Opinion
01-21-00322-CR
03-26-2024
MAURICIO NAVARRETE-TORRES, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 178th District Court Harris County, Texas Trial Court Case No. 1540067
Panel consists of Justices Kelly, Landau, and Farris.
MEMORANDUM OPINION
April L. Farris Justice.
Appellant Mauricio Navarrete-Torres was convicted of the first-degree felony offense of murder. See Tex. Penal Code § 19.02(b)(1), (c). The jury sentenced him to life imprisonment and imposed a $10,000 fine. See id. § 12.32. In two issues on appeal, Navarrete-Torres argues that: (1) the trial court abused its discretion by overruling his objection to the State's misstatement of law concerning sudden passion during punishment-phase closing arguments; and (2) the trial court erred by denying his motion to suppress cell phone evidence. We affirm.
Background
In the early morning hours of February 3, 2017, Navarrete-Torres murdered Christine Martinez in her home by stabbing her 37 times. Christine lived in Houston with her two teenaged sons, Michael Martinez and Christopher Martinez.Navarrete-Torres, who was eighteen years old at the time, was Michael's best friend and co-worker at a movie theater.
We refer to the complainant and her two sons by their first names because they share the same last name.
On the night of the murder, Michael was working at the movie theater, and his shift ended at 12:30 a.m. Between midnight and 12:30, Christopher left their house to pick up Michael from work. When Christopher left, Christine was asleep on the couch in the living room, so Christopher ensured the doors to the house were shut and locked before he left. Christopher picked up Michael from work and stopped at Whataburger to get food on the way home. When they returned home, Christine was no longer in the living room. Michael went into his bedroom and noticed the bedroom window was open and the blinds were askew. He asked Christopher about the window, but Christopher did not know why it was open, so Michael went to Christine's bedroom to ask her about it. Michael discovered Christine's body lying on her bedroom floor.
These background facts are primarily related to Navarrete-Torres's second issue concerning the trial court's denial of his motion to suppress cell phone evidence. As discussed below, in reviewing whether probable cause supported the warrant to search the cell phone, our review is constrained to the four corners of the affidavit filed in support of the search warrant. See State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011). Therefore, to the extent possible, we limit our discussion of the facts leading up to trial to those appearing in the affidavit. To the extent we include background facts appearing outside the affidavit, we do not consider such facts in our analysis of the second issue below. See id.
Michael screamed, and Christopher went into the bedroom, saw his mother, and called 911. Christopher performed CPR on Christine until police and medical personnel arrived. Christine was pronounced dead at 2:01 a.m. An autopsy showed that she died from 37 stab wounds, including cuts to her face, and blunt-force trauma.
Police questioned Christopher and Michael on the night of the murder. Michael told investigators that he had a comic book box containing cash in the top of his closet, but the box and the cash were missing. Only two people knew about the cash in the box: Navarrete-Torres-who was not at work with Michael at the movie theater on the night of the murder-and another co-worker who was at work with Michael that night.
Police found blood and fingerprints on the blinds in Michael's bedroom. Police submitted the fingerprints found on the blinds to an FBI fingerprint database for analysis, and the results contained a match to Navarrete-Torres's fingerprints.Navarrete-Torres was arrested. During his videotaped interrogation, Navarrete-Torres confessed to killing Christine, claiming that an unknown male coerced him to kill her.
The record indicates that Navarrete-Torres's fingerprints were on file in the FBI database for reasons unrelated to criminal activity.
When he was arrested, Navarrete-Torres had a cell phone in his possession. Police seized the cell phone and obtained a warrant to search its contents. A Harris County grand jury indicted Navarrete-Torres for the capital felony offense of capital murder for killing Christine during the burglary of her house. See Tex. Penal Code § 19.03(a)(2), (b).
During trial, Navarrete-Torres filed a motion to suppress evidence obtained from the search of the cell phone, arguing that the search violated the Fourth Amendment. Specifically, he argued that the affidavit in support of the search warrant did not establish probable cause to search the cell phone because the warrant lacked "particularized facts tying the [cell phone] to the alleged crime." The trial court held a brief hearing on the motion to suppress. Defense counsel argued that the affidavit did not provide "a nexus that the phone was connected to a criminal activity." The State responded that the affidavit provided such a nexus by, among other things, describing communications between Navarrete-Torres and Michael concerning Navarrete-Torres's plan to go to Michael's house on the night of the murder. The trial court denied the motion. During trial, the court admitted text messages and location data obtained from the cell phone.
