HREHOCIK v. STATE (2025)

OPINION

Aaron Joseph Hrehocik was charged with aggravated assault with a deadly weapon, continuous violence against the family, assault family violence, injury to a child, unlawful restraint, and tampering with a witness. See Tex. Penal Code §§ 20.02, 22.01, .02, .04, 25.11, 36.05. Hrehocik filed a motion to suppress evidence obtained during the investigation in this case. After holding a hearing and considering the arguments of counsel, the trial court denied the motion. Following that ruling, Hrehocik entered into a plea-bargain agreement with the State in which he agreed to plead guilty to the offense of continuous violence against the family in exchange for the State's agreeing to dismiss the other charged offenses and recommending that he be imprisoned for five years. See id. §§ 12.34, 25.11. The trial court accepted the agreement and sentenced him in accordance with its terms. In one issue on appeal, Hrehocik argues that the trial court erred by denying his motion to suppress. We will affirm the trial court's judgment of conviction.

BACKGROUND

Several years before Hrehocik's arrest, he moved into the home of Damiana Nezat. Nezat had two sons when Hrehocik moved in, but only her youngest son, J.N., was living with her then. At the time Hrehocik moved in, J.N. was approximately two. On July 6, 2023, she contacted the police to report that Hrehocik assaulted J.N. and her. In her written statement, she wrote that Hrehocik became angry with her two days earlier, punched her, kicked her, and “slammed [her] down on the kitchen table.” In that same incident, Hrehocik “choked [her] twice saying he was going to end [her.]” After he released her, Nezat grabbed J.N. and left the home before returning later.

Concerning the next day, Nezat wrote that Hrehocik got angry with J.N. for “picking at his fingers” and then “used gorilla tape to tape his hands to the desk.” Nezat wrote that she got angry when she discovered what Hrehocik had done and told him to remove the tape. According to Nezat, Hrehocik became angry and “came after [her] again.” Nezat grabbed J.N. and left the home again before returning later. In addition to describing the incident in writing, Nezat showed the police a video of the assault on J.N. The recording captured Hrehocik taping J.N.’s hands to a desk and then later roughly ripping the tape off J.N.’s hands.

Regarding the event that led to her contacting the police, Nezat wrote in her statement that she returned home after the incident with J.N. and texted Hrehocik to say that she did not want him to move out because she and J.N. loved Hrehocik and because she knew that Hrehocik did not really want to hurt them. Hrehocik told her to come out to the garage, started yelling at her, and slapped her. When she turned around to go back inside the house, Hrehocik “got in front of [her] & spit in [her] face.” She managed to get inside and locked the garage door behind her. Hrehocik proceeded to “kick[ ] in the door.” Nezat then grabbed J.N. and left the house.

In her statement, Nezat also wrote that Hrehocik “is very good at twisting things and making [her] think everything is [her] fault” and that she “always end[s] up apologizing and begging for his forgiveness.” Nezat admitted that she had hit Hrehocik before “but only after being provoked and mostly in self-defense.” She mentioned that they both had videos of past incidents on their phones, but she explained that “he restricted [her] access to the videos so [she] only ha[d] ones that [she] saved on [her] phone.” Further, she stated that he had “been hitting [her] and mentally, emotionally abusing [her] for 2+ years.”

After Nezat wrote her statement, the police notified the Department of Family and Protective Services (the “Department”) about the incident involving J.N. The Department opened an investigation into the matter. In addition, the victims’ services department for the police department arranged for Nezat and J.N. to stay in a hotel for two nights.

The next day around 1:00 p.m. a police officer and a victims’ services counselor went to Nezat's hotel room to discuss what had happened. The officer recorded the visit with her body camera. During the visit, the officer explained that the Department would be investigating the incident with J.N. The officer inquired about Nezat's black eye, and Nezat confirmed that Hrehocik had caused the injury. Nezat explained that when she defended herself from Hrehocik's assaults, he would send her video clips of her hitting him and threaten to tell the police and others she was assaulting him. Nezat also related that Hrehocik had choked her in the past, that she almost lost consciousness when it happened, and that she had a video of that incident.

