State v. Ruiz, 04-16-00226-CR

• Decision Date: 26 July 2017
• Docket Number: No. 04-16-00226-CR,04-16-00226-CR
• Citation: 535 S.W.3d 590
• Parties: The STATE of Texas, Appellant v. Lauro Eduardo RUIZ, Appellee
• Court: Texas Court of Appeals

535 S.W.3d 590

The STATE of Texas, Appellant

v.Lauro Eduardo RUIZ, Appellee

No. 04-16-00226-CR

Court of Appeals of Texas, San Antonio.

Delivered and Filed: July 26, 2017

APPELLANT ATTORNEY: Lauren Scott, Bexar County District Attorney's Office, 101 W. Nueva, Suite 370, San Antonio, TX 78205-3406.

APPELLEE ATTORNEY: Shawn C. Brown, Law Office of Shawn Brown, P.C., 540 S. St. Mary's Street, San Antonio, TX 78205, Adrian Flores, The Law Office of Shawn C. Brown, 540 S. St. Mary's Street, San Antonio, TX 78205, Alex J. Scharff, 540 S. St. Mary's St., San Antonio, TX 78205.

Sitting: Rebeca C. Martinez, Justice, Patricia O. Alvarez, Justice, Luz Elena D. Chapa, Justice

Opinion by: Patricia O. Alvarez, Justice

This case stems from Appellee Lauro Eduardo Ruiz's ten-count indictment charging Ruiz with attempted production of sexual performance by a child. TEX. PENAL CODE ANN. § 43.25(d) (West 2016) ("A person commits an offense if, knowing the character and content of the material, he produces, directs, or promotes a performance that includes sexual conduct by a child younger than 18 years of age."). The trial court granted Ruiz's motion to suppress and excluded all photographs, evidence, and data obtained from the search of Ruiz's cell phone. This State's appeal ensued.

FACTUAL AND PROCEDURAL BACKGROUND

On February 26, 2014, two female students at a private high school notified Dean of Students Dolores Rodriguez that Ruiz, a substitute teacher, was acting inappropriately. The students provided images of Ruiz's cell phone, placed on top of his bag, near the podium, with the camera facing up, and allegedly capturing images from underneath the female students' skirts. Rodriguez contacted Academic Dean and Vice Principal Steven Hayward; Hayward summoned Ruiz to the administrative offices. Principal Gilbert Saenz was not on campus at the time.

Pending Principal Saenz's return to campus, Rodriguez and Hayward began investigating the allegations. Rodriguez posed the initial question to Ruiz—whether "anything happened that day in the classroom." A very nervous Ruiz acknowledged "he had a problem." Ruiz's nervousness and "fidgeting" with his cell phone led Rodriguez to fear the possible deletion of information. Rodriguez requested that Ruiz place the cell phone on Saenz's desk; both Rodriguez and Hayward testified that Ruiz complied without incident, comment, or objection. Shortly thereafter, Principal Saenz arrived. All three administrators testified that Ruiz again admitted that "he had a problem" and that there were inappropriate images on his cell phone. Saenz terminated Ruiz's employment and informed Ruiz that law enforcement would be notified.

Principal Saenz advised Ruiz that the cell phone would be turned over to law enforcement authorities. Pursuant to his own request, Ruiz retrieved several phone numbers from the cell phone. At some point, Saenz saw approximately twenty videos or images on the cell phone. After Ruiz obtained the information from his cell phone, he returned the cell phone to Saenz, and Saenz placed the cell phone in a manila envelope and sealed the envelope. Consistent with his statement to Ruiz, Saenz contacted the Castle Hills Police Department, made a report, and turned the cell phone over to the officers. Pursuant to a search warrant, the Castle Hills Police Department officers viewed and secured several images depicting the area underneath the students' skirts. Ruiz was subsequently charged with multiple counts of attempted production of sexual performance by a child.

On December 31, 2015, Ruiz filed a motion to suppress any and all tangible evidence seized in connection with the case asserting that Principal Saenz did not obtain a warrant and no exception to the warrant requirement applies. The State filed a memorandum of law in opposition to the motion to suppress on March 11, 2016. Following an evidentiary hearing on March 9, 2016, and on April 7, 2016, the trial court made the following oral findings of fact, see State v. Cullen , 195 S.W.3d 696, 699 (Tex. Crim. App. 2006) (explaining that trial court's findings on a motion to suppress may be written or oral):

• "the information obtained from Ruiz's cell phone was a result of a private citizen seizing [Ruiz's] telephone;"

• "Ruiz may or may not have consented to leaving his cell phone with school authorities;"

• "Ruiz did not consent to [Saenz's search of Ruiz's cell phone];"

• "Saenz ... conducted a search of the defendant's telephone without obtaining a search warrant;"

• "[Saenz] subsequently gave the information he had obtained from the search of [Ruiz]'s cell phone to law enforcement authorities;"

• "a search warrant was obtained by police officers;" and

• "information was obtained from [Ruiz's] cell phone through the search warrant."

