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Date: 09-14-2022

Case Style:

Wade Harrell Thomson v. The State of Texas

Case Number: 01-22-00229-CV

Judge: Sarah Beth Landau


Court of Appeals For The First District of Texas

On appeal from 12th District Court Grimes County, Texas

Plaintiff's Attorney: Andria M. Bender

Defendant's Attorney:

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Houston, Texas – Criminal Defense lawyer represented defendant with a possession of child pornography charges.

Deputy M. Payne stopped Thomson for a routine traffic violation at almost
midnight on a Monday night. Thomson—who was over 40 years old—had a
young, female passenger in his car. Deputy Payne thought the passenger was a
minor, but she was a few days past her 18th birthday. Deputy Payne asked
Thomson and the passenger questions. Their stories did not match.
A Terry1
frisk revealed a cell phone on Thomson’s hip and a marijuana pipe
in his pocket. A search of Thomson’s vehicle revealed a duffle bag containing
three knives, duct tape, bungie cords, two screwdrivers, binoculars, Benadryl,
“pills in powder form,” a bar of soap, and a second cell phone. The combination of
items, considering Thomson’s and his passenger’s mismatched stories, led Deputy
Payne to ask Thomson about the bag’s contents.
Deputy Payne’s bodycam recorded the conversation about the contents of
Thomson’s bag. In response to questioning, Thomson said that he used the items
1 Terry v. Ohio, 392 U.S. 1 (1968).
for his work as a chicken farmer and that the cell phone was a storage device for
his pictures. He told Deputy Payne that the secondary phone did not have cellular
service. As Deputy Payne was handling the bag and its contents, the secondary
phone’s screen illuminated, and Deputy Payne saw a “3G” on the screen. He asked
Thomson about the symbol, noting that it was inconsistent with Thomson’s
statement that the phone did not have cellular service. Thomson maintained that
the phone did not have cellular service: “No, not at all. That is an out-of-service
phone. This is my real phone,” referring to the phone on his hip. To further prove
his point, Thomson said to Deputy Payne, “Uh, try to make a call on it.” Deputy
Payne responded that he did not know the code to unlock the phone.
Thomson offered to show Deputy Payne how to unlock the phone,
commenting, “I don’t get why that’s important.” Thomson walked Deputy Payne
through unlocking the phone, assuring him that there was no cellular service.
Thomson told Deputy Payne, “Hit the phone thing. Try to make a phone
call. . . . Any call. Call Rodney.”
The bodycam video does not show Deputy Payne’s navigation of the phone
screens. The audio does not include any narration of Deputy Payne’s activities. But
the record indicates that Deputy Payne unlocked the phone using Thomson’s
instructions. He tried to make a call but was unsuccessful because the phone lacked
prepaid minutes.
After failing to make a phone call, Deputy Payne told Thomson he had
asked about the bag’s contents because they looked like tools to commit a crime.
As Deputy Payne was saying this, he walked away from Thomson and toward
Thomson’s vehicle, where the open duffle bag sat on the trunk. When Deputy
Payne reached the vehicle and bag, he stood silent and still for 15 seconds. The
bodycam does not show the phone’s screen during the 15 seconds.
At the end of the 15 seconds of silence, Deputy Payne turned to Thomson
and said, “Dude, I’m trying to shut your phone, and there’s pictures of naked little
girls and little girls in sexually explicit positions. What’s up with that?” Thomson
responded, “I have no idea.” Deputy Payne walked to his police vehicle, flashed
the phone screen to his bodycam, laid Thomson’s phone in his passenger seat, and
called for additional instructions.
Thomson was arrested on charges related to the marijuana pipe found in his
pocket. Later, Deputy Payne obtained a search warrant to access Thomson’s
phone. More than 1,400 child pornography images were found on the secondary
phone. Thomson was charged with possession of child pornography.
Thomson moved to suppress all evidence of the images obtained from the
secondary phone.
The suppression hearing
At the suppression hearing, Thomson argued that the images were recovered
through an illegal search. The State responded that Thomson had given consent.
Thomson replied that his consent was limited to making a phone call and that he
had not consented to a search of his phone’s contents.
Deputy Payne testified at the suppression hearing. He said that when he first
pulled Thomson over, he saw Thomson make furtive movements toward his
backseat. Thomson appeared to be extremely anxious. Deputy Payne “could see
[Thomson’s] heartbeat right above his stomach through his shirt, his shirt was
fluttering up and down. He was having a hard time completing a sentence without
having to take a breath. His answers weren’t making a whole lot of sense.” The
combination of furtive movements and nervousness led Deputy Payne to conduct
the Terry frisk, which revealed the marijuana pipe in Thomson’s pocket.
According to Deputy Payne, the discovery of the marijuana pipe gave him
probable cause to expand his search to Thomson’s vehicle. When Deputy Payne
found the secondary phone in the duffle bag, Thomson said it stored his photos and
did not have service. Thomson told Deputy Payne to try to make a phone call and
led him though unlocking the phone. Deputy Payne testified that he had only ever
owned Apple iPhones and was not familiar with how to operate Thomson’s
Android phone. It took several tries to unlock the phone.
At Thomson’s urging, Deputy Payne tried to make a phone call, but the
phone lacked prepaid minutes. Deputy Payne described his efforts to return the
phone to the duffel bag:
I turned to go put the phone back in the bag. As I did—I have an
iPhone and on an iPhone, it clears back to home screen. You hit the—
there is a centrally-located button in the middle of the phone. You hit
it and it sends it back to the lock screen. . . . As I turned to go back, I
hit that—well, he didn’t have an iPhone, it was something else. And a
screen full of, I guess, JPEGs or thumbnails popped up. It was all very
young girls in sexual positions, half-dressed or undressed.
When asked what he intended to do as he walked toward the duffle bag with
Thomson’s unlocked phone, Deputy Payne responded that he only intended to
close the phone and return it to the bag. But he added that Thomson had not placed
any limitations on his use of the phone.
