Sheldon Wilfred Magee v. the State of Texas

Affirmed and Memorandum Opinion filed August 29, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00396-CR

SHELDON WILFRED MAGEE, Appellant

V.
THE STATE OF TEXAS, Appellee

On Appeal from the 434th Judicial District Court
Fort Bend County, Texas
Trial Court Cause No. 19-DCR-088590

MEMORANDUM OPINION

Appellant Sheldon Wilfred Magee appeals his conviction for murder. In five
issues he challenges the admission of text messages and the omission of an
instruction to the jury on voluntariness of consent to search. Concluding appellant’s
consent to search was voluntary, the text messages were admissible, and the trial
court did not err in refusing the requested instruction, we affirm.
BACKGROUND

On August 11, 2019, appellant shot and killed his girlfriend Kiva Herrera in
the parking lot of the Courtyard by Marriott hotel in Sugar Land, Texas. The
shooting was witnessed by Catherine West, the assistant general manager of the
hotel, and two housekeepers at the hotel, Sharnetta Batiste and Shawanda Walker.

Catherine West testified that on August 11, 2019, the day of the offense, she
was notified by a guest that there appeared to be an altercation in the hotel parking
lot. When West went out to investigate, she saw a man and a woman in the parking
lot. The man was sitting in the passenger side of a white four-door car with the door
open. The woman was sitting on the ground in the parking lot facing the hotel.

Concerned by the couple’s demeanor West called 9-1-1. West testified that
the woman appeared scared as she was crying and shaking. West heard the woman
say, “Please don’t do this, Sheldon.” While West was on the phone with the 9-1-1
operator she heard a gunshot. When West heard the shot she turned around and saw
appellant holding a gun.

Sharnetta Batiste testified that she was working on the second floor of the
hotel, looked out the window, and saw a “commotion outside in the parking lot.”
Batiste saw appellant sitting in the passenger seat of a car and the complainant sitting
on the ground. Appellant was holding the complainant by her shirt. The complainant
was trying to get away from appellant but was unable to get very far. Batiste saw
appellant retrieve a gun from the car. Batiste then saw appellant shoot the
complainant. Appellant then “politely walked around her and the car and went to the
back side of the building.”

Shawanda Walker was also working as a housekeeper at the hotel on August
11, 2019. Walker was cleaning on the second floor and smelled popcorn. Walker

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discovered her colleague Batiste popping popcorn and looked out of the window
toward the parking lot. Walker also saw appellant sitting in the car and the
complainant sitting on the ground. Walker called Batiste to the window and they
both watched appellant shoot the complainant.

Officer Eric Dixon of the Sugar Land Police Department testified that he and
his trainee, Officer Fisher, received the dispatch from West’s 9-1-1 call. As Dixon
arrived at the hotel, he saw appellant holding a handgun behind his back standing
over the complainant, who had been shot and was lying on the ground. When
appellant saw the officers approach, he ran away, and as he was running he turned
and pointed the handgun at Dixon. Both appellant and Dixon shot at about the same
time. Neither shot hit anyone. Dixon and Fisher took cover behind parked cars and
ordered appellant to drop his weapon. Rather than drop the weapon appellant held
the gun to his head and fired it. After appellant fired the gun, he collapsed as if he
had been shot; Dixon and Fisher thought appellant had shot himself. After detaining
appellant, the officers determined that he was unharmed.

After appellant’s arrest Officer Gamble read appellant his Miranda 1 rights and
appellant agreed to waive those rights and speak with Gamble. Gamble asked
appellant if he went to the Courtyard by Marriott hotel with the intent to kill the
complainant. Appellant responded, “Yeah.”

Officer Gamble testified that he retrieved a cell phone from the car that was
near the complainant’s body at the scene. The phone in the car belonged to appellant;
Gamble also retrieved the complainant’s phone. Gamble turned over the phones to
Officer Matthew Levan for forensic extraction. Gamble went to the jail August 14,
2019 to obtain consent to search appellant’s phone. Gamble obtained a signed,

1
Miranda v. Arizona, 384 U.S. 436 (1966).

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written consent from appellant to search his phone. Appellant voluntarily gave
Gamble the pass code to his phone and Gamble used the pass code in front of
appellant.

Officer Levan of the Sugar Land Police Department extracted data from three
phones: appellant’s, the complainant’s, and a third party whose car was the one being
used by appellant on the day of the offense. During Levan’s testimony the trial court
admitted exhibits containing images of text messages from the three phones. When
State’s Exhibit 37, containing text messages from appellant’s phone was introduced,
appellant objected to its admission on grounds that the exhibit contained hearsay,
was not sponsored by the “proper custodian of record,” violated the Confrontation
Clause of the United States and Texas Constitutions, and violated “due process.”
Appellant further objected that the probative value of the evidence was exceeded by
its prejudicial effect. Appellant further renewed his earlier objections to the search
of his phone asserting that the search was conducted without consent and without a
valid warrant. Appellant requested and was granted a running objection to the
document containing information extracted from appellant’s phone.

