FOREMAN v. STATE

Nos. 14-15-01005-CR, 14-15-01006-CR.

NATHAN RAY FOREMAN, Appellant, v. THE STATE OF TEXAS, Appellee.

Court of Appeals of Texas, Fourteenth District, Houston.


Attorney(s) appearing for the Case

Eric Kugler , Kim K. Ogg , Clinton Morgan , for State of Texas.

Nathan Ray Foreman, Stanley G. Schneider , for Nathan Ray Foreman, Appellant.

Panel consists of Justices Christopher, Jamison, and Donovan (Christopher, dissenting) (Donovan, concurring).


PLURALITY OPINION

MARTHA HILL JAMISON, Justice.

In one issue, appellant Nathan Ray Foreman challenges the denial of his motions to suppress surveillance video evidence found on a computer hard drive.1 A jury found appellant guilty of aggravated robbery and aggravated kidnapping, and the trial court assessed 50 year sentences to run concurrently.

The offenses occurred in part in a custom auto shop. A video surveillance system captured a portion of the offenses on video. At trial, the trial judge admitted the surveillance video, which was obtained from a computer tower seized from the shop. Appellant argues that the police officer's affidavit in support of the issuance of the search warrant "failed to set forth facts sufficient to establish probable cause that surveillance video or surveillance equipment would be located at the place to be searched" in violation of the Fourth Amendment of the United States Constitution, article I, section 9 of the Texas Constitution, and chapter 18 of the Texas Code of Criminal Procedure.

The cornerstone of the Fourth Amendment and article I, section 9 is that a magistrate shall not issue a search warrant without first finding "probable cause" that particular evidence of a particular crime will be found in a particular location. Rodriguez v. State, 232 S.W.3d 55, 60 & n.15 (Tex. Crim. App. 2007) (citing U.S. Const. amend. IV and Tex. Const. art. I, § 9); see also Bonds v. State, 403 S.W.3d 867, 872-73 (Tex. Crim. App. 2013). The Code of Criminal Procedure allows the issuance of a search warrant to seize property or items that constitute evidence of an offense. State v. Dugas, 296 S.W.3d 112, 115-16 (Tex. App.-Houston [14th Dist.] 2009, pet. ref'd) (citing Tex. Code Crim. Proc. art. 18.02(a)(10)). Before a search warrant may issue, a sworn affidavit must be filed setting forth sufficient facts to show probable cause that (1) a specific offense has been committed; (2) the specifically described property or items to be searched for or seized constitute evidence of that offense or evidence that a particular person committed that offense; before a third trial judge. She noted that the matter already had been heard by two judges and admitted the surveillance video over appellant's objections. and (3) the property or items constituting such evidence are located at or on the particular person, place, or thing to be searched. Id. (citing Tex. Code Crim. Proc. art. 18.01(c)).

Probable cause exists when, under the totality of the circumstances, there is a fair probability or substantial chance that contraband or evidence of a crime will be found at a specified location. Bonds, 403 S.W.3d at 873; Rodriguez, 232 S.W.3d at 60. This standard is "flexible and nondemanding." Bonds, 403 S.W.3d at 873; Rodriguez, 232 S.W.3d at 60. Because of the flexibility in this standard, neither federal nor Texas law defines precisely what degree of probability suffices to establish probable cause, but that probability cannot be based on mere conclusory statements of an affiant's belief. Rodriguez, 232 S.W.3d at 61.

An affiant must present an affidavit that allows the magistrate to determine probable cause independently: the magistrate's actions cannot be a mere ratification of the bare conclusions of others. Id. However, when reviewing a magistrate's decision to issue a warrant, trial and appellate courts apply a highly deferential standard in keeping with the constitutional preference for a warrant.2 Id. Thus, when reviewing an issuing magistrate's determination, we interpret the affidavit in a commonsensical and realistic manner, recognizing that the magistrate may draw reasonable inferences. Id. We defer to all reasonable inferences that the magistrate could have made. Id.

The issue is not whether there are other facts that could have, or even should have, been included in the affidavit: we focus on the combined logical force of facts that are in the affidavit, not those that are omitted from the affidavit. Rodriguez, 232 S.W.3d at 62. Concomitantly, our review is restricted solely to the four corners of the affidavit. Bonds, 403 S.W.3d at 873; Walker v. State, 494 S.W.3d 905, 907 (Tex. App.-Houston [14th Dist.] 2016, pet. ref'd). We are not to invalidate a warrant by interpreting the affidavit in a hyper-technical rather than a commonsense manner. Bonds, 403 S.W.3d at 873; Walker, 494 S.W.3d at 907.