Nezat searched through her phone for videos to show the officer and the counselor; she found a video of Hrehocik choking her on November 18, 2022, and played it. On the recording of the assault, Hrehocik and Nezat argued about a mess on the counter, and he called her a “fat bitch” and a “nobody.” He then charged at her, shoved her into a wall, placed his arm around her throat, dragged her into the bedroom, and forced her to the ground, while asking “who [she] thought [she] was talking to” as she struggled to breathe. A few minutes later, the officer played the same video on the phone and recorded the video with one of her cameras. The officer then told Nezat that she had to briefly leave for another case and stated that she would come back to the hotel later that day. The victims’ services counselor remained at the hotel with Nezat.

About two hours later, the officer returned to the hotel room. At that time, Nezat was using the hotel's Wi-Fi and the phone in her possession to make a phone call to customer service for Verizon. Nezat explained to the representative that Hrehocik was the “account holder” for the account attached to the phone and that Hrehocik had suspended her access to cellular service. Further, she stated that the number she was calling from was her phone number and that she wanted to take her phone off his account. The representative stated that she could not reconnect the phone to cellular service. The officer offered to drive Nezat to a Verizon store to see if someone at the store could help, and Nezat agreed.

On the way to the store, Nezat revealed that Hrehocik had abused her in front of her children and that the abuse had gotten worse over time. Nezat told the officer that the abuse depicted on the recording was a common occurrence and would happen every few weeks. When the officer asked if Hrehocik paid any bills, Nezat explained that Hrehocik did not work. Nezat stated that Hrehocik would still be at the house because he had no job and no transportation. The cellular service for Nezat's phone was restored while Nezat was in the officer's car while they were headed to the store, and Nezat used the phone to contact someone she knew. When the service was reactivated, Hrehocik contacted Nezat through text messages. After receiving his texts, Nezat asked if the officer could stop the investigation because Nezat did not want to press charges. The officer communicated that the prosecutor would decide whether to charge Hrehocik.

Nezat and the officer arrived at the store and went inside. Nezat told one of the employees that she wanted to remove her phone from Hrehocik's account. The employee explained that Hrehocik was legally responsible for the account and that Verizon would have to contact him to see if he would agree to the removal.

The police continued to investigate the allegations, and Hrehocik was charged with six offenses, including one count of continuous violence against the family. Following his arrest, Hrehocik filed a motion to suppress the recordings of the incidents in which he taped J.N.’s hands and in which he assaulted Nezat. During a hearing on the motion, Hrehocik called Nezat as a witness, and the State called the officer who went to Nezat's hotel room. The following exhibits were admitted into evidence: the recording of Hrehocik's assaulting Nezat, the recording of his taping J.N.’s hands, two recordings from the officer's body camera documenting the events that occurred during her visits to the hotel and the trip to Verizon, and Nezat's written statement.

At the hearing, Nezat testified that she had been roommates with Hrehocik for three-to-four years. Further, she explained that she had a cell phone during that time through Verizon but said that the phone was on Hrehocik's account and that he paid for the phone. Nezat explained that Hrehocik had given her the phone, that she had been using the phone for over a year, that she knew the passcode to the phone, that she used the phone to communicate with her family and friends, that she had used the phone every day in the days leading up to the incident, and that she had no other phone. However, she did not have the phone with her every day and agreed that Hrehocik would periodically retract his consent for her to use the phone, that he was the owner of the phone, and that he had a superior possessory right to the phone. Additionally, she testified that he asked for the phone back on July 5 because he was going to move out following an argument they had and that she returned the phone to him that night. According to Nezat, she went into his bedroom the following morning while he was in the garage, looked for the phone because she wanted to use it, found the phone in one of his bags, and took the phone. She then went to the garage where he was and decided to leave the home after they had another argument.

Nezat also testified that Hrehocik texted her around noon asking her to bring the phone back but that she told him no. After she told him no, he threatened to turn off service to the phone and told her it was his phone. She recalled that he turned off the cellular service to the phone around 6:00 p.m. preventing her from making phone calls or texts and agreed that he revoked her right to use the phone by turning off the service. Further, she recalled that she asked Verizon to turn the cellular service back on but that Verizon did not do so because she was not the named owner on the account. Additionally, she stated that she told the police officer that she was not the owner of the phone.

