Jamin Kidron Stocker v. the State of Texas

Reversed and Remanded and Opinion filed December 8, 2022.

In The

Fourteenth Court of Appeals

NO. 14-21-00412-CR

JAMIN KIDRON STOCKER, Appellant

V.
THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court
Harris County, Texas
Trial Court Cause No. 1585987

OPINION

Appellant Jamin Kidron Stocker appeals his conviction for capital murder.
Among other issues, he complains of the sufficiency of the evidence to support his
conviction, as well as the trial court’s denial of his motion to suppress evidence
obtained from his cell phone and his wireless carrier.

We hold that legally sufficient evidence supports the jury’s guilty verdict.
However, we agree with appellant that the trial court erred in refusing to suppress
evidence obtained from his cell phone. Although the State secured the evidence
pursuant to a warrant, we conclude that the supporting affidavits failed to articulate
sufficient probable cause. Because we also conclude that the erroneous admission
harmed appellant, we reverse the trial court’s judgment and remand for a new trial.
We overrule appellant’s remaining issues.

Background

In August 2017, Brent Tapp was living in a homeless encampment near
downtown Houston. Late at night on August 21, Tapp was shot in the leg. The
shot came from the balcony of a nearby townhouse. Tapp and his friend, Trampus
Edwards, told responding law enforcement officers that they knew the shooter and
that he lived in the townhouse. Tapp and Edwards did not know the shooter’s
name but identified the balcony of the unit in which they believed he resided. A
witness at trial estimated that the townhouse was less than fifty yards away from
where Tapp was shot.

The officers conducted a computerized search for the townhouse’s address,
and the result showed that appellant’s name was “associated” with the address.1
Police showed Tapp a photo of appellant, and Tapp confirmed that appellant was
the man who shot him.

The police obtained and attempted to execute an arrest warrant for appellant.
An officer called appellant, who said that he was not present at the townhouse.
Officers entered the unit, found no one there, and seized a large number of guns
and ammunition. Police did not arrest appellant at that time because they could not
locate him.

A few months later, on November 7, 2017, police again responded to a call
originating from the homeless camp. Tapp had been shot three times and died as a

1
Appellant did not own or rent the townhouse but, in layman’s terms, was a “squatter.”

2
result of his injuries. The medical examiner recovered a bullet from Tapp’s body,
and police matched it to a gun known to belong to appellant.

Appellant was arrested in January 2018. A Harris County grand jury
indicted him on a charge of capital murder. Appellant pleaded not guilty. Prior to
trial, appellant moved to suppress evidence recovered from his cell phone, which
police seized during his arrest, as well as cell site location information obtained
from appellant’s wireless carrier, T-Mobile, which showed appellant’s general
movements from April 2015 to January 2018. After a hearing, the trial court
denied appellant’s motions to suppress. A jury found appellant guilty of capital
murder as charged in the indictment. The State did not seek the death penalty, and
the trial court sentenced appellant to life imprisonment.

Analysis

Appellant presents six issues for our review:

1. The trial court erred in denying appellant’s motion to suppress
evidence seized, along with the fruits of that evidence, from his
residence without a search warrant.
2. The trial court erred in denying appellant’s motion to suppress the
Samsung cell phone.
3. The trial court erred in overruling appellant’s motion to suppress
evidence obtained from the Samsung cell phone.
4. The trial court erred in denying appellant’s motion to suppress T-
Mobile carrier information from appellant’s Samsung cell phone.
5. The evidence is legally insufficient to support appellant’s
conviction for capital murder.
6. The trial court abused its discretion in admitting substantial
evidence of the extraneous aggravated assault case over objection.

3
A. Sufficiency of the Evidence

We begin with appellant’s fifth issue, in which he challenges the sufficiency
of the evidence supporting the jury’s verdict. We address this issue first because,
if appellant is correct, he would be entitled to the greatest relief. See Finley v.
State, 529 S.W.3d 198, 202 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d).

1. Standard of review and applicable law

Appellant was charged with committing the offense of capital murder. A
person commits the offense of murder if he intentionally or knowingly causes the
death of an individual. Tex. Penal Code § 19.02(b)(1). A person commits the
offense of capital murder if the person commits murder as defined under section
19.02(b)(1) and, relevant here, the person intentionally commits the murder in the
course of committing or attempting to commit obstruction or retaliation. Id.
§ 19.03(a)(2). A person commits the offense of obstruction or retaliation if the
person intentionally or knowingly harms or threatens to harm another by an
unlawful act:

(1) in retaliation for or on account of the service or status of another as
a:
(A) public servant, witness, prospective witness, or informant;
or
(B) person who has reported or who the actor knows intends to
report the occurrence of a crime; or
(2) to prevent or delay the service of another as a:
(A) public servant, witness, prospective witness, or informant;
or
(B) person who has reported or who the actor knows intends to
report the occurrence of a crime.

Id. § 36.06(a). The State must prove beyond a reasonable doubt that the defendant
is the person who committed the charged offense. Johnson v. State, 673 S.W.2d
4
190, 196 (Tex. Crim. App. 1984); Bradley v. State, 359 S.W.3d 912, 916 (Tex.
App.—Houston [14th Dist.] 2012, pet. ref’d).

In determining whether the evidence is legally sufficient to support a
conviction, “we consider all the evidence in the light most favorable to the verdict
and determine whether, based on that evidence and reasonable inferences
therefrom, a rational juror could have found the essential elements of the crime
beyond a reasonable doubt.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.
2007) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)); see also
Braughton v. State, 569 S.W.3d 592, 607-08 (Tex. Crim. App. 2018). We presume
that the jury resolved conflicting inferences in favor of the verdict, and we defer to
its determination of the evidentiary weight and witness credibility. See Braughton,
569 S.W.3d at 608; Criff v. State, 438 S.W.3d 134, 136-37 (Tex. App.—Houston
[14th Dist.] 2014, pet. ref’d). The scope of our review includes all the evidence
admitted at trial, whether it was properly or improperly admitted. See Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We consider both direct and
circumstantial evidence, as well as any reasonable inferences that may be drawn
from the evidence. See Balderas v. State, 517 S.W.3d 756, 766 (Tex. Crim. App.
2016). Circumstantial evidence is as probative as direct evidence in establishing
the guilt of an actor, and circumstantial evidence alone can be sufficient to
establish guilt. See Hooper, 214 S.W.3d at 13.

2. Legally sufficient evidence supports the jury’s verdict.

We need only address the sufficiency of the evidence as it pertains to the
identity element of the State’s case because appellant does not challenge any other

5
element.2 See, e.g., Murray v. State, 457 S.W.3d 446, 448 n.1 (Tex. Crim. App.
2015).

On the night of the August shooting, Edwards heard Tapp yelling, “I been
shot, I been shot.” Edwards asked Tapp who shot him, and Tapp said, “the guy in
the townhouse.” Edwards did not know who Tapp meant, so he asked Tapp “to
show [him].” Tapp pointed to the second-floor balcony of a nearby townhouse.
Tapp described the shooter to Edwards, who recognized Tapp’s description.
Edwards did not know the shooter’s name, but he “always see him coming and
going. That’s how [Edwards] knew who [Tapp] was talking about.” At trial,
Edwards identified appellant as the man he had seen “coming and going.”