Deputy Payne reiterated how and why he touched the phone after attempting
a call. He was trying to return the phone to its locked screen. An icon in the lower
middle portion of the phone’s screen reminded him of an iPhone home button.
When Deputy Payne pressed that button, the pornographic images appeared.
Deputy Payne testified, “I hit one button” and the images appeared.
At the suppression hearing, Thomson argued that Deputy Payne conducted
an illegal search of his phone in violation of his Fourth Amendment rights. He
argued that the images did not fall within the plain-view exception because Deputy
Payne did not have a lawful vantage point to inadvertently see the evidence.
Deputy Payne’s vantage point was not lawful because he accessed a portion of
Thomson’s phone beyond the limited consent Thomson had granted: to make a
phone call. Thomson argued that, if an officer is “not lawfully where [they] are
supposed to be, how [they] got there shouldn’t make a difference.” In other words,
the fact that Deputy Payne may have wandered beyond his lawful vantage point by
accident should not turn the vantage point into a lawful one.
The State focused its arguments against suppression on Thomson’s consent
to unlock the phone and make the phone call. The State argued that Thomson
“never tries to limit the consent. He never tries to revoke the consent. He just
The trial court took the matter under advisement, noting that its focus was
“the issue of consent,” “how far that consent may go,” and “the effect of
potentially an accidental opening of that phone.”
The trial court denied Thomson’s motion to suppress and issued findings of
fact and conclusions of law. The court found that Thomson authorized the
unlocking of his phone, told Deputy Payne to try to make a phone call, and
instructed Deputy Payne to call someone on the saved-contacts list. Thomson
consented to Deputy Payne making a phone call, but that consent did not extend to
a general search of the phone. The court found that Deputy Payne was familiar
with iPhones but not with this type of phone. According to the court’s fact
findings, when Deputy Payne “went to return the phone back to the duffle bag,” he
“hit the button that he believed would return the phone to the locked screen,”
which is when the images appeared. The court noted Deputy Payne’s testimony
that he had no intent to search the phone’s contents and did not manipulate the
phone for that purpose. Instead, he was attempting to close the screen. Finally, the
court found Deputy Payne’s testimony credible that he inadvertently opened the
images as he touched the icon to lock the phone.
The court’s conclusions of law included that Thomson voluntarily consented
to Deputy Payne’s unlocking his phone and attempting to make a call. Deputy
Payne made a reasonable, good-faith effort to return the phone to its locked
position. The images were discovered inadvertently. Finally, Deputy Payne “did
not conduct a warrantless search of” Thomson’s phone, and the photos were not
subject to suppression.
The State tried Thomson for possession of child pornography. Deputy Payne
testified about the encounter and how the images were discovered. Both Thomson
and the State presented experts to explain the phone’s operation to the jury. They
testified that the icon Deputy Payne described was in the middle of the bottom row
of icons on the home screen of Thomson’s phone. It is a circle with six dots inside
it. Its function is to open all the phone’s apps in a grid format. That grid-view icon
would not be visible from the “call” screen Deputy Payne saw when
unsuccessfully trying to make a phone call. It would only become visible after
exiting the call screen and returning to the home screen. The implication, here,
being that Deputy Payne must have done something to return the phone to the
home screen before he could have “hit one button” to get to the images.
The experts described a second icon on the phone’s home screen. That one is
a “gallery” icon that opens images stored on the phone. The gallery icon was one
row above and one icon to the left of the grid-view icon Deputy Payne testified he
attempted to press to lock the phone.
The experts further testified that Thomson’s phone had a cracked screen.
The crack ran directly between the grid-view icon and the nearby gallery icon that
opens saved images. Screen cracks can affect a phone’s responsiveness to touch.
Additionally, pressing beyond an icon and near other icons can affect which
function the phone initiates.
The jury was shown a video of the State’s expert pressing the grid-view
icon. The expert intentionally moved the pressure of his touch to a point just
outside that icon, toward the gallery icon, but not quite to the gallery icon. In the
video, the pressure at that location on the screen—which was on or near the visible
crack in the screen—opened a gallery of pornographic images.
Both experts agreed that the images could be opened in that manner from
that screen. Thomson’s expert highlighted that the grid-view icon Deputy Payne
focused on was not visible from the “call” screen and there was no possibility that
an inadvertent opening of the gallery occurred from within the “call” functions of
the phone. The implication being that Deputy Payne must have exceeded the
limited consent to attempt a call if he reached a screen where the gallery icon was
The jury was given an Article 38.23 instruction in the court’s charge that it
could consider the evidence obtained because of Deputy Payne’s search of
Thomson’s phone only if all jurors agreed that the State had proven beyond a
reasonable doubt that Deputy Payne (1) unintentionally activated the phone’s
screen at the very beginning of the encounter and (2) unintentionally entered the
area of the phone that displayed the pornographic images.
Thomson was convicted of possession of child pornography and sentenced
to seven years’ confinement. Thomson appealed the conviction.
Post-trial events
Two months later, the State supplied Thomson with notice of potential
Brady material. A letter from the District Attorney’s Office stated that a routine
audit of a government database was conducted on May 29, 2020—a few days after
Thomson’s sentencing date. The audit revealed unauthorized database access by
Deputy Payne between December 2018 and May 2020. This unauthorized access
violated database-use policies. Deputy Payne resigned from his most recent
position as an investigator with the Grimes County District Attorney’s Office
shortly after being confronted about the database breaches.
We abated Thomson’s appeal to allow the trial court to consider Thomson’s
motion for new trial based on the discovery of new evidence.
At the new-trial hearing, Lieutenant J. Ellis with the Grimes County
Sheriff’s Office testified that Deputy Payne had accessed a government database
four times between 2018 and 2020 to conduct unauthorized searches of a personal
nature. Deputy Payne searched for information connected to his wife that would be
relevant in his divorce proceeding. Separately, he searched for information about a
man his subsequent love interest had become interested in. Deputy Payne used that
information to confront his love interest. When Deputy Payne was confronted
about the unauthorized accesses of the database, he admitted to conducting the
searches and resigned.
