Russell Finkelberg v. The State of Texas

Summary

The Texas Court of Appeals addresses Russell Finkelberg’s appeal from his conviction for aggravated assault with a deadly weapon and ten-year prison sentence. The court considers challenges to the denial of a motion to suppress evidence obtained through a protective sweep and seizure of a cell phone, the competency of the complainant’s testimony, and an asserted due course of law claim concerning destruction of evidence. The court concludes that the suppression and competency challenges fail and that the due course of law claim was not preserved, affirming the trial court’s judgment.

Holdings

1. The protective sweep did not violate the Fourth Amendment because officers had an objectively reasonable belief, based on specific and articulable facts, that another person who could pose a danger might be inside the residence.
2. The warrantless seizure of Finkelberg's cell phone was reasonable under the Fourth Amendment because officer-safety concerns or exigent circumstances justified taking and securing it before officers obtained a warrant.
3. Viewing a contemporaneous surveillance notification displayed on the cell phone's lock screen was not a search because the notification was in plain view, and the State exclusionary rule therefore did not require suppression.
4. Finkelberg's competency challenge was not preserved because his trial objection asserted lack of personal knowledge rather than incompetence or insanity under Rule 601(a)(1). Alternatively, the complainant's memory problems and inconsistencies concerned credibility and weight for the jury, not competency, and the trial court did not abuse its discretion in allowing the testimony.
5. Finkelberg failed to preserve his claim that the Texas due course of law clause affords greater protection or a dismissal remedy for the destruction of evidence than federal due process.

Questions Presented

1. Whether the trial court erred by denying suppression of evidence allegedly derived from an unlawful protective sweep of Finkelberg's home.
2. Whether the warrantless seizure of Finkelberg's cell phone violated the Fourth Amendment or Texas exclusionary rule.
3. Whether viewing a contemporaneous surveillance notification on the phone's lock screen constituted an unlawful search.
4. Whether the trial court erred by refusing to strike the complainant's testimony as incompetent under Texas Rule of Evidence 601(a)(1).
5. Whether Finkelberg preserved a claim that the Texas Constitution's due course of law clause provides a broader remedy for destruction of evidence than federal due process or the Michael Morton Act.

Disposition

affirmed