Full Opinion

Opinion issued October 23, 2026 In The Court of Appeals For The First District of Texas ———————————— NO. 01-24-00803-CR ——————————— ARMANDO BATISTA, III, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 122nd District Court Galveston County, Texas Trial Court Case No. 23-CR-0354 MEMORANDUM OPINION A jury convicted appellant, Armando Batista, III, of the felony offense of murder1 and assessed his punishment at ninety-nine years’ confinement. In his sole 1 See TEX. PENAL CODE ANN. § 19.02. issue, appellant contends that the trial court erred in denying his motion to suppress evidence obtained from his cell phone pursuant to a search warrant. We affirm. Background A Galveston County grand jury indicted appellant for the offense of murder. In two paragraphs, the indictment alleged that, on or about January 17, 2023, appellant intentionally or knowingly caused the death of the complainant, Albert Titov, by stabbing him with a knife or, alternatively, with intent to cause serious bodily injury to the complainant, committed an act clearly dangerous to human life that caused the complainant’s death, by stabbing the complainant with a knife, a deadly weapon. Appellant pleaded not guilty, and the case proceeded to trial. Prior to trial, appellant filed a motion to suppress evidence obtained from a search of his cell phone pursuant to a search warrant, asserting that the warrant lacked probable cause, relied on conclusory assertions, and lacked specific details establishing a nexus to the charged offense. The warrant authorized a search of appellant’s cell phone for photographs/videos; text or multimedia messages; call history or call logs; emails; instant messaging; other forms of communication of which the phone is capable; internet browsing history; any stored global positioning system (“GPS”) data; contact information including email addresses, physical addresses, mailing addresses, and phone numbers; voicemail messages; recordings; 2 social media posts or messaging; any associated images including but not limited to those on Facebook, Twitter, and Instagram; computer files or fragments of files; all tracking data and way points; CD-ROMS; CDs; DVDs; thumb drives; SD cards; flash drives; or any other equipment attached or embedded in the cell phone that can be used to store electronic data, metadata, and temporary files. The affidavit of Galveston Police Department (“GPD”) Detective J. Murdock was attached to the warrant. The affidavit recounted witness statements describing two black men in a white, four-door sedan at East Beach. One witness observed the passenger of the vehicle stab the complainant and return to the sedan while the driver held a cell phone as if recording the attack. Another witness stated that the driver appeared to be “panning the area” and recording the attack. Detective Murdock stated in the affidavit that he interviewed Keenan Thomas (“Thomas”) during the course of the investigation. Thomas told Detective Murdock that he had been with a man he identified as “Mando” on the date of the murder, and that “Mando” was the person who stabbed the complainant after a verbal altercation. Thomas described the knife used by the assailant, supplied identifying details about the assailant, and led law enforcement officers to where the knife was hidden. Thomas also gave law enforcement his cell phone which contained a videotaped recording of the stabbing, and he identified the person stabbing the complainant in 3 the video as “Mando.” The affidavit further stated that while Thomas was being interviewed, he received several phone calls from a number he told Detective Murdock belonged to “Mando.” A database search later confirmed appellant’s identity. Detective Murdock showed Thomas a photograph of appellant, and Thomas identified appellant as the person who stabbed the complainant. At the time of his arrest, appellant was found in possession of the cell phone described in the warrant and affidavit. The trial court admitted into evidence three items obtained from appellant’s phone: a flash drive containing an extraction report and two photographs of appellant wearing clothing similar to that worn by the assailant seen in the videotaped recordings on Thomas’s cell phone. The jury found appellant guilty of the offense of murder. After finding true the allegation in an enhancement paragraph that appellant had previously been convicted of a felony offense, it assessed appellant’s punishment at ninety-nine years’ confinement. Motion to Suppress In his sole issue, appellant asserts that the trial court erred in denying his motion to suppress evidence obtained from his cell phone and the error was harmful because it contributed to his conviction. He challenges the search warrant ontwo 4 grounds: the supporting affidavit failed to establish probable cause to believe his phone contained evidence of the murder, and the warrant was overbroad. A. Standard of Review and Governing Law We review a ruling on a motion to suppress evidence under a bifurcated standard. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). We afford almost total deference to the trial court’s determinations of historical facts and application-of-law-to-fact issues that turn on credibility and demeanor, but we review de novo application-of-law-to-fact questions that do not turn on credibility and demeanor. Id.; State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000). When the challenged search is conducted pursuant to a warrant, we do not conduct a de novo probable cause review; rather, we evaluate the issuing magistrate’s decision under a highly deferential, substantial basis standard, considering the totality of the circumstances and limiting review to the four corners of the affidavit read in a common sense, non-hypertechnical manner. Illinois v. Gates, 462 U.S. 213, 236–39 (1983); Rodriguez v. State, 232 S.W.3d 55, 61 (Tex. Crim. App. 2007). This deference reflects the constitutional preference for warrants and applies where, as here, no testimony was taken at the suppression hearing and the probable cause inquiry is confined to the affidavit’s four corners. See State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011). 5 Article 18.0215 of the Texas Code of Criminal Procedure governs warrants for cell phones. See TEX. CODE CRIM. PROC. art. 18.0215. It requires the sworn application to state facts and circumstances showing probable cause that (a) criminal activity has been, is, or will be committed, and (b) searching the phone is likely to produce evidence in the investigation of that activity. See id. art. 18.0215(c)(5)(A)– (B). To support a conclusion that a search of a cell phone is likely to produce evidence in the investigation of criminal activity, the affidavit must contain specific facts or circumstances, together with reasonable inferences derived therefrom, connecting the cell phone to the criminal activity described. See State v. Baldwin, 664 S.W.3d 122, 134 (Tex. Crim. App. 2022); see also Stocker v. State, No. 14-21-00412-CR, --- S.W.3d ---, 2025 WL 1033949, at *10 (Tex. App.—Houston [14th Dist.] Apr. 8, 2025, pet. granted) (concluding factual connection between device and criminal activity under investigation described in affidavit was sufficient to support probable cause finding). However, mere possession of a device by a suspect is generally not enough. See Baldwin, 664 S.W.3d at 134; see also Stocker, 2025 WL 1033949, at *6. And boilerplate or conclusory assertions about how criminals typically use phones, standing alone, do not satisfy probable cause. See Fraser v. State, 726 S.W.3d 253, 269–70 (Tex. Crim. App. 2025) (concluding cell phone warrant affidavit was insufficient where only connection between devices and 6 offense was generalization about how people use phones, combined with speculation that devices might reveal relevant searches). The Fourth Amendment requires that a warrant describe the things to be seized with sufficient particularity so that the search it authorizes does not become a general, evidence-gathering search. State v. Granville, 423 S.W.3d 399, 412 (Tex. Crim. App. 2014). Whether a warrant satisfies that requirement, and is not impermissibly overbroad, is a question of law that we review de novo. See Amador, 221 S.W.3d at 673. B. Nexus Requirement Appellant argues that Detective Murdock’s affidavit failed to establish a sufficient nexus between the offense and his cell phone because it contained only three sentences of boilerplate and conclusory language: • Affiant believes, and has good reason to believe[,] that the Android devise [sic] found in possession of [appellant] contains communication between [] Thomas and [appellant]; • Further, it is believed, through training and experience, that persons sometimes communicate their crimes via social media, apps and other forms of communication via cellular devises [sic]; and • Affiant further believes through training and experience that tracking data is sometimes contained on cellular devices [sic]. According to appellant, at the suppression hearing, the State relied on the boilerplate language that there might be communication between appellant and Thomas, but the affidavit did not articulate a single fact to support such an inference. 