THE STATE OF TEXAS v. MATTHEW MARTIN (2026)

Petition for discretionary review refused.

CONCURRING OPINION

Article 38.23 bars the illegal obtaining of evidence by private individuals as well as police officers.¹ However, the dissent suggests that the statute applies only if the private individual was intending to search for evidence of a crime. The

dissent further suggests that the defendant's ex-girlfriend did not possess such an intent because she was searching for evidence of infidelity, which was not a crime. But there is in fact evidence in the present record to support a conclusion that, when she conducted the search that revealed the contraband images, she was intending to search for evidence of criminal behavior.

Appellee had an old cell phone locked in a safe. This phone was a “smartphone” that could store images as well as messages. While she was living with him, Ashley Pacheco had access to that safe, but she did not have the password to this cell phone. Nevertheless, she successfully unlocked the phone, possibly finding that password in his password book.² She discovered photos of other women on the phone and broke up with him. She left his residence and took the phone with her. She later acknowledged to law enforcement that she stole the phone and that she later lied to Appellee and told him the phone had been destroyed.

Her theft of the phone was a crime.³ At the time she stole the phone, Pacheco did not have the intent to search for evidence that Appellee had committed a crime. But that later changed.

Months later, after consulting with a cousin who was a police officer, Pacheco discovered that Appellee had placed a tracking device on her vehicle. That was a crime, but that crime did not confer on her the authority to look through his phone. Nevertheless, she did exactly that, and it is in that months-later search that she discovered digital images that constituted child pornography. She explained that she searched the phone due to her elevated suspicions:

I turned the phone back on because I wanted to find what else is there because there's more. It's almost like a gut feeling there's got to be more than 27 women. There's got to be more.

Viewed in the light most favorable to the trial court's findings,⁴ her statement about a “gut feeling” motivating her search was sufficient evidence from which to infer that she was indeed intending to search for evidence of criminal behavior on the phone. And while her earlier theft of the phone occurred months before this motivation arose, her new search of the phone—to which the motivation applied—was a separate crime: breach of computer security.⁵ While the trial court suggested in its findings that theft might not be a sufficient basis for suppression, it concluded that breach of computer security was.⁶

With these comments, I concur in the Court's decision to refuse review.

FOOTNOTES

1.   See Tex. Code Crim. Proc. art. 38.23(a) (“No evidence obtained by an officer or other person in violation of ․”) (emphasis added).

2.   The trial court found credible Appellee's testimony that the phone was password-protected, that he did not give Pacheco the password, and that the password was hidden in his password book.

3.   Tex. Penal Code § 31.03(a).

4.   See State v. Barber, --- S.W.3d ---, No. PD-0510-25, 2026 Tex. Crim. App. LEXIS 259, at *(Tex. Crim. App. Apr. 16, 2026) (viewing evidence in light most favorable to findings made in defendant's favor); State v. Lujan, 634 S.W.3d 862, 865-66 (Tex. Crim. App. 2021) (same).

5.   Tex. Penal Code § 33.02(a).

6.   See Conclusion of Law 8 (“This court finds it noteworthy to point out that, with the strictest of interpretations of Article 38.23 of the Texas Code of Criminal Procedure, Ashley Pacheco's theft of the phone was done with the intent to deprive Matthew Martin of the phone itself; not the contents of the phone. However, due to a subsequent violation - breach of computer security at the time she accessed his emails and other files on his phone, it is more specifically this violation of the law which would warrant exclusion of the evidence against him in a criminal trial.”).