Antee v. State

• Decision Date: 26 May 2022
• Docket Number: 14-20-00223-CR,14-20-00224-CR,14-20-00225-CR
• Parties: JOSHUA ANTEE, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

JOSHUA ANTEE, Appellant v. THE STATE OF TEXAS, Appellee

Nos. 14-20-00223-CR, 14-20-00224-CR, 14-20-00225-CR

Court of Appeals of Texas, Fourteenth District

May 26, 2022

Do Not Publish - Tex.R.App.P. 47.2(b)

On Appeal from the 182nd District Court Harris County, Texas Trial Court Cause Nos. 1551742, 1551743, and 1551744

Panel consists of Justices Jewell, Spain, and Wilson

MEMORANDUM MAJORITY OPINION

Randy Wilson Justice

Appellant Joshua Antee appeals his three convictions for possession of child pornography. In his sole issue, appellant complains that trial court reversibly erred when it denied his motion to suppress evidence obtained from his cell phone. Guided by recent binding precedent from this court, we conclude that the trial court did not err in denying the motion to suppress. We modify the judgments to reflect that appellant pleaded not guilty and affirm them as modified. Tex.R.App.P. 43.2(b).

I. Factual and Procedural Background

On August 7, 2016, undercover narcotics officer, Luis Valle II with the Houston Police Department (HPD), after having arrested and filed charges against appellant for "Possession of a Controlled Substance with Intent to Distribute/Deliver", ^[1] secured a search warrant for a cell phone discovered in appellant's possession when he was arrested on July 27, 2016.

In Valle's search-warrant affidavit, he describes in detail his interactions with appellant leading to appellant's arrest. Valle's affidavit sets out how he engaged with appellant after discovering appellant's chatroom post advertising the sale of "powder cocaine." Valle's affidavit states:

Officer Valle made contact with [appellant] through the on-line chatroom and asked [appellant] how much was two "8-balls" of powder cocaine (street slang for two 3.5 gram baggies of powder cocaine). [Appellant] replied with a price of $200. Officer Valle then exchanged phone numbers with [appellant] and continued their conversation via text messaging. The number that [appellant] provided Officer Valle was [713-XXX-XXXX]. Officer Valle made contact with [appellant] via text messaging which [appellant] identified himself as "Carlito". Officer Valle informed [appellant] that they could meet near Gulf Freeway and Wayside at a Walmart parking lot. [Appellant] stated he would be coming from the north side of town and it would take him some time to get to the Gulf Freeway and Wayside. Officer Valle and [appellant] continued the text messaging conversation as [appellant] was asking if Officer Valle used powder cocaine or sold it, then [appellant] wanted to know if Officer Valle could provide any Heroin during their meeting.

[Appellant] repeatedly asked Officer Valle if he used cocaine and that he would let Officer Valle "sample" the product during their meeting. Then [appellant] provided the following text message "ok cool. Don't take no offense, I say this to everybody the first time we meeting. If you try to rob me, you gonna get shot, if you a cop, you gonna get shot at least twice. This is business, so I expect you to be cool, if not, we will have problems. I'm looking for good customers. If you cool with all that, just reply cool, if not, lose my number".

The affidavit then explains how Officer Valle, with the assistance of his narcotics team, set up and carried out the drug-buy bust of appellant on July 27, 2016. It states that appellant described to Officer Valle in advance the vehicle he was driving, that after appellant arrived at the final agreed-upon location police detained appellant, and that members of the narcotics team located in plain view on the driver side floor-board were two plastic baggies with a white powdery substance later determined to be cocaine. Valle's affidavit then explains the apprehension of appellant's phone:

Officer Valle then instructed the units to listen for a cell phone to ring as Officer Valle called the number that was provided to him from Defendant Antee. The marked units advised Officer Valle that a cell phone was ringing and that this cell phone was in Defendant Antee's possession. Officer Valle had the marked units verify the number on Defendant Antee's phone and it matched that of Officer Valle's City of Houston cell phone number.

Based on Valle's affidavit a Harris County magistrate issued the warrant for the search of the cell phone being stored in HPD's property room. Tracking language in Valle's affidavit, the warrant permitted search on the phone for:

1. Any photographs and videos, 2. Any text or multimedia messages (SMS and MMS). 3. Emails 4. Internet browsing history, GPS history

5. Any contact information, including but not limited to email addresses, physical addresses, mailing addresses, phone numbers stored in the phones or computers,

6. Documents and evidence showing the identity of ownership and identity of the users of those described items.

7. Computer files or fragments of files, photographs. videos, CD-ROM's, CD's, DVD's, thumb drives, S.D. Cards, flash drives or any other equipment attached or embedded in the above described device that can be used to store electronic data.

