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Terry Wayne KING II, Appellant v. The STATE of Texas, Appellee
Appellant Terry Wayne King II was charged in a two-count indictment with the offenses of injury to a child causing serious bodily injury 2 and attempted aggravated kidnapping.3 A jury found King guilty of both offenses. The jury also made an affirmative deadly-weapon finding for each offense. King pleaded true to a felony-enhancement allegation contained in the indictment. The jury assessed King's punishment at life in prison for each offense. On appeal, King raises seven issues.
Relating to the guilt-innocence phase of trial, King's first six issues contain two issues challenging the sufficiency of the evidence, three issues contending that the jury should have been charged on lesser-included offenses, and one issue challenging the trial court's denial of King's motion to suppress DNA evidence. In his seventh issue, King contends that the trial court erred during the punishment phase by denying his motion to suppress and admitting into evidence, for the jury's consideration in assessing his punishment, photographs discovered on his cell phone containing child pornography.
Because we conclude that the trial court erred in denying the motion to suppress the photographs containing child pornography, and such error was harmful, we reverse the portions of the judgment sentencing King to life in prison for each offense, and we remand the case to the trial court for a new sentencing hearing. But, because King's first six issues pertaining to the guilt-innocence phase of trial are without merit, we affirm the remaining portions of the judgment.
On the morning of April 19, 2018, 12-year-old Jane (a pseudonym) was walking to her school bus stop at the corner of Calumet Avenue and Laredo Street in Fort Worth, Texas. As she was walking, she was approached on foot by King. He told Jane that he needed help and asked her to come with him. Jane agreed and walked with King, turning from Calumet onto Laredo Street.
Initially, King was nice to Jane, but after they had walked a distance, King hit Jane on her cheek with his hand. He then put his hands around Jane's neck, forced her to the ground, and kicked her. King squeezed Jane's neck, and Jane fought back using her hands. Jane could not breathe and eventually lost consciousness for a while. When a school bus stopped nearby, King ceased strangling Jane and ran away. A short time later, Jane got up, stumbled a bit, and walked to her bus.
T. Dover, Jane's school bus driver, noticed that Jane was approaching the bus from Laredo Street, rather than walking down Calumet as she normally did. When Jane arrived at the bus's door, Dover saw that Jane was covered in grass and had blood coming from her nose and mouth. Dover called 9-1-1.
When paramedics arrived, Jane was scared and shaking. They determined that her oxygen levels were slightly below normal. She had dried blood in and around her nostrils, a swollen lower lip, bruises on her back, and a bruise on her neck consistent with being choked. To the paramedics, Jane's condition initially did not appear life threatening. The paramedics transported Jane to the emergency room by ambulance. During the trip to the hospital, Jane's condition deteriorated.
When she arrived at the emergency room, Jane was considered a “trauma stat,” meaning that she was having difficulty maintaining life-sustaining functions. Jane's oxygen levels were low, and she was struggling to breathe. The emergency room physician determined that Jane had a negative pressure pulmonary injury, an injury which may result from strangulation. The negative pressure caused Jane's lungs to fill with fluid, a condition known as pulmonary edema. The medical staff intubated Jane to help her breathe by putting a tube down her throat and then forcing air in and out of her lungs. Jane needed more help than the emergency room could provide, and she was transferred to the hospital's intensive care unit. There, Jane was placed on an ECMO, a machine that took over Jane's heart and lung functions by pumping her blood for her heart and oxygenating her blood for her lungs. Jane ultimately survived her injuries.
Detective P. Henz of the Fort Worth Police Department's Major Case Unit was assigned to the case. Detective Henz went to the hospital to meet with Jane, but because of her condition, he was unable to speak with her. At that point, he had no suspects. Detective Henz, along with other detectives and officers, began their investigation by obtaining surveillance video from ten businesses in the general area of Calumet Avenue and Laredo Street.
Detective Henz contacted the school district to determine whether there were surveillance videos from any school buses that had been in the area. He was provided a video from Bus 200.
Bus 200 was not Jane's school bus. It was another school bus that had been parked on Laredo Street, waiting to start its route that morning. While parked on Laredo Street next to the back parking lot of the Knights Inn Motel, Bus 200 had faced the intersection with Calumet. In front of the bus, on the right, the bus's video showed a wood fence bordering a commercial lot. Detective Henz determined that the business that had been on the lot was no longer operating. His testimony at trial indicated that business was vacant, stating there was “no sign of business there,” and it was “closed up.” On the other side of the lot was an iron fence. A building stood at the back of the lot. He stated that the only way in an out of lot was on Laredo Street.
As Bus 200 waited to start its route, the bus's video showed a white, bearded man—wearing a hat and a backpack, and carrying an item of dark clothing—come from behind the wood fence bordering the vacant business lot and run toward Bus 200. The man ran into the parking lot of the Knights Inn Motel. About six minutes later, the bus's video showed Jane come into view in the vacant business lot from which the man had run earlier. She stumbled a bit and stood still for about 20 seconds. She then walked toward her school bus on the other side of Calumet Avenue. Detective Henz testified that, based on Bus 200’s video, the police believed that the vacant business lot was where Jane had been attacked.
Surveillance video from the Knights Inn Motel also showed the man run around the wood fence of the vacant business lot and through the motel's parking lot. The man then walked through the motel's courtyard, swimming pool area, and another parking lot. He put on a sweatshirt as he walked. Surveillance video from Moritz Kia, a car dealership next to the motel, showed the man cross the motel's property and walk along the service road of the freeway.
A Days Inn was located on the other side of the freeway in the direction the man had walked. The Days Inn surveillance video showed the man enter its lobby and talk to the clerk. Detective Henz testified that the man asked the clerk for a public restroom, and after the clerk told him that there were no public restrooms, the man left.
Surveillance video showed the man enter a nearby Waffle House. The time stamp on the video indicated that the man was in the Waffle House for 15 minutes. Although not shown in the portion of the surveillance video admitted into evidence, Detective Henz testified that video from inside the Waffle House showed the man enter the restroom. When he came out of the restroom, the man's appearance had changed.
Video from outside the Waffle House also showed that, when he left the restaurant, the man's appearance was different than it had been when he had entered the restaurant. He had shaved his beard, put his hair up in a bun, taken off his hat and sweatshirt, and changed his shirt. But the man appeared to be wearing the same jeans, backpack, and tennis shoes—which had distinctive white trim—as the person had been wearing in the earlier surveillance videos.
From the Waffle House, the man walked to a nearby Jack in the Box restaurant. Video from the restaurant showed him entering the restroom and then sitting at a table for about five minutes where he appeared to make a phone call. He then went to the parking lot where he was picked up by a white SUV. Detective Henz used registration records to trace the vehicle to King's wife, Whitney. Detective Henz obtained photographs of King and noticed “a lot” of resemblance between King and the man seen in the surveillance videos. Detective Henz also noted that King had distinctive tattoos on his neck and his arm, which are seen on the man in the videos. Detective Henz also obtained cell tower records, indicating that King and his wife were near the Jack in the Box on that day.
King and his wife moved to Oklahoma in May 2018. Detective Henz obtained a warrant for King's arrest on July 12, 2018. King worked as a semi-truck driver, and he was arrested near his truck in Oklahoma City by the U.S. Marshal's Service on July 17, 2018, at a truck stop. King was initially held by authorities in Oklahoma City, and the Oklahoma City Police Department assisted with the investigation.
Detective Henz traveled to Oklahoma City where he interviewed King. During the interview, Detective Henz showed King still images taken from the surveillance videos. King acknowledged that he was the person in the images from the Days Inn, Waffle House, and Jack in the Box videos, but he denied that he was the person in a still image taken from Bus 200’s video, showing the man running from behind the wood fence of the vacant business lot.
Detective M. Klika with the Oklahoma City Police Department assisted the Fort Worth police with the case. Detective Klika signed a probable-cause affidavit to support the issuance of a search warrant to obtain DNA evidence from King. Based on Detective Klika's affidavit, an Oklahoma judge signed a search warrant for King's saliva. Detective Klika executed the warrant by taking a buccal swab from King.
At the hospital, a forensic nurse examiner had swabbed Jane's hands, under her fingernails, and other areas of Jane's body to obtain possible DNA evidence from her assailant.4 T. Crutcher, a senior forensic scientist with the Fort Worth Police Department's Crime Lab, did a DNA analysis on the swabs obtained from Jane and the buccal swab obtained from King. She established King's DNA profile from the buccal swab, and she established Jane's DNA profile from a sample known to be only from her. Crutcher then determined that there was DNA from another person on Jane's hands. Crutcher compared the DNA profile for that person with King's DNA profile. She concluded that the profile of the DNA obtained from Jane's hands was consistent with King's DNA profile.
Detective J. Perkins of the Oklahoma City Police Department also assisted with the case. He signed a probable cause affidavit to obtain a search warrant for the semi-truck, owned by King's employer, that King had been driving before his arrest and was located at the truck stop where King was arrested. Based on Perkins's affidavit, an Oklahoma judge issued a search warrant for the truck. The search warrant permitted the police to seize specified personal property, such as cell phones, from the truck. The warrant was issued and executed on July 17, 2018, the same day that King was arrested. The execution of the warrant was performed jointly by the Fort Worth Major Case Unit and the Oklahoma City Police Department, including Detective Perkins. The warrant and inventory of the search were returned to the Oklahoma judge on July 24, 2018.
A photograph of the interior of the truck, taken during the search, showed that the detectives had found an LG Cricket cell phone in the truck. The detectives intended to seize the cell phone but left it in the truck. The phone was not listed on the inventory.
Once back in Fort Worth, Detective Henz received the inventory and realized that the cell phone had not been seized from the semi-truck. He contacted King's employer, J. Feltman, who owned the truck. Detective Henz asked Feltman to look in the semi-truck for the cell phone, retrieve it, and send it to him. Feltman obtained the phone as requested by Detective Henz and sent it to him by Federal Express. Detective Henz reimbursed Feltman for the shipping cost. Detective Henz received the cell phone from Feltman on August 9, 2018. He then obtained a search warrant for the data contents of the cell phone. The phone had information on it indicating that it belonged to King, such as a photograph of his driver's license. The phone also had other photographs, including 17 photographs containing child pornography.
King was returned to Fort Worth and charged in a two-count indictment. In count one, the State alleged that King had committed the offense of injury to a child causing serious bodily injury by “intentionally or knowingly” causing “serious bodily injury to [Jane], a child younger than 15 years of age, ․ by squeezing the throat of [Jane] with his hand․”5 In count two, the State alleged that King committed the offense of attempted aggravated kidnapping when he, “with the specific intent to commit the offense of aggravated kidnapping,” did the following act or acts: “requesting [Jane] go with him and/or striking [Jane] with his hand and/or by grabbing [Jane] with his hand and/or by squeezing the throat of [Jane] and/or by pushing [Jane], amounting to more than mere preparation, but [which] fail[ed] to effect the commission of the offense intended.”
The case was tried to a jury in September 2019. During the guilt-innocence phase, Jane testified regarding the events surrounding the attack, and she described the attack itself. Among the State's other witnesses, Detective Henz testified regarding how the Fort Worth Police Department had developed King as the suspect. Along with his testimony, the State introduced a video compilation of the surveillance videos from Bus 200 and the surrounding businesses, linking King back to the vacant business lot where the police believed Jane was attacked. The full version of the video from Bus 200 was also introduced by the defense for optional completeness. The full-length bus video showed a man running from the vacant business lot and, after about six minutes, showed Jane come into view, stumble a bit, stand still for about 20 seconds, and then walk from the lot toward her school bus.
The compilation video introduced by the State showed the man run from the vacant business lot, walk through the property of the Knights Inn Motel while putting on a sweatshirt, continue walking through the area toward the other side of the freeway, enter and leave the Days Inn, enter the Waffle House, and then leave the restaurant with a changed appearance. While in the Waffle House, the man had shaved his beard, put his hair up in a bun, and changed some of his clothing, including removing his hat and sweatshirt. But other items of clothing, such as the backpack and distinctive tennis shoes, were seen in other portions of the compilation. The man entered a Jack in the Box where he was soon picked up by a white SUV.
Detective Henz testified that he determined that the SUV belonged to King's wife. He stated that he had obtained photographs of King, which he compared to the videos. He testified that King's face and distinctive tattoos on his arm and neck looked a lot like those of the man in the surveillance videos. Detective Henz also stated that he obtained cell tower records indicating that King and his wife had been near the Jack in the Box that day. The State's exhibits also included an aerial satellite map of the area showing the location of Jane's bus stop, the vacant business lot, and the businesses in the surrounding area from which the police had obtained surveillance videos.
In addition, Detective Henz described his interview with King in Oklahoma City. During the interview, King had looked at still images taken from the surveillance videos and had acknowledged that he was the man in the videos from the Days Inn, the Waffle House, and the Jack in the Box. He denied that he was the man seen running from the lot of the vacant business. The State offered the video of Detective Henz's interview with King into evidence.
The State's proof also included evidence showing that King's DNA was found on Jane's hands. Before trial, King moved to suppress the DNA evidence. The trial court heard the motion outside the jury's presence. King asserted that Detective Klika's affidavit, which supported the search warrant to obtain a saliva sample from King, was misleading because it omitted a full description of how Detective Henz had developed King as a suspect. The parties stipulated to the facts for the trial court to consider, and, after hearing the parties’ arguments, the trial court denied King's motion to suppress the DNA evidence.
