These considerations weigh in favor of a finding that the delay was reasonable. See id. at 331-32 (concluding that seizure was reasonable because, among other reasons, police had probable cause to believe that property contained evidence of unlawful drugs); United States v. Johns, 469 U.S. 478, 487 (1985) (observing that when defendants "never sought return of the property," this weighed against finding "that the delay in the search of [the seized property] adversely affected legitimate interests protected by the Fourth Amendment"); Segura, 468 U.S. at 813 (concluding that when defendants "were under arrest and in the custody of the police throughout the entire period" that property was seized, "[t]he actual interference with their possessory interests in the [property] and its contents was, thus, virtually nonexistent"); Orosco v. State, No. 03-15-00383-CR, 2017 Tex. App. LEXIS 6111, at *21-22 (Tex. App.—Austin June 29, 2017, pet. ref'd) (mem. op., not designated for publication) (concluding that "the State's interest in seizing the phone was strong because the State had probable cause to believe that the phone contained evidence" connecting defendant to charged offense); see also United States v. Sullivan, 797 F.3d 623, 633 (9th Cir. 2015) ("Where individuals are incarcerated and cannot make use of seized property, their possessory interest in that property is reduced."); Burgard, 675 F.3d at 1033 ("The state has a stronger interest in seizures made on the basis of probable cause than in those resting only on reasonable suspicion. All else being equal, the Fourth Amendment will tolerate greater delays after probable-cause seizures."); United States v. Clutter, 674 F.3d 980, 984-85 (8th Cir. 2012) (concluding that seizure of defendant's computers while he was in jail "did not meaningfully interfere with his possessory interests"); United States v. Stabile, 633 F.3d 219, 235-36 (3d Cir. 2011) (concluding that defendant
Right? And you swear to tell the jury the truth. Right?"); Orosco v. State , No. 03-15-00383-CR, 2017 WL 2873352 *7-8, 2017 Tex. App. LEXIS 6111 *23-28 (Tex. App.—Austin June 29, 2017, pet. filed) (not designated for publication) (complaint about the fact that trial court expressed frustration with the defendant's repeated failures to answer the questions asked and to instead provide unrelated commentary, which the court described as a "diatribe" on two occasions, and the court repeatedly warned the defendant that additional failures to answer the questions asked or to behave in the manner required in judicial proceedings could result in the imposition of limitations on his ability to testify); Fraser v. State , 523 S.W.3d 320, 338-39 (Tex. App.—Amarillo June 9, 2017, appellant's pet. ref'd, State's pet. granted) (complaint about a number of instructions or comments to the jury, such as: "Ladies and gentlemen, there is going to be a whole series of witnesses to which this instruction is going to apply, and I will be reading that instruction to you for every one of them, so you can get used to it."); Tucker v. State , No. 05-16-00297-CR, 2017 WL 1282897 *3-4, 2017 Tex. App. LEXI
Right? And you swear to tell the jury the truth. Right?"); Orosco v. State, No. 03-15-00383-CR, 2017 Tex. App. LEXIS 6111, *23-28 (Tex. App.-Austin June 29, 2017, pet. filed) (not designated for publication) (complaint about the fact that trial court expressed frustration with the defendant's repeated failures to answer the questions asked and to instead provide unrelated commentary, which the court described as a "diatribe" on two occasions, and the court repeatedly warned the defendant that additional failures to answer the questions asked or to behave in the manner required in judicial proceedings could result in the imposition of limitations on his ability to testify); Fraser v. State, 523 S.W.3d 320, 338-39 (Tex. App.-Amarillo June 9, 2017, appellant's pet. ref'd, State's pet. granted) (complaint about a number of instructions or comments to the jury, such as: "Ladies and gentlemen, there is going to be a whole series of witnesses to which this instruction is going to apply, and I will be reading that instruction to you for every one of them, so you can get used to it."); Tucker v. State, No. 05-16-00297-CR, 2017 Tex. App. LEXIS 3067, *7-9 (Tex. App.-
This may be shown where a suspect controls easily disposable evidence. See, e.g., Gutierrez, 585 S.W.3d at 610 (explaining State showed exigent circumstances for seizing cell phone since appellant had control over easily disposable evidence); Orosco v. State, No. 03-15-00383-CR, 2017 WL 2873352, at *6 (Tex. App.-Austin June 29, 2017, pet. ref'd) (mem. op., not designated for publication) (upholding seizure of cell phone where the police had information defendant recorded sexual assault and noting the police could reasonably have believed that temporarily seizing the cell phone was necessary to obtain a warrant and the delay might result in destruction of evidence if the phone was returned).
Id. at 610. Our analysis in Gutierrez is consistent with the analysis in Orosco v. State , No. 03-15-00383-CR, 2017 WL 2873352 (Tex. App.—Austin June 29, 2017, pet. ref'd) (mem. op., not designated for publication). The court there also applied the exigency exception to the warrantless seizure of a cellphone without any discussion of the "affirmative conduct" requirement.
Foth's attorney indicated his intent to make a record regarding Foth's decision whether to testify and only asked questions pertaining to whether Foth understood that he had a right to testify, to whether Foth's attorney advised Foth of that right and of the potential consequences that could result from testifying, and to whether Foth intended to waive that right. These types of questions and hearings are not unusual, see, e.g., Orosco v. State,No. 03-15-00383-CR, 2017 WL 2873352, at *3 (Tex. App.—Austin June 29, 2017, pet. ref'd) (mem. op., not designated for publication) (noting that trial "court questioned [the defendant] about whether he wanted to testify and whether he understood the consequences of testifying"), and we can see nothing in the record that would support a determination that the district court forced Foth to waive his right to testify or compelled Foth to make a statement regarding his right to testify. Accordingly, we cannot conclude that Foth's due-process rights were violated.