Opinion
NO. 09-19-00039-CR
06-22-2020
RAFAEL LEOS-TREJO, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 435th District Court Montgomery County, Texas
Trial Cause No. 18-12-16785-CR
MEMORANDUM OPINION
Jessica Torres Leos died from a gunshot wound to her head. A grand jury indicted Jessica's husband, Appellant Rafael Leos-Trejo, for her murder. See Tex. Penal Code Ann. § 19.02(b). Leos-Trejo pleaded not guilty, but the jury found him guilty and assessed punishment at life imprisonment. In a single issue on appeal, Leos-Trejo argues the trial court erred admitting evidence obtained pursuant to an invalid search warrant of his residence. We affirm.
State's Evidence at Trial
We use initials to refer to the minor. See generally Tex. Const. art. I, § 30(a)(1) (granting crime victims the "right to be treated with fairness and with respect for the victim's dignity and privacy throughout the criminal justice process").
Jessica's daughter, K.S., testified at trial. K.S. was twelve years old when she testified, and she explained that before her mother was shot, she lived with her mother, Jessica Torres, and her stepfather, Rafael Leos. K.S. recalled that on the day her mother was shot, February 16, 2018, Leos-Trejo was waiting for her at the bus stop after school, he took her to Twin Peaks to eat, and then they went to Best Buy where Leos-Trejo bought her an Apple watch. K.S. recalled that, when they returned home that evening, she went downstairs to get her iPod, her mother and Leos-Trejo were sitting in the kitchen, and there were guns on the table and a gun in Leos-Trejo's lap. K.S. testified that Leos-Trejo told Jessica to give K.S. her iPod, and he picked up the rifle and pointed it at Jessica. According to K.S., it was the first time she had seen Leos-Trejo with guns when they were not going to the shooting range. K.S. denied that Leos-Trejo was cleaning his guns that night. K.S. testified that she went back upstairs, but she could still hear music downstairs, and she heard a song about "traicionera[,]" which she said means "liar[]" or "player. . . [l]ike in a relationship [] you play someone with their feelings and their heart." K.S. heard Leos-Trejo screaming at Jessica "all you do is [foul] [stuff] up[,]" and he sounded mad. K.S. testified that she heard a sound "like, when you pull a gun back[]" and then she heard the sound of the rifle being fired. K.S. then ran downstairs and Leos-Trejo told K.S. "I'm sorry. It was an accident."
K.S. testified that she went to get her phone to call 911, but Leos-Trejo snatched away her phone and her iPod. K.S. testified that she was scared Leos-Trejo was going to shoot her, and according to K.S., Leos-Trejo said "Jessica, wake up[,]" and K.S. went outside and started screaming for help. K.S. testified that Leos-Trejo ran outside after her and tried to take her back inside when she tried to use her Apple watch to call for help. Leos-Trejo called 911, and she remembered him telling 911 that Jessica was dead and that it was an accident. K.S. recalled that Leos-Trejo did not cry, he "was perfectly fine like nothing had happened, ordinary day[,]" and he did not try to help Jessica even though K.S. asked him to. K.S. agreed that the transcript of her interview after the incident reflected that she had said that Leos-Trejo had been cleaning his gun although she denied ever having seen him clean the gun.
According to K.S., it was "normal" for her mother to argue with Leos-Trejo. K.S. recalled one time Leos-Trejo wanted to get cigarettes but her mother did not want him to drive because he had been drinking, and while they all were in the car, Leos-Trejo grabbed K.S.'s phone and threw it out of the window. Another time K.S. heard "yelling, fighting, [and] crying" from her mother's room, and when she went to check on her, K.S. saw her mother and Leos-Trejo in the shower fully clothed, her mother was crouched down and covering her face, and Leos-Trejo was hitting her.
Testimony of Makenzie Bolin
Makenzie Bolin testified that on February 16, 2018, she was visiting her father and recalled waking up at about 11:30 p.m. to "a blood-curdling scream." Bolin testified that she went outside with her stepmother, where they saw another neighbor who had also heard screaming, and at a house three doors down, she saw a young girl run out of the house who seemed terrified and was "hysterically crying," and a man was coming after her saying, "It was an accident. It was an accident." According to Bolin, the girl ran to Bolin's stepmother and said "She's dead. My mom is dead[,]" and the girl said that the man had been drinking and accidently shot her mother when he was cleaning his gun. Bolin testified that later she saw a video that had been posted to Leos-Trejo's Facebook page about thirty minutes to an hour before the incident and the video showed guns on a table and a half-empty bottle of alcohol.
Testimony of Dr. Alex John
Dr. Alex John testified that he is employed with the Montgomery County Forensic Services Department as an assistant director and forensic pathologist. State's Exhibit 1 was admitted, and Dr. John testified that it was the autopsy report he generated. According to Dr. John, he determined that the cause of Jessica's death was a gunshot wound to the head and he concluded that the manner of her death was "homicide." Dr. John determined that the entry point of the bullet was in about the middle of Jessica's face, just under her right eye, and the exit point of the bullet was the back of Jessica's head, near the base of the skull. Dr. John testified that based on stippling, he concluded that the gun was about two to three feet from Jessica's head when the fatal shot was fired, and the gunshot wound resulted in immediate death. Dr. John did not observe any bruising or signs of recent trauma on Jessica's body other than the bullet wound. Dr. John testified that the toxicology testing on Jessica detected no drugs.