Edwards called 911 to report Tapp’s injury because Tapp needed an
ambulance. Houston Police Department (“HPD”) officers, Sergeant Samuel Harris
and Officer Kerry Clopton, were dispatched to the scene. Sergeant Harris was
unsure if there was an “active shooter” inside the townhouse, so another police unit
set up a perimeter to secure the area. Sergeant Harris contacted the HPD
Command Center and gave them the suspected shooter’s address. The center ran a
search and “gave [Sergeant Harris] a name,” and he was then able to obtain
appellant’s driver’s license photograph. Sergeant Harris showed the photograph to
Tapp, who “was adamant that’s [] the person that shot him.”

Officer Clopton obtained an arrest warrant for appellant based on a charge of
aggravated assault with a deadly weapon. A SWAT unit entered the townhouse
but did not find anyone inside. Sergeant Harris then entered and took into
evidence at least five firearms, including “a rifle with a homemade silencer put on

2
In his brief, appellant asserts, “The dispute concerning the jury’s decision in this matter
has to do with the lack of evidence supporting a finding that Appellant was the shooter.”

6
it with a scope on it,” and hundreds of unfired ammunition rounds. Sergeant
Harris also took into evidence appellant’s driver’s license and passport.

Ryan Hookano was the firearms examiner in the firearms section of the
Houston Forensic Science Center. Hookano examined two bullet fragments that
were recovered from the hospital where Tapp received treatment after the August
shooting. According to Hookano, they were consistent with being fired from a 22-
caliber gun. The rifle with the homemade silencer that was recovered from the
townhouse was a 22-caliber semi-automatic rifle. However, Hookano could not
determine conclusively whether the fragments had been fired from that specific
rifle.

After the shooting, appellant left Texas and traveled to Georgia, where he
stayed for approximately seven weeks. Appellant texted his friends, saying that he
had to leave Texas because he shot a homeless man and the police were looking for
him. Appellant returned to Houston in late October 2017.3

On the night of November 7, 2017, HPD received several 911 calls reporting
gunshots near the homeless encampment. HPD officers and Houston Fire
Department personnel responded to the scene, where they discovered Tapp’s body.
The emergency responders pronounced Tapp dead. The medical examiner took
Tapp’s body for examination.

3
Appellant challenges the admission of evidence showing his general whereabouts, as
well as the admission of evidence recovered from his phone, such as the text messages discussed
here. We address appellant’s evidentiary challenges in the next section, but for purposes of our
legal sufficiency analysis, we consider all evidence presented at trial, whether properly or
improperly admitted. See Clayton, 235 S.W.3d at 778.

7
 The medical examiner testified that Tapp had been shot twice in the torso
and once in the thigh.4 The upper body gunshot wounds were fatal injuries that
caused Tapp to die from “high volume rapid loss of blood.”

The day after the murder, appellant searched for and read (on his cell phone)
news articles regarding Tapp’s murder. In subsequent weeks, appellant also
researched the status of his outstanding warrant and how to “delete [] location
history.”

Appellant was arrested in January 2018 on the aggravated assault warrant
relating to the August shooting. At the time of appellant’s arrest, he had a 45-
caliber Beretta pistol tucked in his waistband. Kaitlyn Bongiorno, a firearms
examiner for the Houston Forensic Science Center, test-fired the Beretta and
compared its test-fired bullets with bullets recovered from the ground near the
scene of the November 2017 shooting and a bullet recovered from Tapp’s body
during the autopsy. In Bongiorno’s opinion, the Beretta fired the crime-scene
bullets and the bullet lodged in Tapp’s body that caused his death:

[Prosecutor:] So this Beretta . . . is essentially the murder weapon for
this case?
[Bongiorno:] That is correct.

Not only was appellant arrested with the Beretta that was determined to be
the murder weapon, but the State further proved that appellant owned the gun prior
to the November shooting. HPD Officer Arturo Garcia testified about arresting
appellant in 2016 on an unrelated warrant. Officer Garcia seized two pistols from
the trunk of a car appellant was driving. One was a 9-milimeter Luger
semiautomatic pistol and the other one was the 45-caliber Beretta later used to

4
Edwards testified that he heard three shots on the night of the November shooting,
although he admitted that he did not personally witness Tapp being shot.

8
shoot and kill Tapp. Officer Michael Harp, who was also present during the arrest,
testified that, “[w]hen asked about the weapons that were found in the car,
[appellant] told [Officer Harp] that he had received them from family
members. . . . They were his guns.” In fact, in June 2017, appellant sought a court
order compelling HPD to return his weapons. A judge signed an order, and HPD
returned the two guns, including the Beretta, to appellant.

The State also introduced evidence of cell site location information obtained
from appellant’s wireless carrier and called a witness, HPD Officer Eric Powell, to
explain to the jury appellant’s movements based on the carrier’s location data at
and around the time of the November shooting.5 Officer Powell testified that HPD
obtained T-Mobile records showing the general location of appellant’s phone in
relation to the nearest T-Mobile cell tower for a period of time shortly before and a
few days after the November shooting. According to Officer Powell, appellant’s
phone was near the townhouse and crime scene on the morning of November 7 but
then travelled several miles southwest before “go[ing] dark” for the rest of the day
and night. On the afternoon of November 8, appellant’s phone re-joined the
network, again in the general vicinity of the townhouse and crime scene. T-Mobile
did not have any location data for appellant’s phone on the night of the murder. In
Officer Powell’s experience, it is “not common” to see a gap like that, and he
agreed that criminals “who don’t want to get caught . . . know to turn their phone
off or kind of disappear from the grid.”

Viewed in the light most favorable to the jury’s verdict, we hold that the
evidence is legally sufficient to prove beyond a reasonable doubt that appellant
was the person who shot and killed Tapp in November 2017. See, e.g., Lugo v.

5
Officer Powell also placed appellant at the scene of the August shooting, which
corroborates Tapp’s positive identification of appellant as the shooter in August.

9
State, 299 S.W.3d 445, 452 (Tex. App.—Fort Worth 2009, pet. ref’d) (among
other evidence, evidence that bullet that killed decedent was a .38 caliber bullet
and witness’s testimony that she had seen appellant carry a .38 revolver supported
jury’s verdict); Johnson v. State, No. 05-05-01237-CR, 2006 WL 3350780, at *3
(Tex. App.—Dallas Nov. 20, 2006, no pet.) (mem. op., not designated for
publication) (among other evidence, forensic evidence matching the bullet from
victim’s body as well as another bullet and two cartridge casings found at the scene
of the murders to the .9mm Luger in appellant’s possession at the time of his arrest
was sufficient to support conviction for capital murder); Saxer v. State, 115 S.W.3d
765, 770-72 (Tex. App.—Beaumont 2003, pet. ref’d) (among other evidence,
forensic evidence matching bullet recovered ten feet from victim’s body to gun
allegedly belonging to appellant supported jury’s verdict).

We overrule appellant’s fifth issue.

B. Motions to Suppress

When law enforcement sought to execute an arrest warrant at the townhouse
after the August shooting, officials seized several incriminating items, including
several guns and ammunition. When police ultimately arrested appellant in
January 2018, they seized his Samsung mobile phone. Law enforcement obtained
a search warrant to search the device, and three separate search warrants to be
served on T-Mobile, appellant’s wireless carrier. A search of the phone produced
appellant’s texts and browser history; and documents received from T-Mobile
revealed the general location of appellant’s Samsung phone at various times.
Appellant filed motions to suppress the fruits of these searches and seizures, which
the trial court denied. We summarized some of this evidence above as it pertains
to appellant’s legal sufficiency challenge to the identity element.

