STALEY, JAMES IRVEN III v. the State of Texas

majority opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0202-25

JAMES IRVEN STALEY, III, Appellant

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW

FROM THE SECOND COURT OF APPEALS

TARRANT COUNTY

PARKER, J., delivered the opinion of the Court in which

RICHARDSON, NEWELL, KEEL, and FINLEY, JJ., joined. YEARY, J., filed a

concurring opinion in which SCHENCK, P.J., joined. MCCLURE, J., concurred.

WALKER, J., did not participate.

OPINION

A two-year-old child was found dead in Appellant’s home. Pursuant to a

warrant, police searched computers and a cellphone found in the home. That

search revealed, among other things: a video showing Appellant abusing the child,

a video supporting a conclusion that he had done so, and evidence that he had used

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a computer program to delete files from a laptop. This evidence constituted a

small part of the inculpatory evidence admitted at trial. Appellant was convicted

of capital murder and—because the State did not seek the death penalty—

automatically sentenced to life without parole.

The court of appeals concluded that the search violated the Fourth

Amendment because the search-warrant affidavit did not include enough facts to

show probable cause that relevant evidence would be found on electronic devices

in Appellant’s home. The court of appeals then conducted a harm analysis under

the constitutional standard and found the admission of the evidence harmful.

For the purpose of this opinion we assume error and address only harm. We

conclude that the court of appeals’s harm analysis was deficient in multiple

respects. First, the court of appeals applied the wrong standard. Because the

police acted in good faith in conducting the search, the Fourth Amendment does

not require exclusion of the evidence, and any exclusion would be required only

under the Texas statutory exclusionary rule—making the applicable harm standard

the one that applies to non-constitutional errors. Second, we conclude that the

court of appeals erred in the mechanics of conducting a harm analysis by failing to

discuss all of the material evidence and by failing to explain, in light of that

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evidence, why the error was harmful. In fact, the court of appeals failed to discuss

any part of the State’s extensive incriminating evidence. Finally, we disagree with

the lower appellate court’s conclusion that Appellant was harmed. The forensic

evidence showed that the child was murdered by smothering. And other

evidence—inappropriate text messages, unusual behavior, DNA evidence, and

various evidence pointing to his prior abuse of the child during the babysitting

incident—pointed clearly to Appellant as the perpetrator. At least under the nonconstitutional standard, the balance of the trial evidence showed that any erroneous

admission of the videos and file-deletion evidence was harmless.1

Our holdings correspond to, but do not entirely match the reasoning of, the State’s second and third grounds for review. Because of our disposition of the second and third grounds, we need not address the State’s first ground. The State’s grounds for review are:

I. When assessing a probable-cause nexus, should Texas adopt the distinction

in Commonwealth v. Fernandes, 148 N.E.3d 361 (Mass. 2020) (cert. denied),

between (1) stranger-on-stranger crimes (like State v. Baldwin, 664 S.W.3d 122

(Tex. Crim. App. 2022)) and (2) household-violence homicides where

affidavits describe fraught relationships and where devices found in the same

home as the relationships and crimes will likely reveal a “clear window into

the nature” of those relationships and thus the offense (like here)?

II. Given the trial court’s finding that officers relied on the warrant in good faith,

the evidence was admissible under the Fourth Amendment and excludable—

if at all—only under Texas’s statutory rule. Did the court of appeals violate

Holder v. State, 639 S.W.3d 704 (Tex. Crim. App. 2022) (disavowing Love), by

applying the constitutional-error harm standard of rule 44.2(a)?

III. Did the court of appeals violate Long v. State, 203 S.W.3d 352 (Tex. Crim.

App. 2006), by reversing a conviction for evidentiary error without engaging

with the remaining evidence beyond a bald statement that “other evidence”

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I. TRIAL BACKGROUND

A. Discovery of the Dead Child

On October 11, 2018, a 911 dispatch indicated that a woman (Amber Odom)

was screaming about her “baby.” When emergency medical personnel arrived,

they discovered Amber cradling in her arms a two-year-and-seven-month-old boy,

Jason “Wilder” McDaniel, who had died. Rigor mortis had already set in, and the

child was cold to the touch. First responders noticed some blood on the child’s

face.

The police determined that Amber had been dating Appellant and that she

and Wilder had lived at Appellant’s residence for approximately two months.

Appellant showed a police officer to a bedroom, where Wilder had been found

lying beside his crib. Blood was found on the floor in front of the crib and on an

adult-sized pillow inside the crib. Appellant signed a consent to search, and the

police took photographs and collected the bedding from the crib. Given the blood

evidence and the condition of the child, the police suspected foul play.

Amber and Appellant each agreed to be interviewed by the police. But

Appellant withdrew his consent to be interviewed after meeting with an attorney.

existed? Further, given that the unaddressed evidence overwhelmingly

supported the conviction, was the error harmless under any standard?

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Later, Amber told a police detective about Wilder having been injured on

September 1, 2018. That night, while Amber was at work, Appellant babysat

Wilder. The next morning, Amber saw bruising on Wilder’s face. Appellant had

told her that Wilder had fallen off a bed and hit his head. Amber took a photo of

Wilder at the time. In addition to telling the detective about this incident, she

forwarded the photo to him. The photo depicted bruising on Wilder’s face.

B. The Warrant, the Supporting Affidavit, and the Search

On October 22, 2018, the police obtained a search warrant to collect and

search, among other things, computer equipment and electronic storage media.2

The warrant also specified that the police be allowed to search for and seize “[a]ny

and all computer files containing physical abuse depictions of a child and/or

children, photographs, negatives, photographic slides, videotapes, or other physical

abuse visual depictions of a child and/or children.”3 The warrant specified

Appellant’s address as the home to be searched, described the exterior of the

home, and included an outdoor photo of the home.

The warrant contained general categories of equipment and then provided lists of “included, but not limited to” examples of specific types of equipment and storage media.

The warrant also sought electronic communications, including email and instantmessage chats. And the warrant sought certain non-digital items, such as the child’s crib, but we need not concern ourselves with those items here.

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The affidavit in support of the search warrant alleged all the facts recited in

the previous section of this opinion, except for approximating the child’s age at

two years and being off by a day regarding the babysitting incident.

The affidavit also contained “boilerplate” language suggesting that

recovering any digital data would require seizing virtually all of a suspect’s

computer hardware and conducting an expert forensic analysis to look for deleted

or hidden files.

Pursuant to the warrant, the police searched Appellant’s home. They seized

a number of electronic devices, including a cellphone, a laptop, and an Apple Mac

Mini. The Apple Mac Mini contained a video recorded by a GoPro camera that

showed Appellant striking the child. A forensic examination of Appellant’s laptop

revealed that Appellant had run the program “Ccleaner” on it. And the police

found videos and a number of disturbing text-messages on Appellant’s cellphone.

We will address the content of this evidence in subsection D.

C. Suppression Motion, Ruling, and Trial Objections

Appellant moved to suppress all evidence obtained from the search of his

electronic devices, including, but not limited to, the Apple Mac Mini.4 He

Appellant actually had three different suppression motions aimed at the search, but he ultimately withdrew his first two motions and proceeded on the third, filed January 12, 2023.

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contended that the warrant’s supporting affidavit did not supply probable cause for

the search.5 Appellant cited the Fourth Amendment to the United States

Constitution; Article I, Section 9 of the Texas Constitution; and Articles 18.01 and

38.23 of the Texas Code of Criminal Procedure. He cited Article 18.01 solely for

its “probable cause” requirement,6 and for his probable cause analysis, he

principally relied upon our prior decision in State v. Baldwin.7

The parties discussed whether the affidavit provided probable cause under

Baldwin.8 The State relied upon Commonwealth v. Fernandes, a case decided by the

Supreme Court of Massachusetts,9 and upon our prior decision in Foreman v.

State.10 The trial court denied the motion.

He also contended that the search exceeded the scope of the warrant, but the motion never explained why and seemed to conflate that issue with probable cause, saying: “This seizure was undertaken outside of the lawful scope of the warrant as there was no probable cause for the seizure of the Apple Mac Mini.”

See TEX. CODE CRIM. PROC. art. 18.01(b) (“No search warrant shall issue for any purpose in this state unless sufficient facts are first presented to satisfy the issuing magistrate that probable cause does in fact exist for its issuance.”).

See supra at n.1.

To the extent defense counsel referred to “scope,” he continually referred to the probable cause requirement—complaining of the search being “outside the scope in accordance with Baldwin,” “exceeding the scope of what was offered by way of probable cause to support that warrant,” and “exceeding scope of what probable cause supported.”

See supra at n.1.

613 S.W.3d 160 (Tex. Crim. App. 2020).

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At trial, the State introduced the GoPro video, the use of Ccleaner, the

cellphone videos, and the text messages. Although the defense continually

objected to the GoPro video, it made no further objection to the Ccleaner evidence,

and it separately said “no objection” to the introduction of videos and text

messages from Appellant’s cellphone. At the end of its case-in-chief, the State

requested that the trial court also rule that the Mac Mini was validly seized under

the “plain view” doctrine. The trial court said that it felt no need for an

“expansion” of its ruling because the item was “seized in accordance with the

Judge’s order and a good faith reliance by the officer upon that.” Neither party

requested findings of fact and conclusions of law, and apart from the trial court’s

“good faith” statement, none are included in the record.

D. Trial Evidence

We now detail the relevant evidence at trial in mostly the chronological

order in which the events unfolded.

1. Wilder’s Relationship with Amber and Appellant

Shalah Wakefield, Amber’s sister, described Amber as an “amazing”

mother who had an “inseparable” relationship with Wilder. She had never seen

Amber hurt Wilder. She saw Appellant on only two occasions, but both times

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Wilder said “No James” when Appellant came near. David Taylor, Amber’s

stepfather, said Wilder was “very much” attached to his mother.

2. Facebook Messages

The State introduced Facebook messages, without objection, from Appellant

to the child’s mother on August 8, 2018. In these messages, Appellant made

several hostile comments about the child:

! Kid’s a fag, you suck.

! He’s a pussy fag.

! Scumbags and pussies need to be culled. They both fall into that

category [Wilder and his father]. And I got plenty of guns.

! I didn’t birth the faggot child.11

3. Text Messages to Amber before September 1

The State introduced a number of text messages exchanged between

Appellant and the child’s mother. It is not practical to include all of them in this

opinion, or even all the ones that are relevant, so we highlight the ones that seem

significant to our analysis. On August 8, 2018, the child’s mother said, “I’m sorry

you hate my child.” Appellant responded, “I don’t hate your child. I like him,”

but said, “I am selfish” and “can’t do another guy’s kid.” Then he added,

Bracketed material added for clarity.

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“Maybe I can but not your kid just being honest.” Later Appellant texted, “Like

the kid is terrified of me and I didn’t do anything.” Appellant further called the

child a “pussy” but later apologized for doing so, calling himself an “asshole” and

saying the kid “is not a pussy” and that he felt “horrible for saying that.”

