Opinion issued September 30, 2026
In The
Court of Appeals
For The
First District of Texas
NO. 01-24-00719-CR
JASON ALEXANDER CISNEROS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Case No. 1693203
MEMORANDUM OPINION
This case arises from a drive-by shooting that took the life of Sierra Rhodd.
An unknown number of assailants fired more than fifty rounds into a residence.
Sierra, afflicted with cerebral palsy, was struck multiple times while lying in her bed.
The State’s theory was that the shooting was retaliation for an armed robbery
earlier that day involving Sierra’s brother and Xavier Fletcher, one of Appellant’s
associates. The State presented evidence supporting that theory including
communications among Appellant and his associates before and after the shooting,
messages reflecting plans for retaliation, evidence of travel before and after the
offense, and firearms and ballistics evidence linking Appellant, his associates, and
Appellant’s vehicle to ammunition recovered from the scene.
Appellant was subsequently indicted for murder. TEX. PENAL CODE
§ 19.02(b)(1)–(2). The case proceeded to trial. The jury charge authorized conviction
under primary actor, party, and co-conspirator theories and included both murder
and the lesser-included offense of manslaughter. The jury found Appellant guilty of
the lesser-included offense of manslaughter. TEX. PENAL CODE § 19.04(a). This
appeal followed.
Appellant raises five issues. None supports reversal. First, he says the
evidence was insufficient to support his conviction. But viewing the evidence in the
light most favorable to the verdict, a rational jury could have found beyond a
reasonable doubt that he was responsible for the shooting that caused Sierra’s death.
Second, Appellant asserts that the trial court erred in refusing to instruct the
jury that deadly conduct was a lesser-included offense of murder. Under Texas law,
however, Appellant did not preserve this issue.
2
Third, Appellant argues that the trial court erred by denying his motion to
suppress evidence obtained after his arrest on a parole violation warrant because the
parole warrant was not supported by “reliable evidence.”1 But on this record, the
trial court did not abuse its discretion in denying the motion to suppress.
Fourth, he argues the trial court erred in overruling his objection to admission
of evidence obtained from his cell phone because, he argues, police conducted an
illegal search to obtain the phone’s IMEI number, which they then used in their
warrant affidavit. This argument provides no ground for reversal because, even
assuming error as to the IMEI number, the warrant was supported by probable cause
without it.
Finally, Appellant argues the trial court abused its discretion by denying his
motion for mistrial following a statement by an officer. On this record, we disagree.
Accordingly, we affirm the trial court’s judgment.
I. Issue One: Sufficient evidence supports Appellant’s conviction.
In his first issue, Appellant argues the State failed to present sufficient
evidence to support his conviction. On this record, we disagree.
1
Appellant was on parole at the time of the shooting. Police arrested him on a parole
violation warrant and recovered evidence that Appellant later sought to suppress.
3
A. Standard of Review
The standard of review is well settled. In this sufficiency of the evidence
challenge, “we consider all the evidence in the light most favorable to the verdict
and determine whether, based on that evidence and reasonable inferences therefrom,
a rational juror could have found the essential elements of the crime beyond a
reasonable doubt.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
We defer to the jury to resolve conflicts in testimony, weigh evidence, and
draw reasonable inferences. Id. The jury, as the sole judge of the facts and the
credibility of the witnesses, may choose to believe or disbelieve any witness or any
portion of their testimony—and we may not substitute our views for theirs. See TEX.
CODE CRIM. PROC. arts. 36.13, 38.04; Sharp v. State, 707 S.W.2d 611, 614 (Tex.
Crim. App. 1986). “When the record supports conflicting inferences, we presume
that the jury resolved the conflicts in favor of the verdict and defer to that
determination.” Merritt v. State, 368 S.W.3d 516, 525–26 (Tex. Crim. App. 2012).
We review “events occurring before, during and after the commission of the
offense and may rely on actions of the defendant which show an understanding and
common design to do the prohibited act.” Hooper, 214 S.W.3d at 13 (quoting source
omitted).
Circumstantial evidence is as probative as direct evidence in establishing
guilt—and circumstantial evidence alone can be sufficient. Id.; Carrizales v. State,
4
414 S.W.3d 737, 742 (Tex. Crim. App. 2013). If the “cumulative force of all the
incriminating circumstances is sufficient to support the conviction,” each fact need
not point directly and independently to guilt. Hooper, 214 S.W.3d at 13.
“The key question is whether ‘the evidence presented actually supports a
conclusion that the defendant committed the crime that was charged.’” Morgan v.
State, 501 S.W.3d 84, 89 (Tex. Crim. App. 2016) (quoting source omitted).
B. Applicable Law
A person commits the offense of manslaughter if he “recklessly causes the
death of an individual.” TEX. PENAL CODE § 19.04(a). “Culpable mental states are
classified according to relative degrees, from highest to lowest”: (1) intentional;
(2) knowing; (3) reckless; and (4) criminal negligence. Id. § 6.02(d). Murder requires
intentional or knowing conduct (or conduct intending to cause serious bodily injury
and committing an act clearly dangerous to human life that causes death), see id.
§ 19.02(b)(1)–(2); manslaughter requires recklessness, see id. § 19.04(a).
Under Texas law, “[p]roof of a higher degree of culpability than that charged
constitutes proof of the culpability charged.” Id. § 6.02(e); Wasylina v. State, 275
S.W.3d 908, 910 (Tex. Crim. App. 2009). Evidence that is sufficient to support a
conviction for the greater offense of murder is sufficient to support a conviction for
the lesser included offense of manslaughter. Curtis v. State, 573 S.W.2d 219, 221
5
(Tex. Crim. App. [Panel Op.] 1978) (affirming manslaughter conviction; “[t]here
was sufficient evidence to show that the greater offense of murder was committed”).
