THOMSON, WADE HARRELL

Thomson, who was over 40 years old, was stopped for a routine traffic violation with a young female in his car. Questions of Thomson and his passenger, who said she was 18, revealed conflicting stories. This led to further investigation. A Terry frisk revealed a cell phone and marijuana pipe on Thomson. The ensuing search of his vehicle revealed a duffle bag containing three knives, duct tape, bungie cords, two screwdrivers, binoculars, Benadryl, “pills in powder form,” a bar of soap, and a second cell phone. Thomson said he used the items in his work as a chicken farmer. He said the phone had no cellular service and that he used it for pictures, presumably of chicken farming. When Deputy Payne handled the bag and its contents, the phone’s screen illuminated and a “3G” appeared. Thomson still insisted it had no cellular service and told Deputy Payne to try to make a call on it. Deputy Payne unlocked the phone following Thomson’s instructions. He could not make a call because it lacked prepaid minutes. As he tried to turn the phone off, Deputy Payne accidentally hit the “gallery” icon. Pictures of little girls, naked and in sexually explicit positions, appeared. Thomson was arrested for the marijuana pipe and a warrant was obtained to search the second phone. The search revealed more than 1,400 images of child pornography. Thomson was charged with their possession.

Thomson moved to suppress the contents of the phone, arguing that Deputy Payne exceeded the scope of consent and was therefore not in a lawful vantage point when the images “accidentally” appeared in plain view. The trial court denied the motion. This issue was extensively relitigated at trial, including expert testimony and re-enactment showing how the phone’s condition made accidental opening of the gallery more likely. The jury was charged with an Art. 38.23 instruction on Deptuy Payne’s lack of intent to exceed the scope of consent. Thomson was convicted.

After the time for filing a motion for new trial had passed and the record had been filed with the court of appeals, the State gave Thomson notice of potential Brady material. Years after the stop giving rise to this prosecution, Deputy Payne used his access to a government database for personal purposes on multiple occasions. He resigned as a result. Thomson filed a motion for new trial. When the trial court invited briefing on whether it had jurisdiction to hear an untimely motion for new trial after the appellate record had been filed, Thomson filed a motion to abate and remand with the court of appeals. The court of appeals held that the Texas Supreme Court’s Emergency Order(s) Regarding the COVID-19 State of Disaster authorized courts to modify or suspend deadlines and the ordered the trial court to hold a hearing on Thomson’s motion. A hearing was held, and the trial court denied Thomson’s motion for new trial.

Thomson appealed. The court of appeals held that Thomson’s consent for Deputy Payne to manipulate his phone “was broad enough to authorize inadvertent misnavigation” and so upheld the denial of his motion to suppress. In the absence of any evidence of intent on Deputy Payne’s part to exceed the scope of consent—this issue was heavily litigated and findings were made—it could not find a Fourth Amendment violation. But the court of appeals held Thomson was entitled to a new trial because of the disclosed information about Deputy Payne. It held that “evidence that Deputy Payne had a history of accessing files without authorization is relevant because it makes it more probable—at least slightly so—that his navigation of Thomson’s phone was intentional.” Had it been disclosed before trial, it would have been admissible under Rule 404 to rebut his claim of accidental navigation. It refused to consider whether the trial court’s ruling would have been correct under Rule 403 because it was not raised at trial and therefore no balancing test was performed on the record, citing Sunbury v. State, 88 S.W.3d 228, 235 (Tex. Crim. App. 2002). Finally, it held this evidence was material under Brady, i.e., it is probable the jury’s answer to the Art. 38.23 question would have been different had the jury heard that evidence.

The State challenges the reversal on two fronts. First, it challenges whether appellant’s motion for new trial should even be an issue. It argues that the Emergency Orders do not grant the court of appeals the ability to abate an appeal to hold a hearing on an untimely filed motion for new trial. If it did, it still does not give the court of appeals the power to force a trial court to exercise what the Emergency Orders say is a discretionary ability to modify and suspend its deadlines. On the merits, the State argues that a ruling that the disclosed evidence was inadmissible under Rule 404 for lack of similarity would have been within the zone of reasonable disagreement. It also would have been reasonable for the trial court to hold that whatever probative value it had would have been substantially outweighed by the tendency to unfairly prejudice the jury due to its conformity potential—a use of the evidence defense counsel appeared to be advocating. On this point, the court of appeals was wrong to disregard Rule 403 for lack of record balancing because “correct on any applicable theory of law” supercedes that requirement. See Henley v. State, 493 S.W.3d 77, 93 (Tex. Crim. App. 2016).

Thomson challenges the holding on the motion to suppress. He argues that “blind carelessness [following a grant of consent] cannot transform what is an otherwise unlawful vantage point into a lawful one.” He also says the court of appeals’s holding makes worthless any explicit limitation on consent if that explicit limitation can be overcome by inadvertence. What, he asks, can a handcuffed suspect do to effectively prevent accidental intrusion that is now within the scope of consent?