Appellant Adrianna Jean Veal was charged with three counts of burglary of a habitation. Veal objected to the issuance of a search warrant for her cell phone, and the trial court overruled her objection. Veal later pleaded guilty to the felony offense of burglary of a habitation with intent to commit a felony. See TEX. PENAL CODE § 30.02. On appeal, Veal contends that the warrant was issued in violation of the Fourth Amendment because (1) the probable cause facts were stale and (2) the State’s delay in seeking the warrant was unreasonable. Because we conclude that the probable cause facts were not stale and Veal did not preserve the unreasonable delay issue, we affirm the trial court’s judgment. BACKGROUND Veal was indicted for three counts of burglary or entering a habitation without the consent of the owner: for entering with the intent to commit murder, for entering with the intent to commit aggravated assault causing serious bodily injury, and for entering with the intent to commit aggravated assault with a deadly weapon. Timothy Custer, the complaining witness, had been dating Veal on and off for several months at the time of the offense. Custer said that he never gave Veal a key to his apartment. But in May 2020, he came home and found Veal hiding in his closet. Without saying a word, Veal pointed a gun at Custer and shot him in the chest. The gun jammed when Veal tried to fire it again, allowing Custer to try to gain control of the gun. Veal then hit Custer with a hammer multiple times in the skull and face before fleeing. Veal called her friend, R. Chavez, after the shooting and asked him to pick her up, seeming frantic. Chavez picked Veal up in his truck, and she told him that she broke into Custer’s apartment, shot Custer, and hit him with a hammer. Chavez dropped Veal, a veteran, off at her house so that she could call the military police; then, he reported the shooting to the Bell County Sheriff’s Office. Officer J. Mueller of the Killeen Police Department investigated. He arrested Veal on the day of the shooting at her home. He allowed Veal to grab her cell phone before leaving. Officer Mueller noticed the phone was an Android device that appeared to be passcode protected. He did not seize the phone because he believed he needed the passcode for access. Veal was booked into the Killeen City Jail, where the phone was collected along with her other personal belongings. Later, Veal and her belongings were transferred to the Bell County Loop Jail. After a few months, Veal’s counsel asked the sheriff’s office for Veal’s cell phone so that the contact information could be accessed in developing her defense. The sheriff’s office refused to release the phone without a court order, so Veal filed a motion in the trial court. The State advised Veal’s counsel that it intended to request a search warrant for a forensic evaluation of the phone. Veal objected to the issuance of a warrant, based on the lack of “new or intervening facts which would give KPD probable cause” for the warrant. In support of the State’s request, Officer Mueller executed a search warrant affidavit. In it, he recounted that Chavez said Veal had texted him before the burglary, asking him “to hold his Glock.” Chavez “told [Veal] to go buy one.” Chavez also told Officer Mueller that Veal called Chavez and asked to be picked up after fleeing the scene. Officer Mueller went to Veal’s residence to arrest her. Veal was allowed to take her cell phone, which was passcode protected, to the Killeen City Jail. Four months later, a prosecutor asked Officer Mueller if there was any evidence on Veal’s phone. Officer Mueller advised that there were texts between Veal and the complaining witness as well as between Veal and Chavez. The prosecutor asked Officer Mueller to prepare a search warrant application for the phone. To prepare the warrant affidavit, Officer Mueller confirmed with an investigator that the phone was still at the Bell County Loop Jail, where Veal had been moved. The trial court held a hearing and, several months later, overruled Veal’s objection and issued the search warrant. Nearly eight months after the trial court ruled and the search warrant issued, Veal pleaded guilty to burglary of a habitation with intent to commit a felony and stipulated to the deadly weapon enhancement. In exchange for her plea, the State agreed not to prosecute two of the three counts in the indictment as well as a separate charge of aggravated assault against a family member with a deadly weapon. After Veal pleaded guilty, the trial court assessed her punishment. During the sentencing hearing, Custer testified about the burglary. Chavez also testified. Over Veal’s objection, he discussed several texts from Veal. The State confirmed that certain text messages were recovered from Veal’s cell phone and that Chavez had used a copy of the texts to refresh his recollection. When asked on cross-examination if he had the copy with him where he could see it, Chavez answered, “Yes. I have a copy with me currently.” But the texts themselves were not admitted into evidence. Chavez