State v. Gault

• Docket Number: 01-22-00157-CR,01-22-00364-CR
• Decision Date: 04 October 2022
• Citation: State v. Gault, 695 S.W.3d 364 (Tex. App. 2022)
• Parties: The STATE of Texas, Appellant v. Robert Michael GAULT, Appellee In re State of Texas ex rel. Kim Ogg, Relator
• Court: Texas Court of Appeals

695 S.W.3d 364

The STATE of Texas, Appellant

v.Robert Michael GAULT, Appellee

In re State of Texas ex rel. Kim Ogg, Relator

NO. 01-22-00157-CR, NO. 01-22-00364-CR

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued October 4, 2022

On Appeal from the 339th District Court, Harris County, Texas, Trial Court Case No. 1758852

Original Proceeding on Petition for Writ of Mandamus

Porscha Brown, Jani J. Maselli Wood, for Appellee.

Kim K. Ogg, Houston, Jessica A. Caird, Christopher Conrad, for Appellee.

Panel consists of Chief Justice Radack and Justices Landau and Hightower.

OPINION

Richard Hightower, Justice

The State of Texas has filed an interlocutory appeal and an original mandamus proceeding¹ to challenge the district court’s interlocutory orders requiring the State to return property in its possession—including a cell phone—belonging to Richard Michael Gault. Because the orders are not a type of order that may be appealed by the State, we agree with Gault that we do not have jurisdiction over the appeal and dismiss it. However, because we conclude that the orders are void, we grant the State’s petition for writ of mandamus and order the district court to vacate the orders.

Background

On February 13, 2022, officers from the Jersey Village Police Department were dispatched to an apartment complex related to a shooting. When they arrived, the officers found the deceased body of an adult man, identified as Dontrae Rashad Thomas, lying in the parking lot. Richard Michael Gault was standing near Thomas’s body. Gault told the police that he had shot Thomas six times with a firearm but claimed that he had done so in self-defense.

Gault was holding his cell phone in his hand, and one of the police officers told Gault to drop the phone so that Gault could be handcuffed. The police removed other items, including keys, from Gault’s pocket and placed them on the ground. Gault was arrested, and the police collected Gault’s cell phone, keys, and other items from the scene as evidence, securing them in the police department’s property room.

The next day, the State presented a complaint against Gault, which was filed with the district clerk and assigned to the 339th District Court of Harris County (the district court). In the complaint, the State alleged that Gault had committed the felony offense of murder. See Tex Penal Code § 19.02(b).

On February 21, 2022—eight days after Thomas was killed—Gault filed a "Motion for Return of Seized Property," asking the district court to order the police to return his cell phone and his keys. He stated that the police had been holding his property since his arrest "without any probable cause or a valid search warrant" and "solely [for] the purpose of a fishing expedition."

That same day, the district court conducted a hearing at which Gault asked the court to reduce the amount of his bond. Gault also asked the court to grant his motion to return his cell phone and his keys. The State informed the district court that the alleged murder offense had just occurred eight days before the hearing, it did not "have an offense report," and could not "confirm one way or the other the circumstances about the defendant’s property whatsoever." The district court stated that, because it did not see a warrant for Gault’s cell phone in its file, "[t]here’s no legal authority to hold the phone." The district court then signed an order granting Gault’s motion, ordering the return of the cell phone and keys.

The next day—February 22, 2022—Gault’s counsel emailed the district court, stating that the Jersey Village Police Department was "refusing to follow the [district court’s] order to return Mr. Gault’s cellphone and his keys." The attorney explained that she had spoken with the police department, which indicated that they "would not give us the phone" because they intended to obtain a search warrant for it.

That day, the State also filed a motion to reconsider the district court’s order granting the return of the seized property. The State asserted that it had learned from the police that Gault’s cell phone contained evidence related to the murder and that the police were "in the process" of obtaining a search warrant for it. In response, Gault filed a brief in support of his previously granted motion to return the seized property. He asserted that his cell phone should be returned to him because the State had not provided evidence showing that his phone contained "contraband" or evidence related to the alleged murder offense. The district court emailed the parties instructing them to appear for a hearing on February 23, 2022, to discuss the return of Gault’s property.

