Lattrell Pejuan Teal v. the State of Texas ( 2022 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00060-CR
No. 02-21-00061-CR
No. 02-21-00062-CR
No. 02-21-00063-CR
___________________________
LATTRELL PEJUAN TEAL, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 396th District Court
Tarrant County, Texas
Trial Court No. 1508820D, 1597638D, 1597640D, 1597647D
Before Kerr, Womack, and Wallach, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
I. Introduction
Appellant Lattrell Pejuan Teal had been participating in a Supervision-with-
Immediate-Enforcement (SWIFT) Court program as part of his deferred-adjudication
community supervision for drug and firearm offenses1 when one of his former
associates, seeking leniency on his own criminal charges, gave the district attorney’s
office some Facebook 2 photos and a Facebook Live video post showing Teal’s
continued engagement in drug offenses.
1
Teal was indicted for possessing illegal drugs and unlawfully possessing a
firearm. In cause number 1508820D, Teal was initially indicted for one count of
possession of heroin (one gram or more but less than four grams) and one count of
possession of marijuana in a correctional facility, both third-degree felony offenses, but
the marijuana offense was dropped by the time Teal entered the deferred-adjudication
plea bargain. See Tex. Penal Code Ann. § 38.11(d)(1), (g); Tex. Health & Safety Code
Ann. §§ 481.102(2), .115(c). In cause number 1597647D, Teal was indicted for
possession of a firearm by a convicted felon, also a third-degree felony. See Tex. Penal
Code Ann. § 46.04. In cause number 1597638D, Teal was indicted for possession with
intent to deliver etizolam (more than 28 grams but less than 200 grams), a second-
degree felony. See Tex. Health & Safety Code Ann. §§ 481.104(a)(2), .114(c). And in
cause number 1597640D, Teal was indicted for possession with intent to deliver
methamphetamine (four grams or more but less than 200 grams), a first-degree felony,
which the State reduced to the lesser-included offense of possession, a second-degree
felony. See id. §§ 481.102(6), .112(d).
2
Social-networking sites like Facebook “allow users to establish an online
account, create a profile, and then invite others to access that profile as a ‘friend.’”
Campbell v. State, 382 S.W.3d 545, 550 (Tex. App.—Austin 2012, no pet.). A Facebook
page or other social-media site can provide a wealth of information about someone,
including his or her nickname, preferences (“likes”), and photographs of his or her
current appearance, associates, and activities. See Tracy v. State, 597 S.W.3d 502, 510
(Tex. Crim. App. 2020) (“likes” and “shares”); Beham v. State, 559 S.W.3d 474, 477 (Tex.
Crim. App. 2018) (photographs); Ruffins v. State, 613 S.W.3d 192, 195 (Tex. App.—
2
Based on these Facebook materials and his over 30 years’ experience in criminal
justice, among other facts, an investigator in the DA’s office procured a search warrant
for Teal’s January 1–31, 2020 Facebook information, which included records, posts,
messages, and other videos. After the SWIFT Court judge reviewed the Facebook
information obtained under the warrant, she discharged Teal from the SWIFT Court
program for “program violations.” The State then sought to proceed to adjudication on
Teal’s deferred offenses based on his having been “unsuccessfully discharged”3 from
the SWIFT Court program.
At the revocation portion of the hearing, Teal’s Facebook records and related
testimony—but not the videos themselves—were admitted without objection. Teal
then sought to suppress the Facebook videos, first—in his written motion—because
the search warrant affidavit “did not properly establish probable cause[4] that an offense
Austin 2020, pet. granted) (nicknames); see also Tienda v. State, 358 S.W.3d 633, 634 n.3
(Tex. Crim. App. 2012) (explaining that social networking websites allow users to post
photographs and videos).
3
“Unsuccessful discharge” is probation lingo, meaning here that the SWIFT
Court judge succeeded in discharging Teal—“in other words, that her decision to
discharge [Teal] from the program was effective and within her discretion”—because
sufficient evidence supported her determination that he had become unsuccessful in
meeting the program’s requirements. See Jackson v. State, No. 06-17-00158-CR, 2018 WL
1462217, at *1 & n.1 (Tex. App.—Texarkana Mar. 26, 2018, no pet.) (mem. op., not
designated for publication).
4
A search warrant’s issuance depends on probable cause, Diaz v. State, 632 S.W.3d
889, 892 (Tex. Crim. App. 2021), which requires a sufficient nexus between criminal
activity, the items to be seized, and the place to be searched, Bonds v. State, 403 S.W.3d
867, 873 (Tex. Crim. App. 2013). We do not focus on what other facts could or should
3
had taken place”; then, during the hearing’s second day, because the warrant was
insufficiently particularized; and finally, during the hearing’s third day, because there
was insufficient probable cause to search “his entire Facebook account in the month of
January.” The trial court denied Teal’s motion, and after the trial court adjudicated Teal
guilty, the State sought to admit the Facebook videos during the punishment phase.
The trial court admitted the videos into evidence, sentenced Teal to 20 years’
confinement for each offense, and set the sentences to run concurrently.5
have been included in the warrant affidavit but on the combined logical force of the
facts that are in the affidavit. Diaz, 632 S.W.3d at 892. Although a magistrate may not
baselessly presume unsupported facts, the magistrate may make reasonable inferences
from the facts contained within the affidavit’s four corners. Foreman v. State, 613 S.W.3d
160, 164 (Tex. Crim. App. 2020), cert. denied, 141 S. Ct. 2632 (2021). Ultimately, the
test—a flexible and nondemanding standard—is whether the affidavit, read in a
commonsense and realistic manner and afforded all reasonable inferences from the
facts contained within, provided the magistrate with a “substantial basis” to issue the
warrant. Id. Even in close cases, we defer to a magistrate’s probable-cause
determination, in part because we seek to encourage police officers to use the warrant
process. Id. And the fact that the affidavit in this case sought social-media records adds
another twist militating against Teal’s position. See, e.g., George M. Dery III, The
Indiscretion of Friends: Fourth Amendment Concerns About the Ability to Predict A Person’s Online
Social Activity by Monitoring Her Contacts, 21 Minn. J.L. Sci. & Tech. 137, 145 (2020)
(“People seeking Fourth Amendment protection from predictive surveillance online
must first overcome a profound stumbling block—the fact that they have undermined
their own privacy by involving themselves in social media in the first place.”).