Concerning the videos she showed the officer, Nezat testified that there were cameras in her home, that she used the cameras to watch J.N., and that recordings from those cameras could be accessed through a computer or phone using an app called Wyze Cam. Regarding the Wyze Cam account, she related that it was set up in Hrehocik's name. Although she related that she had used the app before, she explained that Hrehocik had not given her permission to use his account. She agreed that an individual would need the password for the app to access the videos, but she explained that she did not have to log in to access the recordings because the credentials were saved on the phone. She also related that she could not have accessed the videos without the phone. Additionally, she stated that the officer recorded one video after she told the officer that she was not the owner of the Verizon account. However, she agreed that the officer did not force the phone out of her hands or make her unlock it.

The police officer testified that she met Nezat at the hotel and that Nezat mentioned having videos of Hrehocik assaulting her, searched through her phone to find the videos, and showed the officer one of those videos. The officer recalled that although Nezat had explained that Hrehocik had suspended the phone account, Nezat never mentioned anything about the phone not belonging to her. On the contrary, the officer testified that Nezat referred to the phone and the accompanying phone number as belonging to her. The officer related that Nezat did not mention in her written statement that she stole the phone or that Hrehocik was about to move out.

Additionally, the officer recalled Nezat's saying that Hrehocik did not pay rent or have a job and inferred from those statements that Nezat was paying the phone bill. Further, the officer explained that Nezat was able to use some of the phone's features even with the cellular service deactivated because Nezat could use Wi-Fi with the phone. The officer recalled that Nezat did not have any trouble unlocking the phone or accessing the video and that she appeared to have authority over and possession of the phone. The officer testified that she did not know whether the video was saved on the phone or in the cloud. The officer testified that she used her camera to film the recording of the assault and that Nezat never told her to stop filming; on the contrary, the officer explained that Nezat handed the phone to the officer and watched as the officer used her camera to make a copy of the recording.

During her cross-examination, the officer testified that Nezat asked Verizon to transfer the phone to her name and that Verizon informed Nezat that the transfer could not happen without Hrehocik's consent. Although the officer agreed that Hrehocik's name was on the account and that he was able to turn off cellular service to the phone, the officer did not understand that to mean that he owned the phone or that Nezat did not have the authority to access the videos.

After considering the arguments of the parties and the evidence, the trial court denied the motion to suppress. Neither side asked for any findings of fact or conclusions of law. Following the ruling, Hrehocik entered into a plea agreement with the State in which he agreed to plead guilty to the offense of continuous violence against the family in exchange for the State's agreeing to dismiss the other charges against him. The trial court accepted his plea and, consistent with the terms of the agreement, sentenced him to five years’ imprisonment.

Hrehocik appeals the trial court's ruling on his motion to suppress.

STANDARD OF REVIEW AND GOVERNING LAW

Appellate courts review a trial court's ruling on a motion to suppress for an abuse of discretion. Arguellez v. State, 409 S.W.3d 657, 662 (Tex. Crim. App. 2013). A trial court abuses its discretion if its ruling “is arbitrary, unreasonable, or ‘outside the zone of reasonable disagreement.’ ” State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014) (quoting State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)). In a suppression hearing, the trial judge is the sole trier of fact and judge of the witnesses’ credibility and the weight to give to their testimony. Lerma v. State, 543 S.W.3d 184, 190 (Tex. Crim. App. 2018). When reviewing a suppression ruling, appellate courts view the record “in the light most favorable to the trial court's determination.” Story, 445 S.W.3d at 732. In general, appellate courts apply a bifurcated standard, Martin v. State, 620 S.W.3d 749, 759 (Tex. Crim. App. 2021), in which they give almost total deference to the trial court's findings of fact and review de novo the application of the law to the facts, State v. Ruiz, 577 S.W.3d 543, 545 (Tex. Crim. App. 2019). “Thus, the party that prevailed in the trial court is afforded the strongest legitimate view of the evidence and all reasonable inferences that may be drawn from that evidence.” State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008).