The forensic nurse examiner testified that, after Jane was brought to the hospital, she swabbed Jane's hands and under her fingernails to collect evidence. Detective Klika testified that he obtained a search warrant to collect King's saliva and that he had collected the buccal swab from King's mouth. He stated that King refused to allow a buccal swab even after being told that the police had a warrant to take the sample. Detective Klika described how he took the sample from King involuntarily by pinching King's nose, which forced King to open his mouth. A video of the interaction with the police, including Detective Klika taking the sample from an uncooperative King, was admitted into evidence.
The forensic scientist, Crutcher, testified that she analyzed the swabs taken form Jane's hands and the buccal swab taken from King. She then compared the DNA profiles developed from the swabs and found that the DNA on Jane's hands was consistent with King's DNA.
The jury found King guilty of the charged offenses of (1) injury to a child causing serious bodily injury and (2) attempted aggravated kidnapping. The jury also found King had used a deadly weapon—his hands—during the commission of the offenses. King elected to have the jury assess his punishment. He pleaded true to an enhancement allegation for the prior federal felony offense of bank larceny. Due to the enhancement, the punishment range for the injury-to-a-child offense was life or 15 to 99 years in prison, and the punishment range for the attempted-aggravated-kidnapping offense was life or 5 to 99 years in prison. See Tex. Penal Code § 12.42(b), (c)(1).
During the punishment phase, the trial court heard King's motion to suppress the 17 photographs containing child pornography found on his cell phone. King acknowledged that the State had obtained a search warrant for the contents of the cell phone but argued that the photographs should be suppressed because the cell phone itself was seized from his work truck after the search warrant had expired and was no longer valid. The State countered that King had no expectation of privacy in the truck at the time the phone was seized because the truck belonged to his employer, and it was his ex-employer who had obtained the phone for the police after the search warrant expired. The State also asserted that King had abandoned the phone because he should have requested to take the phone with him when he was arrested. The trial court agreed with the State and denied King's motion to suppress. The 17 photographs containing child pornography were admitted into evidence for the jury to consider in assessing King's punishment.
At the punishment phase, Jane's father testified that Jane nearly died from her injuries. He stated that Jane had to stay in the hospital for four months after the attack, during which time she underwent a heart transplant. Jane's father testified that Jane continues to take medication to prevent her body from rejecting the new heart and that she will be required to take the medication for the rest of her life. He testified that Jane has a long scar on her chest from the heart transplant.
Jane's father said that Jane had been readmitted to the hospital in May 2019—five months before trial—because her body was rejecting the new heart. During her hospitalization, Jane had a tube inserted into her body “to check [to see] if the heart [was] still working properly” and had adjustments made to her medication. Jane's father said that she also was admitted to the hospital in August 2019, the month before trial. Jane had become ill at school and was taken by ambulance to the hospital. Jane told the doctors that she was not feeling well because she was afraid of the upcoming trial.
In addition to the federal conviction for bank larceny, which served as the enhancement allegation, King also stipulated that he had previously been convicted in Texas state courts of theft, burglary of a vehicle, prostitution, burglary of a building, and bodily-injury assault. A written stipulation of evidence signed by King along with the judgments of conviction and other filings related to the stipulated offenses were admitted into evidence.
The State also offered evidence demonstrating that King had a history of violence. King committed bodily-injury assault against his wife, Whitney, in 2014. Officer L. Myers of the Fort Worth Police Department had responded to the scene of that assault. She recalled that Whitney's face “was completely covered in blood” and that Whitney had blood “matted in her hair.” Officer Myers had photographed Whitney, and two of those photographs were admitted into evidence. The first photo, a close-up of Whitney's face, showed her face covered in blood. The photo also showed that she had blood matted in her hair. The second photo showed Whitney from the knees up. In the photo, Whitney had blood in her hair, on her face, chest, and arms, as well as on her shirt and jeans.
King's ex-girlfriend, F.A., also testified. She stated that she dated King from 2003 to 2004. F.A. described King as being angry, aggressive, and violent. She said that he lacked remorse for things that he had done. She recalled him telling her that he had stabbed someone. She said King told her in a very casual manner as if stabbing someone “wasn't a big deal.”
F.A. testified that King had been violent with her, too. She described one incident during which King became angry when she had changed her mind about moving in with him. She said that he “went into kind of an angry rage, started yelling, started punching through my apartment cabinets.” He then picked up F.A., held her against the wall, and choked her. She said that she could not talk and could barely breathe. King eventually stopped and put her down.
F.A. recalled another incident when she saw King be violent. She said they were hanging out with King's sister and her husband. King became upset with his brother-in-law, and King pinned him down and “just basically attacked him.”
The State also offered evidence that King had been involved in a road-rage incident in March 2018, less than one month before he attacked Jane. C. Lipe testified that he was driving through a mall parking lot in Fort Worth when a white SUV made an illegal U-turn near him. Lipe honked his horn to a avoid a collision with the SUV. Lipe testified that the man driving the SUV became angry and started waving his arms, but Lipe continued to drive and exited the mall's parking lot. When Lipe reached the access road, the white SUV forced him off the road. Lipe's window would not roll down, so he opened his door. Lipe said the man driving the SUV seemed “very angry.” Before Lipe could unbuckle his seat belt, the man came over to his car and was “landing blows” on him, punching and kicking him. When the man left, Lipe's passenger photographed the SUV's license plate. Police traced the vehicle to King's wife, Whitney.
Detective K. Bickley of the Fort Worth Police Department contacted King by phone about the road rage incident. Detective Bickley testified that, at first, King denied the incident but then admitted assaulting Lipe. Detective Bickley testified that he had obtained an arrest warrant for King for the assault.
King's 88-year-old grandmother, Wanda, testified for the defense. She stated that King had suffered from spinal meningitis as an infant, which had left him with “a mental condition.” Wanda stated that she had primarily raised King because his mother and father were alcoholics and his mother had abandoned King as a toddler. Wanda also indicated that King's father was periodically in his life and had physically abused King. Wanda testified that, when King was a child under her care, she had placed King on medication for his mental condition, which helped him. But King's father later refused to allow King to take the medication.
Wanda confirmed that King was married and had a four-year-old daughter. A photograph of King with his daughter was admitted into evidence. Wanda said that King had a “very close” relationship with his daughter and that “she loved him terribly.” Wanda testified that she thought King was a good father.
During its closing argument, the defense asked the jury for leniency so that King could someday be reunited with his daughter. The State responded by countering that King did not deserve mercy because he had shown Jane no mercy. The State asked that King be sentenced to life in prison for each count. It pointed to the evidence regarding King's attack on Jane, the trauma and life-altering injuries he had inflicted on her, his criminal record, and his past and recent history of violent acts. The State argued that King could not be rehabilitated and that the jury should focus on deterrence and punishment when assessing his punishment. The State emphasized the photographs from King's cell phone containing child pornography, arguing that they showed “[w]ho he is and what he likes and what he wants.” The State also pointed to the child pornography to refute the defense's request for leniency, stating, “ ‘Is this the person you want around [King's] daughter? Is this the person you want around another child?’ Because the answer is no.”
After hearing the parties’ closing arguments, the jury assessed King's punishment at life in prison for each offense. As statutorily required, the trial court ordered the sentences to run concurrently. See Tex. Penal Code § 3.03(a). King now appeals, raising seven issues.
Sufficiency of the Evidence
In his first two issues, King challenges the sufficiency of the evidence to support his convictions for the offenses of injury to a child causing serious bodily injury and attempted aggravated kidnapping.
A. Standard of Review
We review a challenge to the sufficiency of the evidence under the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013). Pursuant to the Jackson standard, we “consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt.” Alfaro-Jimenez v. State, 577 S.W.3d 240, 243–44 (Tex. Crim. App. 2019) (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)); see Jackson, 443 U.S. at 319, 99 S.Ct. 2781. We can hold evidence to be insufficient under the Jackson standard when (1) the record contains no evidence, or merely a “modicum” of evidence, probative of an element of the offense, or (2) the evidence conclusively establishes a reasonable doubt. Britain v. State, 412 S.W.3d 518, 520 (Tex. Crim. App. 2013) (citing Jackson, 443 U.S. at 320, 99 S.Ct. 2781).
The sufficiency-of-the-evidence standard gives full play to the responsibility of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S.Ct. 2781; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). An appellate court presumes that the fact finder resolved any conflicts in the evidence in favor of the verdict and defers to that resolution, provided that the resolution is rational. See Jackson, 443 U.S. at 326, 99 S.Ct. 2781.
In our review of the record, direct and circumstantial evidence are treated equally; circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Hooper, 214 S.W.3d at 13. Finally, “[e]ach fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction.” Id.
B. King's Identity
The State must prove, beyond a reasonable doubt, the accused's identity as the person who committed the charged offense. Miller v. State, 667 S.W.2d 773, 775 (Tex. Crim. App. 1984); Smith v. State, 56 S.W.3d 739, 744 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd). In his first issue, and as part of his second issue, King challenges the sufficiency of the evidence to establish that he was the person who committed the charged offenses.
The Court of Criminal Appeals has made clear that identity may be proven by direct evidence, circumstantial evidence, or by reasonable inferences from the evidence. Ingerson v. State, 559 S.W.3d 501, 509 (Tex. Crim. App. 2018) (citing Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim. App. 2009)). Here, we conclude that the evidence was legally sufficient to prove that King was Jane's assailant.
Jane testified that she fought against her assailant using her hands. Soon after the attack, swabs were taken from Jane's hands and fingernails at the hospital by a forensic nurse examiner. Other swab samples were taken from areas of Jane's body containing DNA known to be hers. A buccal swab was obtained from King pursuant to a search warrant. Forensic scientist Crutcher developed DNA profiles for Jane and for King. She testified that her analysis established that the swabs from Jane's hands contained two DNA profiles. One of the profiles matched Jane's DNA profile, and the other was consistent with King's DNA. King is Caucasian, and Crutcher testified that the probability that a random, unrelated Caucasian person could have contributed to the DNA profile was 1 in 329.3 trillion.
In his brief, King asserts that finding his DNA on Jane's hands “can be explained in a plethora of ways.” He states that “[t]he most logical is that he came upon her while she was unconscious on the ground and either touched her hand or brushed her fingernail in a superficial, inexperienced attempt to render aid.” Alternatively, he posits that his DNA may have transferred to Jane's hands as they passed one another on the sidewalk. However, even assuming these theories are reasonable, “the State need not disprove all reasonable alternative hypotheses that are inconsistent with the defendant's guilt.” Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012); see Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999) (“We have rejected the reasonable hypothesis construct as a measure of legal sufficiency.”). The jury was free to reject King's theories regarding how his DNA was transferred to Jane's hands, and it was permitted to draw the reasonable inference that King was her assailant, who she testified she had fought back against using her hands. See Zuniga v. State, 551 S.W.3d 729, 739 (Tex. Crim. App. 2018).
King also contends that “[t]he mere fact that his DNA was found on [Jane's] hand or under one of her fingernails is not enough to prove beyond a reasonable doubt that he was the perpetrator that committed these crimes.” We need not determine the correctness of this contention because the DNA evidence was not the only evidence connecting King to the offenses.
As discussed, King acknowledged during his interview with Detective Henz that he was the person seen in the surveillance videos from the Jack in the Box, the Waffle House, and the Days Inn. Tracing back from these surveillance videos through the surveillance videos that precede them—that is, the videos from the Knights Inn Motel, the car dealership, and Bus 200—the videos placed King at the vacant business lot. In Bus 200's video, a man is seen running from the vacant business lot, which Jane leaves six minutes later. The man has a beard, and he is wearing a hat and dark jeans. His shoes are dark with bright white trim at the bottom, and he is carrying a backpack and a dark item of clothing.
The video from the Knights Inn Motel also showed the man run around the fence of the lot into its parking lot and then walk through its property. While walking though the property, the man puts on the dark item of clothing that he is carrying, revealing that it is a sweatshirt. Video from the nearby car dealership shows the man walk toward the other side of the freeway.
King acknowledged that he entered the Days Inn, which is on the other side of the freeway. He appears to be wearing the same sweatshirt, jeans, hat, and backpack as the man who left the vacant business lot and then walked through the property of the Knights Inn Motel and put on the sweatshirt. He also appears to be wearing the same tennis shoes with the bright white trim. From this evidence, the jury reasonably could have inferred that King was the man seen leaving the lot of the vacant business from which Jane then left and walked to her bus. When she walked to her bus, Jane had been attacked and was bleeding from her nose and mouth.
The man who left the lot of the vacant business also had a beard. When he entered the Days Inns, King had a beard. After he left the Days Inn, King acknowledged that he went to the Waffle House. The video showed that while in the Waffle House, he shaved his beard. He further changed his appearance by removing his hat, taking off his sweatshirt, changing his shirt, and putting his hair in a bun. The jury could have reasonably interpreted King's altering of his appearance as a consciousness of guilt and an effort to evade detection. See Hedrick v. State, 473 S.W.3d 824, 830 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (explaining that evidence of defendant's suspicious conduct after commission of crime can indicate consciousness of guilt); see also Clayton, 235 S.W.3d at 780–81 (recognizing that jury could rationally draw inference of consciousness of guilt from defendant's efforts to avoid apprehension).