Testimony of Corporal Jarod Tunstall
Corporal Jarod Tunstall testified that he works for the Montgomery County Precinct 3 Constable's Office as a first-line supervisor. Tunstall recalled that he was working on the night of the shooting and received a call about an assault with a firearm about 11:30 p.m. from Leos-Trejo. According to Tunstall, when listening to the 911 recording, he heard the caller tell the dispatcher he had moved the gun to the living room. Tunstall agreed that he saw firearms on the couch when he walked into the residence, he observed a deceased female on the kitchen floor, bleeding from her head, and he also made contact with Leos-Trejo and a young girl at the house. According to Tunstall, Leos-Trejo was telling the girl "It was an accident[]" and "You know it was an accident[,]" and Leos-Trejo continued to say it was an accident throughout the night. Tunstall described Leos-Trejo as "coherent[,]" and calmer than Tunstall would have expected, and he described the girl as "hysterical and crying." Tunstall identified Leos-Trejo as the man he saw at the residence that night. Tunstall did not observe any cleaning supplies on the kitchen table.
Testimony of Investigator Lance Holden
Lance Holden testified that he is a crime scene investigator for Montgomery County, and he responded to a call of a shooting on February 16, 2018, at about midnight. Holden recalled that he waited for a search warrant signed by a judge before processing the scene. Holden agreed he found a Colt AR-15 at the scene on the living room couch.
Holden recognized State's Exhibits 40 through 43 as photos of Jessica's body as he observed her and prior to anyone touching or moving her. Holden testified that he measured the kitchen table, and it was thirty-eight inches across. Holden testified that he found a rifle with two magazines and a handgun with two magazines on a couch in the living room, which were depicted in State's Exhibit 36, and the guns were at a distance of about twenty-one feet from the chair where Leos-Trejo had been sitting. Holden also identified Exhibit 77 as a photo of an AR-15 with a magazine in it, a handgun with a magazine in it, and two extra magazines on the couch near the front entry. Holden testified that the magazines with the rifle were loaded and the rifle was in the firing position, but the safety on the handgun was in the safe position. Holden agreed that he collected multiple items of physical evidence from the scene, and he recognized State's Exhibit 78A as the items he collected from the scene, including an AR-15, the magazines, and a cartridge or bullets that he found on the couch.
Holden testified that he searched the house for a cleaning kit and did not find one, and he did not find rags, cotton swabs, or a toothbrush on the kitchen table, although he found towels in the area of the kitchen sink. Holden agreed that he collected gunshot residue (GSR) swabs from Leos-Trejo's hands during his investigation, and Holden identified Leos-Trejo in the courtroom. Holden also agreed that the GSR swabs were sent to the Texas Department of Public Safety (DPS) for analysis.
According to Holden, Leos-Trejo answered questions in a calm manner during the GSR collection, and he told Holden he was not an aggressive person. Holden recalled that Leos-Trejo said something like "he was going to not be free for the rest of his life[.]" Holden agreed that in his subsequent review of the scene, he found a bullet strike in the kitchen that was located behind where Jessica would have been standing.
Holden testified that he found Jessica's cell phone underneath her body and he collected the phone from the scene. Holden also collected other electronics at the scene, including a black iPhone with a green case and another cell phone that he located on the hood of a patrol vehicle, a black iPod, and a white laptop. Holden agreed that he learned that they had been collected from Leos-Trejo, and he regarded the electronic items as relevant in his murder investigation.
Testimony of Sandy Parent
Sandy Parent testified that she is a forensic scientist in the evidence section at the Texas DPS crime laboratory in Austin and that she analyzed the gunshot residue in this case. Parent recognized State's Exhibit 94 as the GSR laboratory report, and the report was admitted into evidence. Parent testified that her findings on the GSR swabs taken from Leos-Trejo concluded that the sample was consistent with a person having recently fired a weapon, having been in the immediate proximity of a weapon as it was being fired, or having come into contact with a surface containing gunshot primer residue particles. On cross-examination, Parent admitted she could not tell whether the gun was fired accidentally.
Testimony of Dr. Carrie Katay
Dr. Carrie Katay testified that she is a faith-based counselor, she worked at the Montgomery County Women's Shelter for five years, and she has testified about domestic violence. Katay agreed that "coercive control" is a dynamic that may occur in domestic violence situations and that displaying a deadly weapon would be a display of coercion or control. On cross-examination, Katay agreed she had not talked with Leos-Trejo, Jessica, or Leos-Trejo's stepdaughter.
Testimony of Brenda Torres
Brenda Torres testified that she is Jessica's sister and that K.S. is Jessica's daughter. According to Torres, one time when K.S. was about six years old, K.S. said something to Torres that made Torres think K.S. was "terrified" of Leos-Trejo, and when Torres confronted Leos-Trejo, he became aggressive. Torres also testified that another time when K.S. was six or seven, she went to Jessica's house and saw "food all over the walls[,]" and Torres believed that Leos-Trejo had thrown the food at Jessica because he did not like it. According to Torres, she travelled with Jessica and Leos-Trejo to Las Vegas one time, and Leos-Trejo disappeared for a day and a half during the trip and the couple had "[l]ots of arguments[]" during the trip. Torres agreed that, in the months prior to Jessica's death, Torres believed that Jessica was starting to think about leaving her husband or getting a divorce. Torres also agreed that at one point, Jessica came home to find another woman in the pool with Leos-Trejo.