With these general principles in mind, we turn to the affidavit in this case. Applying a commonsense reading, we conclude that the affidavit contained sufficient facts from which the trial court could find probable cause based on a fair probability that surveillance equipment would be found at the auto shop containing evidence of the offenses.

The affiant stated that he "ha[d] reason to believe and [did] believe" that evidence of the offenses would be found at the auto shop, including, among other things, audio/video surveillance equipment.3 The affidavit described a number of facts about the auto shop. The windows and front door of the business were dark tinted glass, and the back of the business had an aluminum bay door opening into the business. The affidavit also describes a number of facts regarding the specific offenses. Two men had agreed to meet someone named "Jerry" at the specifically-described custom auto shop, Dreams Auto Customs, to conduct business. When the two men arrived, several suspects grabbed them, tied them up, beat them, poured gasoline on them, and threatened to set them on fire. The suspects stole cash and other items from the men. The suspects then forced the men into the back of a van at gunpoint, only then leaving the auto shop. The men jumped out of the moving van because they believed they were going to be killed. As the men jumped, they were shot by the suspects.

A witness reported she observed the men lying injured on the side of a road with their hands tied and mouths duct-taped. They had suffered multiple gunshot wounds. Another witness had seen the men exiting a van while it was moving down the road.

One of the injured men directed the affiant to the auto shop, which he determined was owned by appellant's wife. The affiant showed appellant's photograph to the man, who identified appellant as a suspect who punched the men, ordered other suspects around, poured gasoline on the men, and told other suspects to take the men away in the van.

Based upon this information, the affiant believed that DNA from the men and the suspects, as well as property belonging to the men and "instrumentalities of the crime such as the white van . . ., guns . . ., [and] zip ties" used to tie the men, would be found inside the auto shop. The affiant also believed surveillance equipment "may be found" there. The affidavit established a sufficient nexus between criminal activity, the things to be seized, and the place to be searched. Bonds, 403 S.W.3d at 873. From the face of the affidavit, it is a reasonable inference that surveillance equipment found in the auto shop, if any, would have recorded evidence of the criminal activity. See Rodriguez, 232 S.W.3d at 62. However, appellant argues that it is not a reasonable inference that surveillance video or surveillance equipment would be inside the shop.4 The State argues, to the contrary, that there is a reasonable probability that "more or less every business" would have surveillance equipment and thus the magistrate fairly could infer that surveillance equipment would be located on the premises.

We do not ask whether or not surveillance equipment was actually seen by the affiant. The proper inquiry is whether there are sufficient facts, coupled with inferences from those facts, to establish a fair probability or substantial chance that surveillance equipment containing evidence of the offenses would be found inside the auto shop. See Bonds, 403 S.W.3d at 873; Rodriguez, 232 S.W.3d at 62. We conclude that the facts in the affidavit and reasonable inferences drawn therefrom support a finding of a fair probability that surveillance equipment containing evidence of the offenses would be inside the auto shop.

A fair probability rests in the allegation that the offenses occurred in a building where the windows were blacked-out and a bay door opened directly into the premises and where valuable property (vehicles) belonging to customers, along with other expensive custom auto equipment, presumably was housed. Even the name of the business, "Dreams Auto Customs," supports the inference that expensive custom equipment would be there. From these facts, a magistrate reasonably could have inferred that a business owner interested in obscuring the view into his windows and providing secure access to the building within which such property is housed also would have a security system in place, including surveillance equipment, and such surveillance equipment probably recorded evidence of the criminal activity occurring there.5 See, e.g., Walker, 494 S.W.3d at 909 (holding magistrate reasonably could have inferred that evidence probably would be on the defendant's cell phone when the defendant had been communicating with the complainant and planning robberies around the time the complainant was robbed and killed); Eubanks v. State, 326 S.W.3d 231, 248 (Tex. App.-Houston [1st Dist.] 2010, pet. ref'd) (holding magistrate reasonably could have inferred that defendant had pornographic photographs stored on a computer when he allegedly made the complainants pose for nude or partially nude photographs, even though the complainants did not mention the use of a digital camera or a computer).