Deputy Payne also testified at the new-trial hearing. He testified that he had
work-related access to the database as far back as 2013. He admitted to using the
database for unauthorized searches on his ex-wife, on the person who his
subsequent love interest had become interested in, and on his birth father. Deputy
Payne stated that these unauthorized searches were unrelated to the Thomson case
and that the District Attorney’s Office was unaware that he was conducting
unauthorized searches when it prosecuted Thomson.
The trial court denied Thomson’s motion for new trial, specifically finding
that “there is no bias, prejudice[,] or motive involved in this particular case.”
The subject of the abatement having been resolved, the appeal was docketed
for resolution.
Suppression of Evidence Discovered on Thomson’s Secondary Phone
In his first two issues, Thomson challenges the denial of his motion to
suppress, arguing that Deputy Payne’s illegal search of his phone violated the
Fourth Amendment.
A. Standard of review
The denial of a motion to suppress is reviewed for an abuse of discretion.
Wells v. State, 611 S.W.3d 396, 405 (Tex. Crim. App. 2020). We apply a
bifurcated standard of review that affords almost complete deference to the trial
court’s determination of historical facts, including issues of credibility and
demeanor. Id. We apply a de novo review of mixed questions of law and fact that
do not hinge on assessments of credibility or demeanor and on pure questions of
law. Id. If the trial court’s ruling is correct under any applicable theory of law, we
will sustain its ruling. Id.
B. Analysis
Thomson argues that he gave Deputy Payne limited consent to access his
phone. Deputy Payne could unlock it, go directly to the call screen, select someone
to try to call, and initiate the call. But Thomson’s consent did not extend beyond
those screens. As such, Deputy Payne was only authorized to move from the “call”
screen to either the locked screen or the off (blackened) screen. Any interaction
with the phone that deviated from that progression of screens fell outside of
Thomson’s consent and was a new search that required some exception to the
Fourth Amendment’s warrant requirement.
Thomson’s argument continues with an evaluation of whether any exception
applied for the secondary search. First, he argues that his consent did not extend
beyond the specified screens and routes of access he allowed. Second, he argues
that the plain-view doctrine cannot apply because, once Deputy Payne moved past
the authorized screens, he was in an unauthorized location and did not have a
lawful vantage point to view anything. Third, Thomson argues that even if the law
allowed Deputy Payne to reach such a vantage point through inadvertence or
accident, the law required Deputy Payne to try to avoid reaching that new vantage
point by not pressing icons when he did not understand their function.
In our view, the appropriate analysis is not whether a second Fourth
Amendment exception applies for a second, discrete search, but whether the scope
of Thomson’s consent included inadvertent misnavigation. As we explain below,
we conclude that Thomson’s consent was broad enough to authorize inadvertent
misnavigation and, as such, conclude that the Fourth Amendment was not
1. Fourth Amendment law allows for observation of items in plain
The Fourth Amendment protects against unreasonable searches and
seizures.2 U.S. CONST. amend. IV; Walter v. State, 28 S.W.3d 538, 540 (Tex. Crim.
App. 2000). This protection depends upon a person having a legitimate expectation
of privacy in the invaded place. Walter, 28 S.W.3d at 541 (citing Minnesota v.
Carter, 525 U.S. 83, 88 (1998)). When contraband is left in open view and is
observed by a police officer from a lawful vantage point, there has been no
invasion of a legitimate expectation of privacy. Id. (citing Texas v. Brown, 460
U.S. 730, 738–39 (1983)). The observation is not a “search” within the meaning of
the Fourth Amendment. See id.; Illinois v. Andreas, 463 U.S. 765, 771 (1983).
2. Officers have no obligation to avoid seeing all that might be
visible from their vantage point
Thomson expresses a restrictive view of consent to access. He argues that
his consent allowed only (1) unlocking of phone, (2) pressing the icon that would
access the contacts list, (3) selecting a contact, (4) trying to make a call, and no
2 Thomson does not argue that the Texas Constitution affords any wider protections
than the United States Constitution for the issues here.
more. Any deviation from that pathway of access would be outside consent. Any
observations outside those screens, viewed in that order, would be tainted no
matter if intentional or inadvertent.
But the law has never required officers to avoid seeing what could come
within their view as they observe their surroundings from a lawful vantage point.
Courts have repeatedly held that, even if an officer must “crane his neck, or bend
over, or squat” to bring evidence within his view, that action to expand one’s
vantage point to all it might encompass “does not render the doctrine inapplicable,
so long as what he saw would have been visible to any curious passerby.” Duhig v.
State, 171 S.W.3d 631, 636 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d)
(quoting Hamilton v. State, 590 S.W.2d 503, 504–05 (Tex. Crim. App. 1979), and
James v. United States, 418 F.2d 1150, 1151 n.1 (D.C. Cir. 1969)); see Brown, 460
U.S. at 740 (observation by officer bending down at angle to see evidence in car
was not search because public could have peered into car from many angles).
3. What is in plain view is not static; objects may fall into view
The expanse of the plain-view doctrine includes evidence that comes into
plain view independent of the officer’s wishes or efforts. For example, a police
dog, without any command or prompt from its handler, nuzzles a bag that falls
open to reveal incriminating evidence. See State v. Miller, 766 S.E.2d 289, 290
(N.C. 2014). The newly exposed contents of the bag are now in plain view and
outside the Fourth Amendment’s protections. Id. at 296.
But it also includes evidence that comes into view through an officer’s own
actions, accidentally exposing the item. For example, a motel room door
inadvertently swings open when an officer lightly knocks, thus exposing the inside
of the room. See United States v. Sherrill, No. 11-cr-40027-JAR, 2011 WL
5570841, at *2 (D. Kansas Nov. 16, 2011) (unpublished order). The items visible
inside the room are now in the officer’s plain view without a search. Id. at *7.