Appellant’s phone contained photographs of the parking lot of the hotel where
the complainant was shot. Those photos were taken the day before the offense. Also
found on the phone was an internet search for the complainant’s phone. Another
search was done for the Courtyard by Marriott in Sugar Land. On the morning of the
offense appellant sent a text message to the complainant saying, “Meet me at church,
please.” Appellant admitted on cross-examination he lied about being at church so
the complainant would not know he was at the hotel where she was staying.

Levan also testified about text messages found on the complainant’s phone.
He testified that appellant and the complainant had a disagreement about finances,
among other disagreements. On August 6, five days before the offense, the

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complainant sent a text to appellant telling him, “This relationship is 100 percent
over.” The next day, August 7, the complainant sent a text to appellant telling him
she was planning to call the police. This text was sent minutes before an officer was
dispatched regarding the incident outside the Extended-Stay hotel where the
complainant had been staying to avoid appellant. 2

Over the course of the next day the complainant and the victim sent long text
messages to each other in which the complainant explained why she was breaking
up with appellant and appellant tried to reconcile. The day before the offense, the
complainant sent the following text message to appellant:

God has revealed so much to me. He has also strengthened me.
Strengthened me to know my worth. Strengthened me to walk away and
never return to an abusive person such as yourself. You’re a 45-year-
old man, and your choices in life is to now stalk me. Where do you
think that will end up for you?
I’m taking every step with the law legally to protect myself, and
eventually justice will be served. You going to risk your freedom
because you can’t grasp the fact I don’t want anything to do with you.
You going to risk your freedom because I ended the relationship. That
shows exactly your mental state. And I’ve been saying for a long time
that something is wrong with you
I have three complaints with Sugar Land Police Department against
you. I’m going back today to inform them you again — yet again you
are stalking and following me.
Appellant responded:
Where — where I’m stalking you at? What is you talking about? I’m
lost right now.

2
Officer Neil Kim of the Sugar Land Police Department responded to a 9-1-1 disturbance
call made by the complainant on August 7, 2024, four days before the murder. The complainant
was at an Extended-Stay hotel and appeared upset, nervous, and scared. The complainant told Kim
that appellant, her boyfriend, was in a parked car in the parking lot. Kim determined that no
criminal offense had occurred. After the encounter with appellant the complainant moved to the
Courtyard by Marriott hotel where she was killed.

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Stalking you. Where the fuck you at for me to stalk you?

Appellant’s response was sent after appellant had taken pictures of the Courtyard by
Marriott hotel where the complainant was staying indicating that appellant knew
where the complainant was but wanted her to think he did not.

Throughout the day the complainant and appellant continued to communicate
via text messages with the complainant asking that appellant leave her alone and
appellant continuing to try to reconcile, including calling the complainant’s phone
at least 20 times. The complainant eventually blocked appellant’s phone number.
The complainant did not receive the text message containing a picture of her
location.

After the State rested appellant testified that he and the complainant were
together for two years before he killed her. On August 10, the day before the offense,
appellant traded cars with a friend so that the complainant would not recognize his
car when he followed her to the hotel.

On August 11, appellant drove to the hotel and waited in the parking lot for
the complainant to come outside. Appellant’s friend’s car contained a firearm. While
waiting for the complainant appellant was thinking he was “going to fix this problem
I have with what’s going on with my life.” Appellant explained that he planned to
talk the complainant into returning home or he planned to harm himself. Appellant
saw the complainant leave and when she returned, he stepped out of his car and
confronted her. Appellant admitted pointing the gun at the complainant knowing that
the gun was a deadly weapon. Appellant pointed the gun at his own head and
threatened to kill himself. The complainant pleaded with appellant not to shoot
himself. Appellant testified that when the police began to arrive, he “jumped up and
panicked” and “heard the gun go off.” Appellant denied that he intentionally shot
the complainant. Appellant also denied shooting at the responding police officers.

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When appellant was taken before a magistrate, he expressed his desire to have
an attorney appointed to represent him. Sugar Land police placed appellant in a
padded cell because he told them he wanted to kill himself. Appellant testified that
when Officer Gamble came to his cell and asked for appellant’s phone pass code
appellant told Gamble the pass code. Appellant admitted signing the consent form
for the search of his phone but asserted that Gamble did not read the form to him,
and appellant did not read it before signing.

Appellant admitted that Officer Gamble read his Miranda warnings on the
day of appellant’s arrest and that he understood those warnings. Appellant never told
Gamble he did not want to talk with him. Appellant admitted giving Gamble his
phone pass code and signing the consent form to search his phone.

The jury found appellant guilty of murder and did not find that appellant
committed the offense under the immediate influence of sudden passion. The jury
assessed punishment at fifty years in prison.