The dissent agrees that the only element of article 18.02(c) at issue here is whether the affidavit sets forth sufficient facts to establish probable cause that the property is located at the place to be searched. See Tex. Code Crim. Proc. art. 18.01(c)(3). The dissent says that "[t]he affidavit did not mention any facts to support the conclusion that a video surveillance system existed at the body shop." Dissent at 2. This is simply incorrect. The affidavit includes multiple facts supporting that conclusion. Supra at 4-6. The dissent fails to credit all of the facts in the affidavit and cherry-picks only the fact that the offense occurred in a business to conclude that our holding would be applicable to any business. But our holding is not based solely on that one fact: it is based on all the relevant specific facts in the affidavit discussed above. We focus on the combined logical force of facts that are in the affidavit to determine whether the magistrate's inference was reasonable. See Rodriguez, 232 S.W.3d at 62.

The "computer/camera" and cellphone cases on which the dissent relies are distinguishable because they all address the second element of article 18.02(c), whether "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," not the third element involving whether evidence is located at the place to be searched: only the latter is at issue here.6 See Tex. Code Crim. Proc. art. 18.01(c)(2).

Considering the facts contained in the four corners of the affidavit and the reasonable inferences therefrom under the totality of the circumstances, we conclude that the facts submitted to the magistrate demonstrated a fair probability that surveillance equipment revealing evidence of the offenses would be inside the auto shop when the warrant was issued. See Eubanks, 326 S.W.3d at 249. Accordingly, the trial judges did not err in denying appellant's motions to suppress. We overrule appellant's sole issue on appeal.

We affirm the judgment of the trial court.

CONCURRING OPINION

JOHN DONOVAN, Justice.

Appellant raises a single issue on appeal — the denial of his motions to suppress video surveillance. The video surveillance was found on the hard drive of a computer that was seized from Dreams Auto Customs Shop, the business wherein the two complainants were assaulted and from which they were kidnapped. Because I would affirm the trial court's judgment on the basis that appellant failed to meet his burden to establish standing to challenge the seizure, I concur.

In order to challenge a search and seizure under either the United States or Texas Constitutions and article 38.23, a party must first establish standing. See Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004); Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); Martinez v. State, 236 S.W.3d 361, 367 (Tex. App.-Fort Worth 2007, pet. dism'd). Standing is a question of law that we review de novo and may be raised by this court sua sponte. Kothe, 152 S.W.3d at 59-60; State v. Millard Mall Svcs., Inc., 352 S.W.3d 251 (Tex. App.-Houston [14th Dist.] 2011, no pet.).1 It is the defendant's burden to provide facts that establish standing. See Villarreal, 935 S.W.2d at 138; see also Millard Mall Svcs., 352 S.W.3d at 253. Failure to meet that burden and to establish standing may result in the denial of the motion to suppress. State v. Klima, 934 S.W.2d 109, 110 (Tex. Crim. App. 1996). That decision will not be disturbed on appeal even in cases in which the record does not reflect that the issue was ever considered by the parties or the trial court. Id.

In determining whether appellant has established standing, we consider both the expectation of privacy approach and the property-based approach. See State v. Bell, 366 S.W.3d 712, 713 (Tex. Crim. App. 2012) (citing United States v. Jones, 565 U.S. 400, 132 S.Ct. 945, 181 L. Ed. 2d 911 (2012)).2 "A Fourth Amendment claim may be based on a trespass theory of search (one's own personal "effects" have been trespassed), or a privacy theory of search (one's own expectation of privacy was breached). Ford v. State, 477 S.W.3d 321, 328 (Tex. Crim. App. 2015).

To establish standing under the latter privacy theory, the defendant must show (1) that he had a subjective expectation of privacy in the place or property searched and (2) that society would recognize that expectation of privacy as being objectively reasonable. State v. Betts, 397 S.W.3d 198, 203 (Tex. Crim. App. 2013); Lown v. State, 172 S.W.3d 753, 759 (Tex. App.-Houston [14th Dist.] 2005, no pet.). In considering the latter, we examine the totality of the circumstances surrounding the search, including "(1) whether the accused had a property or possessory interest in the place invaded; (2) whether he was legitimately in the place invaded; (3) whether he had complete dominion or control and the right to exclude others; (4) whether, before the intrusion, he took normal precautions customarily taken by those seeking privacy; (5) whether he put the place to some private use; and (6) whether his claim of privacy is consistent with historical notions of privacy." Id. (citing Granados v. State, 85 S.W.3d 217, 223 (Tex. Crim. App. 2002); Villarreal, 935 S.W.2d at 138); Lown 172 S.W.3d at 759. This is a non-exhaustive list and no one factor is dispositive. Betts, 397 S.W.3d at 203-04; Lown 172 S.W.3d at 759. An expectation of privacy in commercial premises is less than a similar expectation in a home. See New York v. Burger, 482 U.S. 691, 700, 107 S.Ct. 2636, 2642, 96 L.Ed.2d 601 (1987).