Additionally, the law of parties allows the State to enlarge the defendant’s
criminal responsibility “to include acts in which he may not have been the principal
actor.” Ryser v. State, 453 S.W.3d 17, 28 (Tex. App.—Houston [1st Dist.] 2014, pet.
ref'd). Under Penal Code Sections 7.01 and 7.02, “an individual can be convicted as
a party to an offense if that offense was committed by his own conduct, by the
conduct of another for which he is criminally responsible, or both.” Hooper, 214
S.W.3d at 13 (citing TEX. PENAL CODE § 7.01). A person can be criminally
responsible for another’s conduct in several ways, including if the person (1) acts
“with intent to promote or assist the commission of the offense” and (2) “solicits,
encourages, directs, aids, or attempts to aid the other person to commit the offense.”
Id. (citing TEX. PENAL CODE § 7.02(a)(2)).2
Similarly, under co-conspirator liability, “if in the attempt to carry out a
conspiracy to commit one felony another felony is committed by one of the
conspirators, all conspirators are guilty of the felony actually committed, though
having no intent to commit it, if the offense was committed in furtherance of the
2
We may look to events occurring before, during, and after commission of the
offense to determine if a person is a party to an offense. Gross v. State, 380 S.W.3d
181, 186 (Tex. Crim. App. 2012).
6
unlawful purpose and was one that should have been anticipated as a result of
carrying out the conspiracy.” Id. at 13–14 (citing TEX. PENAL CODE § 7.02(b)).
“When the trial court’s charge authorizes the jury to convict on more than one
theory, as it did in this case, the verdict of guilt will be upheld if the evidence is
sufficient on any of the theories.” Id. at 14.
C. Analysis
The evidence was sufficient to support Appellant’s manslaughter conviction.
Appellant’s indictment alleged that, on or about September 13, 2020, he
unlawfully, intentionally, and knowingly caused the death of Sierra Rhodd by
shooting her with a firearm. It also alleged that he unlawfully intended to cause
serious bodily injury to Sierra Rhodd and did cause her death by intentionally and
knowingly committing an act clearly dangerous to human life—shooting her with a
firearm.
The jury instructions authorized a murder conviction on three alternative
theories: (1) Appellant as a primary actor; (2) Appellant as a party, acting with Andre
Colson and/or Xavier Fletcher and/or Austin McCalla and/or Emma Presler; or
(3) Appellant as a co-conspirator, in agreement with Andre Colson and/or Xavier
Fletcher and/or Austin McCalla and/or Emma Presler.
7
The charge also instructed the jury on the law of transferred intent.3
The record contains ample evidence from which a rational jury could have
found that Appellant recklessly caused Sierra’s death as a primary actor, party, or
co-conspirator. See Hooper, 214 S.W.3d at 14 (when charge authorizes jury to
convict on more than one theory, guilt will be upheld if evidence is sufficient on any
theory).
Appellant’s post-robbery communications support a finding that he had a
retaliatory motive.
• Evidence showed that, on the morning of September 13, 2020, Sierra’s
brother, Tanner Rhodd, participated in an armed robbery of Xavier
Fletcher, an associate of Appellant.
• Testimony revealed that Fletcher did not call the police but said
“someone needs to die about this.”
• Evidence showed that within minutes after the robbery, Appellant
communicated with Fletcher, and then Appellant exchanged messages
with Andre Colson about the robbery.
• In his messages to Colson, Appellant stated that Fletcher had been
robbed and that the robbers had taken a 9-millimeter firearm. Colson
replied, “What’s the word?” Appellant texted, “I’m bout to go right
there.” Colson then sent, “Swear too good [sic] bro who the lil white
bitch or who smh.” Colson added, “Have em call me ASAP bruh.”
Colson then said, “Come get me fuck that ima spray they shit up rns
fuck that dumb shit.” Appellant responded, “I was thinking the same
thing,” followed by “He said it was a bunch of dudes with A.R. 15’s.”
Appellant then told Colson that Fletcher can’t call him.
3
See TEX. PENAL CODE § 6.04(b). The instructions authorized conviction for
intending to cause the death of Sierra’s brother, Tanner Rhodd.
8
A rational jury could view these communications as evidence that Appellant
shared Fletcher’s retaliatory motive and aligned himself with Colson’s proposal to
carry out a violent reprisal. See id. at 13 (jury is permitted to draw reasonable
inferences based on evidence).
The jury could have found that Appellant’s communications on the day of
the shooting reflected coordinated planning.
Communications involving Appellant, Fletcher, Colson, Emma Presler, and
Austin McCalla leading up to the shooting evidenced coordinated planning:
• Presler’s communications with Appellant reflected discussions about
travel, timing, and meeting at or near Appellant’s residence shortly
before the shooting.
• Evidence showed Appellant’s residence was near the Rhodd home.
• At 4:30 PM, Appellant texted Presler, asking “R u otw?” followed by,
“I’m 30 mins from his[] Spot”. Appellant then texted, “Homie is ready
for us, what’s up?” At 6:20 PM, Appellant again texted Presler, “So
you’re not coming?”
• At 8:39 PM, Appellant texted his home address to Presler. Call‑detail
mapping placed Fletcher’s phone near Appellant’s residence at
approximately the same time. Presler asked, “We meeting at ur house?”
and then texted, “We r leaving now.” Appellant confirmed “Yes.” At
9:23 PM, Appellant texted Presler, “Whats y’all ETA.” Presler replied,
“15 jus pulling off on bike” at 10:14 PM.
• Around the same time, Colson texted Appellant, “Play get‘em gone is
active.”
• Evidence showed that Sierra was shot and killed at approximately 11:00
PM.
9
• Cell phone records showed multiple calls between Appellant and
Pressler between approximately 10:44 and 11:00 PM.
• Call‑detail mapping placed Presler’s and McCalla’s phones near the
scene at about 11:00 PM, with Presler’s device remaining in the area.
She was stopped nearby by police around 11:06 PM.
• Communications continued immediately after the shooting. As Presler
was being stopped by police at 11:07 PM, she texted Appellant, “I got
pulled over. Fuck,” to which Appellant replied, “Do u have anything”
and later, “Your gonna be ok don’t have anything on u.”
A rational jury could infer coordinated planning of the participants’ meeting,
travel, and movements immediately before the shooting and that Appellant remained
in communication with them afterward. See id. (jury may draw reasonable inferences
based on evidence).
Evidence linked Appellant and his associates to vehicles at the scene.
Evidence also linked Appellant and his associates to vehicles involved in the
shooting.
