RODRIGUEZ, ERIK v. the State of Texas

In the Court of Criminal
Appeals of Texas
════════════
Nos. PD-0377-24, PD-0378-24
════════════

THE STATE OF TEXAS

v.

ERIK RODRIGUEZ, Appellee

═══════════════════════════════════════
On State’s Petition for Discretionary Review
From the Fourth Court of Appeals
Bexar County
═══════════════════════════════════════

YEARY, J., filed a concurring opinion.

I agree that it is appropriate to resolve this case on the basis of
the State’s first ground for review, concluding that Appellee’s cell phone
was properly seized as a function of the plain view doctrine. Because the
cell phone was lawfully seized, there was no primary illegality to taint
RODRIGUEZ – 2

the consent that Appellee subsequently gave to a full forensic search of
the cell phone, which is evidently what revealed the incriminating
evidence in these prosecutions for possession of child pornography and
misuse of public information. Although the Court also granted the
State’s second and third grounds for review, which raise alternative
arguments, 1 I agree that we need not reach them.
I. THE APPROPRIATE STANDARD FOR REVIEW
In its first ground for review, the State contends that the court of
appeals misapplied the proper standard for review in assessing its plain
view argument on direct appeal. 2 The State does well to articulate this
ground for review in terms of the court of appeals’ misapplication of the
appropriate standard, since the court of appeals articulated the proper
standard for review in its unpublished opinion. State v. Rodriguez, Nos.
04-22-00727-CR & 04-22-00728-CR, 2024 WL 1642931, at *3 (Tex.
App.—San Antonio Apr. 17, 2024) (mem. op., not designated for
publication). Indeed, the court of appeals indirectly recognized the

1 In its second ground for review, the State contended that “[t]he court

of appeals misapplied the attenuation of taint doctrine.” This ground
presupposes the seizure of the cell phone was illegal, a proposition which the
Court rightly rejects today. The State’s third ground for review asks: “Does
[Article 18.0215 of the Texas Code of Criminal Procedure] apply to all cell
phone searches or just searches of cell phones seized pursuant to an arrest?”
Under Article 18.0215(d)(1), a peace officer may search a cell phone without a
warrant if the owner consents to the search, as happened here. TEX. CODE
CRIM. PROC. 18.0215(d)(1).

2 The State’s first ground for review reads: “The court of appeals
misapplied the Guzman standard of review as it applied to the seizure of
[Appellee’s] cell phone.” Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App.
1997). This ground for review challenges the court of appeals’ resolution of the
State’s plain view argument on direct appeal.
RODRIGUEZ – 3

familiar “bifurcated” standard of Guzman v. State, 3 whereby reviewing
courts give nearly total deference to the trial court in its capacity as
factfinder and arbiter of credibility, but they review a trial court’s
resolution of the ultimate legal question, whether a particular search or
seizure was reasonable, de novo. 955 S.W.2d 85, 87−89 (Tex. Crim. App.
1997). But, problematically, the court of appeals also declared that trial
court judgments on motions to suppress are to be measured by an abuse-
of-discretion standard, and they are not to be overturned if they are
within the zone of reasonable disagreement. See Rodriguez, 2024 WL
1642931, at *3 (“We reverse the trial court’s ruling only if it is outside
the zone of reasonable disagreement.”) (internal quotation marks
omitted).
For this proposition, the court of appeals cited Martinez v. State,
348 S.W.3d 919, 922 (Tex. Crim. App. 2011). Martinez indeed said this,
citing State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006), in
support. And Dixon does in fact say it as well. But in the next breath,
Dixon also observes that, while “[w]e give almost total deference to a
trial court’s express or implied determination of historical facts[,]” we
“review de novo the court’s application of the law of search and seizure
to those facts.” Id.
Other cases have made it abundantly clear that the “abuse of
discretion” component of the Guzman standard applies only to the trial

3I say indirectly because the court of appeals did not actually cite
Guzman itself. It relied, instead, primarily upon this Court’s opinion in
Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011), which in turn
cited Guzman.
RODRIGUEZ – 4

court’s resolution of historical fact and questions of witness credibility.4
Once those fact/credibility issues have been resolved in the light most
favorable to the trial court’s ruling, questions of how the law should
apply to the facts are not subject to an abuse of discretion standard. 5
The lower courts are not entitled to mistakenly apply the law in the
interest of deference or comity.
To the extent that the court of appeals’ “abuse of discretion”
analysis included any degree of deference to the trial court’s application
of law to the facts as it had determined them to be, then, it erred. That
said, the Court today could simply remand the cause to the court of
appeals to reconsider the State’s plain view argument under a correct
understanding of the Guzman standard. 6 But because the Court instead

4 See, e.g., State v. Sheppard, 271 S.W.3d 281, 286 & n.14 (Tex. Crim.

App. 2008) (observing that it is trial court’s fact findings to which reviewing
courts must give deference, while insisting that application of the law to those
facts is to be reviewed de novo).

