Petition for Writ of Certiorari — Jerry Wiltz, Petitioner v. Texas

APPENDIX TABLE OF CONTENTS

OPINIONS AND ORDERS

Order of the Court of Criminal Appeals of Texas

Refused Appellant’s Petition for Discretionary

Review (October 21, 2020) .................................... 1a

Dissenting Opinion filed by Justice Walker in

Court of Criminal Appeals of Texas

(October 21, 2020) ................................................. 3a

Judgment of the State of Texas, Fourteenth

Court of Appeals (February 27, 2020)............... 16a

Opinion of the State of Texas, Fourteenth

Court of Appeals (February 27, 2020)............... 18a

Order on Defendants Motion to Suppress Cellular

Search (May 30, 2018)......................................... 29a

Bench Ruling in Suppression Hearing

(October 8, 2018).................................................. 30a

Judgment of Conviction by Jury

(August 2, 2018)................................................... 36a

REHEARING ORDER

Order of the Court of Criminal Appeals of Texas

Denying Appellant’s Motion for Rehearing

(November 25, 2020) ........................................... 41a

APPENDIX TABLE OF CONTENTS (Cont.)

OTHER DOCUMENTS

Cell Phone Search Warrant

(April 9, 2018) ...................................................... 43a

Affidavit of Joe Freeman .................................... 46a

Return and Inventory ......................................... 52a

App.1a

ORDER OF THE COURT OF CRIMINAL APPEALS

OF TEXAS REFUSED APPELLANT’S PETITION

FOR DISCRETIONARY REVIEW

(OCTOBER 21, 2020)

COURT OF CRIMINAL APPEALS OF TEXAS

________________________

JERRY WILTZ

v.

THE STATE OF TEXAS

________________________

Tr. Ct. No. 1514086

COA No. 14-18-00718-CR

PD-0252-20

On this day, the Appellant’s petition for discretionary review has been refused.

JUDGE RICHARDSON AND JUDGE NEWELL

WOULD GRANT

/s/ Deana Williamson

Clerk

Alexander Houthuijzen

Attorney-at-Law, PLLC

917 Franklin St Ste 230

Houston, TX 77002-1741

*Delivered via e-mail*

App.2a

14th Court of Appeals Clerk

Christopher A. Prine

301 Fannin, Suite 245

Houston, TX 77002-7006

*Delivered via e-mail*

State Prosecuting Attorney

Stacey Soule

P.O. Box 13046

Austin, TX 78711

*Delivered via e-mail*

District Attorney Harris County

Appellate Section

1201 Franklin St. Ste. 600

Houston, TX 77002-1901

*Delivered via e-mail*

App.3a

DISSENTING OPINION

FILED BY JUSTICE WALKER IN

COURT OF CRIMINAL APPEALS OF TEXAS

(OCTOBER 21, 2020)

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

________________________

JERRY WILTZ,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

________________________

Nos. PD-0252-20 & PD-0253-20

On Appellant’s Petition for Discretionary Review

from the Fourteenth Court of Appeals Harris County

WALKER, J., filed a dissenting opinion.

Dissenting Opinion

In his petition for discretionary review, Appellant

argues that the court of appeals erred in holding that

he abandoned his cell phone by fleeing the scene of a

traffic stop and thus lacked standing to challenge the

warrantless search of his cell phone and its contents.

This Court has yet to determine the parameters in

which a person’s actions constitute intentional abandon-

App.4a

ment of his cell phone for purposes of the Fourth

Amendment. Given the importance of this rapidly

evolving issue to Fourth Amendment jurisprudence, I

believe this Court should grant review to decide

whether the evidence in this case establishes that

Appellant intentionally abandoned his cell phone and

the contents within it. In the absence of full review, I

cannot agree with the court of appeals that Appellant evinced an intent to abandon his cell phone and

its contents merely by fleeing the scene. Therefore, I

respectfully dissent from the Court’s denial of Appellant’s petition for discretionary review.

I.

Background

While on beat patrol at about 4 a.m. June 15, 2016,

Harris County Sheriff’s Deputy Jose Castellanos

initiated a traffic stop of a Chevy Tahoe for failure to

stop at a designated point. Appellant, the driver,

pulled into a public parking lot and stopped without

parking in a parking space. Castellanos approached

the vehicle and detected the smell of marijuana, at

which point he asked Appellant to exit the vehicle so

he could handcuff and detain him. Castellanos then

attempted to detain the passenger in Appellant’s

vehicle but was instead led on a foot chase when the

passenger fled. As Castellanos took off after the

passenger, Appellant—hands cuffed—ran from the

parking lot.

After a short pursuit, Castellanos apprehended

the passenger, who had a gun. Castellanos returned

to the vehicle to discover Appellant was gone. After

putting the passenger in his patrol car, Castellanos

began to inventory Appellant’s vehicle.

App.5a

Castellanos recovered a gun, marijuana, and a

cell phone located next to the driver’s seat. Castellanos

also recovered drug paraphernalia and sex toys, all

of which were new and in the original packaging.

Castellanos proceeded to look through the contents of

the cell phone. As he did so, Castellanos opened text

messages, emails, and the settings application. Searching the phone, Castellanos found Appellant’s name

along with the address of a sex shop that had recently

been robbed. Castellanos entered Appellant’s name

into a reporting system, which led him to positively

identify Appellant.

Ultimately, police determined the unused, packaged items in Appellant’s vehicle were stolen from

one of two sex shops where employees had been

robbed at gunpoint. Appellant—a former employee of

the adult store chain—was indicted for aggravated

robbery of two retail stores.

Appellant filed a pre-trial motion to suppress all

evidence from the cell phone. The trial court agreed

that the warrantless search of the cell phone could

not be justified as a search incident to arrest or an

inventory search. However, the trial court determined

that Appellant had abandoned his cell phone and

thus lacked standing to challenge the search. As trial

neared, Appellant asked the trial court to reconsider

its suppression ruling and argued that the abandonment doctrine did not apply because Appellant did not

intentionally abandon his cell phone.1 Following a

1 At the time Appellant filed his motion to suppress in November 2017, the State had not yet obtained a search warrant for

the cell phone. In April 2018, about a month before the motion

to suppress hearing, the State obtained a search warrant to

forensically examine the cell phone. Subsequently, in July 2018,

App.6a

hearing on Appellant’s motion to reconsider, the trial

court once again ruled that the abandonment doctrine

applied to the warrantless search of the cell phone

and denied his motion. A jury found Appellant guilty

of aggravated robbery of both of the sex shops, and a

judge sentenced him to ten years on each count to be

served concurrently.

On appeal, Appellant challenged the trial court’s

denial of his motion to suppress. In addition to

arguing that he did not intentionally abandon his cell

phone, Appellant contended that the abandonment

doctrine could not apply as an exception to a warrantless search of a cell phone based on the United States

Supreme Court decision in Riley v. California, 573

U.S. 373 (2014). The court of appeals rejected Appellant’s arguments, determined that the abandonment

doctrine did apply to the cell phone, and affirmed

Appellant’s convictions. Wiltz v. State , 595 S.W.3d

930, 936 (Tex. App.—Houston [14th Dist.] 2020).