ANALYSIS

In four issues appellant challenges the admission into evidence of text
messages found on his phone and the complainant’s phone on the grounds that (1)
he was deprived of timely appointment of counsel; (2) the search warrant affidavit
did not establish probable cause and appellant’s consent to search was not voluntary;
(3) the text messages were inadmissible hearsay and their admission violated the
confrontation clause; and (4) appellant did not receive appropriate notice from the
State regarding the content of the text messages. In another issue appellant alleges
the trial court abused its discretion in omitting jury instructions on the voluntariness
of his consent to search his phone.

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I. The trial court did not abuse its discretion in denying appellant’s motion
to suppress the text messages found on his phone based on his Sixth
Amendment right to counsel claim.
In appellant’s first issue he asserts he was deprived of timely appointment of
counsel. Appellant’s first two issues raise the distinction between assertion of the
Fifth Amendment right to interrogation counsel and the Sixth Amendment right to
trial counsel after the United States Supreme Court’s decision in Montejo v.
Louisiana, 556 U.S. 778 (2009). Under Montejo, the Fifth Amendment right to
interrogation counsel is triggered by the Miranda warnings that police must give
before beginning any custodial interrogation. As relevant to this case, the Sixth
Amendment right to trial counsel is triggered by judicial arraignment. Pecina v.
State, 361 S.W.3d 68, 71 (Tex. Crim. App. 2012). Both the Fifth and Sixth
Amendment rights to counsel apply to post-magistration custodial interrogation, but
each is invoked and waived in exactly the same manner—under the Fifth
Amendment Miranda rules. Id.

The Sixth Amendment right to counsel attaches once the “adversary judicial
process has been initiated,” and it guarantees “a defendant the right to have counsel
present at all ‘critical’ stages of the criminal proceedings.” Montejo, 556 U.S. at 786.
In Michigan v. Jackson, 475 U.S. 625, 636 (1986), the Supreme Court had held that
“if police initiate interrogation after a defendant’s assertion, at an arraignment or
similar proceeding, of his right to counsel, any waiver of the defendant’s right to
counsel for that police-initiated interrogation is invalid.” The Supreme Court
explicity overruled that rule in Montejo. Montejo, 556 U.S. at 792–96.

A Sixth Amendment request for an attorney at an arraignment or initial
appearance is a “request for the guiding hand of counsel for all judicial criminal
proceedings.” Pecina, 361 S.W.3d at 78. If the defendant also wishes to invoke his
Sixth Amendment right to counsel during the “critical stage” of post-arraignment
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custodial interrogation, he may certainly do so, but he does so by invoking that right
to counsel, pursuant to Miranda, when law enforcement or other state agents embark
upon custodial interrogation. Id. (citing Montejo, 556 U.S. at 792–94 (“Under the
Miranda–Edwards–Minnick line of cases (which is not in doubt), a defendant who
does not want to speak to the police without counsel present need only say as much
when he is first approached and given the Miranda warnings.”)).

Here, appellant asserts had he “been timely given counsel, there is no way he
would have answered [the officer’s] questions or consented to the search of his
phone.” However, the Court of Criminal Appeals held that an individual may invoke
both his Fifth Amendment and Sixth Amendment right to counsel for purposes of
custodial interrogation when the police or other law-enforcement agents approach
him and give him his Miranda warnings. Pecina, 361 S.W.3d at 78 (“Distilled to its
essence, Montejo means that a defendant’s invocation of his right to counsel at his
Article 15.17 hearing says nothing about his possible invocation of his right to
counsel during later police-initiated custodial interrogation.”). Because appellant’s
invocation of his Sixth Amendment right to counsel does not affect any later
response to custodial interrogation, we overrule appellant’s first issue challenging
his late-appointed counsel at a critical stage.

II. The trial court did not abuse its discretion in denying the motion to
suppress the text messages found on appellant’s cell phone because
appellant voluntarily consented to the search of his phone.
In appellant’s second issue he asserts the trial court erred in admitting into
evidence text messages and photographs from his phone because (1) the search
warrant affidavit did not establish probable cause; and (2) his consent to search was
not voluntary because he had requested counsel before giving consent and his
Miranda rights were not re-read to him. Appellant asserts he was harmed by the
untimely appointment of counsel because he signed the consent form to search his
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phone without counsel. Appellant filed a motion to suppress evidence obtained as a
result of the search of his cell phone. As grounds for suppression appellant asserted
(1) the search warrant affidavit did not allege sufficient facts to establish probable
cause; and (2) his consent to search the phone was involuntary and in violation of
articles 38.21, 38.22, and 38.23 of the Code of Criminal Procedure.

A. 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).

B. Search Warrant Affidavit

Officer Brian Dirks prepared the search warrant affidavit in this case. The
probable cause affidavit supporting the search warrant stated:

ln my training and experience, suspects communicate with witnesses,
victims, or co-conspirators via phone calls, text messages, emails, and
social network posts. These communications often contain direct and
indirect statements about crimes. Furthermore, Affiant knows that
communications rarely explicitly mention an intent to commit a crime.
Instead, they often allude to such an intent: “gunna go hustle” for
instance may be a declaration of an intent to commit a theft crime, but
without context it is meaningless. ln my training and experience,
individuals often use digital devices and cellular devices to post

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messages to others on social networking applications. ln my training
and experience, it is possible for cellular phone users to use a variety of
messaging platforms including SMS, MMS, iChat, WhatsApp, call
logs, and others.