Torres agreed that, after Jessica's death, she sent the detective on the case screenshots of text messages between herself and Jessica, and she recognized State's Exhibit 140 as those messages. In the text messages Jessica sent to Torres, Jessica stated she was angry, that she was concerned about money because Leos-Trejo had not made money, and that she was getting a divorce. Torres testified that Leos-Trejo had gone to a strip club with some friends, which upset Jessica because of the couple's money issues.
Testimony of Kristy Vasquez
Kristy Vasquez testified that she met Jessica and Leos-Trejo while vacationing in Cabo San Lucas, and Jessica interacted with her but Jessica did not interact much with Leos-Trejo. According to Vasquez, one evening Jessica and Leos-Trejo had an argument, and the next day Jessica apologized and said they were having a "rough patch" in their marriage. At some point prior to Jessica's death, Vasquez noticed pictures and videos of guns on Jessica's and Leos-Trejo's Facebook pages, including a photo of Leos-Trejo holding a large gun.
Testimony of Investigator Tim Slusher
Tim Slusher testified that he is a crime scene investigator and digital evidence examiner for the Montgomery County Sheriff's Office, and he agreed he worked on extraction of data from the cell phones in this case. Slusher agreed that State's Exhibit 141 was an extraction report for a cell phone associated with Leos-Trejo, State's Exhibit 142 was an extraction report for a phone associated with Jessica, and State's Exhibit 105 contained pages from a download of Leos-Trejo's phone and that it included portions of a conversation between "Rafa Leos" and Diana H. Slusher also testified that State's Exhibit 106 contained pages from a download of Leos-Trejo's phone and included messages between Selina B. and "El Pinche RafaLeos", State's Exhibit 107 was a download of a search history for Leos-Trejo's phone, State's Exhibit 104 was a PowerPoint collection of photos and videos pulled from Leos-Trejo's phone, State's Exhibits 111 and 114 were screenshots of suggestive interactions between Leos-Trejo and Diana H., and there were multiple photos and videos of firearms on Leos-Trejo's and Jessica's phones, some taken in February 2018.
Testimony of Investigator Celestina Rossi
Celestina Rossi testified that she is a crime scene investigator with the Montgomery County Sheriff's Office with seventeen years' experience as a crime scene investigator. She testified that she was qualified in blood stain pattern analysis, crime scene reconstruction, and shooting incident reconstruction. Rossi concluded that the photographic evidence indicated that Jessica had not moved or been moved or touched, not even "a fraction of an inch[,]" after she was shot because of the absence of change in the pattern of blood flow. According to Rossi, a bone fragment found on a kitchen chair indicated that Jessica had been sitting in a chair or in proximity to the chair when she was shot, but that based on the location of the bone fragment and back blood spatter, Rossi concluded that Jessica was standing up or in the process of standing up when shot. Rossi testified that she could tell the trajectory of the bullet based on Jessica having been shot under her right eye and evidence of a bullet strike on the kitchen stove. Rossi also testified that she concluded that the barrel of the gun had to be "parallel" or level with Jessica's head when it was fired based on where Jessica was shot and evidence of where the bullet struck the kitchen stove. According to Rossi, the physical evidence at the scene was not consistent with Leos-Trejo having been seated when the gun was fired and it was not consistent with his report in the 911 call that his gun "went up[.]" Rossi testified that, even with a magazine loaded with ammunition, loading a bullet into the gun's chamber requires moving the bolt forward, and even then, the safety button would prevent the gun from firing because the gun was "designed so that you don't have accidental discharge[]" and the trigger must be pulled for the gun to fire. Rossi also believed that the gun was shouldered in a firing position when discharged.
Testimony of Investigator Chris Smith
Chris Smith testified that he is Chief Investigator for the Montgomery County District Attorney's Office, and he had previously worked in the sheriff's office. Smith agreed that in investigating this case, he went to Carter's Country and that Carter's County released to him an AR-15 that had been ordered by Leos-Trejo but not picked up. Smith identified State's Exhibit 104 as a screenshot of a receipt for a firearm ordered on February 11, 2018. Smith understood that the gun used to shoot Jessica had been purchased by Leos-Trejo on February 4, 2018.
Smith agreed that he also helped to retrieve chats found on Leos-Trejo's phone. Smith identified one of the chats as being a conversation Leos-Trejo had with Diana H. and portions of the chat were read into evidence and included references to a rifle and sexual connotations. Smith identified another chat as being a conversation Leos-Trejo had with Selina B., and in a portion of the chat, Leos-Trejo said "I want to get divorce[]" and "right now I'm really into rifles." Some of the chat with Selina B. was marked as occurring about 7:30 p.m. on the night of the murder. Smith also agreed that one of the photos obtained from Jessica's phone was of Leos-Trejo holding a gun and was marked as having been taken at 11:28 p.m. on February 16, 2018; the last text from Leos-Trejo's phone was about 11:28 p.m.; and, the 911 call was at about 11:35 p.m.