7 One way in which an affidavit may supply a factual nexus between a defendant’s cell phone and the described criminal activity is through the defendant’s possible use of the phone to communicate about the criminal activity. See Stocker, 2025 WL 1033949, at *9. Here, the affidavit stated that Thomas told Detective Murdock during his interview that he was with the man who stabbed the complainant on the day of the murder, and that he knew the man as “Mando.” The affidavit stated that Thomas provided additional information identifying “Mando,” he later identified appellant in a photograph as the man who stabbed the complainant, he directed officers to the location of the knife, and he showed Detective Murdock a videotaped recording of the murder that he had recorded on his cell phone. Thomas also provided details about appellant’s relatives, his previous sentence and incarceration for robbery, his nickname, and his prior residency in Louisiana, much of which investigators corroborated independently. The affidavit further stated that Thomas received several phone calls from a number he identified as belonging to “Mando” during the interview with Detective Murdock. The affidavit also noted that appellant was “found in possession of the . . . cellphone” when he was arrested. The affidavit concluded that there is “good reason to believe that the [cell phone] found in possession of [appellant] contains communication between [] Thomas and [appellant].” 8 These recitations within the four corners of the affidavit include information showing a relationship between Thomas and appellant, that Thomas was with appellant on the date of the murder, that appellant was the individual who stabbed the complainant, and that appellant called Thomas on his cell phone shortly after the murder. The affidavit was not based solely on boilerplate language but was instead coupled with specific facts connecting appellant’s phone to the offense. From those facts, the magistrate could reasonably have inferred that appellant and Thomas had communicated with each other through appellant’s cell phone and that those communications would be found on the device. Other courts have upheld cell phone warrants where the affidavit identified similar communications, together with corroborating detail. See, e.g., Sims v. State, 526 S.W.3d 638, 645–46 (Tex. App.— Texarkana 2017), aff’d, 569 S.W.3d 634 (Tex. Crim. App. 2019) (finding substantial basis to conclude defendant’s cell phone would contain evidence of offense where affidavit tied defendant to murder, described his relationship to victim, contained information suggesting defendant may have shot victim, and explained why his phone likely had communications and location data connected to offense); Walker v. State, 494 S.W.3d 905, 909 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d) (concluding affidavit which showed that defendant and victim knew each other, communicated by cell phone, and had exchanged numerous calls and text messages around time of killing, provided sufficient facts giving magistrate substantial basis 9 to conclude that defendant’s phone would contain evidence of offense); see also Martinez v. State, No. 13-15-00441-CR, 2017 WL 1380530, at *3 (Tex. App.— Corpus Christi–Edinburg Feb. 2, 2017, no pet.) (mem. op., not designated for publication) (concluding substantial basis supported probable cause to search defendant’s cell phone where facts recited in affidavit showed it was fairly probable that defendant communicated with his cohorts via cell phone). Appellant argues that the affidavit showed only that he possessed the cell phone when he was arrested, and not that he used it before, during, or after the murder. The nexus inquiry, however, does not require proof that the phone was used in the perpetration of the offense—a factual connection between the device and the criminal activity is enough. See Stocker, 2025 WL 1033949, at *6. And while mere possession of the phone at the time of the offense would not, standing alone, establish that connection, see Baldwin, 664 S.W.3d at 134, the connection here does not rest solely on possession. Further, “[i]t is common knowledge that smart phones record and store location data” which can be recovered from the phone itself. See Stocker, 2025 WL 1033949, at *9. The facts contained in the affidavit, coupled with reasonable inferences from those facts, tied appellant to the offense and to the phone recovered from him at arrest. Thus, the magistrate reasonably could have inferred that appellant’s phone, including its GPS data, would confirm appellant’s location at the 10 time of the offense. See TEX. CODE CRIM. PROC. art. 18.0215(c)(5); Stocker, 2025 WL 1033949, at *9. Reading the affidavit in a commonsense manner and deferring to the magistrate’s determination, we hold the record supports the magistrate’s finding that probable cause existed that searching appellant’s cell phone was “likely to produce evidence in the investigation” of the criminal activity described in Detective Murdock’s affidavit. See TEX. CODE CRIM. PROC. art. 18.0215(c)(5)(B). C. Particularity Requirement Appellant also asserts that the search warrant authorized a general rummaging of his cell phone by law enforcement, in violation of the Fourth Amendment. According to appellant, the affidavit provided no factual basis to justify a search of all the items listed in the warrant. “Under the Fourth Amendment, law enforcement may not embark on ‘a general, evidence-gathering search, especially of a cell phone which contains much more personal information . . . than could ever fit in a wallet, address book, briefcase, or any of the other traditional containers’ for the storage of personal information.” Diaz v. State, 604 S.W.3d 595, 605 (Tex. App.