Gallagher v. State

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RALPH WILLIAM GALLAGHER, Appellant v. THE STATE OF TEXAS, Appellee

Nos. 09-21-00307-CR, 09-21-00308-CR, 09-21-00309-CR, 09-21-00310-CR

Court of Appeals of Texas, Ninth District, Beaumont

April 26, 2023

DO NOT PUBLISH

Submitted on March 15, 2023

On Appeal from the 221st District Court Montgomery County, Texas Trial Cause Nos. 20-07-08653-CR, 20-07-08704-CR 21-08-10997-CR, 21-08-10998-CR

Before Golemon, C.J., Horton and Wright, JJ.

MEMORANDUM OPINION

W SCOTT GOLEMON, CHIEF JUSTICE

A jury convicted Ralph William Gallagher of two counts of indecency with a child, M.C.^[1] The jury also convicted Gallagher of one count of possession of child pornography and one count of sexual performance by a child, both offenses against, L.C. The indecency with a child indictments each included an enhancement for a prior out-of-state sexual exploitation of a minor conviction. The jury found the enhancements true and assessed punishment of life on each indecency with a child count, life for the sexual performance of a child offense, and ten years for the possession of child pornography offense. The State moved to cumulate the sentences, which the trial court granted. In one issue, Gallagher complains the trial court erred by denying his Motion to Suppress the seizure of his cell phone. As discussed below, we will affirm the trial court's judgments.

PERTINENT BACKGROUND

Bonnie Crump and Gallagher began interacting online for their work reviewing books. In 2014, they met in person at a book convention. Following a serious injury to her leg which left Bonnie bedridden in 2015, they became friends. In the summer of 2016, Bonnie and her husband decided they needed help around the house with their three children, M.C., L.C., and E.C.

Over the next several years, although Gallagher's primary residence was in South Carolina, he would stay with the Crump family intermittently to assist with the children for extended periods. He had a designated bedroom in the Crumps' home and vacationed and spent holidays with them. Bonnie testified that Gallagher helped with the children and became especially close to L.C., who was on the autism spectrum and did not have many friends.

In December 2019, their oldest daughter, M.C., outcried to a counselor at school that Gallagher had been touching her inappropriately. The school immediately called law enforcement officers. The Crumps met with school officials and law enforcement officers. Ultimately, through the investigation, law enforcement learned that Gallagher had also sexually abused L.C.

Investigators seized Gallagher's cell phone without a warrant and then searched it after obtaining a search warrant. During the search, officers found evidence relevant to proving the claims in the four-counts of Gallagher's indictment. Police also obtained records and data from Google and Dropbox after obtaining other search warrants requiring Google and Dropbox to allow police to search files tied to Gallagher from those services. The Dropbox materials included a naked video of Gallagher addressing L.C., a photograph of M.C. in her underwear, and other evidence relevant to proving Gallagher guilty of the offenses of sexual indecency and sexual performance with a child, L.C. At trial, Gallagher moved to suppress the seizure and search of his phone, Google records, and Dropbox records. On appeal, Gallagher raises one issue, challenging the seizure of his phone, arguing it was seized without a warrant violating the Texas Code of Criminal Procedure Article 38.23 and the Fourth Amendment.

The trial court did not conduct the evidentiary hearing on the defendant's motion to suppress until after the trial began. Before the trial court conducted the suppression hearing outside the jury's presence, the jury heard Detective Jason Buckner, an employee of the Montgomery County Sheriff's Office, testify that on December 6, 2019, he received a call from Patrol Sergeant Johnson who gave him "some details" about M.C.'s outcry. According to the detective, Sergeant Johnson said Gallagher's primary residence was in South Carolina, which Gallagher confirmed. Detective Buckner testified that he told Sergeant Johnson that he would go to the scene immediately to start his investigation since "we had a defendant that was going to be leaving the state very soon[.]" Detective Buckner added that while en route to the scene, he spoke with Sergeant Johnson again. Sergeant Johnson then gave him additional details as to M.C.'s outcry. Detective Buckner explained that after arriving on the scene, he spoke with Deputy Fry. Deputy Fry, already on the scene before Detective Buckner arrived, advised Detective Buckner of the "full outcry from everybody." Detective Buckner explained that when he "pulled up to the scene," he saw Gallagher "appearing very nervous, pacing the driveway, walking back and forth really fast."

