Whitney Nicole Carter v. State , 463 S.W.3d 218 ( 2015 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
Nos. 07-13-00207-CR, 07-13-00208-CR
WHITNEY NICOLE CARTER, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
____________________________________
TONY DARELL JOHNSON, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 100th District Court
Carson County, Texas
Trial Court Nos. 5052, 5053; Honorable Stuart Messer, Presiding
April 27, 2015
OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellants Tony Darell Johnson and Whitney Nicole Carter were indicted for
money laundering.1 The cases were consolidated for trial and appellants were
convicted by a jury. The trial court assessed punishment for each at two years’
1
TEX. PENAL CODE ANN. § 34.02(a)(1) (West 2011).
confinement in a state jail facility. Johnson and Carter each present three issues,
including a challenge of the trial court’s order denying suppression of evidence found
through a Department of Public Safety trooper’s warrantless search of two cell phones.
Finding the trial court abused its discretion by failing to suppress the challenged cell
phone evidence, and the constitutional error was not harmless, we will reverse the
judgments and remand the cases for further proceedings.
Background
At about 9:30 p.m. on October 24, 2011, Johnson was driving westbound in his
mother’s automobile on Interstate 40 in Carson County, Texas. Carter and Johnson
were recently married and she was the only passenger. A DPS trooper observed
Johnson commit traffic violations,2 and conducted a traffic stop.
At the vehicle, the trooper detected an “overwhelming” odor of air freshener. 3 He
saw multiple food and drink containers inside the vehicle along with containers of
energy drink. During conversations with appellants, he noted the quietness of Carter’s
voice and her lack of eye contact, her apparent nervousness, Johnson’s complaints of
extreme fatigue from extended driving, the inaccuracy of the criminal history Johnson
provided, and discrepancies in appellants’ stories. Based on these facts, the trooper
concluded reasonable suspicion existed to prolong the detention. After Johnson
refused consent to search the vehicle, the trooper requested a canine unit.
2
Johnson was driving in the left-hand lane while not passing and the vehicle had
a defective license plate light.
3
Photographs depicted an air freshener hanging from the rear-view mirror, two
more hanging from the car’s rear console, “multiple” fresheners in a rear door pocket
and “more” fresheners in the rear floorboard.
2
Some thirty minutes later, the canine unit arrived and a drug dog conducted a
free-air sniff around the vehicle. After the dog alerted to the vehicle the trooper
searched the vehicle, and found six bundles of United States currency totaling $13,925.
Five were located inside a bag within a soft-sided cooler on the rear seat of the vehicle
and a sixth was found in Carter’s purse. In a bag found in the passenger compartment,
the trooper discovered a small amount of marijuana “shake” or residue. The trooper
also found a vacuum sealer machine and bags in the trunk. He placed Johnson and
Carter in handcuffs.
The trooper then transported appellants and their vehicle to the DPS precinct
barn in Panhandle, Texas, where the search of the vehicle continued. The trooper
summoned a DPS agent to handle the currency and investigate the money laundering
offense. During the search, the trooper found two cell phones in the vehicle’s
passenger compartment. He then conducted a warrantless search of the data
contained in the phones. Lacking equipment to download this information, he
photographed about one hundred text messages and photographs he found on the
phones.
Appellants were each indicted on the charge of money laundering. Each filed a
pre-trial motion seeking suppression of the evidence seized. Following an evidentiary
hearing, the trial court denied the motions by written orders.
At trial, over objections, the State offered photographs made by the trooper of
text messages and photographs as well as a video recording discovered among the
data contained in the cell phones.
3
Also over objection, the State offered the testimony of an officer with a North
Carolina sheriff’s department. He testified that in December 2011, some five weeks
after their Carson County arrest, appellants were stopped for traffic violations and then
arrested for possession of marijuana with intent to distribute. According to the officer,
he found a small piece of a vacuum sealed bag containing marijuana in Carter’s purse.
While searching appellants’ vehicle, he discovered a “lunch tote bag” containing “a large
vacuum sealed bag containing marijuana.” When the large bag was opened, the officer
noticed it held six smaller vacuum sealed bags of marijuana. A North Carolina state trial
court suppressed this evidence. At the time of appellants’ trial in Carson County, the
North Carolina order granting suppression of evidence remained on appeal.