Testimony of Stephanie Leuhr
Stephanie Leuhr testified that she is a firearms examiner and crime laboratory quality manager for the Montgomery County Sheriff's Office and that she has been a firearms examiner for about eleven years. Leuhr recognized State's Exhibits 179, 180, and 181 as reports she prepared. Leuhr testified that she was asked to perform a "drop test" on the AR weapon. According to Leuhr, she dropped the weapon twelve times trying to make it discharge, but the weapon did not discharge and everything on the gun worked the way it was supposed to. Leuhr also testified that the gun used in the incident was a semi-automatic that required a finger pull for each bullet fired.
Testimony of Investigator Michael Wright
Michael Wright testified that he is an investigator with the Montgomery County District Attorney's Office assigned to the Misdemeanor Division and he previously worked for the Sheriff's Office. Wright recalled that he was called to the scene of a shooting on February 16, 2018, along with an Assistant District Attorney, and he recalled seeing an AR-15 and 9mm pistol at the scene with "both the AR-15 and pistol being magazine inserted and [a] round in the chamber." Wright recognized State's Exhibit 118 as a screenshot from a video captioned "Rafael Leos" and "[t]raicionera."
Defense Evidence at Trial
Testimony of Matthew Brown
Matthew Brown gave his address as being next door to Leos-Trejo's home. Brown recalled that on February 16, 2018, at about 11:30 p.m., he heard a noise and then heard screaming. Brown testified that he went outside but did not see or hear anything, and a few minutes later, he saw the lights of police cars and saw the police put Leos-Trejo in handcuffs. Brown testified that he heard Leos-Trejo tell the police that "he F'ed up." Brown did not recall hearing any quarrels or fights at Leos-Trejo's home, and he thought of Jessica and Leos-Trejo as good neighbors and good people.
Testimony of Jose Rojas
Jose Rojas testified that he met Leos-Trejo and Jessica early in 2016 and started working with Leos-Trejo soon thereafter. According to Rojas, he would socialize with Leos-Trejo and Jessica about once a month. Rojas said he never saw Leos-Trejo hit Jessica nor did he see them argue. But, Rojas was aware that Leos-Trejo had purchased an AR-15.
Testimony of Wilberth Romero and Dalia Gonzalez
Wilberth Romero testified that he had known Leos-Trejo for about two years, and they were coworkers. According to Romero, he and his wife Dalia socialized with Leos-Trejo and Jessica about twice a month. Romero testified that he had not seen Leos-Trejo be violent with Jessica or with anyone. Dalia Gonzalez testified that she is married to Wilberth Romero, she met Leos-Trejo at work, and she became close friends with Jessica. Gonzales testified that she had not seen Leos-Trejo lose his temper and that Jessica never talked with her about separation or divorce. Gonzalez agreed that she herself had been the victim of domestic violence.
Testimony of Edward Hueske
Edward Hueske testified that he is a retired faculty member from the Department of Criminal Justice at University of North Texas and has twenty-three years' experience in crime laboratories. He further testified that his particular area of expertise is shooting incident reconstruction, and he has conducted several hundred shooting reconstructions for forty-four years in his work as a forensic scientist. Hueske agreed he examined the weapon in this case, and he concluded the weapon's trigger pull was within factory specifications. He did not find any defects or faults with the gun and testified that "there's nothing mechanical to explain the discharge on this firearm." He agreed that for safety, people should not put their finger on the trigger of a gun until they are ready to shoot. He also testified that carelessness—including alcohol consumption or placing live rounds in a gun without having the safety on—may explain an unintended shooting incident, and based on the demonstration he observed in court, Hueske agreed that Leos-Trejo's actions were careless and that carelessness was one of the causes of this shooting. Hueske testified:
Well, there's no way that I can say that an unintentional discharge absolutely took place here. On the other hand, there's no way that it can be absolutely excluded. That's where I'm at.Hueske testified that the most catastrophic wound is one to the head.
. . .
I can't say for sure it was unintentional, but it cannot be refuted either.
Testimony of Rafael Leos-Trejo
Leos-Trejo testified that he met Jessica in 2009, he came to the United States that same year, and he is now a U.S. citizen. According to Leos-Trejo, he and Jessica were second cousins, which caused some problems with her family, but the couple married in 2011. Prior to Jessica's death, Leos-Trejo worked as a trucker, transporting cars to dealerships in Houston and Louisiana and that his work was sometimes inconsistent, which caused some problems in his marriage. Leos-Trejo described his marriage as "good[]" but said they had "regular issues[]" or "minor issues[,]" including issues over money and unnecessary spending, and he described Jessica as the financially responsible one in the marriage. He denied that arguments with Jessica became intense or aggressive or that there was serious talk of getting a divorce.
Leos-Trejo agreed that one time while the family was in the car, he threw K.S.'s phone out of the window because K.S. was misbehaving. Leos-Trejo also agreed that it is disrespectful to talk with women other than his wife on social media, and he was sorry. According to Leos-Trejo, one time he did not like something Jessica cooked, he threw the food in the sink, and some of the food splashed onto the bar area, but he denied that he threw food on the walls. Leos-Trejo recalled the trip to Las Vegas that included Jessica's sister Brenda Torres, and he testified that he left the women at a pool party and went to another casino to gamble. According to Leos-Trejo, K.S. had misunderstood the incident where K.S. said she saw him beating her mother in the shower, and it was merely horseplay.