testified that, about a month before the shooting, he had a text exchange with Veal. She texted him, “Do you ever feel like you have to hurt someone?” He admitted that they discussed comic book characters and the Purge movie in the same conversation, but he did not take it seriously. In another exchange several days before the shooting, Veal texted Chavez that she was fighting with the person she was dating. She had tried to push a laptop off his lap, and when he grabbed it, she “attacked him, which made things worse.” She said that she was sick of the games and that they were “going to work through [their] issues or [they were] both dying tonight.” Then, a day or two before the shooting, Veal texted Chavez and asked to borrow his Glock handgun. She had also asked to borrow the handgun several months before the shooting, because she wanted to buy one and wanted to practice with it. After hearing testimony from three other witnesses—two KPD officers and a psychologist who evaluated Veal—the trial court sentenced Veal to 40 years’ confinement. DISCUSSION Veal argues the trial court erred in issuing the search warrant for her cell phone because the warrant affidavit was based on stale facts that could not support probable cause. And thus, the search and seizure of her phone violated the Fourth Amendment. The State responds that Veal’s staleness argument overlooks the enduring nature of cell phone data and the fact that the phone was in the custody of jail authorities from her arrest until the warrant issued. We note that—unlike most cases in which a defendant argues the State should not have used evidence obtained in violation of the Fourth Amendment—Veal did not move to suppress the evidence. But the parties have treated her objection to the issuance of a search warrant for her cell phone as a motion to suppress, and we will do the same. The State did not claim that Veal failed to preserve error, and we are satisfied that Veal’s objection to the issuance of the search warrant and to the testimony about the text messages at punishment preserve error. See Galitz v. State, 617 S.W.2d 949, 952 n.10 (Tex. Crim. App. 1981) (“A ‘motion to suppress’ evidence is nothing more than a specialized objection to the admissibility of that evidence.”); Ratliff v. State, 320 S.W.3d 857, 860 (Tex. App.—Fort Worth 2010, pet. ref’d) (“To preserve error about the illegal seizure of evidence, a defendant must either file a motion to suppress and obtain a ruling on the motion or timely object when the State offers the evidence at trial.”). Probable Cause The United States Constitution protects against unreasonable searches and seizures. U.S. CONST. amend. IV; see also TEX. CONST. art. I, § 9. The Fourth Amendment requires that “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. The probable cause requirement means that the affidavit must provide sufficient facts for the magistrate to conclude that the item to be seized will be on the described premises at the time the warrant issues and the search executed. Crider v. State, 352 S.W.3d 704, 707 (Tex. Crim. App. 2011). “The ultimate criteria in determining the evaporation of probable cause are not found in case law, but in reason and common sense. The hare and the tortoise do not disappear over the hill at the same speed.” Id. Courts do not “assess an affidavit’s staleness by counting the number of days between the events described in the affidavit and a warrant’s issuance, as a merchant would beads on an abacus.” United States v.Abrams, 971 F.3d 22, 33 (1st Cir. 2020). Instead, courts review various factors bearing on staleness, such as the nature and characteristics of the suspected criminal activity, and the likely endurance of the information. United States v. Allen, 625 F.3d 830, 842–43 (5th Cir. 2010); see also Crider, 352 S.W.3d at 708 (relevant factors include: (1) the type of crime (short term or continuous), (2) the suspect (nomadic or habitual), (3) the item to be seized (perishable or of enduring utility to its holder), and (4) the place to be searched (criminal forum of convenience or secure operational base)). “Probable cause ceases to exist when, at the time the search warrant is issued, it would be unreasonable to presume the items remain at the suspected place.” Manuel v. State, 481 S.W.3d 278, 288 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d) (quoting McKissick v. State, 209 S.W.3d 205, 212 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d)). A. Standard of Review Courts employ a totality-of-the-circumstances analysis for probable cause determinations. Illinois v. Gates, 462 U.S. 213, 238 (1983); Rodriguez v. State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007). The magistrate must make a practical, commonsense decision on whether, given all the circumstances set forth in the affidavit, a fair probability exists that evidence of a crime will be found in a particular place. Gates, 462 U.S. at 238. The reviewing court ensures that the magistrate had a “‘substantial basis’ for . . . concluding that probable cause existed.” Id. at 238–39. “This ‘substantial basis’ standard of review does not mean the reviewing court should be a rubber stamp but does mean that the magistrate’s decision should carry the day in doubtful or marginal cases, even if the reviewing court might reach a different result upon de novo review.” Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010) (internal quotation marks omitted). Our inquiry, then, is whether the four corners of the affidavit contain sufficient facts, and inferences from those facts, to establish a “fair probability” that evidence of a particular crime will likely be found at a given location. Rodriguez, 232 S.W.3d at 62; McKissick, 209 S.W.3d at 212. B. Staleness Veal argues that there was no probable cause to issue the search warrant for her cell phone because the probable cause facts were stale. Veal notes that Officer Mueller provided no information in the affidavit about where Veal’s phone had been during the previous four months, whether it had been kept in a secure location, or who had access to it. The State argues there was no error here because the probable cause facts were not stale, the phone remained in the custody of jail authorities, and no one tampered with the phone. Veal argues only about the staleness of the information, not whether Officer Muller’s affidavit provided sufficient facts to establish a fair probability that her cell phone would contain evidence of the burglary, so we focus on staleness. Officer Mueller’s affidavit asserts that Veal had her phone when she was taken into custody and transported to Killeen City Jail in May 2020 and that he did not seize the phone because it was passcode protected. According to the affidavit, as of September 2020, four months after Veal’s arrest, Veal’s phone was at the Bell County Loop jail, where Veal was being held. The affidavit does not specify how the phone was kept from May to September, but we can infer from the affidavit that the phone was first at Killeen City Jail or with police upon Veal’s arrest and then at Bell County Loop Jail. Because the phone was passcode protected and stored in a restrictive facility, we can further infer that access to the phone would be limited. When evaluating the staleness of probable cause facts, this Court considers the details of the case, including the nature of the offense and the evidence sought, especially whether the evidence “is of the sort that can reasonably be expected to be kept for long periods of time in the place to be searched.”[1] See Jarnagin v. State, 392 S.W.3d 223, 228 (Tex. App.—Amarillo 2012, no pet.) (classifying electronic devices as “evidence not of a transient nature” in staleness analysis); cf. United States v. Robinson, 741 F.3d 588, 597 (5th Cir. 2014) (collecting cases holding that digital evidence information was not stale after 10 months, a year, and 13 months). Few Texas cases have addressed the staleness of digital evidence or evidence stored by law enforcement. This case is different from others involving blood evidence in driving-while-intoxicated cases or contraband in a car or house because digital evidence is not immediately perishable. What’s more, evidence stored in a secure facility is unlikely to be moved or altered. Here, we have a passcode-protected cell phone stored in the Killeen Police Department or jail, then the Bell County Loop Jail. There is no reason that any information on the phone would evaporate or be tampered with. Veal has cited no case requiring chain-of-custody documentation in a warrant affidavit, and we have located none. Veal has also cited no case finding that digital information was stale after four months under similar circumstances. Although the offense was not continuing, it appears from the affidavit that Veal was arrested the day of the burglary and her phone removed from her at that time. The trial court could have inferred from the affidavit that depositing the phone with authorities the day of the burglary had the effect of freezing in time the phone’s contents. Being “highly deferential” to the magistrate’s findings, we conclude that there was a “fair probability” that the cell phone would be found at the jail. See Rodriguez, 232 S.W.3d at 64. Thus, the trial court did not err by concluding that the probable cause facts in the search warrant affidavit were not stale and issuing the warrant. We overrule Veal’s first issue. Unreasonable Delay Veal argues on appeal that the 192-day delay between her arrest and the State’s application for a search warrant for her cell phone was unreasonable and thus violated the Fourth Amendment. The State responds that there was no bad faith on its part, there was a legitimate explanation for the delay, and there was no meaningful interference with Veal’s possessory interest in her phone. The State further argues that the error was harmless because the text messages were not admitted into evidence and the evidence was sufficient to support the conviction. A. Standard of review The reasonableness of a particular seizure is ultimately a question of substantive Fourth Amendment law and thus subject to