During testimony at the guilt-innocence phase of trial, Carter explained the cash
the trooper discovered was the proceeds from her settlement of a personal injury
lawsuit and wedding gifts from family.
Johnson and Carter were found guilty of the charged offense and sentenced as
noted. This appeal followed.
Analysis
Johnson’s Sufficiency Challenge
By his third issue, Johnson argues the evidence was insufficient to sustain his
conviction for the offense of money laundering.
In a sufficiency review, we examine the evidence to determine whether any
rational trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (citing
4
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979));
Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We review all the
evidence in the light most favorable to the verdict and assume the trier of fact resolved
conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a
manner that supports the verdict. Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim.
App. 2007). Our consideration of all the evidence includes any evidence that was
improperly admitted. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
Sufficiency of the evidence is measured by the elements of the offense as defined by
the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.
App. 1997). The hypothetically correct jury charge “sets out the law, is authorized by
the indictment, does not unnecessarily increase the State's burden of proof or
unnecessarily restrict the State's theories of liability, and adequately describes the
particular offense for which the defendant was tried.” Id.
Penal Code section 34.02(a)(1) provides that a person commits an offense if the
person knowingly acquires or maintains an interest in, receives, conceals, possesses,
transfers, or transports the proceeds of criminal activity. TEX. PENAL CODE ANN. §
34.02(a)(1) (West 2011). “Criminal activity” means any offense, including any
preparatory offense, classified as a felony under the laws of Texas or the United States
or punishable by confinement for more than one year under the laws of another state.
TEX. PENAL CODE ANN. § 34.01(1) (West Supp. 2014).
Viewing all the evidence in the light most favorable to the verdict, the jury was
authorized to believe appellants, whether on their honeymoon or not, were driving long
distances in an effort to quickly cross the country from North Carolina to California. It
5
could also have disbelieved their explanation that the large amount of cash their vehicle
contained was the proceeds of Carter’s personal injury settlement and wedding gifts,
particularly given the manner in which it was bundled and the couple’s efforts to mask
odors. Likewise the jury could have believed the substantial body of documentary and
testimonial cell phone evidence showed appellants were engaged in marijuana
trafficking. Buttressing this proof was evidence that mere weeks after the Carson
County stop appellants were found in North Carolina in possession of vacuum-sealed
bags of marijuana.
Johnson argues disposition of the present case should be guided by our decision
in Deschenes v. State, 253 S.W.3d 374 (Tex. App.—Amarillo 2008, pet refused).
According to Johnson, as in Deschenes, the evidence tending to establish a nexus
between money and illegal drug activity amounts to mere conjecture. In Deschenes,
during a consensual roadside search of the defendant’s vehicle a trooper discovered
over $17,000 cash in a bag in the vehicle’s trunk. Id. at 377. A drug dog later alerted to
the bag containing the money and an empty suitcase also in the trunk. Id. The
defendant was convicted of money laundering. On appeal, the State argued its best
single piece of evidence was the trooper’s “expert” testimony that “[a] lot of the
proceeds from the drugs that are shipped to the east come back westbound to either
the originator who sent the drugs or someone that’s going to purchase narcotics or
weapons or whatever the contraband may be.” Id. at 381. To establish a nexus
between the money and criminal activity the State pointed to some twenty-two drug
courier characteristics. Id. at 382-85. But this was insufficient to establish beyond a
reasonable doubt a nexus between the money and criminal activity. Id. at 385. Unlike
6
Deschenes, the evidence here includes the substantial body of cell phone evidence
pointing to appellants as trafficking in marijuana along with evidence gained from the
North Carolina traffic stop showing knowledge and a common plan. Deschenes is thus
to be distinguished from the present case, and does not control its disposition.
When all the evidence is viewed in the light most favorable to the verdict a
rational trier of fact could have determined beyond a reasonable doubt that appellants
knowingly concealed, possessed, transferred, or transported the proceeds of criminal
activity; that is, from the sale of marijuana, and the value of the funds was $1,500 or
more but less than $20,000. Johnson’s third issue is overruled.
Warrantless Search of Cell Phones
Through their second and first issues respectively, Carter and Johnson challenge
the trial court’s failure to suppress evidence obtained by the trooper’s warrantless
search of the cell phones.