Viewing the evidence in the light most favorable to the verdict, we conclude that a rational fact finder could have found, beyond a reasonable doubt, that King was the person who committed the charged offenses. We overrule King's first issue and the portion of his second issue challenging the sufficiency of the evidence to establish his identity as the person who committed the charged offenses.
C. Attempted Aggravated Kidnapping
In the remaining portion of his second issue, King contends that the evidence was legally insufficient to support his conviction for the offense of attempted aggravated kidnapping.
1. Elements of attempted aggravated kidnapping
An attempted offense occurs when a person, with specific intent to commit an offense, does an act amounting to more than mere preparation that tends but fails to affect the commission of the offense. See Tex. Penal Code § 15.01(a). To prove that King committed the offense of attempted aggravated kidnapping, the State was required to present sufficient evidence that King did an act amounting to more than mere preparation with the specific intent to commit aggravated kidnapping. See id.; Laster v. State, 275 S.W.3d 512, 521 (Tex. Crim. App. 2009).
A person commits the offense of aggravated kidnapping when two elements are proven: (1) the person intentionally or knowingly abducted another person, and (2) he committed an aggravating element. Laster, 275 S.W.3d at 521; see Michael B. Charlton, Texas Practice: Texas Criminal Law § 11.4 (2d ed. 2001) (“[Aggravated kidnapping] is essentially abduction plus the requisite specific intent to commit one of the aggravating factors, including ․ inflicting bodily injury.”).
“ ‘Abduct’ means to restrain a person with intent to prevent his liberation by: (A) secreting or holding him in a place where he is not likely to be found; or (B) using or threatening to use deadly force.” Tex. Penal Code § 20.01(2). Thus, “abduct” includes two elements. Laster, 275 S.W.3d at 522.
The first element of “abduct” requires that the defendant restrained another, which is the actus reus requirement. Id. “Restrain” means to restrict a person's movements without consent, so as to interfere substantially with her liberty, by moving her from one place to another or by confining her. Tex. Penal Code § 20.01(1). Restraint is without consent if it is accomplished by: (A) force, intimidation, or deception; or (B) any means, including acquiescence of the victim, if she is a child less than 14 years of age and the parent, guardian, or person or institution acting in loco parentis has not acquiesced in the movement or confinement. Id.
The second element of “abduct” requires that the defendant had the specific intent to prevent liberation, which is the mens rea requirement. Laster, 275 S.W.3d at 521. “Secreting or holding another where he or she is unlikely to be found is part of the mens rea requirement of the offense—not the actus reus. This is an important distinction because the State is not required to prove that the defendant actually secreted or held another.” Id. Instead, the State must prove that the defendant restrained another with the specific intent to prevent liberation by secreting or holding the person. Id. Thus, the offense of kidnapping is legally completed when the defendant, at any time during the restraint, forms the intent to prevent liberation by secreting or holding another in a place unlikely to be found. Id.
A kidnapping is aggravated when the abduction is committed intentionally or knowingly with the specific intent to accomplish one of six purposes. Tex. Penal Code § 20.04(a)(1–6); Laster, 275 S.W.3d at 521. One such purpose is to inflict bodily injury on the abductee. Tex. Penal Code § 20.04(a)(4). A kidnapping is also aggravated if the accused used or exhibited a deadly weapon during the offense. See Tex. Penal Code § 20.04(b); Laster, 275 S.W.3d at 521.
Here, the State was required to prove, beyond a reasonable doubt, that King committed an act, beyond mere preparation, to restrain Jane with the intent to secrete or hold her in a place where she was unlikely to be found and that he committed an aggravating element. See Laster, 275 S.W.3d at 522. The State was not required to prove that King could, or did, secrete or hold Jane in a place where she was unlikely to be found. See id.
King contends that the evidence was insufficient to prove that he had the intent to abduct Jane because the evidence did not show that he had the intent to prevent her liberation, that is, to secrete or hold her in a place where she was unlikely to be found. King asserts that the evidence showing that he pushed Jane to the ground and held her down while strangling her indicated only an intent to restrain Jane so that he could assault her. He asserts that evidence of those acts showed no intent to abduct her by holding her in a place where she was unlikely to be found. King argues, “[T]he facts logically suggest that his acts were straightforward: that he saw [Jane] and decided either to assault or sexually assault her. Nothing persuades that [King's] intent was to snatch [Jane] away and stash her some place.”
In making this argument, King incorrectly assumes that the only act of attempted restraint shown by the evidence was his holding Jane down and strangling her. However, the evidence also demonstrated that King engaged in another act of attempted restraint. The evidence showed that he asked 12-year-old Jane to come with him to help him, and Jane agreed, walking with him to the vacant business lot where he attacked her. Because she was under the age of 14, King's conduct of asking her to come with him and then leading her to the empty lot was more than mere preparation to restrict Jane's movement “so as to interfere substantially” with her liberty by moving her from one place to another by “any means,” including her acquiescence. See Tex. Penal Code § 20.01(1)(B)(i); see also Walker v. State, No. 13-01-00568-CR, 2002 WL 34230963, at *3 (Tex. App.—Corpus Christi Aug. 8, 2002, no pet.) (not designated for publication) (holding, in aggravated kidnapping case, that evidence was sufficient to prove defendant had “restrained” 11-year-old boy by taking boy without parents’ permission to shed two houses away from boys’ trailer because, even if boy had agreed to go with defendant, to prove restraint, defendant accused of kidnapping “need only have restricted the child's movement by ‘any means, including acquiescence of the victim’ ”).
Regardless of whether the act of restraint was pushing and holding Jane down while strangling her at the lot of the vacant business or it was asking Jane to come with him and leading her to the lot, the evidence showed that King had the intent to secrete or hold Jane where she was unlikely to be found. See Kenny v. State, 292 S.W.3d 89, 95 (Tex. App.—Houston [14th Dist.] 2007, pet. ref'd) (“Intent can be inferred from an accused's conduct, remarks, and the surrounding circumstances.”). Detective Henz described the lot where King led Jane as “a secluded business parking lot.” He testified that “there's a business building there, a wooden stockade fence on the north side of that parking lot, and a wrought iron fence on the south side of that parking lot, and the only way in and out is from Laredo Street.” He stated, “And the business is closed. There's no signs of business being there. It's closed up. And there's a fence on both sides of the business that you—that would prevent anybody from being able to come from the back side of the business.”
In addition, the video from Bus 200 and an aerial satellite map of the area showed that, on one side of the vacant business lot was the large, back parking lot of the Knights Inn Motel, and on the other side was a grassy lot with a transmission tower. The evidence also showed that the attack occurred early in the morning before 7:00 a.m. From the evidence, the jury could have reasonably inferred that King had intent to secrete or hold Jane where she was unlikely to be found, i.e., on the lot of a vacant business with limited entry in the early morning. See Tex. Penal Code § 20.01(2)(A); see also Dixon v. State, No. 01-04-01100-CR, 2005 WL 2620541, at *7 (Tex. App.—Houston [1st Dist.] Oct. 13, 2005, no pet.) (mem. op., not designated for publication) (holding, in kidnapping case, that evidence was sufficient to show that defendant had intent to secrete complainant in place where she was unlikely to be found when, in middle of night, he forced her behind her neighbor's house that appeared to be vacant for purpose of sexually assaulting her).
Viewing it in a light most favorable to the verdict, we hold that the evidence was legally sufficient to support King's conviction for attempted aggravated kidnapping. We overrule the remaining portion of King's second issue.
In his third issue, King contends that the trial court erred by denying his motion to suppress the State's evidence of his DNA, obtained by the police pursuant to a search warrant. King asserts that the trial court should have granted his motion because the affidavit supporting the search warrant contained “false and misleading” information.
A. Trial Court Proceedings
The week before trial, King filed a motion to suppress evidence seized from his home, vehicles, and person, including “items of serology,” specifically, King's saliva and hair. On the first day of trial, the trial court conducted a hearing on King's motion to suppress the State's DNA evidence. The evidence was derived from the buccal swabs of King's mouth taken by Oklahoma City Police Detective Klika pursuant to a search warrant issued by an Oklahoma judge.
The search warrant had been issued based on Detective Klika's affidavit. In support of his motion to suppress, King complained about Detective Klika's statement in the affidavit that “Detective Henz, through his investigation, identified Terry Wayne King II by reviewing video from the school bus and surrounding businesses.” King asserted, “[I]t's my contention that that statement, while not per se false, is misleading.” King argued that the statement was misleading because Detective Henz's identification of King had taken several months and had required more investigation than just reviewing video surveillance from the school bus and surrounding businesses. King explained that, to identify him as the suspect, the police had also, for example, used cell tower records. King asserted that Detective Klika's statement gave the impression that identifying him as a suspect was simpler than it had been because the statement omitted information about the full extent of the investigation.
The State agreed that Detective Henz's investigation had involved more steps to identify King as a suspect than just reviewing the surveillance videos. Regarding those additional steps, the parties stipulated to the following facts:
• On one of the surveillance videos, the police saw a person, later identified as King, get into a car.
• The police determined that the car in the surveillance video was registered to King's wife.
• In some of the surveillance videos, a tattoo is clearly seen on the person's arm.
• After obtaining photographs of King, the police compared King's facial features and tattoo with the person in the surveillance videos and determined King was that person.
• Police also used cell phone and cell tower records in their investigation to identify King.
Earlier in the hearing, King had indicated that he planned to call Detective Henz to testify. But, after the parties stipulated to the facts about the investigation, King decided not to call Detective Henz to testify, stating that “all I was going to get—elicit from [Detective Henz], was that there was more to this investigation than this one sentence.”
As Defense Exhibit 1, King offered Detective Klika's affidavit for the search warrant authorizing the police to obtain his saliva. King also offered, as Defense Exhibit 2, the affidavit of Fort Worth Police Officer A. Fincher. Officer Fincher's affidavit had been used to obtain a search warrant of King's home. Officer Fincher's affidavit more thoroughly described the steps of the investigation than had Detective Klika's affidavit, and King offered Officer Fincher's affidavit to show the full extent of the investigation.
The trial court denied King's motion to suppress the DNA evidence obtained through the search warrant. The trial court explained the basis for its ruling:
The Court has reviewed Defense [Exhibits] 1 and 2. The Court finds that although Defense 1 does not contain every step of the investigation, as [defense counsel] has raised, Defense 2 states that surveillance videos from a nearby Fort Worth Independent School District school bus and the surrounding businesses were collected and viewed as part of this investigation and these videos led to the identification of Terry Wayne King, II, as a suspect by [sic]. And then it goes through a more—certainly a more detailed investigation than is mentioned in Defense 1. However, the Court finds that that is not the way that it's stated in Defense 1 is not a falsehood or a reckless disregard for the truth. It's just—doesn't have the entire investigation.
B. Governing Legal Principles
King asserts that the trial court erred in denying his motion to suppress the DNA evidence based on Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). In Franks, the Supreme Court of the United States held that a search warrant must be voided as violating the Fourth Amendment—and any evidence obtained pursuant to the warrant suppressed—if (1) the defendant can establish by a preponderance of the evidence that the affidavit supporting the warrant contains a material misstatement that the affiant made knowingly, intentionally, or with reckless disregard for the truth, and (2) excising the false statement, the affidavit's remaining content is insufficient to establish probable cause. Id. at 155–56, 98 S.Ct. 2674; see Janecka v. State, 937 S.W.2d 456, 462 (Tex. Crim. App. 1996). Unlike an issue of probable-cause deficiency, when deciding a Franks motion, “the trial court may consider not only the probable-cause affidavit but also the evidence offered by the party moving to suppress because this attack on the sufficiency of the affidavit arises from claims that it contains false statements.” Jones v. State, 338 S.W.3d 725, 739 (Tex. App.—Houston [1st Dist.] 2011), aff'd, 364 S.W.3d 854 (Tex. Crim. App. 2012). The Court of Criminal Appeals has not extended Franks to allegations of material omissions, but several Texas intermediate appellate courts—including both Houston Courts of Appeals and Fort Worth's Second Court of Appeals—have extended the Franks analysis to allegations of material omissions. See Darby v. State, 145 S.W.3d 714, 722 (Tex. App.—Fort Worth 2004, pet. ref'd) (expressly agreeing with Fifth Circuit and intermediate Texas appellate courts’ application of Franks analysis to material omissions); Blake v. State, 125 S.W.3d 717, 724 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (applying Franks analysis to claim of material omission); Melton v. State, 750 S.W.2d 281, 284 (Tex. App.—Houston [14th Dist.] 1988, no pet.) (“Such omissions are treated essentially the same as claims of material misstatements.”).
We review a trial court's decision on a Franks suppression issue under the same standard that we review a probable-cause deficiency, a mixed standard of review. Jones, 338 S.W.3d at 739; Fenoglio v. State, 252 S.W.3d 468, 473 (Tex. App.—Fort Worth 2008, pet. ref'd). Under this mixed standard, we give almost total deference to a trial court's rulings on questions of historical fact and application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor, while we review de novo application-of-law-to-fact questions that do not turn upon credibility and demeanor. Jones, 338 S.W.3d at 739 (citing Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002)). Here, however, we are presented with a question of law based on undisputed, stipulated facts; thus, we perform a de novo review. See Dyar v. State, 125 S.W.3d 460, 462 (Tex. Crim. App. 2003); Morales v. State, No. 02-17-00130-CR, 2018 WL 2346708, at *2 (Tex. App.—Fort Worth May 24, 2018, no pet.) (mem. op., not designated for publication).