According to Leos-Trejo, Diana was a woman he knew from his hometown in Mexico, and he described the text messaging with her as "just a joke." Leos-Trejo testified that he only interacted with Selina for three days, and Selina was "playing with" him. Leos-Trejo admitted he sent Selina a gift, and he agreed that, while sitting with his wife, he had been texting Selina until seven minutes before he shot Jessica at about 11:35 p.m. Leos-Trejo testified that he had gotten the guns out that night for the purpose of taking and posting pictures, and Jessica had taken pictures and videos of him with the gun while they were sitting at the table. According to Leos-Trejo, he wanted Jessica to take a picture of him "spitting the bullets[,]" and when he moved the gun and stood up, the gun went off and "the accident happened because of [his] responsibility of [him] taking pictures and videos with a loaded gun." He testified that he was "playing around" with the rifle and "just waiving the guns like moving around with the rifle[,]" he denied pointing the gun at Jessica, and he denied that he meant to fire the weapon at his wife or at all. According to Leos-Trejo, he shot Jessica "[a]ccidentally." Leos-Trejo testified that he ran upstairs to tell K.S. he accidentally shot her mother. He recalled that when he tried to call 911, he could not enter the password for his phone because he was in shock. Leos-Trejo thought that about three minutes elapsed between the gunshot and when he called 911. He thought the 911 dispatcher told him to move the guns, and he told 911 that he had been cleaning and playing with his guns, but on cross-examination he admitted he had not been cleaning his guns when Jessica was shot. According to Leos-Trejo, when the police arrived, they did not give him an opportunity to say what happened because they handcuffed him right away and told him he had the right to remain silent. State's Exhibit 135 was published to the jury, which was an audio recording of the 911 call. Leos-Trejo testified that he purchased the AR-15 "2 weeks before the accident[]" and he later ordered a second AR-15 so that he could go shooting with a friend or with his wife. He denied having bought a gun cleaning kit. Leos-Trejo agreed that Defense Exhibits 53, 54, 56, 58, 59, 60, and 64 were photos of his guns or his friend's guns that he had posted to social media. He testified that Defense Exhibit 63, a photo of him with a gun, was taken "the day of the accident."
The jury charge included an instruction on the lesser-included offense of manslaughter. The jury found Leos-Trejo guilty of murder.
Motions to Suppress and Appellate Issue
Leos-Trejo filed several motions to suppress. In his Motion to Suppress Oral Statements of Defendant, he argued that, at the time of any conversations between him and law enforcement officers, he was under arrest or otherwise substantially deprived of his freedom and he was deprived of his right to counsel and did not intelligently, understandingly, and knowingly waive his right to counsel or right to remain silent. The motion requested that his statements be suppressed in addition to evidence or testimony developed as a result of the oral statements.
Leos-Trejo also filed a Motion to Suppress Evidence Obtained Pursuant to an Invalid Search of the Defendant Incident to the Execution of a Search Warrant. This motion argued that "the evidence seized and obtained was the result of a search of the Defendant's person and/or residence without a valid search warrant and without probable cause or reasonable suspicion of criminal activity[]" in violation of the U.S. and Texas Constitutions and article 38.23 of the Texas Code of Criminal Procedure.
In one of his motions to suppress, styled as a "Motion to Suppress Evidence (Search with a Warrant)," Leos-Trejo requested suppression of "all evidence resulting from the illegal search" of Leos-Trejo's home. According to Leos-Trejo, the search of his residence was made without a valid search warrant, without probable cause, and without his consent, and the scope of the search exceeded what was authorized by warrant.
Leos-Trejo filed another Motion to Suppress Evidence Obtained from Defendant Pursuant to an Invalid Protective Search. This motion argued that evidence should be suppressed because the search was "illegal[,]" exceeded the scope authorized by law, and was unsupported by a valid search warrant, probable cause, or reasonable suspicion of criminal activity.
Leos-Trejo also filed other motions to suppress. One motion sought to suppress the blood specimen obtained from him and alleged that the seizure of the sample was unsupported by reasonable suspicion or probable cause and was not drawn according to the required procedure and protocol, rendering the blood sample results invalid and inadmissible. Leos-Trejo also filed a Motion to Suppress Oral Statements of Defendant, in which he argued that any statements he gave to law enforcement were tainted by an illegal and unlawful detention and were involuntary. On appeal, he makes no challenges to the trial court's ruling on any of these motions.
There was no pretrial hearing on his motions to suppress, and the trial court did not rule on them prior to trial, and there is nothing in the record indicating that defense counsel asked the trial court for a ruling or a hearing prior to trial. During the trial, defense counsel objected to the admission of "the search warrant" because the affidavit did not set out probable cause, the affidavit did not provide specific grounds for the search of all the items to be sought and the affidavit did not include a factual basis for the search and seizure of computers and cell phones at the home. Defense counsel also objected based on a lack of specificity in the search warrant and supporting affidavit. The court asked the defense attorney whether the defense motions he filed raised specific grounds or were "boiler plate[,]" and the defense responded that the defendant was complaining of "the lack of specificity in the search warrant and affidavit" and that "[i]t's a fishing expedition[.]" The trial court then overruled the objections and found there was probable cause contained in the affidavit.