Navarrete-Torres testified at trial. He acknowledged that he had lied when he told investigators that an unknown male had coerced him to kill Christine. He testified that, instead, he and Christine had engaged in a secret sexual relationship since July 2016, when Navarrete-Torres was seventeen or eighteen years old. According to Navarrete-Torres's testimony, he wanted to tell Michael and Christopher about the relationship, Christine did not want them to know about it. Navarrete-Torres said that he went to Michael's house to meet him after work, but Michael was not home. Christine answered the door, and she and Navarrete-Torres went into the living room. Christine became angry when Navarrete-Torres pressed her to divulge their relationship to Michael and Christopher. She refused to do so and told Navarrete-Torres that she "wanted a man not a boy."
Navarrete-Torres testified that he and Christine argued for a few minutes before he "ran into [Michael's] room," "mad" with "tunnel vision." He "ransacked the room," opened the window and "popped the blinds," and threw various items- including the comic book box containing Michael's cash-out of the window. Christine went into Michael's bedroom and slapped Navarrete-Torres, angering him further. The two physically fought before Navarrete-Torres ran into the kitchen, grabbed a knife, and chased Christine into her bedroom, "swinging" the knife at Christine and killing her. Navarrete-Torres left the house through the open window in Michael's bedroom. He grabbed the comic book box, put the knife in it, and ran away.
At the end of the guilt-innocence phase of trial, the court instructed the jury on the charged offense of capital murder and the first-degree felony offense of murder. See id. § 19.03(c) (providing that if jury does not find defendant guilty of capital murder, defendant "may be convicted of murder or of any other lesser included offense"). The jury convicted Navarrete-Torres of the lesser-included offense of murder.
During the punishment phase of trial, the trial court granted defense counsel's request to include a sudden passion instruction in the jury charge. During punishment-phase closing arguments, the State argued against a finding of sudden passion, telling the jury that such a finding would be "scary for every person in a relationship in this community" because anytime someone tells a partner "no, I don't want to be with you and how dare you trash my house, that's sufficient cause for somebody to lose it and stab somebody 37 times." Defense counsel objected to the argument as improper, but the trial court overruled the objection. The State then argued, "If you find in the affirmative for sudden passion, you're essentially saying that Christine caused her death." Defense counsel again objected that the argument was improper and that it misstated the law, but the trial court overruled the objection.
After deliberating, the jury found against sudden passion. The jury sentenced Navarrete-Torres to life imprisonment and assessed a $10,000 fine. The trial court subsequently entered a written judgment of conviction and certified Navarrete-Torres's right of appeal. This appeal followed.
Closing Arguments
In his first issue, Navarrete-Torres contends that the trial court abused its discretion by overruling his objection to the State's misstatement of the law of sudden passion during punishment-phase closing arguments. Navarrete-Torres further argues that this error is reversible because it affected his substantial rights. A. Standard of Review and Governing Law
Closing arguments serve "to facilitate the jury in properly analyzing the evidence presented at trial so that it may 'arrive at a just and reasonable conclusion based on the evidence alone, and not on any fact not admitted in evidence.'" Milton v. State, 572 S.W.3d 234, 239 (Tex. Crim. App. 2019) (quoting Campbell v. State, 610 S.W.2d 754, 756 (Tex. Crim. App. 1980) (panel op.)); see also Thompson v. State, 89 S.W.3d 843, 850 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd) ("The law provides for, and presumes, a fair trial free from improper argument by the State."). Proper jury argument generally falls into four categories: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to an argument of opposing counsel; and (4) plea for law enforcement. Milton, 572 S.W.3d at 239. We review a trial court's ruling on an objection to improper jury argument for an abuse of discretion. Molina v. State, 587 S.W.3d 100, 109 (Tex. App.-Houston [1st Dist.] 2019), aff'd, 632 S.W.3d 539 (Tex. Crim. App. 2021).
