Brief for Appellee, Ford v. Texas (March 21, 2014)

NO. 04-12-00317-CR

JON THOMAS FORD,

Appellant

v.

THE STATE OF TEXAS, Appellee

APPELLEE‘S BRIEF

In the Court of Appeals for the

Fourth Court of Appeals District of Texas

at San Antonio

______________________________________________________________

On appeal from the 186th District Court of

Bexar County, Trial Court No. 2010-CR-7741,

Honorable Maria Teresa Herr, Judge Presiding

_______________________________________________________________

SUSAN D. REED

Criminal District Attorney

Bexar County, Texas

CATHERINE BABBITT

KIRSTA MELTON

KATHERINE CUNNINGHAM

Assistant District Attorneys

ORAL ARGUMENT REQUESTED

JAY BRANDON

Assistant District Attorney

SBN 02880500

101 W. Nueva

San Antonio TX 78205

(210) 335-2418

[email protected]

ACCEPTED04-12-00317-CR

FOURTH COURT OF APPEALSSAN ANTONIO, TEXAS

3/21/2014 1:28:48 PMKEITH HOTTLE

CLERK

FILED IN4th COURT OF APPEALS SAN ANTONIO, TEXAS

03/21/2014 1:28:48 PM

KEITH E. HOTTLE Clerk

2

IDENTITY OF PARTIES AND COUNSEL

Jon Thomas Ford - Appellant (defendant in the trial court)

