago or yesterday, I got an
      e-mail from Detective Randolph, who was conducting that analysis, who
      had shipped -- had shipped that question out to the current owners of
      the software, and they said there is nothing that we can do, and I’ve told
      [Ray] that this morning.

      The trial judge then denied Cervantez’s pending suppression motions.

Attorney Ray responded that he was not ready to go to trial because so many

discovery items had not been provided until the 30-day period before trial. He told

the trial court that he feared he would be ineffective because he was “having trouble

keeping up with what’s downloaded and what’s not.” The trial judge pointed out that




                                           7
Ray had been working on the case “pretty much ever[] since it got filed,” and he

agreed. 4 The judge then denied Ray’s verbal motion for a continuance.

      After going off the record, the trial judge then explained on the record,

             First of all, the Court’s satisfied with the competence of both the
      Defense lawyers . . . . The Court is very familiar with their qualifications
      and their abilities, and they are very competent lawyers of their own
      right.

             Secondly, I realize everybody -- this case has a lot of information.
      Not all of it is going to be admissible or used against the Defense, and
      not all of it had been uploaded in the last 30 days. Some of it has. But
      nonetheless, I think the issues that [Ray] is talking about, for the most
      part, have been resolved in terms of DNA and in terms of the -- the
      possible introduction of any information on the 2008 Infiniti GPS.

            At this stage, I will find the Defense is not ineffective, and that
      they have had time to go over the discovery. And the only thing I’m
      going to suppress right now is the information in regards to Amazon,
      Search Warrant Number 32677, because it just flatly wasn’t complied
      with under 39.14. I don’t think it’s anybody’s fault. I think it was just an
      accident.

Ray then asked to withdraw––but Attorney Gordon did not––and the trial court

denied his motion to withdraw.

      The next day, the State filed a list of discovery items that it had provided to the

defense, with the dates it had made those items available.



      4
       The District Attorney’s office filed a sworn complaint on December 10, 2014,
and the trial court appointed Gordon to represent Cervantez that day. The clerk’s
record does not contain an order appointing Ray, but he signed a plea offer
acknowledgement in April 2015, a little under two months after a grand jury indicted
Cervantez.


                                           8
      C. Attorney Ray Was Not Ineffective

      Although Attorney Ray argued at trial that he believed he would be ineffective,

Cervantez does not raise an ineffectiveness claim on appeal.         See Smith v. State,

Nos. 14-17-00330-CR, 14-17-00331-CR, 2018 WL 3354857, at *5 (Tex. App.—

Houston [14th Dist.] July 10, 2018, pets. filed) (mem. op., not designated for

publication) (noting that although one of counsel’s stated reasons for asking to

withdraw was an ineffectiveness concern, appellant did not raise ineffectiveness on

appeal). Additionally, the record shows that Ray had been representing Cervantez for

at least a year before trial. He did not ask to withdraw until a week before trial.

Cf. Ibarra, 456 S.W.3d at 355 (“Appellant’s counsel filed a motion to withdraw less

than a week before trial. Given the proximity of the trial setting, the length of time

the case had been pending, and appellant’s failure to take steps to retain another

lawyer or submit proof of indigency, the trial court did not abuse its discretion in

denying counsel’s motion to withdraw.”). Ray and Gordon participated in a two-week

trial at which part of their strategy was to show that the police could not definitively

place Cervantez at Harris’s apartment simply because she drove a black Infiniti. Ray

filed and signed four motions to suppress, two of which expressly asserted this

defensive theory. He also challenged all of the search warrant evidence based on this

defensive theory––including any potential GPS results, cell phone and cell tower

records, DNA and other items seized from Cervantez’s car, Cervantez’s bank records,

and photographs.