5
Each indictment in Teal’s cases contained a repeat-offender allegation alleging
that he had previously been convicted of attempted murder, but the State waived the
allegation in two of the cases. In the heroin and firearm cases, in which the allegation
remained, the trial court found the allegation true, enhancing the punishment range
from third-degree to second-degree felony (that is, from 2-to-10 years’ confinement to
2-to-20 years’ confinement). See Tex. Penal Code Ann. §§ 12.33(a), .34(a), .42(a).
4
In three points, Teal complains that the trial court abused its discretion by not
suppressing the videos and by proceeding to adjudicate him guilty without examining
the SWIFT Court judge’s use of discretion, which was in turn based on the Facebook
videos. Because Teal failed to preserve his suppression complaints for our review and
because the trial court did not abuse its discretion by revoking his community
supervision and adjudicating his guilt, we affirm.
II. Revocation
We review a trial court’s decision to proceed to an adjudication of guilt and to
revoke deferred-adjudication community supervision under the same standard as a
revocation of regular community supervision. See Tex. Code Crim. Proc. Ann. art.
42A.108(b); Hongpathoum v. State, 578 S.W.3d 213, 215–16 (Tex. App.—Fort Worth
2019, no pet.). The State must prove by a preponderance of the evidence that the
defendant violated at least one term or condition of his community supervision, and we
review a resulting revocation order for an abuse of discretion. Hacker v. State, 389 S.W.3d
860, 864–65 (Tex. Crim. App. 2013); Bryant v. State, 391 S.W.3d 86, 93 (Tex. Crim. App.
2012). The trial court is the sole judge of the witnesses’ credibility and the weight to be
given their testimony, Hacker, 389 S.W.3d at 865, and we review the evidence in the
light most favorable to the trial court’s ruling, Cardona v. State, 665 S.W.2d 492, 493 (Tex.
Crim. App. 1984).
5
A. Three-day hearing
We will examine the testimony and suppression arguments presented during the
revocation hearing, which took place on three nonconsecutive days over the course of
several weeks, because error preservation is a systemic requirement that we must
independently review before addressing a claim’s merits. Darcy v. State, 488 S.W.3d 325,
327–28 (Tex. Crim. App. 2016).
1. Day 1
Investigator Steve Groppi testified about his over three decades’ worth of law-
enforcement experience. Before joining the DA’s office three years earlier, he had been
a Fort Worth police officer for 30 years, 19 of them in the gang unit. He had also
worked with federal task forces on narcotics-related assignments and had become
familiar with—and had investigated cases against—Teal. He testified that Teal’s
Facebook username was Lathrell.Teal.7.
Investigator Groppi stated that between August 2019, when Teal was placed on
community supervision, and March 2020, when the State petitioned to proceed to
adjudication, he had seen one of Teal’s Facebook Live videos, which Investigator
Groppi explained was a video recorded “at that moment,” like a “live TV shot” with
which viewers could interact directly by texting comments for Teal’s real-time response.
Investigator Groppi stated that he had identified Teal by his face and voice and that
Teal displayed narcotics in the video. This prompted him to seek a search warrant for
Teal’s Facebook records for the month of January 2020. When the trial court asked if
6
defense counsel had any objection to State’s Exhibit 2 (a thumb drive of Facebook
records obtained with the warrant) and to State’s Exhibit 3 (a business-records affidavit
certifying the records), defense counsel stated, “No, sir.” The trial court admitted State’s
Exhibits 2 and 3 into evidence.6
Investigator Groppi then testified about the contents of State’s Exhibit 2, which
consisted of Teal’s Facebook messages and photos but no videos. During the January
1–31, 2020 timeframe, people had messaged Teal, asking for “zip,” “rain,” “XO’s,”
“Skittles,” and other drugs. Investigator Groppi explained that “zip” was slang for
marijuana and that “XO’s” and “Skittles” were slang for ecstasy. 7 He then testified
about some of the individual messages requesting quantities (e.g., “four grams”), prices,
and the pick-up location, which he described as the same location at which Fort Worth
police had arrested Teal for the drug offenses underlying the deferred cases.
Investigator Groppi testified about Teal’s Facebook videos, which showed Teal
rolling and smoking marijuana cigarettes, displaying pills and multiple phones,8 and
On the second day of the hearing, defense counsel informed the court that he
6
had not seen the “almost 1400 pages” in State’s Exhibit 2. However, he also
acknowledged that the State had furnished the information to him.
Ecstasy is the street name for methylenedioxymethamphetamine (MDMA),
7
which is a Penalty Group 2 controlled substance. Alford v. State, 358 S.W.3d 647, 651
(Tex. Crim. App. 2012); see Tex. Health & Safety Code Ann. § 481.103(a)(1).
8
According to Investigator Groppi, drug dealers typically have more than one
phone.
7
driving to the probation office. When the prosecutor offered one of Teal’s videos into
evidence, however, defense counsel stated that he had not seen the videos; the trial
court gave him until the hearing’s next day to review them.
Investigator Groppi continued—without objection—to testify about what he
had seen on the Facebook videos. He stated that he had seen Teal hand-roll a cigarette
with marijuana in it and then pan to his vehicle’s center console and display a “clear
plastic bag with green leafy substance, which through [his] training in 33 years of law
enforcement” has almost always been marijuana. Investigator Groppi described pills,
visible on Teal’s table, as having been light blue in a quantity of “more than ten” and
appearing to be Oxycodone or Vicodin, neither of which was legal without a
prescription. Investigator Groppi observed that “[t]hey were just laid there like he was
waiting to hand them out or something.” According to Investigator Groppi, in some of
the videos, Teal told viewers to come and buy drugs, saying things like, “I’ve got
freakathy,” a form of ecstasy tablet, and giving a price. He also saw Teal smoke
marijuana in the videos on several occasions. After receiving the Facebook videos,
Investigator Groppi turned them over to the prosecutor, who gave them to the
probation department. The remainder of Investigator Groppi’s testimony was
postponed until defense counsel could review the videos.