In a single issue, Leos-Trejo argues that the trial court erred in denying his motion to suppress and admitting certain evidence "obtained pursuant to an invalid search warrant[.]" According to Leos-Trejo, the search warrant (1) "did not provide specific grounds for the search of all the items to be sought[,]" (2) was signed and witnessed but not properly notarized, (3) was overly broad, and (4) was unsupported by probable cause to search or seize Leos-Trejo's cell phone.
Standard of Review and Applicable Law
We review a trial court's ruling on a motion to suppress under a bifurcated standard of review. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We review the trial court's factual findings for an abuse of discretion, but we review the trial court's application of the law to the facts de novo. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). At a suppression hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony, and a trial court may choose to believe or to disbelieve all or any part of a witness's testimony. Valtierra, 310 S.W.3d at 447; Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007) (quoting State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999)).
In reviewing a trial court's ruling, the appellate court does not engage in its own factual review. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). We give almost total deference to the trial court's determination of historical facts, "especially if those are based on an assessment of credibility and demeanor." Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). We give the same deference to the trial court's conclusions with respect to mixed questions of law and fact that turn on credibility or demeanor. State v. Ortiz, 382 S.W.3d 367, 372 (Tex. Crim. App. 2012). We review purely legal questions de novo as well as mixed questions of law and fact that do not turn on credibility and demeanor. State v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App. 2011); Crain, 315 S.W.3d at 48.
In the absence of any findings of fact, either because none were requested or none were spontaneously made by the trial court, an appellate court must presume that the trial court implicitly resolved all issues of historical fact and witness credibility in the light most favorable to its ultimate ruling. State v. Elias, 339 S.W.3d 667, 674 (Tex. Crim. App. 2011) (citing Ross, 32 S.W.3d at 857); see also Aguirre v. State, 402 S.W.3d 664, 667 (Tex. Crim. App. 2013) (Cochran, J., concurring) ("[I]n the absence of specific findings, an appellate court's hands are tied, giving it little choice but to 'view the evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record.'") (quoting Ross, 32 S.W.3d at 855). We afford the prevailing party the strongest legitimate view of the evidence and all reasonable inferences that may be drawn from that evidence. State v. Duran, 396 S.W.3d 563, 571 (Tex. Crim. App. 2013). We will uphold the trial court's ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014); Arguellez v. State, 409 S.W.3d 657, 662-63 (Tex. Crim. App. 2013); Ross, 32 S.W.3d at 855-56.
A motion to suppress evidence is a specialized means of objecting to the admissibility of evidence. Galitz v. State, 617 S.W.2d 949, 952 n.10 (Tex. Crim. App. 1981). As such, a motion to suppress must meet the requirements of an objection. Carroll v. State, 911 S.W.2d 210, 218 (Tex. App.—Austin 1995, no pet.) (citing Mayfield v. State, 800 S.W.2d 932, 935 (Tex. App.—San Antonio 1990, no pet.)). To preserve an issue involving the admission of evidence for appellate review, the objection must inform the trial court why, or on what basis, the evidence should be excluded, but generally need not spout "magic words." Ford v. State, 305 S.W.3d 530, 533 (Tex. Crim. App. 2009); see also Tex. R. App. P. 33.1(a)(1)(A) (error is preserved when the record shows that a "complaint was made to the trial court by a timely request, objection, or motion that . . . stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context[]"). It is well established that "shotgun objections" generally citing many grounds for an objection without argument preserve nothing for appeal. Johnson v. State, 263 S.W.3d 287, 290 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd, untimely filed); Webb v. State, 899 S.W.2d 814, 818 (Tex. App.—Waco 1995, pet. ref'd).
When a trial court does not rule on a motion to suppress, but carries it with the trial, the defendant must object each time any evidence subject to the motion is offered in order to preserve error. Gonzalez v. State, 563 S.W.3d 316, 320 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (citing Palacios v. State, 319 S.W.3d 68, 72 (Tex. App.—San Antonio 2010, pet. ref'd). The complaining party must object "before substantial testimony is given regarding the alleged illegally seized item." Coleman v. State, 113 S.W.3d 496, 500 (Tex. App.—Houston [1st Dist.] 2003), aff'd, 145 S.W.3d 649 (Tex. Crim. App. 2004) (defendant waived error in admission of evidence of narcotics seized from his home where he waited until after officers and crime laboratory chemist had testified extensively about seized items); see also Marini v. State, 593 S.W.2d 709, 714 (Tex. Crim. App. 1980) (defendant forfeited claim that trial court should have suppressed physical evidence of narcotics because defendant had not objected at trial to officer's testimony about finding narcotics); Laurant v. State, 926 S.W.2d 782, 783 (Tex. App.—Houston [1st Dist.] 1996, pet. ref'd) (where trial court did not rule on motion to suppress before trial, defendant forfeited error by waiting until after officers testified about the physical evidence to object to admission of the physical evidence). If the State offers the subject evidence and the defendant affirmatively voices "no objection," then the defendant will have waived any error in admission of the evidence. See Swain v. State, 181 S.W.3d 359, 368 (Tex. Crim. App. 2005) ("The affirmative acceptance of this previously challenged evidence waived any error in its admission."); Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. App. 1986) (defendant preserves objection to introduction of evidence in pretrial motion to suppress but waives that error when he affirmatively states "no objection" to introduction of same evidence at trial).