In another example, an officer hands a man his jacket, and an illegal weapon
falls from the jacket’s pocket. See United States v. Thornton, 582 F.2d 993, 994
(5th Cir. 1978) (per curiam). The weapon is in plain view after being jostled from
the jacket. Id. No warrant is required; the Fourth Amendment is not violated. Id.;
see United States v. Lamorte, 744 F. Supp. 573, 576 (S.D.N.Y. 1990) (summarily
concluding that, when an item dislodges from its place of storage, it comes into
plain view).
3 This same analysis was applied in an unpublished order. See United States v. Neff,
61 F.3d 906 (7th Cir. 1995) (unpublished order). There, a man stole a car radio
and later consented to his relative giving the radio to the police. Id. at *1. A
different relative granted access to the room where the thief’s belongings were
stored. Id. The radio was protruding out of a sack and visible to the relative and
police. Id. When the police reached for the radio, the sack fell over and exposed an
illegal weapon. Id. The weapon was in plain view to be observed and seized
without a warrant. Id. at *4.
4. Even pornographic images on a phone may fall into plain view if
an officer has authorized access to the phone and stumbles upon
An officer with access to a person’s phone who finds pornographic images
on the phone is not a scenario that appears to have been analyzed by any of our
Texas courts. But we did not limit our research to Texas cases. Our search of
federal case law revealed cases where there was at least some level of authority or
consent to handle another’s phone preceding the display of child pornography.
a. First, access under some authority but without explicit
In one federal case, a jailer saw child pornography on a man’s phone as he
was being admitted to jail. United States v. Yockey, 654 F. Supp. 2d 945, 949 (N.D.
Iowa 2009). The jailer stated that he was only trying to turn off the man’s phone
under standard jail-admission procedures. Id. at 949, 953. The officer pressed the
button he thought would turn the phone off, but the phone did not power down. Id.
at 949. He tried another button, but in doing so, “accidentally pressed some of the
other buttons, which instead of turning the phone off, accessed pictures stored on
the phone,” including child pornography. Id. at 949–50.
The trial court found that the officer’s testimony was credible. Id. at 953.
Accepting that the images were reached without attempting a search of the phone
but, instead, simply trying to turn the phone off, the court held that the officer’s
“actions in attempting to turn off the cellular telephone do not rise to the level of
[a] search.” Id. at 958. The images were in the officer’s plain view, and the phone
owner’s Fourth Amendment rights were not violated. Id.
b. Next, consent to handle a phone but no more
In United States v. Coates, the defendant handed his phone to an officer and
consented to the officer viewing his text messages. 462 Fed. Appx. 199, 201 (3d
Cir. 2012). Coates walked into a police station and told a police officer that he
received a text message from someone threatening to kill his friend. Id. He wanted
the police to protect his friend. Id. When the officer asked whether he should read
the text message on Coates’s phone, Coates said that he should and slid his phone
under a plexiglass screen. Id. The officer blindly pressed the phone’s buttons with
his thumb as he continued to look at and talk to Coates. Id. When the officer
looked down at the phone’s screen, he saw child pornography. Id.
The court’s analysis provided two bases for holding that the viewing of the
pornographic image did not violate Coates’s Fourth Amendment rights. Id. at 203–
04. The first centered on whether Coates had an expectation of privacy in the
contents of his phone. Id. at 203. The court held that, by passing his phone to the
officer, Coates did not exhibit an expectation of privacy. Id. (“[A]n individual
cannot claim a subjective expectation of privacy in an object voluntarily turned
over to third parties[.]”).
The precedential value of that holding may be in question given the United
States Supreme Court’s subsequent opinion in Riley v. California that a person has
a privacy interest in the contents of his cell phone, considering the quantity and
quality of personal information stored on personal phones. 573 U.S. 373, 396
(2014); see id. at 403 (holding police had to obtain warrant to search contents of
cell phone seized incident to arrest).
But the Coates opinion’s second rationale linking the Fourth Amendment
analysis to consent is unaffected by Riley. See Coates, 462 Fed. Appx. at 203. The
trial court credited the officer’s version of events. Id. According to the officer,
Coates passed the phone under the plexiglass screen in a closed position. Id. at 202.
Coates did not retain physical possession of the phone as he asked the officer to
view the text messages. See id. Nor did he navigate to the text-message screen
before handing the phone over. See id. He gave the officer his closed phone and
consented to the officer accessing the text messages. Id. at 203–04.
Scope of consent is measured by what a “typical reasonable person [would]
have understood by the exchange between the officer and the subject.” Florida v.
Jimeno, 500 U.S. 248, 251 (1991). The court concluded that a reasonable person
“would have understood Coates to have given consent to navigate his phone to
reach the text message, which is precisely what [the officer] did.” Coates, 462 Fed.
Appx. at 204.
Coates did not maintain navigational control over the phone as he showed
the text messages. Yet the phone had to be navigated to get from its closed state to
the text-message screen. Coates voluntarily gave his phone to the officer and told
the officer to access his text messages. According to the reviewing court, a
reasonable person would understand Coates to have consented not just to the
reading of the text message, but also to the navigation of his phone to the point
that the text message could be read. Id. His consent to navigate his phone, the
court reasoned, included inadvertent misnavigation. Id. Through inadvertent
misnavigation, the pornographic images came into plain view and outside the
Fourth Amendment’s protections. Id.
The appellate court’s analysis hinged on the factual determination that the
images appeared through inadvertent misnavigation, not a purposeful search. See
id. at 203–04. That determination was made as part of the trial court’s factual
findings, including credibility findings. Id. at 204. The appellate court deferred to
those findings, accepting the officer’s version of events as the trial court had, and
concluded that consent extended to inadvertent misnavigation. Id. at 204 (rejecting
Coates’s argument to “second-guess” trial court’s decision to credit officer’s
testimony as part of its credibility determination).
