Rossy Anderson Davis v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-24-00121-CR
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ROSSY ANDERSON DAVIS, Appellant

V.

THE STATE OF TEXAS, Appellee

________________________________________________________________________

On Appeal from the 75th District Court
Liberty County, Texas
Trial Cause No. CR34648
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MEMORANDUM OPINION

A jury found appellant Rossy Anderson Davis (“Appellant” or “Davis”) guilty

of aggravated sexual assault of a child and assessed his punishment at life in prison.

See Tex. Penal Code Ann. § 22.021(a)(2)(B); see also id. § 12.32(a), (b). In a single

appellate issue, Davis argues that he is entitled to a new trial because the trial court

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erred by denying his motion to suppress evidence obtained by an allegedly illegal

seizure and search of his cell phone.1 We affirm the trial court’s judgment.

BACKGROUND

Davis was charged by indictment stating that “on or about the 23rd day of

May A.D. 2019,” he did then and there

COUNT I

[I]intentionally or knowingly cause the penetration of the sexual organ
of Jennifer Lopez, a pseudonym, a child who was then and there
younger than 14 years of age, by defendant’s sexual organ,

COUNT II

And the Grand Jurors aforesaid, upon their oaths aforesaid, do further
present in and to said court that on or about the 23rd day of May, 2019,
in Liberty County, Texas, and anterior to the presentment of this
indictment, ROSSY ANDERSON DAVIS, did then and there
intentionally or knowingly cause the sexual organ of Jennifer Lopez, a
pseudonym, a child who was then and there younger than 14 years of
age, to contact or penetrate the mouth of Rossy Anderson Davis[.] 2

During Davis’ June 6, 2019 interview, law enforcement officers requested

Davis’ cell phone as evidence. Davis was reluctant to provide his phone, citing its

cost and his need for communication while job hunting. He stated that he would not

surrender the phone absent a court order. After officers explained their authority to

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In the trial court, Davis also sought to suppress evidence obtained from his
cell phone provider and his DNA specimen but he does not urge those arguments on
appeal.
2
The trial court sustained Davis’ motion for a directed verdict as to Count
Two and the case proceeded to verdict on Count One, only.
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confiscate the phone and their intent to charge Davis with obstruction if he failed to

comply with their request, Davis provided the phone to them. Officers later obtained

a search warrant to search the contents of Davis’ phone and copied its contents.

Davis moved to suppress the evidence thus obtained, alleging that the phone was

illegally seized and that the search was illegal because the search warrant for the

contents of the phone was invalid. Davis bases this argument on his contentions that

the affidavit supporting the search warrant mischaracterized Davis’ surrender of his

phone and that the affidavit omitted material information. We summarize below the

evidence related to the search of Davis’ cell phone.

Officer John Shaver’s Testimony

At the hearing on Davis’ Motion to Suppress Evidence, Officer Shaver

(“Shaver”) testified that he interviewed Davis on June 6, 2019. According to Shaver,

he had probable cause to seize Davis’ phone before the interview began, since he

knew Davis had spoken with the victim and since Shaver had viewed text messages

from the victim to Davis, thus indicating that Davis had used his phone during the

commission of a crime.

Shaver was concerned that if Davis were permitted to leave the interview with

his cell phone, Davis would destroy evidence by deleting images or messages from

the phone. Shaver therefore believed that exigent circumstances allowed his

warrantless seizure of Davis’ phone. Although Shaver would have felt justified in

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forcibly taking the phone from Davis, he instead chose to threaten Davis with arrest

to persuade Davis to surrender the phone for analysis.

The trial court then found that “based upon statements that were made to the

arresting officer as well as the defendant’s admission that he communicated with the

alleged victim[,]” Shaver had “probable cause to believe that the cell phone

contained potential evidence of a crime and that exigent circumstances justified the

seizure of the phone lest the evidence be destroyed.” The court denied Davis’ motion

to suppress evidence obtained from the phone.

Davis’ Recorded Interview

As the interview began, Shaver introduced himself to Davis and confirmed

that Davis was not under arrest but was “free to get up and leave at any time.” Shaver

then asked Davis to provide his full name, date of birth, address, and phone number,

and Davis did so, reciting his phone number. Davis also identified his cell phone

service provider.

According to Davis, he met Jennifer through Facebook and they “chatted” and

exchanged text messages, but Davis found Jennifer to be “forceful” and “pushy,”

which Davis did not like. Davis stated that he never met Jennifer in person and that

he and Jennifer “never had sex.” Davis did, however, admit that he and Jennifer

talked about sex.

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Davis recalled that the week before the interview, Jennifer’s parents called

him and told him that Jennifer was thirteen years old, not twenty-seven as she stated

in her Facebook profile. Davis stated that after learning that Jennifer had

misrepresented her age, he deleted her text messages and blocked her from

communicating with him. Davis then claimed that Mother “tried to friend [him] on

Facebook.” Davis also told Shaver that Jennifer’s father stated that Jennifer had

“made a list of guys that she had sex with.” Davis denied that Jennifer ever sent him

any pictures and further denied that he drove his car to Cleveland on May 23, 2019.