• Surveillance video from the night of September 13th showed three
vehicles traveling in tandem toward the scene: a dark-colored car
resembling Appellant’s black Toyota, a motorcycle (lights off), and a
red Ford F‑150.
• Right before the shooting, at around 10:56 PM, surveillance video
showed the dark-colored car followed by the motorcycle and the red
truck heading toward the Rhodd residence. Minutes later, the video
showed the dark-colored car and the red truck leaving without the
motorcycle.
• At approximately 11:06 PM, police stopped the red Ford F‑150 less
than a mile from the scene. Presler was the driver; the truck was
registered to Austin McCalla.
10
• Police officers found a motorcycle crashed in front of the Rhodd home.
• Surveillance video also showed a white male walking away from the
scene immediately after the shooting. Witness testimony identified him
as McCalla.
Viewed cumulatively, this evidence permitted a rational jury to infer that the
three vehicles traveled together to the Rhodd residence, that McCalla was the
motorcycle rider, and that Appellant’s vehicle was part of the coordinated
movements to and from the scene of the shooting. See id.
Eyewitness testimony linked Appellant and his vehicle to the shooting.
The jury also heard from witnesses who connected Appellant and his vehicle
to the scene.
• Neighbor Emely Jimenez testified she heard rapid gunfire-like sounds,
saw two to three people running in the street, and observed a black car
and red truck stopping and going in the same direction as the runners.
• Neighbor Israel Rivera testified that, after the shooting, he encountered
a “dark-colored vehicle,” “hatchback” car stopped by his front-yard
ditch with a short female at the passenger side.
• He testified that when the door opened, a male driver with a short buzz
cut was illuminated.
• Rivera testified that he identified for police from photo arrays a black
Toyota as similar to the vehicle he saw, and he picked Appellant as the
driver with 90% certainty.
This testimony corroborated the surveillance evidence identifying a dark
vehicle near the scene and connected Appellant, his vehicle, and the coordinated
11
movements observed immediately after the shooting. See Shah v. State, 414 S.W.3d
808, 812 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d) (“It is well-established
that the testimony of a sole witness to an offense may constitute legally sufficient
evidence to support a conviction.”).
Firearm evidence corroborated other evidence of Appellant’s participation.
The following firearm evidence likewise connected Appellant to the shooting.
• The jury heard that, two days before the shooting, Appellant, Colson,
and Fletcher went to a gun store, and Colson purchased two Springfield
9-millimeter pistols.
• One of those 9-millimeter pistols was the firearm later stolen by Tanner
Rhodd from Fletcher; another was found on Colson when he was
arrested with Appellant.
• The State’s firearms expert linked 9-millimeter cartridge casings
recovered from the scene to those weapons.
• When Appellant was arrested while driving his black Toyota, officers
recovered a 5.7x28 cartridge casing from the windshield area of
Appellant’s vehicle. The State’s firearms expert testified that this
casing matched the 5.7 casings recovered from the shooting scene.
This evidence permitted a rational jury to infer that Appellant’s vehicle was
present at the scene or was used to transport at least one firearm used in the shooting.
See Hooper, 214 S.W.3d at 13.
* * *
Legal sufficiency review requires us to consider whether “the cumulative
force of all the incriminating circumstances is sufficient to support the conviction.”
12
Id. Here, the evidence showed a retaliatory motive; Appellant’s embrace of
retaliatory violence; coordinated communications arranging meetings, travel, and
timing before the offense; surveillance and cell-site evidence placing the participants
together before and during the shooting; eyewitness testimony identifying Appellant
and his vehicle near the scene; and firearm evidence linking Appellant, his
associates, and his vehicle to weapons used in the attack.
Viewed together and in the light most favorable to the verdict, this evidence
permitted a rational jury to find beyond a reasonable doubt that Appellant recklessly
caused Sierra’s death, either through his own conduct or as a party to the offense.
See TEX. PENAL CODE §§ 7.01, 7.02(a)–(b), 19.04(a); Hooper, 214 S.W.3d at 13–14
(evidence was sufficient to convict getaway driver of aggravated assault of public
servant as a party, despite claim he had no knowledge his co-actors had guns or
would shoot at the game warden, and appellant had no guns, never tried to run,
followed the warden’s instructions, and was cooperative with law enforcement).4
In response, Appellant argues there is no actual evidence that he was at the
Rhodd home, possessed or fired a firearm on September 13, 2020, aided or
4
Although the jury convicted Appellant of the lesser-included offense of
manslaughter rather than murder, the evidence is legally sufficient to support that
verdict. Evidence that would support a finding that Appellant intentionally or
knowingly caused Sierra’s death as a party to the offense supports a finding that he
acted recklessly; proof of a higher culpable mental state constitutes proof of lower
culpable mental states. See TEX. PENAL CODE § 6.02(e); Curtis, 573 S.W.2d at 221.
13
encouraged anyone to commit murder or manslaughter, or agreed with anyone to
commit deadly conduct. He also says there was no evidence that his vehicle was at
the scene or that he was driving that night. But as our sister court aptly explained,
such arguments “all lead to inferences that were rejected by the jury, and under our
standard of review, we must consider all of the evidence in the light most favorable
to the jury’s decision.” Melgar v. State, 593 S.W.3d 913, 922 (Tex. App.—Houston
[14th Dist.] 2020) (not addressing defendant’s arguments because they all involved
inferences rejected by the jury), pet. dism’d, improvidently granted, No.
PD-0243-20, 2022 WL 2240263 (Tex. Crim. App. June 22, 2022). “When the record
supports conflicting inferences, we presume that the jury resolved the conflicts in
favor of the verdict and defer to that determination.” Merritt, 368 S.W.3d at 525–26.
Appellant also emphasizes conflicts in the vehicle-identification evidence,
including testimony concerning a gray vehicle seen nearby after the shooting. But
“[t]his point merely highlights a conflict in the evidence, and we presume that the
jury resolved that conflict.” Melgar, 593 S.W.3d at 924; accord Merritt, 368 S.W.3d
at 525–26.