A different outcome arises when the credibility finding goes the other way
because the trial court rejects the officer’s explanation of how he came to view the
contraband. See United States v. Ruff, No. 001-62-18, 2018 WL 4268537 (C.G. Ct.
Crim. App. Feb. 15, 2018) (unpublished). In Ruff, a member of the Coast Guard
was arrested for driving under the influence. Id. at *1. He called his wife and gave
her directions to the police barracks. Id. After more than one call, she still could
not find the barracks. Id. The arrestee handed his phone to the trooper—with his
wife already on the line—and asked the trooper to give her directions. Id.
At the suppression proceeding, the trooper explained what happened next.
He gave the wife directions and, with the husband’s phone on speakerphone mode,
muted the microphone as he continued with other activities. Id. He heard her speak
again and reached to unmute the phone without looking at it. Id. Apparently
unsuccessful in unmuting the phone, the trooper looked down at the and saw an
image of child pornography on the phone’s screen. Id.
The trial court did not find the officer credible. Id. at *2 & n.1. The trial
court rejected the possibility that the trooper inadvertently manipulated the phone.
Id. at *2. Instead, the trooper searched the phone. Id. The Fourth Amendment
protected the accused from that warrantless search. Id.
The appellate court deferred to the trial court’s factual findings and rejected
the Government’s argument to second-guess the credibility determination. Id. The
question whether “the trooper’s actions did not constitute a search because the
child pornography was in plain view” was dependent upon the trial court’s
credibility determination, which the appellate court would not disturb. Id. The
accused consented to the trooper speaking to his wife who was already on the
phone; he did not consent to a search of his phone’s contents. Id. The trial court’s
grant of the suppression motion was affirmed. Id. at *1.
5. Thomson’s consent extended to inadvertent misnavigation of his
phone that brought the images into plain view
Thomson argues for a limited view of consent to navigate a phone—
allowing the police to touch only those buttons or icons they know will lead to the
phone’s features the officer has received consent to access. Any misstep takes the
officer out of his lawful vantage point and makes any revealed material
inadmissible. If the misstep was intentional, then it is a search requiring an
independent exception to avoid Fourth Amendment protections. Even if the
misstep was unintentional, Thomson would have us require the officer to take steps
to avoid evidence accidentally falling into view. But Yockey, Coates, and Ruff
show that Thomson’s approach does not track existing Fourth Amendment
Items are permitted to fall into plain view, even if because of police
clumsiness. See Thornton, 582 F.2d at 994; see also Neff, 61 F.3d at 906. For cell
phones specifically, under certain facts, a phone owner’s consent to navigate to a
particular function of a phone can extend to misnavigation if the misnavigation is
inadvertent and not a purposeful search. See Coates, 462 Fed. Appx. at 201. Which
category of misnavigation is at play depends on the officer’s explanation and the
trial court’s credibility determination. Compare id. (trial court found officer
credible and evidence admissible), with Ruff, 2018 WL 4268537, at *1 (trial court
found officer not credible and evidence inadmissible).
Here, the trial court listened to Deputy Payne’s testimony as he explained
how the images appeared on the screen of Thomson’s phone. The trial court
observed Deputy Payne during his testimony and watched him react to questioning
from the State and the defense. The court determined, as a factual matter, that
Deputy Payne was a credible witness and that his version of events was truthful.
We will not invade the province of the trial court to make such credibility
determinations. See State v. Mendoza, 365 S.W.3d 666, 669 (Tex. Crim. App.
2012) (“In a motion to suppress hearing, the trial judge is the sole trier of fact and
judge of the weight and credibility of the evidence. In reviewing the ruling on a
motion to suppress, appellate courts must give almost total deference to a trial
judge’s findings of historical fact and credibility determinations.”).
Accepting the trial court’s factual findings and credibility determinations,
we conclude that the Fourth Amendment is not implicated because no search
occurred. Deputy Payne was navigating Thomson’s phone with consent. Thomson
could have refused access to his locked phone. He did not. He could have held his
phone and ensured that only he navigated to the pertinent phone functions. He did
not. By granting consent for Deputy Payne to navigate the phone, Thomson also
consented to Deputy Payne’s observance of anything that came within his plain
view under that consent. That included the contraband images that appeared on the
screen through inadvertent misnavigation. We reach this conclusion based on the
trial court’s credibility determination that inadvertent misnavigation led to the
display of the images, not a search.
We overrule Thomson’s first and second issues.
Sufficiency of the Evidence
In his third issue, Thomson challenges the sufficiency of the evidence to
support the jury’s determination that Deputy Payne unintentionally activated
Thomson’s phone and discovered the images. He argues that the jury’s findings are
against “the greater weight of the evidence.”
The jury made these two factual determinations under the Article 38.23
instruction in the court’s charge, which instructed the jury that it could not consider
evidence of the images on Thomson’s phone unless it first determined, beyond a
reasonable doubt, that the evidence was not obtained in violation of the law. See
TEX. CODE CRIM. PROC. art. 38.23(a). These two factual determinations were
required for the jury to consider the evidence in evaluating whether the State
proved every element of the charged offense.
A. Standard of review
In criminal cases, challenges to the sufficiency of the evidence on matters
for which the State bears the burden of proof are reviewed only for legal
sufficiency. Brooks v. State, 323 S.W.3d 893, 894–913 (Tex. Crim. App. 2010).
Under current law, we do not conduct a separate factual sufficiency review, as
Thomson suggests when he argues that the great weight and preponderance of the
evidence indicates opposite of the jury’s resolution of a factual dispute. Id.;
Malbrough v. State, 612 S.W.3d 537, 559 (Tex. App.—Houston [1st Dist.] 2020,
pet. ref’d). Therefore, we will review the evidence only for legal sufficiency.
In assessing the legal sufficiency of the evidence, 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. Williams v.