                                           9
      Moreover, we cannot say that the trial court abused its discretion by denying

the motion to withdraw when Ray was not able to identify the effect of the delay of

obtaining any particular item, other than the GPS––which he could not have tested

and which the trial court would have suppressed. We hold that the trial court did not

abuse its discretion by denying Ray’s motion to withdraw, which was, in effect,

another attempt to obtain a continuance. We overrule Cervantez’s first point.

II.   Admission of Recording with Mallory’s Voice in Background Not Error

      In her second point, Cervantez contends that the trial court erred by admitting

part of the audio of a recording from Mallory’s cell phone in which Mallory can be

heard talking in the background with Cervantez about where AEO employees park at

the mall. According to Cervantez, the trial court’s admission of the audio of Mallory’s

comments violated her Confrontation Clause rights because she could not call him as

a witness or cross-examine him about what he said. See U.S. Const. amends. VI, XIV.

      A. Cervantez Preserved Her Objection to Admission of the Recording

      The State contends that Cervantez’s objection to its playing the audio of the

recording for the jury was untimely and, thus, that she did not preserve her complaint.

An objection must be made as soon as the basis for the objection becomes apparent.

Tex. R. Evid. 103(a)(1); London v. State, 490 S.W.3d 503, 507 (Tex. Crim. App. 2016).

Ordinarily, this is before the trial court admits evidence.     See Ethington v. State,

819 S.W.2d 854, 858 (Tex. Crim. App. 1991). But if the grounds for the objection



                                          10
were not present until after the evidence was admitted, an objection after admission is

timely. Lackey v. State, 364 S.W.3d 837, 843–44 (Tex. Crim. App. 2012).

      When the State initially offered the cell phone recording, State’s Exhibit 372,

the trial judge asked if Cervantez had any objection, and counsel responded, “Not at

this time.” The trial court then admitted the exhibit “for all purposes.” But when the

State published the video to the jury, it did not play the audio portion on which

Mallory’s statements can be heard. When the State attempted to replay the video for

the jury along with the audio from both Mallory and Cervantez, Cervantez objected

because Mallory was not subject to cross-examination about what he said. Although

the trial judge initially stated that Cervantez’s objection was untimely, he entertained

argument on the objection from both parties.

      Ultimately, the trial court ruled that the jury could hear Mallory’s statements on

the video because they are nontestimonial, overruled Cervantez’s objection, and

allowed the State to publish the video and audio in their entirety to the jury.

      Although Cervantez did not object when the trial court admitted the exhibit

“for all purposes,” the State did not initially publish the audio of Mallory’s voice.

Cervantez immediately objected when the State asked to do so. Because it is unclear

whether the State intended to publish the audio of Mallory’s statements at the time

the evidence was first admitted or whether that ground for objection was not

apparent to Cervantez until the State specifically requested to publish it––and because



                                           11
the trial court considered and ruled on the merits of the specific complaint––we will

review this point. See id.

       B. Cervantez’s Sixth Amendment Rights Were Not Violated

       At trial and on appeal, Cervantez argues that the publication of Mallory’s part

of the audio in State’s Exhibit 372 violated her Sixth Amendment right to

confrontation.    She relies on cases that involved the admission of accomplice

confessions to law enforcement that implicated the defendant. See Gray v. Maryland,

523 U.S. 185, 196–97, 118 S. Ct. 1151, 1157 (1998); Richardson v. Marsh, 481 U.S. 200,

208–09, 107 S. Ct. 1702, 1707–08 (1987); Bruton v. United States, 391 U.S. 123, 135–36,

88 S. Ct. 1620, 1627–28 (1968); Harper v. United States, 527 F.3d 396, 403 (5th Cir.

2008); U.S. v. Garcia, 836 F.2d 385, 390 (8th Cir. 1987); Clark v. Maggio, 737 F.2d 471,

477–78 (5th Cir. 1984), cert. denied, 470 U.S. 1055 (1985). But those holdings are

inapposite because the admitted statements in those cases were all confessions to law

enforcement and thus testimonial in nature; the Sixth Amendment does not exclude

nontestimonial statements by an unavailable witness. See Michigan v. Bryant, 562 U.S.