An affidavit in support of a search warrant must contain sufficient information to support the magistrate's finding of probable cause. Hughes v. State, 843 S.W.2d 591, 593 (Tex. Crim. App. 1992); Keen v. State, 626 S.W.2d 309, 312 (Tex. Crim. App. 1981); Davis v. State, 27 S.W.3d 664, 667 (Tex. App.—Waco 2000, pet. ref'd); Mayfield, 800 S.W.2d at 934; see also U.S. Const. amends. IV; Tex. Const. art. I, § 9; Tex. Code Crim. Proc. Ann. arts. 1.06, 18.01(b). Probable cause "exists when reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene would lead a [person] of reasonable prudence to believe that the instrumentality of a crime or evidence pertaining to a crime will be found." Washington v. State, 660 S.W.2d 533, 535 (Tex. Crim. App. 1983). In determining whether probable cause exists to support the issuance of a search warrant, the magistrate to whom the probable cause affidavit is presented is confined to considering the four corners of the search warrant affidavit, as well as to logical inferences the magistrate might draw based on the facts contained in the affidavit. See State v. Elrod, 538 S.W.3d 551, 556 (Tex. Crim. App. 2017). The determination of whether probable cause exists is a "totality of the circumstances" inquiry, based on the magistrate's reasonable reading of the affidavit, but the magistrate may not act as a mere "rubber stamp." State v. Duarte, 389 S.W.3d 349, 354 (Tex. Crim. App. 2012).
Generally, a reviewing court applies a presumption of validity regarding a magistrate's determination that a search warrant affidavit supports a finding of probable cause. Hyland v. State, 574 S.W.3d 904, 911 (Tex. Crim. App. 2019) (citing Franks v. Delaware, 438 U.S. 154, 171 (1978)). As a result, when reviewing a magistrate's probable cause determination, a reviewing court must ordinarily "view the magistrate's decision to issue the warrant with great deference." Jones v. State, 364 S.W.3d 854, 857 (Tex. Crim. App. 2012); see also Massachusetts v. Upton, 466 U.S. 727, 733 (1984) ("A deferential standard of review is appropriate to further the Fourth Amendment's strong preference for searches conducted pursuant to a warrant."). A trial judge or an appellate court examining a magistrate's probable cause determination "must uphold the magistrate's decision so long as the magistrate had a substantial basis" for the finding. Duarte, 389 S.W.3d at 354; see also Illinois v. Gates, 462 U.S. 213, 238-39 (1983); State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011). "The Supreme Court has repeatedly reminded reviewing courts that they should 'not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner.'" Rodriguez v. State, 232 S.W.3d 55, 59 (Tex. Crim. App. 2007) (quoting United States v. Ventresca, 380 U.S. 102, 109 (1965)). The presumption of validity regarding the magistrate's probable cause determination may be overcome if the defendant can show the presence of false statements in the search warrant affidavit that were either made deliberately or with reckless disregard for truth. See Hyland, 574 S.W.3d at 911 (citing Franks, 438 U.S. at 171).
Article 18.01(b) of the Code of Criminal Procedure requires a search warrant to be supported by a "sworn" affidavit setting forth substantial facts establishing probable cause. See Tex. Code Crim. Proc. Ann. art. 18.01(b). To be "sworn," the declaration of facts within the affidavit must be confirmed by oath. See Vaughn v. State, 177 S.W.2d 59, 61 (Tex. Crim. App. 1944) (op. on reh'g). Section 602.002 of the Government Code lists the state functionaries who may administer an oath in the state of Texas, and the list includes a peace officer if the oath relates to the officer's duties and is administered when the officer is engaged in the performance of his duties. See Tex. Gov't Code Ann. § 602.002(17). The affidavit should be "signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under [the] seal of office." See id. § 312.011(1).
Analysis
On appeal, the State argues that Appellant's brief does not specify what items of evidence should have been suppressed, but he "appears to specifically attack the admission of evidence obtained from his cell phone[.]" Although we read Appellant's brief to focus on alleged deficiencies in the affidavit supporting the search warrant, he specifically challenges the search and seizure of his cell phone, stating:
Appellant's cell phone's text messages should not have been admitted, because first, there was insufficient probable cause to search or seize the Appellant's cell phone, and second, the Search Warrant was too broad in its scope and there was no legal basis to search or seize the Appellant's phone.The reporter's record indicates that the State had submitted State's Exhibit 29 as the probable cause affidavit but Exhibit 29 is not contained in the appellate record. Appellant's third motion to suppress requested suppression of computers, electronic devices, and digital images and videos, and attached to that motion is an Affidavit for Search Warrant that sought evidence including, but not limited to, computers, electronic devices, stored electronic communications, personal cell phones, and firearms.
. . .
Therefore[,] the search and seizure of the Appellant's cell phone and the subsequent admission of the text messages from the Appellant's cell phone constitute reversible error.