The remainder of the affidavit contains nothing about a cell phone being used before,
during, or after the charged offense. The only mention of the cell phone was that it
was found in the car where appellant was sitting before he shot the complainant.

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). To search a
person’s phone after a lawful arrest, a peace officer must submit an application for
a warrant to a magistrate. Tex. Code Crim. Proc. 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, 664 S.W.3d 122, 131 (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)).

The Court of Criminal Appeals held that generic, boilerplate language about
cell phone use among criminals is not alone sufficient to establish probable cause to
search a phone. Baldwin, 664 S.W.3d at 134. The court explained:

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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 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.

Considering the four corners of the search warrant affidavit in this case, we
conclude the affidavit does not contain sufficient particularized facts to have allowed
the magistrate to determine probable cause for a warrant to search appellant’s phone
because the affidavit presents no factual nexus between the phone and the murder.
See Baldwin, 664 S.W.3d at 134.

While we conclude the trial court erred in denying appellant’s motion to
suppress on the grounds that the search warrant affidavit supported probable cause,
that does not end our inquiry. Appellant signed a form consenting to the search of
his phone, and admitted at trial that he signed the form. We turn to appellant’s
allegation that his consent was involuntary.

C. Consent to Search

Appellant contends his consent to search the phone was obtained involuntarily
because he had requested appointment of counsel, but none had been appointed, and
his Miranda rights were not re-read to him.

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After jury selection but before the guilt/innocence phase of trial began, the
trial court held a hearing on appellant’s motion to suppress. Gamble testified on the
issue of appellant’s consent to the search of his phone. Gamble spoke with appellant
on the day of the offense. Before speaking with appellant Gamble read appellant his
Miranda rights and ensured that he understood those rights. Appellant expressed his
understanding and did not request counsel at that time. At 9:00 a.m. on August 13,
2019, appellant was brought before a magistrate and signed a form noting that he
wanted appointed counsel.

The next day, August 14, 2019, Gamble went to the jail to attempt to obtain
consent from appellant to search his cell phone. When Gamble met with appellant,
he did not appear to be under the influence of substances, was alert, and oriented as
to where he was and what was happening. Gamble explained to appellant that it
would be beneficial if law enforcement could have the pass code to his phone.
Appellant provided the pass code and Gamble unlocked appellant’s phone in his
presence. At appellant’s request Gamble spoke to jail personnel to ensure that
appellant could take a shower. Gamble estimated his interaction with appellant lasted
less than five minutes. Gamble explained that appellant was not being interrogated.
Appellant did not invoke his right to counsel or his right to remain silent during his
conversation with Gamble.

Gamble obtained a signed consent form from appellant in which appellant
voluntarily consented to the search of his phone. Gamble testified that he read the
form to appellant and gave it to appellant so he could read it. Gamble ensured that
appellant understood the form before he signed the voluntary consent form. The
administrative judge later appointed counsel for appellant on August 19, 2019.

In Miranda v. Arizona, 384 U.S. 436 (1966), the United States Supreme Court
declared that the constitutional protection against compelled self-incrimination,

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embodied in the Fifth and Fourteenth Amendments, requires that a “custodial
interrogation” be preceded by advice to the accused that he has the right to remain
silent as well as the right to assistance of counsel. If he requests an attorney, “the
interrogation must cease” until one is present. Id. at 474. Appellant asserts that
Gamble obtained his consent to search after he had affirmatively invoked his Sixth
Amendment right to assistance of counsel and he was not afforded counsel at that
time, and as such, the trial court committed error in denying his motion to suppress
evidence discovered on appellant’s phone.

A “custodial interrogation” is the linchpin to triggering Miranda’s
protections. Neither party disputes that appellant was “in custody” at the time he
consented to the search. Instead, the relevant question here is whether his consent
was obtained by reason of an unlawful “interrogation” after he requested an attorney.

“Interrogation” is defined as express questioning and “any words or actions
on the part of the police . . . that the police should know are reasonably likely to elicit
an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291,
301 (1980). Consent to search is not an interrogation within the meaning of Miranda
because the giving of consent is not a self-incriminating statement. Jones v. State, 7
S.W.3d 172, 175 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d) (citing Smith v.
Wainwright, 581 F.2d 1149, 1152 (5th Cir.1978) (“[C]onsent to search is not an
incriminating statement; it is not in itself evidence of a testimonial or communicative
nature.”)). Appellant’s act of signing the consent form was not, in and of itself, an
incriminating statement. The actions of the police in asking appellant for consent to
search do not constitute interrogation under Miranda. See Jones, 7 S.W.3d at 175.
Because appellant’s consent to search was not an incriminating statement, he was
not entitled to counsel before giving consent nor were police required to re-read his
Miranda rights. Therefore, the trial court did not err in denying appellant’s motion

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to suppress on that ground. We turn to appellant’s assertion that his consent was
invalid for other reasons.