10
 In his third and fourth issues, appellant challenges the trial court’s denial of
his motions to suppress the Samsung phone evidence and T-Mobile evidence
obtained pursuant to the warrants. Appellant argues that the searches of his
phone’s contents and of the wireless carrier’s cell site location information were
not supported by probable cause, contrary to the Fourth Amendment and Texas
Constitution, article I, section 9. In his first issue, appellant challenges the denial
of his motion to suppress the evidence seized from the townhouse in August on the
ground that law enforcement had no search warrant. We begin with appellant’s
complaint regarding the contents of the Samsung phone.

1. Standard of review

We review a trial court’s ruling on a motion to suppress under a bifurcated
standard of review. Lerma v. State, 543 S.W.3d 184, 189-90 (Tex. Crim. App.
2018). We review the trial court’s factual findings for an abuse of discretion but
review the trial court’s application of the law to the facts de novo. Id. Our
deferential review of the trial court’s factual determinations also applies to the trial
court’s conclusions regarding 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); Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We
review mixed questions of law and fact that do not turn on credibility and
demeanor, as well as purely legal questions, de novo. State v. Woodard, 341
S.W.3d 404, 410 (Tex. Crim. App. 2011).

2. Probable cause generally

The Fourth Amendment mandates 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.” See U.S. Const.
amend. IV. Probable cause exists for Fourth Amendment purposes when, “under
11
the totality of the circumstances, there is a fair probability or substantial chance
that contraband or evidence of a crime will be found at the specified location.”
Bonds v. State, 403 S.W.3d 867, 873 (Tex. Crim. App. 2013); see also State v.
Duarte, 389 S.W.3d 349, 354 (Tex. Crim. App. 2012); Illinois v. Gates, 462 U.S.
213, 238-39 (1983). In other words, there must be “a sufficient nexus between
criminal activity, the things to be seized, and the place to be searched.” Bonds, 403
S.W.3d at 873.

When reviewing a magistrate’s decision to issue a warrant, appellate courts
apply a highly deferential standard of review because of the constitutional
preference for searches conducted pursuant to a warrant over warrantless searches.
State v. McLain, 337 S.W.3d 268, 271-72 (Tex. Crim. App. 2011). This is a
flexible, non-demanding standard. Duarte, 389 S.W.3d at 354. The duty of
reviewing courts is to ensure a magistrate had a substantial basis for concluding
that probable cause existed. Id. Reviewing courts must give great deference to a
magistrate’s probable cause determination, including a magistrate’s implicit
finding. McLain, 337 S.W.3d at 271-72. 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. Duarte, 389 S.W.3d at 354. When in
doubt, reviewing courts should defer to all reasonable inferences a magistrate
could have made. Rodriguez v. State, 232 S.W.3d 55, 61 (Tex. Crim. App. 2007).
Reviewing courts should not invalidate a warrant by interpreting an affidavit in a
hyper-technical rather than commonsense manner. Id. at 61 n.25; McLain, 337
S.W.3d at 271-72. In determining whether an affidavit provides probable cause to
support a search warrant, an issuing court and a reviewing court are constrained to
the four corners of the affidavit. McLain, 337 S.W.3d at 271-72.

12
 3. The Samsung phone

Under the Fourth Amendment, law enforcement may not embark on “a
general, evidence-gathering search” of a cell phone for personal information. See
State v. Granville, 423 S.W.3d 399, 412 (Tex. Crim. App. 2014); see also Butler v.
State, 459 S.W.3d 595, 601 n.3 (Tex. Crim. App. 2015) (acknowledging that both
the United States Supreme Court and the Texas Court of Criminal Appeals have
recognized that cell phone users have a reasonable expectation of privacy in
content of their cell phones). Searches of a cellular telephone or other wireless
communications device under Texas law are governed by a specific provision of
the Code of Criminal Procedure. See Tex. Code Crim. Proc. art. 18.0215. To
search a person’s cell phone after a lawful arrest, a peace officer must submit an
application for a warrant to a magistrate. Id. art. 18.0215(a). The application must
“state 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); see also State v. Baldwin, ---S.W.3d---, 2022 WL 1499508, at
*8 (Tex. Crim. App. 2022). As this court has also stated, an affidavit offered in
support of a warrant to search cell phone contents must usually include facts that a
cell phone was used during the crime or shortly before or after. 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) (citing Walker v. State, 494 S.W.3d 905, 908-09 (Tex.
App.—Houston [14th Dist.] 2016, pet. ref’d); Humaran v. State, 478 S.W.3d 887,
893-94 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d)).

A probable cause affidavit supporting a cell phone search must contain
evidence of the requisite nexus with more than mere conclusory allegations. For

13
example, the Court of Criminal Appeals recently held that generic, boilerplate
language about cell phone use among criminals is not alone sufficient to establish
probable cause to search a cell phone. Baldwin, 2022 WL 1499508, at *11. The
court explained:

Instead, specific facts connecting the items to be searched to the
alleged offense are required for the magistrate to reasonably
determine probable cause. To hold otherwise would condone the
search of a phone merely because a person is suspected to have
committed a crime with another person. Put another way, all parties
suspected of participating in an offense would be subject to having
their cell phones searched, not because they used their phones to
commit the crime, but merely because they owned cell phones.
Id. In Baldwin, the court held that an insufficient factual nexus existed to search
the suspect’s cell phone when the affidavit supporting the search warrant set forth
merely the officer’s generalized belief, based on his experience and training, that
suspects plan crimes using their phones.6

We will presume without deciding that the seizure of appellant’s phone was
lawful and, in so presuming, we do not reach the merits of appellant’s second
issue. We proceed to appellant’s third issue and consider whether the subsequent

6
In Baldwin, the affidavit provided, in relevant part:
Additionally, based on your Affiant’s training and experience, Affiant knows
from other cases he has investigated and from training and experiences that it is
common for suspects to communicate about their plans via text messaging, phone
calls, or through other communication applications. Further, Affiant knows from
training and experiences that someone who commits the offense of aggravated
assault or murder often makes phone calls and/or text messages immediately prior
and after the crime.
Baldwin, 2022 WL 1499508, at *4.

14
search of the cell phone’s contents was permissible under the Fourth Amendment.7
We conclude it was not.

In today’s case, the probable cause affidavit supporting the warrant to search
the Samsung phone stated:

Your Affiant has been a law enforcement officer for approximately 21
years, and has experience in investigating crimes where cellular
phones and social media have been used to commit offenses. Your
Affiant knows from training and experience that individuals engaged
in criminal activities and the flight therefrom, often use cell phones
and social media to communicate. Your affiant is requesting a search
warrant be issued to “download” Jamin Stocker’s cellular phone in an
attempt to discover any electronic data, including deleted data,
associated with the shooting of . . . the victim related to the aggravated
assault he was charged in.
The remainder of the affidavit contains nothing about a cell phone being used
before, during, or after the charged offense. In fact, the affidavit does not mention
the offense of capital murder. The offenses described in the affidavit are those for
which appellant was not tried and convicted here. There simply are no facts within
the four corners of the affidavit that tie appellant’s Samsung phone to any offense,
much less the charged offense of capital murder.

