Roberts v. State
| Decision Date | 09 March 2018 |
| Docket Number | No. 07-16-00165-CR,No. 07-16-00166-CR,07-16-00165-CR,07-16-00166-CR |
| Parties | COLEMAN ROBERTS, APPELLANT v. THE STATE OF TEXAS, APPELLEE |
| Court | Texas Court of Appeals |
On Appeal from the 371st District Court Tarrant County, Texas
Honorable Mollee Westfall, Presiding
MEMORANDUM OPINIONBefore QUINN, CJ., and PIRTLE, and PARKER, JJ.
Pursuant to a negotiated plea agreement, Appellant, Coleman Roberts, entered a plea of guilty to aggravated sexual assault, with a deadly weapon, in Cause Number 1407259D1 and felon in possession of a firearm in Cause Number 1435525R.2 Pursuant to that plea agreement, the trial court sentenced him to serve twenty years confinement in Number 1407259D, with a deadly-weapon finding, and five years confinement in Number 1435525R, with the sentences being served concurrently and with Appellant retaining the right to appeal the trial court's prior ruling on any written motion. On appeal, by four issues, Appellant asserts the trial court erred by denying his motion to suppress certain evidence obtained pursuant to a search warrant authorizing the search and seizure of his cell phone.3 Specifically, he contends the warrant failed to describe the items to be seized with sufficient particularity to satisfy the requirements of the Fourth Amendment of the United States Constitution (issue one), Article I, section 9 of the Texas Constitution (issue two), and article 18.01(d) of the Texas Code of Criminal Procedure (issue three). He further contends that, because the evidence discovered pursuant to that search was the result of an improper search and seizure, the evidence was inadmissible under article 38.23(a) of the Texas Code of Criminal Procedure (issue four). We affirm.
BACKGROUND
In May 2015, a five-count indictment was filed in Number 1407259D alleging that on or about March 15, 2015, Appellant intentionally or knowingly performed various sexual acts on K.V., a child younger than seventeen years of age (counts one through four) and did intentionally or knowingly threaten her with imminent bodily injury through the use of a deadly weapon, to-wit: a firearm (count five).4 Counts one and two of the indictment also alleged that "by acts or words [Appellant] placed [K.V.] in fear that death or serious bodily injury would be imminently inflicted on [K.V.] and [Appellant] by acts or words occurring in the presence of [K.V.] threatened to cause the death of or serious bodily injury to [K.V.]".
In November 2015, an indictment was filed in Number 1435525R alleging that on or about March 15, 2015, Appellant intentionally or knowingly possessed a firearm and prior to said possession, he had been convicted of the felony offense of burglary of a building in July 2012, which was within five years of his release from confinement. This indictment also contained notice of a deadly-weapon finding; however, the State subsequently waived that allegation.
Prior to his plea, Appellant filed a motion to suppress certain evidence in each case. Specifically, he sought to suppress all evidence recovered from his cell phone,5 including but not limited to videos, photographs, text messages, chat messages, social media messaging, call logs, and other evidence. He also sought to suppress evidencerecovered pursuant to another search warrant issued for his car (wherein the cell phone was recovered).
In November 2015, the trial court held a hearing on Appellant's suppression motions. At that hearing, Appellant's counsel represented that he was not proceeding on the motion to suppress evidence obtained pursuant to the search warrant issued concerning his car.6
SEARCH WARRANT AND AFFIDAVIT
The search warrant in question, Warrant Number 12-5-0560-15, sought permission to "search for, seize, [and] conduct a forensic analysis" of Appellant's cell phone. The warrant did not otherwise limit the nature and scope of the search to be conducted, nor did the "return and inventory" specify any electronic information obtained as a result of the forensic analysis conducted.
The attached affidavit in support of the warrant was sworn to and signed by Detective J. E. Chalifoux. In his affidavit, Detective Chalifoux stated that he was contacted by officers concerning a shooting involving a sixteen-year old girl named K.V., who told officers that Appellant had raped her. K.V. also reported to the officers that she had shot Appellant with his own gun. K.V.'s interview was conducted on the day of the alleged offense and on the following day.