There is scant evidence in the record pertinent to the standing issue. Officer Arnold averred that he "researched the location and found the owner to be Charese Foreman . . . married to Nathan Ray Foreman." The record includes a copy of Nathan and Charese's marriage license. It also includes a copy of a "WITHDRAWAL NOTICE OF ASSUMED NAME" on which Charese Foreman is listed as the sole owner. The motion to suppress refers to the shop as "his business" and similar references were made by counsel during trial.3 Photographs admitted into evidence show the computer for the audio surveillance system was in an office with two desks. Although there was a lock on the door, it was unlocked and no keys were required for entry. The testimony of Officer Douglas Ertons was that the computer was not password protected. Considering these facts, there was no evidence appellant had a subjective expectation of privacy in the computer seized. See Villarreal, 935 S.W.2d at 138.

Next, appellant did not show that any expectation of privacy he had was one society would recognize as being objectively reasonable. See Granados, 85 S.W.3d at 222-23; Villarreal, 935 S.W.2d at 138. The record does not reflect the shop was community property but even assuming appellant's status as the owner's spouse gave him a possessory interest, the totality of the circumstances do not establish his standing to challenge the seizure. There is no evidence that appellant ever used the computer, much less that he had dominion or control over it, or the right to exclude others from its use. There is no evidence as to whether appellant primarily occupied and controlled the office in which the computer was located or had the right to exclude others from it. The computer itself was not password protected. Thus, under the property-based approach, there was also no evidence that appellant's own personal effects were trespassed. See Ford, 477 S.W.3d at 328. See also Williams v. State, 502 S.W.3d 254, 258-61 (Tex. App.-Houston [14th Dist.] 2016, pet. ref'd) (holding defendant lacked standing to challenge the search of the home under both theories of privacy).

Because appellant did not meet his burden to show that he had standing to complain of the seizure under either privacy theory, I would find the trial court did not err by denying the motion to suppress. See Betts, 397 S.W.3d at 203-04 (listing the Granados factors); see also Myrick v. State, 412 S.W.3d 60 (Tex. App.-Texarkana 2013, no pet.). I therefore respectfully concur in this court's judgment.

DISSENTING OPINION

TRACY CHRISTOPHER, Justice.

In what appears to be a case of first impression, we are asked to decide whether a magistrate can infer that a video surveillance system is present in the interior of an auto body shop and would have recorded any crime that took place inside the shop without any facts indicating as such in the affidavit in support of a search warrant. The opinion by Justice Jamison concludes that a magistrate could have inferred that valuable property (vehicles) along with other "expensive custom auto equipment" is in the building and that a business owner could have had a security system in place, including video surveillance equipment. If this holding stands, a magistrate could make those same inferences for any business. And in this day and age, where a security system is cheaply available for personal use, a magistrate could make those same inferences for any home too. I think the inference in this case goes too far and is contrary to our cases requiring specific facts before a search warrant is issued.

Standing

Before reaching Justice Jamison's plurality opinion on the sufficiency of the affidavit, I briefly address Justice Donovan's concurring opinion on standing, with which I respectfully disagree.

A defendant has standing to contest a search if he has a legitimate expectation of privacy in the place invaded. See Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). To prove that he had a legitimate expectation of privacy, the defendant must show (1) that by his conduct, he exhibited an actual subjective expectation of privacy; and (2) that circumstances existed under which society was prepared to recognize his subjective expectation as objectively reasonable. Id.

The State did not challenge appellant's standing in the trial court. Appellant asserted in his motion to suppress that the body shop was his, and at the hearing on the motion, the State even referred to the seized computer as "his computer." The trial court also granted appellant's motion in part, which suggests that the trial court believed that there were facts establishing appellant's standing.