On November 7, 2016, Officer Douglas Ertons, an HPD officer assigned to the Houston Forensic Science Center began executing the cell phone search. As he recalled at trial, before copying the contents of the phone, when Ertons began previewing the contents of the cell phone data, he noticed what appeared to be child pornography. Ertons discontinued his search and contacted Valle to advise him that an additional search warrant was necessary for the search of child pornography. When the second search warrant was executed, the police confirmed the contents of the phone contained child pornography. This spurred another warrant, for appellant's arrest and for the search of his home.

Appellant was charged by three indictments for possession of child pornography. Under each case, appellant filed global motions to suppress his arrest, evidence, and statements seized or obtained in violation of his rights under the United States and Texas Constitutions and the Code of Criminal Procedure. After the cases were consolidated for trial, appellant filed a second motion to suppress asserting lack of probable cause to search his cell phone following its seizure on July 27, 2016, and in support of suppression under Franks v. Delaware, asserting Officer Valle's affidavit contained false or misleading statements. 438 U.S. 154 (1978). The court heard the suppression motion at trial.

Appellant waived his right to jury trial and pleaded "not guilty."^[2] The first two days of appellant's consolidated bench trial comprised of testimony, argument, and the court's ruling on appellant's motion to suppress. After the trial court denied appellant's motion to suppress, the guilt-innocence phase of trial proceeded with the admission of evidence discovered on appellant's cell phone. The trial judge found appellant guilty in each of the three cases and sentenced him to imprisonment for 8 years for each offense, to run concurrently.

II. Motion to Suppress

Appellant challenges the trial court's ruling on his motion to suppress cell phone evidence on the sole ground that the initial search warrant was impermissibly overbroad, thus tainting evidence admitted at trial obtained by the State under subsequent search warrants. Our resolution of this issue is guided by this court's holding in Diaz v. State, a case recently affirmed by the Court of Criminal Appeals. 604 S.W.3d 595, 603 (Tex. App.-Houston [14th Dist] 2020), affd, 632 S.W.3d 889 (Tex. Crim. App. 2021).

When reviewing a magistrate's decision to issue a warrant, appellate courts apply a highly deferential standard of review because of the constitutional preference for searches conducted pursuant to a warrant over warrantless searches. State v. McLain, 337 S.W.3d 268, 271-72 (Tex. Crim. App. 2011). When ruling on a motion to suppress evidence obtained pursuant to a search warrant, a trial court is limited to the four corners of the warrant and affidavit supporting the warrant. Id. at 271. In turn, the reviewing court's determination cannot be based on facts not contained within the four corners of the supporting affidavit. Diaz v. State, 632 S.W.3d 889, 894 (Tex. Crim. App. 2021)(affirming the court of appeals judgment after first identifying supporting evidence within the four corners of the affidavit for a proposition the court of appeals had only found evidentiary support for in testimony at the suppression hearing). The affidavit is interpreted in a nontechnical, commonsense manner drawing reasonable inferences solely from the facts and circumstances contained within the four corners of the affidavit. See State v. Elrod, 538 S.W.3d 551, 554 (Tex. Crim. App. 2017); Bonds v. State, 403 S.W.3d 867, 873 (Tex. Crim. App. 2013). Although a magistrate may not baselessly presume facts that the affidavit does not support, he or she is permitted to make reasonable inferences from the facts recited in the affidavit. Foreman v. State, 613 S.W.3d 160, 164 (Tex. Crim. App. 2020), cert. denied, 141 S.Ct. 2632, 209 L.Ed.2d 757 (2021). Probable cause is a flexible and non-demanding standard, and as long as the magistrate had a substantial basis for concluding that probable cause existed, we will uphold the magistrate's probable cause determination. Diaz, 604 S.W.3d at 603).

The average cell phone, capable of storing large volumes of personal data, performing an array of functions, used in multiple spheres of an individual's life, has gained special protection in the search-and-seizure jurisprudence of federal and state courts. See State v. Granville 423 S.W.3d 399, 408 (Tex. Crim. App. 2014); see also Riley v. California, 573 U.S. 373, 386, 134 S.Ct. 2473, **, 189 L.Ed.2d 430, ** (2014). Our court...