Affirmed and Memorandum Opinion filed August 29, 2023.
In The
Fourteenth Court of Appeals
NO. 14-22-00331-CR
JEFFERY ANDRE MCDONALD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Cause No. 1599898
MEMORANDUM OPINION
A jury found appellant Jeffery Andre McDonald guilty of murder and found
true appellant’s pleas of “true” to prior felony convictions for (1) delivery of
cocaine and (2) possession with intent to deliver cocaine. See Tex. Pen. Code Ann.
§§ 19.02(b)(1); Texas Controlled Substances Act, Tex. Health & Safety Code Ann.
§ 481.112. The jury assessed punishment at imprisonment for life. See Tex. Pen.
Code Ann. § 12.42(d).
In a two issues on appeal, appellant argues (1) the trial court erred in
denying his motion to suppress the search warrant because it was supported by
probable cause and (2) he was harmed by the introduction of the cell phone
geolocation data. We affirm.
I. BACKGROUND
In 2018, appellant was dating Rebecca “Becky” Suhrheinrich, who lived in
an apartment complex. On July 30, 2018, the apartment complex’s “courtesy
patrol officer” received a welfare call to check on Becky.1 After knocking on the
door and receiving no response, the “courtesy patrol officer” knocked down the
locked door and saw “scattered blood on the wall.” The “courtesy patrol officer”
searched the apartment and did not find Becky.
On July 31, after news coverage of Becky’s disappearance, appellant’s sister
gave detectives information that led them to Greens Bayou Bridge, where they
found Becky’s torso wrapped in a bed sheet under the bridge. Becky’s head, arms,
and legs were dismembered from her torso by what appeared to be a saw. Becky’s
cell phone was later found in the landfill where her apartment complex dumped its
trash.
On August 14, Investigator Crain applied for a search warrant directed at
appellant’s cellular carrier to obtain the call records and geolocation data for
appellant’s cell phone. In the search-warrant affidavit, Investigator Crain swore to
the following:
• Crain spoke with Becky’s employer, Demetria Goode, who told
him that Becky did not show up for work on July 27th or 30th.
Becky last left work at 5:07 p.m. on July 26, 2018, and was
picked up by her boyfriend, known to Ms. Goode only as “Jeff”
or “Jeffrey,” who was driving her black 2018 Ford Escape
SUV.
1
It is unclear from the record if the “courtesy patrol officer” is a peace officer.
2
• Goode contacted Becky’s apartment complex because it was
unlike Becky not to show up for work. The courtesy patrol
officer conducted a welfare check on Becky’s apartment and
discovered the crime scene.
• Crain spoke with Becky’s upstairs neighbor Briana Talford,
whom he found to be credible and reliable. Briana said she
heard loud noises coming from Becky’s apartment the night of
July 26th. Her roommate had also heard a female voice yell,
“Help me!”
• The GPS data for Becky’s cell phone, which Crain lawfully
obtained, showed that at around 8:00 a.m. on July 28, Becky’s
phone was in or near a landfill in Lake Jackson, Texas operated
by the same company that provided trash service to Becky’s
apartment complex.
• Crain learned that appellant had been dating Becky and was the
man who had picked her up from work on July 26th and had
been driving her SUV.
• Crain interviewed Felicia Fuller, who lived in the same
apartment complex as Becky and had previously dated
appellant. She said that appellant visited her apartment on July
30th and was acting “very strange.” She also claimed that
appellant had his cell phone with him when he left her
apartment.
• On July 31st, Crain interviewed appellant’s sister, Roshawnda,
who told Crain that on July 28th, she picked up appellant from
a park and gave him a ride to her sister’s house. There,
appellant acted “very peculiar” and asked Roshawnda for a
Clorox wipe, bleach, and latex gloves. Roshawnda said
appellant poured bleach into two water bottles and asked her to
drive him back to the park. While on the way, appellant asked
her to stop the car; appellant exited the car and walked under
the bridge that crosses Greens Bayou. After a few minutes,
appellant returned, and she drove him to the park. Roshawnda
recognized Becky from a television news report as the woman
appellant had been dating and worried that appellant might be
responsible for Becky’s disappearance. Roshawnda told Crain
that appellant generally owned and used a cell phone.
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• After speaking with Roshawnda, Crain went to the bridge and
discovered a white female’s torso under the bridge wrapped in a
bed sheet. The remains had not yet been identified.
• Crain swore that appellant’s cellular site data records and
geolocation information from the dates of July 1, 2018 to
August 1, 2018 would “constitute evidence of the offense of
Murder.”
• Specifically, Crain claimed that the records “may show contact
with someone who may have been present as a witness at the
time of this murder, and/or have information currently unknown
to law enforcement about this murder.” Additionally, he
asserted the records would show “the calls to and from
[appellant’s] cellular phone during and immediately after the
incident under investigation.”