At the February 23 hearing, the State asked the district court to reconsider its order requiring the police to return Gault’s cell phone. The State informed the district court that Lieutenant H. Hawley of the Jersey Village Police Department, who had participated in the investigation at the murder scene, was present in the courtroom and had signed a search-warrant affidavit for the cell phone. Lieutenant Hawley also testified at the hearing. He explained that the police took the cell phone, marked it, and placed it in the police property room because "it was in the middle of a crime scene [as] determined by officers when they arrived onscene." The State also asked the district court to "bifurcate the warrant and leave out the keys," indicating that the State agreed that the keys should be returned to Gault. The district court rejected the State’s search-warrant application for the cell phone. At the end of the hearing, the district court stated that it would issue its order regarding the State’s motion to reconsider the next day.

On February 24, 2022, the State filed a brief in support of its motion to reconsider. The State argued that the order to return Gault’s cell phone was void because, at that stage of the proceedings, the district court had no authority to issue the order. At a hearing that day, the State told the district court that it had intended to elicit testimony from Lieutenant Hawley at the earlier hearing to show that the decedent, Thomas, and Gault had a relationship before Thomas was killed, but the State asserted that it was prevented from eliciting the testimony because the district court had "stopped" Lieutenant Hawley’s testimony. The State asserted that "[the] relationship will be highly relevant evidence to a murder prosecution where the defendant is claiming self-defense." It stated that it was attempting "to get to the probable cause statement necessary for a search warrant," but "[the] investigation ha[d] not been completed yet" because it had only been ten days since the murder.

The State also informed the district court that it did not oppose returning the keys to Gault, but the court denied the State’s request to separate the return of the keys from the return of the cell phone. The district court instructed the parties to file what they wanted the court to consider by 5:00 p.m. the next day and to file any response to the other party’s filing by 5:00 p.m. the following day. The court also informed the parties that it would issue its order regarding the State’s motion to reconsider on March 1, 2022.

Gault filed a motion for a restraining order, requesting the district court to restrain the State from using or copying his keys or from "viewing, inspecting, downloading, or copying any of the contents of [his] cell phone." On February 25, 2022, the district court held a short hearing to address the motion. The court did not grant the motion, stating that a restraining order was not necessary because the court’s order requiring the return of Gault’s property already prevented the State from engaging in the conduct that Gault sought to restrain. The State reiterated its willingness to return the keys to Gault but not the cell phone. The district court again stated that it would not handle the return of the keys and the cell phone separately for reasons of "judicial economy." The parties also filed additional briefing.

Disposing of the State’s motion to reconsider, the district court signed an "Order to Return Seized Property" on March 1, 2022, ordering the State [to] appear in the 339th District Court on March 2, 2022 at 10:00 a.m. and return Mr. Gault’s keys and [A]ndroid cell phone that is currently being held by the Jersey Village Police Department." The order recited that the court had "reviewed the probable cause statements, search warrants, testimony, hearings and all of the case law provided by both parties." The district court found that the State had "not met its burden in establishing the probable cause necessary to obtain a search warrant for the items in question." The court further found that the State had "failed to establish a nexus between the items seized and the crime that was committed." To support the order, the district court also cited Code of Criminal Procedure article 18.13, which provides that if "the magistrate" is "not satisfied, upon investigation, that there was good ground for the issuance of the warrant, he shall discharge the defendant and order restitution of the property taken from him, except for criminal instruments." Tex Code Crim Proc. art. 18.13.

The district court also conducted a hearing on March 1. At the hearing, the court explained the content of the March 1 order and provided the parties with a copy. During the hearing, the State informed the district court that the judge of another criminal district court—the 209th District Court of Harris County—had issued a search warrant for Gault’s cell phone.

As required by the March 1 order, the 339th District Court instructed the parties to return to court the following morning with Gault’s cell phone and keys. The court also instructed the State to bring the search warrant signed by the judge of the 209th District Court so that the court could review the search-warrant affidavit to determine whether it was sufficient to...