We review a trial court's ruling on a motion to suppress evidence for an abuse of
discretion. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). In so
doing, we give “almost total deference to [the] trial court's determination of the historical
facts that the record supports especially when the trial court's fact findings are based on
an evaluation of credibility and demeanor.” Fienen v. State, 390 S.W.3d 328, 335 (Tex.
Crim. App. 2012) (quoting Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.
1997)). We view the record evidence and all reasonable inferences therefrom in the
light most favorable to the trial court’s ruling. State v. Garcia-Cantu, 253 S.W.3d 236,
241 (Tex. Crim. App. 2008) (party prevailing in trial court is afforded “strongest
7
legitimate view of the evidence and all reasonable inferences”). We review de novo
questions of law and mixed questions of law and fact that do not depend on evaluation
of credibility and demeanor. Fienen, 390 S.W.3d at 335 (citing Montanez v. State, 195
S.W.3d 101, 106 (Tex. Crim. App. 2006)). When, as here, no findings of fact were
requested nor filed, we review the evidence in the light most favorable to the trial court’s
ruling and assume the trial court made implicit findings of fact supported by the record.
See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).
In the trial court and on appeal, the State contends the trooper properly reviewed
the data on the cell phones as a search incident to appellants’ lawful arrest. See
Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969)
(explaining when an arrest is made “[t]here is ample justification, therefore, for a search
of the arrestee’s person and the area ‘within his immediate control’—construing that
phrase to mean the area from within which he might gain possession of a weapon or
destructible evidence”); United States v. Finley, 477 F.3d 250, 259-60 (5th Cir. 2007)
(citing United States v. Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 38 L. Ed. 2d 427
(1973)). A search incident to arrest is authorized because officers need to seize
weapons and dangerous objects which might be used to assault an officer and to
prevent the loss or destruction of evidence. State v. Granville, 423 S.W.3d 399, 410
(Tex. Crim. App. 2014) (citing Robinson, 414 U.S. at 224-26).4
4
Although it is not the basis for our disposition of the appeal, the record leaves
significant doubt whether search of appellants’ cell phones is properly considered
incident to their arrest. As noted, the phones were discovered and searched after
appellants and their vehicle were taken to the DPS barn, and while appellants were
securely in custody. It is undisputed appellants were handcuffed beside the road after
the cash was found in their vehicle, and Johnson was given Miranda warnings. It also is
undisputed that at the time Johnson was handcuffed, the trooper told Johnson, in
8
In its opinion in Riley v. California, however, issued after trial and briefing in these
cases, the United States Supreme Court determined that the search incident to arrest
exception to the warrant requirement does not extend to a search of data on a lawfully
seized cell phone. Riley v. California, 134 S. Ct. 2473, 2485, 2493, 189 L. Ed. 2d 430
(2014) (“a warrant is generally required before such a search, even when a cell phone is
seized incident to arrest”).5
___________________________
Carter’s presence, that he was under arrest at that time, for money laundering. The
trooper’s written report states “[b]oth subjects were placed under arrest” at the roadside.
The trooper’s trial testimony is consistent with his report, that appellants were arrested
at the roadside stop before the cell phones were found and searched. There was
testimony from officers at the motion to suppress hearing to the effect that appellants
were arrested after their cell phones were searched. “A search is incident to arrest only
if it is ‘substantially contemporaneous’ with the arrest and is confined to the area within
the immediate control of the arrestee.” Granville, 423 S.W.3d at 410 (citing Vale v.
Louisiana, 399 U.S. 30, 33, 90 S. Ct. 1969, 26 L. Ed. 2d 409 (1970)). This means
generally a search incident to arrest is not justifiable if the “‘search is remote in time or
place from the arrest’ . . . or no exigency exists.” Id. (citing United States v. Chadwick,
433 U.S. 1, 15, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977)). Despite the hearing
testimony, we think the undisputed evidence might well establish that appellants, as a
matter of law, were subjected to a custodial arrest when they were handcuffed on the
roadside and transported to the DPS barn, well before their phones were searched.
See, e.g., Lewis v. State, 412 S.W.3d 794, 800 (Tex. App.—Amarillo 2013, no pet.)
(citing Moore v. State, 55 S.W.3d 652, 656 (Tex. App.—San Antonio 2001, no pet.))
(discussing factors to determine whether detention has evolved into custodial arrest).