5 See State v. Mazuca, 375 S.W.3d 294, 307 (Tex. Crim. App. 2012)
(“[O]nce having resolved all questions of historical fact and weight and
credibility of the testimony in the light most favorable to the trial court’s
resolution of the legal issues, an appellate court then conducts a de novo review
of the proper application of law to the factual disputes and credibility issues as
thus resolved, in order to say whether the trial court judge has reached the
correct legal conclusion with respect to the legal significance of the facts he has
found.”) (internal quotation marks and footnote citations omitted); State v.
Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008) (“[T]he question of
whether a given set of historical facts amounts to a consensual police-citizen
encounter or a detention under the Fourth Amendment is subject to de novo
review because it is an issue of law—the application of legal principles to a
specific set of facts.”).

6 Whether to remand a case to the court of appeals when this Court has

found that it applied an improper standard for review, or instead to resolve the
issue ourselves under what we have concluded to be the proper standard, is,
RODRIGUEZ – 5

goes on to revolve the plain view issue under the appropriate standard,
however, I will address that matter as well.
II. PLAIN VIEW: IS “IMMEDIATELY APPARENT” A FACT QUESTION?
The court of appeals might have been correct to defer to the trial
court’s determination of the plain view issue in this case if the question
of whether it was “immediately apparent” that Appellee’s cell phone
constituted evidence of a crime is a pure fact question instead of a mixed
question of law and fact. See, e.g., Parker v. State, 206 S.W.3d 593, 599
n.21 (Tex. Crim. App. 2006) (citing federal cases for the proposition that
whether exigent circumstances exist is a pure fact question, subject to
deferential appellate review). As far as I have found, this Court has not
yet said whether the “immediately apparent” component of a plain view
analysis is an issue of pure fact or an application of law to facts inquiry.
The parties do not join issue on this question, and the Court today does
not explicitly address it, instead seeming to uncritically assume that the
“immediately apparent” issue is an application-of-law-to-fact question
that is subject to de novo review.
Intuitively, it does not seem wholly far-fetched to regard the
“immediately apparent” question as one of pure fact: Is the object that
was found in plain view just as plainly incriminating? Even so, the
United States Supreme Court has plainly regarded the “immediately
apparent” inquiry as a species of basic probable cause: There must be

we have said, “a matter of our own best judgment.” See Hughes v. State, 691
S.W.3d 504, 532 (Tex. Crim. App. 2024) (Yeary, J., dissenting) (citing
Hernandez v. State, 939 S.W.2d 173, 179 (Tex. Crim. App. 1997), Loesch v.
State, 958 S.W.2d 830, 832 n.2 (Tex. Crim. App. 1997), and Wallace v. State,
106 S.W.3d 103, 108 (Tex. Crim. App. 2003)).
RODRIGUEZ – 6

“probable cause” to “associate” the item that is in plain view “with
criminal activity.” Texas v. Brown, 460 U.S. 730, 741−42 (1983) (quoting
Payton v. New York, 445 U.S. 573, 587 (1980)). 7
The United States Supreme Court has made clear that “ultimate
determinations of . . . probable cause” are not pure fact questions but are
subject to “independent”—that is to say, de novo—“appellate review[.]”
Ornelas v. United States, 517 U.S. 690, 696−97 (1996). And today the
Court simply completes the syllogism to conclude that whether, under
the totality of the circumstances, it is “immediately apparent” that a
plain-view object is associated with criminal activity is subject to de novo
appellate scrutiny. On this basis, I agree with the Court that de novo
appellate review applies.
III. DE NOVO REVIEW IN THIS CASE
Here, Detective Aisha Jackson clearly had probable cause to
believe that Appellee had used his cell phone to commit the offense of
misuse of public information, as recounted in the Court’s opinion. The
fact that there is probable cause to believe that Appellee used a personal
phone does not necessarily mean, however, that it was immediately
apparent that the cell phone displayed in his hand when Jackson
confronted him at the station house was that same cell phone. But she
had good reason to believe that it probably was. And if the “immediately

