Veal v. State
| Docket Number | 01-22-00285-CR |
| Decision Date | 31 August 2023 |
| Parties | ADRIANNA JEAN VEAL, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Court of Appeals of Texas |
1
ADRIANNA JEAN VEAL, Appellant
v.
THE STATE OF TEXAS, Appellee
No. 01-22-00285-CR
Court of Appeals of Texas, First District
August 31, 2023
On Appeal from the 426th District Court Bell County, Texas [1] Trial Court Case No. 82273
Panel consists of Justices Goodman, Landau, and Rivas-Molloy.
OPINION
Sarah Beth Landau Justice.
Appellant Adrianna Jean Veal was charged with three counts of burglary of a habitation. Veal objected to the issuance of a search warrant for her cell phone, and the trial court overruled her objection. Veal later pleaded guilty to the felony offense of burglary of a habitation with intent to commit a felony. See Tex. Penal Code § 30.02. On appeal, Veal contends that the warrant was issued in violation of the Fourth Amendment because (1) the probable cause facts were stale and (2) the State's delay in seeking the warrant was unreasonable. Because we conclude that the probable cause facts were not stale and Veal did not preserve the unreasonable delay issue, we affirm the trial court's judgment.
BACKGROUND
Veal was indicted for three counts of burglary or entering a habitation without the consent of the owner: for entering with the intent to commit murder, for entering with the intent to commit aggravated assault causing serious bodily injury, and for entering with the intent to commit aggravated assault with a deadly weapon.
Timothy Custer, the complaining witness, had been dating Veal on and off for several months at the time of the offense. Custer said that he never gave Veal a key to his apartment. But in May 2020, he came home and found Veal hiding in his closet. Without saying a word, Veal pointed a gun at Custer and shot him in the chest. The gun jammed when Veal tried to fire it again, allowing Custer to try to gain
control of the gun. Veal then hit Custer with a hammer multiple times in the skull and face before fleeing.
Veal called her friend, R. Chavez, after the shooting and asked him to pick her up, seeming frantic. Chavez picked Veal up in his truck, and she told him that she broke into Custer's apartment, shot Custer, and hit him with a hammer. Chavez dropped Veal, a veteran, off at her house so that she could call the military police; then, he reported the shooting to the Bell County Sheriff's Office.
Officer J. Mueller of the Killeen Police Department investigated. He arrested Veal on the day of the shooting at her home. He allowed Veal to grab her cell phone before leaving. Officer Mueller noticed the phone was an Android device that appeared to be passcode protected. He did not seize the phone because he believed he needed the passcode for access. Veal was booked into the Killeen City Jail, where the phone was collected along with her other personal belongings. Later, Veal and her belongings were transferred to the Bell County Loop Jail.
After a few months, Veal's counsel asked the sheriff's office for Veal's cell phone so that the contact information could be accessed in developing her defense. The sheriff's office refused to release the phone without a court order, so Veal filed a motion in the trial court. The State advised Veal's counsel that it intended to request a search warrant for a forensic evaluation of the phone. Veal objected to the
issuance of a warrant, based on the lack of "new or intervening facts which would give KPD probable cause" for the warrant.
In support of the State's request, Officer Mueller executed a search warrant affidavit. In it, he recounted that Chavez said Veal had texted him before the burglary, asking him "to hold his Glock." Chavez "told [Veal] to go buy one." Chavez also told Officer Mueller that Veal called Chavez and asked to be picked up after fleeing the scene. Officer Mueller went to Veal's residence to arrest her. Veal was allowed to take her cell phone, which was passcode protected, to the Killeen City Jail. Four months later, a prosecutor asked Officer Mueller if there was any evidence on Veal's phone. Officer Mueller advised that there were texts between Veal and the complaining witness as well as between Veal and Chavez. The prosecutor asked Officer Mueller to prepare a search warrant application for the phone. To prepare the warrant affidavit, Officer Mueller confirmed with an investigator that the phone was still at the Bell County Loop Jail, where Veal had been moved.
The trial court held a hearing and, several months later, overruled Veal's objection and issued the search warrant.