We assume, however, for purposes of this opinion that appellants were arrested at the
DPS barn.
5
Because Riley was decided while this case was pending on direct appeal, it
governs our disposition of the constitutional issue. Davis v. United States, 131 S. Ct.
2419, 2426, 180 L. Ed. 2d 285 (2011) (newly announced rules of constitutional criminal
procedure must apply retroactively to all cases, state or federal, pending on direct
review or not yet final, with no exception) (internal quotations omitted); United States v.
Spears 31 F. Supp. 3d 869 (N.D. Tex. 2014); Bowman v. State, No. 05-13-01741-CR,
No. 05-13-01742-CR, No. 05-13-01743-CR, 2015 Tex. App. LEXIS 1196 (Tex. App.—
Dallas Feb. 5, 2015, n.p.h.) (mem. op., not designated for publication) (both holding
Riley applies retroactively).
9
It remains true that the exigencies of a situation may justify a warrantless search
of a particular cell phone. Id. at 2494. For example, “the need to prevent the imminent
destruction of evidence in individual cases, to pursue a fleeing suspect, and to assist
persons who are seriously injured or are threatened with imminent injury” might, in a
specific situation, authorize the warrantless search of a cell phone. Id. (quoting
Chadwick, 433 U.S. at 15, n.9) (“if officers have reason to believe that luggage contains
some immediately dangerous instrumentality, such as explosives, it would be foolhardy
to transport it to the station house without opening the luggage”). However, “unlike the
search incident to arrest exception, the exigent circumstances exception requires a
court to examine whether an emergency justified a warrantless search in each particular
case.” Id.
The DPS agent testified to the risk that a cell phone could be wiped clean of data
by remote action.6 The Court in Riley addressed the risk of “remote wiping” and the
similar risk of data encryption. Riley, 134 S. Ct. at 2486. It noted the Court had “been
given little reason to believe that either problem is prevalent.” Id. And the Court
addressed means by which such risks can be minimized by law enforcement officers.
Id. at 2487. Finally, the Court said that “[t]o the extent that law enforcement still has
specific concerns about the potential loss of evidence in a particular case, there remain
more targeted ways to address those concerns.” Id. The Court noted that in a truly
“‘now or never’ situation, -- for example, circumstances suggesting that a defendant’s
phone will be the target of an imminent remote-wipe attempt,” the exigent circumstance
6
He told the court, “In our technological world, cell phones can be remotely
accessed and basically, what we say, wiped. They can be cleaned of all their memory.
Anything that was on them can be erased off of them. So it’s pertinent that you check
them at the time of arrest.”
10
exception may permit a warrantless search, or measures to prevent the phone from
locking. Id. at 2487-88 (citing Missouri v. McNeely, 133 S. Ct. 1552, 185 L. Ed. 2d 696
(2013) and Illinois v. McArthur, 531 U.S. 326, 121 S. Ct. 946, 148 L. Ed. 2d 838
(2001)).
In the trial court the State argued search of appellants’ cell phone was justified on
typical incident-to-arrest grounds, officer safety and preservation of evidence. The
agent’s testimony related to the risk of remote wiping did not suggest that troopers on
this occasion were presented with a truly “now or never” situation, and the State does
not argue on appeal that the search was justified by exigent circumstances. We agree
the record does not contain evidence of the type of truly exigent circumstances the
Court recognized in Riley.
We conclude, based on Riley, that appellants are correct the search of their
phones cannot be justified as a search incident to their arrest and, being conducted
without exigency or warrant, violated appellants’ Fourth Amendment rights.
The State relies heavily on the Fifth Circuit’s opinion in Finley, 477 F.3d at 259-
60, in which the court, prior to Riley, upheld search of a cell phone incident to arrest.
And, although the parties do not address the subject of good-faith reliance in their
briefing, we have considered the possibility7 that, before the issuance of the Riley
opinion, law enforcement might have relied in good faith on case law like Finley. We
need not dwell on the possibility in this case, however, because appellants’ motions to
suppress asserted the troopers’ conduct “violated” Article 38.23 of the Texas Code of
7
See McClintock v. State, 444 S.W.3d 15, 20-21 (Tex. Crim. App. 2014)
(remanding appeal to court of appeals for consideration of good-faith exception to
exclusionary rule, even though issue was not briefed on direct appeal).