II. Abandonment Doctrine

A person has no reasonable expectation of privacy

in property he abandons. Matthews v. State, 431

S.W.3d 596, 608 (Tex. Crim. App. 2014). Once a defendant voluntarily and intentionally abandons property,

he no longer has standing to challenge the reasonableness of the search of the abandoned property. Id.

at 608-09. Rather than being determined in the strict

property-right sense, the issue centers on whether

the person relinquished his or her interest in the

property so that he or she could no longer retain a

reasonable expectation of privacy with regard to the

Appellant filed a motion to reconsider the motion to suppress.

App.7a

property at the time of the search. State v. Martinez,

570 S.W.3d 278, 286 (Tex. Crim. App. 2019) (citing

McDuff v. State, 939 S.W.2d 607, 616 (Tex. Crim. App.

1997)).

Abandonment is primarily a question of intent

to be inferred from words spoken, acts done, and other

objective facts and relevant circumstances. Id. “[A]bandonment consists of two components: 1) a defendant

must intend to abandon property, and 2) a defendant

must freely decide to abandon the property.”2 Comer

v. State, 754 S.W.2d 656, 659 (Tex. Crim. App. 1986)

(op. on reh’g). The abandonment “test does not begin

with a presumption of abandonment which must be

rebutted by proof of an intent not to abandon.”

Martinez, 570 S.W.3d at 286. Instead, affirmative

proof of abandonment is required. Id.

III. The Evidence Fails to Show That Appellant

Intentionally Abandoned His Cell Phone.

While this Court has recognized that the

abandonment doctrine may apply as an exception to

the warrantless search of a cell phone, State v. Granville, 423 S.W.3d 399, 409 (Tex. Crim. App. 2014), we

have not specified the parameters in which a person’s

actions equate to intentional abandonment of a cell

phone for purposes of the Fourth Amendment.

In concluding that Appellant intentionally abandoned his vehicle and cell phone, the court of appeals

noted that “[t]he video shows appellant fleeing from

2 A person does not voluntarily abandon his cell phone if his

relinquishment is the result of police misconduct. Comer, 754

S.W.2d at 658-59. Because there is no evidence of police misconduct

in this case, the abandonment inquiry is one of intent.

App.8a

the vehicle on foot after having been handcuffed,

passing by the wide-open door, leaving behind his

vehicle and everything in it, including the cell phone.”

Wiltz, 595 S.W.3d at 935. While I agree that Appellant

abandoned his vehicle when he fled,3 the same evidence, without more, does not demonstrate that

Appellant intended to abandon his cell phone and the

information within it.

It is apparent that when Appellant fled, he knew

his vehicle would be left behind and chose to run

anyway. Appellant did not return to his vehicle. By

intentionally leaving his unparked vehicle in a public

parking lot, Appellant abandoned the vehicle “in such

a way ‘that he could no longer retain a reasonable

expectation of privacy with regard to it at the time of

the search.’” Matthews, 431 S.W.3d at 609 (quoting

McDuff, 939 S.W.2d at 616). If the question was

whether Appellant had standing to challenge the

search of his vehicle, I would hold that he did not.

But what is not apparent from the record is

whether Appellant knew the cell phone was in his

vehicle when he ran or whether he made a conscious

decision to leave it behind. Based on the facts before

us, it would be speculative to conclude that Appellant

knew his phone was in his vehicle and intentionally

left it behind when he fled just as it would be speculative to conclude that he believed it was in his

pocket when he ran. The record also is silent as to

whether Appellant was in possession or control of his

cell phone at the time of the stop. As the Appellant

3 See Matthews, 431 S.W.3d at 610 (concluding that the defendant

intentionally abandoned a borrowed vehicle when he fled from

the police).

App.9a

suggested to the trial court, it is possible that the

passenger was using the phone and had control over

it when the traffic stop occurred. Again, reaching

that conclusion would be speculative just as concluding

that Appellant was in control of his phone at the

time of the stop would be speculative. There is no evidence that would lead to an inference that Appellant

intentionally abandoned the phone.

Both the trial court and the court of appeals

found Edwards v. State, 497 S.W.3d 147 (Tex. App.—

Houston [1st Dist.] 2016, pet. ref’d) instructive on the

issue of whether Appellant abandoned his cell phone

for purposes of the Fourth Amendment. Although the

court of appeals in Edwards did hold that the defendant

in that case abandoned his cell phone, the case is

distinguishable in several respects.

In Edwards, the defendant left his phone out in

the open on top of a stolen vehicle he and his codefendants used as transportation to a game room

where they attempted an armed robbery. Id. at 154.

Based on the facts available, it appears that Edwards

left his cell phone on top of the stolen vehicle before

he approached the game room and got into a

confrontation with the security guard, which led to a

shootout between the defendants and the security

guard. Id. at 151–54. Eventually, Edwards took off

running without going back for his cell phone. Id. at

152.

There was an abundance of evidence that Edwards

intentionally abandoned his cell phone when he left

it on top of the stolen vehicle out in the open before

he attempted an armed robbery and fled from the

scene without going back for his cell phone. Based on

these facts, it is clear that Edwards relinquished any

App.10a

reasonable expectation of privacy with regard to his

cell phone.

The facts of Appellant’s case differ substantially.

The one similarity is that both Edwards and Appellant

fled from the scene. But while in Edwards there is

affirmative evidence4 to infer that he knew he would

be leaving his cell phone behind when he fled, the

same cannot be said in Appellant’s case.

In Edwards, the appellant placed his cell phone

on top of a stolen car and then walked away to commit a crime. Edwards’s act of getting out of a stolen

vehicle and proceeding to the game room lobby

without his cell phone provided some affirmative evidence that Edwards intended to leave his cell phone

behind. In Appellant’s case, there is no evidence that

Appellant had the intent to leave the cell phone behind.

There is no evidence to even infer that Appellant

thought about whether he had the time or ability to

retrieve the phone while having his hands cuffed

behind his back. Immediately after Castellanos took

off after Appellant’s passenger, Appellant—who was

handcuffed and could not have accessed his cell phone

even if he knew it was there—ran. Not only is there

no affirmative evidence that Appellant formed the

intent to abandon his cell phone, the record facts

would lead to a logical conclusion that it was extremely

unlikely that he did so.

Further, in Edwards police found a handprint

located on the vehicle near the cell phone that matched

Edwards’s handprint. Edwards, 497 S.W.3d at 158,

4 See Martinez, 570 S.W.3d at 286 (explaining that “the test for

abandonment in the Fourth Amendment context requires affirmative proof of abandonment”).

App.11a

n. 14. Unlike in Appellant’s case, this provided some

evidence to infer that Edwards placed his phone on

top of the car and therefore knew he was leaving his

cell phone behind. The fact that Edwards left his cell

phone out in the open and on top of a vehicle that did

not belong to him or his co-defendants can also lead

to an inference that Edwards intended to abandon

the cell phone at the time he placed it on top of the

car. See Martinez, 570 S.W.3d at 287 (explaining

that “[n]ot only will privacy expectations vary with

the type of property involved . . . but they will vary

with the location of the property”) (quoting United

States v. Oswald, 783 F.2d 663, 666–67 (6th Cir. 1986)).

Conversely, in Appellant’s case, the cell phone was

recovered from the inside of Appellant’s vehicle. For

purposes of privacy expectations, a person leaving

his cell phone inside of his own vehicle is much

different than a person leaving his cell phone out in

the open and on top of a stolen vehicle to go commit a

robbery. Unlike the present case, consideration of

where Edwards left his cell phone is additional affirmative evidence of his intent to abandon his cell phone.