State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
But the underlying credibility determinations the jury had to make under the
Article 38.23 instruction were not “essential elements of the crime.” They were
precursors to determining the body of evidence available to the jury as it later
considered the elements of the offense: would the child pornography images
viewed on Thomson’s phone be evidence of the crime for the jury to consider.
B. Ample evidence supported the jury’s challenged factual determination
Assuming Thomson can reach beyond the elemental analysis to challenge
the sufficiency of the evidence to support the Article 38.23 findings, we conclude
there was sufficient evidence to support those findings.
Deputy Payne testified that he unintentionally activated Thomson’s phone
and accessed the images. A video was admitted and shown to the jury of an expert
accessing the gallery of pornographic images by pressing the grid-view icon
Deputy Payne said he intended to press but, in doing so, applied pressure beyond
that icon’s outer border to an area between it and the gallery icon. The video shows
that the expert did not press directly on the gallery icon, yet the gallery images
appeared. The video also shows a crack in the phone’s screen between the two
icons, and an expert testified that the crack could have affected the phone’s
responsiveness to touch in that area of the screen.
Because there was legally sufficient evidence to support these factual
determinations on which the jury relied to find that the elements of the criminal
offense were met, we overrule Thomson’s third issue.
Motion for New Trial
In his last issue, Thomson challenges the trial court’s denial of his
post-conviction motion for new trial. He argues that the post-conviction notice of
Deputy Payne’s use of a government database to conduct unauthorized searches
meets the Article 40.001 standard for a new trial. See TEX. CODE CRIM. PROC. art.
40.001 (“A new trial shall be granted an accused where material evidence
favorable to the accused has been discovered since trial.”). He argues that the new
evidence directly impacts the factual determination that the jury was required to
resolve in his criminal prosecution, which was whether Deputy Payne intentionally
or inadvertently accessed information on his secondary phone. He further asserts
that this new evidence would likely lead to a different result if included in the trial.
The State responds that evidence of Deputy Payne’s unauthorized searches
of the government database are neither relevant nor admissible under the Texas
Rules of Evidence and, therefore, cannot support the grant of a new trial.
A. Standard of review and applicable law
We review a trial court’s decision to deny a motion for new trial asserted on
a new-evidence claim under an abuse-of-discretion standard. State v. Arizmendi,
519 S.W.3d 143, 148–49 (Tex. Crim. App. 2017); Wallace v. State, 106 S.W.3d
103, 108 (Tex. Crim. App. 2003). A trial court abuses its discretion if its decision
to deny a new-trial motion is arbitrary or unreasonable. Arizmendi, 519 S.W.3d at
148. We view the evidence in the light most favorable to the trial court’s ruling and
will not reverse its decision to deny a new-trial motion unless it falls outside the
zone of reasonable disagreement. Id.; Henley v. State, 493 S.W.3d 77, 83 (Tex.
Crim. App. 2016). The trial court has broad discretion to make credibility and
weight determinations in deciding whether the new evidence will bring about a
different result in a new trial. Arizmendi, 519 S.W.3d at 148.
The applicable statute reads: “A new trial shall be granted an accused when
material evidence favorable to the accused has been discovered since trial.” TEX.
CODE CRIM. PROC. art. 40.001. To obtain relief, the defendant must satisfy the
following four-prong test:
1. the newly discovered evidence was unknown or unavailable to
the defendant at the time of trial;
2. the defendant’s failure to discover or obtain the new evidence
was not due to the defendant’s lack of due diligence;
3. the new evidence is admissible and not merely cumulative,
corroborative, collateral, or impeaching; and
4. the new evidence is probably true and will probably bring about
a different result in a new trial.
Arizmendi, 519 S.W.3d at 149; Wallace, 106 S.W.3d at 108. The State conceded
that elements one and two are met. It was silent on element four. The only element
it briefed opposition to was element three: whether the evidence is admissible.
B. Analysis of admissibility of new evidence
Evidence is relevant if it has any tendency to make a fact of consequence
more or less probable than it would be without the evidence. TEX. R. EVID. 401.
Evidence that is relevant is admissible unless it is otherwise excluded by a rule,
statute, or constitutional provision; irrelevant evidence is not admissible. TEX. R.
EVID. 402.
Under the Article 38.23 instruction in the court’s charge, the jury was
required to determine, as a preliminary matter, whether Deputy Payne
unintentionally entered the area of the phone that displayed the photos. Only if the
jury resolved that question in the State’s favor was the jury permitted to consider
the evidence obtained from the phone in Thomson’s criminal prosecution for
possession of child pornography. Thus, whether access to the gallery of
pornographic images was the result of intentional navigation or inadvertent
misnavigation was a fact of consequence. Relatedly, evidence that Deputy Payne
had a history of accessing files without authorization is relevant because it makes it
more probable—at least slightly so—that his navigation of Thomson’s phone was
intentional. See Hall v. State, — S.W.3d —, No. AP-77,062, 2021 WL 5823345, at
*8 (Tex. Crim. App. Dec. 8, 2021). The evidence is relevant, but we also must
determine whether it is admissible.
Rule 404 of the Texas Rules of Evidence deals with evidence of past bad
acts that might indicate a trial participant’s character. TEX. R. EVID. 404.
Subsection (a) provides that “[e]vidence of a person’s character or character trait is
not admissible to prove that on a particular occasion the person acted in accordance
with the character or trait.” TEX. R. EVID. 404(a)(1). It prohibits evidence offered
to prove a person’s character, “from which the trier of fact is then to infer that the
person acted in conformity with that character trait on the occasion in question.”
Johnston v. State, 145 S.W.3d 215, 219 (Tex. Crim. App. 2004). But there are
exceptions to this prohibition. Some exceptions specifically apply to character
evidence of an accused. See TEX. R. EVID. 404(a)(2). Others apply to an alleged
victim. See TEX. R. EVID. 404(a)(3). One exception applies for a “witness.” See
TEX. R. EVID. 404(a)(4). There, “[e]vidence of a witness’s character may be
admitted under Rules 607, 608, and 609” for impeachment purposes.4
The State argues that Rule 404(a)(4) concerns admissibility of evidence of
bad acts by a “witness.” By its own terms, that rule is linked to Rules 607 through
609 on witness impeachment, and thus, the only way to get in evidence of a
witness’s bad acts is if the evidence would be admissible under Rules 607 through
609, such as to prove bias, self-interest, or a motive to lie. See TEX. R. EVID.