On August 9, Amber said, “I just can’t make myself bring Wilder back

over.” She also said, “I just don’t think you like him. And that kills me Bc he is

everything to me. He’s the only thing I have.” Appellant responded, “I do to[o]

like him[.] I wouldn’t try so hard if I didn’t.”12

On August 15, when Amber asked Appellant if she would get to see him

later, Appellant said, “Depends if I find a cage for devil child.” The next day,

Appellant suggested that he would get Wilder a “shock collar.” He continued,

“Every time he says momma or bye-bye I’m gonna hit it,” and that Wilder “would

look like he had tourettes.” Amber commented that Appellant really just wanted a

dog, and Appellant responded, “Yes, I do. So I can beat the fuck out of him when

Wilder’s bad.” Appellant then added, “I’m so kidding.”

On August 20, apparently making a joke, Appellant said about Wilder, “So I

punched him in the face and threw him in the tinderbox.” Later, he texted, “I

Bracketed material added to correct spelling and punctuation.

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want to punch him in the face but he’s too cute (happy face emoji).” A few lines

down, he said, “I love him too. How are we supposed to get rid of him ugh. This

is not working as planned (two happy face emojis).” Appellant also suggested,

“We like set up a false adoption agency, we take Wilder there, drop him off, then

let him chill a day or two.”

On August 22, Appellant texted, “Fuck that little nigger lol. I’m not putting

up with that shit from him.” Later, Appellant said, “I mean all joking aside there’s

nothing wrong with him, right (happy face emoji). I mean he’s just a 2-1/2 year

old? I’m so glad I had a girl (happy face emoji). I’d do anything for you, baby

*except sign up for special needs autistic kid.” Later, Appellant texted, “I think if

you would just spank his ass a few times it would straighten him out.” Amber

responded, “I do babe I just don’t think it hurts him. (Upside down smiling face

emoji).” Appellant responded with a happy face emoji and then said, “Spanky

harder? (Happy face emoji).” A few lines down, Appellant said, “See this is what I

get for trying to be nice. I should have punched him in the face and kicked him to

the floor and said fuck you snake. He knows too, I’ll start walking towards him and

he will get up and grab his ass Bc he knows I’m ready to spank him.” Later,

Appellant said, “That nigger better figure out how to act like a homosapien

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instead of a wild animal.” A few lines down, Appellant texted, “Fine I’ll just

spank his ass red the next time and see how many times it takes him to figure it

out.” Later, Appellant said, “I’m always nice when you’re not around because I

don't want him to have a mctardy pants meltdown. I don’t wanna see him (happy

face emoji). Tell him to leave me alone.” Amber responded, “He’s asleep at

home (sad face emoji) calm down.” Appellant replied, “He’s a bully (happy face

emoji).” Later, Appellant said, “We need a makeshift cage for Wilder.” Even

later, Appellant said, “He keeps us on our toes and busy and laughing, and slightly

entertained as well, but most times it’s less entertainment and more like sleep

deprivation and suicidal thoughts and wanting to cry.” And a few lines down,

Appellant texted, “If he doesn’t we will spank some sense into him and he will for

sure. But if he doesn’t then we have to waterboard him. (Three happy face

emojis). I kidding, momma. Little miss blumpkin breath.” Later, Appellant said,

“Ugh, Babe, there’s just no other way, we are just gonna have to get rid of him.”

On August 23, Appellant texted Amber about a fantasy he had of having her

without Wilder:

It will be easy to act like he’s invisible now that he won’t be coming

over anymore, and you can tell him about all of the fun things we do

without him and how much happier we are without him here being a

little bitch that does nothing but whine and cry all the time when you

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write him letters. It’s gonna be awesome babe.

Amber responded, “You really thought that one out.” Appellant replied, “Well

the idea got bigger and bigger (happy face emoji). Amber responded, “Good joke

tho babe. We’re on our way to driving you fucking crazy.” Appellant said, “hopes

and dreams.” Amber responded that “some dreams are unattainable.” Appellant

replied, “No dreams are unattainable. Maybe if you have a whiney ass kid by your

side all the time, but not for me (happy face emoji).” Later, he texted, “I should

have gotten a whip and paddle and ball gag and a hog tie whatever for Wilder

(happy face emoji).”

On August 24, Appellant told Amber, “Can’t wait for y’all to be here. So I

slap that hiney of yours. And punch Wilder in the face (open mouth emoji).”

Later, Appellant said, “I’m bored,” and a few lines down he asked, “Can we beat

Wilder for fun? Ohhhh yay.” On August 27, Appellant told Amber, “We have no

problems except that damn kid (happy and sad face emojis).” On August 29,

Appellant said, “I can always use it to tie Wilder up and beat him.” On August 31,

Amber mentioned that Wilder had thrown up. Appellant responded, “I think

you’re supposed to rub his nose in it. Then he won’t do it again.” On September

1, Appellant said, “Not being cocky but up to this point I’ve been able to have

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anything in the world I’ve wanted. Except your kid shut up.”

Amber specifically confirmed some of these text messages in her testimony.

4. Text Messages to Others before September 1

In August group texts involving six friends,13 Appellant made derogatory

statements about Wilder that included calling him a “fag” and saying, “God, I hate

faggot kids.”

5. Mickey Mouse Toy Incident

Amber testified that Wilder had a Mickey Mouse figurine that he “always

carried with him.” One morning in late August, she saw the toy sitting on the

kitchen counter and noticed that the ears and parts of the arms and legs had been

burned off. When she confronted Appellant about this, he said that the “kitchen

monster” had done that. The mutilated toy was shown as an exhibit to the jury.

6. September 1: GoPro and “Shiner” Videos

On September 1, while Amber worked an evening shift at a bar, Appellant

babysat Wilder and his own daughter.

The GoPro video showed the following: Appellant hid behind a couch while

Wilder was sleeping on it. He lifted his head above the couch to peek at Wilder

Bradley Prigmore, a childhood friend, testified about the texts.

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and ducked back down. Then Appellant crept up and, suddenly and forcefully,

slapped the child on the side of the head.14 He then hid back behind the couch, and

the child cried for about 50 seconds. About two minutes later, Appellant raised his

head up, moved quietly to the back door, delicately opened the back door, and then

made a show of shutting it forcefully enough to make a clacking sound. He then

walked by the back of the couch where the child was sitting as if he had just come

into the room—though once he passed the child he jogged the rest of the distance

to a doorway to another part of the house.

Appellant also made a cellphone video in which he pointed to Wilder as

getting “quite the shiner” from falling off a bed. The video showed Wilder having

a large knot on his forehead. At one point in the video, Appellant asked Wilder,

“Did you fall off the bed?” At another point he asked, “Do you think I pushed you

off the bed?” Both times, Wilder appeared to have answered, “Yeah.” But in all

the videos found, Wilder appeared to answer “yeah” to almost every question

asked of him. After the “push” question and answer, Appellant laughed and said,

“That’s not what happened. Baby, he has a shiner, he fell off the bed. You’re

okay.” Appellant created edited versions of this video that did not contain the

This occurred at about the 22-second mark in the video.

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“push” question and answer. Amber testified that Appellant sent a version of this

video to her on September 1 via Snapchat, in addition to his texts, to describe what

had happened to Wilder. She described it as “a video of him and Wilder sitting on

the couch and showing me the knot on Wilder’s head.”

A police forensic witness created stills from the two videos and testified that

the clothing worn and articles on the couch appeared to match, indicating that the

“shiner” and GoPro videos were recorded on the same day.15

7. Text Messages About September 1 Incident

Starting at 11:09 p.m. on September 1, Appellant sent a string of texts to

Amber over a two-hour period informing her that Wilder had been injured. In

these texts, he deflected blame away from himself and claimed that Wilder was the

cause of his own injuries:

Hey asshole.

Two other cellphone videos were found. In one, Appellant asked Wilder a number of questions, including whether “James” is “mean,” whether Appellant is “nice,” whether the child misses his “mama,” whether the child loves his “mama,” and whether the child loves “James.” Wilder appears to have answered all of these questions “yeah.” In the other video, Appellant asked Wilder a number of questions, with Appellant’s daughter also being present. These questions included whether Wilder loved his “mommy,” his “daddy,” and his “sister.” At one point, Appellant told his daughter, “Don’t torture the little boy. Sometimes he’s sweet, most of the time he’s not.” While these videos contain some content that could cast Appellant in a mildly negative light, they pale in comparison to the GoPro and Shiner videos and to the other admissible or error-waived evidence, and any mildly negative content is cumulative of legitimately considered other evidence. Consequently, these other cellphone videos do not move the needle on the harm analysis, and we do not further dwell on them.

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Wilder fell out of bed and hit his head.

He’s okay but I wanted to FaceTime you.

***

He’s ok.

He rolled his ass right onto his head and butt.

And he somehow thinks I’m the mastermind behind him falling off

the bed.

Guess you were right, he may need a pillow, he did it right before

then.

This kid, shit goes wrong, mean James scares James.

They are out.

He’s got a knot on his noggin.

Wish you would call to talk to the boy, he’s asleep, he is the best actor

on the planet and rolled off on purpose or truly believes I pushed him.

***

Now he thinks I’m antichrist again (sad face emoji).

He busted his head and thigh good but I iced them and so they are

both way down not even bruised, they will be though.

I wish you hadn’t taken the night off.

Like you fail at momming tonight.

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Can’t even check your texts.

That’s fucking sorry.

Glad to know I’m appreciated by the woman I’m in love with and her

son that went from thinking I hung the moon to I kick him off the bed.

At 2:01 in the morning, Amber checked her texts and began responding.

Appellant then began to gaslight Amber—suggesting that she was at fault for not

answering his texts about Wilder and for working at her job. He further

commented that Wilder was “a pussy because of you” and “warped because of

tonight.” Appellant further said, “I can’t be in love with you the way you

thinking. I won’t be. Take him. Get gone. Fuck off completely. Eat dick I hate

you whore.” He further said that if she worked at the job “one time,” “We will

never speak again.” He later said, “See ya tomorrow or never again. Bitches are

waiting in line.”

Amber’s testimony confirmed the general tenor of the texts.

8. Amber’s Confrontation with Appellant

According to Amber’s testimony, she returned home after discovering that

Wilder had been injured. She went to sleep but checked on Wilder when she later

woke up and “had a really good chance to look” at Wilder’s injury, which was

“pretty bad looking.” The “bruising on his face was very purple” and “it was just

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bad.” When she confronted Appellant, he claimed that his four-year-old daughter

and Wilder were playing on the bed, that they were both holding onto Wilder’s

feet, and that Wilder let go and fell off the bed. But Appellant’s daughter told

Amber a different story—that Appellant pushed Wilder off the bed. Appellant

then took his daughter into another room and spanked her, yelling at her to quit

lying. She cried and said, “I’m not lying.” A text message from Amber to

Appellant later reflects that his daughter told Amber, “Daddy did push him, he’s

the liar.”

Although initially Amber chose to believe Appellant’s story, that night she

used her phone to take a photo of Wilder’s face. It is the same photo that she later

forwarded to the police, and we have included it in an appendix. Amber described

bruising on both the forehead and down the side of the face. She sent the photo to

the bar manager to document why she left the bar early and did not help with the

closing-time cleanup.