In the trial court, King challenged the validity of the warrant by arguing that Klika's statement that “Detective Henz, through his investigation, identified Terry Wayne King II by reviewing video from the school bus and surrounding businesses” was misleading because it omitted information about the full scope of the investigation to identify King as the suspect. The State agreed that the investigation had entailed more than just reviewing the videos. King compared Klika's affidavit with Officer Fincher's affidavit, which had been used to obtain a search warrant for King's home and had provided a more detailed description of the investigation.
To support his argument that the Detective Klika's statement regarding the investigation was misleading, King relies on Hass v. State, 790 S.W.2d 609 (Tex. Crim. App. 1990) and Juarez v State, 586 S.W. 2d 513 (Tex. Crim. App. 1979). But King misplaces his reliance on Hass and Juarez. Both cases involved affiants who falsely stated in their search-warrant affidavits that they had personally observed persons or transactions when they had not. Hass, 790 S.W.2d at 612 (“The dishonesty in the affidavits consists of the affiants’ claims to have personally witnessed events which were beyond their purview.”); Juarez, 586 S.W.2d at 515 (involving record showing affiant described transaction as his own firsthand observation, but he later admitted that he was not at scene when transaction occurred). Further, the affiants in those cases were asked specifically about the truth of these statements at the suppression hearing and admitted that the statements were untrue. See Hass, 790 S.W.2d at 611; Juarez, 586 S.W.2d at 517–18.
Unlike the challenged statements in Hass and Juarez, Detective Klika's statement that “Detective Henz, through his investigation, identified Terry Wayne King II by reviewing video from the school bus and surrounding businesses” was not objectively false. In Hass, the Court of Criminal Appeals observed that one of the false statements there could have been remedied had the affiant officer stated that another officer had seen the event to which he testified instead of attributing the observation to himself. Hass, 790 S.W.2d at 612 n.2. Consistent with this observation, Detective Klika's affidavit reflected that the information he conveyed about Detective Henz's investigation and identification of King was information that he learned after King had already been identified. Detective Klika's affidavit indicated that he learned about Detective Henz's investigation after King's arrest on a Texas warrant by the U.S. Marshal's Service in Oklahoma City.
Detective Klika did not claim to have personally observed or have first-person knowledge about the events conveyed in his affidavit regarding Detective Henz's investigation and identification of King. Nor did Detective Klika's affidavit or the stipulated facts reflect that Detective Klika was aware of all the steps taken by Detective Henz in identifying King as the suspect. As a result, King failed to meet his burden to prove by a preponderance of the evidence that Detective Klika's affirmative statement about Detective Henz's investigation and identification of King, or any material omissions related to it, were made intentionally, knowingly, or with reckless disregard for the truth. See Franks, 438 U.S. at 155–56, 98 S.Ct. 2674; Darby, 145 S.W.3d at 722; Blake, 125 S.W.3d at 724–25 (holding that appellant did not meet Franks burden because he did not offer any evidence to show that omission from officer's affidavit was intentional, knowing, or with reckless disregard for truth); see also Mireles v. State, No. 13-02-706-CR, 2005 WL 1492078, at *4 (Tex. App.—Corpus Christi June 23, 2005, pet. ref'd) (mem. op., not designated for publication) (upholding trial court's Franks ruling when officer listed information in affidavit received from others without claiming personal knowledge of information). Furthermore, King has not shown that Detective Klika's affidavit, if supplemented with the omitted information about the investigation, would be insufficient to support a finding of probable cause. See Darby, 145 S.W.3d at 722.
We overrule King's third issue.
Lesser-Included Offense Instructions
In his fourth and fifth issues, King contends that, with respect to the charged offense of attempted aggravated kidnapping, the trial court erred by denying his request to submit lesser-included offense instructions for the offenses of (1) unlawful restraint of a child under 17 years of age and (2) unlawful restraint exposing the victim to serious bodily injury. In his sixth issue, King contends that, with respect to the charged offense of injury to a child causing serious bodily injury, the trial court erred by denying his request to submit a lesser-included offense instruction for the offense of injury to a child causing bodily injury.
A. Governing Legal Principles
Article 37.09 of the Code of Criminal Procedure pertains to lesser-included offenses and provides that an offense is a lesser-included offense if:
(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;
(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;
(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or
(4) it consists of an attempt to commit the offense charged or an otherwise included offense.
Tex. Code Crim. Proc. art. 37.09.
Courts apply a two-step analysis to determine whether an instruction on a lesser-included offense should be given to the jury. State v. Meru, 414 S.W.3d 159, 162 (Tex. Crim. App. 2013); Cavazos v. State, 382 S.W.3d 377, 382 (Tex. Crim. App. 2012). The first step of the analysis is a question of law that does not depend on the evidence at trial and compares the elements of the offense as alleged in the indictment with the elements of the requested lesser-included offense. Meru, 414 S.W.3d at 162; see Hall v. State, 225 S.W.3d 524, 535–36 (Tex. Crim. App. 2007) (holding that first step in lesser-included offense analysis must be “capable of being performed before trial by comparing the elements of the offense as they are alleged in the indictment or information with the elements of the potential lesser-included offense”). The question at this step is, “[A]re the elements of the lesser offense ‘established by proof of the same or less than all the facts required to establish[ ] the commission of the offense charged’?” Ex parte Watson, 306 S.W.3d 259, 264 (Tex. Crim. App. 2009) (brackets in original) (quoting Tex. Code Crim. Proc. art. 37.09(1)). Courts compare the statutory elements and any “descriptive averments,” such as “non-statutory manner and means[ ] that are alleged for purposes of providing notice,” alleged in the indictment for the greater offense to the statutory elements of the lesser offense. Id. at 273 (op. on reh'g).
An offense is a lesser-included offense of the charged offense if the indictment for the greater-inclusive offense either: (1) alleges all of the elements of the lesser-included offense, or (2) alleges elements plus facts (including descriptive averments, such as non-statutory manner and means, that are alleged for purposes of providing notice) from which all of the elements of the lesser-included offense may be deduced. Id. “[T]he elements of the lesser-included offense do not have to be pleaded in the indictment if they can be deduced from facts alleged in the indictment.” Meru, 414 S.W.3d at 162. “When there are allegations in the indictment that are not identical to the elements of the lesser offense, a court should apply the functional-equivalence test to determine whether elements of the lesser offense are functionally the same or less than those required to prove the charged offense.” Safian v. State, 543 S.W.3d 216, 220 (Tex. Crim. App. 2018). “An element of the lesser-included offense is functionally equivalent to an allegation in the charged greater offense if the statutory elements of the lesser offense can be deduced from the elements and descriptive averments in the indictment for the charged greater offense.” Id. (citing McKithan v. State, 324 S.W.3d 582, 588–89 (Tex. Crim. App. 2010)).
If the analysis under the first step supports a conclusion that the defendant's requested lesser offense is a lesser-included offense, the court moves to the second step of the analysis and considers whether a rational jury could find that, if the defendant is guilty, he is guilty only of the lesser offense. Meru, 414 S.W.3d at 162–63. This step is a factual determination that is based on the evidence presented at trial. Id. at 163. If there is evidence that raises a fact issue on whether the defendant is guilty only of the lesser offense, a lesser-included offense instruction is warranted, “regardless of whether the evidence is weak, impeached, or contradicted.” Id.; Hall, 225 S.W.3d at 536 (“In this step of the analysis, anything more than a scintilla of evidence may be sufficient to entitle a defendant to a lesser charge.”). The evidence must establish the lesser offense as a “valid, rational alternative to the charged offense.” Hall, 225 S.W.3d at 536 (quoting Forest v. State, 989 S.W.2d 365, 367 (Tex. Crim. App. 1999)). The evidence may be “weak or contradicted,” but it “must still be directly germane to the lesser-included offense and must rise to a level that a rational jury could find that if [the defendant] is guilty, he is guilty only of the lesser-included offense.” Cavazos, 382 S.W.3d at 385. To meet this threshold, the evidence must be more than mere speculation; this threshold “requires affirmative evidence that both raises the lesser-included offense and rebuts or negates an element of the greater offense.” Id.
B. Entitlement to Instruction on Unlawful Restraint Offenses
Related to the charged offense of attempted aggravated kidnapping, King asserts that the trial court erred by denying his request to give the jury lesser-included-offense instructions for the offenses of (1) unlawful restraint of a child under 17 years of age and (2) unlawful restraint exposing the victim to serious bodily injury. Applying the two-step analysis set out above, we first compare the elements of attempted aggravated kidnapping, as alleged in the indictment, with the elements of the lesser offenses of unlawful restraint requested by King. See Meru, 414 S.W.3d at 162.
The indictment in this case alleged, in relevant part, that King:
did, with the specific intent to commit the offense of aggravated kidnapping, do an act, to-wit: requesting [Jane] go with him and/or striking [Jane] with his hand and/or by grabbing [Jane] with his hand and/or by squeezing the throat of [Jane] and/or by pushing [Jane], amounting to more than mere preparation, but fail[ed] to effect the commission of the offense intended.
As modified by the indictment, the elements of attempted aggravated kidnapping are:
(2) with the intent to abduct Jane,
(3) with an intent to commit an aggravating factor,
(4) did an act or acts that amounted to more than mere preparation and tended, but failed, to effect the commission of aggravated kidnapping, by (a) requesting Jane to go with him, and/or (b) striking Jane with his hand, and/or (c) grabbing Jane with his hand, and/or (d) squeezing the throat of Jane, and/or (e) pushing Jane.
See Tex. Penal Code §§ 15.01(a), 20.04; see Laster, 275 S.W.3d at 521.
For purposes of our analysis, the elements of the lessor offense of simple unlawful restraint are:
(2) intentionally or knowingly
(3) restrained Jane.
See Tex. Penal Code § 20.02(a). The offense of simple unlawful restraint is a Class A misdemeanor. See id. § 20.02(c). The offense of unlawful restraint becomes “a state jail felony if the person restrained was a child younger than 17 years of age.” See id. § 20.02(c)(1). If “the actor recklessly exposes the victim to a substantial risk of serious bodily injury,” then the offense of unlawful restraint becomes a third-degree felony. See id. § 20.02(c)(2)(A).
King did not request lesser-included offense instructions for simple misdemeanor assault, but he did request lesser-included offense instructions for (1) the state jail felony offense of unlawful restraint of a child younger than 17 years of age and (2) the third-degree felony offense of unlawful restraint exposing the victim to serious bodily injury. The only difference between unlawful restraint of a child younger than 17 years of age and unlawful restraint exposing the victim to serious bodily injury and misdemeanor unlawful restraint—and between one another—are the additional elements affecting the level of offense. The prohibited conduct—intentionally or knowingly restraining another—is the same for all three levels of the offense of unlawful restraint. For this reason, we need not separately analyze whether King was entitled to lesser-included offense instructions for the two lesser offenses requested by King—that is, we may conduct a combined analysis for the lesser offenses of (1) unlawful restraint of a child under 17 years of age and (2) unlawful restraint exposing the victim to serious bodily injury, to determine whether King was entitled to lesser-included offense instructions for those lesser offenses.
To determine whether King was entitled to the requested lesser-included offense instructions, we ask whether the elements of the lesser offenses of unlawful restraint are established by proof of the same or less than all the facts required to establish the commission of attempted aggravated kidnapping as alleged. See Watson, 306 S.W.3d at 264. We agree with the State that that they are not.
We are mindful that unlawful restraint is a lesser-included offense of the completed offenses of kidnapping and aggravated kidnapping. Schweinle v. State, 915 S.W.2d 17, 19 (Tex. Crim. App. 1996) (holding that “false imprisonment [predecessor offense to unlawful restraint] is a lesser included offense of kidnapping and aggravated kidnapping”). Kidnapping and aggravated kidnapping require an abduction, which includes the completed actus reus of restraint. See id. §§ 20.01, 20.03, 20.04; Schweinle, 915 S.W.2d at 19; see also Megas v. State, 68 S.W.3d 234, 240 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd) (“Once restraint has been proven, the offense of kidnapping is complete when the actor evidences a specific intent to prevent liberation”). Similarly, the lessor offense of unlawful restraint requires the State to prove a completed actus reus of restraint. See id. § 20.02(a); Schweinle, 915 S.W.2d at 19 (recognizing that, while “kidnapping is accomplished by abduction, which includes restraint ․ false imprisonment is committed by restraint only.”); see also Michael B. Charlton, Texas Practice: Texas Criminal Law § 11.2 (2d ed. 2001) (stating that “gravamen of [unlawful restraint] is restraint of the complainant without his or her consent”).
In contrast, the offenses of attempted kidnapping and attempted aggravated kidnapping do not require a completed act of restraint. Instead, to prove those offenses, the State must prove “an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.” Tex. Penal Code § 15.01(a); see Laster, 275 S.W.3d at 522 (explaining that to prove attempted aggravated kidnapping, “the State was required to prove that Laster committed an act beyond mere preparation with the intent to secrete or hold [the victim] and commit an aggravating element—not that Laster could, or did, actually accomplish this purpose”).