Appellant filed a motion to suppress the geolocation data from his cell
phone, arguing that the search-warrant affidavit did not provide sufficient facts to
support probable cause. More specifically, appellant argued that Crain’s affidavit:
(1) failed to allege facts indicating that appellant was in possession of his phone
when the offense was committed and (2) did not set out why geolocation
information would be relevant to the investigation.
During the trial, the trial court held a brief hearing on the motion to
suppress. Appellant’s counsel expanded on the second argument:
[W]hen it comes to the [geolocation information, Crain] does not
provide any information within the four corners as to what that is
supposed to show. . . .
What he would have to say is . . . There’s a cell tower. Phones connect
to cell towers. That will give you locations and based upon that we
can determine what the location of that phone’s going to be at
different times. There’s your relevance. And that’s . . . what they want
this evidence for, is to put the phone at the apartment where the
complainant lived and to put the phone in the area where the torso was
found. And that’s what they don’t provide, how you get to that point.
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The trial court rejected appellant’s argument, reasoning:
[I]t sound[s] like he maybe [Crain’s] looking for corroboration as to
whether or not Ms. Fuller was in contact with the defendant on July
30th, may have been a witness to the murder or have information
about the murder. . . . I think it does specify that location that could
show contact with someone who may have been present as a witness
at the time of this murder coupled with the fact that he said the
defendant was in possession of a cellular phone on July 30th, 2018. I
think it gets the State across the hurdle and it’s a fine line . . . And
[geolocation,] I think it’s a common enough used term that I think it
gets us there. . . [T]he way I read this in total I think it’s a close call.
But I think it gets the State there to allow that information to come in
based on the warrant. So I have to deny the motion to suppress and
allow that to come in.
Appellant’s counsel objected and asked for a running objection to the
geolocation evidence from his cell phone; the trial court did not explicitly rule on
his objection. After trial resumed, appellant’s counsel stated, “we have no
objections” when the geolocation data was introduced into evidence by Erin
Havelka, a criminal intelligence analyst. At the beginning of the next day of trial,
and outside the presence of the jury, appellant’s counsel asked the trial court to
clarify for the record that there was a running objection to the geolocation
evidence, “just for purposes of preserving that issue” for appeal. The trial court
remarked:
It was the Court’s understanding that on Ms. Havelka’s testimony in
regards to any location data of any cell phone, was objected to, and
the Court did understand that that objection would be running
throughout the entirety of Ms. Havelka’s testimony, and it was my
opinion that was for expediency’s sake to not object during her
testimony. So, I considered it as having been objected to based on the
conversation we had previously.
Appellant filed a timely notice of appeal.
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II. ANALYSIS
In two issues, appellant contends (1) the trial court erred in denying his
motion to suppress the search warrant because it was supported by probable cause
and (2) appellant was harmed by the introduction of the cell phone geolocation
data.
A. Preservation of error
Before we reach the merits of issue 1, we first address the State’s argument
that appellant failed to preserve the issue for appellate review.
In General. As a prerequisite to presenting a complaint for appellate
review, the record must show that:
(1) the complaint was made to the trial court by a timely request,
objection, or motion that:
(A) stated the grounds for the ruling that the complaining
party sought from the trial court with sufficient
specificity to make the trial court aware of the complaint,
unless the specific grounds were apparent from the
context; and
(B) complied with the requirements of the Texas Rules of
Evidence or the Texas Rules of Civil or Appellate
Procedure; and
(2) the trial court:
(A) ruled on the request, objection, or motion, either
expressly or implicitly; or
(B) refused to rule on the request, objection, or motion, and
the complaining party objected to the refusal.
Tex. R. App. P. 33.1(a).
Here, as outlined above, defense counsel objected—and asked for a running
objection—to the geolocation data from his cell phone. The State cites to a case
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from our court for the proposition that even if a running objection has been
requested, error can still be waived if the party affirmatively states “no objection”
when the evidence is later introduced. See Jones v. State, No. 14-08-00869-CR,
2010 WL 26527, at *2 (Tex. App.—Houston [14th Dist.] Jan. 7, 2010, no pet.)
(mem. op., not designated for publication). However, in Jones, we noted an
exception to that general rule, observing that error is not waived when the trial
court expressly states on the record that it considers the issue to be preserved for
appeal. See id. More importantly, the court of criminal appeals has explained that
whether a statement of “no objection” waives earlier-preserved error is “context-
dependent”:
[A]n appellate court should not focus exclusively on the statement
itself, in isolation, but should consider it in the context of the entirety
of the record. If the record as a whole plainly demonstrates that the
defendant did not intend, nor did the trial court construe, his “no
objection” statement to constitute an abandonment of a claim of error
that he had earlier preserved for appeal, then the appellate court
should not regard the claim as “waived,” but should resolve it on the
merits.