404(a), 607–09. In the State’s view, this limitation on the use of evidence of a
witness’s bad acts removes any possibility of relying on Rule 404(b) for a pathway
to admissibility independent of admissibility through Rules 607 through 609.
4 Rules 607 through 609 address impeaching a witness. TEX. R. EVID. 607–09.
These rules generally prohibit evidence of specific instances of a witness’s
conduct to attack that witness’s character but allow evidence of bad acts that fit
within discrete categories, such as felonies and crimes of moral turpitude. See
TEX. R. EVID. 608(b).
In effect, the State seeks to require Thomson to show that evidence of
Deputy Payne’s past unauthorized access of the government database is admissible
under Rule 404(a) and Rules 607 through 609 as a prerequisite to relying on Rule
404(b). The problem with this position, though, is that Rule 404(b) is an exception
to Rule 404(a) and no case on which the State relies supports its interpretation of
the interplay of these rules.
Subsection (a) of Rule 404 addresses “character” evidence. TEX. R. EVID.
404(a). It prohibits the admission of character evidence to prove that on a
particular occasion the person acted in conformity with his bad character. Id.
Subsection (b) of the same rule addresses evidence of particular “crimes, wrongs,
or other act,” sometimes generally referred to as “bad acts.” TEX. R. EVID. 404(b).
It divides bad acts into two categories: (1) bad acts to prove bad character and
(2) bad acts to prove something else. Id. Evidence of a bad act “is not admissible to
prove a person’s character in order to show that on a particular occasion the person
acted in accordance with the character.” TEX. R. EVID. 404(b)(1). But evidence of a
bad act “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).
When evidence is being offered for one of these other purposes, its
admission is not defeated by pointing out that the evidence might also be relevant
to character; instead, it is admissible subject to a limiting instruction to prohibit the
jury from considering the evidence for an impermissible purpose, like character
conformity. See Dukes v. State, 486 S.W.3d 170, 181 (Tex. App.—Houston [1st
Dist.] 2016, no pet.); Medellin v. State, 960 S.W.2d 904, 908 (Tex. App.—
Amarillo 1997, no pet.); see also TEX. R. EVID. 105 (“If the court admits evidence
that admissible . . . for a purpose—but not . . . for another purpose—the court, on
request, must restrict the evidence to its proper scope and instruct the jury
Thomson argues that it has since surfaced that Deputy Payne has, on other
occasions, been granted limited access to digital data and intentionally exceeded
the limits of his authorized use to view material he found helpful to his purposes.
Deputy Payne searched the government database for information on his birth
father, his divorcing spouse, and the new romantic interest of a woman he later
dated. His unauthorized access occurred before Thomson’s trial but was not
discovered until after trial. Thomson argues this evidence is relevant to whether
Deputy Payne intentionally exceeded Thomson’s limited consent to use his phone
with the similar goal of finding incriminating evidence helpful to his purposes.
Deputy Payne admitted during Thomson’s criminal trial that he had a
suspicion about what might be on Thomson’s phone when he first found it. It was
inside a bag, along with duct tape and Benadryl. And there was a surprisingly
young woman with Thomson, late at night, whose story did not match Thomson’s.
Deputy Payne admitted that he thought—from the beginning—that there would be
incriminating images on the phone:
Q. . . . When you asked him why he had that phone, what
was his response?
A. To store his photos.
Q. And when he—whenever he said that to you, at that point
did that have any significance to you at that point?
A. With the contents of the bag and what I believed it was,
yes, there would—there would have been trophy shots
that would have been on the phone.
Thomson argues the evidence that Deputy Payne repeatedly accessed
electronically stored information without authorization based on what he thought
he might find is admissible under Rule 404(b)(2) to prove absence of mistake or
lack of accident in exceeding Thomson’s limited consent and accessing his phone’s
stored information to find what Deputy Payne already had a hunch was on the
phone. Whether Deputy Payne’s navigation to the gallery of images was
intentional or not was a key aspect of the Fourth Amendment analysis to determine
if the navigation constituted an unconstitutional search.
The State responds that although Thomson purports to rest his argument on
Rule 404(b)’s lack-of-accident exception, what “his brief really urges” is “the
admissibility of the evidence based on ‘a system or pattern evidence’ as discussed
in Johnston v. State, 145 S.W.3d 215 (Tex. Crim. App. 2004),” and that pattern
evidence is inadmissible character-conformity evidence. In other words, according
to the State, evidence is inadmissible under Rule 404(a) and Johnston if it shows a
pattern of misbehavior, even if that same evidence would show a lack of accident.
The very text of Johnston explains why the State’s argument fails.
In Johnston, a man was charged with intentionally or knowingly causing
injury to his three-year-old stepson by burning his hand with a lit cigarette. Id. at
217. Johnston’s position at trial was that the child’s mother had burned him
accidentally. Id. at 218. The State successfully admitted pictures of bruises on
Johnston’s stepdaughter, over his objection, ostensibly to show that it was Johnston
who intentionally burned the stepson. Id. Johnson was convicted and appealed.
On appeal, the State argued that the pictures were admissible under Rule
404(b) to show intent. Id. The Court of Criminal Appeals held that Rule 404(b) did
not apply given Johnston’s defensive theory that someone else burned the boy. Id.
at 222–23. There was no question of fact on Johnson’s intent in handling the boy—
he denied being involved. Id. Thus, the pictures of the bruised girl did not tend to
prove or disprove Johnston’s intent regarding the alleged offense against the boy.
Id. at 223. There was no basis for the State to admit pictures of the bruised girl.