—Houston [14th Dist.] 2020) (quoting Granville, 423 S.W.3d at 412), aff’d, 632 S.W.3d 889 (Tex. Crim. App. 2021). “Regarding computers and other electronic devices, such as cell phones, case law requires that warrants affirmatively limit the search to evidence of 11 specific crimes or specific types of materials.” Id. (citing Farek v. State, No. 01-18-00385-CR, 2019 WL 2588106, at *8 (Tex. App.—Houston [1st Dist.] June 25, 2019, pet. ref’d) (mem. op., not designated for publication). Broad categorical descriptions of items in a search warrant may survive a particularity challenge when the warrant and incorporated affidavit, read together, confine the search to evidence of the specific offense under investigation. See id. at 605–07 (concluding search not overly broad where warrant and supporting affidavit directly linked evidence being sought to offense being investigated at time warrant was obtained). A search that is limited to the evidence related to the offense set forth in the affidavit is appropriately limited. Id. at 605; see also Farek, 2019 WL 2588106, at *10 (concluding warrant, which expressly incorporated supporting affidavit by reference, met particularity requirements because warrant and affidavit directly linked evidence being sought to offense being investigated at time warrant was obtained); Roberts v. State, Nos. 07-16-00165-CR, 07-16-00166-CR, 2018 WL 1247590, at *7 (Tex. App.—Amarillo Mar. 9, 2018, pet. ref’d) (mem. op., not designated for publication) (stating where warrant incorporates affidavit that establishes sufficient nexus between device and offense, affidavit limits search protocol to evidence of specific crimes described in detail in affidavit even without specific limiting language). 12 Here, the warrant expressly incorporated the affidavit and authorized a search of cell phone data related to the offense set forth in the attached probable cause affidavit. The affidavit identified the offense under investigation as murder and set out case-specific facts tying the investigation to phone-related evidence, including communications between Thomas and “Mando” and location data. Thus, Detective Murdock had reason to believe that evidence relating to the investigation would be found on appellant’s cell phone. Although the affidavit does not include specific limiting language, the nexus between the investigative facts and the items to be seized confined the search to evidence of the specific offense under investigation. See Diaz, 604 S.W.3d at 605–07; see also Farek, 2019 WL 2588106, at *8–9 (concluding warrant which authorized search of defendant’s cell phone for “any and all other digital data” was not overbroad because nexus between investigative facts and items to be seized provided limitation, rather than specific restrictive language in warrant or affidavit). Because we conclude that the supporting affidavit incorporated in the warrant provided a sufficient nexus between the device and the offense, and the nexus limited the search to evidence of the murder under investigation, we hold the warrant was not impermissibly overbroad. 13 D. Harm Analysis Even assuming the affidavit failed to establish a sufficient nexus or was overbroad, any error by the trial court in denying the motion to suppress and admitting the evidence recovered from appellant’s phone at trial was harmless. We review the harm resulting from a trial court’s erroneous denial of a motion to suppress evidence obtained in violation of the Fourth Amendment under the constitutional harmless-error standard of Texas Rule of Appellate Procedure 44.2(a). Hernandez v. State, 60 S.W.3d 106, 106 (Tex. Crim. App. 2001). Under this standard, we must reverse a judgment of conviction unless we determine beyond a reasonable doubt that the error did not contribute to the conviction. Id. at 107–08; see also TEX. R. APP. P. 44.2(a). In applying the “harmless error” test, we ask whether there is a “reasonable possibility” that the error might have contributed to the conviction. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (internal quotations omitted). Our analysis does not focus on the propriety of the trial’s outcome; rather, we calculate as much as possible the probable impact on the jury in light of the existence of other evidence. Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000). In assessing whether the error contributed to the verdict, we may consider the nature of the error, whether the State emphasized it, its probable implications, the weight the jury likely gave it, as well as whether the 14 untainted evidence of guilt was overwhelming. Wells v. State, 611 S.W.3d 396, 410 (Tex. Crim. App. 2020). Appellant argues that admission of the photographs in State’s Exhibits 20 and 21 harmed him because they were used by the State to prove that he was the person seen in the videotaped recording on Thomas’s cell phone and therefore contributed to his conviction. We disagree. Only three of the forty-seven exhibits admitted into evidence at trial were obtained from appellant’s cell phone. State’s Exhibit 12 was a one-page extraction report which included five photographs. Four of the photographs are nearly identical and show an individual whose face is mostly concealed by a bandana similar to the one worn by the individual who killed the complainant. The fifth photograph, admitted as State’s Exhibit 20, is of appellant and shows a portion of the shirt underneath his jacket which appears to resemble the shirt worn by the individual who stabbed the complainant. One of the photographs showing the individual whose face is covered by a bandana was admitted as State’s Exhibit 21. Contrary to appellant’s assertion, the State did not have to rely on the photographs from appellant’s cell phone to prove that he was the person who stabbed the complainant because the other evidence admitted at trial which identified appellant as the assailant was overwhelming. Thomas, who was with appellant on the date of the murder, identified appellant as the man who stabbed the complainant. 15 Thomas turned over the videotaped recording of appellant stabbing the complainant from his cell phone to officers, and he led officers to the location of the murder weapon. The videotaped recording showed the clothing appellant was wearing when he stabbed the complainant, appellant’s facial profile as he ran toward Thomas, and a distinctive mark on the back of appellant’s right arm. Screenshots of photographs taken of appellant after his arrest, which show a similar mark on his arm and the profile view of his face, were also admitted into evidence. Further, the State also offered a second videotaped recording that originated from Thomas’s cell phone (State’s Exhibit 11) and two screenshots from the recording, (State’s Exhibits 18 and 19). The videotaped recording, along with the screenshots, show a full-body image of appellant, including his face, as well as his clothing. The clothing he was wearing in the video and that can be seen in the screenshots was identical to the clothing worn by the person who stabbed the complainant. The jury also heard testimony from investigating officers that appellant was the same person seen on the videotaped recording stabbing the complainant. GPD Sergeant J. Dagle testified that following appellant’s arrest, he documented appellant’s appearance by taking photographs of him, several of which were admitted into evidence as State’s Exhibits 31 through 36. Detective Murdock testified that the Nike shoes appellant was wearing on the day he was arrested and 16 that could be seen in State’s Exhibit 31 and 36 were similar to the Nike shoes worn by the individual who stabbed the complainant. Detective Murdock further testified that, after appellant’s arrest, he observed appellant’s arm and saw a mark similar to the one on the suspect’s arm seen in the videotaped recording of the murder. When he was shown screenshots from Thomas’s videotaped recording at trial, Detective Murdock identified appellant as the individual seen stabbing the complainant. See Tijerina v. State, 334 S.W.3d 825, 836 (Tex. App—Amarillo 2011, pet. ref’d) (concluding erroneous denial of motion to suppress eyewitness’s pretrial identification was harmless where it was cumulative of in-court identification and there was other substantial probative evidence identifying defendant as missing driver). In light of the overwhelming amount of probative evidence identifying appellant as the individual who murdered the complainant, we hold beyond a reasonable doubt that any error in denying appellant’s motion to suppress evidence obtained from his cell phone was harmless. See TEX. R. APP. P. 44.2(a). We overrule appellant’s sole issue. Conclusion We affirm the trial court’s judgment. Terry Adams Chief Justice 17 Panel consists of Chief Justice Adams and Justices Johnson and Dokupil. Do not publish. TEX. R. APP. P. 47.2(b). 18