The rest of the hearing’s first day was dedicated to testimony by Virginia
Bourland, who worked for the Tarrant County Community Supervision and
8
Corrections Department as the SWIFT Court’s senior officer. 9 Bourland testified about
the SWIFT Court’s purpose and methods and about Teal’s background and
participation in the SWIFT Court program.
Bourland explained that the program was for probationers who were either
initially assessed as high risk to reoffend or who the court thought were “headed
towards revocation.”10 When SWIFT probationers violate a condition of their
probation, they receive a minimum of two days of jail time; the jail time is increased if
they repeat the violation. Bourland explained that if, for example, the SWIFT
probationer violated the no-drug-use probation condition, “we would increase the jail
time usually by two days at a time,” and then after the third drug-use violation, the
SWIFT probationer would be placed “in custody for a drug-and-alcohol assessment
and evaluated for treatment.” SWIFT Court probationers were drug-tested more
frequently than regular probationers. Bourland said that typically, when probationers
first enter the SWIFT Court program, “they take about six drug tests a month for the
first two months,” and if all of the drug test results are negative, the probationers are
dropped down to four drug tests a month for the next two months, then two drug tests
Bourland had been a probation supervisor for over twelve years and had been a
9
SWIFT Court officer for almost nine years.
10
The record contains the SWIFT Court Warning signed by Teal, which notes
that he was either new to probation and was assessed as posing a high risk to reoffend
or that he had been noncompliant on probation and was heading toward revocation. It
cautioned that participating in the SWIFT Court program was “not probation as usual.”
9
a month for two months, and then one drug test a month for the last month. During
that time, SWIFT Court probationers would also undergo a hair-strand drug test, which
measures three months of drug use and is harder to manipulate than a urinalysis test,
which captures short-term drug use. The hair-strand test would have to be negative to
remove a probationer from the urinalysis “hotline.” Bourland noted, however, that
during the COVID-19 pandemic, SWIFT Court probationers were not as frequently
tested.
SWIFT Court, a grant-funded program, required that a defendant be categorized
as “high risk” and monitored at a certain level to qualify. According to Bourland, Teal—
who had spent 15 years in prison for attempted capital murder and aggravated robbery
—qualified for the high-risk program “based on his criminal history [and] his
documentation as a gang member.” Teal had simultaneously been on probation in
Dallas County for another firearm offense while on probation in Tarrant County.
Bourland testified that Teal, the father of 14 children, raised and sold pit bulls
and, while on probation, also worked at a mental-health group home. He had been in
the SWIFT Court program from October 2019 to March 2020 and had violated his
probation a couple of times—first when he failed to report for his initial office visit
with his SWIFT officer and then when he traveled outside Tarrant County—but he was
not discharged from the SWIFT Court program for those violations, although he would
typically have received two days of jail time or work release. Bourland stated that most
defendants are not kicked out of the SWIFT Court program for their first violation and
10
that the SWIFT Court usually allowed them to exhaust “all jail time that [they] legally
can” because the goal is “to have them be successful on probation.”11 She stated that
“unless they get a new offense or quit showing up to probation, typically we continue
to work with them as long as they’re willing to.”
Bourland testified that Teal had passed all his urine-based drug tests but should
have been referred for a hair-strand test. He had perfect attendance in the SWIFT
Court’s cognitive behavioral outpatient day-treatment program, which he completed.
Bourland said that Teal had been “very attentive and cooperative” in the behavioral
program and had done “a good job” in it. Teal was nonetheless “unsuccessfully
discharged” from the SWIFT Court program after the DA’s office had asked her to
review some Facebook videos and photos received via the search warrant. Bourland
had reviewed the Facebook materials with the SWIFT Court judge, and she agreed that
the materials were so egregious that Teal was not given any more chances because the
SWIFT Court judge “did not feel it was right to keep a defendant in the program who
was obviously breaking his conditions of probation.”
11
Bourland stated that Teal had also had some GPS violations on his electronic
monitor “where we lost track of him for a couple of hours in January of 2020,” but
because he had tried to report a problem with the electronic monitor, he was not given
jail time.
11
2. Day 2
Two weeks later, the adjudication hearing resumed on the same day that Teal
filed his motion to suppress.12 In his motion, Teal argued that the search warrant “did
not properly establish probable cause that an offense had taken place,” and he sought
to suppress “certain incriminatory evidence which now serves as primary evidence
against [Teal] in this motion to adjudicate.”
The State objected that Teal’s motion was untimely because the Facebook
records had already been admitted into evidence. 13 State’s Exhibit 28, the warrant and
affidavit, were admitted for suppression-hearing-record purposes. The warrant, dated
February 26, 2020, ordered Facebook’s records custodian14 to furnish to Investigator
Groppi seven categories of records pertaining to Lathrell.Teal.7 for the month of
January 2020. Although the affidavit was directed to Facebook’s records custodian, it
also referred incorrectly to Google. The information sought was alleged to have been
used in violation of “Possession of a Control Substance Penalty Group 1,” and it set
Before the hearing’s second day, Teal also filed a motion for appointment of a
12
digital expert to investigate the evidence, and the trial court granted the motion. The
record contains no evidence from any such investigation.
The State also argued that the affidavit was supported by sufficient probable
13
cause.
The warrant cited “PC 187,” but California’s search-warrant statute pertaining
14
to electronic communications is California Penal Code Section 1524.3. Facebook is
headquartered in California. See Our Offices, at
https://about.facebook.com/company-info/ (lasted visited June 10, 2022).
