Gonzalez v. State

• Decision Date: 29 July 2020
• Docket Number: No. 04-19-00226-CR,04-19-00226-CR
• Parties: José Trinidad GONZALEZ, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

608 S.W.3d 98

José Trinidad GONZALEZ, Appellant

v.The STATE of Texas, Appellee

No. 04-19-00226-CR

Court of Appeals of Texas, San Antonio.

Delivered and Filed: July 29, 2020

Discretionary Review Refused November 18, 2020

Barry P. Hitchings, Hitchings & Pollock, San Antonio, TX, for Appellant.

Jay Brandon, Assistant District Attorney, San Antonio, TX, for Appellee.

Sitting: Sandee Bryan Marion, Chief Justice, Patricia O. Alvarez, Justice, Liza A. Rodriguez, Justice

Opinion by: Patricia O. Alvarez, Justice

José Trinidad Gonzalez appeals his convictions for sex offenses against a minor and failure to register a new address as a convicted sex offender. He raises three issues: (1) whether police obtained video evidence in violation of article 38.23 and the Fourth Amendment; (2) whether police elicited a tainted admission from Gonzalez by confronting him with the video evidence; and (3) whether the case detective's testimony caused incurable prejudice, thereby necessitating a new trial. We affirm the trial court's judgment.

BACKGROUND

Gonzalez is married to the victim's mother and was living with her at the time of the investigation in this case. The victim, D, was six years old. She did not live with Gonzalez and her mother, but she frequently visited them. When D visited, Gonzalez allowed her to play games on his iPad if she asked.

Although the iPad was passcode-protected, Gonzalez shared the passcode with his wife (D's mother), who believed she had authority or permission to use the iPad. Gonzalez's wife admitted, however, that she had only used the device a couple of times while Gonzalez was present.

One night, after Gonzalez went to bed and left the iPad with D to play games, Gonzalez's wife looked through the device for signs of Gonzalez's infidelity. In the trash folder, she found pornographic videos of Gonzalez with D. She immediately took the iPad to a police substation.

At the substation, an officer spoke with Gonzalez's wife, who described the situation. Gonzalez's wife showed the officer the videos on the iPad, and the officer's supervisor also watched the videos. Based on their observations, the officers decided to arrest Gonzalez.

At the scene of Gonzalez's arrest, a night detective, who handled the investigation before the case detective was assigned to it, also viewed the iPad videos with Gonzalez's wife nearby. The night detective recalled the videos being open without needing to enter the passcode.

After the arrest, the night detective interviewed Gonzalez at the police station and confronted him with the video evidence. Gonzalez stated that he made the videos to get back at his wife for cheating. He also stated he was not surprised that the videos had been discovered since he allowed his wife and D to use the iPad.

The next day, the assigned case detective received Gonzalez's case. Upon review, he applied for a warrant to search Gonzalez's iPad because he learned that the iPad had multiple users and that ownership and control of the iPad were in question. As a result, the case detective decided it was more procedurally prudent to rely on a warrant rather than consent. In the affidavit, the case detective only included information from the wife's report and did not refer to the results discovered by the officers viewing the iPad videos. After a judge issued a warrant, the case detective had a technician forensically download the contents of the iPad.

Before trial, Gonzalez moved to suppress the evidence against him; however, his motion was denied. Gonzalez also moved to prohibit the State from presenting extraneous offense evidence intended to prove conduct in conformity with character. The State agreed to exclude character-conformity evidence; however, the State objected to prohibiting all extraneous offense evidence. The judge hearing the pretrial motions instructed the parties to seek the trial judge's permission before eliciting any testimony regarding extraneous offenses.

During the case detective's trial testimony, Gonzalez renewed his motion to suppress, and the trial court declined to revisit the pretrial ruling. At the same time, the State mentioned that the night detective would present a video of Gonzalez's interview, in which Gonzalez admitted to possessing pornography involving other children between the ages of ten and twelve. Gonzalez argued the jury should not be allowed to hear the extraneous offense evidence because it would be unduly prejudicial. The State argued that the evidence was relevant to intent. The trial judge indicated she would rule on the motion before the night detective testified, and trial resumed.

During the ensuing examination, the case detective mentioned the iPad contained videos of naked children. Gonzalez objected to the testimony because of his pending motion and asked for a jury instruction to disregard. The trial court sustained the objection and directed the jury to disregard. The trial court denied a motion for mistrial.