9. Later September Text Messages

On September 6, Appellant texted Amber, “If he ever comes over and sees

me and says ‘No James’[,] I’m taking him into the garage and putting him in the

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big trash can. And I’m gonna say ‘no, no Wilder’ and shut the kid. Lid.”16 On

September 24, Appellant said to Amber that she would “always be second place”

to his own daughter and that “Wilder doesn’t get a place (happy face emoji).” He

later said, “Punch Wilder in the face,” followed by an angry emoji, a praying

emoji, and an open-mouth emoji. On September 27, Appellant said, “And I love

Wilder. And in all honesty I love to torment him too (happy face emoji). We will

cure him of the niggerish he’s got I promise.” On September 30, after a discussion

of Wilder crying, Appellant said, “He will get it together. I think (two unreadable

emojis and a happy face emoji). Or we will throw him away.”

10. October Statements by Appellant and Wilder’s Reaction to Him

On October 1, Appellant texted to Amber, “Only the good die young.” And

then, about Wilder, he said, “That fucker is living forever.” Later, Appellant said,

“We will have more kids. Maybe he will get SIDS (happy face emoji).” Amber

told Appellant not to say that. Appellant responded that Wilder was not an infant

and therefore could not get sudden infant death syndrome and that Appellant was

“just talking shit” with Amber. Amber responded, “I know you were kidding.”

On October 6, at a cookout at Appellant’s house, Amber’s sister Shalah

Multiple lines of text run together, capitalization converted to lowercase to correct grammar, and bracketed comma inserted for clarity.

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noticed that Wilder “wanted absolutely nothing to do with” Appellant. At one

point Wilder yelled, “No James,” and he repeatedly cried when Appellant

approached him.17 At some point, Appellant responded, “Good, gosh – good,

God, Wilder, if these people didn’t know any better, you would think that – they

would think that I hurt you all the time.” Later, Amber yelled, “Pizza here,” and

Wilder began to run toward the door, but as he was about to cross paths with

Appellant, he turned around and ran straight back to Shalah.

After everyone left the cookout, Amber had an argument with Appellant.

Wilder heard the commotion and woke up crying. Appellant started “cussing” at

Amber and called Wilder a “crybaby.” After the argument continued for awhile,

Appellant told Amber and Wilder to leave, and they did.

On October 9, Appellant texted Amber, “I’ll come terrorize Wilder and get

the day started off right.” Later that evening Appellant said, “You’re mine and I

love you more but I’ll gladly claim him too. And toss him around and torture him

when he’s a niglet.”

11. Appellant’s Statements on the Night of Wilder’s Death

At 8:17 p.m. on October 10, Appellant texted Amber, “If he cries I’m going

This is the second “no James” incident—referred to earlier—that Shalah had seen.

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to have to stop ignoring him. And beat him (happy face emoji).”

According to Amber’s testimony, she and Wilder arrived at Appellant’s

home at around 8:00 to 8:30 p.m. Appellant was there. At some point, Amber

started giving Wilder a bath. Appellant came into bathroom and Wilder began

saying, “No James, no James.” Appellant started mocking him in a baby voice

saying, “no James, no James,” and then said, “Shut the fuck up.”

12. The Morning Wilder’s Death was Discovered

According to Amber’s testimony, when she woke up on the morning of

October 11, she checked on Wilder and discovered that he appeared to be dead.

She told Appellant to get a phone, he dialed 911 and threw the phone down, and

she began to talk to the 911 dispatcher.

Charity Harrison, an emergency medical technician (EMT) who arrived at

the scene, saw Amber cradling Wilder in her arms and screaming, “My baby’s

dead!” Amber was hysterical. By contrast, Appellant appeared to be unemotional

or unfazed and made no effort to console the child’s mother. Wilder had dried

blood on his cheek.

Nathan Scott, a paramedic, saw Amber crying that her baby was dead and

that she thought he fell out of his crib. She came across as being “utterly

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devastated.”

Officer Casey Kirkpatrick arrived at 9:17 a.m. He described Amber as visibly

upset, crying, and distraught. Appellant was nowhere near the mother. He led the

officer into the bedroom, where the officer spotted dried blood on the floor, what

appeared to be a drop of dried blood on the top of the crib, and “a significant

amount of blood all over” an adult-sized pillow inside the crib. Another

officer—Sergeant Charlie Eipper—saw Appellant “dry heaving” into a plastic bag.

The police collected the various items found in the crib and placed them in a

single bag for transport. These items were the bloody adult-sized pillow, a small

pink pillow, a stuffed dog, a Mickey Mouse blanket, and a pink sheet with

suspected blood on it. The items were already clumped together in the crib before

they were placed in the bag.

13. Medical and Forensic Testimony

Although the medical examiner (Dr. Stephen Hastings) listed the “manner

of death” as “undetermined” in the autopsy report, he testified that he qualified

that conclusion in the report with commentary that the evidence was “very, very

suspicious for an asphyxial death, particularly a death where another individual

placed a pillow over the decedent’s face and mouth and smothered him.” And

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indeed, the autopsy report contained a detailed paragraph consistent with his later

testimony. He further explained that attaching a homicide finding to the manner of

death in smothering cases was difficult because of the non-specific nature of the

physical evidence. He explained that if someone were trying to “get away with” a

murder, “smothering an individual would be the easiest thing” because “we need

clear and convincing evidence to call something a homicide and smothering does

not produce clear and convincing evidence in most cases.” In response to

questioning, he suggested that he would want a confession, an eyewitness, or a

showing of similar incidents. Dr. Hastings acknowledged that he had no legal

knowledge and had “never read the Penal Code.” He further acknowledged that a

jury would have a wider array of evidence at trial than he would in writing an

autopsy report.

However, he affirmed that he had testified at a grand jury proceeding that he

could not think of any explanation for the death other than homicidal suffocation.

And at trial, he further affirmed, in light of all the evidence—including the autopsy

findings and the “scene information”—that he believed that Wilder had been

smothered and murdered. Dr. Hastings noted that there was blood “in the mouth

and around the teeth area.” The doctor also pointed to seven abrasions inside the

STALEY — 25

lips that corresponded with Wilder’s teeth and were consistent with pressure

associated with smothering.18 He also pointed to “very prominent” petechiae in

“large distribution” on Wilder’s head, eyes, and neck that were indicative of

asphyxiation. He testified that often petechiae can only be seen from inches away

but that Wilder’s petechiae could be “very easily seen” from “a couple of feet

away.” He further testified to contusions and hemorrhages on the child’s body

consistent with a suffocating child struggling in the crib. But Wilder did not have

typical injuries associated with a fatal fall—no skull fractures, brain contusions,

brain swelling, or bleeding around the brain. In fact, when asked if he found “any

evidence” from the autopsy “that would be consistent” with Wilder “having died

from a fall,” Dr. Hastings responded, “No.” Nor did the medical evidence show

signs of a heart condition or any other health issue. Toxicology tests also turned up

negative.

On cross-examination, Dr. Hastings acknowledged that he saw no injury to

the child’s upper or lower frenulum (connective tissue inside the mouth between

the gums and the lips). The doctor testified that damage to a frenulum occurs in a

“small percentage” of smothering cases.

He also found an abrasion on the outside of the lips.

STALEY — 26

On redirect, the prosecutor asked how long it would take to smother a child.

Dr. Hastings responded that it was variable, “anywhere between a minute or two

to multiple minutes to, you know, even much longer if there was a prolonged

struggle that occurred where the individual was occasionally getting gasps of air.”

Dr. Suzanne Dakil, one of approximately four hundred certified child-abuse

pediatricians in the country, also concluded that Wilder had been suffocated. She

testified that Wilder had petechiae on his forehead, on his temple, inside an eyelid,

behind his ear, under his chin, on his neck, and around his internal organs. The

neck petechiae overlayed an internal hemorrhage that indicated “direct

compression.” She further found that “Wilder had injuries to the inside of his

lips that are most consistent with the lips being pushed against the teeth.” Those

lip injuries appeared to be the only bleeding injuries on Wilder’s body. She also

noted that he had no skull fractures or bleeding around the brain that would be

associated with a fall.

On cross-examination, Dr. Dakil agreed that there was an injury on one side

of the neck, underneath the jawbone, but not on the other side. She indicated that

this injury would cause bleeding (as a hemorrhage) inside the neck and could be

STALEY — 27

from strangulation.19 She agreed that it was an injury to the soft tissue and not the

muscle itself. She also agreed that there was no injury to the Adam’s apple. On

redirect, Dr. Dakil explained that a neck injury like this was not the sort of injury

that would happen in a fall.

Kelly Collins, a crime-scene technician and latent finger and palm print

examiner, testified to viewing a bloodstain on the adult-sized pillow that she

believed to be a partial palm print.

Tom Bevel, a crime-scene reconstructionist, testified that the physical

evidence was inconsistent with a crib fall. He further testified that it was

“evident” that Wilder’s body had been staged on the floor and that the forensic

evidence showed a struggle inside the crib. He also testified to seeing a bloody

palm print on the crib pillow. The print was too large for the child’s hands and

there was no blood on those hands to transfer, anyway. He further testified that

“the only wound that was reported by the Medical Examiner that was bleeding was

the mouth area.” He also testified that the blood on the pillow showed

“considerable movement with a bloody object.” He further testified that the blood

Nevertheless, Dr. Dakil did not appear to be suggesting that the minute amount of bleeding as a hemorrhage in the neck would result in blood outside the body. She twice specifically testified that the only “bleeding injury” was in his mouth—the lip injuries— indicating that they were the only injuries that would explain the presence of blood outside the child’s body.

STALEY — 28

on the floor had a pooling pattern, but if the child had already been bleeding during

a fall, the bloodstain pattern on the floor should have shown a “smearing or spining

effect.”

On cross-examination, defense counsel pointed to a number of typographical

errors in Bevel’s report. Bevel also acknowledged that his report said a photo

showed bruising on Wilder’s arm but that the actual photo was of Wilder’s leg. On

redirect, Bevel testified that there were photos showing bruising on the arms as

well.

Because the defense later called witnesses casting aspersions on Bevel’s

competence, we also provide some details about his background, elicited by the

State in front of the jury. Bevel’s forensic science work included 18 years at the

Oklahoma City Police Department and 27 more years in a company he helped

form. With analysts in seven states, the company taught courses and engaged in

analysis in the forensic sciences. Bevel had taught in 35 states, served on several

forensic-science boards (including one pursuant to an FBI appointment), and had

published peer-reviewed articles and a book on bloodstain pattern analysis (on its

third edition). Bevel’s own training in blood-stain analysis included “three

40-hour basic courses, two advanced,” and one dealing with “the physics of

STALEY — 29

liquids, specifically focusing on blood stain pattern analysis.” Bevel also had

training in crime scene reconstruction, including a month-long course dealing with

a variety of forensic-science areas, a six-week course at Hendon Police College (a

subsidiary of New Scotland Yard in England), an 80-hour lab liaison, and an

80-hour course with London Medical College on how to use information in an

autopsy. Bevel’s own case-analysis work was split fairly close to 50/50 between the

prosecution and the defense, with some work on civil cases.