Prosecutorial misstatements of law are improper, but because they are not constitutional in nature, they are reviewed for reversible error under Rule of Appellate Procedure 44.2(b). Tex.R.App.P. 44.2(b); Herrera v. State, 11 S.W.3d 412, 415 (Tex. App.-Houston [1st Dist.] 2000, pet. ref'd). Rule 44.2(b) requires courts to disregard any error that does not affect substantial rights. Tex.R.App.P. 44.2(b). "A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict." Herrera, 11 S.W.3d at 415 (quoting King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)).
In determining whether an improper jury argument during the punishment phase affected a substantial right, courts consider three factors: (1) the severity of the misconduct (prejudicial effect); (2) curative measures; and (3) the certainty of the punishment assessed absent the misconduct (likelihood of the same punishment being assessed). Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). We consider all the evidence, the court's charge, and the prosecutor's misstatement. Herrera, 11 S.W.3d at 415. We do not consider isolated statements. See Mosley v. State, 686 S.W.2d 180, 184 (Tex. Crim. App. 1985); Rodriguez v. State, 90 S.W.3d 340, 364 (Tex. App.-El Paso 2001, pet. ref'd). We will reverse only if in light of the record as a whole, the argument is "extreme or manifestly improper," violates a mandatory statute, or "injects new facts harmful to the accused into the trial proceeding." Delacerda v. State, 425 S.W.3d 367, 398 (Tex. App.-Houston [1st Dist.] 2011, pet. ref'd) (quoting Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000), and Hawkins, 135 S.W.3d at 77-82); Gonzalez v. State, 337 S.W.3d 473, 483 (Tex. App.-Houston [1st Dist.] 2011, pet. ref'd).
B. Analysis
Navarrete-Torres contends that the prosecutor misstated the law of sudden passion during closing arguments by arguing that an affirmative finding on sudden passion essentially meant that Christine caused her own death. Navarrete-Torres argues that this statement "led the jury to believe that a finding of sudden passion was a form of victim blaming, and that every person in a relationship in the community should be scared of a sudden passion finding in the case."
During closing arguments, the following exchange occurred between the State, defense counsel, and the court:
State: Folks, if you said that is sufficient by saying "will do" in finding in the affirmative [on the issue of sudden passion], that should be scary for every
person in a relationship in this community. Because anytime a girl doesn't want-
Defense Counsel: Objection, Your Honor. This is improper argument.
Court: Overruled.
State: Because then anytime Christine says, no, I don't want to be with you and how dare you trash my house, that's sufficient cause for somebody to lose it and stab somebody 37 times.
Let's not parse words. If you find in the affirmative for sudden passion, you're essentially saying that Christine caused her death.
Defense Counsel: Objection, Your Honor, that's improper argument and a misstatement of the law. The law is clearly defined in the jury charge.
Court: All right, ladies and gentlemen, please remember the jury charge.
Defense Counsel: May I have a ruling, Your Honor?
Court: It's overruled.
State: Essentially, you are saying she created adequate cause for his temper.
It is not sudden passion, folks. Answer, "We do not," and move on.
Assuming without deciding that the State's argument was improper and that the trial court erred in overruling Navarrete-Torres's objections, we find no substantial or injurious effect or influence on the jury's verdict. See Tex.R.App.P. 44.2(b); Herrera, 11 S.W.3d at 415.
First, considering the severity of any misconduct, we conclude that the State's comments were not manifestly improper. See Hawkins, 135 S.W.3d at 77; Delacerda, 425 S.W.3d at 398. A defendant convicted of murder may argue at the punishment phase that "he caused the death under the immediate influence of sudden passion arising from an adequate cause." Tex. Penal Code § 19.02(d). "Adequate cause" is defined as "cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection." Id. § 19.02(a)(1). "Sudden passion" is defined as "passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation." Id. § 19.02(a)(2). The defendant bears the burden to prove sudden passion by a preponderance of the evidence, and a finding of sudden passion reduces the offense to a second-degree felony with a maximum sentence of twenty years' imprisonment. Id. §§ 19.02(d), 12.33(a); see McKinney v. State, 179 S.W.3d 565, 569 (Tex. Crim. App. 2005) ("Sudden passion is a mitigating circumstance that . . . reduces the offense from a first degree felony to a second degree felony.").