That same deferential standard applies to the trial court's determination of historical facts, even if that determination is based on a video recording admitted into evidence at a suppression hearing. State v. Duran, 396 S.W.3d 563, 570 (Tex. Crim. App. 2013); see State v. Garcia, 569 S.W.3d 142, 149 (Tex. Crim. App. 2018) (noting that on matters of historical fact, trial judge is in better position than appellate court to settle disputes). However, appellate courts review de novo “ ‘indisputable visual evidence’ contained in a videotape.” Duran, 396 S.W.3d at 570 (quoting Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000)). “When the trial court does not file findings of fact concerning its ruling on a motion to suppress, we assume that the court made implicit findings that support its ruling, provided that those implied findings are supported by the record.” Ex parte Moore, 395 S.W.3d 152, 158 (Tex. Crim. App. 2013). “The appellate court then reviews the trial court's legal ruling de novo unless the supported-by-the-record implied fact findings are also dispositive of the legal ruling.” State v. Kelly, 204 S.W.3d 808, 819 (Tex. Crim. App. 2006). In addition, a trial court's ruling on the motion will be upheld if it is correct under any theory of law applicable to the case regardless of whether the trial court based its ruling on that theory, but “a trial court's ruling will not be reversed based on a legal theory that the complaining party did not present to it.” Story, 445 S.W.3d at 732.

Hrehocik's sole issue on appeal concerns whether the trial court should have suppressed the evidence under article 38.23 of the Code of Criminal Procedure. Article 38.23 provides, in relevant part, as follows: “No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.” Tex. Code Crim. Proc. art. 38.23(a). “The underlying purpose” of article 38.23 is “to protect a suspect's privacy, property, and liberty rights against overzealous law enforcement.” Wilson v. State, 311 S.W.3d 452, 458-59 (Tex. Crim. App. 2010). In other words, “[t]he primary purpose of article 38.23(a) is to deter unlawful actions which violate the rights of criminal suspects in the acquisition of evidence for prosecution.” Id. at 459. Unlike the Fourth Amendment, which applies only to governmental action, article 38.23 can require “suppression of evidence obtained by private individuals in violation of criminal laws” due to the statute's “other person” provision. Ruiz, 577 S.W.3d at 546. “If no violation of the law occurred,” article 38.23 “can have no application.” Stone v. State, 574 S.W.2d 85, 88 (Tex. Crim. App. 1978), superseded on other grounds by rule as stated in Mayes v. State, 574 S.W.2d 85 (Tex. Crim. App. 1991). “[A] defendant who moves for suppression under Article 38.23 due to the violation of a statute has the burden of producing evidence of a statutory violation.” State v. Robinson, 334 S.W.3d 776, 779 (Tex. Crim. App. 2011). “Only when this burden is met does the State bear a burden to prove compliance.” Id.

On appeal, Hrehocik contends that two statutes were violated in this case: one prohibiting breaches of computer security and another prohibiting theft. See Tex. Penal Code §§ 31.03, 33.02. Both statutes, if violated, would invoke the exclusionary rule. See State v. Martin, 721 S.W.3d 701, 720 (Tex. App.—San Antonio 2025, pet. filed); Thomas v. State, 586 S.W.3d 413, 420 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd). Under the Penal Code, “[a] person commits” a breach of computer security “if the person knowingly accesses a computer, computer network, or computer system without the effective consent of the owner.” Tex. Penal Code § 33.02(a). A cell phone “qualifies as a ‘computer,’ as that term is defined in the Penal Code.” Martin, 721 S.W.3d at 723; see Tex. Penal Code § 33.01(4) (defining “[c]omputer”). The “Owner” for purposes of computer crimes, is a person who either “has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor,” Tex. Penal Code § 33.01(15)(A), or “has the right to restrict access to the property,” id. § 33.01(15)(B). “ ‘Possession’ means actual care, custody, control, or management.” Id. § 1.07(a)(39).

For theft, the Penal Code specifies that a person commits that offense “if he unlawfully appropriates property with intent to deprive the owner of property.” Id. § 31.03(a). “Appropriation of property is unlawful if ․ it is without the owner's effective consent.” Id. § 31.03(b). Like the definition in the breach-of-computer-security statute, the general definition for “[o]wner” in the Penal Code provides that an owner is someone “who ․ has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor.” Id. § 1.07(a)(35). “Possession” means “actual care, custody, control, or management.” Id. § 1.07(a)(39). “Thus, under the Penal Code, any person who has a greater right to the actual care, custody, control, or management of the property than the defendant” can qualify “as the ‘owner.’ ” See Alexander v. State, 753 S.W.2d 390, 392 (Tex. Crim. App. 1988); see also Morgan v. State, 501 S.W.3d 84, 91 (Tex. Crim. App. 2016) (explaining that girlfriend was “owner” of apartment because she had greater right to possess apartment than her boyfriend even though both lived there). “A person's ‘right to possession’ must be measured at the time” of the alleged criminal act. Ramirez v. State, 429 S.W.3d 686, 688 (Tex. App.—San Antonio 2014, pet. ref'd).