To explain its point, the Court highlighted that Johnson’s “defense was not
that he accidentally or mistakenly burned” the boy. Id. (emphasis added). If it had
been, according to the Court, the State could have rebutted the defense of
“accident” or “mistake” with “evidence of other conduct by the defendant which
tends to show that his actions on those occasions, and on this occasion as well,
were not mistaken, inadvertent, or accidental.” Id. at 222 (explaining Rule 404(b)).
That, of course, is what we have here: evidence of other bad acts that might rebut
the claim of accidental misnavigation of digital data.
Deputy Payne admitted he accessed the images on Thomson’s phone, but he
claimed that he did so only by accident. He inadvertently pressed beyond the outer
edges of one icon and opened the photo gallery, he said. Johnston supports the
admission of evidence under Rule 404(b) of other instances of exceeding consent
because the issue of whether Payne’s actions were intentional or accidental was in
dispute and a fact of consequence. Id. at 222–23.
It matters not that the previous bad acts are by a witness other than the
accused. See Castaldo v. State, 78 S.W.3d 345, 348–49 (Tex. Crim. App. 2002)
(holding bad acts of third parties can be admissible under Rule 404(b) after
rejecting State’s contention that rule’s plain language limited it to defendant’s bad
acts). Use of Rule 404(b) is not limited to admitting evidence of a criminal
defendant’s bad acts; it extends to allow admission of bad acts by third parties. Id.;
cf. United States v. McClure, 546 F.2d 670, 673 (5th Cir. 1977) (bad acts of
informant admissible under federal Rule 404(b)); United States v.
Aboumoussallem, 726 F.2d 906, 911 (2d Cir. 1984) (bad acts of third party, though
admissible under federal Rule 404(b), had to be excluded under Rule 403 under
relevant facts of case).
To be clear, this evidence is admissible to prove lack of mistake or accident.
TEX. R. EVID. 404(b). It is not admissible to prove character conformity or to
impeach credibility. Deputy Payne claimed an accidental opening of the images,
and this evidence that arguably supports a theory of lack of accident also
implicates Deputy Payne’s credibility. That dual relevance does not make Rule
404(b) unavailable. That risk may be addressed through a Rule 105 limiting
instruction that tells the jury it may not use the evidence for an improper purpose.
See TEX. R. EVID. 105.
We conclude that the trial court erred in holding that the evidence of Deputy
Payne’s unauthorized accesses of the government database was inadmissible. Its
admissibility was not foreclosed under the rules on which the State relied.5
We turn now to element four, which the State did not brief.
5 The State did not assert that the evidence was inadmissible under a Rule 403
analysis. No party presented the matter for balancing by the trial court as part of a
Rule 403 analysis. We do not find it appropriate to engage in a Rule 403
evaluation in the first instance on appeal. See Sunbury v. State, 88 S.W.3d 228,
235 (Tex. Crim. App. 2002) (refusing to consider State’s alternative basis for
affirming trial court’s ruling under Rule 403 because the “trial judge did not
exercise his discretion under Rule 403 and did not weigh probative value against
any Rule 403 counterfactors”).
C. Analysis of whether the new evidence probably is true and would bring
about a different result in a new trial
Deputy Payne admitted he accessed the government database without
authorization. The State does not dispute he did so. Thus, the evidence meets the
standard of likely being true.
“The purpose of the Article 38.23 instruction is to enable the jury to
disregard unlawfully obtained evidence.” See Olsen v. State, 606 S.W.3d 342, 349
(Tex. App.—Houston [1st Dist.] 2020, no pet.); Dao v. State, 337 S.W.3d 927, 940
(Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). Under the Article 38.23
instruction in the court’s charge, the jury was required to determine whether
Deputy Payne unintentionally entered the area of the phone that displayed the
contraband images. Only if the jury resolved that question in the State’s favor was
the jury permitted to consider the evidence obtained from the phone in Thomson’s
trial for possession of child pornography.
The bodycam video does not show what Deputy Payne pressed on
Thomson’s phone to access the contraband images. The State relied on his
explanation that he reached them inadvertently while trying to return Thomson’s
phone to the lock screen. He denied searching Thomson’s phone for incriminating
evidence. Thomson’s theory of the case was that Deputy Payne intentionally
searched his phone without consent. The version of events accepted by the jury
hinged on their determination that Deputy Payne’s explanation was credible. Cf.
Monse v. State, 990 S.W.2d 315, 318 (Tex. App.—Corpus Christi 1999)
(discussing grant of new trial where key witness recants posttrial); Mata v. State,
No. 04-98-00411-CR, 2000 WL 816767, at *6 (Tex. App.—San Antonio Feb. 9,
2000, no pet.) (mem. op., not designated for publication) (same).
With Deputy Payne’s credibility playing such a critical role in the jury’s
determination of whether the evidence from the phone could be relied on for
conviction, we are persuaded that this new evidence of confessed, unauthorized
access of technology on multiple occasions would have impacted the jury’s
credibility determination unfavorably to probably trigger Article 38.23 exclusion.
This is more than impeachment evidence that would reduce the weight of a
witness’s testimony. See, e.g., Bookman v. State, No. 01-04-01145-CR, 2007 WL
1018648, at *10 (Tex. App.—Houston [1st Dist.] Apr. 5, 2007, no pet.) (mem. op.,
not designated for publication) (“Sheryl Bookman's testimony merely attempts to
discredit Jonathan Gipson's testimony during trial.”). It is evidence that would
trigger Article 38.23 exclusion of key incriminating evidence.
We conclude that it is probable that the jury would determine that Deputy
Payne’s access to the gallery images was not inadvertent. That would make it a
search without consent, which would lead to the exclusion of the evidence from
Thomson’s phone. This, in turn, would probably bring about a different result at
trial. Factor four is met.
We conclude that the trial court abused its discretion in denying the motion
for new trial. We sustain Thomson’s last issue.

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

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