According to the plain language of section 19.02, sudden passion applies when the complainant caused sudden passion to arise in the defendant, and the immediate influence of sudden passion in the defendant caused the complainant's death. See Tex. Penal Code § 19.02(a), (d); see also Beltran v. State, 472 S.W.3d 283, 294-95 (Tex. Crim. App. 2015) (holding that evidence established "provocation by [complainant] that would commonly produce sudden passion in a person of ordinary temper and thus was evidence of provocation sufficient to induce sudden passion in [defendant]"). "Evidence of provocation by the decedent is required for a sudden passion charge." Beltran, 472 S.W.3d at 294. Thus, the effect of a sudden passion finding is to redirect some blame for the complainant's death from the defendant to the complainant.
Moreover, the State's argument that the community should fear the consequences of a sudden-passion finding in this case was made in the context of rebutting defense counsel's argument that Christine provoked sudden passion in Navarrete-Torres by allegedly telling him she "wanted a man not a boy" and slapping him after he ransacked her home. See Milton, 572 S.W.3d at 239 (stating that proper jury argument includes answer to argument of opposing counsel). As stated above, sudden passion must arise from an "adequate cause," which is defined as "cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection." Tex. Penal Code § 19.02(a)(1) (emphasis added). By contrast, "ordinary anger" is legally inadequate to justify a finding of sudden passion. Hernandez v. State, 127 S.W.3d 206, 211 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd). The State was permitted to explain the societal consequence of finding, in essence, that an alleged bad breakup would "commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection." See Tex. Penal Code § 19.02(a)(1) (emphasis added). Thus, we cannot conclude that the State's argument was manifestly improper.
Second, although the trial court overruled Navarrete-Torres's objections, the court nevertheless instructed the jury to "remember the jury charge." See Hawkins, 135 S.W.3d at 77. The punishment-phase jury charge, in turn, properly instructed the jury on the issue of sudden passion. See Tex. Penal Code § 19.02(a), (d). Absent evidence to the contrary, a jury is presumed to follow both a trial court's curative instructions and instructions set forth in a jury charge. Hutch v. State, 922 S.W.2d 166, 172 (Tex. Crim. App. 1996) (jury instructions); Gonzalez v. State, 522 S.W.3d 48, 65 (Tex. App.-Houston [1st Dist.] 2017, no pet.) (curative instructions); Herrera, 11 S.W.3d at 415-16 (jury instructions).
Third, we consider the evidence supporting the jury's assessment of Navarrete-Torres's punishment at life imprisonment and a $10,000 fine. See Hawkins, 135 S.W.3d at 77. On this point, Navarrete-Torres argues that the State's comments had a substantial and injurious effect on the jury's punishment decision because he requested that the jury apply the maximum twenty-year sentence for causing a death under sudden passion, he had no prior criminal history or extraneous bad acts, he was only eighteen years old when he committed the murder, and the jury found him guilty of the lesser-included offense of murder instead of capital murder.
Nevertheless, the evidence showed that Navarrete-Torres committed a violent crime for which the jury found him guilty. According to his own trial testimony, Navarrete-Torres was engaged in a secret sexual relationship with Christine, and he became angry with her for refusing to reveal their relationship to her sons, including Michael who was Navarrete-Torres's best friend. Other evidence, however, tended to show that Navarrete-Torres broke into Christine's house through a window in Michael's bedroom and that after killing Christine, Navarrete-Torres stole some of Michael's belongings, including cash hidden in the comic book box. Whatever his motivation, Navarrete-Torres stabbed Christine 37 times, including in her face, killing her. He then left Christine's body for her sons to find.
The jury was thus presented with scant evidence that Navarrete-Torres killed Christine under the immediate influence of sudden passion arising from an adequate cause such that he was entitled to a reduction in the maximum sentence from life imprisonment to twenty years. See Tex. Penal Code §§ 19.02(a), (d), 12.32(a), 12.33(a). The State, on the other hand, produced significant evidence that Navarrete-Torres killed Christine in a violent attack, which supported the jury's sentence of life imprisonment.