Dick DeGuerin - Appellant‘s attorneys at trial

Todd Ward

Catherine Babbitt - Attorneys for the State at trial

Kirsta Melton

Katherine Cunningham

Hon. Maria Teresa Herr - Judge Presiding at trial

Jay Brandon - Attorney for the State on appeal

3

TABLE OF CONTENTS

Page

IDENTITIES OF PARTIES AND COUNSEL 2

INDEX OF AUTHORITIES 8

STATEMENT OF THE CASE 11

STATEMENT OF FACTS 11

APPELLANT’S POINT OF ERROR ONE

THE EVIDENCE IS LEGALLY INSUFFICIENT. 22

STATE'S RESPONSE

THE EVIDENCE PLACING APPELLANT

AT THE SCENE OF THE MURDER

SUFFICIENTLY ESTABLISHED GUILT. 22

APPELLANT’S POINT OF ERROR TWO

THE TRIAL COURT ABUSED ITS

DISCRETION WHEN IT DENIED FORD’S

MOTION FOR NEW TRIAL. 27

STATE’S RESPONSE

APPELLANT PRESENTED NO CLAIMS OR

CREDIBLE EVIDENCE THAT WOULD

REQUIRE GRANTING A NEW TRIAL. 27

APPELLANT’S POINT OF ERROR THREE

THE TRIAL COURT’S ANSWER TO A JURY

NOTE INDICATING A DISPUTE WAS NOT

A FAIR AND REASONABLE RESPONSE. 30

STATE'S RESPONSE

THE TRIAL COURT PROVIDED THE JURY

WITH ALL TESTIMONY DIRECTLY

RELATED TO ITS REQUEST. 30

APPELLANT’S POINT OF ERROR FOUR

THE STATE OBTAINED HISTORICAL

4

CELL SITE DATA ILLEGALLY IN

VIOLATION OF THE TEXAS CODE

OF CRIMINAL PROCEDURE ART. 18.21. 35

APPELLANT’S POINT OF ERROR FIVE

THE STATE VIOLATED THE TEXAS

CODE OF CRIMINAL PROCEDURE

ARTICLE 38.23 WHEN IT OBTAINED

HISTORICAL CELL TOWER DATA

WITHOUT A WARRANT. 35

APPELLANT’S POINT OF ERROR SIX

THE STATE VIOLATED ARTICLE I § 9

OF THE TEXAS CONSTITUTION WHEN

IT OBTAINED HISTORICAL CELL SITE

DATA WITHOUT A WARRANT. 35

APPELLANT’S POINT OF ERROR SEVEN

THE STATE VIOLATED 18 U.S.C. §2703 IN

OBTAINING CELL SITE DATA ILLEGALLY. 35

APPELLANT’S POINT OF ERROR EIGHT

THE STATE VIOLATED THE FOURTH

AMENDMENT TO THE U.S. CONSTITUTION

WHEN IT OBTAINED HISTORICAL CELL

SITE DATA WITHOUT A WARRANT AND

WITHOUT PROBABLE CAUSE EFFECTING

AN UNREASONABLE SEARCH AND SEIZURE. 35

APPELLANT’S POINT OF ERROR NINE

THE STATE VIOLATED THE FIRST



SITE DATA WITHOUT A WARRANT

INFRINGING ON THE RIGHT OF FREE

ASSOCIATION IN VIOLATION OF THE

FIRST AMENDMENT TO THE CONSTITUTION. 36

STATE'S RESPONSE TO ALL

THE CELL SITE DATA WERE

5

PROBABLY OBTAINED THROUGH

COURT ORDER AUTHORIZED BY

STATUTE. APPELLANT HAD NO

REASONABLE EXPECTATION OF

PRIVACY IN SUCH PUBLIC

INFORMATION IN ANY RESPECT. 36

APPELLANT’S POINT OF ERROR TEN

THE SEARCH WARRANT’S AFFIDAVIT

TO SEARCH FORD’S HOME, TRUNK AND

DNA CONTAINS MATERIALLY FALSE

STATEMENTS AND OMISSIONS THAT

ELIMINATE PROBABLE CAUSE FOR

THE ILLEGAL SEARCHES. 44

APPELLANT’S POINT OF ERROR ELEVEN






THE ILLEGAL SEARCHES. 44

STATE’S RESPONSE TO BOTH

MINOR VARIATIONS IN THE OFFICER’S

RECOUNTING OF WITNESS STATEMENTS

DID NOT ELIMINATE PROBABLE CAUSE. 44

APPELLANT’S POINT OF ERROR TWELVE

THE TRIAL COURT IMPROPERLY ADMITTED

SUPPOSED WEAPONS, A THREE-HOLE PUNCH

AND A CORDLESS ELECTRIC DRILL CHARGE

CORD IN EVIDENCE DEPRIVING FORD OF

A FAIR TRIAL. 48

STATE’S RESPONSE

THE ADMITTED ITEMS WERE VIRTUALLY

IDENTICAL TO ITEMS WITNESS TESTIMONY

IDENTIFIED AS BEING IN THE APARTMENT,

SO WERE PROPERLY ADMITTED AS

6

DEMONSTRATIVE EVIDENCE. 48

APPELLANT’S POINT OF ERROR THIRTEEN

THE STATE ENGAGED IN IMPROPER

ARGUMENT IN ITS OPENING BY NAME

CALLING FORD A LIAR TWELVE TIMES

OVER SUSTAINED OBJECTIONS. 50

APPELLANT’S POINT OF ERROR FOURTEEN


ARGUMENT IN ITS CLOSING BY BURDEN SHIFTING. 50

APPELLANT’S POINT OF ERROR FIFTEEN


ARGUMENT BY COMMENTING ON

FORD’S FAILURE TO TESTIFY. 50

STATE’S RESPONSE TO ALL THREE

FAILURE OF THE DEFENSE TO SEEK

EVIDENCE IT CLAIMS WOULD HAVE

BEEN BENEFICIAL IS A PROPER

SUBJECT OF FINAL ARGUMENT.