For consent to be valid, it must “‘not be coerced, by explicit or implicit means,
by implied threat or covert force.’” Carmouche v. State, 10 S.W.3d 323, 331 (Tex.
Crim. App. 2000) (quoting Schneckloth v. Bustamante, 412 U.S. 218, 228 (1973)).
“[N]o one statement or action should automatically amount to coercion such that
consent is involuntary.” Fienen v. State, 390 S.W.3d 328, 333 (Tex. Crim. App.
2012). “The ultimate question is whether the suspect’s will was overborne” by the
officer’s actions. Creager v. State, 952 S.W.2d 852, 856 (Tex. Crim. App. 1997).
The trial court examines the voluntariness of consent based on the “totality of the
circumstances from the point of view of an objectively reasonable person, including
words, actions, or circumstantial evidence.” Tucker v. State, 369 S.W.3d 179, 185
(Tex. Crim. App. 2012); see Creager, 952 S.W.2d at 856. As applicable to the facts
of this case, we consider the following factors in evaluating whether consent was
voluntary: whether the accused was advised of his constitutional rights, whether the
questioning was repetitive or prolonged, whether the accused was aware that he
could decline to answer the questions, and what kind of psychological impact the
questioning had on the accused. Tucker, 369 S.W.3d at 185. An officer’s testimony
that consent was voluntarily given can be sufficient evidence to prove the
voluntariness of the consent. See Martinez v. State, 17 S.W.3d 677, 683 (Tex. Crim.
App. 2000); Kelly v. State, 331 S.W.3d 541, 547 (Tex. App.—Houston [14th Dist.]
2011, pet. ref’d).

In considering the totality of the circumstances, the record shows that clear
and convincing evidence supports the trial court’s finding that appellant voluntarily
consented to the search. On appeal appellant asserts his consent was obtained after
he had asked for counsel, without Miranda warnings, without appellant being told

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what was on the phone would be used against him, and without him being told he
did not have to consent. To be sure, as discussed above, appellant had requested trial
counsel and was entitled to counsel under the Sixth Amendment. The record reflects,
however, that appellant admitted having received Miranda warnings before he
consented to the search of his phone and did not assert his right to counsel under the
Fifth Amendment or Miranda before consenting to the search.

Appellant admitted that Officer Gamble read his Miranda warnings on the
day of appellant’s arrest and that he understood those warnings. Appellant never told
Gamble he did not want to talk with him. Appellant admitted giving Gamble his
phone pass code and signing the consent form to search his phone. Appellant
testified that when Officer Gamble came to his cell and asked for appellant’s phone
pass code appellant told Gamble the pass code. Appellant admitted signing the
consent form for the search of his phone but asserted that Gamble did not read the
form to him, and appellant did not read it before signing. As described by both
Gamble and appellant, the questioning was not repetitive or prolonged. Appellant
did not decline to answer Gamble’s questions. Based on the foregoing, we conclude
the trial court did not abuse its discretion in finding that clear and convincing
evidence demonstrated appellant’s voluntary consent to the search. We therefore
overrule appellant’s second issue.

II. The trial court did not abuse its discretion in admitting evidence of text
messages from the complainant’s phone.

At trial appellant objected to the introduction of text messages from the
complainant’s phone on the grounds they were hearsay, violated the Confrontation
Clause, and appellant was not given notice pursuant to the Rules of Evidence. We
first address appellant’s hearsay and Confrontation Clause grounds. On appeal
appellant challenges the trial court’s rulings on his objections in issues three and

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five.

In appellant’s third issue, he contends the following text messages from the
complainant to appellant were inadmissible hearsay offered for the truth of the
matter asserted:

• You did something. You must be guilty.
• You threatened me for the last MF time.
• Keep telling somebody that you are going to end their life.
• I am not bluffing. You will send yourself to jail.
• You are a bully. Threatening my life.
• You’ll knock me out.
• You will end my life.
• Telling me you will kill me.
• You threatening me.
• No longer taking your abuse.
• You are physically abusive.
• Not f’ing allowing you to abuse me.
• You’re evil. Threatening, abuse, and scare me.
• You want to knock me out. Bullying me. Threatening me.
• Abusive, liar, cheat.
• Abusive, stalking me.
• I will call the police like I was instructed to do until they arrest
you. Your P.O. is trying her best to get you violated.
• I sent the picture to your P.O.
• Abusive, stalking me. 3 complaints with SLPD. Going to contact
SLPD about your stalking, following me.
• I saw you. I took a picture. I reported it.
• You called my phone 20 times. I reported that too.
• I have contacted your probation officer. I am heading to the D.A.
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to get a P.O.
• You will send yourself to jail.
• Knock me out, end my life, kill me. T.R.O. is in place.
• Already been to DA’s office and spoken to your P.O. Kathleen
Lee, U.S.P.O.
• She is totally aware of you threatening me.
• No longer taking your abuse.
• You are physically abusive. I’ve contacted people I need to
contact.
• U.S.P.O. no. - on my phone for 16 minutes this morning. She
texted me her cell.
• Contact with Kathleen Lee.
• Lying about turning yourself in. I’m calling police right now.
A. Standard of Review