Nearly eight months after the trial court ruled and the search warrant issued, Veal pleaded guilty to burglary of a habitation with intent to commit a felony and stipulated to the deadly weapon enhancement. In exchange for her plea, the State
agreed not to prosecute two of the three counts in the indictment as well as a separate charge of aggravated assault against a family member with a deadly weapon.
After Veal pleaded guilty, the trial court assessed her punishment. During the sentencing hearing, Custer testified about the burglary. Chavez also testified. Over Veal's objection, he discussed several texts from Veal. The State confirmed that certain text messages were recovered from Veal's cell phone and that Chavez had used a copy of the texts to refresh his recollection. When asked on cross-examination if he had the copy with him where he could see it, Chavez answered, "Yes. I have a copy with me currently." But the texts themselves were not admitted into evidence.
Chavez testified that, about a month before the shooting, he had a text exchange with Veal. She texted him, "Do you ever feel like you have to hurt someone?" He admitted that they discussed comic book characters and the Purge movie in the same conversation, but he did not take it seriously.
In another exchange several days before the shooting, Veal texted Chavez that she was fighting with the person she was dating. She had tried to push a laptop off his lap, and when he grabbed it, she "attacked him, which made things worse." She said that she was sick of the games and that they were "going to work through [their] issues or [they were] both dying tonight."
Then, a day or two before the shooting, Veal texted Chavez and asked to borrow his Glock handgun. She had also asked to borrow the handgun several
months before the shooting, because she wanted to buy one and wanted to practice with it.
After hearing testimony from three other witnesses-two KPD officers and a psychologist who evaluated Veal-the trial court sentenced Veal to 40 years' confinement.
DISCUSSION
Veal argues the trial court erred in issuing the search warrant for her cell phone because the warrant affidavit was based on stale facts that could not support probable cause. And thus, the search and seizure of her phone violated the Fourth Amendment. The State responds that Veal's staleness argument overlooks the enduring nature of cell phone data and the fact that the phone was in the custody of jail authorities from her arrest until the warrant issued.
We note that-unlike most cases in which a defendant argues the State should not have used evidence obtained in violation of the Fourth Amendment-Veal did not move to suppress the evidence. But the parties have treated her objection to the issuance of a search warrant for her cell phone as a motion to suppress, and we will do the same. The State did not claim that Veal failed to preserve error, and we are satisfied that Veal's objection to the issuance of the search warrant and to the testimony about the text messages at punishment preserve error. See Galitz v. State, 617 S.W.2d 949, 952 n.10 (Tex. Crim. App. 1981) ("A 'motion to suppress'
evidence is nothing more than a specialized objection to the admissibility of that evidence."); Ratliff v. State, 320 S.W.3d 857, 860 (Tex. App.-Fort Worth 2010, pet. ref'd) ("To preserve error about the illegal seizure of evidence, a defendant must either file a motion to suppress and obtain a ruling on the motion or timely object when the State offers the evidence at trial.").
Probable Cause
The United States Constitution protects against unreasonable searches and seizures. U.S. Const. amend. IV; see also Tex. Const. art. I, § 9. The Fourth Amendment requires that "no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. The probable cause requirement means that the affidavit must provide sufficient facts for the magistrate to conclude that the item to be seized will be on the described premises at the time the warrant issues and the search executed. Crider v. State, 352 S.W.3d 704, 707 (Tex. Crim. App. 2011). "The ultimate criteria in determining the evaporation of probable cause are not found in case law, but in reason and common sense. The hare and the tortoise do not disappear over the hill at the same speed." Id.
Courts do not "assess an affidavit's staleness by counting the number of days between the events described in the affidavit and a warrant's issuance, as a merchant would beads on an abacus." United States v. Abrams, 971 F.3d 22, 33 (1st Cir. 2020).
Instead, courts review various factors bearing on staleness, such as the nature and characteristics of the suspected criminal activity, and the likely endurance of the information. United States v. Allen, 625 F.3d 830, 842-43 (5th Cir. 2010); see also Crider, 352 S.W.3d at 708 (relevant factors include: (1) the type of crime (short term or continuous), (2) the suspect (nomadic or habitual), (3) the item to be seized (perishable or of enduring utility to its holder), and (4) the place to be searched (criminal forum of convenience or secure operational base)). "Probable cause ceases to exist when, at the time the search warrant is issued, it would be unreasonable to presume the items remain at the suspected...
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