Justice Donovan appears to conclude that appellant lacked standing because there is evidence that appellant's wife was the record owner of the body shop where he conducted his business. Even if true, this evidence is not dispositive. A person can have standing to contest a search even if record title in the place searched is in the name of a third party. Cf. Parker v. State, 182 S.W.3d 923 (Tex. Crim. App. 2006) (boyfriend had standing to contest the search of a rental car that he borrowed from his girlfriend, even though the girlfriend was the only authorized driver under the rental agreement).

I would conclude that appellant established that he at least had a possessory interest in the body shop, and that society would be prepared to recognize as reasonable his expectation of privacy in the body shop. See Villarreal, 935 S.W.2d at 138 (holding that the accused may have standing whether he had a property or possessory interest in the place invaded).

General Law

Article 18.02 of the Code of Criminal Procedure enumerates the types of items that be searched for and seized pursuant to a search warrant. A video surveillance system falls under the general scope of Article 18.02(a)(10): "property or items . . . constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense." See Tex. Code Crim. Proc. art. 18.02(a)(10).

To obtain a search warrant under Article 18.02(a)(10), there must be a sworn affidavit setting forth sufficient facts to establish probable cause that (1) a specific offense has been committed, (2) the specifically described property or items that are to be search for or seized constitute evidence of that offense or evidence that a particular person committed that offense, and (3) 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).

This case involves the third requirement—were there facts in the affidavit from which a magistrate could reasonably infer that a video surveillance system was located at the body shop? The answer to that question is clearly no. The affidavit did not mention any facts to support the conclusion that a video surveillance system existed at the body shop. For example, there was no mention that surveillance cameras were visible on the exterior of the body shop, nor was there a mention that cameras had been spotted inside the building. Lacking that information, Justice Jamison still infers that such a system existed.

Reasonable Inferences

Magistrates are permitted to draw reasonable inferences from the facts and circumstances alleged in the affidavit. The following are a few of the more common themes that have developed in our case law:

Instrumentalities of the crime. In Ramos v. State, 934 S.W.2d 358, 363 (Tex. Crim. App. 1996), the court explained that in a murder case, a magistrate could reasonably infer that a weapon could be found at the residence where the murder took place. (Of course, a surveillance video is not an instrumentality of the crime.) Possession of contraband. In Rodriguez v. State, 232 S.W.3d 55, 62-63 (Tex. Crim. App. 2007), the court held that a magistrate could reasonably infer that a garage contained drugs based on information that a man went to the garage, walked out with a package, threw the package in his car, and was later stopped with a package containing drugs. See also Moreno v. State, 415 S.W.3d 284, 288 (Tex. Crim. App. 2013) (involving similar inference based on information from a confidential informant). Skills and training. In Davis v. State, 202 S.W.3d 149, 155-57 (Tex. Crim. App. 2006), the court held that a magistrate could reasonably infer that an officer was qualified to recognize the odor of methamphetamine, even though the affidavit was silent as to the officer's skills and training. Time. In State v. Jordan, 342 S.W.3d 565, 571 (Tex. Crim. App. 2011), a case involving a warrant to seize blood in connection with a suspected DWI, the officer did not indicate the precise time of his observations, but the court held that a magistrate could reasonably infer that the officer's observations occurred on the same date that the offense was alleged to have occurred, and that this information was not stale because the affidavit was presented shortly after midnight. See also Crider v. State, 352 S.W.3d 704, 710-11 (Tex. Crim. App. 2011) (reaching a different conclusion where the window of time was much greater); State v. McLain, 337 S.W.3d 268, 273 (Tex. Crim. App. 2011) (holding that the trial and appellate courts should have deferred to the magistrate's implied finding that an ambiguous phrase in an affidavit referred to the time that an informant made his observations). Credibility of an anonymous informant. In Flores v. State, 319 S.W.3d 697, 703 (Tex. Crim. App. 2010), the court held that a magistrate could reasonably conclude that an anonymous informant had some familiarity with the defendant based on corroborating evidence and the "doctrine of chances." See also State v. Duarte, 389 S.W.3d 349, 359-60 (Tex. Crim. App. 2012) (tip from a first-time confidential informant was not reliable where there was no detail or corroboration). Personal knowledge. In Jones v. State, 568 S.W.2d 847, 855 (Tex. Crim. App. 1978), the court held that a magistrate could reasonably infer that information conveyed in the passive voice was information within the personal knowledge of the affiant.