12
forth Code of Criminal Procedure Article 18.02, Subsections (10) and (13) as grounds
for issuance. See generally Tex. Code Crim. Proc. Ann. art. 18.02(10), (13).15
In the affidavit, Investigator Groppi referenced his “extensive training in both
Criminal and Narcotics Investigations” and stated that he knew from his 31 16 years’
Article 18.02(a)(10) provides that a search warrant may be issued to search for
15
and seize “property or items, except the personal writings by the accused, constituting
evidence of an offense or constituting evidence tending to show that a particular person
committed an offense.” Tex. Code Crim. Proc. Ann. art. 18.02(a)(10). A search warrant
may not be issued under Article 18.02(a)(10) unless the supporting affidavit also sets
forth sufficient facts to establish probable cause that a specific offense has been
committed, that the specifically described property or items that are to be searched for
or seized constitute evidence of that offense or evidence that a particular person
committed that offense, and that the property or items constituting evidence to be
searched for or seized are located at or on the particular person, place, or thing to be
searched. Id. art. 18.01(c).
Article 18.02(a)(13) provides that a search warrant may be issued to search for
and seize “electronic customer data held in electronic storage, including the contents of
and records and other information related to a wire communication or electronic
communication held in electronic storage.” Id. art. 18.02(a)(13); see also id. arts. 18.02(b),
18A.001(10) (defining “electronic communication”), 18B.001(7)–(8) (defining
“electronic customer data” and “electronic storage”). An Article 18.02(a)(13) warrant
must meet the requirements of Article 18B.354, which requires the supporting affidavit
to provide sufficient and substantial facts to establish probable cause that a specific
offense has been committed and that the electronic customer data sought constitutes
evidence of that offense or evidence that a particular person committed that offense
and that the evidence is held in electronic storage by the service provider on which the
warrant is served. See id. art. 18B.354(b).
16
On February 26, 2020, Investigator Groppi signed the affidavit in which he
averred that he had “approximately 31 years” of conducting narcotics investigations.
The trial court heard the revocation case over a year later, during which time
Investigator Groppi testified that he had been a certified peace officer for 33 years, of
which 30 years had been as a Fort Worth police officer and almost 3 years had been as
an investigator in the DA’s office.
13
experience and training that Teal was using Facebook to distribute marijuana and
Xanax. He stated that Teal had received 96 months of deferred adjudication on August
26, 2019; identified three of Teal’s four deferred-adjudication cases as drug-related; and
stated that Teal’s community-supervision conditions included that he would commit no
offenses “against the laws of this State or of any other State or the United States.” He
also stated that in January 2020, he met with Racine Guillory, one of Teal’s associates;
that Guillory had received a Facebook Live post and several photos from an anonymous
source; and that Guillory showed him the photographs from
https://www.facebook.com/lathrell.teal.7, which Guillory told him was Teal’s
Facebook page. The photographs “were of what appears to be Xanax pills for sale from
[Teal],” and the Facebook Live post was of Teal “offering to sell what appears to be
marijuana.” Investigator Groppi averred that the posts “were only open to those who
are Friends on [Teal’s] Facebook page and are not open to public viewing.”
Investigator Groppi further attested in his affidavit that after meeting with
Guillory, he received a phone call from Guillory’s anonymous source, who informed
him that the Facebook posts Guillory had shown him were dated January 9, 2020.
Investigator Groppi averred that Facebook posts like the ones he was shown were
“common ways of notifying customers that the Defendant has a supply of drugs for
sale[]” and that he had reviewed Teal’s Facebook page,
https://www.facebook.com/lathrell.teal.7, which he stated he knew was one of Teal’s
many Facebook pages. Investigator Groppi stated that he believed the Facebook data
14
“may contain evidence related to illegal activity that is in direct violation of the
Defendant’s Deferred Adjudication Agreement,” and he sought “permission from the
court to conduct review of . . . LATTRELL TEAL’S Facebook Page described above.”
The trial court allowed defense counsel to voir dire Investigator Groppi on the
affidavit.17 Teal’s counsel established that Investigator Groppi had made a typo
regarding the California penal-code section and had erred by referring to Google.
Investigator Groppi acknowledged that Guillory was one of Teal’s co-defendants and
had a drug-related criminal history. He agreed that some of Guillory’s felony charges
had been dismissed on January 17, 2020, and conceded that he had never before used
Guillory as a confidential informant. Instead, Inspector Groppi said that he had verified
what Guillory told him “through the anonymous phone call.” Investigator Groppi
stated, “[I]t’s usually the anonymous source we get first and then we confirm it another
way. This time it was the person confirming it first and the anonymous source kind of
adding to it.” Investigator Groppi also agreed that Guillory had shown him a Facebook
Live post and several photos from the anonymous source.
When asked what probable cause he had to request the Facebook information,
Investigator Groppi replied, “Based on the information of Mr. Guillory and the
information I received from the anonymous source [, who] stated that’s the account it
17
Information outside the four corners of the affidavit, such as testimony from
the suppression hearing, should be considered only to determine if there was a material
misrepresentation within the affidavit. Diaz, 632 S.W.3d at 893.
15
came from. I also knew that it was his account from prior reviews of it.” When further
asked about probable cause, Investigator Groppi again referenced his experience in
narcotics-trafficking investigations. He stated that narcotics traffickers have multiple
social-media accounts and that he knew that Teal had multiple accounts. Investigator
Groppi agreed that he did not independently know that Teal specifically was using
Facebook Messenger to conduct drug transactions but that he knew from experience
that drug dealers commonly used the service.
With regard to Investigator Groppi’s attested-to narcotics experience, Teal’s
counsel asked, “You’re saying in that paragraph that you know from your experience
that this man is doing these things on Facebook when all you have is that one video
and three photos, correct?” Investigator Groppi replied, “Correct. Based on my
experience, though, and then my knowledge of his activities, that’s very common within
people who are on Facebook.”