On appeal, King contends that, as modified by the indictment here, proof of the greater offense of attempted aggravated kidnapping would establish the conduct prohibited by the lesser offenses, i.e., King's restraint of Jane. In making this argument, King points to the acts alleged in the indictment for the purpose of establishing the manner and means of how he committed the offense of attempted aggravated kidnapping. Specifically, King relies on the descriptive averments in the indictment alleging that he did the following act or acts that amounted to more than mere preparation to abduct Jane: requesting Jane to go with him, and/or striking Jane with his hand, and/or grabbing Jane with his hand, and/or squeezing the throat of Jane, and/or pushing Jane.
King asserts that “[t]hese alleged acts meet the statutory elements of unlawful restraint.” We disagree. The acts alleged in the descriptive averments are neither identical to the element of restraint nor are they the functional equivalent of the element. See McKithan, 324 S.W.3d at 593 (citing Watson, 306 S.W.3d at 273).
“Restrain” means to restrict a person's movements without consent, so as to interfere substantially with her liberty, by moving her from one place to another or by confining her. Tex. Penal Code § 20.01(1). The acts alleged in the descriptive averments do not entail King moving Jane from one place to another nor are they equivalent to King confining her. The Penal Code does not define “confine,” but the Fort Worth Court of Appeals has recognized that “confine” means “to hold within bounds,” “to restrain from exceeding boundaries,” or “to keep in narrow quarters: imprison.” Cox v. State, 497 S.W.3d 42, 48 (Tex. App.—Fort Worth 2016, pet. ref'd) (quoting Webster's Third New International Dictionary 476 (2002)); see Holmes v. State, 873 S.W.2d 123, 126 (Tex. App.—Fort Worth 1994, no pet.) (defining “confine” as “to shut up, imprison, immure, put or keep in detention, to relegate to certain limits”) (citing Oxford English Dictionary 805–06 (24th ed. 1983)). None of the acts alleged in the indictment, including the act of grabbing Jane, equate to King moving Jane from one place to another or to him confining her. Thus, the descriptive averments are not the same as the element of restraint.
Further, the acts alleged in the descriptive averments are not functionally equivalent to the element of restraint. McKithan, 324 S.W.3d at 593. In making the functionally-equivalent determination, “[t]he relevant inquiry is not what the evidence may show but what the State is required to prove to establish the charged offense.” Id. To prove any of the manner or means alleged for the greater offense of attempted aggravated kidnapping, the State was not required to prove restraint. The State was required only to show that any of the alleged manner-and-means acts in the descriptive averments were more than mere preparation and tended, but failed, to affect the commission of aggravated kidnapping. Therefore, the manner and means allegations are not the functional equivalent of the element of restraint, even if the State's evidence showed restraint. See id.; see also Farrakhan v. State, 247 S.W.3d 720, 722–23 (Tex. Crim. App. 2008) (approving appellate court's decision that “fleeing” offense was not lesser-included offense of charged “evading” offense even though proof of charged “evading” offense may also have shown “fleeing” offense).
We conclude that the elements of the lesser offenses of unlawful restraint are not established by proof of the same or less than all the facts required to establish the commission of the charged offense of attempted aggravated kidnapping. See Tex. Code Crim. Proc. art. 37.09(1). We hold that the trial court did not err by denying King's request to instruct the jury on the unlawful restraint offenses.
We overrule King's fourth and fifth issues.
C. Entitlement to Instruction on Injury to a Child Causing Bodily Injury
Count one of the indictment alleged that King had committed the offense of injury to a child causing serious bodily injury by “intentionally or knowingly” causing “serious bodily injury to [Jane], a child younger than 15 years of age, ․ by squeezing the throat of [Jane] with his hand․” In his sixth issue, King contends that the trial court erred when it refused to instruct the jury on the offense of injury to a child causing bodily injury as a lesser-included offense of the charged offense of injury to a child causing serious bodily injury.
Regarding the first step of the lesser-included offense analysis, the State correctly concedes that the offense of injury to a child causing bodily injury is a lesser-included offense of injury to a child causing serious bodily injury because the only difference between the two offenses is that a less serious injury suffices to constitute the offense of injury to a child causing bodily injury. See id. art. 37.09(2). Thus, we turn to the second step of the analysis in which we must consider the evidence presented at trial and determine whether a rational jury could find that, if the defendant is guilty, he is guilty only of the lesser offense. See Meru, 414 S.W.3d at 162–63. “Meeting this threshold requires more than mere speculation—it requires affirmative evidence that both raises the lesser-included offense and rebuts or negates an element of the greater offense.” Cavazos, 382 S.W.3d at 385. Although anything more than a scintilla of evidence may suffice to raise a lesser-included offense, the evidence must establish that the lesser-included offense is “a valid, rational alternative to the charged offense.” Roy v. State, 509 S.W.3d 315, 317 (Tex. Crim. App. 2017) (citing Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011)).
For the evidence to show that King, if guilty, is guilty only of injury to a child causing bodily injury, the evidence must demonstrate that King caused Jane bodily injury rather than serious bodily injury. See Tex. Penal Code § 22.04(a)(1), (3). A person is criminally responsible for a result “if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.” Id. § 6.04(a). “Serious bodily injury” is “bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” Id. § 1.07(46). “Bodily injury” is defined as “physical pain, illness, or any impairment of physical condition.” Id. § 1.07(8).
King contends that there is a scintilla of evidence showing that his actions caused only bodily injury to Jane, not serious bodily injury. He points to the testimony of the paramedic who treated Jane immediately after the attack. King relies on the paramedic's testimony that Jane's injuries were not life threatening when the paramedics initially treated Jane before taking her to the hospital. But, in making this argument, King takes the testimony of out of context.
Dr. Shaw, the emergency room doctor who treated Jane, testified that when she arrived at the hospital, Jane was “trauma stat,” meaning that the paramedics were having difficulty maintaining her life-sustaining functions. Jane's oxygen levels were dangerously low and she “couldn't breathe.” It was determined that Jane had developed bilateral pulmonary edema, meaning that she had fluid in her lungs, which prevented her from breathing properly and getting oxygen.
Dr. Shaw provided testimony showing that Jane's life-threatening injuries were caused by the strangulation injuries she reported had been inflicted by her attacker. Dr. Shaw testified that as a result of “those kinds of injuries, you can have severe damage to the lungs. And it turns out, that is what she had.” Dr. Shaw then explained how strangulation injuries cause lung damage:
So it's pretty well described—it's very well described in the medical literature. If you look in the medical journals, it's called a negative pressure pulmonary injury in people who are either strangled or people who unfortunately try to hang themselves sometimes. When the windpipe or the neck is compressed or closed, the human body tries really hard to draw a breath of air because we all have a survival instinct. And even though the windpipe is closed, the respiratory muscles, the breathing muscles, fire and do their best to take a deep breath just as if somebody is in a pool and can't breathe. But what happens is, when the air can't come in because someone is being chok[ed] or strangled, it generates really strong suction or negative pressure․ And so then that results in an injury to the lungs and eventually the heart, as well.
Related to why Jane had fluid in her lungs, Dr. Shaw explained that the negative lung pressure can cause the person's capillaries to leak fluid into the lungs. He testified that he feared for Jane's life at the time and stated that she would not have survived without medical care. Thus, the State offered evidence demonstrating that King's act of strangling Jane caused her to experience a physical condition that created a substantial risk of death, which is a serious bodily injury. See id. § 1.07(46).
King points to testimony by Dr. Shaw that he asserts is affirmative evidence that he caused only bodily injury to Jane. On cross-examination, King asked Dr. Shaw whether “there are some heart conditions that could basically force the lungs to work overdrive” and cause pulmonary edema. Dr. Shaw answered that it could happen “in theory.” He clarified that he said “in theory” because he had never seen that happen in a pediatric patient. King points to no evidence in the record showing that Jane had any preexisting conditions.
The evidence relied on by King does not affirmatively show that he caused only bodily injury to Jane because it does not rise above the level of requiring the jury to speculate about whether Jane's medical condition was caused by a preexisting condition rather than strangulation. See Cavazos, 382 S.W.3d at 385. The evidence cited by King would not permit a rational jury to find that if he is guilty, King is guilty of only the lesser-included offense of injury to a child causing bodily injury. We therefore conclude that the trial court did not err by refusing King's requested instruction.
We overrule King's sixth issue.
Suppression of Photographs Containing Child Pornography
In his seventh issue, King contends that the trial court erred when it denied his motion to suppress 17 photographs containing child pornography found on his cell phone.
A. Background Relevant to Motion to Suppress
On June 17, 2019—the same day that King was arrested at an Oklahoma City truck stop—Detective Perkins signed a probable-cause affidavit to obtain a search warrant for the semi-truck King drove for his job as a truck driver. The semi-truck was located at the truck stop where King was arrested. An Oklahoma district court judge issued a search warrant for the semi-truck, which permitted King's personal items, including cell phones, to be seized. His cell phone was in the truck, but during the police's execution of the warrant, also on July 17, they failed to seize the phone. The warrant and inventory were returned to the district court judge on July 24, 2019.
The inventory of the items seized from the semi-truck was also sent to Detective Henz in Fort Worth. Because it had not been seized by the police during the search, the cell phone was not on the inventory. After he realized that the cell phone had not been seized, Detective Henz contacted Feltman, the owner of the semi-truck who had employed King. Detective Henz requested Feltman to retrieve the cell phone from the semi-truck. As requested, Feltman retrieved the cell phone from the truck and sent it Detective Henz, who received the cell phone on August 9, 2019. The police then obtained a search warrant for the phone's contents and discovered 17 photographs containing child pornography.
The State did not seek to admit the photographs during the guilt-innocence phase but sought to admit them during the punishment phase. King moved to suppress the contents of his cell phone, including the photographs. He argued that, because the search warrant for the semi-truck was invalid at the time Feltman seized the cell phone on behalf of the police, the warrantless seizure of the phone violated the Fourth Amendment's prohibition against unreasonable searches and seizures.
A hearing on the suppression motion was conducted at the start of the punishment phase. As the hearing began, the trial court confirmed that King was challenging the seizure of the cell phone itself at the Oklahoma truck stop and was not challenging the search of the contents of the phone, which were obtained pursuant to a warrant issued after the phone was seized and sent to Fort Worth.
The defense offered into evidence, without objection from the State, (1) the probable-cause affidavit signed by Detective Perkins supporting issuance of the Oklahoma search warrant for the semi-truck, (2) the Oklahoma search warrant, and (3) the return and inventory of the items seized by police from the semi-truck pursuant to the warrant. The parties then stipulated on the record to the following facts in lieu of further proof or testimony:
• On July 17, 2018, King was a truck driver who drove a tractor trailer truck owned by John Feltman.
• King was arrested in Oklahoma County, Oklahoma, on July 17, 2018, “near and after driving” his work truck.
• On July 17, 2018, a search warrant was issued in Oklahoma authorizing a search of King's work truck and the seizure of personal property found in the truck, including, among other things, cell phones.
• The Oklahoma City Police Department and the Fort Worth Police Department's Major Case Unit conducted a joint search of King's work truck.
• During the search of the King's work truck, a cell phone believed to be King's was found and photographed.
• The cell phone that was found in King's work truck was inadvertently left in the truck and not seized by the joint search team.
• Detective Henz received the inventory of the search and determined that the cell phone that was found and photographed in King's work truck was not logged into property.
• Detective Henz contacted the owner of King's work truck, Feltman, and said, “Would you look in the truck to see if the phone is present?”
• The date Detective Henz contacted Feltman is unknown.
• Feltman confirmed that a cell phone was in the truck King used for work.
• The date Feltman found the phone in the truck King used for work is unknown.
• Detective Henz requested that Feltman send the cell phone to him in Fort Worth, Texas, and Detective Henz reimbursed Feltman for the shipping costs.
• Feltman shipped the cell phone via Fed Ex to Detective Henz.
• Detective Henz received the cell phone from Feltman on August 9, 2018.
• The cell phone Detective Henz received from Feltman matched the cell phone found and photographed during the search of King's work truck on July 17, 2019.
• Detective Henz obtained a search warrant to search the contents of the cell phone, and the photographs containing child pornography were discovered.
King argued that the seizure of his cell phone was unlawful because the phone's seizure was not done pursuant to a valid warrant in violation of his Fourth Amendment rights. The State did not dispute King's claim that the search warrant was no longer valid when the cell phone was seized. Instead, the State argued that King did not have standing to challenge the seizure of the phone from the semi-truck because, by the time Feltman seized the phone at the request of the police, King did not have a reasonable expectation of privacy in the semi-truck.
The State acknowledged that, when he was driving the semi-truck, King had a privacy interest in the vehicle. But the State argued that, when he was not driving the semi-truck, King did not have an expectation of privacy in the vehicle because it was owned by his employer, Feltman. In tandem with this argument, the State asserted that, to the extent King had an expectation of privacy in the semi-truck at the time of his arrest, that expectation had dissipated by the time Feltman seized the phone on behalf of the police.
King disagreed with the State's position. He claimed that whether he had standing should be determined by analyzing his reasonable expectation of privacy at the time of his arrest and not at the time that his cell phone was seized by Feltman on behalf of the police many days later. King asserted that, when he left his cell phone in the semi-truck at the time of his arrest, he had a reasonable expectation of privacy in the vehicle because he had been driving it for work. He argued that his phone had remained in the vehicle for Feltman to retrieve only because he had been arrested at the truck stop where the semi-truck was located, not because he had voluntarily abandoned the phone in the truck.