When, as here, “the inferences made by the factfinder are reasonable in light
of the cumulative force of all the evidence when considered in the light most
favorable to the verdict, the conviction will be upheld.” Nowlin v. State, 473 S.W.3d
312, 317 (Tex. Crim. App. 2015) (citation modified). Considering the evidence in
14
the light most favorable to the verdict, a rational juror could have found the essential
elements of manslaughter beyond a reasonable doubt. See TEX. PENAL CODE
§§ 6.03(c), 19.04(a); Hooper, 214 S.W.3d at 13.
We overrule Appellant’s first issue.
II. Issue Two: Appellant did not preserve his argument concerning a
lesser-included offense instruction.
In his second issue, Appellant argues the trial court erred in refusing his
request to instruct the jury, as a lesser-included offense to the murder charge for
which he was indicted, on the offense of deadly conduct under Texas Penal Code
Section 22.05(b)(2). Appellant did not preserve this issue.
A defendant is entitled to an instruction on a lesser-included offense only if a
two-part test is satisfied. Simms v. State, 629 S.W.3d 218, 222 (Tex. Crim. App.
2021). First, the lesser offense must be included within “the proof necessary to
establish the charged offense.” Id. Second, there must be “some evidence in the
record that would permit the jury to rationally find that, if the defendant is guilty, he
is guilty only of the lesser-included offense.” Id.
A requested lesser-included-offense instruction is treated like a defensive
instruction for preservation purposes. See Williams v. State, 662 S.W.3d 452, 461–
62 (Tex. Crim. App. 2021). To preserve a complaint about the refusal of such an
instruction, “the defendant must point to evidence in the record that raises the
lesser-included offense.” Id. at 461. The defendant must “set[] out, on the record, the
15
specific evidence that supports a rational basis for rejecting the greater offense but
supporting the lesser offense.” Id. at 462; accord Green v. State, 713 S.W.3d 865,
875 (Tex. Crim. App. 2025). “[G]eneral or insufficiently specific objections do not
preserve error for appeal.” Williams, 662 S.W.3d at 462. Absent specificity, error is
preserved only when the evidence is “manifest” from the record. See id. at 462–63.
Appellant did not preserve this complaint. At the charge conference,
Appellant requested a lesser-included offense instruction on deadly conduct under
Texas Penal Code Section 22.05. The State objected that deadly conduct was not a
lesser-included offense of murder as charged; it further argued that Appellant had
identified no evidence showing that, if guilty, he was guilty only of deadly conduct.
Appellant did not respond by identifying any evidence (or any factual theory)
that would have allowed the jury rationally to reject murder as charged while finding
him guilty of only deadly conduct. See id. at 461–62.
That omission is significant. Under Williams, a defendant preserves a
complaint about the denial of a lesser-included instruction only by making the trial
court aware by “set[ing] out, on the record, the specific evidence that supports a
rational basis for rejecting the greater offense but supporting the lesser offense.” Id.
at 462. A general assertion that the evidence supports the lesser offense is
insufficient when the defendant does not point to the facts that negate the greater
offense and support only the lesser. See id. at 462–64 (defendant failed to preserve
16
complaint as to jury instruction on lesser-included offense where defendant failed to
alert trial court to specific evidence supporting the lesser offense).5
Appellant did not preserve this issue. See Williams, 662 S.W.3d at 461–62;
Green, 713 S.W.3d at 875.
III. Issue Three: Appellant’s parole violation warrant argument does not
support reversal.
Appellant was on parole during the investigation into Sierra Rhodd’s killing.6
After the shooting, Appellant was arrested pursuant to a parole violation warrant.7
In his third issue, Appellant challenges the trial court’s denial of his motion to
5
Additionally, this is not a case where evidence raising the lesser-included offense is
manifest from the record. See Williams, 662 S.W.3d at 462; Green, 713 S.W.3d at
875. Appellant did not identify evidence showing that, if he was guilty, he was guilty
only of deadly conduct. Instead, his defensive theory was that he did not participate
in, aid, encourage, or conspire in the shooting at all. That theory would support
acquittal, not a rational finding that Appellant committed only deadly conduct. See
Williams, 662 S.W.3d at 463 (“None of this specific evidence was manifest because
the defensive theory was that he did not commit any crime.”); see also Saunders v.
State, 840 S.W.2d 390, 392 (Tex. Crim. App. 1992) (“If, however, the defendant
simply denies commission of the offense . . . then the charge on the lesser offense
would not be required.” (citations omitted)).
6
Appellant was on parole for 2015 convictions for burglary of a habitation and for
failure to stop and render aid after an accident causing injury or death. 7
A “parole violation warrant” is issued by the director of the pardons and parole
division of the Texas Department of Criminal Justice, the director’s designee, or the
board of the pardons and parole division on order of the Governor. TEX. GOV’T
CODE § 508.251; see also Ex parte White, 400 S.W.3d 92, 93 (Tex. Crim. App.
2013) (referring to this type of warrant as a “parole revocation warrant” or “blue
warrant”); Diaz v. State, 110 S.W.3d 181, 183 (Tex. App.—San Antonio 2003, pet.
ref’d) (referring to the warrant as a “parole violation warrant”). We use the same
term as the parties do.
17
suppress evidence obtained as a result of that arrest. Appellant contends that the
parole violation warrant was invalid because parole authorities lacked “reliable
evidence,” as required by Texas Government Code Section 508.252(4), that he posed
a danger warranting his immediate return to custody. We disagree.
A. Standard of Review
“We review a trial court’s denial of a motion to suppress for an abuse of
discretion and apply a bifurcated standard of review.” Furr v. State, 499 S.W.3d 872,
877 (Tex. Crim. App. 2016). “At the hearing on the motion, the trial court is the sole
factfinder and judge of the credibility of the witnesses and of the weight to be given
their testimony.” Armstrong v. State, 713 S.W.3d 893, 902 (Tex. Crim. App. 2025).
Therefore, we “afford[] almost complete deference to the trial court’s determination
of historical facts, especially when those determinations are based on assessments
of credibility and demeanor.” Furr, 499 S.W.3d at 877. However, “[w]e review de
novo legal questions and mixed questions” of law and fact “that do not turn on
credibility and demeanor.” State v. Espinosa, 666 S.W.3d 659, 667 (Tex. Crim. App.