The affidavit in today’s case is notably weaker than the one considered and
rejected in Baldwin. Considering the four corners of the document, we conclude
that the affidavit contains insufficient particularized facts to have allowed the
magistrate to determine probable cause for a warrant to search appellant’s
Samsung phone for two reasons: (1) the affidavit does not describe the murder,
and (2) it presents no factual nexus between the phone and the murder. See
Baldwin, 2022 WL 1499508, at *11-12. It is difficult to see how the affidavit

7
Appellant had a legitimate expectation of privacy in the contents of his cell phone. See
Granville, 423 S.W.3d at 408.

15
could sufficiently articulate a factual nexus between the Samsung phone and the
criminal activity described in the affidavit when the affidavit does not describe the
criminal activity at issue—the November capital murder. Moreover, the affidavit
does not contain any facts suggesting that appellant used his phone during the
crime or shortly before or after. See Diaz, 604 S.W.3d at 603. The trial court erred
in denying appellant’s motion to suppress the evidence obtained from the search of
appellant’s Samsung phone.

4. The erroneous admission of the Samsung phone evidence harmed
appellant.

We next consider whether the trial court’s error in admitting the Samsung
phone evidence harmed appellant. Because the error implicates the right to be free
of unreasonable searches under the U.S. Constitution, we must conduct a
constitutional harm analysis. See Hernandez v. State, 60 S.W.3d 106, 108 (Tex.
Crim. App. 2001). We must reverse unless we determine beyond a reasonable
doubt that the error did not “contribute” to appellant’s conviction or punishment.
See Tex. R. App. P. 44.2(a); Wells v. State, 611 S.W.3d 396, 410 (Tex. Crim. App.
2020). Accordingly, we focus “not upon the perceived accuracy of the conviction
or punishment, but upon the error itself in the context of the trial as a whole, in
order to determine the likelihood that it genuinely corrupted the fact-finding
process.” Snowden v. State, 353 S.W.3d 815, 819 (Tex. Crim. App. 2011). We do
not consider “‘whether the jury verdict was supported by the evidence,’” but rather
the question is the likelihood that the constitutional error was actually “‘a
contributing factor in the jury’s deliberations in arriving at that verdict.’” Wells,
611 S.W.3d at 410 (quoting Scott v. State, 227 S.W.3d 670, 690 (Tex. Crim. App.
2007)). We are to calculate as much as possible the probable impact of the error
on the jury in light of the existence of other evidence. Id. A ruling that an error is

16
harmless is, in essence, an assertion that the error could not have affected the jury.
Id.

In making this determination, factors to consider include the nature of the
error (e.g., erroneous admission or exclusion of evidence, objectionable jury
argument, etc.), whether the error was emphasized by the State, the probable
implications of the error, and the weight the jury would likely have assigned to the
error in the course of its deliberations. Wells, 611 S.W.3d at 410 (citing Snowden,
353 S.W.3d at 822). This list is not exhaustive, and the reviewing court must take
into account any and every circumstance apparent in the record that logically
informs an appellate determination whether “‘beyond a reasonable doubt [that
particular] error did not contribute to the conviction or punishment.’” Snowden,
353 S.W.3d at 822 (quoting Tex. R. App. P. 44.2(a)).

a. The evidence

The State introduced several exhibits containing evidence downloaded from
appellant’s phone and also called an HPD officer, Detective Sergeant Michael
Burrow, to discuss the relevance of the proffered exhibits. The State introduced
the following evidence recovered from appellant’s phone (1) between the August
and November shootings, and (2) between the November shooting and appellant’s
arrest in January 2018:

First Period

• text messages, in which appellant said, “I ended up having to shoot a
guy and I had to leave Texas for awhile. . . . Cops looking for me. . . .
Laws still looking 4 me. . . . They had my picture on the news. . . .
Had to shoot a guy. . . .”
• Internet history showing that appellant researched “fugitives crossing
state lines.”

17
 • Internet history showing that appellant read news articles about the
August shooting and articles about appellant being a wanted fugitive.
• Internet history showing that appellant researched how to “get gun
residue off hands” and how to “alter fingerprints temporarily.”
• Internet history showing that appellant researched the judge and
personnel at the court to which the August aggravated assault charge
was assigned, as well as the status of the case.
• Internet history showing “a lot of searches on SWAT,” including
searches of specific SWAT officers.

Second Period

• Internet history showing that appellant searched for and read news
articles regarding Tapp’s murder, including an article written the day
after the November shooting titled “Man Found Shot Dead Near
Southwest Freeway,” and that appellant searched for information
regarding the HPD Criminal Apprehension Team.
• Internet history showing that appellant searched his warrant status one
month after the shooting.
• Internet history showing that appellant searched how to “delete your
location history.”

b. Application

The nature of the error was the erroneous admission of evidence from the
Samsung phone. Much of the evidence recovered from appellant’s phone
corroborated his role as the shooter in August (and his subsequent flight from the
scene), which was never seriously in dispute, and thus the evidence has little
additional probative value as to that issue. But the State also sought to prove the
underlying crime of retaliation or obstruction, and the evidence obtained from his
phone was highly probative of that offense and necessary to convict appellant of
capital murder. See Tex. Penal Code §§ 19.03(a)(2), 36.06(a). The State pointed
to the evidence that appellant knew that law enforcement considered him a suspect
in the August shooting, as grounds to argue that appellant knew Tapp’s status as a
18
prospective witness and that appellant had a motive to later kill or “silence” Tapp.
Sergeant Burrow testified that the evidence was significant to HPD’s investigation:
“He knew that Brent had reported to the police and knew [Tapp] was a witness in
the case and [appellant] knew the charges had been filed.”

The cell phone evidence also strengthened the State’s theory that appellant
was the November shooter. The evidence that appellant searched news articles of
Tapp’s murder the day after the shooting—when considered along with the
properly admitted8 location data from T-Mobile placing appellant near the crime
scene on the morning of and the day after the shooting and the purportedly
deliberate absence of location data on the night of the shooting—was important to
the State’s case. One of the key disputes was identity—there was no eyewitness to
the November shooting, and so the State needed to connect appellant to the
shooting with as much circumstantial evidence as possible. To be sure, the fact
that a bullet recovered from Tapp’s body matched a gun owned by appellant was
significant in tying appellant to the crime. But the cell phone evidence also
showed that appellant was searching for news coverage of the shooting, giving rise
to an inference that he was gauging whether police knew of his involvement.
Sergeant Burrow testified that appellant’s search for news articles stood out to him
because “the victim is not identified in that shooting. . . . So it’s an ambiguous
story that’s not really flashy or high profile, yet [appellant] searched for it and
saved it in his phone.”

The cell phone evidence was not cumulative of other evidence. The State
did not present other evidence that appellant was concerned about law
enforcement’s suspicion of his role in both the August and November shootings.
The State relied on the phone to demonstrate appellant’s attempts to hide or

8
See infra Part B.5.

19
destroy inculpatory evidence, as indicated by his Internet searches for how to
remove gun residue, how to alter his fingerprints, and how to delete his location
history, none of which was shown through other means.

The State emphasized the importance of the Samsung phone evidence during
closing arguments:

And what does he do immediately after? I mean immediately
after? He goes to sleep and then he immediately begins researching
news articles about a man fatally shot near a homeless camp under the
Southwest Freeway. Pretty odd thing to look up.
First thing you do when you wake up, first thing you do when
you get onto your phone is search for things like that. The only way
he’s searching for it is because he knows it’s happened. How does he
know it’s happened? Because he’s the one who did it.
There’s no communications on his phone either in the records
themselves or the phone device itself, there is none of it. The reason
he needed to look for those things is because he was the one out there
killing Brent that night. It’s the only reason it’s there. It’s the only
reason he’s doing it. It’s not a guess, it’s not speculation, it’s a fact.