At the suppression hearing, the trial court was skeptical of King's argument. The trial court acknowledged that when a person is arrested “in their own car and then they're taken away, they still have a right to—to a reasonable expectation of privacy within the contents of the car.” But the court then asked King's counsel:
[I]f someone is arrested in their work car, then the work car doesn't sit there waiting for him to come back or a family member waiting to claim it. It goes to someone else, a third party, who actually has a greater right to that car, the employer who is the owner of the car. And then, at that point, how protected are their effects that are left in the car from the owner?
King's counsel responded:
I think that would then go to the concept of abandonment of property, which if somebody is voluntarily abandoning something. But I would argue that if he's arrested at the time, he can't voluntarily abandon anything. And at the time, the police obviously felt it necessary to issue a warrant to search that truck, and which they did, and then seized whatever they seized ․
The trial court also asked defense counsel when King's expectation of privacy in the semi-truck ended. Counsel responded that he did not know but did not change his position that it had not ended at the time Feltman seized the phone on behalf of the police without a valid warrant. The trial court disagreed, stating, “I think that it—it had ended by the time that this seizure happened.” The trial court then denied King's motion to suppress the photographs containing child pornography. The photographs were admitted for the jury to consider in assessing King's punishment.
B. Standard of Review
When reviewing a ruling on a motion to suppress, we “apply a bifurcated standard of review, giving almost total deference to a trial court's determination of historic facts and mixed questions of law and fact” that rely on the trial court's determination of witness credibility. Martinez v. State, 348 S.W.3d 919, 922–23 (Tex. Crim. App. 2011). But we apply a de novo standard of review “to pure questions of law and [to] mixed questions that do not depend on credibility determinations.” Id. Because, here, the facts relevant to the motion to suppress were stipulated and undisputed, the only questions presented to us involve the trial court's application of the law to the facts, which we review de novo. See Garcia v. State, 296 S.W.3d 180, 183 (Tex. App.—Houston [14th Dist.] 2009, no pet.); see also State v. Villarreal, 475 S.W.3d 784, 798 (Tex. Crim. App. 2014) (“[B]ecause the facts are undisputed and the questions before us are matters of law, we apply a de novo standard of review.”); Parker v. State, 182 S.W.3d 923, 925 (Tex. Crim. App. 2006) (recognizing that whether defendant has standing to contest search and seizure is question of law, which appellate courts review de novo).
We first address whether King met his burden to establish that he had standing to challenge the lawfulness of the seizure of his cell phone. Standing was the principal issue in dispute at the suppression hearing. The trial court indicated that it denied King's motion to suppress because it concluded that King did not have standing. On appeal, the primary dispute between the parties continues to be whether King had standing to challenge the seizure.
The Fourth Amendment guarantees people the right “to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures[.]” U.S. Const. amend. IV. The rights secured by the Fourth Amendment are personal, and accordingly, an accused has standing to challenge the admission of evidence obtained by an unlawful search or seizure only if he had a legitimate expectation of privacy in the place invaded. State v. Betts, 397 S.W.3d 198, 203 (Tex. Crim. App. 2013) (citing Rakas v. Illinois, 439 U.S. 128, 139, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978)); see Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (observing that “the Fourth Amendment protects people, not places”).
The defendant who challenges a search has the burden of proving facts demonstrating a legitimate expectation of privacy. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). “To carry this burden, the accused must normally prove: (a) that by his conduct, he exhibited an actual subjective expectation of privacy, i.e., a genuine intention to preserve something as private; and (b) that circumstances existed under which society was prepared to recognize his subjective expectation as objectively reasonable.” Id.; see State v. Granville, 423 S.W.3d 399, 405 (Tex. Crim. App. 2014) (stating defendant must prove that he had subjective expectation of privacy and that society is prepared to recognize that expectation as “reasonable” or “legitimate”).
In determining whether a defendant's subjective expectation of privacy was one that society was prepared to recognize as objectively reasonable, we examine the totality of the circumstances surrounding the search, including these factors:
(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.
Granados v. State, 85 S.W.3d 217, 223 (Tex. Crim. App. 2002) (citing Villarreal, 935 S.W.2d at 138). This is a non-exhaustive list of factors, and no one factor is dispositive. Id.
The record, here, does not support the trial court's conclusion that King did not have standing to challenge the seizure of his cell phone. Instead, the record shows that King had an objectively reasonable expectation of privacy in the semi-truck when his phone was seized.
The undisputed evidence and stipulated facts show that Feltman owned the semi-truck and that King worked for him as a long-haul truck driver, driving the semi-truck. King was arrested “near” the semi-truck at a truck stop after he had been driving it, and his cell phone was inside the truck at the time.
In the July 17 probable cause affidavit for the search warrant—which was admitted into evidence at the suppression hearing without objection—Detective Perkins testified that he was informed that King had been arrested by the U.S. Marshal's task force at the Petro Truck Stop earlier that day. He stated that he had also been informed that King had been “in possession of” the semi-truck.
Detective Perkins further testified:
During this investigation it was discovered [that King] is employed as a truck driver that drives cross country to complete deliveries. [King] regularly drives a green tractor trailer bearing (state) license P876801 and vehicle registration number 3HSCUAPR6BN224015 during these deliveries and that it is believed he lives out of this vehicle while he is away from home. It is therefore reasonable to assume that the suspect would keep items such as cellphones, clothing, and backpacks within this vehicle as he travels which could include items used during the commission of this offense.
The evidence showed that not only did King have Feltman's permission to possess and operate the semi-truck, but, because of the nature of his work as a trucker, King lived out of the vehicle while working on the road. King's personal use of the semi-truck was also reflected by the items seized from the semi-truck during the July 17 search that were listed in the inventory. These items included clothing (such as pants, shirts, shorts, undershorts, and a belt), a pocketknife, toiletries, a backpack, prescription and over-the-counter medication, a journal, a social security card, an electronic tablet, and personal pictures. The evidence indicated King's private use of the semi-truck, not uncommon for truckers, which is consistent with historical notions of privacy. It also logically follows that King's lawful control over the vehicle provided him the right to exclude others from it. See Rakas, 439 U.S. at 143 n.12, 99 S.Ct. 421 (“[O]ne who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude [others].”).
We acknowledge that King did not have an ownership interest in the semi-truck, “but that is just one factor to consider and not a requirement for a person to have standing to challenge improper police actions.” Betts, 397 S.W.3d at 204 (holding that appellant had reasonable expectation of privacy in backyard of his aunt's home where he kept his dogs); see Minn. v. Olson, 495 U.S. 91, 96–97, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990) (holding that overnight guest has legitimate expectation of privacy in his host's home). Although the factors for analyzing privacy expectations are more easily applied to an expectation of privacy in real property, the United States Supreme Court has held that a defendant has a reasonable expectation of privacy in a motor vehicle owned by another. See Byrd v. United States, ––– U.S. ––––, 138 S. Ct. 1518, 1531, 200 L.Ed.2d 805 (2018) (holding that defendant had reasonable expectation of privacy in rental car even when he was not listed as authorized driver because he had lawful possession and control of rental car).
In addition, the fact that King was in control of the semi-truck as an employee did not negate his reasonable expectation of privacy. The Supreme Court has recognized that employees may have a reasonable expectation of privacy in the workplace:
Within the workplace context, this Court has recognized that employees may have a reasonable expectation of privacy against intrusions by police․ As with the expectation of privacy in one's home, such an expectation in one's place of work is “based upon societal expectations that have deep roots in the history of the Amendment.”
O'Connor v. Ortega, 480 U.S. 709, 716–18, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987) (quoting Oliver v. United States, 466 U.S. 170, 178 n.8, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984)). For example, in Mancussi v. DeForte, the Court determined that a union official, who shared an office with other union employees, had a privacy interest in the office sufficient to challenge the warrantless search of that office. 392 U.S. 364, 369, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968). Similarly, Texas courts have held that an employee may have a reasonable expectation of privacy sufficient to provide him standing to challenge a search or seizure in the workplace. See Dawson v. State, 868 S.W.2d 363, 371 (Tex. App.—Dallas 1993, pet. ref'd) (holding that employee had reasonable expectation of privacy in locker provided by employer to store her personal belongings); Johnson v. State, No. 03-04-00732-CR, 2006 WL 1865059, at *3 (Tex. App.—Austin July 7, 2006, pet. ref'd) (mem. op., not designated for publication) (holding that employee had standing to challenge seizure of files from his employer's offices).
The State acknowledges that King had a reasonable expectation of privacy in the semi-truck at the time of his arrest. But it asserts that King did not have a reasonable expectation of privacy in the semi-truck when the phone was seized by Feltman for the police. The State asserts that King had no reasonable expectation of privacy at the time of the seizure because, “[i]mportantly to this case, King did not take any precautions to secure his personal belongings from intrusion prior to the retrieval of his cell phone.” The State points out that the trial court remarked at the suppression hearing that King could have asked the arresting officers to retrieve his cell phone from the semi-truck when he was arrested. The State asserts that King should have known at the time that, once the vehicle was returned to Feltman, he could remove King's belongings, including the cell phone. The State contends that “King knew the truck did not belong to him and that it would likely be returned to his employer, yet he did not take the precaution of requesting his cell phone be removed from the truck at the time of the arrest.”6
In making this argument, the State implicitly asserts that King abandoned his cell phone in the semi-truck. See State v. Martinez, 570 S.W.3d 278, 285–86 (Tex. Crim. App. 2019) (rejecting State's implicit argument that defendant abandoned his blood sample at hospital because he did not take it with him when he left hospital). When property is abandoned before police take possession of it, there is no seizure under the Fourth Amendment. Swearingen v. State, 101 S.W.3d 89, 101 (Tex. 2003). Abandonment is primarily a question of intent to be inferred from words spoken, acts done, and other objective facts and relevant circumstances. Martinez, 570 S.W.3d at 286 (citing McDuff v. State, 939 S.W.2d 607, 616 (Tex. Crim. App. 1997)).
Abandonment consists of two components: (1) a defendant must intend to abandon the property, and (2) a defendant must freely decide to abandon the property. Id. “[T]he test for abandonment in the Fourth Amendment context requires affirmative proof of abandonment.” Id. “To make the determination of voluntary abandonment we must determine if appellant intended to abandon.” Comer v. State, 754 S.W.2d 656, 659 (Tex. Crim. App. 1986). “The test does not begin with a presumption of abandonment which must be rebutted by proof of an intent not to abandon.” Martinez, 570 S.W.3d at 286.
The State asserts that King failed to protect his privacy interest by not requesting to take his cell phone with him when he was arrested. However, the record is silent on this point. The record shows that King was arrested by U.S. Marshals near the semi-truck at a truck stop and that the phone remained in the semi-truck after his arrest, but the record does not contain any information about whether King did or did not request to take his cell phone with him. Here, the State's argument that King abandoned his cell phone, based solely on evidence that the phone remained in the semi-truck, improperly begins with a presumption of abandonment. See id. Absent here is the type of affirmative evidence demonstrating an intent to abandon present in other cases. For example, in Edwards v. State, we held that the evidence demonstrated that the appellant had abandoned his cell phone because he had placed the phone on top of a stolen car, committed a crime, and then, believing the police were on the way, fled the scene without retrieving his phone from the top of the car. 497 S.W.3d 147, 161 (Tex. App.—Houston [1st Dist.] 2016, pet. ref'd). In contrast, King did not voluntarily flee from the scene; rather, he was taken from the scene in custody by law enforcement. And, unlike in Edwards, King had his cell phone inside the semi-truck while he was in possession of the vehicle for work purposes, thus demonstrating a subjective expectation of privacy that society would recognize as objectively reasonable. See Martinez, 570 S.W.3d at 287 (explaining that “[n]ot only will privacy expectations vary with the type of property involved ․ but they will vary with the location of the property” (alteration in original)) (quoting United States v. Oswald, 783 F.2d 663, 666–67 (6th Cir. 1986)).
A case useful to our analysis is United States v. Robinson, 430 F.2d 1141 (6th Cir. 1970). There, police arrested the appellant, Robinson, for armed bank robbery. Id. at 1143. Thirty-four days after Robinson was arrested, FBI agents searched his apartment, seizing an item of clothing linking him to the robbery. Id. at 1142–43. Although Robinson had been “continuously incarcerated during this intervening period, giving the agents an adequate opportunity to secure a search warrant, no warrant for the search was obtained. Instead, the agents merely sought and received the permission of the building manager to conduct the search of the apartment.” Id. at 1143.
On appeal, the principal issue was whether Robinson had abandoned the apartment at the time of the search. Id. The court explained that “abandonment will not be presumed” and “must be clearly shown by the party asserting it.” Id. The court further explained that “where, as here, the party's absence from the premises is involuntary because of his arrest and incarceration, the government should bear an especially heavy burden of showing that he intended to abandon them.” Id.
To show Robinson had abandoned his apartment, the government offered the testimony of the building manager who based his opinion that Robinson had abandoned the apartment on Robinson's absence from the apartment, which was due to his post-arrest incarceration. Id. The court concluded that “the government failed to show that the premises had been abandoned by [Robinson] at the time of the search, that the warrantless search of the premises was therefore unlawful, and that receipt of the [clothing item] into evidence constituted error.” Id. at 1144.