The prosecutor then asked Investigator Groppi, “[H]ow did you come to find
out that [Teal] was selling drugs on Facebook?” Investigator Groppi replied that
another prosecutor had approached him and told him that Guillory had information
about Teal’s selling drugs on Facebook and had photos and a video. 18 Investigator
Groppi met with Guillory and viewed the photos and the Facebook Live video. From
18
The State filed a notice of potential Brady material on the same day of the
hearing regarding the Facebook materials that Guillory’s defense counsel had brought
to the State’s attention.
16
the video, he identified Teal and what appeared to be illegal narcotics—pills and
marijuana. He started working on a search warrant and then received a phone call from
the anonymous source several days later. Investigator Groppi said that he had
previously investigated Teal for domestic violence and narcotics and that Teal was
known to use and deal drugs. Guillory told him that the anonymous source was afraid
of Teal and did not want to provide the information to anyone; when Investigator
Groppi spoke with the anonymous source, the source corroborated what Guillory had
told him and what Investigator Groppi had himself seen. Investigator Groppi
acknowledged that his history with Teal was not mentioned in the affidavit.
At the conclusion of the hearing, Teal’s counsel argued that the warrant had not
been sufficiently “particularized,” referencing United States v. Morton, 984 F.3d 421 (5th
Cir. 2021), vacated by, 996 F.3d 754, 755 (5th Cir. 2021). 19 The prosecutor distinguished
19
The Fifth Circuit initially held in Morton that the good-faith exception to the
Fourth Amendment’s exclusionary rule did not apply when the officers’ reliance on
defective warrants to search a defendant’s cell phone had been objectively
unreasonable. 984 F.3d at 423. The search-warrant affidavits had sought approval to
search the defendant’s cell phone for his contacts, call logs, text messages, and
photographs, seeking evidence of his drug-possession crimes. Id. at 425. Although the
affidavits established probable cause to search the defendant’s cell-phone contacts, call
logs, and text messages for evidence of drug possession—“[t]o possess drugs, one must
have purchased them,” and his contacts, call records, and text messages could all harbor
proof of the purchase—they did not establish probable cause to support obtaining his
cell-phone photographs when the affiant’s testimony relied on actions of drug dealers
and photographs rather than drug users and there was no evidence supporting drug
trafficking. Id. at 427–29. The Fifth Circuit has since vacated the opinion for the cause
to be reheard en banc. See 996 F.3d at 755. On appeal, Teal does not mention Morton or
the cases on which the Morton court relied.
17
Morton as being based on cell-phone records instead of Facebook and argued that
Investigator Groppi had been “specific in the warrant for what he was asking for.” The
trial court denied Teal’s motion.
After that denial, and while the trial court reviewed excerpts of Teal’s Facebook
messages, Investigator Groppi again testified—without objection—about Teal’s having
used Facebook for drug transactions. Based on these excerpts and other messages that
were read into the record, Investigator Groppi opined that Teal had been engaged in
narcotics trafficking and that the messages corroborated what Guillory had told him.
The prosecutor then reoffered State’s Exhibit 4, one of the Facebook videos.
Defense counsel objected, stating, “I don’t know what’s on the disk.” The trial court
asked for the videos’ purpose, and the prosecutor replied, “All of these are for the
reasons that he was unsuccessfully discharged. So these are all of the documents that
were obtained and that both [the community supervision officer] and Judge Westfall
reviewed that was the cause of the defendant being unsuccessfully discharged from
SWIFT.” The trial court responded, “[Y]ou’ve proven up that he’s been unsuccessfully
discharged,” and asked the prosecutor if she felt “a burning need to show why he was
discharged.” The prosecutor replied, “Not at this time,” but she also stated that she
intended to play the videos if Teal was adjudicated guilty and proceeded to punishment.
The trial court asked Teal’s counsel, “So . . . if we get to a punishment hearing, would
you have an objection to me looking at those before we had the hearing?” Teal’s counsel
replied, “No, sir.”
18
After Teal’s counsel asked about the lack of photographic evidence connecting
Teal to the Facebook account, the prosecutor asked to go into the videos based on the
defense’s having “opened the door as to identity of who [was] sending these messages
that were previously published.” The trial court stated that it would need time to watch
the videos and postponed the hearing.
3. Day 3
Another two weeks passed before the hearing resumed. At the beginning of day
three of the hearing, the trial court allowed Teal’s counsel to clarify his motion to
suppress. This time, counsel argued that the time period of the search had been
overbroad, complaining that
[w]ith the information they had, they may have had probable cause to do
a specific search for the video and picture that they had seen, but the reason
we filed that motion was because we didn’t believe they had the probable cause for the
scope of the search, for his entire Facebook account in the month of January.
[Emphasis added.]
The trial court denied the motion again. The State then rested.
The defense called two witnesses: a friend of Teal’s, who claimed that he (the
friend) had posted the Facebook messages and videos, although he agreed that the
videos showed Teal; and Teal’s girlfriend of five years, with whom Teal worked at the
group home. Both claimed that Teal had not used marijuana during probation, and
Teal’s girlfriend claimed that Teal did not like the paper used in commercial cigarettes
and so he removed the tobacco from them and re-rolled them. Teal’s friend additionally
claimed that “a couple of people” had access to Teal’s Facebook account and that
19
during Teal’s probation, he had not seen Teal use or sell drugs. Teal’s girlfriend said
that “[t]he biggest change [when Teal was on probation] is he got a job. After all the
years of his life he hadn’t ever worked before and he actually accomplished that.”
The trial court found by a preponderance of the evidence that the allegation in
the State’s petition to proceed to adjudication in all four cases was true and found Teal
guilty of the offenses in those cases. The trial court then proceeded to hear punishment
evidence. The prosecutor offered State’s Exhibit 4, one of the January 2020 Facebook
videos, and after a brief discussion off the record, Teal’s counsel replied, “No further
objections, Judge.”20 The trial court admitted State’s Exhibit 4 into evidence.21 State’s
20
Although stating “no objection” when evidence complained about in a pretrial
motion to suppress is offered usually signals to the trial court an unambiguous intent
to abandon a claim of error that was previously preserved for appeal, this rule is context-
dependent. Thomas v. State, 408 S.W.3d 877, 884–85 (Tex. Crim. App. 2013). We infer
from defense counsel’s including “further” that he was referencing—and not
abandoning—his suppression-hearing arguments.