Absent a showing of any affirmative evidence of

Appellant’s intent to abandon his cell phone, I cannot

agree that Appellant did not have any reasonable

expectation of privacy regarding his cell phone and

would hold that he did have standing to challenge

the warrantless search of his cell phone.

IV. The Evidence Fails to Show that Appellant

Intentionally Abandoned the Contents of His Cell

Phone.

Even if evidence existed that could lead to an

inference that Appellant had intentionally abandoned

App.12a

his cell phone by fleeing, there is no evidence that he

intentionally abandoned the information contained

in his cell phone. There is a distinction between the

privacy interests of a cell phone as a physical object

and the digital contents stored on a cell phone. This

Court recognized as much in Granville when we concluded police were permitted to inspect the physical

aspects of appellant’s cell phone in police custody but

were required to obtain a warrant to search the

contents of the phone. Granville, 423 S.W.3d at 416;

Id. at 426 (Keller, P.J., concurring).

In Granville, the defendant challenged the search

of his cell phone seized while being booked in jail.

Shortly after Granville, a high school student, was

booked, a school resource officer was told that Granville

had taken an inappropriate picture of another student

in the boys’ bathroom. The officer went to the jail,

retrieved Granville’s cell phone from the property

room, and looked through it until he found the photograph. Id. at 402. In rejecting the State’s argument

that Granville did not have a reasonable expectation

of privacy in any property in the custody of jail

officials, this Court distinguished the expectation of

privacy in physical objects such as clothing from the

expectation of privacy in cell phones:

[C]lothing does not contain private banking

or medical information and records; it does

not contain highly personal emails, texts,

photographs, videos, or access to a wide

variety of other data about the individual

citizen, his friends and family. Searching a

person’s cell phone is like searching his home

desk, computer, bank vault, and medicine

cabinet all at once.

App.13a

Id. at 415. See also Riley, 573 U.S. at 396 (“Indeed, a

cell phone search would typically expose to the government far more than the most exhaustive search of

a house[.]”).

In Riley, the Supreme Court held a warrant was

required to search a cell phone seized incident to an

arrest given the “quantitative and qualitative” differences between a cell phone and other objects. Id. at

393, 403. In so holding, the Court rejected the Government’s argument that information stored by cell

phones is “materially indistinguishable” from searches

of other physical items that police are authorized to

search incident to an arrest such as wallets, purses,

and other containers. Id. at 393. In the Court’s view,

the Government’s argument was “like saying a ride

on horseback is materially indistinguishable from a

flight to the moon.” Id.

Nor was the Supreme Court persuaded by the

Government’s proposed rule that police be permitted

to conduct a limited search of a cell phone seized

incident to an arrest “where an officer reasonably

believes that information relevant to the crime, the

arrestee’s identity, or officer safety will be discovered.”

Id. at 399. The Supreme Court declined to hold as much

based on the plethora of information that would be

swept up by such a rule and the inability for police to

“discern in advance what information would be found

where.” Id.

The Court also was unpersuaded by the Government’s suggestion that a search of a cell phone call

log always be authorized. Id. at 400. In refusing to

adopt such a rule, the Supreme Court explained that

“call logs typically contain more than just phone

numbers; they include any identifying information

App.14a

that an individual might add, such as the label ‘my

house’ in [this] case.” Id.

Although Riley involved the search incident to

arrest doctrine rather than the abandonment doctrine,

the same privacy interests and governmental intrusion

concerns expressed by the Supreme Court apply to the

contents of the cell phone in this case. While Castellanos may not have done an extensive search of

Appellant’s cell phone, the Riley Court made clear that

any warrantless search of a defendant’s cell phone,

however minimal, is unreasonable absent express

exigent circumstances such as a concern for the

safety of officers or others. Id. at 388, 399-400.

Given the heightened privacy interests associated

with the information within a cell phone as distinct

from the privacy interests associated with a cell phone

as a physical object and the lack of any evidence that

Appellant intentionally abandoned the contents of

his cell phone, I would hold that Appellant maintained

a reasonable expectation of privacy in the contents of

the cell phone and thus had standing to challenge

Castellanos’s warrantless search of the cell phone.

V.

Conclusion

Application of Fourth Amendment principles to

cell phones is an evolving area of constitutional law

that warrants further development. Both this Court

and the Supreme Court have recognized a person’s

distinct privacy interests in his cell phone. Granting

review in this case would give the Court an opportunity

to address the abandonment doctrine’s application to

cell phones and the vast amount of information

stored on them. Without review, I cannot conclude

that the evidence in this case establishes that Appellant

App.15a

abandoned either his cell phone or the contents within

it, thereby losing any reasonable expectation of privacy

regarding his cell phone and its contents. Therefore,

I respectfully dissent from the Court’s refusal to

grant review.

FILED: October 21, 2020

PUBLISH

App.16a

JUDGMENT OF THE STATE OF TEXAS,

FOURTEENTH COURT OF APPEALS

(FEBRUARY 27, 2020)

THE STATE OF TEXAS

THE FOURTEENTH COURT OF APPEALS

________________________

JERRY WILTZ,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

________________________

No. 14-18-00718-CR

No. 14-18-00719-CR

Cause No. 14-18-00718-CR was heard on the

appellate record. Having considered the record, this

Court holds that there was no error in the judgment.

The Court orders the judgment AFFIRMED. We further

order this decision certified below for observance.

Cause No. 14-18-00719-CR was heard on the

appellate record. Having considered the record, this

Court holds that there was no error in the judgment.

The Court orders the judgment AFFIRMED. We further order this decision certified below for observance.

App.17a

Judgment Rendered February 27, 2020.

Panel Consists of Justices Chief Justice Frost and

Justices Wise and Hassan.

Opinion delivered by Chief Justice Frost.

App.18a

OPINION OF THE STATE OF TEXAS,

FOURTEENTH COURT OF APPEALS

(FEBRUARY 27, 2020)

THE STATE OF TEXAS

THE FOURTEENTH COURT OF APPEALS

________________________

JERRY WILTZ,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

________________________

No. 14-18-00718-CR

No. 14-18-00719-CR

On Appeal from the 230th District Court

Harris County, Texas Trial Court Cause

Nos. 1514086 & 1570825

Before: Kem THOMPSON FROST, Chief Justice.

Appellant Jerry Wiltz appeals his convictions for

the aggravated robbery of two retail stores. He seeks

appellate relief based on a single complaint: the trial

court erred in denying his motion to suppress data

found on his cell phone. Because appellant abandoned

the cell phone in his open car when he fled from the

App.19a

police, we conclude he lacked standing to challenge

the constitutionality of the cell-phone search. We

affirm.

I.

Procedural and Factual Background

On June 13, 2016, two armed, masked men

entered a Zone D’Erotica store, held its clerk at gun

point, and stole money and other things from the

store. Later that night, the same thing happened at

another Houston-area Zone D’Erotica store. Two nights

later, Harris County Sherriffs Office Jose Castellanos

stopped appellant’s vehicle around 4:00 am for a

traffic violation. Officer Castellanos testified that

when he walked up to the door of the vehicle, he

smelled marijuana. Appellant was in the driver’s

seat and Peter Vanderveen was sitting next to him.

Castellanos asked appellant to get out of the car and

he did so. Castellanos then handcuffed appellant.