The overall strength of the State’s case, absent the cell phone evidence, was
fairly strong. The facts that appellant previously shot Tapp at the same location
and that a recovered bullet matched appellant’s gun constituted strong evidence of
guilt. But the State needed to prove not only that appellant was the culprit, but also
that he committed the offense in retaliation or obstruction. See Tex. Penal
Code §§ 19.03(a)(2), 36.06(a). The State’s reliance on the cell phone evidence to
prove that element is clear from closing arguments: “Then there’s some more here
[in the jury charge] about you have a reasonable doubt to whether he committed
any offense, it’s a not guilty. Sure. You should not have any reasonable doubt.
This was Jamin Stocker. You saw his phone, you saw his phone location data, you
saw that it came from his 45.” (Emphasis added). The State’s repeated emphasis

20
on the erroneously admitted evidence weighs in favor of a finding of harm. See
Snowden, 353 S.W.3d at 822.

The implication of the error is that the jury heard, in appellant’s own words
despite not testifying, that he admitted to shooting Tapp in August and that he was
concerned about the warrant for his arrest. Suppressing the evidence pertaining to
appellant’s alleged retaliation motive would have vitiated a central argument made
by the State relating to appellant’s motive, and thus this evidence weighs in favor
of a finding of harm. See Chung v. State, 475 S.W.3d 378, 389 (Tex. App.—Waco
2014, pet. ref’d) (error in admitting evidence, which supported State’s “central
argument” at punishment, was harmful).

The jury likely placed great weight upon the cell phone evidence, especially
in conjunction with the ballistics evidence from the November shooting, in
reaching its ultimate finding that appellant was guilty of capital murder. The State
presented the evidence through three exhibits, comprising nearly sixty pages, and
through the testimony of Sergeant Burrows, who was the State’s last witness
before resting and who testified for most of the last day of a four-day trial.

In sum, the cell phone evidence “helped the State paint a clearer picture” of
appellant’s role in and motive for the November shooting, and that is precisely
what the State argued to the jury. Oliver v. State, No. 14-13-00957-CR, 2015 WL
1933389, at *7 (Tex. App.—Houston [14th Dist.] Jan. 22, 2015, pet. ref’d) (mem.
op., not designated for publication). The cell phone evidence more convincingly
connected appellant, as opposed to some other unnamed assailant, to the fatal
shooting of Tapp in November 2017. The cell phone evidence was “important in
the context of the entire trial.” Id. (internal quotation omitted).

While the State presented other evidence suggesting appellant’s guilt, after
viewing the entire record, we cannot determine beyond a reasonable doubt that the
21
erroneous admission of the cell phone evidence did not contribute to appellant’s
conviction for capital murder. See id. at *8 (erroneous admission of text message
connecting appellant, as opposed to another party, to offense—while “not
necessarily ‘essential’” to the State’s case—nonetheless was harmful because of
the likely effect it had on jury’s deliberations); Chung, 475 S.W.3d at 389. We
sustain appellant’s third issue.

5. The cell site location information

Although we are reversing the judgment and remanding the case, we will
address appellant’s additional evidentiary challenges that would likely arise during
a retrial, in the interest of judicial economy and because the parties have briefed
them. See Fox v. State, 115 S.W.3d 550, 565 (Tex. App.—Houston [14th Dist.]
2002, pet. ref’d) (after holding new trial warranted due to erroneous exclusion of
sexual-abuse allegations, court of appeals considered appellant’s additional
evidentiary complaints that were likely to recur on retrial); Tissier v. State, 792
S.W.2d 120, 124-25 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d) (after
remanding for new trial, court of appeals considered appellant’s evidentiary
admissibility issue that was likely to recur on retrial); see also Cook v. State, 940
S.W.2d 623, 627-28 (Tex. Crim. App. 1996) (addressing admissibility of evidence
in the event of a retrial); Ramirez v. State, 815 S.W.2d 636, 640, 645 (Tex. Crim.
App. 1991); Cuadros-Fernandez v. State, 316 S.W.3d 645, 658 (Tex. App.—
Dallas 2009, no pet.); Jordan v. State, 1 S.W.3d 153, 158 (Tex. App.—Waco 1999,
pet. ref’d) (remanding for new trial but addressing additional issues likely to arise
on retrial).

In his fourth issue, appellant argues that the trial court erred in denying his
motion to suppress evidence obtained from T-Mobile regarding the cell site
location information associated with appellant’s cell phone number.

22
 The United States Supreme Court has made clear: “Before compelling a
wireless carrier to turn over a subscriber’s [cell-site location information], the
Government’s obligation is a familiar one—get a warrant” supported by probable
cause. Carpenter v. United States, 138 S. Ct. 2206, 2221 (2018). In Texas,
searches to obtain electronic customer data held in electronic storage must comply
with Code of Criminal Procedure article 18B.354. See Tex. Code Crim. Proc.
art. 18B.354. To obtain such data from a provider of an electronic
communications service, a peace officer must submit an application for a warrant
to a district judge. Id. art. 18B.354(a). The application must provide “sufficient
and substantial facts to establish probable cause that: (1) a specific offense has
been committed; and (2) the electronic customer data sought: (A) constitutes
evidence of that offense or evidence that a particular person committed that
offense; and (B) is held in electronic storage by the service provider on which the
warrant is served under Article 18B.355(c).” Id. art. 18B.354(b).

The Court of Criminal Appeals recently considered whether cell site location
information relevant to a capital murder charge was obtained in violation of Texas
Constitution article I, section 9. Holder v. State, 595 S.W.3d 691 (Tex. Crim. App.
2020). In Holder, the court adopted the Supreme Court’s reasoning in Carpenter
and applied it to article I, section 9. Id. at 701. The court ultimately concluded
that, to comply with article I, section 9, a search of the defendant’s cell site
location information had to be supported by probable cause to be reasonable
(absent an applicable exception to the warrant requirement). Id. at 704. There, the
relevant document offered in support of probable cause stated: “[t]he cellular
telephone was used by a possible suspect to communicate with unknown persons
and obtaining the locations of the handset will allow investigators to identify if this
suspect was in the area at the time of the offense and will provide investigators

23
leads in this case.” Id. at 704 n.27. Notably, the State in Holder conceded, and the
court agreed, that this assertion was alone insufficient to support a probable cause
finding. Id. at 704. Holder is consistent with the Fourth Amendment probable
cause framework, which requires a factual indication or reasonable inference
establishing a fair probability or substantial chance that evidence of a crime will be
found at the specified location. E.g., Bonds, 403 S.W.3d at 873. The supporting
document in Holder articulated an intent to conduct a search more akin to general
evidence-gathering. But a mere desire to learn the movements or location of a
suspect is not sufficient probable cause to obtain cell site location information from
a suspect’s wireless carrier. There must be some factual basis in the affidavit
providing a fair probability that law enforcement could expect to find inculpatory
location information evidence from the carrier indicating that a specific person
committed a particular offense.