21
This 16-minute video of Teal driving to the probation office shows him
smoking a hand-rolled cigarette; he speaks directly to his phone in between glances at
the road. He also removes from his pocket a wad of cash that appears to be around
three inches thick and uses it as a pretend microphone while dancing in his seat before
placing it on his shoulder and then on the dashboard.
20
Exhibits 5–1022 and 20–22,23 additional Facebook videos, were also admitted with “[n]o
further objections,” as were State’s Exhibits 13–19, which were judgments and
sentences relating to Teal’s prior convictions.
22
State’s Exhibit 5 is a 35-minute video of Teal at home. It shows him chair-
dancing, singing along to music, and smoking a hand-rolled cigarette. One of the lyrics
he repetitively sings early in the video is “I got the product,” to which he adds, “Come
get’em!” He also mentions “XOs” and when he adjusts the phone’s camera, some three
dozen small blue pills become visible on the black table in front of him. He also breaks
apart a cigarette and sprinkles the contents onto a fresh rolling paper before reaching
off-screen to add a sprinkle of something else.
State’s Exhibit 6 is a 20-second video clip showing a bag of at least nineteen blue
pills with the notation “Prec is on deck 30$.”
State’s Exhibit 7 is a 27-minute video of Teal and a dog in a vehicle. Teal smokes,
sings, and dances as he drives without a seat belt, mostly watching his phone instead of
the road. When he pans the video over to the dog, a plastic baggie becomes visible in
the center console. When he pans over again a few minutes later, the baggie’s
contents—a leafy green substance—become visible.
State’s Exhibit 8 is a 20-second video clip showing eight large plastic baggies
containing a green leafy substance with the notation “75$ a zip” on the same black table
where the blue pills could be seen in State’s Exhibit 5. As the camera pans, another,
larger plastic bag containing smaller bags filled with colorful pills becomes visible. In a
voiceover, Teal states, “75 a zip man, come get you one.”
State’s Exhibit 9, another 20-second clip, shows a pan full of small multi-colored
pills with the notation “Freakathy pills.” In a voiceover, Teal says, “If you want to get
freaky.”
State’s Exhibit 10, a 20-second video clip, shows more multi-colored pills with
the notation “Two grams for 5[;] Pills for 1$.” In a voiceover, Teal says, “Come shop,
man” as the camera pans to multiple plastic baggies containing more of the multi-
colored pills and then to a large plastic bag containing a leafy green substance. Teal says
in a voiceover, “Come get you some weed, man.”
21
B. Preservation of Error
Teal complains that he sought to suppress the Facebook videos and the photos
taken as screenshots from those videos because the affidavit supporting the search
warrant under which the items were obtained lacked probable cause on its face. The
State responds that Teal failed to preserve this complaint because his motion to
suppress was untimely. 24
To preserve a complaint for our review, a party must have presented to the trial
court a timely request, objection, or motion stating the specific grounds, if not apparent
from the context, for the desired ruling. Tex. R. App. P. 33.1(a)(1); Thomas v. State, 505
S.W.3d 916, 924 (Tex. Crim. App. 2016). Concerning the admission of evidence, a party
23
State’s Exhibit 20 is a 43-minute video of Teal in his car, smoking a hand-rolled
cigarette, conducting one-sided, profanity-laced dialogues with his Facebook Live
followers—fortunately, not while driving—and singing along to music; the last few
minutes show Teal in his workplace, interacting with some coworkers. State’s Exhibit
21 is eight minutes of Teal in his car, driving shirtless, smoking a hand-rolled cigarette,
singing along with music, and conducting another one-sided, profanity-laced
conversation with his Facebook Live viewers. At one point, he states, “If you don’t
want no smoke, leave me alone, bro.” The last minute of the video is Teal in his house
with the black table from State’s Exhibits 5 and 8 behind him. State’s Exhibit 22 is a
14-minute video of Teal talking emotionally to his Facebook Live audience about his
gang-related credentials.
24
The State also argues that probable cause supported the warrant because
Investigator Groppi confirmed any potentially unreliable source by actually viewing the
Facebook photos and video Guillory showed to him; that even if the warrant was
overbroad, sufficient probable cause existed to obtain the videos Teal claims should
have been suppressed; and that any error in admitting the videos was harmless because
they were cumulative of other evidence.
22
must object as soon as the basis for the objection becomes apparent. Tex. R. Evid.
103(a)(1); London v. State, 490 S.W.3d 503, 507 (Tex. Crim. App. 2016); Pena v. State, 353
S.W.3d 797, 807 (Tex. Crim. App. 2011); Reyes v. State, 361 S.W.3d 222, 228–29 (Tex.
App.—Fort Worth 2012, pet. ref’d); see Lackey v. State, 364 S.W.3d 837, 843–44 (Tex.
Crim. App. 2012) (discussing policies underlying the timeliness requirement); Saldano v.
State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002) (“We have consistently held that the
failure to object in a timely and specific manner during trial forfeits complaints about
the admissibility of evidence. This is true even though the error may concern a
constitutional right of the defendant.” (citations omitted)). Although a defendant may
appeal the denial of a suppression motion determined during revocation or adjudication
proceedings, such a complaint is not preserved if the trial court does not rule on the
motion until after disputed evidence is admitted without objection. See Hongpathoum,
578 S.W.3d at 215–16.
Further, a party generally must object each time the objectionable evidence is
offered. Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003); Martinez v. State, 98
S.W.3d 189, 193 (Tex. Crim. App. 2003); Clay v. State, 361 S.W.3d 762, 766 (Tex. App.—
Fort Worth 2012, no pet.). The improper admission of evidence does not constitute
reversible error if the same facts are shown by other, unchallenged evidence. Redmond
v. State, 629 S.W.3d 534, 547 (Tex. App.—Fort Worth 2021, pet. ref’d) (citing Leday v.