During this time, Vanderveen casually stepped out of

the passenger side of the vehicle, paused for a moment,

and then took off running. Officer Castellanos ultimately caught Venderveen, but during their foot race,

appellant fled. Appellant did not return to the scene.

After securing Venderveen in the patrol car,

Officer Castlellanos began to inventory the contents

of the vehicle. Castellanos found, among other items,

a gun, two bags of marijuana, still-packaged drug

paraphernalia, and sex toys. He also found a cell

phone by the driver’s seat. At the suppression hearing,

Officer Castellanos testified that he looked through the

phone to identify its owner. In viewing text messages

he found an address and appellant’s name “on the

owner detail portion of the message.”

App.20a

Appellant was charged by two indictments with

the aggravated robbery of each of the stores. Appellant

filed a pre-trial motion to suppress, asking the trial

court to exclude all evidence seized from appellant’s

cell phone on the grounds that the police officer

obtained the cell phone through an unreasonable,

warrantless search to which no exceptions to the

warrant-requirement applied.

The State argued that appellant had abandoned

the cell phone when he left the property in the vehicle

and fled the scene. The suppression hearing took

place over several days. At the conclusion of the

hearing, the trial court agreed with appellant that

many of the warrantless-search exceptions did not

apply to the facts as presented, but the trial court

denied appellant’s motion to suppress on the ground

that appellant had abandoned the cell phone.

At trial, the State presented Todd Messina, who

had been a manager at the Willow Chase Zone

D’Erotica in 2016. Messina testified that he had hired

appellant to work at the Willow Chase store and that

appellant had worked there for a while before being

fired. Messina testified that after another employee

was promoted, appellant threatened Messina. Messina

identified appellant as one of the men appearing on

the surveillance videos taken of the robbery at the

Willow Chase store. The State also offered the following

evidence from the cell phone Officer Castellanos

discovered:

•

Photographs of appellant, including one showing

him holding a firearm;

•

Text messages that characterized appellant as

a marijuana dealer; and

App.21a

•

Text messages suggesting that appellant committed the robberies as a sort of revenge

against Messina.

In closing argument, the State focused on the text

messages and dubbed them “the best evidence that

[appellant] committed the[] robberies[.]”

The jury returned a “guilty” verdict in both cases.

The trial court accepted the jury’s assessment of

punishment, and then sentenced appellant to ten years’

confinement for each aggravated-robbery conviction.

The trial court specified that the sentences were to

run concurrently.

II. Issues and Analysis

In his sole issue appellant asserts that the trial

court erred by denying his motion to suppress evidence

Officer Castellanos retrieved from appellant’s cell

phone on the grounds the officer conducted the search

without a warrant or under a valid exception and

because, contrary to the trial court’s finding, appellant did not abandon the cell phone. Under this issue,

appellant also challenges the legality of a warrant

subsequently issued to search the cell phone. Appellant argues he suffered harm by the admission of the

cell-phone evidence.

We review a trial court’s ruling on a motion to

suppress under a bifurcated standard. Ramirez-Tamayo

v. State, 537 S.W.3d 29, 35 (Tex. Crim. App. 2017).

As long as the record supports the trial court’s determination of historical facts, and mixed questions of

law and fact that rely on credibility, courts give almost

total deference to those decisions. State v. Kerwick,

393 S.W.3d 270, 273 (Tex. Crim. App. 2013). We review

App.22a

de novo the trial court’s application of the law to the

facts. Ramirez-Tamayo, 537 S.W.3d at 35. When, as

in this case, the trial court does not make formal

findings of fact, we will uphold the trial court’s ruling

on any theory of law applicable to the case and we

will presume the trial court made implicit findings in

support of its ruling if the record supports those findings. Cheek v. State, 543 S.W.3d 883, 888 (Tex.

App.—Houston [14th Dist.] 2018, no pet.).

“Under the Fourth Amendment, ‘[t]he right of the

people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and

seizures, shall not be violated[.]’” State v. Huse, 491

S.W.3d 833, 839 (Tex. Crim. App. 2016) (quoting U.S.

Const. amend. IV). What constitutes a “search” for

Fourth Amendment purposes—and therefore, what

may serve to confer Fourth Amendment “standing”—

may be predicated, as the Supreme Court of the United

States has emphasized, on either an intrusion-uponproperty theory of search or a reasonable-expectationof-privacy theory of search. See Florida v. Jardines,

569 U.S. 1, 11, 133 S. Ct. 1409, 1414, 185 L.Ed.2d 495

(2013); United States v. Jones, 565 U.S. 400, 406, 132

S. Ct. 945, 949–51, 181 L.Ed.2d 911 (2012); Williams

v. State, 502 S.W.3d 254, 258 (Tex. App.—Houston

[14th Dist.] 2016, pet. ref’d). Appellant asserts he had

a reasonable expectation of privacy in the contents of

his cell phone.

To assert a challenge to a search and seizure, a

defendant first must establish standing. See Kothe,

152 S.W.3d at 59; Villarreal v. State, 935 S.W.2d

134, 138 (Tex. Crim. App. 1996). So, as a threshold

issue, we consider appellant’s standing to challenge

the search and seizure. A person has standing to

App.23a

challenge the reasonableness of a search or seizure

under a reasonable-expectation-of-privacy theory if

(1) the person has a subjective expectation of privacy

in the place or object searched, and (2) society is

prepared to recognize that expectation as “reasonable”

or “legitimate.” State v. Granville, 423 S.W.3d 399,

405 (Tex. Crim. App. 2014); Williams, 502 S.W.3d at

258. A defendant normally has standing to challenge

the search of places and objects the person owns.

State v. Granville, 423 S.W.3d 399, 406 (Tex. Crim.

App. 2014). Courts have held that (1) one has a subjective expectation of privacy in the contents of one’s

cell phone, and (2) society recognizes this expectation

of privacy as reasonable and legitimate. Id. at 405–

06. Yet, one may lose a reasonable and legitimate

expectation of privacy in the contents of one’s cell phone

if one abandons the phone. Id. at 409; Edwards v.

State, 497 S.W.3d 147, 160 (Tex. App.—Houston [1st

Dist.] 2016, pet. ref’d).

Abandonment of property occurs when one intends

to abandon the property and that decision does not

flow from police misconduct. McDuff v. State, 939

S.W.2d 607, 616 (Tex. Crim. App. 1997); Edwards v.

State, 497 S.W.3d 147, 160 (Tex. App.—Houston [1st

Dist.] 2016, pet. ref’d). “When police take possession

of property abandoned independent of police misconduct[,] there is no seizure under the Fourth Amendment.” McDuff, 939 S.W.2d at 616. Abandonment is

primarily a question of intent that can be inferred

from the party’s words and actions and other circumstances surrounding the alleged abandonment. Id.;

Edwards, 497 S.W.3d at 160. We must determine

whether appellant voluntarily discarded, left behind,

or otherwise relinquished his interest in the cell phone

App.24a

so that he could no longer retain a reasonable

expectation of privacy with regard to it at the time of

the search. See McDuff, 939 S.W.2d at 616; Edwards,

497 S.W.3d at 160–61; see also Straight v. State , 515

S.W.3d 553, 567 n. 16 (Tex. App.—Houston [14th Dist.]

2017, pet. ref’d) (discussing the appropriate standard

in the context of an ineffective-assistance analysis).

Although the trial court did not make formal

findings, the trial judge noted that there appeared to

be no dispute as to the propriety of the traffic stop.