2023).
When, as here, the trial court does not make explicit findings of fact, “we view
the evidence in the light most favorable to the trial court’s ruling and will assume it
made findings that are consistent with its ruling and that are supported by the
18
record.” Furr, 499 S.W.3d at 877. “If the ruling of the trial court is correct under any
applicable theory of law, we will sustain its ruling.” Id.
B. Analysis
Viewing the suppression evidence in the light most favorable to the trial
court’s ruling and deferring to the trial court’s credibility determination, we conclude
that Appellant failed to show the parole violation warrant was invalid. Accordingly,
the trial court did not abuse its discretion in denying the related motion to suppress.
“[P]arolees do not enjoy the same level of Fourth Amendment protection
accorded defendants only suspected of a crime.” Garrett v. State, 791 S.W.2d 137,
140 (Tex. Crim. App. 1990); see also Ex parte Zubiate, 710 S.W.3d 724, 727 (Tex.
Crim. App. 2025) (“Due process affords the States ‘wide latitude’ in designing
parole-revocation proceedings,” and parolees do not enjoy the “full panoply of
rights” of regular defendants).
Texas Government Code Section 508.252 authorizes issuance of a parole
warrant on several grounds. As relevant, a warrant may be issued for a parolee if:
[T]here is reliable evidence that the person has exhibited behavior
during the person’s release that indicates to a reasonable person that the
person poses a danger to society that warrants the person’s immediate
return to custody.
TEX. GOV’T CODE § 508.252(4) (emphasis added). The statute does not prescribe the
form that the reliable evidence must take, nor does it require a probable-cause
19
affidavit or the same showing necessary to obtain an arrest warrant for a new
criminal offense. See id.; Garrett, 791 S.W.2d at 139–41.
In Garrett, for instance, the Court of Criminal Appeals rejected an argument
that the State was required to produce an affidavit supporting a parole violation
warrant or satisfy the same procedural requirements as an ordinary warrant. Id. The
Court observed that the parole warrant statute8 “makes no mention of affidavits”; the
Court then held that the parole officer’s testimony at the suppression hearing
provided an adequate basis to review the warrant’s validity. Id. at 140–41.
Under Texas law, the relevant question is whether the record supports the trial
court’s finding that parole authorities had reliable evidence indicating that
Appellant’s conduct while on parole showed he posed a danger to society warranting
immediate return to custody. See TEX. GOV’T CODE § 508.252(4).
Here, the record supports that finding. At the suppression hearing, Appellant’s
parole officer, R. Jones, testified. She stated that, on September 29, 2020,
Investigator Thompson emailed Jones a letter advising her that Appellant had
become a suspect in the Sierra Rhodd shooting and other shootings. The letter was
admitted into evidence. Jones further testified that, in addition to the letter, she
8
Garrett analyzed Section 508.252’s predecessor (Article 42.18), which provided in
relevant part: “A warrant for the return of a paroled prisoner may be issued by the
board in cases of parole or mandatory supervision, where there is reason to believe
that he has committed an offense or violated a condition of his parole.” Garrett, 791
S.W.2d at 138 (citation modified).
20
communicated with Investigators Thompson and Garcia by telephone and email on
multiple occasions and received additional information regarding the investigation
into Sierra’s killing.
Based on that information, Jones prepared a parole violation report and
submitted it through the normal chain of command to the parole warrant specialist,
who determines whether to issue a parole warrant.
Jones further testified that the information forwarded as the basis for the
warrant concerned only Appellant’s suspected involvement in the shooting of Sierra
Rhodd, not a no-billed allegation or any other allegations.
As Jones explained, after reviewing the submitted information, the warrant
specialist issued the warrant. The record shows that, before issuing the warrant, the
parole warrant specialist requested additional information from Investigator
Thompson.9
After hearing evidence and argument, the trial court denied the motion to
suppress based on this parole warrant. The court found Jones’s testimony “reliable,
credible and truthful,” and concluded the warrant was lawful.
9
The record reflects that, before the warrant issued, law enforcement had information
that Appellant had been linked to the crime scene by eyewitness identification,
vehicle evidence, witness statements, a tip, surveillance, and information from
someone who knew Appellant.
21
On this record, and in light of the trial court’s finding that Jones was “credible,
reliable, and truthful,” the trial court could reasonably have determined that parole
authorities received sufficient reliable information before the parole warrant issued.
See Furr, 499 S.W.3d at 887; Garrett, 791 S.W.2d at 139–41.
The nature of the reported conduct further supports this finding. Again, the
question is whether parole authorities had reliable evidence indicating that
Appellant’s conduct while on parole showed he posed a danger to society warranting
immediate return to custody. See TEX. GOV’T CODE § 508.252(4). Here, investigators
were not alleging a minor or technical parole violation. They were investigating
Appellant’s suspected involvement in a retaliatory drive-by shooting into an
occupied residence—a shooting that resulted in Sierra’s death. The warrant
specialist decided to issue the warrant after information concerning the investigation
was given to the specialist through the parole process (and after related follow up).
Appellant argues that the warrant rested only on improper references to a prior
no-billed allegation and uncorroborated suspicion. But the record supports the trial
court’s rejection of that characterization. Jones testified that the warrant was based
only on Appellant’s suspected involvement in Sierra Rhodd’s death, not on a prior
no-billed allegation or any unrelated investigation. And credibility determinations
are for the trial court. Armstrong, 713 S.W.3d at 902.
22
Viewing the suppression evidence in the light most favorable to the trial
court’s ruling and deferring to the trial court’s credibility determination, the record
supports the trial court’s implied finding that parole authorities had reliable evidence
that Appellant had exhibited behavior during release indicating that he posed a
danger to society warranting immediate return to custody. See TEX. GOV’T CODE
§ 508.252(4); Furr, 499 S.W.3d at 887; Garrett, 791 S.W.2d at 139–41. The trial
court did not abuse its discretion in denying the motion to suppress.
We overrule Appellant’s third issue.
IV. Issue Four: The trial court did not err in overruling Appellant’s
evidentiary objection concerning his cell phone.