State, 983 S.W.2d 713, 717 (Tex. Crim. App. 1998)); see Coble v. State, 330 S.W.3d 253,
282 (Tex. Crim. App. 2010) (noting that erroneously admitting evidence will not result
23
in reversal when other such evidence was received without objection, either before or
after the complained-of ruling).
Furthermore, an objection preserves only the specific ground cited. Tex. R. App.
P. 33.1(a)(1)(A); Tex. R. Evid. 103(a)(1)(B); Mosley v. State, 983 S.W.2d 249, 265 (Tex.
Crim. App. 1998) (op. on reh’g); see also Fierro v. State, 706 S.W.2d 310, 317–18 (Tex.
Crim. App. 1986) (holding that a general objection is insufficient to apprise the trial
court of the complaint urged and thus preserves nothing for review). We determine
whether the specific grounds for the objection were apparent from the objection’s
context by looking at each situation individually. Heidelberg v. State, 144 S.W.3d 535, 538
(Tex. Crim. App. 2004).
Additionally, the complaint made on appeal must comport with the complaint
made in the trial court or the error is forfeited. Clark v. State, 365 S.W.3d 333, 339 (Tex.
Crim. App. 2012); Lovill v. State, 319 S.W.3d 687, 691–92 (Tex. Crim. App. 2009) (“A
complaint will not be preserved if the legal basis of the complaint raised on appeal varies
from the complaint made at trial.”); Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App.
2009) (“Whether a party’s particular complaint is preserved depends on whether the
complaint on appeal comports with the complaint made at trial.”). To determine
whether the complaint on appeal conforms to that made at trial, we consider the context
in which the complaint was made and the parties’ shared understanding at that time.
Clark, 365 S.W.3d at 339; Resendez v. State, 306 S.W.3d 308, 313 (Tex. Crim. App. 2009);
Pena, 285 S.W.3d at 464.
24
Here, by the time Teal filed a motion to suppress the Facebook materials and
secured a ruling on the motion, the trial court had already admitted substantially the
same evidence without objection. This included everything obtained from Facebook—
minus the videos—and Investigator Groppi’s testimony about the Facebook records’
contents, as well as his testimony that he had turned the Facebook information over to
the prosecutor, who had given it to the probation department, where the SWIFT Court
judge reviewed it before discharging Teal from the program.
Additionally, Teal’s arguments on appeal differ from those he raised in the trial
court, where he argued that Investigator Groppi had no probable cause that an offense
had been committed to support the warrant to search Facebook’s electronic storage,
that the affidavit and search warrant were insufficiently particularized, and that there
was no probable cause to search Teal’s entire Facebook account for the month of
January. On appeal, Teal instead complains about specific errors—typos, misnomers,
informant reliability, conclusory statements, and Investigator Groppi’s lack of
qualification as an expert—some of which he mentioned during his voir dire of
Investigator Groppi but none of which he argued to the trial court as grounds to
support the motion to suppress.25 Based on the above, we conclude that Teal has failed
25
Notwithstanding the deficiencies in Investigator Groppi’s affidavit, the
magistrate had a substantial basis for concluding that there was a fair probability that
materials from Teal’s Facebook account would show Teal’s engagement in possessing
drugs illegally: Investigator Groppi’s narcotics-investigation experience and his having
actually viewed the photographs and the video of Teal engaged in what appeared to be
selling illegal drugs corroborated what Guillory and the anonymous source said. Cf. State
25
to preserve his appellate complaints for our review. Accordingly, we overrule Teal’s first
point and turn to his related complaints that the trial court abused its discretion without
examining the SWIFT Court judge’s use of discretion to discharge him.
C. Third-party discretion
Teal argues in his second and third points that, based on his appellate arguments
above, the Facebook videos were not admissible and should not have been relied upon
by the SWIFT Court to discharge him and that the trial court failed to ensure that the
SWIFT Court judge’s use of discretion was on a basis that was rational and connected
to community-supervision purposes. Teal refers us to Leonard v. State, 385 S.W.3d 570(Tex. Crim. App. 2012) (op. on reh’g), and Torres v. State, 617 S.W.3d 95 (Tex. App.—
Houston [1st Dist.] 2020, pet. ref’d), to support his argument that the State
has discovered a new way to engineer a probation revocation[—]just
present ex parte whatever information they wish to the program
administrator, without notice and hearing, and convince the administrator
to discharge the defendant from the program “unsuccessfully.” Then
follow up with a petition to proceed with adjudication and declare it a
foregone conclusion.
v. Duarte, 389 S.W.3d 349, 358–60 (Tex. Crim. App. 2012) (stating that nothing
corroborated the first-time informant’s hearsay statement beyond confirming the
defendant’s address and nothing in the affidavit suggested the defendant was engaged
in drug-dealing). And Teal never explained—in the trial court or on appeal—why the
one-month limit was overbroad or which of the seven categories of information from
Facebook were unrelated to the alleged offense. Cf. Bihter Ozedirne, Fourth Amendment
Particularity in the Cloud, 33 Berkeley Tech. L.J. 1223, 1236 (2018) (noting that as to
obtaining service-provider data, “[c]ourts have employed two methods: (1) requiring a
temporal limitation in the warrant, and (2) requiring the service provider to filter content
by turning over, for example, only e-mail to or from particular persons. Some courts
have chosen to implement both methods, while others only required one.”).
26
On the facts before us, this is not what the State has done, in contrast to the facts
of Leonard and Torres.
In Leonard, the State petitioned to revoke Leonard’s deferred-adjudication
community supervision based on his unsuccessful discharge from sex-offender
treatment. 385 S.W.3d at 572–73. The psychotherapist who discharged Leonard from
the program—over the defense’s objection—testified that he had discharged Leonard
because Leonard had failed five polygraphs and because he believed Leonard was not
being truthful based on his admissions after failing the polygraphs. Id. at 573. The
psychotherapist further testified that he had no basis beyond the failed polygraphs to
discharge Leonard from the program or to believe that Leonard was being dishonest.