In sum, the State's argument was not manifestly improper, the trial court instructed the jury to follow the jury charge, the jury charge correctly stated the law of sudden passion, and the State presented a strong case that Navarrete-Torres did not kill Christine under the immediate influence of sudden passion. See Hawkins, 135 S.W.3d at 77; Delacerda, 425 S.W.3d at 398. After considering the entire record, we cannot conclude that the State's jury argument was extreme or manifestly improper, violated a mandatory statute, or injected new facts into the proceeding that were harmful to Navarrete-Torres. See Delacerda, 425 S.W.3d at 398; Gonzalez, 337 S.W.3d at 483. We therefore conclude that the State's misstatement of law, if any, did not have a substantial and injurious effect on the punishment assessed, and we therefore must disregard any error in the trial court's overruling of Navarrete-Torres's objections to the State's argument. See Tex.R.App.P. 44.2(b); Herrera, 11 S.W.3d at 415. We overrule Navarrete-Torres's first issue.
Motion to Suppress Evidence
In his second issue, Navarrete-Torres contends that the trial court erred by denying his motion to suppress cell phone evidence obtained pursuant to a search warrant. Navarrete-Torres argues that the four corners of the affidavit in support of the warrant did not establish probable cause for the search of his cell phone because the affidavit lacked sufficient facts tying the cell phone to Christine's murder.
Navarrete-Torres does not argue that the affidavit failed to establish probable cause that he committed the murder. See Tex. Code Crim. Proc. art. 18.0215(c) (5)(A) (providing that affidavit must state facts and circumstances providing applicant with probable cause to believe that "criminal activity has been, is, or will be committed").
A. Standard of Review
Ordinarily, appellate courts review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review, in which we give almost total deference to the trial court's findings of historical fact, and we review de novo the trial court's application of law. State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011). But when, as here, the question before the trial court is whether probable cause supported issuance of the warrant, the trial court does not make credibility determinations but is instead "constrained to the four corners of the affidavit." Id.; Somoza v. State, 481 S.W.3d 693, 698 (Tex. App.-Houston [1st Dist.] 2015, no pet.). Thus, in reviewing a magistrate's decision whether probable cause existed to issue a warrant, "we apply a highly deferential standard because of the constitutional preference for searches to be conducted pursuant to a warrant as opposed to a warrantless search." McLain, 337 S.W.3d at 271; Somoza, 481 S.W.3d at 693; accord Illinois v. Gates, 462 U.S. 213, 236 (1983) (acknowledging "Fourth Amendment's strong preference for searches conducted pursuant to a warrant"); State v. Baldwin, 664 S.W.3d 122, 130 (Tex. Crim. App. 2022) ("Even in close cases, reviewing courts give great deference to a magistrate's probable cause determination to encourage police officers to use the warrant process.").
"When in doubt, reviewing courts should defer to all reasonable inferences a magistrate could have made." Baldwin, 664 S.W.3d at 130; see McLain, 337 S.W.3d at 271. Warrants should not be invalidated "by interpreting an affidavit in a hyper-technical rather than commonsense manner." Baldwin, 664 S.W.3d at 130; McLain, 337 S.W.3d at 271. We will affirm the magistrate's probable cause determination as long as the magistrate had a substantial basis for concluding that probable cause existed. Baldwin, 664 S.W.3d at 130; McLain, 337 S.W.3d at 271; see also Gates, 462 U.S. at 239 ("An affidavit must provide the magistrate with a substantial basis for determining the existence of probable cause . . . .").
B. Governing Law
The Fourth Amendment provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. "Probable cause exists when, under the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular location." Baldwin, 664 S.W.3d at 130; see also Bonds v. State, 403 S.W.3d 867, 873 (Tex. Crim. App. 2013) (stating that affidavit must show "a sufficient nexus between criminal activity, the things to be seized, and the place to be searched").