None of the cases cited above would support the inferential leap made by Justice Jamison. Nor do the cases that are cited in her opinion.

To support my opinion, I look to two different types of cases: computer/camera cases and cellphone cases. Before we allow a search of either of those electronic devices, we have required specific facts to support an inference that those devices probably exist and that the evidence of the crime will be found on those devices.

Computer/camera cases

Generally, to support a search warrant for a computer, there must be some evidence that a computer was directly involved in the crime. See Ryals v. State, 470 S.W.3d 141, 143, 146 (Tex. App.-Houston [14th Dist.] 2015, pet. ref'd) (defendant told an undercover officer that he would use a computer to make fake IDs); Ex parte Jones, 473 S.W.3d 850, 856 (Tex. App.-Houston [14th Dist.] 2015, pet. ref'd) (defendant subscribed to a commercial child pornography website); Porath v. State, 148 S.W.3d 402, 409 (Tex. App.-Houston [14th Dist.] 2004, no pet.) (defendant met the complainant in an internet chat room).

When there is no evidence that a computer was directly involved in the crime, more is generally needed to justify a computer search. An opinion authored by Justice Jamison illustrates my point. In Checo v. State, 402 S.W.3d 440 (Tex. App.-Houston [14th Dist.] 2013, pet. ref'd), the defendant kidnapped a little girl and took her to a house, where he showed her adult pornography on a desktop computer. The defendant then took the complainant to another room, where he attempted to assault her. The complainant observed a laptop in that room that was set up to take pictures and videos. The affiant obtained a warrant to search for child pornography (which the complainant had not been shown), and the defendant moved to suppress the results of the search, arguing that there was no information in the officer's affidavits that the defendant photographed or videotaped the complainant, or other information independently linking him to child pornography. We rejected that argument, noting affidavit testimony from the officer that those who engage children in a sexually explicit manner often collect child pornography on their computers. Given this level of factual specificity, we held that the search warrant was valid.

Another illustrative case is Aguirre v. State, 490 S.W.3d 102 (Tex. App.-Houston [14th Dist.] 2016, no pet.), which was authored by Justice Donovan, and which I joined. There, a child complainant described how the defendant would photograph her while they had sex. The complainant's mother stated that the defendant had a laptop that he did not allow anyone to use. The police officer affiant testified that based on her training and expertise, child molesters will often use their computers to store and exchange sexually explicit images of children. We held that the affidavit was sufficient to support a search of the defendant's computer.

But in this case, the affiant provided no facts that a computer or camera was involved in the crime, directly or indirectly.1

Cellphone cases

Similarly, an affidavit offered in support of a warrant to search a cellphone must usually include facts that a cellphone was used during the crime or shortly before or after. In Walker v. State, 494 S.W.3d 905 (Tex. App.-Houston [14th Dist.] 2016, pet. ref'd), we concluded that there was probable cause to search a defendant's cellphone when the affidavit stated that the defendant admitted to shooting the complainant, and there was other information that the defendant and the complainant knew each other, communicated by cellphone, and exchanged messages and phone calls around the time of the shooting.

In Aguirre, mentioned earlier, we also held that the affidavit was sufficient to search all of the defendant's cellphones when the complainant said that a particular cellphone was used to photograph her and that the defendant had used instant messenger to send a photograph of his penis. Based on the affiant's opinion testimony that pedophiles share pornography through electronic media, we concluded that all of the cellphones could be searched.

In Humaran v. State, 478 S.W.3d 887 (Tex. App.-Houston [14th Dist.] 2015, pet. ref'd), the defendant made a "disturbance" call to police and there was evidence that she and a codefendant had murdered a person and set the body on fire. We concluded that the facts were sufficient to support a search of her cellphone.

The conclusion from these cases

Courts allow magistrates to make reasonable inferences that often center on certain types of assumptions, but none of those assumptions has been the existence of a video surveillance system. Precedent from our own court with respect to computers and cellphones requires specific evidence that a computer or cellphone was used in the crime, or that the facts of the type of crime itself lead to the conclusion that a computer or cellphone was used. I see no reason to treat a case involving video surveillance systems any differently.

Justice Jamison's stacking of inferences could lead to all computers and cellphones being searchable for any type of video or picture that could have recorded a crime, even though the affiant provided no facts suggesting that a computer or cellphone even existed. If a crime took place at your home, is it reasonable to assume that you have a security system that links to either your computer or cellphone, subjecting them both to a search?