We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016). A trial
court abuses its discretion if the decision falls outside the zone of reasonable
disagreement—that is, the ruling was so clearly wrong as to lie outside the zone
within which reasonable people might disagree. Id. at 83. We may not substitute our
own decision for that of the trial court. Gonzalez v. State, 544 S.W.3d 363, 370 (Tex.
Crim. App. 2018).

B. Hearsay

In asserting that the above-quoted text messages were inadmissible,
appellant’s entire argument is as follows:

Tex. C.C.P. Art. 38.36 makes the interactions between the defendant
and the complainant relevant, but this is subject to the evidence being
admissible under the rules of evidence. Smith v. State, 5 S.W.3d 673,
376–378 (Tex. Crim. App. 1999).

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Construing appellant’s brief liberally, we first address his objection at trial
that the text messages were inadmissible hearsay. Article 38.36(a) states that, “In all
prosecutions for murder, the state or the defendant shall be permitted to offer
testimony as to all relevant facts and circumstances surrounding the killing and the
previous relationship existing between the accused and the deceased, together with
all relevant facts and circumstances going to show the condition of the mind of the
accused at the time of the offense.” Tex. Code Crim. Proc. 38.36(a). The nature of
the relationship—such as whether the victim and the accused were friends, co-
workers, married, estranged, separated, or divorcing—is clearly admissible as
relevant under this article. Garcia v. State, 201 S.W.3d 695, 702 (Tex. Crim. App.
2006). Article 38.36, however, “in no way broadens or otherwise affects the rules of
evidence which apply, or the way in which they apply in any given homicide case.”
Fielder v. State, 756 S.W.2d 309, 318 (Tex. Crim. App. 1988). While relevant under
article 38.36, appellant objected that the complainant’s text messages were
inadmissible as hearsay.

Hearsay is “a statement that: (1) the declarant does not make while testifying
at the current trial or hearing; and (2) a party offers in evidence to prove the truth of
the matter asserted in the statement.” Tex. R. Evid. 801(d). An out-of-court
statement which is not offered to prove the truth of the matter asserted therein, but
is offered for some other reason, is not hearsay. Guidry v. State, 9 S.W.3d 133, 152
(Tex. Crim. App. 1999). If the out-of-court statement is relevant only if the trier of
fact believes that the statement was both truthful and accurate, then the statement is
hearsay. Coble v. State, 330 S.W.3d 253, 290 n.101 (Tex. Crim. App. 2010). A
statement is not hearsay if its relevance does not hinge on its truthfulness. Johnson
v. State, 425 S.W.3d 344, 346 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d).

In this case the text messages from the complainant’s phone were not admitted

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for their truthfulness, i.e., the jury was not asked to determine whether appellant was
stalking the complainant or whether she had reported appellant to his probation
officer. The text messages were admitted into evidence to show appellant’s state of
mind with regard to his reaction to the complainant’s messages. The messages were
therefore admissible as non-hearsay because their relevance did not turn on their
truthfulness.

C. Confrontation Clause

Appellant next contends the text messages from the complainant’s phone
violated his rights under the Confrontation Clause.

The Confrontation Clause of the Sixth Amendment guarantees accused
persons the right to confront the witnesses against them. See U.S. Const. amend. VI;
Pointer v. Texas, 380 U.S. 400, 403 (1965). The United States Supreme Court has
applied this rule to “testimonial” statements and held that such statements are
inadmissible at trial unless the witness who made them either takes the stand to be
cross-examined or is unavailable and the defendant had a prior opportunity to cross-
examine the witness. Crawford v. Washington, 541 U.S. 36, 54 (2004).

The Court of Criminal Appeals has summarized three kinds of testimonial
statements: (1) “ex parte in-court testimony or its functional equivalent,” i.e.,
“pretrial statements that declarants would reasonably expect to be used
prosecutorially;” (2) “extrajudicial statements contained in formalized testimonial
materials,” such as affidavits, depositions, or prior testimony; and (3) “statements
that were made under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use at a later trial.”
Langham v. State, 305 S.W.3d 568, 576 (Tex. Crim. App. 2010).