The probable cause affidavit for the warrant to obtain the cell site location
information associated with appellant’s cell phone number stated:

I, M. Condon, a peace officer employed by the Houston Police
Department do solemnly swear that I have reason to believe and do
believe that electronic customer data held in storage by T-Mobile
constitutes evidence of the offense of Murder and Aggravated Assault,
which is more particularly described as, but not limited to electronic
customer data as defined by Texas Code of Criminal Procedure
(T.C.C.P) Chapter 18.B and is held in electronic storage by the service
provider on which the warrant is served T-Mobile[.] Said information
includes any and all addressing and routing information and/or
transactional data including any and all location information used
while accessing said services and is not limited in scope by company
specific nomenclature, relative to [xxx-xxx-xxxx]. . . .
Affiant also learned during his investigation that the homeless
victim shot in the August 22, 2017 aggravated assault that Stocker
was identified and charged with was murdered on November 7, 2017
in the same location and about the same time as the original

24
aggravated assault shooting. Affiant learned from the report that
firearms evidence (casings and projectile) was recovered at the
murder scene and indicated a .45 caliber handgun was used in the
murder. Affiant learned from HPD report supplements authored by
HPD Homicide Sgt. M. Burrow in report 1408397-17 that Stocker
was arrested in February of 2016 with a 9mm and .45 caliber
handguns in HPD report #0203922-16. Affiant also learned from the
supplements that in June of 2017 Stocker recovered his 9mm and .45
caliber handguns from the HPD property room. Those two handguns
were test fired and the test fires were retained by the HPD Ballistics
Laboratory. Affiant further learned from ballistics reports that the
HPD Ballistics Laboratory compared those test fires with the firearms
evidence recovered from the homeless victim murder on November 7,
2017. Affiant learned from the ballistics reports that Stocker’s .45 test
fires conclusively matched to the firearms evidence recovered from
the murder. Further, Affiant learned in Sgt. Burrow’s supplements
that in January of 2018, Stocker was arrested for a bond violation on
the aggravated assault case and the bounty hunter who arrested him
found a .45 caliber handgun on his person and turned it in to the
Harris County Sheriff’s Office Jail while turning Stocker in to the jail.
Affiant also learned from the reports that the serial number of the .45
matched the test fires to the physical .45 caliber handgun that Stocker
was arrested with. . . .
Your Affiant has been a law enforcement officer for
approximately 23 years, and has experience in investigating crimes
where cellular phones and social media have been used to commit
offenses. Your Affiant knows from training and experience that
individuals engaged in criminal activities and the flight therefrom,
often use cell phones and social media to communicate, research the
crime before, during and after it happens, and use it to flee. Affiant
knows from training and experience that individuals engaged in
activities described herein often use cellular phones and social media
to communicate in furtherance of criminal activity. Affiant knows
from past experience as well that cellular phone and internet service
providers maintain records - including subscriber information,
customer use and account information, call detail information, cell site
location information, geo-location information, and internet protocol
(IP) logs, as part of their normal course of business.

25
 Based on the aforementioned probable cause, Affiant believes
that information will be found within the records maintained by T -
Mobile pertaining to identifier cell number [xxx-xxx-xxxx] that
constitute evidence of Murder and Aggravated Assault. Affiant
believes the phone records will reveal the locations of the phone prior
to, during, and after the shooting of the people listed above as well as
those people defendant Jamin Stocker communicated with prior to,
during, and after the shootings who may [have] information related to
the investigation that are unknown to law enforcement. Affiant also
believes that the records from Jamin Stocker’s phone before, during,
and after the shootings can help investigators provide insight into his
habits, motives, and intentions which could also provide leads as to
the plans in relation to each of the shootings and any flights from the
shootings. Therefore Affiant is requesting data for Jamin Stocker’s
phone between the dates of April 1, 2015 through January 10, 2018.

Considering the four corners of the affidavit, we conclude that it contains
sufficient factual assertions from which the district judge could reasonably
determine there was a fair probability that the location data relating to appellant’s
phone would provide evidence of the murder described in the affidavit and that
appellant committed the murder. Although the affidavit does contain some
conclusory statements, it also includes additional facts establishing the requisite
nexus between the murder and the electronic records to be searched. In particular,
the affidavit contains facts conclusively linking appellant to the murder weapon—a
handgun—thereby connecting appellant to the specific location of the murder.
Thus, the facts contained in the affidavit give rise to a fair probability that a search
of T-Mobile’s cell site location information associated with appellant’s phone
would reveal inculpatory evidence that a particular person, appellant, committed
the murder because the location of his Samsung phone would be placed at or near
the murder scene at the relevant time. See Martinez v. State, ---S.W.3d---, 2022
WL 3904699, at *9-10 (Tex. App.—San Antonio Aug. 31, 2022, no pet. h.)
(holding magistrate had substantial basis for concluding probable cause existed to

26
support warrant to conduct search historical cell site data for defendant’s cell
phone); Bowden v. State, No. 08-19-00057-CR, 2021 WL 3661163, at *9-10 (Tex.
App.—El Paso Aug. 18, 2021, pet. ref’d) (mem. op., not designated for
publication) (affidavit included eyewitness account of neighbor who said person
matching defendant’s description entered the victim’s apartment near the time of
the murder; sufficient probable cause to obtain T-Mobile records); Parker v. State,
No. 03-19-00293-CR, 2021 WL 1567882, at *5-6 (Tex. App.—Austin Apr. 22,
2021) (mem. op., not designated for publication), aff’d, ---S.W.3d---, 2022 WL
2963533 (Tex. Crim. App. 2022) (affidavit contained sufficient facts connecting
defendant to Oregon offense to support probable cause to obtain cell site location
records from carrier); accord, e.g., Carpenter, 138 S. Ct. at 2218 (“[A] cell
phone—almost a feature of human anatomy—tracks nearly exactly the movements
of its owner. . . . [People] compulsively carry cell phones with them all the time.”)
(internal citation and quotation omitted); Riley v. California, 573 U.S. 373, 395
(2014) (“Now it is the person who is not carrying a cell phone, with all that it
contains, who is the exception. According to one poll, nearly three-quarters of
smart phone users report being within five feet of their phones most of the time.”)
(emphasis added). This is sufficient to show “some quantum of individualized
suspicion” to justify a search of T-Mobile’s location data. Carpenter, 138 S. Ct. at
2221 (internal quotation omitted).

We also note that the affidavit is consistent with Texas’s statutory
requirements because it includes “sufficient and substantial facts” to have allowed
the judge to determine probable cause to search T-Mobile’s cell site location
information associated with appellant’s phone number. See Tex. Code Crim. Proc.
art. 18B.354(b). The affidavit states that a specific offense had been committed,
specifically the November 2017 murder. Id. art. 18B.354(b)(1). The affidavit

27
describes the electronic customer data sought, specifically “any and all location
information.” Id. art. 18B.354(b)(2). The affidavit establishes probable cause that
the cell site location information would constitute evidence that appellant
committed the offense because it contains facts linking appellant to the murder
weapon. Id. art. 18B.354(b)(2)(A). And finally, the affidavit states that the
location data is held in electronic storage by T-Mobile. Id. art. 18B.354(b)(2)(B).

The trial court did not err in denying appellant’s motion to suppress
evidence obtained from the search of T-Mobile’s records, and we overrule his
fourth issue.

6. Evidence seized from the townhouse

In his first issue, appellant argues that the trial court erred in denying his
motion to suppress evidence seized from the townhouse following the August
shooting. Appellant contends: (1) Officer Clopton’s affidavit supporting the
August aggravated assault arrest warrant contained a material misstatement and
thus lacked probable cause; and (2) entry into the townhouse was “improper as
appellant was not present” on the premises.

a. Misstatement in the affidavit

An arrest warrant affidavit must provide the magistrate with sufficient
information to support an independent determination that probable cause exists for
the warrant. Duarte, 389 S.W.3d at 354. Probable cause exists when the facts and
circumstances within an officer’s personal knowledge and of which he has
reasonably trustworthy information are sufficient to warrant a person of reasonable
caution in the belief that, more likely than not, a particular suspect has committed
the crime. Muniz v. State, 851 S.W.2d 238, 251 (Tex. Crim. App. 1993). The test
is whether a reasonable reading of the supporting affidavit provides a substantial

28
basis for the magistrate’s conclusion that probable cause existed. Duarte, 389
S.W.3d at 354.