I would conclude that the affiant provided insufficient facts to support a finding that a video surveillance system was located at the body shop, and that the trial court erred by denying the motion to suppress.

Harm

This error is constitutional, and therefore, this court must reverse the conviction unless we determine "beyond a reasonable doubt that the error did not contribute to the conviction." See Tex. R. App. P. 44.2(a); Taunton v. State, 465 S.W.3d 816, 823-24 (Tex. App.-Texarkana 2015, pet. ref'd). This standard for determining harmful error "should ultimately serve to vindicate the integrity of the fact-finding process rather than simply looking to the justifiability of the fact-finder's result." See Snowden v. State, 353 S.W.3d 815, 819 (Tex. Crim. App. 2011). Accordingly, we must focus not on whether the jury verdict was supported by legally sufficient evidence, but rather, on whether "the error adversely affected the integrity of the process leading to the conviction," Langham v. State, 305 S.W.3d 568, 582 (Tex. Crim. App. 2010), or on whether "the error at issue might possibly have prejudiced the jurors' decision-making." Harris v. State, 790 S.W.2d 568, 586 (Tex. Crim. App. 1989), overruled on other grounds by Snowden, 353 S.W.3d at 821-22.

An error is not harmless "simply because the reviewing court is confident that the result the jury reached was objectively correct." See Snowden, 353 S.W.3d at 819. Error is not harmless "if there is a reasonable likelihood that it materially affected the jury's deliberations." See Neal v. State, 256 S.W.3d 264, 284 (Tex. Crim. App. 2008). Nor is error harmless if it "disrupted the jury's orderly evaluation of the evidence." See Walker v. State, 180 S.W.3d 829, 835 (Tex. App.-Houston [14th Dist.] 2005, no pet.) (citing Harris, 790 S.W.2d at 588).

To determine whether constitutional error was harmless, we must "calculate, as nearly as possible, the probable impact of the error on the jury in light of the other evidence." See Neal, 256 S.W.3d at 284. Accordingly, the presence of "overwhelming evidence of guilt is a factor to be considered." See Motilla v. State, 78 S.W.3d 352, 357 (Tex. Crim. App. 2002). Other factors to consider may include the nature of the error, whether it was emphasized by the State, the probable implications of the error, and the weight the jury would likely have assigned to it in the course of its deliberations. See Snowden, 353 S.W.3d at 822. These are not exclusive considerations or even necessary considerations in every case. Id. "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 [that particular] error did not contribute to the conviction or punishment.'" Id. We examine the entire record "in a neutral, impartial and even-handed manner and do not make our examination in the light most favorable to the prosecution." See Harris, 790 S.W.2d at 586; Daniels v. State, 25 S.W.3d 893, 899 (Tex. App.-Houston [14th Dist.] 2000, no pet.).

Turning now to the evidence, I recognize that the complainants are not the most sympathetic victims. They both had criminal convictions and were allegedly trying to take advantage of appellant in a scam. I also recognize that appellant claimed that he was not the shooter or a party to any kidnapping, but the video was particularly significant in showing that appellant was involved.

The first seven witnesses testified to the scene out on the highway where the two complainants jumped out of the van while tied up. The video had no bearing on this testimony at all. Appellant was not identified as a driver or passenger in the van.

The next witness was Officer Arnold who retrieved the video from the body shop. Officer Arnold testified that the video corroborated the complainants' story about what had happened to them before the scene on the highway.

The next two witnesses explained how the video had been retrieved from the computer and saved to a file.

Officer Hufstedler testified next about the search of the body shop. When he was on the stand, the State played parts of the video and elicited testimony about what the video showed. Officer Hufstedler testified that the video showed that one of the men at the body shop, Darren Franklin, had a gun. He also testified that the video showed both of the complainants at the body shop, along with appellant. He explained that some of what occurred happened off camera. He testified that the video showed appellant walking in with duct tape in his hand. He also said it showed Darren Franklin walking in with an iron in his hand. That iron was seized in the search of the body shop and tagged into evidence. There was no DNA recovered. The video also showed the complainants' rental van being parked inside the body shop, and the two tied-up complainants being pushed into the back of the van.