The trial court concluded that because Saenz's actions did not fall under the warrantless search exceptions of either consent to search or exigent circumstances, Saenz's warrantless examination of Ruiz's cell phone violated Texas Code of Criminal Procedure article 38.23(a). See TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2005).

The trial court also made the following oral conclusions of law:

• "Information [taken from the cell phone was] fruit of the poisonous tree since the initial examination of the contents of [Ruiz's] cell phone was without a warrant, was without [Ruiz's] consent or permission."

• "Saenz's examination of [Ruiz's] cell phone [was] without a warrant, without [Ruiz's] consent, [and] without exigent circumstances which justified a warrantless search."

• "[A]ll of the information obtained from [Ruiz's] cell phone is inadmissible against [Ruiz]."

The one-sentence, handwritten, order signed by the trial court on April 7, 2016, provides as follows:

The motion to Suppress Granted as to all photographs, evidence & data obtained from the search of [Ruiz's] cell phone.

STANDARD OF REVIEW

An appellate court reviews a trial court's ruling on a motion to suppress on a bifurcated standard of review; a reviewing court must

give almost total deference to the trial court's rulings on (1) questions of historical fact, even if the trial court's determination of those facts was not based on an evaluation of credibility and demeanor, and (2) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. But when application-of-law-to-fact questions do not turn on the credibility and demeanor of the witnesses, we review the trial court's rulings on those questions de novo.

Wilson v. State , 442 S.W.3d 779, 783 (Tex. App.—Fort Worth 2014, pet. ref'd) (citing Amador v. State , 221 S.W.3d 666, 673 (Tex. Crim. App. 2007) ); see also Valtierra v. State , 310 S.W.3d 442, 447 (Tex. Crim. App. 2010) ; Swearingen v. State , 143 S.W.3d 808, 811 (Tex. Crim. App. 2004). This court must "uphold the trial court's ruling on appellant's motion to suppress if that ruling was supported by the record and was correct under any theory of law applicable to the case." Armendariz v. State , 123 S.W.3d 401, 404 (Tex. Crim. App. 2003) (citing State v. Ross , 32 S.W.3d 853, 856 (Tex. Crim. App. 2000) ). We will reverse the trial court's suppression decision if it is unsupported by the record, "arbitrary, unreasonable, or ‘outside the zone of reasonable disagreement.’ " State v. Dixon , 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).

MOTION TO SUPPRESS BEFORE THE TRIAL COURT

The State contends the trial erred in granting Ruiz's motion to suppress under the Texas exclusionary rule. See TEX. CODE CRIM. PROC. ANN. art. 38.23(a).

A. Texas Code of Criminal Procedure Article 38.23(a)

The Texas exclusionary rule provides as follows:

No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

TEX. CODE CRIM. PROC. ANN. art. 38.23(a) ; see Miles v. State , 241 S.W.3d 28, 34 (Tex. Crim. App. 2007). If the search or seizure violated the law, the Texas exclusionary rule is applicable to " ‘other persons,’ even when those other persons are not acting in conjunction with, or at the request of, government officials." Miles , 241 S.W.3d at 36 ; see also Cobb v. State , 85 S.W.3d 258, 270–71 (Tex. Crim. App. 2002) (considering private citizen under section 38.23(a)'s "other person" status); Royston v. State , No. 14-13-00920-CR, 2015 WL 3799698, at *3 (Tex. App.—Houston [14th Dist.] June 18, 2015, pet. ref'd) (mem. op., not designated for publication) (same). Simply put, if no violation of the law occurred, article 38.23(a) has no application in the present case.

B. Burden of Proof on a Motion to Suppress

" ‘[T]he burden of persuasion is properly and permanently placed upon the shoulders of the moving party. When a criminal defendant claims the right to protection under an exclusionary rule of evidence, it is his task to prove his case.’ " Pham v. State , 175 S.W.3d 767, 773 (Tex. Crim. App. 2005) (quoting Mattei v. State , 455 S.W.2d 761, 766 (Tex. Crim. App. 1970) ). When the evidence is collected by a private person, the Texas Code of Criminal Procedure requires proof that the private person obtained the evidence in violation of the law. See Cobb , 85 S.W.3d at 270–71 (citing State v. Johnson , 939 S.W.2d 586, 588 (Tex. Crim. App. 1996) ) (considering private citizen under section 38.23(a)'s "other person" status); Royston , 2015 WL 3799698, at *3 (same).

C. Proof that Evidence Obtained in Violation of Law

In this case, the trial court made an affirmative finding that Principal Saenz was a private person, and we afford the finding "almost total deference." Wilson , 442 S.W.3d at 783. Because Saenz was a private person, or "other person" pursuant to article 38.23(a), Ruiz bore the burden to prove that Saenz obtained the evidence "in violation of law." See Baird v. State , 379 S.W.3d 353 (Tex. App.—Waco 2012), aff'd , 398 S.W.3d 220 ...