James Varnon, a retired crime-scene-unit investigator for the Fort Worth

Police Department, testified for the defense that he knew about Bevel’s prior work

and had an opinion about his reputation for truthfulness and competence. His

opinion on both was that Bevel’s reputation was “bad.” On cross-examination,

the prosecutor asked him if Bevel’s testimony had ever been excluded by a court,

and Varnon said it had been excluded in the South Carolina v. Alex Murdaugh case.

But upon further questioning, Varnon was forced to admit that his conclusion that

the evidence had been excluded was based solely on a defense motion in limine in

that case and that he did not know whether the trial court had ruled on the motion.

Bill Clutter, a private investigator who had engaged in crime scene

reconstruction and bloodstain analysis, testified for the defense that he knew from

STALEY — 30

“personal experience” that Bevel had “been wrong in major cases that have led to

the conviction of innocent people.” He further testified that he did not have a very

high opinion of Bevel. Clutter testified as a “lay witness” because the defense had

not given the State notice that he was one of their testifying experts.

The defense called Dr. John Galaznik, a board certified pediatrician. He

testified generally about crib injuries, short falls, and concussions and their ability

to cause death to toddlers. He further contended that he saw an impact to

Wilder’s right parietal scalp that, if the result of a drop from 36 inches or more,

could have caused a concussion.

On cross-examination, Dr. Galaznik said his job in testifying was not “to

assess the details of this case or to assess smothering versus not smothering.” He

acknowledged that he had never testified before in a case in which smothering was

being considered as a possible cause of death. He further acknowledged that a

child who stops breathing on its own will often have an “anoxic” injury but that

Wilder had no such injury. Nevertheless, he maintained that a concussion-type

injury that caused death immediately would not show signs of an anoxic injury.

Finally, the following exchange happened between Dr. Galaznik and the

prosecutor:

STALEY — 31

Q. Okay. So it’s your testimony that a bruise that gets no deeper than

the scalp and doesn’t get to the subdural, doesn’t get to the epidural,

doesn’t get to the skull cause immediate death?

A. My opinion is that it can cause a concussion, and a severe

concussion can rarely be almost immediately fatal.

DNA testing was conducted of clippings taken from the bloody pillow and of

Wilder’s fingernails. On the eleven clippings taken from the pillow, Wilder was

included in ten of them (T1 - T10). For nine of those (T1, T2, T4 - T10), the

statistical inclusion probability was 1 in 10 trillion, which meant that there was only

a 1 in 10 trillion chance that an unrelated individual could match the DNA result.20

For one sample (T3), the statistical inclusion probability for Wilder was 75 in 100.

Appellant was included in samples T2, T3, T5, T6, T7, T9, and T11. T2, T6, and

T7 had inclusion probabilities that exceeded the Earth’s population: 1 in 71.1

billion, 1 in 137 billion, and 1 in 10.7 billion respectively. T3, T5, T9, T10, and T11

had more pedestrian inclusion probabilities: 75 in 100, 1 in 187,000, 1 in 5, and 1 in

147 respectively. Amber was excluded from all eleven samples.

DNA results were obtained from the left fingernails. Appellant was

included, with a statistical inclusion probability of 1 in 9. Amber was excluded.

DNA analysts testified that the 10 trillion number was a ceiling imposed by the testing agency on the statistics.

STALEY — 32

A computer expert testified that a forensic analysis of Appellant’s laptop

computer showed that the program “Ccleaner” had been installed and run on it.

The forensic analysis showed that the program was installed on October 14, 2018,

and run six times between October 14 and October 19. The expert described

Ccleaner as being “marketed as a system optimization program” that is “supposed

to make your computer go faster” but that it is really “an anti-forensic program”

that “deletes tracks” on the computer. On cross-examination, the expert

acknowledged that the program was advertised as an optimization program, that “a

lot” of Americans downloaded Ccleaner, and that the program had settings to

allow it to run automatically a certain number of times a week.

14. Amber’s Testimony

Although we have already addressed much of her testimony, we round out

our discussion by pointing out that Amber specifically denied harming or killing

Wilder but accepted responsibility for failing to see the “red flags” Appellant

exhibited during their relationship. She also affirmed that “the night of September

1, was the biggest red flag of all.”

E. Jury Charge, Closing Arguments, Verdict, and Sentence

1. Jury Charge

STALEY — 33

The jury charge alleged capital murder as the charged offense, with the

theory of the offense being the intentional or knowing killing of a child under age

10. Felony murder was submitted as a lesser-included offense.21 The theory of

felony murder was intentionally, knowingly, or recklessly causing injury to a child

and committing an act clearly dangerous to human life that caused the death of the

child.

2. The State’s Closing Arguments

The jury arguments of the parties were long and detailed—with the State’s

combined arguments totaling 68 pages—and it is not practical to give a blow-byblow recitation of every relevant point made. We will summarize what we see to be

the important points.

The GoPro video was a significant but comparatively small portion of the

State’s argument. The State made two passing references to it as part of bigpicture recitations of the evidence, engaged in several significant discussions of

that video, and made two side points with it. During the significant discussions,

the State referred to the GoPro video to argue a number of substantive points:

! to show Appellant and the child’s “prior existing relationship,”

Felony murder was also charged in the indictment. But the jury charge told the jury not to consider that offense if it found Appellant guilty of capital murder.

STALEY — 34

! to show, not that he killed Wilder, but what was in Appellant’s

“heart,”

! to push back against any suggestion that Appellant’s various text

messages about Wilder were jokes,

! to rebut a conclusion that a smaller head bruise could possibly be

the cause of death (because he did not lose consciousness from the

bigger bruise caused by the incident in the video),

! to show a plan by Appellant to create a history of short falls (argued

three times by the State),

! to rebut the notion that Wilder crawled out of the crib by playing

audio of Wilder saying “let me down,”

! to refer to Wilder saying on the video “no James,”

! to show that Appellant abused Wilder twice on September 1 (slapping

on the couch and pushing off the bed).

One of the side points was to recite the video in connection with the Ccleaner

evidence, asking, “If he kept the video of the GoPro, what do you think he was

getting rid of from the laptop?” The other side point was that Appellant watched

the video two days after the victim’s death. The State also briefly included the

Ccleaner evidence in a list of other evidence incriminating Appellant.

The State also argued that the text and Facebook messages “show the

portrait of a killer.” The State argued that these messages showed Appellant’s

STALEY — 35

hatred of and contempt for Wilder and his desire to be rid of him. The State

referred to various epithets Appellant called Wilder (“using words that no one

should use about anyone, much less an innocent little toddler”), to the violent

things Appellant wanted to do to Wilder, to the SIDS statement, to Appellant’s

dream sequence, and to Appellant being selfish. The State also used texts to argue

that Wilder was doing fine in the crib and was not the type to crawl out of it and

that Wilder said “no James” and Appellant reacted badly to it. The State also

argued that the context of the messages themselves showed that Appellant was not

joking. Discussion of various incriminating aspects of the messages occurred

throughout the State’s argument.22

The State also heavily argued the medical and forensic evidence. The State

discussed the opinions of the medical examiner, the child-abuse pediatrician, and

the crime-scene reconstruction expert. The State talked about the bloody pillow,

the palm print on that pillow, Appellant’s DNA on that pillow, Appellant’s DNA

under the child’s fingernails, blood being in the crib, the abrasions on the lips, the

petechiae on the child’s body, neck injuries, the absence of any serious head

The State also argued a couple text messages that we did not deem significant enough to include in our summary of the facts: that Appellant engaged in an inappropriately humorous text chat mere hours after the discovery of Wilder’s body and that Appellant used the word “asphyxiating” months after Wilder’s death to describe Appellant’s feeling of being ignored by family members.

STALEY — 36

injuries that would suggest death from a fall, and the pooling of the blood on the

floor. The State argued that “physics and gravity” supported a conclusion that the

blood would disperse rather than pool if a bleeding child fell to the floor. And the

State argued, “[I]f that’s a palm print, then all this talk about Wilder just fell out of

the bed, poof, it’s gone.” The State accused the defense of being inconsistent in

harping on the “undetermined” findings in Dr. Hastings’s autopsy report but then

rejecting the doctor’s testimony that the child had been smothered. And while the

State conceded some sloppiness in Bevel’s crime-scene reconstruction report, it

largely defended Bevel against the defense’s attacks.

The State recognized Amber’s statements that the child fell out of the crib

but minimized their significance: Amber found the child on the floor next to the

crib, so of course that is what she initially thought. And while the State

acknowledged that an officer testified to seeing a blood spot on the crib rail, the

State argued that it had presented every photo of the crib and that none showed

what the officer thought he saw.

The State also talked about the mutilation of Wilder’s Mickey Mouse toy,

about Appellant not sleeping with Amber the night Wilder was killed, about

Appellant throwing the phone down, and about Appellant not consoling Amber

STALEY — 37

after Wilder’s body was discovered. The State further pointed to Appellant’s oral

statement at the October cookout that Wilder’s reactions to him would make

people think he abused him. And the State appears to have referred to the photo

Amber forwarded to law enforcement as showing Wilder “from the night of the

GoPro video” having “really significant bruising.” And the State argued that

Appellant “must be the most unlucky man on earth” for him to be innocent with

his texts coincidentally foreshadowing the child’s death and the physical evidence

connecting him to that death.

Although Amber had been charged with failing to protect her child,23 the

State rattled off a litany of reasons to discard the idea that she was the killer: her

devotion to Wilder and being the person Wilder was closest to, her visible

devastation by Wilder’s death (with that devastation showing through the 911 call

and her grief and agony at the scene), her full cooperation with the police

investigation and testimony without immunity or a deal, and her push-back against

Appellant’s SIDS statement. The State further pointed to the absence of her DNA

on the bloody pillow.

3. Appellant’s Closing Arguments

A person can be charged with injury to a child by omission. See TEX. PENAL CODE § 22.04(a).

STALEY — 38

Appellant’s attorneys suggested that Appellant “has a foul mouth” and “a

twisted sense of humor” but that the State had “cherry-picked” texts and that the

whole context told a different story, with Appellant having a “soft side.” They

acknowledged that the GoPro video was offensive and inflammatory and that it

“makes you wanna go over there and do the same thing to him.” But they argued

that the proper thing to do with the video was to use it in a prosecution for the

conduct it depicted. The defense challenged various aspects of the State’s

evidence, suggesting that the petechiae were not extensive enough to show

smothering or strangulation, that the medical examiner’s autopsy determination of

“undetermined” meant there was not sufficient evidence of foul play, that there

were problems with the autopsy, that Bevel’s reconstruction analysis was flawed,

and that the police mishandled the bloody pillow. The defense speculated that the

pillow had been folded over, spreading the bloodstains.

Pointing out that a lot of people use Ccleaner, the defense further claimed,

“Probably 10 percent of this nation has used CCleaner in the last month to make

their computer go faster.” The defense also pointed out that Appellant did not

dispose of his GoPro or any of his other possessions. Defense counsel further said,

“Nobody said a thing was missing from that house they were expecting to find

STALEY — 39

some 11 days later. If he has some guilty mind, guilty conscience, that’s when you

get rid of things. But it’s all a facade.”