344, 354, 131 S. Ct. 1143, 1153 (2011) (discussing Crawford v. Washington, 541 U.S. 36,

68, 124 S. Ct. 1354, 1374 (2004)); Sanchez v. State, 354 S.W.3d 476, 485 (Tex. Crim.

App. 2011).

       Cervantez has not analyzed whether Mallory’s statements on the video are

testimonial, but they clearly are not. Testimonial statements include those “made

under circumstances which would lead an objective witness reasonably to believe that

                                          12
the statement would be available for use at a later trial.” Crawford, 541 U.S. at 52,

124 S. Ct. at 1364; Burch v. State, 401 S.W.3d 634, 636 (Tex. Crim. App. 2013) (“While

the exact contours of what is testimonial continue to be defined by the courts, such

statements are formal and similar to trial testimony.”). Generally, a co-conspirator’s

statements made in the furtherance of the conspiracy are nontestimonial. See King v.

State, 189 S.W.3d 347, 359 (Tex. App––Fort Worth 2006, no pet.) (citing Crawford,

541 U.S. at 56, 124 S. Ct. at 1367). Here, the video, when viewed in context of the

other cell phone evidence (including text messages), does not show that Mallory had a

reasonable belief that it would be used at trial; instead, it is further documentation of

Cervantez’s and Mallory’s orchestrated plan to break into and steal cash in the safe of

the AEO store, statements they could hardly have desired or anticipated would be

admitted in court had they effected their plan. Thus, we hold that the trial court’s

admission of the entirety of State’s Exhibit 372 did not violate Cervantez’s

Confrontation Clause rights. 5

      We overrule Cervantez’s second point.



      5
       Although Cervantez states in her brief––without citing any authority––that
Mallory’s statements on the audio are not “the statement[s] of a co-conspirator” for
purposes of admissibility under rule 801(e)(2)(E), she provides no authority for this
statement. Tex. R. Evid. 801(e)(2)(E). When the trial judge asked whether Mallory’s
statements should be admissible as a statement of a co-conspirator, her counsel
conceded, “I don’t see how it couldn’t be.” Regardless, she does not include
argument or citations in her brief for the assertion that Mallory’s statements were
inadmissible under general hearsay rules. See Tex. R. App. P. 38.1(i).


                                           13
III.   Trial Court Did Not Abuse Discretion by Denying Motions to Suppress

       In her third point, Cervantez challenges the trial court’s denial of her motions

to suppress that challenged all of the evidence obtained pursuant to nine search

warrants and accompanying affidavits because, on their faces, they fail to show that

the black Infiniti witnesses saw at the apartment complex was Cervantez’s black

Infiniti and therefore fail to show probable cause. For the reasons set forth below, we

disagree.

       A. Law Applicable to Our Review of the Search Warrants

       We uphold a magistrate’s probable cause determination if the magistrate had a

substantial basis for concluding that a search would uncover evidence of wrongdoing.

Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 2331 (1983); Swearingen v. State,

143 S.W.3d 808, 810 (Tex. Crim. App. 2004).           In assessing the sufficiency of a

supporting affidavit for an arrest or a search warrant, we review only the four corners

of the affidavit, Jones v. State, 833 S.W.2d 118, 123 (Tex. Crim. App. 1992), cert. denied,

507 U.S. 921 (1993), and interpret it in a common sense and realistic manner,

recognizing that the magistrate was permitted to draw reasonable inferences, Davis v.

State, 202 S.W.3d 149, 154 (Tex. Crim. App. 2006).

       Probable cause exists when the facts and circumstances shown in the affidavit

would warrant someone of reasonable caution to believe that the items to be seized

were in the stated place. State v. Elrod, 538 S.W.3d 551, 556 (Tex. Crim. App. 2017).