DISCUSSION

In his issue on appeal, Hrehocik argues that the trial court erred by denying his motion to suppress. More specifically, he argues that Nezat could not qualify as an owner under the governing statutes and emphasizes that Nezat testified that she did not own the phone, realized that Hrehocik had revoked his consent for her to use it, and took possession of it anyway. He asserts that the phone belonged to him because he paid for the phone and cell service and because it was on his account.

Along those lines, Hrehocik argues that the fact that he previously gave Nezat access to the phone and that there might have been a division in how the bills were paid in the household would not render her actions legal because this Court has explained there is no “exception for a spouse, community property, or a co-owner” allowing for someone “with a lesser possessory right to access a computer without the owner's consent.” See State v. Holloway, 714 S.W.3d 153, 157 (Tex. App.—Austin 2024, no pet.). Further, he claims that even if the trial court believed the officer's testimony that the officer believed Nezat owned the phone because Nezat claimed to pay the bills, the officer later learned from the Verizon employee that Hrehocik was the owner of the account and could not have reasonably believed Nezat owned the phone. In any event, he contends that even if the officer could have justifiably relied on what Nezat said, the determination regarding whether to exclude the evidence was dependent on the legality of Nezat's actions, not those of the officer.

Next, Hrehocik argues that Nezat entered his room without permission and knowing that he was gathering his belongings to move out and stole his phone from his bag. Further, he contends that she gave up any rights she may have had as the beneficiary of a gift or prior user of the phone when she relinquished the phone to him or that her possessory right was revoked when he requested the return of the phone and cut off cellular service to it. Additionally, he argues that Nezat accessed the phone knowing that she did not have his effective consent. Building on the preceding, he suggests that she committed the offense of theft or breach of computer security when she accessed the phone and showed the videos. See Tex. Penal Code §§ 31.03, 33.02. Accordingly, he urges that the videos should have been suppressed under article 38.23 of the Code of Criminal Procedure.

For the reasons that follow, we conclude that the trial court could have reasonably determined that no statutory violation occurred and that, therefore, the evidence obtained from the phone did not need to be excluded under article 38.23. See Tex. Code Crim. Proc. art. 38.23(a). As an initial matter, we note that Hrehocik's reliance on Holloway is misplaced. In that case, the defendant lived with his wife and her three children. 714 S.W.3d at 155. The couple split household bills, and as part of the split, she paid the full phone bill for both of their phones. Id. The cellular account was in the defendant's mother's name. Id.

Following an argument, Wife asked the defendant to unlock his phone so that she could see if there was pornography on it, but the defendant refused. Id. at 154, 155. After the defendant later fell asleep, she used his finger “to unlock his phone.” Id. at 154-55. While looking for pornography, she found inappropriate videos on the phone, including one showing the defendant using a spatula to lift the shirt of her sleeping teenage daughter. Id. at 155. Wife called 911, locked herself in the bathroom, and sent copies of the videos to her phone. Id. The defendant retrieved the phone from her after realizing she had it and left the home. Id. When the police arrived at the home, Wife described what she saw on the defendant's phone, but the police were not able to download the videos. Id.

The defendant moved to suppress evidence and testimony regarding Wife's accessing his phone. Id. at 154. At the suppression hearing, she admitted that she did not have the defendant's consent “to use his phone,” that she did not have the password to his phone, and “that she used to have biometric access to his phone using her own fingerprint, but that [the defendant] had previously revoked her access to his phone.” Id. at 155. She testified that she had a right to the phone because she was married to the defendant, because she paid the bill and bought the phone that he was using, and because the phone was marital property. Id. The trial court granted the defendant's motion to suppress “the testimonial evidence regarding Wife's access” to the defendant's phone. Id. The State appealed. Id.