One of the defense attorneys said, “I’m not suggesting Amber did

anything,” but then they both suggested that some of her story to the police did not

add up. One of the attorneys also pointed to testimony that an EMT saw

Appellant crying and that a police officer saw Appellant unable to compose himself

and about to dry heave. Defense counsel also contended that Appellant cooperated

with the police by dialing 911, giving a tour of his home, and suggesting that the

police could take the crib. The defense further contended that the police did not

give Appellant the opportunity to cooperate but instead issued search warrants for

everything they wanted from him.

And despite casting aspersions on Amber, the first defense attorney later

said, “Everything you see is just as consistent with him falling out of the bed and

having an accident and neither one of them seeing anything that night as they

walked right by him and went to bed.” The second defense attorney reiterated that

claim saying that there was “reasonable doubt all over this case. Just because kids

don’t die every single day from falling from a crib doesn’t mean that it doesn’t

happen. Sadly, it does.” Concluding that “[e]verything fits just as well with the

STALEY — 40

plausible alternative that little Wilder busted his lip in the crib,” defense counsel

referred to Officer Kirkpatrick’s testimony that he saw a drop of blood on the crib

rail. Defense counsel also pointed out that Amber suggested a number of times

after Wilder’s death that he fell out of the crib.

4. Verdict and Sentence

The jury found Appellant guilty of capital murder. The State did not seek

the death penalty, so Appellant was automatically sentenced to life without parole.

II. APPEAL

Appellant raised two issues on appeal: (1) that the search of his electronic

devices violated the Fourth Amendment, and (2) that the search warrant affidavit

failed to comply with two Texas statutes—Articles 18.0215 and 18.04 of the Texas

Code of Criminal Procedure.24 His Fourth-Amendment claim contained two subissues: (1) that the search warrant lacked particularity, and (2) that the searchwarrant affidavit did not supply probable cause.25 Addressing the second sub-issue

of Appellant’s first claim, the court of appeals concluded that the search violated

the Fourth Amendment because the search-warrant affidavit did not establish

See Staley v. State, — S.W.3d —, No. 02-23-00053-CR, 2025 WL 727842, *6 (Tex. App.—Fort Worth March 6, 2025).

Id.

STALEY — 41

probable cause.26

Citing our decision in Baldwin,27 the court of appeals found that probable

cause was lacking because the affidavit did not allege any factual connection or

“nexus” between the murder investigation and Appellant’s electronic devices.28

The court further found itself unpersuaded by the State’s reliance on a

Massachusetts domestic-violence case because it deemed the facts of the present

case distinguishable.29

The appellate court next turned to the State’s arguments that Appellant did

not preserve his Fourth-Amendment claim with respect to some of the evidence.30

The State conceded that Appellant preserved error with respect to the GoPro

video but contended that he failed to preserve or waived error with respect to the

laptop evidence, the cell-phone videos, and the text messages.31 The court of

Id. at *7-12.

664 S.W.3d 122.

Staley, 2025 WL 727842, at *7-11.

Id. at *12 (citing Fernandes, 485 Mass. 172).

Id. at *12-14.

Id. at *12. The State also contended on appeal that Appellant failed to preserve his Fourth-Amendment particularity claim and his statutory claims, but the court of appeals declined to address those contentions. Id. at *6 n.11. The court was not required to do so, because its holdings on the probable-cause issue were sufficient to dispose of the appeal. See TEX. R. APP. P. 47.1 (“The court of appeals must hand down a written opinion . . . that addresses

STALEY — 42

appeals first concluded that error was preserved as to the laptop evidence.32 The

court of appeals further found that the “no objection” statement with respect to

the cellphone videos did not result in a waiver of Appellant’s claim because his

intent to preserve his claim regarding the videos was otherwise clear.33 But the

court of appeals concluded that defense counsel’s multiple “no objection”

statements to the text messages did waive those claims because his intent to

preserve them was not otherwise clear.34

The court of appeals then turned to the question of harm.35 In a footnote,

the court rejected the State’s contention that the non-constitutional harm standard

should apply.36 The court of appeals recognized that our prior decision in Holder

applied the non-constitutional harm standard to evidence obtained in violation of

every issue raised and necessary to final disposition of the appeal.”) (ellipsis inserted); State v. Plambeck, 182 S.W.3d 365, 367 n.10 (Tex. Crim. App. 2005) (“A court is not required to address issues that become moot because of the resolution of other issues.”). We note that Appellant responded to these preservation arguments, and the State responded back.

Staley, supra at *14.

Id.

Id. Given that Amber was a State’s witness, it is also not hard to see why counsel might waive an objection to text messages that she received.

Id. at *15.

Id. at *15 n.25 (discussing Holder, 639 S.W.3d 704).

STALEY — 43

the Texas Constitution when the applicable exclusionary rule was statutory.37 But,

the court of appeals concluded that Holder did not apply because Appellant’s

claims were based on the Fourth Amendment, not on the Texas Constitution or

the statutory exclusionary rule.38

After conducting a constitutional harm analysis, the court of appeals found

the errors that were preserved to be harmful.39 In doing so, the court focused

exclusively on the GoPro video as the source of harm.40 The court of appeals

found that the GoPro video “alone would elicit a visceral reaction in anyone” and

that the prosecutor “used it to great effect.”41 The court pointed to the prosecutor

foreshadowing the video in opening statement, eliciting a response from a witness

about the video being one that stood out, and emphasizing the video multiple times

in closing arguments.42

Then, in a single terse paragraph, the court of appeals concluded that the

Id.

Id. at *15-16.

Id. at 16.

Id.

STALEY — 44

other evidence did not overcome the prejudice produced by the GoPro video:

True, the State presented and argued other evidence of Staley’s guilt

beyond what the improper search of his electronic devices revealed,

but that evidence was not “overwhelming,” and the GoPro video is

shocking, its impact undeniable. It is difficult—impossible, really—

for us to imagine that it was not a contributing factor in the jury’s

deliberations. That seems particularly true because of the

circumstantial nature of the other evidence, not to mention that the

autopsy report showed Wilder’s cause of death as “undetermined.”

The trial court’s failure to grant Staley’s motion to suppress it (and

the related cellphone videos) was not harmless error.43

Not only did the court of appeals fail to discuss the “other evidence” in its harm

analysis, but it did not detail this evidence in its “background” section of the

opinion, as it “largely limit[ed]” its recitation of “the facts to those involving

whether probable cause supported relevant aspects of the search warrant.”44

III. ANALYSIS

A. The Harm Standard

1. Nature of the Error

The Rules of Appellate procedure contain two harm standards, depending

on whether the error is constitutional.45 For constitutional errors, Rule 44.2(a)

Id. (citations omitted)

See id. *1 n.1, 1-2.

TEX. R. APP. P. 44.2(a), (b).

STALEY — 45

requires reversal “unless the court determines beyond a reasonable doubt that the

error did not contribute to the conviction or punishment.”46 Under Rule 44.2(b), a

non-constitutional error “that does not affect substantial rights must be

disregarded.”47 Does a constitutional violation always give rise to a constitutional

error, to be evaluated under the constitutional harm standard? Holder answered

that question “no.”48

In Holder, the defendant claimed that evidence should have been suppressed

under Article I, Section 9 of the Texas Constitution and Texas Code of Criminal

Procedure Article 38.23.49 We agreed and remanded the case to the court of

appeals for a harm analysis.50 On remand, the court of appeals found the error

harmful under the constitutional standard, and we again granted review.51

We pointed out that Article I, Section 9 of the Texas Constitution has never

been a basis, by itself, for excluding evidence.52 In other words, Article I, Section 9

Id. 44.2(a).

Id. 44.2(b).

639 S.W.3d at 707.

Holder v. State, 595 S.W.3d 691, 693 (Tex. Crim. App. 2020).

Id. at 704.

Holder, 639 S.W.3d at 706.

Id. at 707 (citing Welcheck v. State, 93 Tex. Crim. 271 (1922)).

STALEY — 46

has no built-in exclusionary rule. We further explained,“Exclusion of evidence

obtained only in violation of Article I, Section 9, is exclusively a function of statute:

Article 38.23 of our Code of Criminal Procedure.”53 Thus, we concluded that

“any error in failing to suppress evidence” illegally obtained under that state

constitutional provision was “simply a statutory violation.”54 Hence, the proper

harm analysis was the one for non-constitutional errors, under Rule 44.2(b).55

Unlike Article I, Section 9, the Fourth Amendment to the United States

Constitution has its own exclusionary rule.56 But that exclusionary rule does not

apply to every Fourth Amendment violation. The Supreme Court has explained

that the Fourth Amendment’s exclusionary rule is “a judicially created remedy

designed to safeguard Fourth Amendment rights generally through its deterrent

effect, rather than a personal constitutional right of the party aggrieved.”57

Whether to apply an exclusionary sanction is a separate issue from whether a

Id. (emphasis in original).

Id.

See Mapp v. Ohio, 367 U.S. 643, 655-60 (1961).

United States v. Leon, 468 U. 897, 906 (1984).

STALEY — 47

Fourth Amendment right has been violated by police conduct.58 In Leon, the

Supreme Court held that the Fourth Amendment’s exclusionary rule did not apply

if an officer relied in objective good faith on a warrant issued by a magistrate.59

This is true even if the warrant-affidavit was not in fact sufficient to establish

probable cause.60

The Texas statutory exclusionary rule has a narrower “good faith”

exception: when the law enforcement officer acts “in objective good faith reliance

upon a warrant issued by a neutral magistrate based on probable cause.”61 Thus, if

probable cause for a warrant is lacking, the Texas good-faith exception will not

apply, even if the federal good-faith exception does. That means that Article 38.23

can be used to exclude evidence obtained through some Fourth Amendment

violations that the Fourth Amendment itself does not require to be excluded.

Holder turned specifically on whether exclusion of the evidence was

constitutionally required. If Article 38.23 is needed to require the exclusion of

evidence, then the “error” (improper admission of evidence) is statutory, and the

Id.

Id. at 912, 918-22.

Id. at 918.

TEX. CODE CRIM PROC. art. 38.23(b) (emphasis added).

STALEY — 48

non-constitutional harm standard applies. So, if the federal “good faith”

exception applies in this case, then the Fourth Amendment does not require

exclusion, and any exclusion is required, if at all, only by Article 38.23. The court

of appeals erred in essentially saying, “It’s the Fourth Amendment; end of story.”

There is no defensible distinction between relying upon a constitutional provision

that has no built-in exclusionary rule (Article I, Section 9) and relying upon a

constitutional provision whose built-in exclusionary rule is inapplicable due to an

exception (Fourth Amendment in “good faith” situations). In both situations, the

defendant can justify exclusion, if at all, only under a non-constitutional

exclusionary rule such as Article 38.23.