Police "may not embark upon a general, evidence-gathering search" of a cell phone for personal information. State v. Granville, 423 S.W.3d 399, 412 (Tex. Crim. App. 2014); see Butler v. State, 459 S.W.3d 595, 601 n.3 (Tex. Crim. App. 2015) (acknowledging that both United States Supreme Court and Texas Court of Criminal Appeals have recognized that cell phone users can have reasonable expectation of privacy in content of their cell phones). With some exceptions not relevant here, a peace officer must obtain a warrant to search a person's cell phone. See Tex. Code Crim. Proc. art. 18.0215(a), (d). To obtain the warrant, the peace officer must submit a signed and sworn or affirmed application to the judge stating, among other things, "the facts and circumstances that provide the applicant with probable cause to believe that: (A) criminal activity has been, is, or will be committed; and (B) searching the telephone or device is likely to produce evidence in the investigation of the criminal activity described in paragraph (A)." Id. art. 18.0215(c)(5). An affidavit must generally include facts that the cell phone was used during the crime or shortly before or after it. Diaz v. State, 604 S.W.3d 595, 603 (Tex. App.-Houston [14th Dist.] 2020), aff'd, 632 S.W.3d 889 (Tex. Crim. App. 2021); see Baldwin, 664 S.W.3d at 135 ("Considering the whole of the affidavit, there is no information included that suggest[s] anything beyond mere speculation that [the defendant's] cell phone was used before, during, or after the crime.").
C. The Affidavit
In determining whether probable cause supported the warrant to search Navarrete-Torres's cell phone, we are constrained to the four corners of the affidavit filed in support of the application for the warrant. See McLain, 337 S.W.3d at 271. The affidavit in this case is comprised of six pages. Affiant David Crane, a peace officer in the homicide division of the Harris County Sheriff's Office, identified Navarrete-Torres as the person suspected of killing Christine and thereby committing the offense of capital murder.
The affidavit included details about the police investigation of Christine's murder. It stated that Michael's shift at the movie theater ended at 12:30 a.m. Christopher left the house to pick up Michael from work between midnight and 12:30 a.m. When Christopher left, he ensured the doors were locked because Christine was asleep on the living room couch. Christopher picked up Michael from work and then stopped at Whataburger to pick up food on the way home. When they returned home, Michael "found his bedroom window open and the window blinds askew." Michael asked Christopher about the window, but Christopher did not know why it was open. When Michael went to Christine's bedroom to ask her about the window, he found Christine's body on the floor.
The affidavit also stated that Navarrete-Torres and Michael were friends and co-workers at the movie theater. Michael told police that the comic book box containing cash was missing from the top of his closet. Only two people knew about the cash: Navarrete-Torres, who was not working with Michael on the night of the murder, and another co-worker who was working with Michael that night. Moreover, police recovered Navarrete-Torres's fingerprints from the blinds in Michael's bedroom. Police arrested Navarrete-Torres, and he confessed to killing Christine, claiming that an unknown male coerced him to kill her.
When he was arrested, Navarrete-Torres was carrying a cell phone, which is the subject of the search warrant in this appeal. Michael told police that Navarrete-Torres "had made plans with [Michael] to come to the residence [Michael and Christine's house] later in the morning to workout with Michael." He also reported that Navarrete-Torres had "asked Michael to call him when he got off of work."
Based on these facts, Crane averred that he had reason to believe and did believe that Navarrete-Torres committed the offense of capital murder, and that evidence of the offense would be found on the cell phone. Crane averred that he had "experience in investigating crimes in which cellular telephones have been used before, during, and/or immediately thereafter to plan, aide and assist in the communication of a crime." Furthermore, Crane knew from his knowledge, training, and experience "that information contained in a suspect's cellular device, once analyzed, can give an investigator insight into the habits, desires, motives, location and personal history of the primary user."
The magistrate determined that the affidavit established probable cause to search the cell phone and issued the search warrant.
D. Analysis
Navarrete-Torres argues that the affidavit contained only "generalized assertions and facts relating to the investigation" which "have no bearing on whether [his] phone was connected to the offense" or used "before, during, or after the crime." Navarrete-Torres acknowledges that the affidavit states that: (1) he claimed he was coerced to murder Christine by an unknown male; (2) he and Michael had made plans to work out later in the morning; and (3) Navarrete-Torres asked Michael to inform him when Michael got off work. But Navarrete-Torres argues that this is insufficient to tie the cell phone to Christine's murder.
In determining whether probable cause exists, we review the totality of the circumstances to determine whether there is a fair probability that contraband or evidence of a crime will be found in a particular location. Baldwin, 664 S.W.3d at 130. We apply a highly deferential standard of review to the magistrate's probable cause finding, and we defer to reasonable inferences that the magistrate could have made. Id.; McLain, 337 S.W.3d at 271.