“Testimonial” statements are typically solemn declarations made for the

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purpose of establishing some fact. See Russeau v. State, 171 S.W.3d 871, 880 (Tex.
Crim. App. 2005). The text messages in this case are informal, and their subject and
method of communication weigh against a finding that they are testimonial
statements. See Crawford, 541 U.S. at 51 (noting that testimonial statements are
typically “formalized” materials that “were made under circumstances which would
lead an objective witness reasonably to believe that the statement would be available
for use at a later trial” as opposed to informal text messages). Accordingly, the trial
court did not err by overruling appellant’s Confrontation Clause objection to the
admission of the text messages. We overrule appellant’s third issue.

D. Notice of Extraneous Bad Acts

In appellant’s fifth issue he challenges admission of State’s Exhibits 37 and
38, which were PowerPoint presentations of the text messages from appellant and
the complainant’s phones. Pursuant to Rule of Evidence 404(b), appellant requested
notice of the State’s intent to introduce evidence of “any other crimes, wrongs, or
acts allegedly committed” by appellant. Approximately four months before trial, the
State gave notice that it intended “to introduce in the case in chief evidence of other
crimes, wrongs, or acts for relevant purposes, including but not limited to, proving
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake or accident.” The State listed extraneous offenses it intended to introduce
including several prior convictions of appellant. The State further gave notice that it
intended to introduce evidence that:

1. Appellant was engaging in illegal drug activity and the
complainant attempted to leave the relationship due to her belief that
appellant was involved in illegal drug activity.
2. From approximately 2005 through 2019 appellant engaged in a
continuing course of conduct against at least one victim other than the
complainant involving “dating violence.”

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3. Appellant located the complainant at the Extended Stay Hotel
four days before the murder and was able to follow her from her place
of employment.
When the State introduced evidence of the text messages between appellant
and the complainant reflecting the above topics, appellant objected stating, among
other things, the State’s notice was not specific enough to give him notice of what
the State sought to introduce.

Under rule 404(b), evidence of a “crime, wrong, or other act” is not admissible
to prove a person’s character. Tex. R. Evid. 404(b)(1). But such evidence may be
admissible for another purpose “such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Tex.
R. Evid. 404(b)(2). The State is required to provide reasonable notice of its intent to
introduce such evidence “[o]n timely request by a defendant in a criminal case.” Id.
The purpose of the notice provision of rule 404(b) is to avoid surprise and to allow
the defendant to mount an effective defense. See Hernandez v. State, 176 S.W.3d
821, 825 (Tex. Crim. App. 2005); Pena v. State, 554 S.W.3d 242, 248 (Tex. App.—
Houston [14th Dist.] 2018, pet. ref’d).

Neither party disputes that appellant timely requested notice and the State
timely gave notice. Appellant objected to the specificity of notice. Appellant cited
no authority, nor has independent research revealed authority, requiring a certain
level of specificity when giving notice pursuant to rule 404(b). Appellant has not
shown on this record that he was surprised by the State’s notice of intent to introduce
the extraneous-offense evidence or that he was unable to mount an effective defense.
We therefore overrule appellant’s fifth issue. See Singleton v. State, 631 S.W.3d 213,
218 (Tex. App.—Houston [14th Dist.] 2020, pet. ref’d) (concluding trial court did
not abuse its discretion because appellant received notice of State’s intent and failed
to show surprise or inability to mount an effective defense).
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III. The trial court did not abuse its discretion in denying appellant’s request
for a jury instruction pursuant to articles 38.22 and 38.23 of the Code of
Criminal Procedure.
In appellant’s fourth issue he asserts the trial court abused its discretion in
denying his request for a jury instruction pursuant to articles 38.22 and 38.23 of the
Code of Criminal Procedure. At trial, in requesting jury instructions, appellant
asserted, “It’s a factual dispute as to whether or not the State did what they’re
supposed to do under 38.22 and 38.23 and reading his warnings before they took his
statements.” Specifically, appellant asserted the evidence raised a factual dispute as
to whether Gamble read appellant his Miranda rights before asking appellant for
consent to search his phone.

A. Standard of Review

When reviewing a claim that the trial court failed to properly charge the jury,
we first determine whether error occurred; if error did not occur, our analysis ends.
Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). If we conclude there
was error, there are separate standards of review for determining whether the
defendant was harmed by the error. Marshall v. State, 479 S.W.3d 840, 843 (Tex.
Crim. App. 2016).

The purpose of the jury charge is to instruct the jurors on “all of the law that
is applicable to the case.” Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App.
2012). When there is a disputed fact issue that is material to the defendant’s claim
of a constitutional or statutory violation that would render evidence inadmissible, an
exclusionary-rule instruction is required by article 38.23(a). Madden v. State, 242
S.W.3d 504, 509–10 (Tex. Crim. App. 2007).