2. Good Faith

The question then is whether the federal“good faith” exception applies. If a

magistrate issues a warrant, then the good-faith exception applies except in four

situations articulated by the Supreme Court, only the third of which is properly

before us.62 That third exception is: when the warrant affidavit is “so lacking in

See Leon, 468 U.S. at 923 (exceptions are: materially false statements in the probable cause affidavit (citing Franks v. Delaware, 438 U.S. 154 (1978)), magistrate wholly abandons judicial role (citing Lo-Ji Sales v. New York, 442 U.S. 319 (1979)), warrant affidavit is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable” (citing Brown v. Illinois, 422 U.S. 590, 610-11 (1975) (Powell, J., concurring)), when the warrant is “so facially deficient”—in failing to particularize the place to be searched or the things to be seized—“that the executing officers cannot reasonably presume it to be valid” (citing

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indicia of probable cause as to render official belief in its existence entirely

unreasonable.”63

The warrant affidavit was not “so lacking” under this standard. At the time

the warrant was obtained in 2018, this Court’s Baldwin case did not exist.64 The

police did not have the guidance that case would later provide. And a 2015 case

from the Supreme Court of Arkansas had held that a cell phone could be searched

on what amounted to probable cause that a murder had been committed by

multiple people, who could potentially communicate by phone.65 And while

Massachusetts v. Sheppard, 468 U.S. 981 (1984))). It is undisputed that Appellant has not raised a Franks claim with respect to the warrant at issue before us. To the extent Appellant has suggested that the magistrate wholly abandoned his judicial role, he relies on his claim that the affidavit fails to show probable cause or his claim in the court of appeals that the warrant lacks particularity. But that reasoning conflates category (2) with categories (3) and (4) and does not account for the kind of conduct at issue in Lo-Ji Sales—a magistrate who is part of the search team. See Lo-Ji Sales, supra at 326-27. Finally, the court of appeals expressly declined to address whether the warrant met the Fourth Amendment’s particularity requirement, and the State has contended, both here and below, that the particularity claim was not preserved. As we shall explain infra, we agree with the State in this regard, and so, we have no occasion to address whether the evidence would show, not only a lack of particularity, but a warrant “so facially deficient” that a police officer would not be in good faith about the magistrate’s determination that the warrant was sufficient.

See Leon, supra.

See Baldwin, 664 S.W.3d 122 (2022).

Johnson v. State, 472 S.W.3d 486, 490 (Ark. 2015) (“Here, because Johnson was working with at least one other person when the homicide was committed, it is reasonable to infer that the cell phone that was in his possession was used to communicate with others regarding the shootings before, during, or after they occurred.”).

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Baldwin was before the court of appeals, there was a spirited dissent to that effect

that was joined by three other justices.66 And although it did not exist at the time,

the Massachusetts case relied upon by the State suggests that, at least absent

Baldwin, a reasonable police officer could believe that probable cause to search

electronic devices could be derived from a family relationship between the

defendant and the victim and evidence linking the defendant to prior abuse of the

victim or to the victim’s murder.67

In an era where creating photos and videos is easy due to digital technology,

it is common knowledge that parents tend to take photos and make videos of their

children. At least before Baldwin, the police could believe that a magistrate could

take this common knowledge into account and find probable cause to believe that

one or more digital devices in the home contain photos or videos of the victim that

See Baldwin v. State, 614 S.W.3d 411, 422-27 (Tex. App.—Houston [14th Dist.] 2020), aff’d, 664 S.W.3d 122 (2022) (Christopher, J., dissenting, joined by Frost, C.J., and Wise and Jewell, JJ.).

See Fernandes, 485 Mass. at 179-80, 183-84 (holding that probable cause was

established by warrant affidavit that listed the defendant’s girlfriend being found dead in his home, a pending charge for an assault by the defendant on the girlfriend, the defendant’s statement to a bar patron that the girlfriend was dead and would soon be on the news, the defendant’s question on whether a traffic stop was about his girlfriend, and the defendant’s confession).

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have incriminating value.68 We conclude that the federal good faith exception

applies in this case.

B. Mechanics of the Harm Analysis

We now turn to the State’s contention that the court of appeals engaged in a

“perfunctory” harm analysis that described the case in a way that is

“unrecognizable from the multi-week capital-murder case actually tried.” In Long

v. State, we found fault with a harm analysis when the court of appeals “made no

mention of the remaining, legally obtained evidence or whether that evidence was

sufficient to sustain the conviction absent the illegally obtained evidence.”69 We

further criticized the court of appeals for not considering “the evidence as it

related to each individual count and whether or not the illegally obtained evidence

was cumulative or no more incriminating than that which was legally obtained.”70

In short, we concluded that the court of appeals should have discussed the

relevant, properly admitted evidence and its significance to the harm

Cf. Foreman, 613 S.W.3d at 166-67 (“From these concrete indications that the target business had a unique need for security on its premises and had in fact deployed some security measures, it was logical for the magistrate to infer that to the degree of certainty associated with probable cause, the business was equipped with a video surveillance system.”).

203 S.W.3d at 353.

Id.

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determination.

We agree with the State that the court of appeals failed to follow Long’s

directive. The court of appeals did not even mention the State’s primary theory of

the murder—smothering—or its secondary theory—strangulation. The court did

not discuss the medical expert testimony supporting these theories. The court

mentioned the autopsy report’s “undetermined” cause-of-death finding but failed

to mention the various statements in the autopsy report suggesting an asphyxial

death or that the drafter of that report testified strongly in support of the State’s

smothering theory. Nor did the court mention, much less discuss, the

reconstruction expert’s testimony that the forensic evidence showed a struggle and

that the crime scene was staged. The court made no mention of the DNA evidence

connecting Appellant to the bloody adult-sized pillow in the crib or of the bloody

palm print found on that pillow. And the court of appeals also failed to even allude

to the fact that Appellant expressed antipathy toward the child in numerous

electronic messages and in mutilating his favorite toy. Long requires that a court of

appeals expressly consider the incriminating evidence legitimately available to the

State and analyze its effect on the issue of harm. The court of appeals failed to do

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that.71

C. Appropriateness of Conducting Harm Analysis Ourselves

Having decided that the court of appeals applied the wrong harm standard

and erred in the mechanics of its harm analysis, should we conduct the harm

analysis ourselves? When we found that a court of appeals used the wrong harm

standard in Holder, we remanded the case for it to apply the correct standard,

rather than conducting the harm analysis ourselves.72 We concluded that remand

was the wiser course because the resolution of the harm question was not

“plain.”73 And when we found in Long that the court of appeals bungled the

Language in the court of appeals’s opinion also appears to suggest that it excluded at least some of Appellant’s text messages from the State’s side of the ledger in its harm analysis. The court of appeals found all of the evidence obtained from electronic devices in Appellant’s home to be the product of an illegal search, including text messages, but then held that Appellant waived error as to the text messages. In finding harm, the court of appeals suggested that the State’s “other evidence . . . beyond what the improper search of his electronic devices revealed . . . was not ‘overwhelming,’” see supra at n.43 (emphasis added)—indicating that the court of appeals did not include the illegally-obtained-but-objection-waived text messages in its assessment of the State’s “other evidence.” But if Appellant waived error in admitting the text messages, then that evidence must be weighed for the State in any harm analysis. See Cook v. State, 665 S.W.3d 595, 599-600 (Tex. Crim. App. 2023) (finding that court of appeals erred when it “failed to consider testimony that was admitted without objection” in its harm analysis). Perhaps the court of appeals was simply talking too loosely and meant to include the text messages as part of the State’s other evidence, but it is hard to tell when the court of appeals did not specifically discuss the evidence. Even if we give the court of appeals the benefit of the doubt on this score, the mechanics of its harm analysis remain inadequate, as explained in the body of this opinion.

639 S.W.3d at 707-08.

Id.

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mechanics of the harm analysis, we remanded to the court of appeals to conduct

the harm analysis correctly.74

But the present case contains several considerations not found in Holder and

Long that support conducting the harm analysis ourselves. First, conducting the

harm analysis ourselves moots the error issue that was granted in this case;

otherwise, we would have to decide how to dispose of the error claim. Second, the

State in the present case advances at least a colorable argument that the error was

harmless under the standard that the court of appeals actually used—the

constitutional standard— something that did not happen in Holder75 and appears

not to have happened in Long.76 Addressing the State’s contention here that the

error was harmless even under the constitutional standard would fully address a

holding of the court of appeals. But the reality that the non-constitutional harm

standard applies counsels in favor of simply applying it—instead of tying ourselves

203 S.W.3d at 353.

639 S.W.3d at 707 (“We also granted the State’s second ground for review, which argued that the admission of Appellant’s CSLI records in this case was, in fact, harmless under the proper standard, Rule 44.2(b).”). A review of the State’s petition and briefing in that case confirms that reading. The State’s second ground for review explicitly asked, “If the nonconstitutional ‘substantial rights’ standard applies, was the error harmless.” See State’s Petition for Discretionary Review (PDR), Holder v. State, PD-0026-21, at 4 (grounds for review).

See Long, 203 S.W.3d at 352-53 (making no suggestion that either party asked us to conduct a harm analysis and remanding to the court of appeals to apply the correct standard and conduct the mechanics of the analysis correctly).

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into knots merely to give weight to prudential considerations against addressing

issues not already resolved by the court of appeals.77 That is especially true since

the State’s briefing suggests that, from its perspective, the question of

harmlessness under the constitutional standard is at worst close, which would

make harmlessness under the non-constitutional standard a given. Finally, the

State’s mechanics complaint has impelled us in this case to painstakingly detail the

extensive material evidence that the court of appeals neglected to mention, much

less discuss, and will cause us to explain the significance of that evidence. We will

have thus done much of the heavy lifting required for a harm analysis of any sort.

At least when combined, all of these factors weigh in favor of conducting the harm

analysis ourselves under the correct standard (for non-constitutional errors).

D. Harm Analysis

We start the harm analysis with the court of appeals’s conclusion that the

GoPro video “would elicit a visceral reaction in anyone.” Indeed, the video was

dramatic, disturbing, and memorable. If punishment were an issue in this case, the

issue of harm would be a closer question. But punishment was not an issue in this

See State v. Young, 734 S.W.3d 911, 920, 922-23 (Tex. Crim. App. 2026) (explaining that we generally review only “decisions” of the courts of appeals but that the doctrine is prudential and admits of exceptions); see also Columbus v. State, — S.W.3d —, No. PD-0538-25, 2026 WL 1852097, *3 (Tex. Crim. App. June 25, 2026) (prudential nature of the doctrine).

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case. Because Appellant was convicted of capital murder and the State did not

seek the death penalty, a life-without-parole sentence was the only punishment

Appellant could have received.78

The question here is whether the video was harmless as to guilt. Wilder was

indisputably younger than age 10, so that element that aggravates murder to capital

murder was not in question.79 But capital murder in Appellant’s case also required

that the death of the victim be caused “intentionally or knowingly.”80 A culpable

mental state with respect to injuring the victim is not enough, though it might

establish a lesser-included offense of felony murder, which was submitted to the

jury.81 So if Appellant intended to injure the child, but did not intend or know that

the child would die, he would not be guilty of capital murder, though he might still

be guilty of felony murder. Or if the child died from falling out of the crib, then

Appellant would also not be guilty of capital murder. With this background in

See TEX. PENAL CODE § 12.31(a)(2).

See id. § 19.03(a)(8) (“the person murders an individual under 10 years of age”).

See id. §§ 19.03(a) (requiring a murder under § 19.02(b)(1)), 19.02(b)(1)

(“intentionally or knowingly causes the death of an individual”).