In his fourth issue, Appellant argues the trial court erred in overruling his
objection to the admission of evidence obtained from his cell phone. Appellant
contends that Investigator Garcia conducted an unlawful Fourth Amendment search
when he opened the SIM-card tray of Appellant’s cell phone, removed the SIM card,
and read the phone’s IMEI number—which the Investigator then included in his
affidavit seeking a warrant to search the phone’s digital contents (as information
identifying the phone).10 Appellant’s position is that the police impermissibly
10
Appellant’s argument focuses solely on the Fourth Amendment to the United States
Constitution. Because he does not separately brief an argument under the Texas
Constitution, we focus our analysis on the United States Constitution’s Fourth
Amendment. See TEX. R. APP. P. 38.1(i); Young v. State, 563 S.W.3d 325, 329 n.3
(Tex. App.—Houston [1st Dist.] 2018, pet. ref’d).
23
obtained the phone’s IMEI number, which then supported the warrant affidavit. He
argues the evidence obtained from the phone—which the police obtained after the
warrant issued—was inadmissible and should have been excluded. We disagree.
Assuming without deciding Appellant’s position that opening the SIM-card
tray and viewing the IMEI number constituted an unreasonable Fourth Amendment
search, we conclude that the trial court did not abuse its discretion in admitting the
evidence anyway because the warrant affidavit established probable cause even after
the IMEI number (which Appellant argues was improperly obtained) is excised.
A. Standard of Review
“We review a trial judge’s decision on the admissibility of evidence under an
abuse of discretion standard.” Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim.
App. 2016). “A trial judge abuses his discretion when his decision falls outside the
zone of reasonable disagreement.” Id.
When the evidence is the subject of suppression, we review the trial court’s
ruling under a bifurcated standard of review on appeal. Oseguera-Viera v. State, 592
S.W.3d 960, 963 (Tex. App.—Houston [1st Dist.] 2019, pet. ref’d). As explained,
the reviewing court gives almost total deference to the trial court’s determination of
historical facts, but it reviews the trial court’s application of the law to the facts de
novo. Id. The appellate court reviews the evidence in the light most favorable to the
trial court’s ruling. Id. When the trial court does not make explicit findings of fact,
24
the appellate court will imply fact findings that support the ruling, so long as
evidence supports these implied findings. Id. The appellate court should “uphold the
ruling if it is reasonably supported by the record and is correct on any theory of law
applicable to the case.” Id.; Johnson, 490 S.W.3d at 908 (“If the trial court’s
evidentiary ruling is correct under any applicable theory of law, it will not be
disturbed even if the trial court gave a wrong or insufficient reason for the ruling.”).
B. Analysis
The Fourth Amendment states: “The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.” U.S. CONST. amend. IV.
Appellant’s argument presents interesting questions under the Fourth
Amendment: whether the officer conducted a Fourth Amendment search by opening
the cell phone’s SIM-card tray to obtain the phone’s identifying IMEI number, and,
if so, whether that warrantless conduct was unreasonable.11
11
Courts across the country have been grappling with arguments like this. See, e.g.,
United States v. Lowe, 676 Fed. Appx. 728, 733 (9th Cir. 2017) (concluding that
“Officer Zavala’s warrantless search of the physical components of [defendant’s]
cellphone did not violate the Fourth Amendment”; “[t]he record indicates only that,
at the request of federal law enforcement, Officer Zavala obtained [defendant’s]
cellphone from the jail’s inventory room, removed the backplate and battery, and
recorded the phone’s serial number. This search was not unreasonable”); United
States v. Saemisch, 371 F. Supp. 3d 37, 43 (D. Mass. 2019) (“Agents did open the
25
We need not decide these questions. Even assuming Appellant’s position is
correct, suppression of the cell phone’s digital contents was not required on this
record because after the IMEI number is excised, the remaining warrant affidavit
independently established probable cause to search the phone.
The “exclusionary rule generally requires suppression of both primary
evidence obtained as a direct result of an illegal search or seizure, as well as
derivative evidence acquired as an indirect result of unlawful conduct,” commonly
described as the “fruit of the poisonous tree.” Wehrenberg v. State, 416 S.W.3d 458,
464 (Tex. Crim. App. 2013); see also Segura v. United States, 468 U.S. 796, 804
(1984). But not every item of evidence discovered after unlawful police conduct is
suppressible as fruit. Evidence obtained from an “independent source”—that is, “a
lawful source, separate and apart from any illegal conduct by law enforcement”—is
not subject to exclusion. Wehrenberg, 416 S.W.3d at 465; see also Murray v. United
States, 487 U.S. 533, 537 (1988); Segura, 468 U.S. at 805.
outer casing of the cell phone in order to obtain its IMEI number, but as I have
previously found, the removal of the back of a cell phone casing to obtain an
identifying number does not amount to a search under the Fourth Amendment
because a defendant does not have a reasonable expectation of privacy in the serial
number associated with his cell phone.”).
One Texas court has concluded that where a cell phone had been abandoned at a
crime scene, “the police did not have to obtain a warrant to obtain the phone’s IMEI
number from its interior SIM tray before securing a warrant to view the phone’s
digital contents.” Martinez v. State, 689 S.W.3d 30, 46 (Tex. App.—Fort Worth
2024, pet. ref’d).
26
Texas courts have long applied this principle in the search warrant context:
“[I]n cases where search warrants have been issued on the basis of an affidavit that
included tainted information, . . . the warrant is nonetheless valid if it clearly could
have been issued on the basis of the untainted information in the affidavit.” Brown
v. State, 605 S.W.2d 572, 577 (Tex. Crim. App. [Panel Op.] 1980); see also
Wehrenberg, 416 S.W.3d at 465–66, 469 (“[E]vidence actually obtained pursuant to
a distinct, untainted source is not subject to suppression because, in such cases, the
prior illegality does ‘not contribute in any way to discovery of the evidence seized
under the warrant.’” (citing Segura, 468 U.S. at 799, 813–15)). Thus, the presence
of unlawfully obtained information in a warrant affidavit does not automatically
invalidate the warrant or require suppression of evidence seized during its execution.
See Brown, 605 S.W.2d at 577; Wehrenberg, 416 S.W.3d at 465–66; Segura, 468
U.S. at 813–15. The question becomes whether the affidavit, after the tainted
information is removed, still establishes probable cause.