At that point, the prosecutor approached the bench and advised the trial court that he was "about to get into the seizure of the phone." The trial court recessed the trial, allowed the jury to leave the courtroom, and went on to conduct a hearing on Gallagher's Motion to Suppress.

Motion to Suppress Hearing

During the suppression hearing, Detective Buckner testified about the seizure and subsequent search of Gallagher's phone. Detective Buckner said that he seized Gallagher's phone without detaining Gallagher, and without his consent or the benefit of a search warrant. When Detective Buckner seized the phone, he already knew Gallagher was a registered sex offender in South Carolina. And Detective Buckner knew the offense in South Carolina involved "a sexting incident where electronic devices were used to message and send pictures underage children." According to Detective Buckner, when he seized the phone it was his understanding that M.C.'s account, based on her outcry, involved Gallagher touching her on top of and under her clothes, the sexual acts involving the two had occurred over a period of two to three years, and they all had occurred at the Crumps' home. Buckner explained that he seized Gallagher's phone because he knew that 1) Gallagher was leaving the state, 2) the cell phone contained geolocation data, which could be used to corroborate M.C.'s outcry based on Gallagher's location when the incidents occurred, and 3) he was concerned that the case in South Carolina also involved Gallagher's use of electronic communications. Detective Buckner testified that after seizing Gallagher's phone, he took it to the sheriff's crime lab division where he submitted it as evidence.

Detective Buckner told the trial court he was officially assigned to Gallagher's case on December 9, 2019. A magistrate issued a search warrant for Gallagher's phone on January 13, 2020. The detective explained that between December 6 and January 13, the Crumps children were interviewed, M.C. underwent a SANE exam, and detectives interviewed the children's caregivers and filed search warrants. Detective Buckner testified that Gallagher never requested that the police return his phone and that Gallagher "did not even want to touch the cell phone and wanted nothing to do with the phone." Detective Buckner explained that before police obtained the search warrant for the phone, M.C. told the person who interviewed her that Gallagher took pictures of her that she made him delete, which also led Detective Buckner to believe his phone might contain evidence of a crime.

During the hearing, copies of the search warrants for the phone, Google records, and Dropbox records were admitted into evidence. In the Application for Search Warrant to Access Cellular Telephone, Detective Buckner outlined what he knew when he seized Gallagher's phone. In the application, the detective described M.C.'s outcry to her school counselor where M.C. told her Gallagher had been touching her genitals and breasts for two to three years. Detective Buckner averred he relayed that information to Deputy Fry, who was dispatched to the school. In the application, Buckner also swore he arrived at the Crumps' residence, where Gallagher was staying, so he could collect evidence and interview Gallagher. Detective Buckner further asserted he attempted to speak with Gallagher about M.C.'s allegations to the counselor, but Gallagher advised he wanted to speak to an attorney. Detective Buckner then stated he seized Gallagher's phone, which Gallagher had on his person, "to preserve any possible evidence that may have been contained on or within it." Finally, in applying for the search warrant Detective Buckner swore that he had "reason to collect the phone due to the defendant living out of state and knowing that cell phones contain geographical evidence and GPS coordinates that would indicate the defendant was in the location the assaults occurred as stated by the victim M.C. at the time of the outcry."

Gallagher argued that the seizure of the cell phone was wrong, and the evidence police subsequently seized from his phone even though seized with the benefit of a search warrant was "fruit of the poison tree." The State argued the cell phone was in plain view, officers seized it based on their knowledge at the time, and police had used due diligence to get a warrant to search Gallagher's phone. The defense further argued that the information available to police when they seized the phone did not include information that Gallagher used his cell phone to record M.C. In addition, Gallagher argued that even though the State claimed Gallagher was a registered sex offender, the State failed to provide a copy of the judgments of conviction on any offenses in South Carolina, and he claimed the trial court had not heard any testimony the offenses in South Carolina involved Gallagher's...