In reviewing a magistrate’s probable cause determination, we need not “delve into all

                                            14
of the facts that were omitted by the affiant, facts that could have been included in the

affidavit, or contrary inferences that could have been made by the magistrate”;

instead, “[t]he only issue is whether the facts that actually were in the affidavit,

combined with all reasonable inferences that might flow from those facts, are

sufficient to establish a ‘fair probability’” that evidence would be found in the

specified location. See Rodriguez v. State, 232 S.W.3d 55, 64 (Tex. Crim. App. 2007).

      B. Facts Applicable to the Nine Search Warrants

      Cervantez challenges the trial court’s denial of her motions to suppress all of

the evidence obtained pursuant to nine warrants and accompanying affidavits6 on one

ground: on their faces, they did not sufficiently connect the black Infiniti witnesses

saw at Harris’s apartment complex to Cervantez’s black Infiniti. We can classify the

warrants into two groups: (1) the capital murder arrest warrant, 7 warrant to obtain

Cervantez’s DNA, and the two warrants to search Cervantez’s apartment (the First


      6
        In her briefing, Cervantez challenges the evidence obtained from all of the
twenty-two warrants included in Defendant’s Exhibit 11, which the trial court
admitted for record purposes only. But the trial court determined that she did not
have standing to challenge thirteen of them. Although Cervantez contends that the
trial court was wrong about standing as to two of these warrants, she does not provide
argument or authority in support of her contention. See Tex. R. App. P. 38.1(i).
Nevertheless, even if the trial court erred by determining that Cervantez lacked
standing to challenge evidence obtained pursuant to those two warrants, the same
merits analysis that we apply to the other nine would apply to those two.
      7
       The trial court appears to have misread the number for Cervantez’s arrest
warrant in determining standing; however, the facts in support of both Cervantez’s
and Mallory’s arrest warrants are substantially the same.


                                           15
Group); and (2) the warrants to search Cervantez’s cell phone, car, and GPS (the

Second Group).

             (1)    The First Group of Search Warrants

      The affidavits in support of the warrants in the First Group are more detailed

than those in the Second Group and contain the following pertinent facts:

      • Harris worked at the AEO store at Hulen Mall;

      • several months before the murder, Harris had reported Cervantez and

      Mallory as suspects in the theft of “a large amount” of currency from the store;

      • after Harris made the report, Cervantez’s and Mallory’s employment was

      terminated;

      • Steve Lee, a neighbor of Harris’s, saw a black Infiniti with a toll tag parked

      outside the apartment complex next to Harris’s truck around 7:20 a.m. the

      morning of the murder;

      • another neighbor, Patrick Sweet, who lived in the apartment below Harris’s,

      heard a loud thump and screaming around 7:30 a.m. that morning; when he

      looked out his window, he saw a black Infiniti driving away from the complex;

      • Cervantez owned a 2008 black Infiniti;

      • the day after the murder, police followed Cervantez and Mallory in her black

      Infiniti to Hulen Mall, where Mallory dropped off Cervantez, who went inside

      but never came back out;



                                         16
      • a Fort Worth police officer found Cervantez walking in her apartment

      complex about three hours later; and

      • a Fort Worth police officer took a picture of Cervantez’s Infiniti and showed

      it to Lee, who said it looked the same as the car he saw parked by Harris’s truck

      the morning of the murder.

             (2)     The Second Group of Search Warrants

      The affidavits supporting the warrants in the Second Group contain

substantially similar facts but do not state that Lee identified a photograph of

Cervantez’s Infiniti. Instead, they contain the following:

      • shortly before the fire department and police arrived at Harris’s apartment on

      the morning of the murder, two witnesses saw a black Infiniti G35 with a toll

      tag leave the parking spot next to Harris’s truck;

      • Cervantez and Mallory had worked with Harris at the AEO store, Harris had

      recently reported them both as suspects in a theft of $18,000 from the store,

      and they were both terminated from employment;

      • Fort Worth police learned that Cervantez had a 2008 black Infiniti G37 and

      were able to verify Cervantez’s license plate number and address;

      • police followed Cervantez and Mallory in the black Infiniti to Hulen Mall,

      where they parked the Infiniti in different areas of the lot and then Cervantez

      went inside;

      • the mall was closed and their behavior was suspicious; and

                                           17
      • when police contacted Mallory in the parking lot, he told them Cervantez was

      a manager of Aeropostale and was going inside to do paperwork, but an officer

      who talked to a person inside the mall discovered Cervantez was not an

      Aeropostale employee.