The dashcam video from Officer Castellanos’s patrol

car confirms this assessment, showing that appellant

stopped on (and blocked) the pedestrian crossing.

After Officer Castellanos activated his patrol car’s

lights, signaling appellant to stop, appellant pulled

into a parking lot and parked in the lot, but not in a

designated parking space. The trial court noted Officer

Castellanos’s testimony that he had smelled marijuana

in approaching appellant’s vehicle, prompting the

officer to ask appellant step out of the vehicle. The

officer then handcuffed appellant. Appellant does not

argue, nor does the record contain evidence, that

Officer Castellanos’s conduct in handcuffing appellant

at that time amounted to police misconduct. Appellant

does not point to any other potential law-enforcement

misconduct that might have led to his alleged

abandonment of the car and cell phone.

We now consider whether appellant intended to

abandon the cell phone. The record contains no evidence that the cell phone was password-protected or

that appellant otherwise had attempted to limit

another person’s ability to access the phone and search

through it to ascertain ownership. See Lown v. State ,

172 S.W.3d 753, 761 (Tex. App.—Houston [14th Dist.]

App.25a

2005, pet. ref’d) (concluding that appellant failed to

show that his expectation of privacy was objectively

reasonable because, among other reasons, “there is

no evidence demonstrating that appellant took any

precautions (such as encryption) to protect his privacy

in the information contained on the computer system”).

The facts do not present a scenario in which the cellphone owner lost his phone and failed to keep it

secured. See id. Flight does not particularly relate to

the “reasonableness” of the expectation of privacy;

instead, it signals the abandonment of that expectation

of privacy. Matthews v. State, 431 S.W.3d 596, 610

(Tex. Crim. App. 2014). Here, the evidence supports

a finding that appellant intentionally left the cell

phone behind; no evidence suggests that he intended

to keep it. See id. When Vanderveen exited the car

and took off running, he left the vehicle door open.

The video shows appellant fleeing from the vehicle

on foot after having been handcuffed, passing by the

wide-open door, leaving behind his vehicle and

everything in it, including the cell phone.

Like the trial court, we find this scenario analogous

to the facts in Edwards v. State, 497 S.W.3d 147 (Tex.

App.—Houston [1st Dist.] 2016, pet. ref’d), a case in

which the First Court of Appeals found abandonment

of a cell phone recovered from the top of the defendants’ vehicle when officers arrived at the scene. Id. at

160. In Edwards, the defendants “took off running”

when they “felt that the police were close by,” whereas

in this case appellant took off running after having

been placed in handcuffs. Appellant contends that

the handcuffs removed his ability to intentionally

abandon the cell phone in the vehicle at the time he

fled. Appellant argues that with the restraint of his

App.26a

hands, his ability to formulate an intent also became

restrained.

No one compelled appellant to abandon property

or any privacy right associated in that property.

While the circumstances may have been part of

appellant’s calculus in making the decision, the decision

was his. As appellant stood handcuffed, before he fled,

he retained the privacy protections to his cell phone

the law affords. But appellant opted to flee the scene

and leave his cell phone behind. In making that decision to abandon the cell phone, appellant intentionally gave up any privacy rights to information on the

cell phone. See Edwards, 497 S.W.3d at 161.

In 2014, the Court of Criminal Appeals noted that

“when a person abandons their phone” that person

may lose their reasonable and legitimate expectation

of privacy in that property. Granville, 423 S.W.3d at

409. But appellant relies on the Supreme Court of

the United States’ opinion in Riley v. California, issued

shortly thereafter. In Riley, the Supreme Court did

not address the abandonment doctrine or any standing issue and explicitly left the door open for other

case-specific exceptions. 573 U.S. 373, 401–02, 134 S.

Ct. 2473, 2494, 189 L. Ed. 2d 430 (2014) (finding that

search-incident-to-arrest exception to the warrant

requirement did not apply to the cell phone, but noting

the continuing applicability of other case-specific

exceptions); see also Carpenter v. United States , 138

S. Ct. 2206, 2222, 201 L. Ed. 2d 507 (2018) (recognizing

“case-specific exceptions may support a warrantless

search of an individual’s cell-site records under certain

circumstances”). Appellant asserts that after Riley the

abandonment doctrine does not apply to cell phones,

and appellant cites a Florida state court decision

App.27a

involving a password-protected cell phone. See State v.

K.C., 207 So.3d 951, 958 (Fla. Ct. App. 2016) (concluding that under Riley the abandonment exception

does not apply to cell phones whose contents are protected by a password). As noted, no evidence shows that

appellant’s cell phone was protected by a password.

Like the First Court of Appeals, and a majority of

other courts that have considered the abandonment

doctrine as applied to cell phones post-Riley, we

conclude that the abandonment doctrine applies to

cell phones and implicates the defendant’s standing

to challenge the reasonableness of the search of the

phone’s contents. See United States v. Crumble, 878

F.3d 656, 660 (8th Cir. 2018); United States v.

Quashie, 162 F.Supp.3d 135, 141-42 (E.D.N.Y. 2016)

(finding Riley does not eliminate abandonment exception for cell phones); Kelso v. State, 562 S.W.3d 120,

135 (Tex. App.—Texarkana 2018, pet. ref’d); Edwards,

497 S.W.3d at 160; Lopez v. State , 512 S.W.3d 416

(Tex. App.—Corpus Christi 2016, no pet.) (holding

that appellant abandoned phone and had no standing to object to evidence retrieved from it when he

left the device at his workplace and never requested

that it be returned to him).

Appellant has not shown that he had a reasonable

expectation of privacy in the cell phone that he

abandoned inside the vehicle. Appellant therefore

lacks standing to complain of the reasonableness of

the search of the contents of the cell phone. See

Swearingen v. State , 101 S.W.3d 89, 101 (Tex. Crim.

App. 2003); Edwards, 497 S.W.3d at 160. We overrule

appellant’s sole issue challenging the denial of his

motion to suppress.

App.28a

III. Conclusion

Because the record shows that appellant abandoned his cell phone, we conclude the trial court did

not err in impliedly finding that appellant lacked

standing to challenge the search of the cell phone.

We affirm the trial court’s judgment.

/s/ Kem Thompson Frost

Chief Justice

Panel consists of Chief Justice Frost and Justices

Wise and Hassan.

Publish—Tex. R. App. P. 47.2(b).

App.29a

ORDER ON DEFENDANTS MOTION TO

SUPPRESS CELLULAR SEARCH

(MAY 30, 2018)

IN THE DISTRICT COURT HARRIS COUNTY,

TEXAS 230TH JUDICIAL DISTRICT

________________________

STATE OF TEXAS

v.

JERRY WILTZ

________________________

Cause No. 1514086

Before: Brad HART, Judge Presiding.

Upon due consideration, Defendant’s Motion to

Suppress Cellular Search is DENIED.

AND IT IS SO ORDERED ON THIS THE ___

DAY OF __________, 2017.

/s/ Brad Hart

Judge Presiding

Signed May 30, 2018

App.30a

BENCH RULING IN SUPPRESSION HEARING

(OCTOBER 8, 2018)

IN THE DISTRICT COURT HARRIS COUNTY,

TEXAS 230TH JUDICIAL DISTRICT

________________________

THE STATE OF TEXAS

v.