We agree with Navarrete-Torres that nothing in the affidavit ties the cell phone to the unknown male whom Navarrete-Torres claimed had coerced him to kill Christine. The affidavit merely reflects that Navarrete-Torres "stated that he was compelled to break into the house and stab [Christine] by an unknown male." The affidavit contains no facts implying that Navarrete-Torres communicated with the unknown male by cell phone. See Walker v. State, 494 S.W.3d 905, 909 (Tex. App.-Houston [14th Dist.] 2016, pet. ref'd) ("A substantial basis for probable cause rests in the allegations that appellant and the complainant had been communicating via appellant's cell phone, planning robberies around the time that the complainant was killed while being robbed of possessions later found in appellant's possession.").
We disagree with Navarrete-Torres, however, that the affidavit does not otherwise tie the cell phone to Christine's murder. The affidavit stated that Navarrete-Torres was not working with Michael on the night of the murder, but that Navarrete-Torres had made plans to work out with Michael at Michael's house later in the morning. Navarrete-Torres also asked Michael to call him when Michael got off work. When Navarrete-Torres was arrested, he had the subject cell phone in his possession.
From these facts, the magistrate reasonably could have inferred that Navarrete-Torres communicated these plans to Michael by cell phone. See id. The magistrate also reasonably could have inferred that Navarrete-Torres made the cell phone communications as a pretext to learn when Michael would return home after work, as well as when Christopher was likely to be gone from the house picking up Michael from work, thereby ensuring a window of time when the brothers would most likely be absent from the house and unable to interfere in the murder of their mother. Furthermore, the magistrate reasonably could have inferred that the communications were made shortly before the murder when Michael was at work. See Baldwin, 664 S.W.3d at 135; Diaz, 604 S.W.3d at 603. At a minimum, there was a fair probability that text messages, call logs, or emails on Navarrete-Torres's cell phone would show him asking Michael to call him when Michael got off work. See Baldwin, 664 S.W.3d at 130 (stating that finding of probable cause requires fair probability that evidence of crime will be found in particular location).
On appeal, Navarrete-Torres relies solely on State v. Baldwin. See id. at 123. Baldwin held that "boilerplate language may be used in an affidavit for the search of a cell phone, but to support probable cause, the language must be coupled with other facts and reasonable inferences that establish a nexus between the device and the offense." Id. The affidavit in Baldwin contained only boilerplate language stating that it "is common for suspects to communicate about their plans via text messaging, phone calls, or through other communication applications." Id. at 126. The affidavit in Baldwin contained no facts showing that the cell phone was used before or during the offense, such as evidence that "the suspects planned the offense over multiple days" and that "these particular suspects communicated about the crime by cell phone." Id. at 135. "[T]here [were] simply no facts within the four corners of the affidavit that tie[d] [Baldwin's] cell phone to the offense." Id. at 134.
Here, by contrast, Navarrete-Torres does not argue that the affidavit was insufficient because it contained only boilerplate language. As discussed above, Navarrete-Torres acknowledges the additional statements in the affidavit concerning communications about plans to work out and the request that Michael notify Navarrete-Torres when Michael's shift ended on the night of the murder. These facts show that, unlike in Baldwin, Navarrete-Torres used his cell phone "before or during the offense" by communicating with Michael to plan for Michael's absence from the house during the crime. See id. at 135. Thus, Baldwin is factually distinguishable.
Reading the affidavit in a commonsense manner and affording all reasonable inferences from the facts within it, we conclude that the magistrate had a substantial basis for concluding that probable cause existed to search Navarrete-Torres's cell phone. See id. at 130; McLain, 337 S.W.3d at 271. Under the totality of the circumstances, a fair probability existed that evidence of Christine's murder -specifically, Navarrete-Torres's planning of the murder-would be found in
Navarrete-Torres's cell phone. See Baldwin, 664 S.W.3d at 130; Tex. Code Crim. Proc. art. 18.0215(c)(5)(B). We hold that the trial court did not err by denying the motion to suppress the cell phone evidence. We overrule Navarrete-Torres's second issue.
Conclusion
We affirm the judgment of conviction.