Thomas v. State, 408 S.W.3d 877, 885 (Tex. Crim. App. 2013).
Under the Thomas framework, it is clear appellant did not intend, nor did the
trial court construe, appellant’s statement of “no objection” to constitute an
abandonment of his claim of error regarding the motion to suppress. See id. Having
concluded that appellant did not waive error, we now address issue 1.
B. Standard of review and applicable law
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. See Lerma v. State, 543 S.W.3d 184, 189–90 (Tex.
Crim. App. 2018). At a motion-to-suppress hearing, the trial court is the sole trier
of fact and judge of credibility of witnesses and the weight to be given to their
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testimony. See id. at 190. Therefore, we afford almost complete deference to the
trial court in determining historical facts. See id.; State v. Kerwick, 393 S.W.3d
270, 273 (Tex. Crim. App. 2013). A trial court’s ruling will be sustained if it is
reasonably supported by the record and correct under any theory of law applicable
to the case. Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App. 2003).
However, we review de novo mixed questions of law and fact that do not rely on
an evaluation of credibility and demeanor. See id.
When the trial court does not make explicit findings of fact, as in the case
before us, we view the evidence in the light most favorable to the trial court’s
ruling and assume the trial court made implicit findings of fact supported by the
record. See Lerma, 543 S.W.3d at, 190.
Because a cell phone’s geolocation data can contain “a detailed and
comprehensive record of [a] person’s movements,” the police must obtain a
warrant, supported by probable cause, for seven or more days of such data. See
Carpenter v. United States, 138 S. Ct. 2206, 2217, n.3 (2018); see also Holder v.
State, 595 S.W.3d 691, 703–04 (Tex. Crim. App. 2020) (applying Carpenter to
Tex. Const. art. 1, § 9). The search-warrant 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).” Tex. Code Crim. Proc. Ann. art.
18.0215(c)(5). “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 at a particular location.” State v. Baldwin, 664 S.W.3d 122, 130 (Tex.
Crim. App. 2022), cert. denied, 143 S. Ct. 777 (2023). A reviewing court must
“give great deference to a magistrate’s probable cause determination to encourage
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police officers to use the warrant process.” Id.
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. See State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim.
App. 2011). “While a magistrate may not baselessly presume facts that the
affidavit does not support, the magistrate is permitted to make reasonable
inferences from the facts contained within the affidavit’s ‘four corners.’” Foreman
v. State, 613 S.W.3d 160, 164 (Tex. Crim. App. 2020). However, “conclusory
allegations alone are insufficient to support a finding of probable cause.” Baldwin,
664 S.W.3d at 132. “Ultimately, the test is whether the affidavit, read in a
commonsensical and realistic manner and afforded all reasonable inferences from
the facts contained within, provided the magistrate with a ‘substantial basis’ for the
issuance of a warrant.” Foreman, 613 S.W.3d at 164.
The admission of evidence obtained in violation of the Fourth Amendment is
reviewed for harmless error. See Hernandez v. State, 60 S.W.3d 106, 108 (Tex.
Crim. App. 2001). Under that standard, a conviction must be reversed “unless the
court determines beyond a reasonable doubt that the error did not contribute to the
conviction.” Tex. R. App. P. 44.2(a).
C. Motion to suppress
1. Possession of cell phone immediately before, during, or after the
alleged offense
Appellant relies on Baldwin to claim that the search-warrant affidavit in the
present case was not supported by probable cause because it did not provide any
evidence that appellant possessed his cell phone immediately before, during, or
after the alleged murder. See Baldwin, 664 S.W.3d at 135. However, Baldwin does
not stand for the general proposition that to be supported by probable cause, a
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search warrant affidavit must provide facts that the defendant carried a cell phone
before, during, or after the commission of the alleged crime. Instead, the court in
Baldwin summarized its conclusion as follows:
Is generic, boilerplate language about cell phone use among criminals
sufficient to establish probable cause to search a cell phone? We hold
it is not. Instead, specific facts connecting the items to be searched to
the alleged offense are required for the magistrate to reasonably
determine probable cause. . . .
Id. at 134.