JERRY WILTZ

________________________

Trial Court Cause No. 1514086 & 1570825

Court of Appeals Nos. 14-18-00718-CR &

14-18-00719-CR

Volume 7 of 15 Volumes

Before: Hon. Brad HART, Judge Presiding.

[October 8, 2018, Transcript p.3]

THE COURT: What do you want to do first? MR.

HOUTHUIJZEN: We would like to address the

motion to suppress first, Judge.

THE COURT: All right. Then I will address that one

first.

MR. HOUTHUIJZEN: Find out what your ruling is.

But before you do so, I would like to bring to the

Court’s attention that last week I received an email from the State. In that e-mail—it was at

5:20 p.m. last week, May 23rd, same day we had

the motion to suppress hearing. I got an e-mail

from the State with a search warrant that had

App.31a

been executed April 8th or 9th of this same year,

of 2018, for the cell phone that was in question

during that motion to suppress hearing.

And I just would like to bring that to the Court’s

attention, that the State has filed a search

warrant now that we have addressed the illegality

of the original search. That search warrant, if

the Court would like to see it—we will be filing

another motion to suppress that search warrant.

And the search warrant’s probable cause is the

same issues that we went over in the original

motion to suppress concerning the illegality of

the search. So, for what it’s worth, we just

wanted to bring that to the Court’s attention.

THE COURT: Well, all of you people are the gift that

keeps on giving, aren’t you? Well, no, we’re not

addressing that right now.

MR. HOUTHUIJZEN: I understand.

THE COURT: We’ll address this—

MR. HOUTHUIJZEN: I understand.

THE COURT:—right now.

All right. Regarding the motion to suppress

hearing that we had last week, first off, I will

make—as I think the evidence is clear—that the

defendant was stopped on a traffic stop for

failing to stop at a designated point. Which I

don’t believe that there was any controverted

evidence regarding that as the video seemed to

clearly establish that the vehicle was not stopped

at the designated point. That the defendant was

the driver of that vehicle. The defendant pulled

into a parking lot and ordered to stop. Did not

App.32a

pull into a parking space, but pulled into a

parking lot and stopped the vehicle.

The deputy testified that he approached the vehicle

and smelled an odor of marijuana. At which point

he detained the defendant, placing him in handcuffs. Officer—Deputy testified that the passenger

was moving around. I don’t recall if he said he

ordered the passenger out or if the passenger just

got out. I don’t recall, but I don’t think it makes

a difference.

In any event, the passenger got out of the vehicle

and took off running. The deputy gave chase.

Passenger door was left open. Deputy gave chase

of that person. At which point you can see on the

video clearly the defendant fleeing the scene too

while in handcuffs. I believe the testimony was

that the defendant was not caught there at the

scene, but the passenger was caught and brought

back to the scene.

Specifically regarding the cell phone-what the

officer testified to was that he was conducting an

inventory search of the vehicle. Located a gun,

various other items that he believed to be stolen.

Didn’t really say how or why he believed those

items to be stolen, but said that he had found

several items that he believed may have been

stolen. Additionally, found the cell phone in the

front of the vehicle.

The officer testified that since he thought—I

believe what he said was that since he thought

the items were stolen, he thought maybe the cell

phone was stolen also. So, he was looking to see

who the owner of the phone was.

App.33a

Couple of issues here as I see it. There was no

real testimony about this being a search incident

to arrest. I think if it were, then Riley would

certainly apply and that would have been an

illegal search.

Regarding the inventory of the vehicle, I don’t

believe searching a cell phone during an inventory

of the vehicle would have been appropriate either.

There was—I believe in the Riley case, maybe it

was another case, that talked about searching

a cell phone in order to help catch a fleeing

suspect, how that might be okay. But I don’t really

find that that’s—would have been necessary

here in this case because the officers could have

gotten a search warrant since the defendant was

not caught there at the scene. Gotten a search

warrant to search the cell phone to figure out

was it stolen, did it belong to the defendant, who

it belonged to, anything of that nature.

However, under Texas law, specifically Edwards

versus State, 497 Southwest 3rd, 147 as it relates

to abandoned property, this case that we face

ourselves with and Mr. Wiltz is not completely

similar, but similar enough that it appears that

the defendant relinquished any privacy interest

he had in that cell phone when he fled the scene

and left it there. There was no real testimony

about the cell phone being locked where he needed

a code to get into it. It does not appear to be that

way since the officer was able to look in it and

see who the phone belonged to.

App.34a

In any event, because of that case and the

testimony and evidence presented, the Court will

find that the defendant abandoned the cell phone.

Therefore, no longer had standing to contest the

search of the cell phone. So, your motion to

suppress on that will be denied. All right.

MR. ROGERS: Thank you, Judge.

MR. HOUTHUIJZEN: Thank you, Judge.

THE COURT: I don’t know—I don’t know anything

about the search warrant. I don’t know. So, I

don’t know.

MS. COOPER: And just you’re aware, the initial abandoned phone, they just looked in it to get some

information on who it belonged to. They didn’t

do a full download of it at that time. We did the

search warrant to do the full download later on.

So, that was the distinction of that.

THE COURT: Okay. Well, like I said, I haven’t seen

the search warrant. So, I don’t know what else,

if anything, can be complained about in there.

I’ve made my ruling.

If the probable cause at least partially for the

search warrant is based upon the evidence we

just heard on this motion to suppress, then I’m

assuming—even though I probably shouldn’t

because I don’t know what other information is

in there. But at least that portion of the probable

cause I will find or—information contained in

the affidavit, I would find probable cause for

that or find that there would be no standing for

that part of it. But I don’t know what else is in

there. I don’t know if there might be something

App.35a

else beyond that. But I would think that it would

be okay, but I’m not—especially with y’all, I’m

not assuming that. Okay.

(Proceedings adjourned).

App.36a

JUDGMENT OF CONVICTION BY JURY

(AUGUST 2, 2018)

IN THE 230TH DISTRICT COURT

HARRIS COUNTY, TEXAS

________________________

STATE OF TEXAS

v.

WILTZ, JERRY

________________________

Case No. 151408601010

State ID No.: TX50524692

Incident NO/TRN: 9171982787A00I

Judge Presiding:

Hon. Brad Hart

Date Judgment Entered:

08/02/2018

Attorney for State:

Jerell Rogers/Micala Clark

Attorney for Defendant:

Houthuijzen, Alexander

Offense for which Defendant Convicted:

Aggravated Robbery-Deadly Weapon

Charging Instrument:

Indictment

Statute for Offense:

App.37a

N/A

Date of Offense:

06/13/2016

Degree of Offense:

1st Degree Felony

Plea to Offense:

Not Guilty

Verdict of Jury:

Guilty

Findings on Deadly Weapon:

Yes, a Firearm

Punished Assessed by:

Jury

Date Sentence Imposed:

08/06/2018

Date Sentence to Commence:

08/06/2018

Punishment and Place of Confinement:

10 Years Institutional Division, TDCJ

This Sentence Shall run Concurrently.

Sentence of confinement suspended, defendant

placed on community supervision for N/A.

Fine: N/A

Court Cost: As Assessed

Restitution: N/A

App.38a

Time Credited

From: 06/28/2016 to 06/28/2016

From: 07/24/2017 to 11/14/2017

From: 08/02/2018 to 08/06/2018

If Defendant is to serve sentence in county jail

or is given credit toward fine and costs, enter days

credited below.

N/A DAYS

NOTES: N/A

This cause was called for trial in Harris County,

Texas. The State appeared by her District Attorney.