When addressing the suppression ruling, this Court mentioned the trial court's findings that the defendant had taken reasonable steps to prevent unauthorized people, including Wife, from accessing his phone by using a biometric password. Id. at 157. Additionally, this Court noted that the trial court found that although the family shared a phone plan, each member had a specific phone. Id. This Court also set out how Wife referred to the phone as the defendant's phone and admitted that she did not have consent to access the phone. Id. at 158. Further, this Court discussed how the trial court found that the defendant had a greater possessory right to the phone when Wife accessed it, that she did not have the passcode or biometric access to the phone, that she did not have actual or apparent authority to access the phone, and that she manipulated the defendant's finger to unlock the phone without his consent while he was sleeping. Id. at 157. When affirming the trial court's ruling, this Court explained that under the breach-of-computer-security statute, an owner “includes someone with ‘a greater right to possession of the property than the actor.’ ” Id. (quoting Tex. Penal Code § 33.01).

Unlike Holloway, the current case involves a review of the denial of a motion to suppress. “Given the different procedural postures in this case (denying a motion to suppress) and in [Holloway] (granting a motion to suppress),” determinations made in Holloway do not provide helpful precedent in this case. See Aguilar v. State, No. 03-19-00149-CR, 2020 WL 6018644, at *7 (Tex. App.—Austin Oct. 7, 2020, no pet.) (mem. op., not designated for publication). When reviewing either type of ruling, appellate courts view the evidence in the light most favorable to the ruling, Story, 445 S.W.3d at 732, and the prevailing party—here the State but the defendant in Holloway—is given the benefit of a view of the evidence that is the strongest possible look in his favor as well as the benefit of all reasonable inferences from that evidence, Garcia-Cantu, 253 S.W.3d at 241. Due to the deferential standard by which suppression rulings are reviewed, had the trial court in Holloway decided to deny rather than grant the suppression motion, it is possible this Court would have affirmed the trial court on the same record. Cf. State v. Binkley, 541 S.W.3d 923, 933 (Tex. App.—Fort Worth 2018, no pet.). In fact, this Court in Holloway noted that there was conflicting evidence regarding the elements of the statute that was allegedly violated and relied on the deferential standard when affirming the ruling. See 714 S.W.3d at 158. Accordingly, we do not believe that the decision in Holloway requires a conclusion that the trial court abused its discretion here. See Martin, 721 S.W.3d at 725 (distinguishing appeals of cases denying motion to suppress from those involving granting motion because in denial cases “findings of fact ․ are largely unfavorable to the defendant and inferences are drawn in favor of denial”).

In this case, there was conflicting evidence regarding who had the greater possessory right to the phone. Nezat testified at the suppression hearing that the phone she used to show the videos was on Hrehocik's account, that he paid for the phone, that he was the owner of the phone, that he would periodically retract his consent to her using the phone, that he had asked for the phone back before she took it from his room, that he continued to ask her to return it after she left the home, that he had revoked her right to use the phone by turning off the phone's cellular service, that she knew he had revoked her right before she showed the police officer the video of his choking Nezat, and that he had a superior possessory right to the phone. Also, the recordings of Nezat's conversation with the police officer captured the Verizon employees telling Nezat that she was not the owner of the account for the phone.

However, as Holloway demonstrated, a person can be considered the owner of a phone even if there is evidence that the person is not listed as the owner in the service account and evidence that someone else pays for the phone and for cellular service. 714 S.W.3d at 158; see also State v. Dixon, No. 13-09-00445-CR, 2010 WL 3419231, at *5 (Tex. App.—Corpus Christi-Edinburg Aug. 27, 2010, pet. ref'd) (mem. op., not designated for publication) (noting that trial court found that “[i]t is without controversy that the cell phone belonged to Timothy Dixon even if the cell phone account was in the name of his common law mother-in-law”).

Moreover, there was other evidence contradicting Nezat's testimony. For example, in her written statement, Nezat stated that the phone was hers and that Hrehocik and she had their own phones. Cf. Martin, 721 S.W.3d at 706, 712, 720-21, 730 (affirming suppression of video obtained during search of defendant's home where ex-girlfriend took phone from defendant's safe, gave it to police officers, told them phone belonged to defendant, and asked if she would get in trouble for “stealing” it and where defendant testified that he bought phone, never gave anyone consent to use it, and installed password on phone); see also Grant v. State, 531 S.W.3d 898, 901 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd) (reasoning that evidence supported conclusion that “any property or possessory right in the phone held by appellant was ‘eradicated when he gave the phone’ ” to his girlfriend).

