TX6: Intentionally leaving phone behind to avoid tracking was still abandonment

Defendant claimed that she did not abandon her cell phone; she willingly left it behind so her partner couldn’t track her. Still, the password was known and that’s how the private search occurred which revealed sex acts with children on the phone. In Texas, one can attempt to try a search question to the jury (Tex. Code Crim. Proc. Ann. art. 38.23(a)) if there are contested facts for the jury to find; otherwise it’s a question of law for the court. “Hamal v. State, 390 S.W.3d 302, 306 (Tex. Crim. App. 2012); see Madden v. State, 242 S.W.3d 504, 517-18 (Tex. Crim. App. 2007). Further, the factual dispute must be related to how the evidence sought to be suppressed was obtained. Robinson v. State, 377 S.W.3d 712, 719 (Tex. Crim. App. 2012).” Here, the trial court did not abuse its discretion in denying a jury instruction on the search question because of the lack of a material fact dispute. Kelso v. State, 2018 Tex. App. LEXIS 7930 (Tex. App. – Texarkana Sep. 28, 2018).