Counsel/Waiver of Counsel

Defendant appeared in person with Counsel.

Punishment Assessed by Jury/Court/No election

Jury. Defendant entered a plea and filed a

written election to have the jury assess

punishment. The jury heard evidence relative

to the question of punishment. The Court

charged the jury and it retired to consider

the question of punishment. After due

deliberation, the jury was brought into Court,

and, in open court, it returned its verdict as

indicated above.

Punishment Options

Confinement in State Jail or Institutional

Division. The Court ORDERS the authorized

agent of the State of Texas or the Sheriff of

this County to take, safely convey, and deliver

Defendant to the Director, Institutional

App.39a

Division, TDCJ. The Court ORDERS Defendant to be confined for the period and in the

manner indicated above. The Court ORDERS

Defendant remanded to the custody of the

Sheriff of this county until the Sheriff can

obey the directions of this sentence. The

Court ORDERS that upon release from

confinement, Defendant proceed immediately

to the Harris County District Clerk’s office.

Once there, the Court ORDERS Defendant

to pay, or make arrangements to pay, any

remaining unpaid fines, court costs, and

restitution as ordered by the Court above.

Execution/Suspension of Sentence

The Court ORDERS Defendant’s sentence

EXECUTED.

-----------------------------------------------------------Furthermore, the following special findings or

orders apply:

DEADLY WEAPON.

THE COURT FINDS DEFENDANT USED OR

EXHIBITED A DEADLY WEAPON , NAMELY , A

FIREARM, DURING THE COMMISSION OF A FELONY

OFFENSE OR DURING IMMEDIATE FLIGHT THEREFROM OR WAS A PARTY TO THE OFFENSE AND

KNEW THAT A DEADLY WEAPON WOULD BE USED

OR

EXHIBITED. TEX. CODE CRIM. PROC. ART. 42A.054;

TEX. PENAL CODE SEC. 1.07(17)(A)(B).

App.40a

Signed and entered on 08/07/2018

/s/ Brad Hart

Presiding Judge

Notice of Appeal Filed: Aug 06, 2018

Clerk: A Sanchez

Case Number: 151408601010

Defendant: Wiltz, Jerry

Right Thumbprint

App.41a

ORDER OF THE COURT OF CRIMINAL APPEALS

OF TEXAS DENYING APPELLANT’S

MOTION FOR REHEARING

(NOVEMBER 25, 2020)

COURT OF CRIMINAL APPEALS OF TEXAS

________________________

JERRY WILTZ

v.

THE STATE OF TEXAS

________________________

Tr. Ct. No. 1514086

PD-0252-20

On this day, the Appellant’s motion for rehearing

has been denied.

JUDGE RICHARDSON AND JUDGE WALKER

WOULD GRANT

/s/ Deana Williamson

Clerk

Alexander Houthuijzen

Attorney-at-Law, PLLC

917 Franklin St Ste 230

Houston, TX 77002-1741

*Delivered via e-mail*

App.42a

14th Court of Appeals Clerk

Christopher A. Prine

301 Fannin, Suite 245

Houston, TX 77002-7006

*Delivered via e-mail*

State Prosecuting Attorney

Stacey Soule

P.O. Box 13046

Austin, TX 78711

*Delivered via e-mail*

District Attorney Harris County

Appellate Section

1201 Franklin St. Ste. 600

Houston, TX 77002-1901

*Delivered via e-mail*

App.43a

CELL PHONE SEARCH WARRANT

(APRIL 9, 2018)

IN THE DISTRICT COURT HARRIS COUNTY,

TEXAS 230TH JUDICIAL DISTRICT

________________________

Nos. 151408601010

Court: 230

________________________

THE STATE OF TEXAS

COUNTY OF HARRIS

To the Sheriff or Any Peace Officer of Harris County

Texas

Greetings:

WHEREAS, Complaint in writing, under oath,

has been made before me by Joe Freeman, a peace

officer employed by Harris County Sheriff’s Office,

and who is currently assigned to the Robbery division/

department, with an address of Harris County Sheriffs

Office, which complaint is attached hereto and

expressly made a part hereof for all purposes and

said complaint having stated facts and information

in my opinion sufficient to establish probable cause

for the issuance of this warrant;

YOU ARE THEREFORE COMMANDED to forthwith search the place therein named, to wit: One (1)

“Alcatel” brand cell phone with Serial Number

B2000013C2Y23RLV tagged in HC16-96075 under

Tag No. 160014885. One (1) “Samsung” brand phone

App.44a

with Serial Number SMS9061 tagged in HC16-96075

under Tag No. 160014885. and One (1) “LG” brand

cell phone with Serial Number 604CYDG011746 tagged

in HC16-96075 under Tag No. 160014885 which is

currently located at 2223 West Loop South, Houston,

Harris County, Texas and is owned by or was found

in the possession of Jerry Wiltz with the authority to

search for and to seize any and all evidence that may be

found therein including, but not limited to: photographs/videos; text or multimedia messages (SMS

and MMS); any call history or call logs; any e-mails,

instant messaging, or other forms of communication

of which said phone is capable; Internet browsing

history; any stored Global Positioning System (GPS)

data; contact information including e-mail addresses,

physical addresses, mailing addresses, and phone

numbers; any voicemail messages contained on said

phone; any recordings contained on said phone; any

social media posts or messaging, and any images

associated thereto, including but not limited to that

on Facebook, Twitter, and Instagram; any documents

and/or evidence showing the identity of ownership

and identity of the users of said described item(s);

computer files or fragments of files; all tracking data

and way points; CD-ROM’s, CD’s, DVD’s, thumb drives,

SD Cards, flash drives or any other equipment attached

or embedded in the above described device that can

be used to store electronic data, metadata, and temporary files.

YOU ARE FURTHER ORDERED to have a

forensic examination conducted of any devices seized

pursuant to this warrant to search for the items previously listed.

HEREIN FAIL NOT and due return make hereof.

App.45a

WITNESS MY SIGNATURE on this the 9th day

of April A.D., 2018 at 11:30 O’clock.

/s/ S. Brown

Magistrate

185th district court

Harris County, Texas

App.46a

AFFIDAVIT OF JOE FREEMAN

THE STATE OF TEXAS

COUNTY OF HARRIS

I, Joe Freeman, a peace officer employed by Harris

County Sheriffs Office, and who is currently assigned

to the Robbery division/department, with an address

of Harris County Sheriffs Office, do solemnly swear

that I have reason to believe and do believe that

within One (1) “Alcatel” brand cell phone with Serial

Number B2000013C2Y23RLV tagged in HC16-96075

under Tag No. 160014885. One (1) “Samsung” brand

phone with Serial Number SKS9061 tagged in HC1696075 under Tag No. 160014885. and One (1) “LG”

brand cell phone with Serial Number 604CYDG011746

tagged in HC16-96075 under Tag No. 160014885 which

is currently located in 2223 West LOOP South.