Robinson provides a good example of why circumstances created by a defendant's arrest and incarceration, coupled with a lapse in competency by law enforcement, should be closely scrutinized when determining whether those circumstances give rise to a conclusion that the defendant did not have a reasonable expectation of privacy in the place or item that was subject to search or seizure. Although factually distinguishable, Robinson serves not only to highlight that King did not abandon his cell phone but also illustrates why King's expectation of privacy at the time Feltman seized his cell phone was no different than his expectation of privacy at the time of his arrest. Even though the evidence showed that King exhibited a reasonable expectation of privacy in the semi-truck at the time of his arrest, the State contends (and the trial court appeared to agree) that King's reasonable expectation of privacy had ended by the time of Feltman's delayed, post-warrant seizure of the cell phone. We disagree with that contention.
The stipulated facts showed that the delay occurred because of the police's failure to seize the cell phone during the search authorized by the warrant. If King's arrest and incarceration—along with the police's lapse in seizing the cell phone—were permitted to create the basis for concluding that King's reasonable expectation of privacy ended by the time of the seizure, then the police's conduct and delay would improperly be the force behind divesting King of his reasonable expectation of privacy rather than his own conduct influencing that determination. See Villarreal, 935 S.W.2d at 138 (considering defendant's conduct in determining whether he met burden of establishing privacy requirement by proving that he exhibited actual subjective expectation of privacy that society was prepared to recognize as objectively reasonable).
We recognize that a defendant who has a reasonable expectation of privacy in property belonging to another may lose that expectation when his status with respect to the property changes. For instance, in Tilghman v. State, the Court of Criminal Appeals recently held that a hotel guest has a reasonable expectation of privacy in a hotel room, but “upon hotel staff taking affirmative steps to evict a guest, control of the hotel room reverts to the hotel, and the guest loses his reasonable expectation of privacy therein.” 624 S.W.3d 801, 810 (Tex. Crim. App. 2021).
Another example is seen in Granados, 85 S.W.3d at 226. There, the Court of Criminal Appeals held that an apartment tenant's “indefinite” overnight guest had a reasonable expectation of privacy in the apartment. Id. at 223. However, the tenant lost his right of privacy when the tenant asked the guest “on several occasions” to leave the apartment, and the guest was given an opportunity to gather his belongings and vacate apartment. Id. at 226. For this reason, the court held that the guest did not have a reasonable expectation of privacy in the apartment when the police entered the apartment 12 hours after the tenant had asked the guest to leave. See id.
Here, unlike the defendants in Tilghman and Granados, King lost possession of the semi-truck, not because Feltman as the owner took steps to end King's right to use the truck, but because he was arrested and incarcerated by police. And significantly, the stipulated facts show that, when he seized the cell phone, Feltman was not acting on his own behalf or of his own accord. Feltman did so because Detective Henz contacted him and asked that he retrieve the phone from the semi-truck and send it to him. Feltman complied, retrieving the phone and shipping it to Detective Henz, who then reimbursed Feltman for the shipping costs. Accordingly, Feltman was acting, not as a private party or owner of the semi-truck, but as an agent of the police when he seized the phone. See Burwell v. State, 576 S.W.3d 826, 831 (Tex. App.—Houston [1st Dist.] 2019, pet. ref'd) (identifying factors to consider when determining whether private individual was acting as agent of government are (1) whether government knew of, and acquiesced in, intrusive conduct, and (2) whether party performing search intended to assist law enforcement efforts or, instead, to further his own ends); see also Dawson, 868 S.W.2d at 369 (holding that employer who searched employee's locker was acting as agent of police).
We conclude that King established that he had a reasonable expectation of privacy in the semi-truck at the time of his arrest and that, under the circumstances presented here, his expectation of privacy had not ended or diminished when Feltman seized the cell phone for the police. Therefore, King had standing to challenge the seizure of his cell phone.
D. Fourth-Amendment Violation
1. Seizure Without a Warrant
The purpose of the Fourth Amendment is to safeguard a person's legitimate expectation of privacy from unreasonable government intrusions. Villarreal, 935 S.W.2d at 138; see U.S. Const. amend. IV (prohibiting unreasonable searches and seizures by government). To suppress evidence based on an alleged Fourth Amendment violation, a defendant bears the initial burden of producing evidence that rebuts the presumption of proper police conduct. Amador v. State, 221 S.W.3d 666, 672 (Tex. Crim. App. 2007). A defendant meets his initial burden of proof by establishing that a search or seizure occurred without a warrant. Id.; see Kothe v. State, 152 S.W.3d 54, 59 n.10 (Tex. Crim. App. 2004) (“[W]arrantless searches and seizures are presumed to be unreasonable.”). Here, the State recognizes in its brief that the seizure did not occur with a warrant, stating “King's cell phone was not seized pursuant to the warrant executed on July 17, 2018, as the cell phone was left in King's work truck at that time.” The record also supports this assessment.
According to the stipulated facts, Feltman seized the phone from the semi-truck after the execution of the Oklahoma search warrant, that is, after police had already used the warrant to authorize their search of the semi-truck on July 17, during which they seized numerous items but not the cell phone. The stipulated facts also show that the phone was seized after the search's inventory was prepared, indicating that the police considered the execution of the search warrant completed. Detective Henz received the inventory, revealing that the cell phone had not been seized during the warrant's execution. And the undisputed evidence showed that the inventory and the warrant were returned to the Oklahoma court that had issued the warrant on July 24. The stipulated facts also reflect that Detective Henz did not receive the cell phone from Feltman via Federal Express until August 9, twenty-three days after the search warrant was executed. In sum, the record establishes that the seizure of the cell phone occurred without a search warrant because the cell phone was not seized during the execution of the Oklahoma search warrant but was instead seized after the warrant's execution by Feltman. See Coburn v. State, 78 Okla.Crim. 362, 148 P.2d 483, 485 (1944) (citing earlier Oklahoma authority recognizing “the rule often announced that officers may not twice search the same premises where only one search warrant is issued”); see also United States v. Keszthelyi, 308 F.3d 557, 568–69 (6th Cir. 2002) (“[T]he general rule [is] that a warrant authorizes only one search.”) (citing United States v. Gagnon, 635 F.2d 766, 769 (10th Cir. 1980) (“We agree that once a search warrant has been fully executed and the fruits of the search secured, the authority under the warrant expires and further governmental intrusion must cease.”)); Wayne R. LaFave, 2 Search & Seizure § 4.10(d) (6th ed. 2020) (explaining that search warrant “may be executed only once”).
Because he established that he had standing and that the seizure was not conducted pursuant to a warrant, King satisfied his burden of establishing his Fourth Amendment claim. See Betts, 397 S.W.3d at 207. The burden then shifted to the State to establish an exception to the warrant requirement. See id.
2. Attenuation of the Taint
The State does not contend that an exception to the warrant requirement applied to the seizure of King's phone. Instead, for the first time on appeal, the State asserts that the photographs containing child pornography discovered on King's cell phone were admissible pursuant to the doctrine of attenuation of the taint.7 Specifically, the State asserts that the search warrant—issued after Detective Henz received the cell phone from Feltman—authorizing the police to access the cell phone's data contents, was an intervening circumstance that attenuated “any taint associated with the unlawful seizure [of the phone].”
In his brief, King contends that the photographs on his phone were “fruit of the poisonous tree” and, thus, should not have been admitted into evidence. The “fruit of the poisonous tree” doctrine serves to exclude from evidence both direct and indirect products of Fourth Amendment violations. Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); State v. Iduarte, 268 S.W.3d 544, 550 (Tex. Crim. App. 2008). We agree with King that the photographs containing child pornography seized from his phone were logically the product of the unlawful seizure of his phone.
King also points out that the exclusionary rule codified in Code of Criminal Procedure article 38.23(a) prohibited the admission of the photographs into evidence. Under that provision, “[n]o evidence obtained by an officer or other person in violation of any provisions 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). However, neither the Fourth Amendment's nor article 38.23(a)’s exclusionary rule requires the suppression of evidence not “obtained” as a result of some illegality. State v. Jackson, 464 S.W.3d 724, 731 (Tex. Crim. App. 2015).
The Court of Criminal Appeals has explained that “not every but/for product of police illegality will constitute evidence ‘obtained’ from that illegality for either federal or state exclusionary rule purposes; evidence is not subject to suppression, in other words, ‘simply because it would not have come to light but for the illegal actions of the police.’ ” Id. (quoting State v. Mazuca, 375 S.W.3d 294 (Tex. Crim. App. 2012)) (in turn quoting Wong Sun, 371 U.S. at 488, 83 S.Ct. 407). Instead, the court recognized—in discussing the “attenuation of the taint doctrine”—that “the more apt question is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Mazuca, 375 S.W.3d at 300 (quoting Wong Sun, 371 U.S. at 488, 83 S.Ct. 407).
To determine whether the attenuation of the taint doctrine applies here, and whether the photographs from King's cell phone containing child pornography were admissible, we consider three factors: (1) the temporal proximity of the violation of law and the seizure of physical evidence; (2) the presence of intervening circumstances; and (3) the purposefulness or flagrancy of the police misconduct. See id. at 301–07.
We begin by determining whether the search warrant for the contents of the cell phone was an “intervening circumstance.” In other words, we answer whether the search warrant was a “means” of obtaining the photographs on the phone that was “sufficiently distinguishable” from the unlawful seizure of the phone “to be purged of the primary taint.” See id. The State asserts that it was. Based on the record, we disagree.
To understand why the search warrant for the contents of the cell phone did not provide an “intervening circumstance,” it is helpful to discuss examples of warrants that were found to be an “intervening circumstance” that broke the chain of causation between the illegal police conduct and the acquisition of the evidence. Such an example is found in Mazuca. There, police pulled over a car in which Mazuca was a passenger on the belief that the taillights were emitting white light instead of red light as required by a Texas statute. Id. at 296–97. During the stop, the police officers discovered that Mazuca had outstanding warrants for his arrest. Id. at 297. After taking him into custody, one of the officers asked Mazuca if he had anything illegal on him, and Mazuca responded that he did in his pants pocket. Id. The officer placed Mazuca into custody and patted him down. Id. During the search, the officer found ecstasy in Mazuca's pants pocket. Id.
It turned out that the taillights of the car that Mazuca had been riding in were, in fact, statutorily compliant; thus, there had been no reasonable suspicion for the police to stop the car and detain him. See id. at 299. Mazuca filed a motion to suppress, arguing that the discovery of the ecstasy should be excluded because the traffic stop was illegal. Id. at 296. The trial court granted Mazuca's motion to suppress. Id. at 298. The State appealed, and the court of appeals affirmed the trial court's ruling. Id. at 300.
The Court of Criminal Appeals reversed the court of appeals and remanded to the trial court. Id. at 310. The court held that the exclusionary rule did not apply because the discovery of the arrest warrants after the illegal stop was an intervening circumstance that broke the causal connection between the illegal stop and the seizure of the ecstasy, thus purging the primary taint of the illegality. See id. at 308, 310. The court also determined that the police did not purposely or flagrantly violate Mazuca's rights. Id. at 310.
In its brief, the State cites Arochi v. State, another case in which a court held a warrant to be an intervening circumstance that attenuated the taint between the unlawful police conduct and the acquisition of the evidence sought to be suppressed. No. 05-16-01208-CR, 2018 WL 3372919, at *22 (Tex. App.—Dallas July 11, 2018, pet. ref'd) (mem. op., not designated for publication). There, the appellant, Arochi, was convicted of the aggravated kidnapping of Christina Morris. Id. at *1. During the investigation of the case, the police came to suspect that Arochi had abducted Morris and, at some point, placed her in the trunk of his car. See id. at *8. The police obtained a court order to attach a GPS tracking device to his vehicle. Id. at *7.
Three weeks later, the police obtained a warrant to seize Arochi's car. Id. at *8. When the police went to Arochi's home to execute the warrant, the car was not there. Id. The police used the previously attached GPS tracking device to locate the car in a restaurant parking lot. Id. The police then took samples from the car's trunk pursuant to the warrant. Id. at *9. Forensic analysis of the samples revealed Morris's DNA in the trunk. Id.
Arochi filed a motion to suppress. Id. at *20. He asserted that the installation of the GPS tracking device had been unlawful because the police had obtained the order to attach the tracking device without demonstrating probable cause. Id. Arochi claimed that the improper tracking order had “tainted the execution of the search warrant” of the car and, thus, the DNA evidence obtained from the trunk should be suppressed. Id. at *21–22. The trial court denied the motion. Id. at *21. Arochi appealed.
The court of appeals upheld the trial court's denial of the suppression motion. Id. at *22. The court observed that Arochi's car was “seized pursuant to the search warrant, not the tracking order,” and “[t]he only apparent connection between the two is that the police used the tracking device to locate [Arochi's] car at the restaurant, where they seized the vehicle.” Id. Following these observations, the court concluded that the search warrant was an “ ‘intervening circumstance’ in the attenuation-of-taint analysis.” Id. The court explained that the search warrant had “intervene[d] between the inception of the primary illegality, i.e., the ‘unlawfully installed tracker,’ and the later discovery of evidence that [was] alleged to be the ‘fruit of the poisonous tree,’ e.g., the trunk mat and the swabs showing the presence of Morris's DNA.” Id. The court also determined that the police had not acted with “purposefulness or flagrancy” in obtaining the complained-of order for the tracking device. Id.