de novo review. Kothe v. State, 152 S.W.3d 54, 62–63 (Tex. Crim. App. 2004). B. Error preservation We may not determine whether a trial court erred unless error is preserved for our review. See Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003). A party must first complain in the trial court to preserve a complaint for appellate review. TEX. R. APP. P. 33.1(a); Landers v. State, 402 S.W.3d 252, 254 (Tex. Crim. App. 2013). The party’s complaint must state “the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context.” TEX. R. APP. P. 33.1(a)(1)(A). If the ground for exclusion of evidence was obvious to the trial court, waiver will not result from an imprecise objection. Nelson v. State, 405 S.W.3d 113, 127 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d). “But when the context shows that a party failed to effectively communicate his argument, then the error will be deemed forfeited on appeal.” Resendez v. State, 306 S.W.3d 308, 313 (Tex. Crim. App. 2009). A complaint that could be read to express more than one legal argument will generally not preserve all potentially relevant arguments for appeal. Id. at 314. Instead, only when there are “clear contextual clues” indicating that the party was making a particular argument will that argument be preserved. Id. An appellant’s trial objection must be timely and specific, and it must match his objection on appeal, or error is waived. TEX.R.APP.P. 33.1(a)(1)(A); Landers, 402 S.W.3d at 254; Gallo v. State, 239 S.W.3d 757, 768 (Tex. Crim. App. 2007). “For reasons of judicial economy and comity, an appellate court must find that a party has failed to preserve error if the party fails to first allow the trial court an opportunity to make a ruling.” Cruse v. State, 882 S.W.2d 50, 52 (Tex. App.— Houston [14th Dist.] 1994, no pet.). Making an argument to the appellate court that was not raised to the trial court “usurps the trial court’s function[.]” Id.; see also Van Horn v. State, No. 10-15-00394-CR, 2016 WL 936275, at *1 (Tex. App.—Waco Mar. 10, 2016, pet. ref’d) (mem. op., not designated for publication) (appellate courts maintain their status as independent tribunals by limiting their review to error that is preserved in the trial court). Veal’s objection to the issuance of the warrant was one sentence: “There is no factual basis at this time to support a finding of probable cause for the surrender and forensic evaluation of Defendant’s telephone.” At the hearing, Veal’s counsel argued that (1) Veal had an expectation of privacy in the phone, (2) by not seizing the phone when Veal was arrested, the State had waived the ability to seize it,[2] (3) Veal would not give her phone’s passcode to police, and (4) there were no new intervening facts that would give rise to probable cause. After the hearing, Veal’s brief in support of her objection was three paragraphs, none of which mentioned the length or unreasonableness of the delay. The brief reiterated the arguments from the hearing: (1) there were “no new or intervening facts which would give KPD probable cause at this time”; (2) Veal had “a legitimate expectation of privacy in the contents of her telephone”; and (3) Veal did not have to provide her passcode to her phone. At punishment, when the State sought to elicit testimony from Chavez about his texts with Veal, Veal’s counsel “renew[ed]” the objection that the texts were from Veal’s phone that was “ illegally analyzed” by the State “in violation of the 4th, 5th, and 14th Amendment[s] to the U.S. Constitution, Article 1 Section 9 of the Texas Constitution, and Article 18.01 of the Texas Code of Criminal Procedure.” But Veal did not object to the length of the delay. Veal had four opportunities to raise the unreasonable delay objection to the issuance of the warrant and the use of the information retrieved from the cell phone. First, in her objection to the issuance of the warrant; second, at the hearing on the objection; third, in her post-hearing brief in support of the objection; and fourth, as the State elicited testimony based on texts from Veal to Chavez at punishment. At no time did Veal object that the State’s interest in the evidence was outweighed by her possessory interest in the phone or that the delay was unreasonable. The first time Veal argued unreasonable delay was before this Court in a supplemental brief. Because the issue raised here does not match the objections raised with the trial court, the issue is waived. TEX. R. APP. P. 33.1(a)(1)(A); Resendez, 306 S.W.3d at 313. We overrule Veal’s second issue. CONCLUSION Because Veal has not shown that there was not a fair probability that a passcode-protected cell phone containing evidence of communications related to the offense would be found at the Bell County Loop Jail, the trial court did not err in issuing the warrant. And Veal did not preserve the unreasonable delay issue for our review. We therefore affirm the trial court’s judgment. Sarah Beth Landau Justice Panel consists of Justices Goodman, Landau, and Rivas-Molloy. Justice Goodman, dissenting. Publish. See TEX. R. APP. P. 47.2(b).