The State argues that Appellant failed to preserve error because he failed to obtain a running objection and did not object each time evidence relating to the cell phones or electronic communications were admitted. The reporter's record reflects that at trial the defense did not object to the admission of the cell phone extraction reports contained in State's Exhibits 104, 105, 106, 107, 111, 114, and 141. In addition, the defense offered phone "chat" records between Leos-Trejo and Jessica as Defense Exhibit 66. We agree that by failing to object each time the evidence was offered, and then by offering the same evidence, the defendant did not preserve error on these items. That said, even assuming without deciding that Appellant preserved error, we conclude that the trial court did not err in denying the motions to suppress, as we explain below.
Appellant complains that the probable cause affidavit for the search warrant was not notarized. Appellant argues that in Smith v. State, the Court of Criminal Appeals held that an affiant's failure to sign an affidavit is not fatal if it can be proved that the affiant swore orally to the facts alleged in the affidavit before the magistrate signed the search warrant. 207 S.W.3d 787 (Tex. Crim. App. 2006). We do not find Smith applicable to this case because Smith addressed an officer's failure to sign an affidavit. Id. at 788. In Smith, the Court explained "[a]lthough the affiant's signature on an affidavit serves as an important memorialization of the officer's act of swearing before the magistrate, it is that act of swearing, not the signature itself, that is essential." Id. at 792. In this case, the affidavit was sworn to and signed, and Appellant does not allege otherwise. Moreover, the search warrant in this case was certified and signed by a judge, who would have been authorized by law to administer an oath. That said, even assuming without deciding that the search warrant was defective because the officer's signature on the affidavit was not notarized, a defective warrant should not be rendered inadmissible if the officer executing the warrant was acting in objective good-faith reliance upon a warrant based on a neutral magistrate's determination of probable cause. See State v. Arellano, No. PD-0287-19, 2020 Tex. Crim. App. LEXIS 363, at *15 (Tex. Crim. App. May 6, 2020) (citing Tex. Code Crim. Proc. Ann. art. 38.23(b); Dunn v. State, 951 S.W.2d 478, 478 (Tex. Crim. App. 1997)). Nothing in the record before us suggests that the law enforcement officers executing the warrant did not act in objective good faith reliance upon a warrant based on probable cause issued by a neutral magistrate. See Hunter v. State, 92 S.W.3d 596, 603 (Tex. App.—Waco 2002, pet. ref'd), overruled on other grounds by Smith v. State, 207 S.W.3d 787 (Tex. Crim. App. 2006) (citing Dunn, 951 S.W.2d at 478). We conclude that the trial court did not err in overruling the objections the defendant made to the affidavit and in concluding the affidavit supporting probable cause was valid. See Tex. Gov't Code Ann. § 312.011(1).
The affidavit supporting probable cause alleged that the police went to the residence in response to a 911 call, they found Jessica deceased after having been shot, they found firearms in the home, and Leos-Trejo and K.S. were at the residence. The affidavit further alleged that K.S. had told an officer that she heard a gunshot after she heard Leos-Trejo and Jessica arguing. The affidavit specifically sought evidence of electronic communications and devices in connection with Jessica's murder. Therefore, we also reject Appellant's argument that the affidavit lacked specificity. Appellant has not identified any false statement in the affidavit or statements made with reckless disregard for the truth necessary to overcome the presumption of validity. See Hyland, 574 S.W.3d at 911 (citing Franks, 438 U.S. at 171). Based on the language of the affidavit and applying the presumption of validity, we conclude the judge who signed the search warrant had a substantial basis for finding probable cause for the search. See id.
Because the defense did not request findings of fact and conclusions of law and none were filed, we presume that the trial court implicitly resolved all issues of historical fact and witness credibility in the light most favorable to its ultimate ruling. See Elias, 339 S.W.3d at 674 (citing Ross, 32 S.W.3d at 857). Based on the record before us, we conclude that the trial court did not err in concluding that the affidavit was legally sufficient and that there was probable cause to support the search warrant. See id.
Even assuming without deciding that the cell phone evidence was admitted in error, the jury could have convicted Leos-Trejo based on other unchallenged evidence. Dr. Alex John, forensic pathologist, testified that the cause of Jessica's death was a gunshot wound to the head by homicide. Sandy Parent testified that she found GSR from a sample taken from Leos-Trejo that was consistent with him having recently fired a weapon. Crime scene investigator Celestina Rossi testified that the blood evidence at the scene indicated that Jessica had not moved or been moved after she was shot. Rossi also testified that the physical evidence was not consistent with Leos-Trejo being seated at the time the gun was fired and not consistent with Leos-Trejo's report that his gun "went up[.]" Firearms examiner Stephanie Leuhr testified that when she tested the AR weapon obtained from the scene, she found it worked the way it was supposed to and did not discharge in a drop test. The jury could have disbelieved Leos-Trejo's testimony that the shooting was an accident. See Valtierra, 310 S.W.3d at 447. We overrule Appellant's issue and affirm the judgment of the trial court.
AFFIRMED.
/s/_________
LEANNE JOHNSON
Justice Submitted on April 24, 2020
Opinion Delivered June 22, 2020
Do Not Publish Before McKeithen, C.J., Kreger and Johnson, JJ.