Id. He did not conduct the polygraphs himself, gave no information about the
polygrapher, did not testify about what specific questions Leonard was asked or his
responses, or provide any details about how the polygraphs were conducted. Id. at 573–
74. Leonard argued that the polygraph-related testimony was per se inadmissible, but
the trial court found the State’s allegation true, adjudicated Leonard guilty, and
sentenced him. Id. at 574. The intermediate appellate court reversed the trial court’s
judgment based on “trial by polygraph,” and the Court of Criminal Appeals affirmed
this decision. Id. at 572, 575.
In its analysis, the Court of Criminal Appeals noted that the trial court had not
adjudicated Leonard’s guilt based on the failed polygraph examinations but rather
27
because he had failed to successfully complete the sex-offender treatment program,
which was a condition of his community supervision. Id. at 576. The court stated, “It
would surely offend due process if a defendant were discharged from his therapy
program for a wholly inappropriate reason—such as illegal discrimination or mere
caprice—and the bare fact of that discharge were used as a basis to revoke the
defendant’s community supervision.” Id. at 577. Accordingly, the court concluded that
when an appellant’s compliance with a community-supervision condition is subject to
a third party’s discretion, to determine whether the trial court abused its discretion the
reviewing court must examine the third party’s use of its discretion to ensure that it
(1) had a rational basis and (2) was connected to community supervision’s purposes. Id.
Because the polygraph results were inadmissible, there was no basis for the
psychotherapist’s decision to discharge Leonard, resulting in an abuse of discretion by
the trial court. Id. at 577, 583.
Our sister court applied Leonard in Torres. Torres had received deferred-
adjudication community supervision that included shock treatment in a substance-
abuse felony-punishment facility (SAFPF) where he was required to comply with all
rules, regulations, and treatment programs. 617 S.W.3d at 98. The State moved to
adjudicate guilt, alleging that Torres had failed to complete the SAFPF community-
supervision condition. Id. At the hearing, the Harris County SAFPF coordinator
testified that Torres was unsuccessfully discharged from the SAFPF program and that
the coordinator had prepared the discharge report based on information conveyed to
28
him during a telephonic “treatment team meeting” with prison personnel. Id. at 98–99.
But the coordinator admitted that he had no personal knowledge of the specific
violations that had led to Torres’s discharge or the particular source of any of the alleged
violations—including other inmates—used to discharge Torres from the program. Id.
at 99–100. And the discharge report itself was vague and unsupported, referencing only
“numerous rules violations” and Torres’s unsuccessful discharge “as a result.” Id.
Torres objected to the report as hearsay and a violation of his rights of confrontation
and cross-examination, and he testified that the complaints against him had come from
other inmates. Id. at 99, 100. The trial court granted the State’s motion. Id. at 101.
On appeal, our sister court concluded that even if the trial court had not abused
its discretion by admitting the report, the State’s evidence was insufficient for the trial
court to properly exercise its discretion in revoking Torres’s community supervision.
Id. at 97, 102–04. The court noted that the discharge report contained only conclusory
statements without sufficient detail, elaboration, or supporting facts, and the report’s
author admitted that he had no personal knowledge of the incidents referenced in the
report and did not know the source of the allegations. Id. at 104. When compared to
other evidence in the record—that Torres had been successfully completing the SAFPF
program; a progress report stating that since his recommendation for removal, Torres
had had no disciplinary problems and had been behaving appropriately; and Torres’s
own testimony—the report was “evidence only of the fact that Torres was discharged
unsuccessfully from the program.” Id. Without more, then, the trial court could not
29
have determined whether the SAFPF’s reasons were appropriate or based on
unfounded allegations from fellow inmates. Id. at 104–05. Because the record reflected
that the trial court had failed to consider the soundness of SAFPF’s use of its discretion
to ensure that it was used on a basis that was rational and connected to the community-
supervision purposes, the court reversed the trial court’s judgment. Id. at 105.
In contrast to the Leonard and Torres facts, although Teal argues that the
Facebook videos were inadmissible based on an insufficient search-warrant affidavit,
Teal did not object in the trial court to Investigator Groppi’s testimony about their
contents, and—based on our resolution above regarding probable cause and
Investigator Groppi’s affidavit—there is nothing inherently inadmissible about the
videos, unlike the polygraphs in Leonard or the conclusory statements and lack of
personal knowledge in Torres.
To support revocation of Teal’s community supervision, the State had to prove
by a preponderance of the evidence (1) that the SWIFT Court discharged Teal before
he successfully completed the program and (2) that the basis for his discharge was
“rational and connected to the purposes of community supervision.” See Hammack v.
State, 466 S.W.3d 302, 305 (Tex. App.—Texarkana 2015, no pet.) (referencing Leonard,
385 S.W.3d at 577).
The Facebook evidence upon which the SWIFT Court judge based her decision
showed that Teal, who had been placed on deferred-adjudication community
supervision for three illegal-drug offenses, was continuing to engage in illegal-drug-
30
related activities contrary to his community-supervision conditions. Viewed in the light
most favorable to the judgments, the evidence demonstrates that the SWIFT Court
judge’s “program violations” bases for her decision to discharge Teal from the SWIFT
Court program were both rational and related to the purposes of community
supervision, one of which is to “reform the defendant.” See Tex. Code Crim. Proc. Ann.
art. 42A.301(a). That is, the evidence clearly showed that Teal had not been reformed,
and the trial court did not abuse its discretion by determining—based on Investigator
Groppi’s testimony about the Facebook information—that the SWIFT Court Judge’s
unsuccessful-discharge order supported revocation. Accordingly, we overrule Teal’s
second and third points.
III. Conclusion
Having overruled all of Teal’s points, we affirm the trial court’s judgments.
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: June 16, 2022
31