      C. The Affidavits Are Sufficient to Support the Issuance of the Nine
         Search Warrants

      We hold that these facts are sufficient to show a substantial basis for

concluding that the searches would uncover evidence of wrongdoing.

      For the First Group affidavits, an eyewitness identified Cervantez’s car as

looking the same as the car he saw that morning parked at the apartment complex by

Harris’s truck close to the time firefighters found her bound and burned body.

Together with the information that Harris, an employee of AEO, had recently

reported both Cervantez and Mallory as suspects in a theft from the same store, that

they were both terminated from employment thereafter, and that Cervantez owned a

black Infiniti, these facts and circumstances would warrant a person of reasonable

caution to conclude that the police would find evidence of the murder in Cervantez’s

apartment and from her DNA. See Black v. State, No. 08-12-00338-CR, 2015 WL

5604388, at *5–9 (Tex. App.––El Paso Sept. 23, 2015, pet. ref’d) (not designated for

publication); Ford v. State, 444 S.W.3d 171, 193 (Tex. App.––San Antonio 2014), aff’d,

477 S.W.3d 321 (Tex. Crim. App. 2015), cert. denied, 136 S. Ct. 2380 (2016); cf. Williams

v. State, No. 01-14-00165-CR, 2015 WL 1135715, at *5–6 (Tex. App.––Houston [1st


                                           18
Dist.] Mar. 12, 2015, pet. ref’d) (mem. op., not designated for publication) (holding

that search warrant for appellant’s cell phone to find evidence of smash-and-grab

robbery of jewelry store employees was supported by probable cause when facts

showed confidential informant obtained watches stolen in the robbery from

appellant). Although Cervantez argues that no one saw her or a car specifically

known to belong to her at the crime scene, the police are not required to prove to a

magistrate that a suspect was actually present at a crime scene before obtaining a

warrant to look for evidence that could place that suspect at the crime scene. See

generally Gates, 462 U.S. at 231–32, 103 S. Ct. at 2328–29 (quoting United States v. Cortez,

449 U.S. 411, 418, 101 S. Ct. 690, 695 (1981), for the proposition that probable cause

“does not deal with hard certainties, but with probabilities”); cf. Lewis v. State, Nos. 01-

09-00530-CR, 01-09-00531-CR, 2010 WL 3450246, at *3 (Tex. App.––Houston [1st

Dist.] Aug. 31, 2010, no pet.) (mem. op., not designated for publication) (“Rangel was

not required to confirm that the suspected joint actually contained marijuana before

he could have probable cause to arrest appellant for possession of marijuana.”).

       Although the affidavits supporting the warrants in the Second Group do not

include the information that Lee identified a photograph of Cervantez’s car, they are

nevertheless sufficient to support the judges’ probable cause determinations. We are

not to focus on what facts are not included in the affidavit. See Rodriguez, 232 S.W.3d

at 62. We hold that the facts set forth in the Second Group affidavits are sufficient to



                                            19
establish a fair probability that evidence would be found in those locations. See Black,

2015 WL 5604388, at *5–9; Ford, 444 S.W.3d at 193.

      We overrule Cervantez’s third point.

                                  CONCLUSION

      Having overruled all three of Cervantez’s points, we affirm the trial court’s

judgment.



                                                      /s/ Mark T. Pittman
                                                      Mark T. Pittman
                                                      Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: October 25, 2018




                                          20