The Texas Court of Criminal Appeals has prescribed the procedure for
answering that question: “Where a probable-cause affidavit is determined to contain
illegally-obtained information, the proper course is to excise the tainted information
and examine whether the remaining information still establishes probable cause.”
Martin v. State, 620 S.W.3d 749, 763 (Tex. Crim. App. 2021); see also McClintock
v. State, 444 S.W.3d 15, 19 (Tex. Crim. App. 2014) (explaining that “[w]hen part of
27
a warrant affidavit must be excluded from the calculus,” “then it is up to the
reviewing courts to determine whether ‘the independently acquired and lawful
information stated in the affidavit nevertheless clearly established probable cause.’”
(quoting source omitted)). As the Court explained in State v. Le, “[a] search warrant
based in part on tainted information is nonetheless valid if it clearly could have been
issued on the basis of the untainted information in the affidavit.” 463 S.W.3d 872,
877 (Tex. Crim. App. 2015).
After the tainted information is excised, the reviewing court asks whether the
remaining allegations, considered within the four corners of the redacted affidavit,
established probable cause. Martin, 620 S.W.3d at 763–64, 766 n.24. That review is
non-deferential because the magistrate did not consider the affidavit in its redacted
form. Id. at 764. But the standard remains the “ordinary standard” of probable cause;
that is, we construe the affidavit “in a common sense and realistic manner, without
demanding hyper-technical exactitude,” and ask whether, under the totality of the
circumstances, the remaining facts establish a fair probability that evidence of the
offense would be found in the place to be searched. See id. at 763–64; see also Le,
463 S.W.3d at 878 (probable cause must be assessed under the totality of the
circumstances and is a “flexible, non-demanding standard”).
Thus, if the remaining affidavit independently establishes probable cause, the
evidence obtained pursuant to the warrant is not subject to suppression based on the
28
other illegality. See Martin, 620 S.W.3d at 763–64; Le, 463 S.W.3d at 878; Brown,
605 S.W.2d at 577; see also Segura, 468 U.S. at 813–15.
Applying that framework to this case, even if the IMEI number is excised
from the warrant affidavit, the remaining untainted information is sufficient to
establish a fair probability that Appellant’s phone contained evidence of the crime.
Because the IMEI number served principally to help identify the device, we
first consider whether Investigator Garcia’s remaining affidavit identified the
particular phone after the IMEI number is removed. It did. The affidavit described
the device as an “Apple iPhone,” included photographs of the front and back of the
particular phone at issue, and stated that the phone was Appellant’s phone that was
recovered from Appellant’s vehicle after his arrest. The affidavit sought permission
to search that specific phone, which was in the control of the Harris County Sheriff’s
Office. Those allegations provided a substantial basis for identifying the device to
be searched. See TEX. CODE CRIM. PROC. art. 18.0215(c)(2) (search warrant affidavit
for a cell phone must “identify the cellular telephone or other wireless
communications device to be searched”);12 see also Bonds v. State, 403 S.W.3d 867,
874 (Tex. Crim. App. 2013) (describing the Fourth Amendment’s “particularity
requirement”).
12
Although Article 18.0215 requires the affidavit to identify the device to be searched,
it does not mandate use of an IMEI number as the exclusive means of doing so. See
TEX. CODE CRIM. PROC. art. 18.0215(c)(2).
29
Adequately identifying the particular device does not end our analysis; we
also assess whether the redacted affidavit established a fair probability that evidence
of the offense would be found on the particular device. See Martin, 620 S.W.3d at
764. For that inquiry, we consider whether the remaining affidavit established a
sufficient nexus between Appellant’s phone and the killing. See State v. Baldwin,
664 S.W.3d 122, 123 (Tex. Crim. App. 2022) (warrant affidavit to search a cell
phone must “establish a nexus between the device and the offense” under
investigation); accord Stocker v. State, 693 S.W.3d 385, 387 (Tex. Crim. App.
2024). It did.
The affidavit described the September 2020 drive-by shooting that killed
Sierra Rhodd and recited independently and lawfully obtained information
connecting Appellant to the offense, including:
• Surveillance video showed three suspect vehicles traveling to and from the
area around the time of the shooting, including a “dark colored car”;
• Witness Israel Rivera “identified [Appellant] as the driver of the dark
colored car” he saw shortly after the shooting, and stated that “a dark
colored Toyota CHR” was “similar” to the vehicle he saw;
• Garcia received an anonymous tip stating Appellant was involved in the
shooting and identified Appellant and his black Toyota CHR as being
involved; and
• Garcia confirmed that a black Toyota CHR was registered to Appellant.
The affidavit then supplied, through independent and lawfully obtained
information, a direct connection between Appellant’s phone and the offense.
30
• Garcia attested that he discovered from an inmate that Appellant’s phone
number was 281-854-5983.
• Garcia stated that he “met with Andre Colson who admitted involvement
[in] the shooting,” and that “Colson’s text messages showed him
communicating with [Appellant’s] telephone number 281-854-5983,
stating he was going to ‘Spray’ the victim’s house.”
• Garcia recovered Appellant’s phone from Appellant’s vehicle at the time
of his arrest.
That evidence provided a particularized factual basis for concluding that
Appellant’s phone contained evidence relating to the killing.13 See Stocker, 693
S.W.3d at 387 (“One way to establish the required ‘nexus’ when it comes to a
warrant affidavit to search a cell phone would be through reliable information
suggesting that the criminal perpetrator ‘used’ that cell phone ‘before, during, or
after the crime’ that is being prosecuted.” (quoting Baldwin, 664 S.W.3d at 135)).
Accordingly, even after assuming an unlawful search and excising the IMEI
number, “the independent and lawfully acquired information in the search-warrant
13
Appellant argues that, because the trial court later suppressed T-Mobile call-detail
records and related location data obtained through execution of a different warrant,
the affidavit’s reference to that information could not support probable cause. But
that argument ignores the affidavit’s independent, lawfully obtained information,
including that Colson—who admitted involvement in the shooting—had exchanged
text messages with Appellant’s phone number concerning a plan to “spray” the
victim’s house. Those facts independently supplied a particularized nexus for a cellphone search warrant because they linked a phone number associated with
Appellant to communications concerning the charged offense. Thus, without the
suppressed T-Mobile records and location data, the affidavit established a fair
probability that evidence of the offense would be found on Appellant’s phone.