7 Although Brown was a plurality decision, the Supreme Court later

explicitly held that “probable cause is required.” Arizona v. Hicks, 480 U.S.
321, 326 (1987). And while Hicks did not, like Brown, explicitly equate the
“immediately apparent” inquiry with probable cause, the Supreme Court later
reiterated that, “not only must the item be in plain view; its incriminating
character must also be ‘immediately apparent[,]’” citing the probable cause
discussion from Hicks. Horton v. California, 496 U.S. 128, 136−37 (1990).
RODRIGUEZ – 7

apparent” inquiry is essentially a probable cause inquiry, as the United
States Supreme Court has indicated, then “probably” is enough. 8
Jackson was justified in seizing the cell phone, eliminating any alleged
primary illegality emanating from the seizure that might have
otherwise tainted the subsequently given consent to search it.
In its findings of fact and conclusions of law, the trial court judge
concluded that “the plain view doctrine does not seem to fit.” Findings
of Fact and Conclusions of Law (FF&CL) at 28. She observed, “[t]he cell
phone was not discovered contemporaneously with other evidence of
criminal activity[.]” Id. But that does not matter as long as Jackson had
an objective basis to believe it would contain evidence of the misuse-of-
public-information offense. Cf. Stocker v. State, 693 S.W.3d 385, 388
(Tex. Crim. App. 2024) (holding that the use of a cell phone in the
perpetration of a crime is not the only fact that can serve to establish a
“nexus” between the phone and the offense under investigation). That
the “criminal activity” was not going on “contemporaneously” with the
seizure in no way detracts from the objectively reasonable inference that
the cell phone in Appellee’s hand was probably the one that was involved
in earlier criminality.
Next, the trial court judge opined that “there was no evidence that
that phone’s incriminating nature was immediately apparent to
Detective Jackson at the moment of seizure.” FF&CL at 28. As the court
of appeals noted, the trial court “pointed to Jackson’s testimony that

8 See Guzman, 855 S.W.2d at 87 (“Probable cause deals with
probabilities; it requires more than mere suspicion but far less evidence than
that needed to support a conviction or even that needed to support a finding by
a preponderance of the evidence.”).
RODRIGUEZ – 8

when she seized [Appellee’s] phone, ‘she did not have any direct
knowledge that that was the phone involved in the communication’” that
was the subject of her investigation. Rodriguez, 2024 WL 1642931, at
*3. But considerably less than “near certainty” is required. Brown, 460
U.S. at 471. Jackson had “direct knowledge” that there was a reasonable
likelihood that it was the cell phone that was involved in the offense—
because, after all, it was in Appellee’s hand. I agree with the Court that
this was enough to show that its likely association with Appellee’s
earlier criminal activity was “immediately apparent.”
Finally, the trial court relied on Jackson’s testimony that “she
seized the phone because she believed she had a valid warrant for the
cell phone’s seizure, not because she saw it in plain view and its
incriminating nature was immediately apparent to her.” FF&CL at 28.
But, of course, Jackson’s subjective state of mind is irrelevant to the
question whether her seizure was objectively reasonable under the
Fourth Amendment—and this is so regardless of whether she had a
valid warrant, a defective warrant, or no warrant at all. The warrantless
seizure of property in a public place is objectively reasonable under the
Fourth Amendment so long as probable cause exists “to associate the
property with criminal activity.” Id. at 738 (quoting Payton, 445 U.S. at
587); see also United States v. Watson, 423 U.S. 411, 423−24 (1976)
(warrantless seizures of the person in public are reasonable under the
Fourth Amendment when supported by probable cause).
The United States Supreme Court has declared itself “unwilling
to entertain Fourth Amendment challenges based on the actual
motivations of individual officers[.]” Whren v. United States, 517 U.S.
RODRIGUEZ – 9

806, 813 (1996). “Subjective intentions[,]” it has said, “play no role in
ordinary, probable-cause Fourth Amendment analysis.” Id. In
suggesting otherwise, the trial court judge misapplied the law, and the
court of appeals erred to defer to that misapplication of law to fact.
IV. CONCLUSION
For these reasons, I concur in the Court’s judgment that the court
of appeals erred to defer to the trial court’s ruling granting Appellee’s
motion to suppress. The court of appeals should not have deferred to the
trial court’s determination that the evidentiary value of the cell phone
in Appellee’s hand was not immediately apparent. Conducting that
review de novo, the Court today correctly concludes that it was.
Accordingly, I readily concur in the Court’s judgment.

FILED: May 14, 2025
DO NOT PUBLISH