11
Criminal Procedure as well as the Fourth Amendment. Article 38.23(a) provides in part,
“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) (West 2005). The only good
faith exception to the function of this rule is when an officer “acting in objective good
faith” relies on a warrant issued by a magistrate based on probable cause. TEX. CODE
CRIM. PROC. ANN. art. 38.23(b) (West 2005). Of course here a warrant was not involved.
Because Article 38.23 permits no exception for good-faith reliance on case law,
exclusion of the evidence acquired from appellants’ cell phones was required under
Texas law in any event. See Douds v. State, 434 S.W.3d 842, 861 (Tex. App.—
Houston [14th Dist.] 2014, pet. granted) (citing Wehrenberg v. State, 416 S.W.3d 458,
473 (Tex. Crim. App. 2013)); State v. Jackson, 435 S.W.3d 819, 831 (Tex. App.—
Eastland 2014, pet. granted) (“an officer’s good faith reliance on the law or existing
precedent is not recognized as an exception to the Texas exclusionary rule”).
Harmless Error Review
Admission of like evidence without objection
The State argues that should we find the trial court abused its discretion by failing
to suppress the challenged evidence, any error was harmless because the breadth of
appellants’ motions did not reach opinion testimony based on data drawn from the cell
phones, and appellants failed to specifically object to such opinion testimony at trial.
12
According to the State, certain testimony was outside the scope of appellants’
motions and “contains a summary and a conclusion about the same evidence of which
[appellants are] complaining.” The State cites the trooper’s testimony that the text
messages “appeared to be text messages about narcotics transactions,” and his
testimony that photographs found on the cell phones “were photographs of basically
road signs, and photographs of marijuana.” The State also refers to the DPS agent’s
opinion testimony that, based on his review of the text messages and photographs,
appellants’ line of work was dealing in marijuana.
In relevant part, appellants’ motions to suppress provided:
The products of the illegal searches and seizures are the “fruit of a
poisonous tree” and as evidence must be suppressed. Such fruits include
but are not limited to: The taking of two (2) cell phones that stored
information or otherwise were used in the distribution of computerized text
file; also, the contents of or access to e-mails, passwords, notes, logs,
calendars, photos, call logs, contact lists, texts, or any and all other
information gained, gleaned, or learned from either of the phones or both
the phones. . . .
Therefore, Defendant requests that the following matters be suppressed at
trial of this cause:
All wire, oral, or electronic communications intercepted in connection with
this case and any and all evidence derived from said communications.
At trial, the State developed a substantial body of evidence concerning data
contained in the two cell phones through the testimony of the trooper and the agent.
Documentary evidence admitted on the State’s offer included sixty-four 81/2-by-11 color
photographs of text messages and photographs the trooper found on the two phones.
In the reporter’s record, twenty pages of the agent’s testimony concerned his
interpretation of the meaning of text messages and identification of cell phone
13
photographs. The agent testified “upwards of 80” text messages and “20 to 30”
photographs dealing with narcotics transactions were found on the two phones.
A trial court’s erroneous admission of evidence will not require reversal when
other such evidence was received without objection, either before or after the
complained-of ruling. Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998). But
“it is settled that when a pre-trial motion to suppress evidence is overruled, the accused
need not subsequently object to the admission of the same evidence at trial in order to
preserve error.” Fuller v. State, 827 S.W.2d 919, 930 (Tex. Crim. App. 1992). “[A]
complaint is not preserved for appeal unless it was made to the trial court ‘by a timely
request, objection or motion’ that ‘stated the grounds for the ruling that the complaining
party sought from the trial court with sufficient specificity to make the trial court aware of
the complaint, unless the specific grounds were apparent from the context.’” Resendez
v. State, 306 S.W.3d 308, 312 (Tex. Crim. App. 2009) (quoting TEX. R. APP. P.
33.1(a)(1)(A)); see TEX. R. EVID. 103(a)(1). To determine whether error was sufficiently
preserved, we consider the context of the complaint. Resendez, 306 S.W.3d at 313.
This means we look to the motion to suppress and the record of the suppression
hearing to determine whether the complaint was apparent from the context. See id. at
314-16.