Nearly halfway through the hour-long interview, Shaver informs Davis that

Mother allowed law enforcement to search Jennifer’s phone. When Shaver asks

Davis why Jennifer would tell him “It hurt when I pee,” Davis replies that when

Jennifer was playing in the pool, someone “elbowed her or something.” Shaver

continues reading the information downloaded from Jennifer’s phone, including

Jennifer’s reference to sexual intercourse and Davis stating, “It was going to happen

one day. You’re my fiancée, now.” Davis also claimed that Jennifer’s reference to

ejaculation inquired about a phone call when the two of them were “talking dirty.”

Shaver later tells Davis that the evidence they have discussed “is just a piece

of what we have[,]” “we know a lot more than what we’re telling you,” and

references phone records, social media records, and security video of Davis’ vehicle.

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When Shaver tells Davis to surrender his cell phone for analysis, about twenty

minutes before the end of the recording, Davis says, “You know how much money

my phone cost?” Davis then asks, “You gonna to pay me for it?” and “What I’m

gonna do about a job?” After Shaver explains, “I’m not gonna go through it today, I

am gonna have to get a search warrant,” and that the phone would need to stay at the

police station to preserve the integrity of the information it contained, Davis requests

a court order requiring him to surrender his phone. Shaver explains that no such

order yet exists, but “there will be one,” and Davis responds “I’ll give you my phone”

after he is served with an appropriate court order. Shaver explains that permitting

Davis to retain his phone “gives [him] the opportunity to destroy any kind of

evidence” and Davis continues stating that “I need my phone for a job.” Shaver

explains that because the phone was used in the commission of a crime, Shaver has

“the authority to take [the phone] off your person,” and that if Davis resists, Shaver

will “put [Davis] in jail for resisting and I’m still gonna take your phone.” Davis

continues to disagree with Shaver, but after additional discussion, Davis allows

Shaver to take possession of the phone.

ANALYSIS

In his sole issue, Davis contends that the trial court erred by overruling his

motion to suppress, since, according to Davis, the seizure and search of the phone

violated his rights under the Fourth Amendment. See U.S. CONST. amend. IV. Davis’

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argument against the trial court’s ruling is twofold: (1) he attacks the warrantless

seizure of his cell phone, contending that officers seized his phone without either

probable cause or exigent circumstances, and (2) the later search warrant authorizing

the search of the phone is invalid as fruit of the poisonous tree due to the warrantless

seizure.

We review the trial court’s denial of a motion to suppress under a bifurcated

standard of review. Igboji v. State, 666 S.W.3d 607, 612 (Tex. Crim. App. 2023);

Dugar v. State, 629 S.W.3d 494, 497 (Tex. App.—Beaumont 2021, pet ref’d). We

review the determination of whether a specific search and seizure was reasonable

under a de novo standard, but we give the trial court almost complete deference in

determining historical facts that depend on credibility and demeanor. Igboji, 666

S.W.3d at 612 (citations omitted); Gallagher v. State, Nos. 09-21-00307-CR, 09-21-

00308-CR, 09-21-00309-CR, 09-21-00310-CR, 2023 WL 3085768, at *4 (Tex.

App.—Beaumont Apr. 26, 2023, pet. ref’d) (mem. op., not designated for

publication). When, as here, the trial court does not make explicit findings of fact,

we review the evidence in a light most favorable to the trial court’s ruling and assume

the trial court made implicit findings of fact supported by the record. Igboji, 666

S.W.3d at 612 (citing Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005)).

Generally, we limit our review to the record of the suppression hearing. Id. (citation

omitted).

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Warrantless Seizure

The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.

U.S. CONST. amend. IV.

“A warrantless search or seizure is per se unreasonable under the Fourth

Amendment unless it falls within a recognized exception to the warrant

requirement.” Igboji, 666 S.W.3d at 613. The existence of exigent circumstances is

one such exception. Id.; Gallagher, 2023 WL 3085768, at *5. This exception permits

law enforcement to handle situations that compel the “need for official action and

no time to secure a warrant.” Missouri v. McNeely, 569 U.S. 141, 149 (2013); Igboji,

666 S.W.3d at 613.

Once a defendant shows that a warrantless seizure has occurred, the burden

shifts to the State to prove an exception to the warrant requirement applies. Igboji,

666 S.W.3d at 613. Generally, the State must satisfy a two-step process to validate

a warrantless seizure based on exigent circumstances: (1) the existence of probable

cause, and (2) an exigency. Id. at 613-14. “[P]robable cause exists ‘when reasonably

trustworthy facts and circumstances within the knowledge of the officer on the scene

would lead a man of reasonable prudence to believe that the instrumentality . . . or

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evidence of a crime will be found.’” Id. at 613 (quoting Estrada v. State, 154 S.W.3d

604, 609 (Tex. Crim. App. 2005)). An exigency requiring an immediate action by

law enforcement must exist, and one recognized category of exigent circumstances

that justifies a warrantless intrusion by law enforcement is preventing destruction of

contraband or evidence. Id. at 613-14.