See id. §§ 19.02(b)(3), 22.04(a), (f); Fraser v. State, 726 S.W.3d 253, 259 (Tex. Crim. App. 2025) (Injury to a child can be an underlying offense to felony murder.); cf. § 19.02(b)(2) (“intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual”).

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mind, we first address whether exclusion of the videos and the Ccleaner evidence

would likely have changed the jury’s conclusion that a capital murder occurred.

The medical and forensic evidence overwhelmingly showed that Wilder died

from smothering. The medical examiner and a child-abuse pediatrician each

expressed an opinion that the child had been smothered. Those opinions were

amply backed by the physical evidence. A significant amount of blood was found

on a pillow inside the crib. The only place that blood could have come from was

the inside of the child’s mouth. And the injuries in the mouth that caused the

bleeding were abrasions on the inside of the child’s lips that corresponded with his

teeth. And there were seven of them. Those abrasions were consistent with force

exerted via smothering, with the inside of the lips being pressed firmly against the

child’s teeth. In addition, there was a bloody palm print on the pillow that was too

large for the child to have made. And petechiae found on the child’s head, eyes,

neck, and elsewhere—at least some of which were visible from two feet away—also

indicated death by smothering.

Further, the medical examiner and the child-abuse pediatrician found no

evidence that death was caused by a fall. In some cases that have come before us,

there has been a controversy over whether a subdural hematoma and brain

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swelling, or even a skull fracture, could have been produced by an accidental short

fall.82 But the present case is not such a case—Wilder did not have a skull fracture,

bleeding around the brain, or brain swelling.

In addition, a crime-scene reconstruction expert testified that the evidence at

the scene was inconsistent with a crib fall and that it was “evident” that the

presence of Wilder’s body on the floor had been “staged.” Those conclusions

were amply backed by the physical evidence. Setting aside the question of why an

adult-sized pillow would be in a toddler crib, the pillow had a significant amount of

blood on it and the pillow was inside the crib. That means that the injuries to the

child’s lips happened inside the crib, not in a fall to the floor. Also, seven lip

abrasions is an unusually high number to attribute to some sort of mishap by the

child within the crib. And the blood on the floor was pooled and in one spot, but if

the child fell off the crib while already bleeding, one would expect to see spots of

blood in multiple places or at least some sort of scattering effect. And there was

the bloody adult palm print on the pillow.

Appellant had a number of defensive gambits, but none cast any significant

See Ex parte Roberson, 726 S.W.3d 290, 338 (Tex. Crim. App. 2025) (Keel, J.,

dissenting); Ex parte Horvath, 721 S.W.3d 248, 251-52 (Tex. Crim. App. 2025) (Yeary, J., concurring); Ex parte Henderson, 384 S.W.3d 833, 841 (Tex. Crim. App. 2012) (Cochran, J., concurring).

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doubt on the smothering case made by the State’s expert testimony and the

physical evidence. The medical examiner’s autopsy report listed the manner of

death as “undetermined,” but the report qualified that conclusion with statements

that indicated a high degree of suspicion that the child was smothered. The

medical examiner’s own testimony suggested that the “undetermined” finding

was the result of him needing an extraordinarily high degree of certainty to make a

homicide finding rather than of any real lack of evidence to support smothering.

Further, any significance an “undetermined” finding might have was completely

undermined by the medical examiner’s own testimony that he could not see how

the child died from anything other than homicidal suffocation and that, in his

opinion, the child was smothered and murdered.

The defense also suggested that the absence of any frenulum damage

mitigated against a finding of smothering, but Dr. Hastings testified that a frenulum

was damaged only in a small percentage of cases.

The defense suggested that the bloody pillow was made to look more bloody

by being folded, but nothing in the record supports a conclusion that the pillow was

folded. And while the pillow was packed in the same bag as a sheet that had blood

on it, a photo of the sheet in the crib showed a single relatively small spot of blood,

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while an officer’s testimony confirmed that, when spotted in the crib, the adultsized pillow had “a significant amount of blood all over it.”

The defense sought to paint Bevel’s reconstruction work as sloppy and to

challenge his competency in general. But the errors in Bevel’s report all appeared

to be clerical (typos or mixing up two photos) rather than substantive. And one of

the witnesses who testified that Bevel lacked competency falsely claimed that

Bevel’s testimony had been excluded at the Murdaugh trial. And the other witness

testified only as a layman and only generically stated that he did not have a high

opinion of Bevel and that Bevel had been wrong in major cases in which innocent

people were convicted. But in the face of Bevel’s extensive period of practice—18

years in the science section of a police force and 27 more years as a private-sector

bloodstain and crime-scene reconstruction analyst—and his extensive recognition

as an expert, a generic statement by a lay witness that he got a few cases wrong

would not likely put a significant dent in his credibility.

And in any event, the defense offered no countervailing bloodstain or

reconstruction expert testimony. If Bevel’s work in this case were flawed, one

would expect to see a defense expert say so. And even if one were inclined to be

skeptical of Bevel’s work or his opinions as a general matter, practically every

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material point he made could be derived from elsewhere in the evidence. If the

child was smothered as the condition of the child’s body suggests, the scene had to

have been staged. There was blood in the crib, casting serious suspicion on the

child’s body being outside the crib. A palm print expert testified to the palm print

on the bloody pillow. The autopsy itself suggested that other superficial injuries to

the child showed a struggle. And the blood pooling in one spot defies what a

layperson would expect from an already bleeding child falling from a height of three

feet.

The defense sought to shore up its “short fall” theory with Dr. Galaznik’s

testimony. But Dr. Galaznik never gave an opinion about whether Wilder’s death

was the result of a short fall, smothering, or some other cause. He simply talked

about (1) the hypothetical possibility that a particular bruise on the right side of the

child’s head could have caused a concussion, if it were created by a fall of three feet

or more, and (2) the additional hypothetical possibility that a concussion could be

serious enough to cause immediate death (which he needed to claim to overcome

other problems the physical evidence posed for his concussion theory). But he

never actually connected those two hypothetical possibilities, despite a challenge

from the prosecutor to do so if that is what he believed. He never actually testified

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that the bruise, which did not produce any bleeding inside the skull, could have

resulted in a serious enough concussion to cause instantaneous death to the child.

And Bevel’s substantively unimpeached testimony that Wilder died in his

crib drained Dr. Galaznik’s testimony of any significance. If the child died in the

crib, then by Dr. Galaznik’s own reckoning, no impact to the child’s head could

have been responsible.83 And Dr. Galaznik’s hypothetical testimony did not even

attempt to account for the remaining physical evidence: the bloody pillow, the

bloody palm print, the bloody pillow being inside the crib, the seven teeth-made

abrasions inside the child’s lips, the presence of highly visible petechiae on the

child’s head and neck, and the presence of petechiae elsewhere in the child’s body.

Even without Bevel’s testimony, all of this evidence points to smothering in the

crib as the cause of death and likewise drains any significance from Dr. Galaznik’s

rather limited and non-committal testimony.

Finally, the defense sought to exploit Amber’s statements upon discovering

the child that she thought he had fallen out of the crib. Those statements really do

not mean anything. At the time Amber saw Wilder on the floor outside the crib,

she did not know what the autopsy and the physical evidence would reveal.

The child was 38 inches tall, but no one has suggested that the child bumping into the side of the crib would be a fall from 36 inches or more.

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Wilder’s body was staged to look like he had fallen out of the crib, and given how

upset she was, it is in fact understandable that she had not carefully examined the

scene. And she would naturally not want to think that the man she was

romantically involved with had killed the child. She saw the child on the floor and

came to the conclusion that Appellant wanted her to. But she would later realize

that was a mistake.

Our discussion of the medical and forensic evidence shows that the jury was

inevitably going to find that Wilder was smothered. And any such finding means

that the jury would conclude that Wilder was intentionally or knowingly killed.

The smothering that occurred here was forceful—creating seven different

abrasions that, combined, produced substantial bleeding. The large amount of the

blood spread over the pillow and the child’s other bruises indicated that the child

struggled. It takes a while to smother someone, especially if the victim is

struggling. Absent some mitigating context, no jury faced with these facts is going

to find that the smothering was anything less than an intentional or knowing killing.

And no mitigating context was presented. Moreover, whoever smothered the child

did not do what one would expect if the conduct was less than knowing—try to

revive the child and call 911 after discovering that the child had stopped

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breathing.84 Instead, the perpetrator staged the child’s body on the floor in an

attempt to make it look like the child died from a fall. Given the expert testimony

and the physical evidence, a jury was inevitably going to find that someone

committed capital murder by intentionally or knowingly killing Wilder.

The next question is who. No one has suggested that a stranger entered the

home and killed Wilder. That leaves Appellant and Amber. Between the two of

them, it is no contest.

The trial evidence consistently painted Amber as someone who intensely

loved her child and viewed her child as the most important person or thing in her

life. By contrast, a mountain of admissible or error-waived evidence showed

Appellant’s antipathy for the child. Appellant variously referred to Wilder as

“pussy,” a “fag,” a “devil child,” a “nigger,” a “special needs autistic kid,” a

“wild animal,” a “whiney-ass kid,” a “bully,” and “that damn kid.” Appellant

also talked about a number of violent things he wanted to do to Wilder: to “cage”

him, to use a “shock collar,” to “beat the fuck out of him,” to “punch him in the

It could perhaps be argued that, even if perpetrator really did not intend or know that the child would stop breathing when he smothered the child, then he knowingly caused the child to die once the child stopped breathing and he made no efforts to revive the child and call 911 while the child could still possibly be saved. We need not dwell on that possible argument, however, because we conclude that a jury would inevitably find that the perpetrator intentionally or knowingly killed the child via smothering.

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face,” to “kick[] him to the floor,” to “spank his ass red,” to “waterboard him,”

to “hog tie” him, to “beat Wilder for fun,” to “tie Wilder up and beat him,” to

put him in a trash can, and to “terrorize” him. And numerous times Appellant

expressed a wish for Wilder to be removed from his and Amber’s lives: referring to

“pussies” being “culled,” wanting to “get rid of” Wilder, setting up a fake

adoption agency to drop him off to, sending him away as part of an elaborate

fantasy that got “bigger and bigger” and in which “no dreams are unattainable,”

suggesting that he and Amber would “throw him away,”and suggesting that

“[m]aybe he will get SIDS.” And while Amber took second place to Appellant’s

daughter, “Wilder doesn’t get a place.”

Appellant passed these various comments off as jokes, but, especially when

taken as a whole, they are disturbing. And Appellant made more serious-sounding

statements suggesting that he wanted Amber but did not want the responsibility of

caring for Wilder, such as: “I am selfish . . . [and] can’t do another guy’s kid.

Maybe I can but not your kid just being honest.” He occasionally apologized,

showing an awareness of the nastiness of his comments, but then continued making

these kinds of comments. And Appellant made derogatory statements about

Wilder to others—such as calling him a “fag” and saying, “God I hate faggot

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kids”—that cannot, by any stretch of the imagination, be passed off as joking.

Then there is the damage inflicted by Appellant on the Mickey Mouse

figurine. What adult parental-figure mutilates a child’s favorite toy? A sadist or

someone with serious resentment issues.