A criminal defendant may challenge the truthfulness of factual statements
made in a probable cause affidavit. Franks v. Delaware, 438 U.S. 154, 171-72
(1978). Under Franks, a warrant must be voided—and any evidence obtained
pursuant to the warrant suppressed—if (1) the defendant can establish by a
preponderance of the evidence that the affidavit supporting the warrant contains a
material misstatement that the affiant made knowingly, intentionally, or with
reckless disregard for the truth, and (2) excising the false statement, the affidavit’s
remaining content is insufficient to establish probable cause. Id. at 155-56; see
also Janecka v. State, 937 S.W.2d 456, 462 (Tex. Crim. App. 1996).

According to appellant, the probable cause affidavit misstated the
complainant’s last name as “Green” instead of “Tapp.” Appellant contends:

The probable cause statement attested to by Officer Clopton listed the
Complainant [for the August shooting] as Brent Green. This was a
false statement as his name was Brent Tapp. At the least, this
misstatement by Clopton was reckless as he was aware prior to
swearing to the statement that his partner, Officer Harris, while with
Clopton, had tried to pull up Brent Green [on a computer search] and
was unable to do so.
In appellant’s view, this misstatement undermined Officer Clopton’s assertion in
the affidavit that Tapp was reliable and credible.

At the pretrial suppression hearing on this issue, Officer Clopton testified
that he did not learn that Tapp had given him a false name until after he had
obtained the arrest warrant. Officer Clopton said that, in his experience, it was not
uncommon for people to give a false name to police, but that such people may still
be credible and reliable, as he considered Tapp to be. Officer Clopton had no
reason to doubt Tapp’s credibility because Officer Clopton personally observed
29
that Tapp had suffered a gunshot wound to his leg, which aligned with the events
described by Tapp that Clopton included in the probable cause affidavit.

The reliability of the affiant and his sources of information are part of the
totality of the circumstances that the magistrate should evaluate in making a
probable cause determination. Johnson v. State, 803 S.W.2d 272, 289 (Tex. Crim.
App. 1990), overruled on other grounds by Heitman v. State, 815 S.W.2d 681
(Tex. Crim. App. 1991). “[W]here a crime victim, who is a private citizen, reports
the commission of a criminal offense, and whose only contact with law
enforcement authorities is a result of having been victimized at the hands of
another, the credibility and reliability of the information is inherent.” Nelson v.
State, 855 S.W.2d 26, 30 (Tex. App.—El Paso 1993, no pet.). Therefore, in
making a probable cause determination, a magistrate is entitled to rely on source
information supplied by a victim eyewitness without an independent showing of
reliability. Id.; see also Gonzales v. State, 481 S.W.3d 300, 308 (Tex. App.—San
Antonio 2015, no pet.).

As the victim of the reported crime, Tapp was inherently reliable. Nelson,
855 S.W.2d at 30. Further, Officer Clopton testified that he was unaware of the
inaccuracy in Tapp’s last name until after the warrant was signed and issued. The
trial court could have reasonably concluded that Officer Clopton did not include
the inaccuracy in the affidavit deliberately or with a reckless disregard for the
truth. See Franks, 438 U.S. at 171-72; see also Warren v. State, No. 03-11-00343-
CR, 2014 WL 1207986, at *7 (Tex. App.—Austin Mar. 20, 2014, pet. ref’d) (mem.
op., not designated for publication) (inclusion of wrong name in affidavit was not
made with the type of knowledge, intent, or recklessness contemplated by Franks:
“In fact, appellant never established that Detective Pergande was aware that his
statement concerning the name on the water account was incorrect at the time he

30
included the statement in his affidavit. Detective Pergande testified that he only
found out about the error two days after obtaining the warrant.”).9

Finally, the misidentification of the complainant as “Brent Green,” instead
of Brent Tapp, was not material to establish probable cause. It was reasonable for
the magistrate to conclude, under the totality of the circumstances presented within
the four corners of the affidavit, that there was probable cause to suspect appellant
of aggravated assault, despite the complainant providing an incorrect last name to
the officer. Hyland v. State, 574 S.W.3d 904, 911 (Tex. Crim. App. 2019) (we
defer to the magistrate’s finding of probable cause if, under the totality of the
circumstances, the affidavit shows a substantial basis for the conclusion).

b. Not present on premises

In the next part of his first issue, appellant argues that, notwithstanding the
legality of the arrest warrant, the search of the townhouse was “improper” because
appellant told the hostage negotiator that he was not present on the premises.
Appellant does not cite any legal authority for this proposition, but it is well-
established that a law enforcement officer who executes an arrest warrant at a
private residence must have a reasonable belief that the suspect resides at the place
to be entered and have reason to believe that the suspect is present at the time the
warrant is executed. See Payton v. New York, 445 U.S. 573, 601-05 (1980);
Morgan v. State, 963 S.W.2d 201, 204 (Tex. App.—Houston [14th Dist.] 1998, no
pet.). When executing an arrest warrant, officers may seize evidence in plain view.

9
The Fourth Amendment requires a truthful factual showing when determining probable
cause. See Franks, 438 U.S. at 164-65. “Truthful,” however, does not mean that every fact
recited in the affidavit must be precisely accurate, “for probable cause may be founded upon
hearsay and upon information received from informants, as well as upon information within the
affiant’s own knowledge that sometimes must be garnered hastily.” Id. at 165. Rather,
“truthful” in this context means that the information put forth in the affidavit is believed or
appropriately accepted by the affiant as true. Id.

31
Jones v. State, 568 S.W.2d 847, 857 (Tex. Crim. App. 1978) (upholding admission
of evidence seized during the execution of an arrest warrant because the arrest
warrant authorized entry into the appellant’s apartment, the officers’ intrusions into
the bathroom and bedroom were justified, and the items seized were in plain view
in those areas); Collins v. State, 462 S.W.3d 617, 622-23 (Tex. App.—Fort Worth
2015, no pet.) (officers were authorized to seize evidence in plain view in the
defendant’s bedroom while they were executing arrest warrants).

Tapp told responding officers that he had been shot by someone standing on
the second-floor balcony of the townhouse. Officer Harris testified that he “had
the Command Center run that address. Command Center ran the address [of the
townhouse] and they had a name associated to that address,” which was appellant’s
name. HPD officers testified during the suppression hearing that there was a light
on in the townhouse and a car parked in the driveway. One of the SWAT officers
said that the HPD patrol officers established a perimeter as quickly as possible and,
prior to that, “they did not see the suspect flee so [their] assumption is he’s still
inside.” The same SWAT officer admitted that appellant said that he was not
present in the townhouse, but the officer explained that SWAT’s policy is not to
believe such statements: “We’ve been told many times by suspects on phones that
they’re not inside and we found out later that they are inside.”

Based on these facts, the trial court reasonably could conclude that the
officers executing the arrest warrant believed that appellant was inside the
townhouse. See Morgan, 963 S.W.2d at 204; see also, e.g., Rice v. State, No. 01-
02-00094-CR, 2003 WL 1342605, at *5 (Tex. App.—Houston [1st Dist.] Mar. 20,
2003, pet. ref’d) (mem. op., not designated for publication) (officers had evidence
from public records that suspect lived at the address and were told by two people
outside the house that appellant was inside; court held that this was sufficient to

32
provide a reasonable belief that appellant resided at and was present in the house at
the time officers executed the warrant).