B. Code of Criminal Procedure Article 38.22

The procedural safeguards of Miranda and article 38.22 apply to custodial

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interrogation by law enforcement officers or their agents. Berry v. State, 233 S.W.3d
847, 855 (Tex. Crim. App. 2007). Article 38.22, section 7 requires a trial court to
include an instruction in the jury charge when the evidence raises a genuine factual
dispute regarding whether a defendant “was adequately warned of his rights and
knowingly and intelligently waived” those rights. Oursbourn v. State, 259 S.W.3d
159, 176 (Tex. Crim. App. 2008); Tex. Code Crim. Proc. art. 38.22, § 7. In other
words, if the defendant made his statement as the result of custodial interrogation,
he is entitled—when the issue is raised by the evidence—to have the jury decide
whether he was adequately warned of his rights and knowingly and intelligently
waived those rights. Id.

A statement resulting from custodial interrogation triggers the application of
article 38.22. Tex. Code Crim. Proc. art. 38.22 (prescribing when “statements” may
be used). The procedural safeguards of article 38.22, including jury instructions on
questions of fact, do not apply to this case because consent to search is not an
interrogation within the meaning of Miranda. Jones, 7 S.W.3d at 175 (giving of
consent is not a self-incriminating statement). The trial court therefore did not err in
refusing appellant’s requested instruction pursuant to article 38.22.

C. Code of Criminal Procedure Article 38.23(a)

Article 38.23(a) of the Code of Criminal Procedure provides as follows:

No evidence obtained by an officer or other person in violation of any
provisions of the Constitution or laws of the State of Texas, or of the
Constitution or laws of the United States of America, shall be admitted
in evidence against the accused on the trial of any criminal case.
In any case where the legal evidence raises an issue hereunder, the jury
shall be instructed that if it believes, or has a reasonable doubt, that the
evidence was obtained in violation of the provisions of this Article, then
and in such event, the jury shall disregard any such evidence so
obtained.

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Tex. Code Crim. Proc. art. 38.23(a).

An instruction under article 38.23(a) is limited to disputed issues of fact that
are material to the defendant’s claim of a constitutional or statutory violation that
would render evidence inadmissible. Madden, 242 S.W.3d at 509–10; see also
Robinson v. State, 377 S.W.3d 712, 719 (Tex. Crim. App. 2012) (“Where the issue
raised by the evidence at trial does not involve controverted facts, but only the proper
application of the law to undisputed facts, that issue is properly left to the
determination of the trial court.”); Holmes v. State, 248 S.W.3d 194, 199 (Tex. Crim.
App. 2008) (“There is, of course, nothing to instruct the jury about if the suppression
question is one of law only, and there is nothing to instruct the jury about unless
there is affirmative evidence that raises a contested fact issue.”).

A defendant must satisfy three requirements before being entitled to the
submission of a jury instruction under article 38.23(a):

(1) The evidence heard by the jury must raise an issue of fact;
(2) The evidence on that fact must be affirmatively contested; and
(3) The contested factual issue must be material to the lawfulness of the
challenged conduct in obtaining the evidence.

Hamal v. State, 390 S.W.3d 302, 306 (Tex. Crim. App. 2012); Madden, 242 S.W.3d
at 510; see also Robinson, 377 S.W.3d at 719. When these elements are not met, a
trial court is not required to include an article 38.23(a) instruction. Madden, 242
S.W.3d at 510.

“To raise a disputed fact issue warranting an article 38.23(a) jury instruction,
there must be some affirmative evidence that puts the existence of that fact into
question.” Madden, 242 S.W.3d at 513. Evidence to justify an article 38.23(a)
instruction can derive “from any source,” no matter whether “strong, weak,
contradicted, unimpeached, or unbelievable.” Robinson, 377 S.W.3d at 719. But it

25
must, in any event, raise a “factual dispute about how the evidence was obtained.”
Id.

Here, there was no factual dispute about whether Gamble read appellant his
Miranda warnings the day he asked for consent to search, or whether appellant
voluntarily signed the consent form. Both appellant and Gamble testified that
Gamble did not read the Miranda warnings before asking for consent to search
appellant’s phone. As stated above, no such warnings were necessary to request
consent. Moreover, both appellant and Gamble testified that appellant voluntarily
signed the consent form. Although appellant testified he did not read the form before
signing it he did not testify that he was coerced or otherwise threatened into signing
the form.

While there were conflicting arguments at trial as to whether Miranda
warnings were required before requesting consent to search, this disagreement was
for the trial court to arbitrate, according to the law, not for the jury to determine as
if it were an ambiguous or contested question of fact. The question whether appellant
was entitled to counsel before consenting to search was therefore a question of law,
not fact, and the admissibility of any evidence that was obtained as a result of the
cell phone search does not depend on the reasonableness of appellant’s belief that
he was entitled to counsel before being asked for consent to search. Appellant was
not entitled to an article 38.23(a) instruction that the jury must disregard that
evidence. We overrule appellant’s fourth issue.

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CONCLUSION

Having overruled each of appellant’s issues on appeal, we affirm the judgment
of conviction.

/s/ Jerry Zimmerer
Jerry Zimmerer
Justice

Panel consists of Justices Jewell, Zimmerer, and Hassan.
Do Not Publish — Tex. R. App. P. 47.2(b).

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