Ultimately, the court in Baldwin concluded that the affidavit in question was
not supported by probable cause because it relied on generic “boilerplate language”
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 court then detailed the affidavit’s lack of facts connecting the cell phone to the
alleged offense:
The affidavit contains nothing about the phone being used before or
during the offense. Suspicion and conjecture do not constitute
probable cause, and “the facts as recited in the affidavit in this cause
evidence nothing more than mere suspicion.” Therefore, the
magistrate erred by substituting the evidentiary nexus for the officer’s
training and experience and generalized belief that suspects plan
crimes using their phones. The boilerplate language in itself is not
sufficient to provide probable cause in this case, nor does the
remaining affidavit set forth details in sufficient facts to support
probable cause. Considering the whole of the affidavit, there is no
information included that suggest anything beyond mere speculation
that Appellee’s cell phone was used before, during, or after the crime.
Id. at 135 (internal quotations omitted).
Months after Baldwin was issued, this court issued Stocker v. State, which is
procedurally similar to the present case. See 656 S.W.3d 887, 899 (Tex. App.—
Houston [14th Dist.] 2022, pet. granted). Stocker was charged with murder and
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filed a motion to suppress site-location information associated with his cell phone.
This court observed that:
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.
Id. at 906–07.
Then, analyzing the probable-cause affidavit for the search warrant, this court
concluded that the affidavit was supported by probable cause:
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.
Id. at 908.
The search-warrant affidavit in the present case is much more akin to the
affidavit we approved of in Stocker than the affidavit in Baldwin. Crain did more
than simply assert boilerplate language concerning how criminals use cell phones.
11
Based on the facts asserted in Crain’s affidavit: Becky was last seen leaving her
place of employment with appellant; appellant’s ex-girlfriend, who lives in the
same apartment complex as Becky, told Crain that appellant was acting strange
when he visited her apartment several days after Becky’s disappearance; on July
28, appellant’s sister picked up appellant from a park and drove him “to her sister’s
home”; after asking his sister for a Clorox wipe, bleach, and latex gloves, appellant
asked her to return him to the park, where appellant then walked under the nearby
bridge; and Becky’s corpse was located under the same bridge.
Stated differently, the test is not whether the State alleged facts showing that
the defendant possessed a cell phone before, during, or after the alleged offense,
but “whether the affidavit, read in a commonsensical and realistic manner and
afforded all reasonable inferences from the facts contained within, provided the
magistrate with a ‘substantial basis’ for the issuance of a warrant.” Foreman, 613
S.W.3d at 164. We conclude that the facts contained in the affidavit give rise to a
fair probability that the wireless carrier’s geolocation information associated with
appellant’s cell phone would reveal inculpatory evidence that a particular person,
appellant, committed the murder because the location of his cell phone would be
placed at or near both the murder scene—Becky’s apartment—and the location
where the torso was recovered—underneath the bridge—at the relevant times.
2. Explanation of geolocation data
Appellant next argues that the affidavit was insufficient because it did not
explain what geolocation data is or how it would connect him to the murder. But
appellant does not cite to any cases that have required a search warrant affidavit to
specifically explain what geolocation data is. Furthermore, in Stocker, this court
concluded (1) the affidavit contained sufficient factual assertions from which the
district judge could reasonably determine there was a fair probability that the
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geolocation data from defendant’s cell phone would provide evidence of the
murder described in the affidavit and (2) the defendant committed the murder,
despite the affidavit not defining geolocation data. See Stocker, 656 S.W.3d at 908.
We also note that the controlling statutory authority for obtaining a search
warrant of geolocation data imposes no requirement of defining geolocation data:
(b) A search warrant may not be issued under this article unless the
sworn affidavit required by Article 18.01(b) provides 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).
Tex. Code Crim. Pro. Ann. art. 18B.354. Thus, like our discussion above, the test
here for probable cause is not guided by whether the State defined geolocation data
in the affidavit, but “whether the affidavit, read in a commonsensical and realistic
manner and afforded all reasonable inferences from the facts contained within,
provided the magistrate with a ‘substantial basis’ for the issuance of a warrant.”
Foreman, 613 S.W.3d at 164.
The search-warrant affidavit in the present case provided substantial facts
establishing that a specific offense had been committed—murder—and that the
electronic data sought constituted evidence of that murder. See Tex. Code Crim.
Pro. Ann. art. 18B.354. Therefore, we conclude that the affidavit provides probable
cause to support issuance of a search warrant. See Baldwin, 664 S.W.3d at 130; see
also Stocker, 656 S.W.3d at 908. Accordingly, the trial court did not err in denying
appellant’s motion to suppress evidence obtained from the search of the cellular
carrier’s records. See Lerma, 543 S.W.3d at 189–90. We overrule issue 1.
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Because we have concluded the trial court did not err, we need not address
issue 2, which addresses harm. Tex. R. App. P. 471.
III. CONCLUSION
We affirm the judgment of the trial court as challenged on appeal.
/s/ Charles A. Spain
Justice
Panel consists of Chief Justice Christopher and Justices Jewell and Spain.
Do Not Publish — Tex. R. App. P. 47.2(b).
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