And the evidence indicated that Wilder was afraid of Appellant. A number

of Appellant’s text messages indicated that Wilder feared him (e.g.,“the kid is

terrified of me”), and at the October cookout Appellant commented that “if these

people didn’t know any better . . . they would think that I hurt you all the time.”

Shalah testified that Wilder ran in the opposite direction when he came close to

crossing Appellant’s path, and Wilder’s fearful moaning of “no James” was a

familiar refrain seen in Shalah and Amber’s testimony and in statements by

Appellant.

And Appellant’s behavior soon before and soon after the child’s death

showed a lack of regard or concern for the child. While Amber bathed Wilder on

the night before his body was discovered, Appellant mocked Wilder for saying “no

James” and told him to, “Shut the fuck up.” After Wilder’s body was discovered,

Amber was extremely distraught, but Appellant made no effort to comfort her.

Instead, he showed an odd detachment, staying away from both mother and child.

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Appellant did dry-heave into a paper bag, but if the jurors thought that was not for

show, they almost certainly believed it was a guilty reaction to what he had done.

And in addition to all of that, DNA linked Appellant to the murder.

Appellant’s DNA was found on the bloody adult-sized pillow, including in areas

that also tested positive for Wilder’s DNA. For three of the areas where their

DNA converged, the statistical inclusion probabilities for both of them exceeded

the Earth’s population. Cutting somewhat against the probative value of these

results is the fact that the pillow was bundled in a bag with the other items in the

crib. While this posed some risk of cross-contamination, the other items were

already in the crib with the pillow. And none of the clippings from the pillow

contained Amber’s DNA. One can certainly think of innocent reasons for

Appellant’s DNA to be on the pillow. It was his house, after all. But his DNA

being present when Amber’s was not provides yet another nail in the coffin. And

DNA consistent with Appellant’s was found underneath a clipping from the

child’s fingernails. The statistical inclusion ratio was 1 in 9, which leaves open a lot

of people who could match that DNA. But Amber was not one of them—she was

excluded.

Moreover, even without the GoPro or “shiner” videos, the jurors had

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plenty of evidence that Appellant abused Wilder on September 1. They would

still have been well aware that Wilder’s head was injured, with a “goose-egg” and

significant bruising, while in Appellant’s care that evening. Appellant’s texts

acknowledged that, and Amber testified to it. Amber also testified that Appellant

forwarded a version of the “shiner” video to her on Snapchat, and she described

the video as depicting Appellant showing the knot on Wilder’s head. That injury

was later confirmed by a photo Amber took the next morning, which we have

attached as an exhibit.

Amber did not describe the “shiner” video as containing Appellant’s

question on whether he pushed Wilder off the bed. The video Appellant

forwarded to her might well have been one of the edited ones that excised that

question. But the jurors had other specific evidence that Appellant inflicted the

injuries that Wilder received that night, including evidence that he pushed Wilder

off the bed. Appellant’s texts that night focused obsessively on the idea that

Wilder was blaming Appellant for his injuries:

! [H]e somehow thinks I’m mastermind behind him falling off the bed.

! This kid, shit goes wrong, mean James scares James.

! [H]e is the best actor on the planet and rolled off on purpose or truly

believes I pushed him.

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! Now he thinks I’m antichrist again.

! [H]er son that went from thinking I hung the moon to I kick him off

the bed.

And Amber testified to Appellant’s daughter saying that Appellant had pushed

Wilder off the bed.

The GoPro video showed Appellant striking Wilder on the couch, not

shoving him off a bed. But the trial evidence indicated that the videos were made

on the same day. So the jurors would have concluded that Appellant either

inflicted two injuries on Wilder that night or the bed-shoving incident did not cause

an injury but was designed to plant the idea of falling off the bed to cover

Appellant’s tracks. Without the GoPro video, the jury would have concluded that

Appellant caused the knot and bruising on Wilder’s head by pushing him off the

bed. Even if the absence of the videos would have changed what exactly the jurors

thought Appellant did to Wilder that night, it would not have changed their

perception that he abused Wilder and created the injuries reflected in the photo

that Amber took the following morning. This also means that most of the State’s

arguments exploiting the GoPro video could have been made even without it.

The court of appeals did not argue that the Ccleaner evidence was

prejudicial, and the ambiguous nature of the evidence might be part of the reason.

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The evidence showed that Ccleaner was clearly marketed as a system optimization

program and was one that a lot of people used. Even viewed as a way to scrub

information from a computer, such a program would have obvious legitimate

purposes—for example, erasing sensitive financial data or password information.

The program was installed suspiciously soon after the murder, so one can at least

draw an incriminating inference of consciousness of guilt from such activity.85 But,

why the program was installed or what, if anything, the program was intended to

scrub would, under the facts of this case, be a matter of pure speculation. And as

defense counsel pointed out, Appellant did not get rid of the GoPro camera or the

Mac Mini (or use a file scrubbing program on them). In any event, the Ccleaner

evidence does not move the needle on harm for reasons already outlined: The

medical and forensic evidence was inevitably going to lead the jury to find that

someone committed capital murder, and other evidence—including DNA, the

mountain of evidence showing Appellant’s antipathy toward the child, and

admissible and error-waived evidence of prior abuse—would lead the jury to

believe that Appellant was the perpetrator.

Cf. United States v. Golden, 44 F.4th 1129, 1131, 1133-34 (8th Cir. 2022) (finding use of file-deletion program contributed to an inference of knowing receipt of child pornography); United States v. Rusnak, 981 F.3d 697, 708-09 (9th Cir. 2020) (same); State v. Rael, 548 P.3d 66, 81 (N.M. 2024) (same); see also TKC Aero. v. Muhs, 923 F.3d 377, 381 (4th Cir. 2019) (use to cover infringement on trade secrets).

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In light of this discussion, we find any error in admitting the GoPro video,

the “shiner” video, and the Ccleaner evidence to be harmless under the nonconstitutional standard. Indeed, the admission of the “shiner” video was clearly

harmless even under the “beyond a reasonable doubt” standard for constitutional

errors. The “shiner” video showed the knot on Wilder’s forehead, but Amber

described the video she received from Appellant as showing such a knot, and the

photo Amber took the next morning also depicted the injury. Although Amber’s

description of the video did not refer to Appellant’s question about whether Wilder

thought Appellant had pushed him off the bed, the jury had Appellant’s own text

message saying that Wilder had made such a claim and had testimony that

Appellant’s daughter had corroborated that claim. While the GoPro video and the

Ccleaner evidence might present a closer question under the constitutional

standard, harmlessness is not a close question for these items under the nonconstitutional standard.

E. Remaining Issues: Preservation

Having found no harm on Appellant’s probable-cause claim, must we

remand to the court of appeals to address Appellant’s remaining claims—the

particularity claim and the statutory claims that the court of appeals did not

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address? We answer that question “no.”

Even though the court of appeals did not address the particularity claim,

Appellant injected it into his briefing in this Court anyway.86 And in response, the

State argued, among other things, that the particularity claim was not preserved at

trial. And the State is very obviously right about that. The only claim Appellant

raised in his motion to suppress and at the suppression hearing was whether the

affidavit in support of the search warrant provided probable cause for the search.

No other claim was preserved. It is that simple.87 And that observation disposes of

not only his particularity claim, but his non-probable-cause statutory claims as

In his brief to us, he claims that the searches in this case “were made pursuant to an unconstitutional general warrant” and that “[n]either the warrant nor the affidavit upon which it was based met the particularity requirements of the Fourth Amendment.”

See TEX. R. APP. P. 33.1(a)(1)(A) (An objection or motion must state grounds with “sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context.”); Wood v. State, 693 S.W.3d 308, 323 (Tex. Crim. App. 2024) (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)) (A party seeking relief must explain “why he thinks himself entitled to it.”) (emphasis in Wood); Williams v. State, 707 S.W.3d 233, 247 (Tex. Crim. App. 2024) (“The complaint at trial must match the claim raised on appeal.”). In a post-submission brief, Appellant contends that his particularity claim was preserved, but his arguments are transparently flimsy. He essentially argues that particularity and probable cause are part of the same protection. He is wrong about that, see U.S. CONST. amend 4 (“and no Warrants shall issue, but upon probable cause . . . and particularly describing the place to be searched, and the person or things to be seized”), and the State correctly points out that probable cause relates to the affidavit while particularity relates to the search warrant, so that the same documents are not even at issue. See Groh v. Ramirez, 540 U.S. 551, 557 (2004) (“The Fourth Amendment by its terms requires particularity in the warrant, not in the supporting documents.”). He also contends that the two claims involve the remedy of suppressing the same evidence. But it is often true that multiple independent claims can be alleged as a basis for excluding a piece of evidence. See Young, 734 S.W.3d at 918.

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well.88 Given the nature of preservation as a “systemic” and “threshold” issue,89

we have no qualms in the present circumstances about pointing out the obvious to

avoid an unnecessary remand to the court of appeals. Also, finding harmlessness

under the non-constitutional standard obviates all of his statutory claims anyway.

IV. CONCLUSION AND DISPOSITION

We hold that, even if the search-warrant affidavit failed to establish the

requisite probable cause, any error in admitting the videos and Ccleaner evidence

was non-constitutional, because the officers satisfied the federal good faith

exception, so that exclusion of the evidence would be required only under the

Texas statutory exclusionary rule, Article 38.23. And because the exclusion of the

evidence turned on a statute rather than a constitutional provision, the nonconstitutional harm standard applied. Consequently, the court of appeals applied

the wrong harm standard. And, regardless of the correct standard, we hold that the

Before the court of appeals, he contended that one of the statutes he relied upon— TEX. CODE CRIM. PROC. art. 18.0215—was construed by Baldwin. But Baldwin construed only the “probable cause” requirement in that statute and did not address the other statutory requisites that Appellant relied upon (e.g., identifying the specific phone to be searched). See 664 S.W.3d at 123, 131, 134. To the extent that Appellant also relied upon the “probable cause” language in Article 18.0215, that issue has been subsumed by our harm analysis.

Baptiste v. State, — S.W.3d —, No. PD-0449-25, 2026 WL 1593770, *1 (Tex. Crim. App. June 4, 2026) (quoting Ford v. State, 305 S.W.3d 530, 533 (Tex. Crim. App. 2009) (“[T]his Court can and should do so [address preservation] when confronted with a preservation question.”) (bracketed material added for clarity); Young, 734 S.W.3d at 923 (“Preservation-oferror is a threshold issue.”).

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court of appeals failed to properly conduct a harm analysis because it did not

discuss the State’s inculpatory evidence and explain why the error was harmful in

light of that evidence.

And we further hold that any error was harmless under the nonconstitutional standard. The medical and forensic evidence overwhelmingly

showed that Wilder died from smothering, a mountain of admissible or errorwaived evidence showed Appellant’s antipathy for the child, DNA evidence

connected Appellant to the bloody pillow that was the murder weapon, and

evidence other than the videos provided the jury with a convincing basis to believe

that Appellant was responsible for the prior incident in which the child was injured.

We reverse the judgment of the court of appeals and affirm the judgment of

the trial court.

Delivered: September 24, 2026

Publish

APPENDIX

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STALEY, JAMES IRVEN III v. the State of Texas

Authorities cited

Opinion · public domain