There being no other challenge to the August search of the townhouse, we
hold that the trial court did not err in denying the motion to suppress. We overrule
appellant’s first issue.10

C. Admission of Evidence

In his sixth issue, appellant argues that the trial court erred in admitting
evidence regarding an “extraneous offense”—i.e., the August shooting. Appellant
argues that the evidence should have excluded under either Rule 403 or Rule 404
of the Texas Rules of Evidence.

1. Standard of review and applicable law

Evidence of a person’s crime, wrong, or other act generally is not admissible
to prove that person’s character in order to show that he acted in conformity
therewith when allegedly committing the charged crime. See Tex. R. Evid. 404(b);
see also Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001); Montgomery
v. State, 810 S.W.2d 372, 386-88 (Tex. Crim. App. 1990) (op. on reh’g). Evidence
of other offenses may, however, be admissible when it is relevant to a fact of
consequence in the case. See Tex. R. Evid. 404(b)(2); Montgomery, 810 S.W.2d at
387-88. For instance, the evidence may be admissible if it tends to establish some
elemental fact, such as identity or intent; tends to establish some evidentiary fact,
such as motive, opportunity, or preparation, leading inferentially to an elemental
fact; or rebuts a defensive theory by showing, e.g., absence of mistake or accident.

10
Because we reject appellant’s arguments against the trial court’s ruling, we need not
address the State’s alternative argument that appellant lacked standing to challenge the search.
See Silva v. State, No. 01-10-00245-CR, 2012 WL 1564541, at *7 (Tex. App.—Houston [1st
Dist.] May 3, 2012, pet. ref’d) (mem. op., not designated for publication); Tex. R. App. P. 47.1.

33
Montgomery, 810 S.W.2d at 387-88; see also Tex. R. Evid. 404(b). If the trial
court determines the offered evidence has relevance apart from or beyond character
conformity, it may admit the evidence and instruct the jury the evidence is limited
to the specific purpose the proponent advocated. Prince v. State, 192 S.W.3d 49,
54 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (citing Montgomery, 810
S.W.2d at 387-88).

But even if a trial court determines that evidence of other crimes or wrongs
is not barred under Rule 404(b), the trial court must still conduct a Rule 403
balancing test upon proper objection or request before admitting the evidence. Id.
at 56; see also Magee v. State, No. 14-16-00408-CR, 2017 WL 2818229, at *7
(Tex. App.—Houston [14th Dist.] June 29, 2017, pet. ref’d) (mem. op., not
designated for publication). Rule 403 authorizes a trial court to exclude relevant
evidence if its probative value is substantially outweighed by a danger of unfair
prejudice, confusion of the issues, misleading the jury, undue delay, or needlessly
presenting cumulative evidence. Tex. R. Evid. 403; Magee, 2017 WL 2818229, at
*7. Here, appellant raised a Rule 403 objection on unfair-prejudice grounds.

Courts should balance the following factors under a Rule 403 analysis:
(1) the strength of the evidence in making a fact more or less probable; (2) the
potential of the extraneous offense evidence to impress the jury in some irrational
but indelible way; (3) the amount of time the proponent needed to develop the
evidence; and (4) the strength of the proponent’s need for this evidence to prove a
fact of consequence. Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App.
1999); Fuentes v. State, No. 14-08-00613-CR, 2009 WL 997508, at *5 (Tex.
App.—Houston [14th Dist.] Apr. 14, 2009, pet. ref’d) (mem. op., not designated
for publication).

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 Because trial courts are best-suited to make the call on these substantive
admissibility questions, an appellate court reviews admissibility rulings under an
abuse of discretion standard. Powell, 63 S.W.3d at 438. This standard requires an
appellate court to uphold a trial court’s admissibility ruling when that decision is
within the zone of reasonable disagreement. Id.

2. Application

The evidence at issue concerned the August 2017 shooting. Prior to trial,
appellant asked the court to limit the State to discussing only the fact that appellant
was indicted for the aggravated assault. The State argued in response that it
needed the evidence of the August shooting to establish appellant’s motive for the
November shooting: “There was a witness, prospective witness, that the victim on
the ag[gravated] assault who is now deceased goes to everything that this case is
about.” The prosecutor believed the evidence was necessary so “the jury can
understand why it is that the defendant two months later came back and made sure
to kill the only witness against him truly in an aggravated assault who identified
him as the person who shot him.”

We agree with the State that the evidence regarding the August 2017
shooting was admissible under Rule 404(b). Sergeant Harris testified that Tapp
was “adamant” that appellant was the person who shot him in the leg in August
2017. Edwards testified that he saw appellant regularly in the area. The record
also makes clear that law enforcement spoke to appellant in the immediate
aftermath of the shooting, thus establishing Tapp’s status as a prospective witness
and appellant’s knowledge of the same. This evidence speaks to appellant’s
possible motive or opportunity in later shooting Tapp in November, which leads
inferentially to certain elemental facts, namely appellant’s identity as the assailant
and appellant’s intent in committing the offense of murder. See Colone v. State,

35
573 S.W.3d 249, 266 (Tex. Crim. App. 2019) (“Although motive is not an element
of murder, it is a circumstance indicative of guilt. A witness’s anticipated
testimony that the defendant committed a prior offense can provide a motive to kill
the witness.”) (internal quotation and footnote omitted).

Based on the record before us, we find that the trial court could have
reasonably concluded the extraneous offense evidence was not offered solely for
character conformity purposes, but was offered to show a material, nonpropensity
issue. See Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011)
(admission of evidence under Rule 404(b) is generally within the zone of
reasonable disagreement and not an abuse of discretion if there is evidence
supporting that an extraneous offense is relevant to a material, nonpropensity
issue).

Next, we address whether the probative value of the extraneous offense
evidence was substantially outweighed by the danger of unfair prejudice. Here, the
evidence of the August shooting was highly probative as it was relevant to show
the contextual background of the November murder. The first factor thus favors
admission. In regard to the second factor, there is nothing in the record or about
the nature of the extraneous offense that would indicate the evidence had the
potential to impress the jury in an irrational and indelible way. The second factor
also favors admission. As to the third factor, the time needed to develop the
evidence, we note that the State presented twenty-one witnesses during its case-in-
chief, nine of whom testified about the August shooting and the immediate
aftermath. While not insignificant, this is not an overwhelming amount of trial
time or number of witnesses. At best to appellant’s perspective, this factor is
neutral. Lastly, because appellant’s identity was a contested issue at trial and
because there were no eyewitnesses to the November shooting, the evidence of the

36
August shooting was at least helpful if not necessary to explain the contextual
background of both shootings, to show that appellant was regularly in the vicinity,
and to establish appellant’s motive. The trial court could have concluded that the
State’s need for the extraneous offense evidence was great, and thus the fourth
factor weighs in favor of admissibility. See, e.g., Colone, 573 S.W.3d at 267-68
(evidence of prior assault was relevant to show motive, did not require an
inordinate amount of trial time, and was necessary for State to link appellant to
murder since appellant wore a mask during charged offense).

We conclude the trial court did not abuse its discretion in determining that
the probative value of the extraneous offense evidence was not substantially
outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403; De La Paz v.
State, 279 S.W.3d 336, 344, 349 (Tex. Crim. App. 2009). We overrule appellant’s
sixth issue.

Conclusion

We reverse the trial court’s judgment and remand for a new trial.

/s/ Kevin Jewell
Justice

Panel consists of Justices Jewell, Bourliot, and Zimmerer.
Publish — Tex. R. App. P. 47.2(b).

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