Houston, Harris County, Texas and is owned by or

was found in the possession of Jerry Wiltz, is evidence including, but not limited to: photographs/videos;

text or multimedia messages (SMS and MMS); any

call history or call logs; any e-mails, instant messaging,

or other forms of communication of which said phone

is capable; Internet browsing history; any stored

Global Positioning System (GPS) data; contact information including e-mail addresses, physical addresses,

mailing addresses, and phone numbers; any voicemail

messages contained on said phone; any recordings

contained on said phone; any social media posts or

messaging, and any images associated thereto, including but not limited to that on Facebook, Twitter, and

Instagram; any documents and/or evidence showing

the identity of ownership and identity of the users of

said described item(s); computer files or fragments of

App.47a

files; all tracking data and way points; CD-ROM’s,

CD’s, DVD’s, thumb drives, SD Cards, flash drives or

any other equipment attached or embedded in the

above described device that can be used to store

electronic data, metadata, and temporary files.

Your Affiant Has Probable Cause for Said Belief

by Reason of the Following Facts:

On June 13, 2016 at approximately 12:50am,

Houston Police Department officers were dispatched

to “Zone D’Erotica” adult store located at 13137

Willow Chase Drive in Houston, Harris County Texas,

in reference to a robbery. Affiant reviewed Houston

Police Department OR#757068-16 learned that George

Granato was the complainant in the aforementioned

case. Complainant Granato advised that while working

at the above location, two suspects (one black male

and one white male) entered the location. Complainant

Granato advised that one of the males was black

and pointed a black gun at the complainant while

demanding money from him. The black suspect

reached under the counter and took the reserve cash

box hidden under the counter, leading the complainant

to believe that the black male suspect must have

worked at the store before. The complainant advised

that the suspects wore bandanas. In addition to the

money, the suspects also took other merchandise

before leaving together in possibly tan suburban.

Shortly after this and on the same previously

mentioned date, Harris County deputies responded to

an Aggravated Robbery call at a different “Zone

D’Erotica” adult store located at 19211 North Freeway,

Spring, Harris County, Texas. Deputies were dispatched at approximately 1:14am, less than 30 minutes

after the call at the 13137 Willow Chase location.

App.48a

While on the scene, Harris County Deputies met

with complainant James Wright who advised that he

was working at the location when two suspects (one

black male and one white male) entered the store.

Complainant Wright advised that the black male

suspect, wearing a black bandanna over his face,

brandished a firearm and demanded the money that

was stored in the register and the backup bank,

leaving complainant Wright to believe that the black

male suspect must have worked at the store before.

The white male was wearing a red bandana and

brandished a black in color handgun with a red slide.

The black male unlocked the door to go behind the

counter, and opened the register as if he had done it

before and took from it approximately $138.00. Shortly

after this and after taking additional store merchandise, Complainant Wright advised that the suspects

then fled from the store in what seemed to be a late

model Gray or Blue Chevy Tahoe or Suburban with

unknown plates.

On Wednesday, January 15, 2016, Deputy Jose

Castellanos of the Harris County Sheriffs Office was

on patrol in the 1300 block of W. FM 1960 Road,

Harris County, Texas when he observed a gray 2007

Chevrolet Tahoe bearing Texas tag BG2Y695 fail to

stop at the designated point when stopping at the red

light, which intersected with Ella Boulevard. Deputy

Castellanos conducted a traffic stop on the vehicle

which then drove into a nearby parking lot. Deputy

Castellanos approached the vehicle and smelled an

odor of marijuana emitting from inside and made

contact with the driver, later identified as defendant

Jerry Wiltz, and noted that he appeared to be nervous.

Deputy Castellanos detained defendant Wiltz. Deputy

App.49a

Castellanos then began to approach the white male

passenger, later identified as defendant Peter VanderVeen. After ordering defendant Vander-Veen to step

out of the vehicle, defendant Vander-Veen opened the

door and fled north through the parking lot. Deputy

Castellanos was eventually able to detain defendant

Vander-Veen and while doing so, recovered a black

KelTec P-11 9mm pistol with a red slide that fell from

defendant Vander-Veen’s waist line.

While Deputy Castellanos was dealing with Defendant Vander-Veen, it was found that defendant Wiltz

had fled the scene. Deputy Castellanos reviewed his

dash cam footage and observed defendant Wiltz fleeing

westbound through the parking lot with the handcuffs

behind his back. Upon the arrival of additional units,

Deputy Castellanos then began to check the Tahoe.

Inside the vehicle, Deputy Castellanos observed

a black Sig Saur P226 9mm pistol within the center

armrest. Deputy Castellanos also observed several

newly packed items through the vehicle, which included

sex toys, “Bongs”, car audio supplies and radio, electronic

cigarettes, back packs, and other miscellaneous items

which appeared to have been stolen. Deputy Castellanos also found two black bandanas and two clear

plastic bags containing a green leafy substance which

Deputy Castellanos knew from his professional experience to be marijuana. Within the vehicle, Deputy

Castellanos also observed several cell phones, including

a cell phone located by the driver seat, where defendant Wiltz had been sitting. Deputy Castellanos began

to check text message that may have had the owners’

name or an address where the owner could be located

and he observed a text having the address of 13137

Willow chase Drive, which was the location of one of

App.50a

the Zone D’Erotica adult stores that had been robbed.

Deputy Castellanos also observed the name “Jerry

Wiltz” in the text message section of the owner’s

message details. In the driver side door panel, Deputy

Castellanos located a check with the name “James

Wright” on it, the same name as the complainant from

the Zone D’Erotica robbery at 19211 North Freeway.

Deputy Castellanos entered the name “Jerry Wiltz”

into the HCSO reporting system at which time a hit

for “Jerry Wiltz”, with a date of birth of 6/2/94 was

found in the system. When checking the driver’s license

information and photo, Deputy was able to positively

identify Jerry Wiltz as the suspect who had escaped

from his scene. Your affiant was briefed on all of the

above on the morning of June 15, 2016 and reviewed

the original report documenting the above, HC1694813.

The items which appeared to have been stolen

were transported to the Cypresswood Station where

they were itemized and documented. The manager of

the Zone D’Erotica adult store was contacted and

was asked to arrive at the Cypresswood Station to

verify items which may have been stolen from the

store. Manager Todd Messsina was able to positively

identify items from the vehicle as belonging to the

Zone D’Erotica located at 13137 Willow Chase Drive.

Manager Todd Messina further identified defendant

Jerry Wiltz as a former employee of Zone D’Erotica.

WHEREFORE, PREMISE CONSIDERED, Affiant

respectfully requests that a warrant issue authorizing

your Affiant and any other peace officer in Harris

County, Texas to search the contents of One (1)

“Alcatel” brand cell phone with Serial Number

B2000013C2Y23RLV tagged in HC16-96075 under

App.51a

Tag No. 160014885. One (1) “Samsung” brand phone

with Serial Number SMS9061 tagged in HC16-96075

under Tag No. 160014885, and One (1) “LG” brand

cell phone with Serial Number 604CYDG011746 tanned

in HC16-96075 under Tag No. 160014885 with the

authority to search for and to seize and to analyze

the property and items set out earlier in this affidavit.

Sworn to and Subscribed before me on this the 9

day of April, A.D., 2018.

/s/ S. Brown

Magistrate

185th district court

Harris County, Texas

App.52a

RETURN AND INVENTORY

THE STATE OF TEXAS

COUNTY OF HARRIS

The undersigned, being a peace officer under the

laws of the State of Texas, certifies that the foregoing

warrant came to hand on the day it was issued

executed on the 10th day of April A.D., 2018, by

making the search directed therein and seizing during

the search the following described property:

Providing DA Investigator D. Brown with a copy

of the signed search warrant for the listed phones in

the possession of the District Attorney’s office.

/s/ Signature not legible

Officer Executing Process