During the night detective's testimony, he referred to the iPad containing images of naked children between the ages of 10 and 12. Gonzalez did not object to this testimony. In addition, the record contains no indication that the trial court ever ruled on Gonzalez's motion to exclude the extraneous offense evidence.

PARTIES’ ARGUMENTS

Gonzalez argues his wife had no authority to inspect his iPad files or to deliver his iPad to law enforcement officers. Accordingly, Gonzalez contends that officers had no authority to view the videos on the iPad without a warrant. Because officers viewed the videos without a warrant, Gonzalez asserts the evidence should have been suppressed. Furthermore, because the night detective confronted Gonzalez with the iPad videos during his interview, Gonzalez also contends his admission during the interview should have been suppressed. Although police obtained a warrant before downloading the contents of the iPad, Gonzalez argues the warrant was tainted because the case detective did not disclose in the warrant application that officers viewed the iPad videos. Finally, Gonzalez argues that the trial court should have granted his motion for mistrial after the case detective testified that the iPad contained videos of naked children, which he contends the trial court excluded.

The State argues Gonzalez's wife acted as a private citizen when she discovered illicit videos on Gonzalez's iPad and that her discovery did not result in a violation of Gonzalez's Fourth Amendment rights. The State also argues that the officers’ viewing of the videos was either not a search, or officers conducted a reasonable search based on Gonzalez's wife's apparent authority. The State further argues that Miranda warnings given at the time of Gonzalez's interview and the warrant obtained by the case detective before the forensic download of the iPad attenuated any potentially illegal police action. Regarding the motion for mistrial, the State argues that Gonzalez waived his argument when he failed to object to other testimony regarding child pornography on his iPad.

OFFICERS’ VIEWING OF GONZALEZ'S IPAD

We first address Gonzalez's contention that the trial court erred in denying his motion to suppress.

A. Standard of Review

Suppression issues often raise mixed questions of law and fact. See Loserth v. State , 963 S.W.2d 770, 772 (Tex. Crim. App. 1998) (citing Guzman v. State , 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) ). We review de novo issues of pure law and the application of the law to the facts of the case, while deferring to the trial court's factual determinations. Id. ; see also State v. Ruiz , 577 S.W.3d 543, 545 (Tex. Crim. App. 2019).

B. Applicable Law

1. Fourth Amendment Protection of Tablet Devices

The Fourth Amendment protects individuals against unreasonable searches and seizures by governmental agents. U.S. CONST. amend. IV ; State v. Rodriguez , 529 S.W.3d 81, 87 (Tex. App.—Eastland 2015), aff'd , 521 S.W.3d 1 (Tex. Crim. App. 2017). Generally, officers must obtain a warrant before they can examine an individual's private property. See Rodriguez , 529 S.W.3d at 87 ; see also Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). In the past, a violation of the right against unreasonable search and seizure was a matter of trespass, but Katz established that individuals may be protected if they demonstrate an expectation of privacy. United States v. Jones , 565 U.S. 400, 407–08, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) ; Katz , 389 U.S. at 353, 88 S.Ct. 507 ; Sims v. State , 569 S.W.3d 634, 643 (Tex. Crim. App. 2019). This expectation must be something that society is willing to recognize as reasonable. Sims , 569 S.W.3d at 643 ; Rodriguez , 529 S.W.3d at 87.

Tablet devices are included in those items that society now expects to be private, especially when they are passcode-protected. See Thomas v. State , 586 S.W.3d 413, 419 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd) (smart phones); Morales v. State , No. 06-15-00125-CR, 2016 WL 350622, at *4 (Tex. App.—Texarkana Jan. 29, 2016, no pet.) (mem. op., not designated for publication) (citing Riley v. California , 573 U.S. 373, 394–95, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014) ) (iPad). Passcodes effectively exclude others from access and demonstrate a clear expectation of privacy. See Grant v. State , 531 S.W.3d 898, 901 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd) ; see also Oseguera-Viera v. State , 592 S.W.3d 960, 965 (Tex. App.—Houston [1st Dist.] 2019, pet. ref'd). But when an individual shares access, he may inadvertently confer authority to consent on someone besides himself. See Thomas , 586 S.W.3d at 422 ; see also Baird v. State , 398 S.W.3d 220, 230 (Tex. Crim. App. 2013). He may also unwittingly vitiate his expectation of privacy. See United States v. Barth , 26 F. Supp. 2d 929, 937 (W.D. Tex. 1998) ; State v. Rodriguez , 521 S.W.3d 1, 11 (Tex. Crim. App. 2017) ; Brackens v. State , 312 S.W.3d 831, 837 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd).

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