Mazuca and Arochi highlight why, here, the search warrant for the cell phone's data contents was not an intervening circumstance like the warrants in those cases. The Mazuca and Arochi intervening warrants, which lawfully permitted the conduct resulting in the seizure of the complained-of evidence, were issued independently of the unlawful conduct in those cases. The arrest warrants in Mazuca had already been issued and were outstanding at the time the car that Mazuca was riding in was unlawfully stopped. See Mazuca, 375 S.W.3d at 297. Similarly, the lawful search warrant authorizing the seizure of Arochi's car was obtained independently of the unlawful installation of the tracking device. See Arochi, 2018 WL 3372919, at *22 (stating that “[t]he only apparent connection” between search warrant and unlawful order to issue tracking device was “that the police used the tracking device to locate appellant's car at the restaurant, where they seized the vehicle” pursuant to lawful search warrant). In short, the evidence sought to be suppressed in those two cases had been obtained “by means sufficiently distinguishable to be purged of the primary taint” of the complained-of illegal conduct. See Mazuca, 375 S.W.3d at 300.
Here, in contrast, the photographs sought to be suppressed were obtained because the search warrant for the phone's contents was “come at by exploitation of” the illegal seizure of the cell phone. See id. According to the stipulated facts, the search warrant for the phone's contents was obtained by Detective Henz after the phone had been unlawfully seized and sent to him. Although the record contains neither the search warrant nor the probable-cause affidavit for the warrant's issuance, the only logical deduction is that the search warrant for the phone's contents would not have issued if the police did not already have the cell phone in their possession. The unlawful seizure of the phone was a critical step in obtaining the search warrant for the phone's contents. Thus, we conclude that the search warrant was not an “intervening circumstance” that was “sufficiently distinguishable” from the illegal seizure of the phone to purge the photographs of the “primary taint” of the unlawful seizure. See id.
We turn to the two remaining factors of the attenuation-of-the taint analysis: temporal proximity and the purposefulness or flagrancy of the police misconduct. See id. at 301–07. The stipulated facts show that the police's conduct was purposeful. After receiving the search inventory, Detective Henz realized that the cell had not been seized pursuant to the search warrant when the warrant was executed. No longer having an executable warrant, Detective Henz contacted Feltman and enlisted him to seize the phone rather than contacting the Oklahoma City police—with whom Detective Henz had been working and who had successfully obtained the initial search warrant—to request them to obtain a second search warrant for the phone's seizure. Thus, this factor weighs against a conclusion that the taint of the illegal seizure was purged.
Finally, relevant to the factor of temporal proximity, not only does the record not contain the search warrant for the phone's contents, but the record also does not reflect the length of time between the illegal seizure of the phone and the seizure of the photographs. The stipulated facts showed that when he realized that the phone had not been seized pursuant to the July 17 search warrant, Detective Henz contacted Feltman and enlisted him to seize the phone. Feltman sent the phone from Oklahoma City to Detective Henz in Fort Worth by Federal Express. Detective Henz then obtained the search warrant for the phone's contents. Thus, it would be reasonable to deduce that it was at least a day from the time of the illegal search to the seizure of the photographs. However, given the direct causal link between the illegal seizure of the phone and the seizure of the photographs, the logistical challenges involved here—lengthening the time between the illegal conduct and the seizure of the photographs—should not alone serve to attenuate the taint of the illegality. We conclude that the attenuation of the taint doctrine does not apply to support the trial court's denial of the motion to suppress.
In summary, we conclude that (1) King established that he had standing to challenge the search of the semi-truck and the seizure of his cell phone, (2) he met his initial burden of showing that the seizure of his phone was without a warrant in violation of the Fourth Amendment, (3) the State did not meet its burden of proving an exception to the warrant requirement, and (4) the record does not support a conclusion that the taint of the illegal seizure was purged from the seizure of the photographs. We hold that the trial court erred in denying King's motion to suppress, and the 17 photographs from his cell phone containing child pornography should not have been admitted during the punishment phase of trial. See Tex. Code Crim. Proc. art. 38.23(a).
Finally, we must determine under the applicable standard whether the error of denying the motion to suppress and admitting the photographs containing child pornography contributed to King's sentence of life in prison for each offense.
1. Standard of Review
When, as here, a trial court erroneously denies a motion to suppress and admits evidence obtained in violation of the Fourth Amendment, the error is constitutional and subject to the harmless-error analysis under Rule of Appellate Procedure 44.2(a). See Tex. R. App. P. 44.2(a); Hernandez v. State, 60 S.W.3d 106, 108 (Tex. Crim. App. 2001). Under that rule, constitutional error is harmful unless the reviewing court determines, beyond a reasonable doubt, that the error did not contribute to the conviction or punishment. Tex. R. App. P. 44.2(a).
When applying the harmless error test, reviewing courts are to “ask whether there is a ‘reasonable possibility’ that the error might have contributed to the conviction or punishment.” Love v. State, 543 S.W.3d 835, 846 (Tex. Crim. App. 2016). The analysis should not focus on the propriety of the outcome at trial. Id.
“[T]he question for the reviewing court is not whether the jury verdict was supported by the evidence.” Scott v. State, 227 S.W.3d 670, 690 (Tex. Crim. App. 2007). “Instead, the question is the likelihood that the constitutional error was actually a contributing factor in the jury's deliberations in arriving at that verdict.” Id. In other words, the reviewing court asks whether “the error adversely affected the integrity of the process leading to the conviction.” Id. (internal quotation marks omitted). To that end, the reviewing court “should calculate as much as possible the probable impact of the error on the jury in light of the existence of other evidence.” Love, 543 S.W.3d at 846. That is, “the reviewing court must ask itself whether there is a reasonable possibility that the ․ error moved the jury from a state of non-persuasion to one of persuasion on a particular issue.” Scott, 227 S.W.3d at 690. A ruling that an error is harmless is, in essence, an assertion that the error could not have affected the jury. Wells v. State, 611 S.W.3d 396, 410 (Tex. Crim. App. 2020) (citing Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000)).
In deciding whether an error of constitutional dimension contributed to the conviction or punishment, factors to consider include, but are not limited to, the nature of the error—“e.g., erroneous admission or exclusion of evidence, objectionable jury argument, etc.”—whether the error was emphasized by the State, the probable implications of the error, and the weight the jury would likely have assigned to the error during its deliberations. Snowden v. State, 353 S.W.3d 815, 822 (Tex. Crim. App. 2011). Further, the presence of overwhelming evidence supporting the jury's verdict can also be a factor in the harmless error calculation. Wells, 611 S.W.3d at 410 (citing Motilla v. State, 78 S.W.3d 352, 357 (Tex. Crim. App. 2002)). Reviewing courts should consider any and every circumstance apparent in the record that logically informs the harmless error determination, and the entire record is to be evaluated in a neutral manner and not in the light most favorable to the prosecution. Love, 543 S.W.3d at 846.
The State has the burden, as beneficiary of the error, to prove the error is harmless beyond a reasonable doubt. Haggard v. State, 612 S.W.3d 318, 328 (Tex. Crim. App. 2020); Wells, 611 S.W.3d at 411 (citing Williams v. State, 958 S.W.2d 186, 194 n.9 (Tex. Crim. App. 1997)); Deck v. Missouri, 544 U.S. 622, 635, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005)). Here, the State has offered no argument, nor otherwise addressed the harmfulness of the error. Thus, the State has not satisfied its burden to show the error was harmless. See Haggard, 612 S.W.3d at 328; Wells, 611 S.W.3d at 411. The State's failure to meet its burden aside, an examination of the record shows that under the applicable standard of review the error was harmful error.
The type of error here was the erroneous admission of evidence, specifically, the admission of 17 photographs containing child pornography discovered on King's cell phone. We begin our harm analysis by reviewing other evidence of significance to punishment. Evidence important to assessing King's punishment included evidence admitted during the guilt-innocence phase of trial showing the details of King's attempted kidnapping of Jane and his assault against her. The jury also heard evidence about the severity of the life-threatening injuries King inflicted on Jane.
Evidence admitted during the punishment-phase (as detailed above in the background section) revealed that King had a criminal record and a history of violence, including assaults against his wife and girlfriend and a recent road rage incident. The jury also heard additional information about the gravity of Jane's injuries and trauma inflicted by King, including evidence that the injuries required her to undergo a heart transplant, which will cause her life-long medical issues.
While the record contained ample evidence relevant to King's punishment, our inquiry is not one simply of weight or sufficiency of the evidence; rather, we determine the likelihood that the admission into evidence of the photos of child pornography corrupted or affected the integrity of the process of assessing punishment or prejudiced the jurors’ decision-making. See Friend v. State, 473 S.W.3d 470, 484 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd) (citing, inter alia, Snowden, 353 S.W.3d at 819). The highly disturbing subject matter of the erroneously admitted photographs place them in a different category of evidence than the other evidence relevant to punishment, which, although also disturbing, almost certainly would not have had the same emotional impact or prompted the same visceral reaction as viewing images of the sexual exploitation of children. And, given that the offenses here involved the attempted kidnapping and serious bodily injury of a 12-year-old girl, the impact of the photographs depicting harm to children would have been intensified.
The State also emphasized the error. In its closing argument, the State responded to a request for leniency made by the defense in its closing argument. The defense had requested the jury to consider King's love for his four-year-old daughter and “give him an opportunity to be a part of his daughter's life at some time in the future.” The State argued that King should be held accountable for “the man [he] has become.” To show who that was, the State pointed to King's history of violence and, in an apparent reference to the child pornography, the State told the jury that it had gotten “a look inside [King's] mind.” The State argued:
I'm not going to make you look at these pictures again, but I think you saw exactly who this Defendant is. Who he is and what he likes and what he wants.
So ask yourself: Is this going to be about rehabilitation? No, it's not. It's about two things. It's about deterrence, and it's about punishment.
The State reiterated to the jury what evidence it could consider in assessing punishment and again focused on the child pornography:
It is all the stuff that I've already talked about: the assaults, the criminal history, what [King] did to his wife, those pictures on his cell phone.
If somebody wants to go back there and they're talking about feeling sorry for his daughter, show them the pictures on that cell phone and say, “Is this the person you want around that daughter? Is this the person you want around another child?” Because the answer is no.
In short, the State emphasized the child pornography, arguing that it exposed King as a truly dangerous offender who cannot be rehabilitated and should be kept in prison. And the State used the child pornography to counter the only argument made by the defense to support why the jury should show leniency. The State requested the jury to assess punishment at life in prison for each count, and the jury complied.
Given the highly disturbing nature of the erroneously admitted photographs, the likely effect on the jury, the State's emphasis of the photographs, and the jury's assessment of punishment for each offense at life in prison—the maximum sentence King could receive—we are unable to conclude, beyond a reasonable doubt, that the error did not contribute to King's punishment. We hold that the error was harmful. See Tex. R. App. P. 44.2(a).
We sustain King's seventh issue.
We reverse the portions of the judgment sentencing King to life in prison for the offense of injury to a child causing serious bodily injury and to life in prison for the offense of attempted aggravated kidnapping. We affirm the remaining portions of the judgment. We remand the case to the trial court for a new sentencing hearing.
2. See Tex. Penal Code § 22.04(a)(1).
3. See id. §§ 15.01, 20.04
4. The evidence showed that the nurse examiner had taken swab samples from under Jane's fingernails and from her hands, but the swabs were labeled “hands/fingernails,” so it was not clear which swabs came from under Jane's fingernails and which came from her hands. For simplicity's sake, we will refer to the samples as being taken from Jane's hands.
5. The indictment originally alleged that King had caused Jane serious bodily injury, not only by squeezing her throat with his hand, but also by striking her, grabbing her, and pushing her. However, at the charge conference, the State expressly abandoned those additional manner and means of committing the offense, leaving only the allegation that King caused Jane serious bodily injury by squeezing her throat.
6. The State intimates that, in addition to requesting to take his cell phone at the time of his arrest, King could have taken other post-arrest action to secure the phone. We note, however, that Detective Perkins's probable-cause affidavit reflects that when King was arrested, “[c]rime scene tape was placed along the perimeter of the Semi and Trailer along with a uniformed [Oklahoma City Police Department] patrol officer as scene security,” which would have restricted access to the semi-truck. The search warrant was issued and executed that same day. The warrant permitted cell phones to be seized, but the police failed to take King's cell phone from the semi-truck when they executed the warrant. Even though they thought they had seized the phone, the police had not taken it from the truck. Detective Henz did not realize that the phone had not been seized until he received the inventory, at which point, he contacted Feltman, who then seized the phone. Thus, to the extent the State contends that King should have taken action to secure the phone during or after his arrest, it is unclear how he would have been able to do that with on-scene security or how he would have known that the phone was not seized pursuant to the warrant when even the police did not know it had not been seized.
7. The State may permissibly make new arguments in support of a trial court's ruling for first time on appeal because “an appellate court will uphold the trial court's ruling if that ruling is ‘reasonably supported by the record and is correct on any theory of law applicable to the case.’ ” Mahaffey v. State, 316 S.W.3d 633, 637 (Tex. Crim. App. 2010) (quoting State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)).
Richard Hightower, Justice
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Docket No: NO. 01-19-00793-CR
Decided: October 28, 2021
Court: Court of Appeals of Texas, Houston (1st Dist.).
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