Additionally, during her interaction with the officer, Nezat gained access to the phone and searched through it for videos of abuse. Unlike Wife in Holloway, Nezat did not require Hrehocik's biometric data to access the phone. See 714 S.W.3d at 155. In the second conversation with the officer later that day, Nezat was able to use the hotel's Wi-Fi to make calls to Verizon with the phone. Nezat told the Verizon representative over the phone that the phone number was hers and that she wanted to remove her phone from Hrehocik's account. She made similar statements to the Verizon store employee about removing her phone from Hrehocik's account. When the police officer asked whether Hrehocik and Nezat split household bills, Nezat responded that Hrehocik did not work. The trial court could have reasonably inferred from that statement that Hrehocik was not paying for the phone.

When cellular service to the phone was turned back on, Nezat used the phone to communicate with someone she knew. Additionally, Hrehocik used another device to communicate with Nezat during that time. At the suppression hearing, Nezat testified that she had been using the phone for over a year and had no other phone, that she used it to communicate with the people in her life, and that she had been using it daily in the days leading up to the most recent assault. Further, she explained that a passcode was needed to unlock the phone, and no evidence was introduced indicating that Hrehocik knew the password. Cf. Gonzalez v. State, 608 S.W.3d 98, 104 (Tex. App.—San Antonio 2020, pet. ref'd) (“Passcodes effectively exclude others from access and demonstrate a clear expectation of privacy.”).

Although Nezat testified at the hearing that Hrehocik owned the phone, she also stated that he had given it to her. Even if the trial court believed that Hrehocik had originally purchased the phone, it “reasonably could have concluded that appellant did not own it at the time” it was allegedly stolen “because he had given it to [Nezat] and thus had relinquished any property or possessory right in the phone.” See Grant, 531 S.W.3d at 901. Although Nezat testified that she returned the phone to Hrehocik before taking it from his bag the next day, the trial court could have reasonably found her testimony not credible. See Lerma, 543 S.W.3d at 190. Moreover, even though Nezat testified at the hearing that she found the video in question by accessing Hrehocik's Wyze Cam account without his consent, Nezat also explained in her written statement to the police that she had videos of Hrehocik's abuse “saved on [her] phone” and that he had restricted her access to other videos.

The trial court was tasked with resolving the conflicts in the evidence, see id., and could have believed or disbelieved any part of her testimony, even if it was uncontroverted, see State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). In resolving these conflicts and deciding what weight to give Nezat's testimony that Hrehocik had a greater possessory right to the phone, the trial court was aided by additional evidence admitted at the hearing. For example, in Nezat's written statement, she explained that Hrehocik was able to persuade her that the prior acts of abuse were her fault and that in the past she would apologize to Hrehocik after the abuse and beg for his forgiveness. Consistent with that, the officer's recordings captured how after Nezat's cellular service was turned back on and after she began receiving messages from Hrehocik, she quickly told the officer that she wanted to drop the charges. Additionally, even though Nezat testified that Hrehocik was packing his belongings to move out of the house and that he asked for the phone as part of the moving process, she also said in the police officer's car that he was at the house, indicating he was not moving out.

Viewing the evidence and all reasonable inferences that may be drawn from the evidence in “the strongest legitimate” way possible in favor of the suppression ruling, Garcia-Cantu, 253 S.W.3d at 241, we conclude that the trial court reasonably resolved the conflicts in the evidence when it implicitly found that Nezat “had the greater possessory right.” See Holloway, 714 S.W.3d at 158; see also Tex. Penal Code § 1.07(a)(39) (defining “Possession” as “actual care, custody, control, or management”). Accordingly, because the trial court implicitly found that Nezat had a greater possessory right to the cellphone, she was the “owner” for purposes of the theft statute and the breach-of-computer-security statute, meaning that she did not “unlawfully appropriate[ ] property with intent to deprive the owner of property,” Tex. Penal Code § 31.03(a), or access the phone “without the effective consent of the owner,” id. § 33.02(a).

Accordingly, we conclude that the trial court did not abuse its discretion when it determined that Hrehocik failed to meet his burden of establishing that Nezat committed theft of the phone or that she unlawfully accessed the phone to allow the police to view and make a copy of a recording on the phone. See Holloway, 714 S.W.3d at 158-59.

For these reasons, we overrule Hrehocik's issue on appeal.

CONCLUSION

Having overruled Hrehocik's issue on appeal, we affirm the trial court's judgment of conviction.

Karin Crump, Justice