On cross-examination, defense counsel focused on the fact that many things happened off camera and that there were a total of six codefendants in the case. He also emphasized that the complainants were initially reluctant to discuss all of the facts with the police.

On redirect, Officer Hufstedler testified that the video corroborated what the complainants told him.

The next witness responded to a vehicle fire and found the burned out rental van with the driver's licenses of the two complainants and fake money.

The next three witnesses were the two complainants and a brief recall of Officer Arnold. The officer testified that the video showed appellant with a gun and that appellant was the one directing the other codefendants to bring the van into the body shop. The video was used extensively during the testimony of the two complainants, both to corroborate what they were saying but also to show what was missing from the video.

Defense counsel emphasized that things took place off the video screen too. But at the same time he relied upon the video to argue that it only shows appellant's mere presence at the scene of the crime.

The video was a central piece of evidence in the case. It was discussed by many witnesses and was certainly used to corroborate the complainants' testimony. While there was independent evidence about the complainants' rolling out of the van and the van being on fire, the video was crucial evidence to support appellant's involvement in the crimes.

On this record, I would hold that the error contributed to the conviction. Because harm is established, I would reverse the trial court's judgment and remand for a new trial. I respectfully dissent.

FootNotes


1. Appellant filed a motion to suppress evidence obtained from three hard drives seized from his business. Before trial, a visiting judge granted appellant's pretrial motion to suppress evidence found on two of the hard drives because they were not part of the surveillance system. Appellant then filed a motion for rehearing seeking again to suppress the evidence on the third hard drive, which was heard and denied by the sitting trial judge. Appellant reurged the motion during trial is a significant factor in this case. See Tex. Code Crim. Proc. art. 18.01(c)(2).
2. We typically review a trial judge's motion to suppress ruling under a bifurcated standard, but when reviewing a magistrate's decision to issue a warrant, both appellate courts and trial courts instead apply this standard of review. Walker v. State, 494 S.W.3d 905, 907 (Tex. App.-Houston [14th Dist.] 2016, pet. ref'd).
3. Appellant argues that this statement, standing alone, is conclusory and does not support an inference that the auto shop would have surveillance equipment. We, however, review the affidavit in its entirety, deferring to all reasonable inferences, to determine whether probable cause existed. See Bonds, 403 S.W.3d at 873 (noting probable cause is reviewed "under the totality of the circumstances"); see also Rodriguez, 232 S.W.3d at 60 (same).
4. Appellant complains that the affiant does not mention seeing cameras at the shop. The State counters that such specificity is not required and notes that the affidavit does not mention whether anyone left DNA or other items at the shop.
5. Appellant further argued at trial that the State failed to secure a second warrant before searching the contents of the surveillance tapes. Appellant does not make that argument on appeal.
6. Neither appellant nor the dissent contests that the facts in this affidavit establish probable cause of the second element of article 18.02(c): the property constitutes evidence of a crime, which
1. See also State v. Sepeda, 349 S.W.3d 713 (Tex. App.-Houston [14th Dist.] 2011, no pet.); State v. Simon Prop. Group, Inc., 357 S.W.3d 687 (Tex. App.-Houston [14th Dist.] 2011, no pet.) (same). Thus the dissent's point that the State did not challenge standing in the trial court is of no moment.
2. On remand, the appeals brought by Mark Steven Bell were dismissed in accordance with the parties' agreement. State v. Bell, NO. 14-10-00771-CR, 2013 WL 328952, at *1 (Tex. App.-Houston [14th Dist.] Jan. 29, 2013, no pet.).
3. The dissent overstates the importance I place upon this fact. Were the business in appellant's name, it would support his claim to an expectation of privacy on the commercial property — but the facts are otherwise. The case cited by the dissent, Parker v. State, 182 S.W.3d 923 (Tex. Crim. App. 2006), is clearly distinguishable because the record reflected Parker had permission to drive the car, and was, in fact, driving the car when it was stopped and searched. There is no analogous evidence in this case.
1. Justice Jamison cites Eubanks v. State, 326 S.W.3d 231 (Tex. App.-Houston [1st Dist.] 2010, pet. ref'd), a child sex assault case where the First Court of Appeals held that a magistrate could infer that a computer was used in a crime based on the child complainant's testimony that she was photographed. I would note that our court has never gone that far in making such an inference, nor have we ever followed Eubanks for that proposition. Cases from our court have certainly had more evidentiary support.

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