To determine whether exigent circumstances exist, courts look to the totality

of the circumstances when the seizure occurred. Id. at 613; Gallagher, 2023 WL

3085768, at *6. There is no requirement that the record show affirmative conduct on

the part of the defendant. Igboji, 666 S.W.3d at 614. Rather, for exigent

circumstances to justify a warrantless seizure of a cell phone, the record must show

that officers reasonably believed the evidence would be imminently destroyed if they

waited to obtain a warrant to seize the cell phone. See id. at 616-17; Rafiq v. State,

661 S.W.3d 827, 839-40 (Tex. App.—Beaumont 2022, pet. ref’d) (finding exigent

circumstances justified the warrantless seizure of cell phone to obtain a search

warrant and prevent destruction of evidence relevant to the crime); Gallagher, 2023

WL 3085768, at **6-7 (upholding warrantless seizure of cell phone where trial court

could have reasonably found officer believed evidence of crimes would be found on

phone and there was imminent risk evidence would be destroyed).

In this case, the State stipulated that Shaver seized Davis’ phone without a

warrant. The burden then shifted to the State to show an exception to the warrant

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requirement, such as exigent circumstances as found in Rafiq. 661 S.W.3d at 839-

40. Shaver’s testimony at the hearing on Davis’ motion to suppress shows that

Shaver knew of the content of Jennifer’s phone before he interviewed Davis. Shaver

testified that Jennifer had sent suggestive text messages and nude photographs of

herself to a phone number that Davis acknowledged was his. In addition, Davis

admitted that he and Jennifer had communicated by phone. Shaver accordingly

possessed reasonably trustworthy facts that would lead a reasonably prudent person

to believe that Davis’ cell phone contained inculpatory evidence. See Igboji, 666

S.W.3d at 613-14. Shaver thus had probable cause to seize Davis’ phone. See id. To

establish the exigent circumstances necessary to justify the warrantless seizure,

Shaver testified that if Davis left with the phone, he believed that Davis would delete

or destroy evidence from the phone. In response, Davis argues that there were no

exigent circumstances because he was not “an immediate flight risk[]” nor was he

“found actively trying to delete information[.]” Davis further responds that the

evidence believed to be in his cell phone was not shown to be unavailable from any

other source. Davis, however, has cited no authority showing that these criteria are

relevant to a finding of exigent circumstances. In fact, Igboji holds that evidence of

“affirmative conduct” is unnecessary. 666 S.W.3d at 612, 614. The Igboji court

further declined to require a showing that information contained in a cell phone is

unobtainable from other sources. Id. Instead, courts look to the likelihood that

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evidence would be destroyed if the phone were not seized. See Rafiq, 661 S.W.3d at

839-40. Shaver testified to his belief that Davis would delete evidence off the phone

if the phone remained in Davis’ possession. The trial court, as the arbiter of

credibility and demeanor of testimony, was entitled to credit Shaver’s fear that Davis

would destroy evidence if he were given the opportunity to do so. See Igboji, 666

S.W.3d at 612. Shaver’s testimony, coupled with Davis’ admission that he

previously deleted Jennifer’s communications from his cell phone, support the trial

court’s implied finding of exigent circumstances to seize Davis’ phone despite the

absence of a warrant. This situation is, by corollary, similar to when a police officer

has probable cause to believe criminal activity is occurring inside a residence and

the officer enters and secures the residence to prevent the destruction of evidence

before a warrant can be obtained. See Kentucky v. King, 563 U.S. 452, 460 (2011)

(“… the need ‘to prevent the imminent destruction of evidence’ has long been

recognized as a sufficient justification for a warrantless search.”) (citing Brigham

City v. Stuart, 547 U.S. 398, 403 (2006); see also Georgia v. Randolph, 547 U.S.

103, 116, n.6, (2006); and Minnesota v. Olson, 495 U.S. 91, 100 (1990)). It follows

that the contents of the cell phone obtained by the subsequent search warrant are not

the fruits of an illegal search and were not subject to suppression.

For the reasons discussed above, we conclude that the trial court did not err in

denying the motion to suppress. We overrule Davis’ sole issue.

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CONCLUSION

Having determined that the trial court did not err in denying Davis’ Motion to

Suppress Evidence, we affirm the trial court’s judgment.

AFFIRMED.

JAY WRIGHT
Justice

Submitted on February 3, 2026
Opinion Delivered March 11, 2026
Do Not Publish

Before Golemon, C.J., Wright and Chambers, JJ.

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