The State apparently does not disagree that the bulk of testimonial and
documentary evidence concerning data discovered on the cell phones was sufficiently
challenged through appellants’ motions and their hearing and that further objection at
trial was not required for preservation of the complaint. Yet it draws a distinction
14
between the quoted opinions and other opinions State witnesses gave based on the cell
phone data. We see no basis, or authority, for such a distinction.
After review of the motion and the record of the court’s hearing, we find that the
trial court was sufficiently notified that appellants challenged all evidence discovered by
the trooper in his search of the two phones. This included all, and not just most, of the
opinions of the trooper and the agent based on their consideration of the data.
Constitutional Error under Appellate Rule 44.2(a)
We apply the harmless error standard of appellate rule 44.2(a) to assess the
harm resulting from a trial court’s erroneous denial of a motion to suppress and
subsequent admission of evidence obtained in violation of the Fourth Amendment. TEX.
R. APP. P. 44.2(a); Snowden v. State, 353 S.W.3d 815, 817-18, 822 (Tex. Crim. App.
2011); Thompson v. State, No. 01-12-00271-CR, 2013 Tex. App. LEXIS 12326, at *8-9
(Tex. App.—Houston [1st Dist.] Oct. 3, 2013, pet. refused) (mem. op., not designated
for publication). We consider four non-exclusive factors: (1) the nature of the error, (2)
the degree of its emphasis by the State, (3) the probable implications of the error, and
(4) the weight it was likely assigned by the jury during deliberations. Snowden, 353
S.W.3d at 822. “At bottom, an analysis for whether a particular constitutional error is
harmless should take into account any and every circumstance apparent in the record
that logically informs an appellate determination whether ‘beyond a reasonable doubt [a
particular] error did not contribute to the conviction or punishment.’” Id. (quoting TEX. R.
APP. P. 44.2(a)).
15
According to Johnson and Carter, at the time of the Carson County traffic stop
they were on their honeymoon. Beginning with voir dire the prosecutor presented a
theme built on appellants’ honeymoon. He asked panel members what items they
would likely take on a “dream honeymoon.” He gave them choices of a passport,
swimsuit, work cell phone, and a camera. None of the panel members chose their work
cell phone. During opening statement, the prosecutor told the jury the cell phones were
appellants’ work phones because they were on a business venture, traveling to
California to buy more marijuana.
Of the ninety-three State’s exhibits admitted at trial, sixty-four were the 81/2-by-11
color photographs of text messages and photographs from the phones. Another State’s
exhibit was a video recording of marijuana taken from one of the phones. Twenty
pages of the reporter’s record concerned the agent’s interpretation of text messages
and identification of cell phone photographs. The trooper testified in an illegal drug or
money laundering investigation it is “fairly common to find evidence of criminal activity
on the cell phones, either in text messages or in pictures.” Frequently, he added,
“there’s pictures of the actual narcotics prior to the stop.” In short, the record
demonstrates the products of the trooper’s warrantless search assumed a major
evidentiary place in the State’s trial proof.
The prosecutor continued the honeymoon theme in closing argument. He
classified appellants’ possession of the cell phones on their honeymoon as “the most
important part about this case.” He argued a person takes a work cell phone on a
honeymoon if it’s a business venture. And, pointing to the text messages and
16
photographs, he argued appellants had their cell phones with them because appellants
were traffickers.
Aside from the cell phone evidence, overwhelming evidence of appellants’ guilt is
not shown by this record. The cell phone evidence was significant in quantity and
substance. Its admission undergirded the State’s argument that appellants were on a
business trip and their business was making money from trafficking. It constituted a
large quantity of tangible proof of suspicious conduct, conduct lacking any legitimate
excuse or explanation. And it was substantially supportive of a jury finding that when
the trooper stopped appellants, they knowingly possessed or were transporting
proceeds from the illegal sale of marijuana.
On this record it is not possible for us to say beyond a reasonable doubt that the
cell phone evidence did not contribute to appellants’ convictions. We sustain Carter’s
second issue and Johnson’s first issue.
Johnson presented one rendition issue which we have overruled. Carter
presented none. Therefore, our review of appellants’ remaining issues is unnecessary
to the final disposition of this appeal. TEX. R. APP. P. 47.1.
Conclusion
Having sustained Carter’s second issue and Johnson’s first issue, we reverse the
trial court’s judgments of conviction and remand the cases to that court for proceedings
consistent with this opinion.
James T. Campbell
Justice
Publish.
17