During the interviews, as stated in the affidavit supporting issuance of the warrant in question, K.V. indicated that she met Appellant in January 2015, when he contactedher through Facebook. On March 15, 2015, Appellant called her on his cell phone at approximately 4:00 a.m. and invited her to go to a club with him. She climbed out her bedroom window and met Appellant. They drove to a club where they danced and drank alcoholic beverages. After they left the club, Appellant forced her to perform a sex act. He then drove her to his residence where he hit her face and body with his closed fist when she rebuffed his additional sexual advances. He subsequently took her clothing off and choked her until she passed out. After Appellant forced her to have sexual intercourse with him, he told her to get dressed. They then went out to his car where he pointed a gun to her head in an attempt to force her to perform yet another sex act. Fearful for her life, she complied. While these events were occurring, K.V.'s grandmother called her on her cell phone and Appellant told her to answer the call. During the conversation with her grandmother, K.V. was able to leave the car and began running away. Appellant fired his gun at her and forced her to return to his car. She still had her cell phone, but she had been disconnected from her grandmother. As Appellant was driving her to another residence, she dialed 911 and the operator was able to ascertain the address where the car stopped. Police were dispatched to that address.
After he stopped the car, Appellant attempted to force K.V. to perform another sex act and she resisted. He then pointed his gun at her and hit her. He set the gun down and hit her again. K.V. picked up the gun and told him to stop or she would shoot. They struggled over the gun and it fired, striking Appellant. When officers arrived at the car's location, K.V. ran to them wearing only her underwear.
That same day, Detective Chalifoux was able to obtain a search warrant for Appellant's car where he recovered Appellant's cell phone. Three days later, DetectiveChalifoux was contacted by K.V.'s grandmother. She had access to K.V.'s Facebook account and related that someone named Eastwood Lulu had sent a number for K.V. to call and a personal message that Appellant would pay K.V. to "leave this alone." Her grandmother compared the number on the Facebook message to a known phone number for Appellant's girlfriend and found that the numbers matched. She spoke with Appellant's girlfriend who admitted she had messaged K.V. through Facebook messenger. The affidavit concluded with a request by Detective Chalifoux for a warrant authorizing a forensic examination of Appellant's cell phone.
DETECTIVE ZACH MARTIN
Detective Zach Martin, a certified forensic computer examiner, was the State's sole witness on Appellant's motion to suppress evidence obtained pursuant to the search warrant issued pertaining to his cell phone. Detective Martin testified that after he reviewed the warrant and the attached affidavit, he conducted a forensic examination of Appellant's cell phone. He defined a forensic examination as "an analysis of the device utilizing the best practices in order to preserve evidence while still determining what the device has saved to it." He indicated that a forensic analysis included "communications about the offense, communications with the parties involved in the offense, [and] evidence of the offense itself." He testified that in conducting the forensic analysis, he "takes measures to stay to what might be authorized by the search warrant, after reading the affidavit" and "[t]akes measures that assure that his analysis does not exceed the scope of the warrant."
Detective Martin began his analysis by photographing the outside of the device and all the device's components including the SIM card.7 He then placed the device in a radio isolation box that keeps the phone from accessing any cell phone signals or WiFi signals that would alter data on the device. By accessing the SIM card, he had access to data on the cell phone.
After accessing the SIM card, Detective Martin connected the cell phone to a small computer that performed a full physical extraction, i.e., it downloaded all the data on the device in one, single block. The data was then loaded into a computer program that parcels the data out into files. He then interpreted the data further into text message files, multimedia files, and third-party application files. He then attempted to go further into call logs, videos, and movies. From there, he conducted an examination for information pertaining to the warrant and put together a report that contained hyperlinks to the relevant portions of the cell phone's data.
On Appellant's cell phone, he accessed folders related to call logs, chats, and messages that went back to November 2014. He also accessed video files and identified three videos listed on the device itself. From the traditional Google browser, he accessed Facebook via the web browser, the Facebook application, and messages on Facebook messenger.
Of the three videos, two video files had potential evidentiary value because they were saved by default using the offense date.8 Martin testified that these two videos were relevant to the warrant because they were created during a time frame relevant to the offense and could contain exculpatory evidence, corroborating evidence, or evidence of the offense itself. He...
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