31
affidavit—when viewed as a whole and in a common-sense manner—clearly
established probable cause.” Le, 463 S.W.3d at 879–80. The warrant therefore
provided an independent lawful basis for the search of the phone’s digital contents.
See Martin, 620 S.W.3d at 763–64; Le, 463 S.W.3d at 879–80; Wehrenberg, 416
S.W.3d at 465–66; Brown, 605 S.W.2d at 577. Accordingly, the trial court did not
err in denying suppression of the evidence.
We overrule Appellant’s fourth issue.
V. Issue Five: The trial court did not abuse its discretion in overruling
Appellant’s motion for a mistrial.
In his final issue, Appellant argues the trial court erred in overruling his
request for a mistrial after Investigator Garcia stated, “I don’t know what happened.
[Appellant’s] the one that knows what happened,” which Appellant argues was an
impermissible comment on his right to remain silent. We disagree.
A. Standard of Review
We review a trial court’s ruling on a motion for mistrial for an abuse of
discretion. Becerra v. State, 685 S.W.3d 120, 127 (Tex. Crim. App. 2024). Under
this standard, “we do not substitute our judgment for that of the trial court.” Id.
Instead, “we decide whether the trial court’s decision was arbitrary or unreasonable.”
Id. A trial court abuses its discretion “when no reasonable view of the record could
support [its] ruling.” Id. We must uphold a trial court’s ruling on a motion for mistrial
32
if the ruling was “within the zone of reasonable disagreement.” Archie v. State, 221
S.W.3d 695, 699 (Tex. Crim. App. 2007).
A mistrial is a remedy for improper conduct that is “so prejudicial that
expenditure of further time and expense would be wasteful and futile.” Hawkins v.
State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (quotations omitted); see Ocon v.
State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009) (“A mistrial is an appropriate
remedy in ‘extreme circumstances’ for a narrow class of highly prejudicial and
incurable errors.”). This is an “extreme remedy” that halts trial proceedings, and
therefore a trial court should grant a mistrial “only when residual prejudice remains
after less drastic alternatives are explored.” Ocon, 284 S.W.3d at 884–85 (quotations
omitted). We consider the particular facts of the case when determining whether an
error requires a mistrial. Id. at 884.
B. Analysis
Investigator Garcia’s isolated remark did not require the extraordinary remedy
of a mistrial. A prosecutor’s—or witness’s—statement violates a defendant’s right
not to testify only if it was manifestly intended to comment on the defendant’s failure
to testify or was of such character that the jury would necessarily and naturally
understand it as such. See Randolph v. State, 353 S.W.3d 887, 891 (Tex. Crim. App.
2011). “If the language might reasonably be construed as merely an implied or
indirect allusion, there is no violation.” Id.
33
Viewed in context, Garcia’s statement (during cross examination) does not
satisfy that demanding standard. Garcia said the following:
Q. But again -- but again her -- Israel Rivera’s identification of Jason
Cisneros with Trinity Haggerton is -- does not go along with your
theory that it’s Jason and these -- group of people riding along together,
correct?
A. Can you repeat that?
Q. That goes against your theory, doesn’t it?
A. What does?
Q. That Trinity Haggerton -- that he – that Jason Cisneros is in a vehicle
with Trinity Haggerton. That goes against your theory that Jason and
these guys committed the shooting, correct?
A. No.
Q. So Trinity Haggerton is just somebody that’s there in a completely
separate vehicle that he’s also in?
A. He left the scene. He could have easily picked her up and brought
her -- looking for Austin McCalla.
Q. Okay. So your new theory is that he would have --[STATE]: Objection to argumentative.
THE COURT: Sustained.
(Lawyers speaking sotto voce.)
A. I don’t know what happened. [Appellant’s] the one that knows what
happened.
(Emphasis added). Defense counsel objected, and the trial court sustained the
objection. The trial court then instructed the jury to disregard the statement and
denied Appellant’s request for mistrial.
Read in context, the remark expressed Garcia’s inability to describe precisely
what occurred. The statement neither mentioned Appellant’s decision not to testify
34
nor suggested that the jury should draw an adverse inference from his silence. At
most, the remark was an ambiguous or indirect allusion, which is insufficient to
support a mistrial. See Randolph, 353 S.W.3d at 891.
Moreover, even assuming the statement was improper, the trial court acted
promptly to minimize any potential prejudice. The court sustained Appellant’s
objection and instructed the jury to disregard the statement. We “generally presume[]
that instructions to disregard and other cautionary instructions will be duly obeyed
by the jury,” and nothing in this record rebuts that presumption. Archie v. State, 340
S.W.3d 734, 741 (Tex. Crim. App. 2011). Nor was the remark repeated, emphasized
by the prosecutor, or exploited during closing argument. Instead, it was a single,
unsolicited response by a witness during defense counsel’s cross-examination.
Finally, the remaining evidence of Appellant’s guilt was substantial. See id.
(courts consider “the certainty of conviction absent the misconduct” in determining
whether the trial court abused its discretion in denying a mistrial for improper
comment). As discussed, the State presented evidence of motive, communications
before and after the offense, surveillance and vehicle evidence, firearm evidence,
and ballistics evidence connecting Appellant to the shooting. Given the strength of
that evidence, the trial court could have reasonably concluded that Garcia’s isolated
remark did not create incurable prejudice requiring a mistrial. See Randolph, 353
S.W.3d at 891; Archie, 340 S.W.3d at 741.
35
Considering the remark in context, the trial court’s prompt curative
instruction, and the strength of the remaining evidence, the denial of Appellant’s
motion for mistrial was not an abuse of discretion.
We overrule Appellant’s fifth issue.
CONCLUSION
We affirm the trial court’s judgment.
Jennifer Caughey
Justice
Panel consists of Justices Gunn, Caughey, and Dokupil.
Do not publish. TEX. R. APP. P. 47.2(b).
36