THE STATE WAS ENTITLED TO COMMENT

ON APPELLANT’S FAILURE TO CLAIM

INNOCENCE WHEN HE HAD OPPORTUNITIES

TO DO SO PRIOR TO TRIAL AND DID NOT. 49

APPELLANT’S POINT OF ERROR SIXTEEN

THE TRIAL COURT ERRONEOUSLY

DENIED DEFENSE COUNSEL A CONTINUANCE

WHEN HE WAS SURPRISED BY ADVERSE

CELL TOWER TESTIMONY. 54

STATE’S RESPONSE

APPELLANT DID NOT FILE A

WRITTEN, SWORN MOTION AS

REQUIRED FOR THIS CLAIM. 54

APPELLANT’S POINT OF ERROR SEVENTEEN

THE TRIAL COURT ERRED BY DENYING

7

THE APPELLANT’S MOTION FOR

INDEPENDENT EXAMINATION OF DNA

EVIDENCE DENYING FORD HIS RIGHT

TO DUE PROCESS. 56

STATE’S RESPONSE

THE DEFENSE PRESENTED NO EVIDENCE

IN SUPPORT OF ITS REQUEST, SO IT WAS

PROPERLY DENIED BY THE COURT. 56

APPELLANT’S POINT OF ERROR EIGHTEEN


DISCRETION EXCLUDING THE EVIDENCE

OF A BREAK-IN AT DANA CLAIR EDWARDS’

PARENTS’ HOME ON 12/30/2008. 58

STATE’S RESPONSE

THERE WAS NO EVIDENCE THIS EVENT

WAS RELATED TO THE MURDER ON

TRIAL, SO THE COURT PROPERLY

EXCLUDED IT AS IRRELEVANT. 58

PRAYER FOR RELIEF 59

CERTIFICATE OF SERVICE 60

CERTIFICATE OF COMPLIANCE 60

8

INDEX OF AUTHORITIES

Page

Archie v. State, 340 S.W.3d 734 (Tex.Crim.App. 2011) 51

Baines v. State, 401 S.W.3d 104 (Tex.App.—Houston [14th Dist.]

2011, no pet.) 53

Barnett v. State, 847 S.W.2d 678 (Tex.App.—Texarkana 1993, no pet.) 35

Blackshear v. State, 385 S.W.3d 589 (Tex.Crim.App. 2012) 54

Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App. 2010) 22

Brown v. State, 870 S.W.2d 53 (Tex.Crim.App. 1994) 31

Cockrell v. State, 933 S.W.2d 73 (Tex.Crim.App. 1996) 53

Dee v. State, 388 S.W.2d 946 (Tex.Crim.App. 1965) 52

Drew v. State, 743 S.W.2d 207 (Tex.Crim.App. 1987) 29

Easley v. State, 986 S.W.2d 264 (Tex.App.—San Antonio 1998, no pet.) 27

Franks v. Delaware, 442 U.S. 928, 99 S.Ct. 2871, 61 L.Ed.2d 304 (1979) 44

Freeman v. State, 340 S.W.3d 717 (Tex.Crim.App. 2011) 53

Garcia v. State, 246 S.W.3d 121 (Tex.App.—San Antonio 2007,

pet. ref‘d) 26

Gilcrease v. State, 32 S.W.3d 277 (Tex.App.—San Antonio 2000,

pet. ref‘d) 51

Green v. State, 934 S.W.2d 92 (Tex.Crim.App. 1996) 48

Guzman v. State, 955 S.W.2d 85 (Tex.Crim. App. 1997). 45

Hankins v. State, 646 S.W.2d 191 (Tex.Crim.App. 1983) 26

Holland v. United States, 348 U.S. 121, 75 S.Ct. 127,

9

99 L.Ed. 150 (1954); 26

Hudson v. State, 675 S.W.2d 507 (Tex.Crim.App. 1984) 51

In re Application of the U.S. for Historical Cell Site Data, 724 F.3d

600 (5th

Cir. 2013) 38

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781,

61 L.Ed.2d 560 (1979) 23

Jackson v. State, 17 S.W.3d 664 (Tex.Crim.App. 2000) 53

Jiminez v. State, 307 S.W.3d 325 (Tex.App.—San Antonio 2009,

pet. ref‘d) 54

Johnson v. State, 919 S.W.2d 473 (Tex.App.—Fort Worth 1996,

pet. ref‘d.) 49

Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) 38

Keeter v. State, 74 S.W.3d 31 (Tex.Crim.App. 2002) 29

Laster v. State, 275 S.W.3d 512 (Tex.Crim.App. 2009) 25

Leday v. State, 983 S.W.2d 713 (Tex.Crim.App. 1998) 51

Massey v. State, 933 S.W.2d 141 (Tex.Crim.App. 1996) 48

McBride v. State, 838 S.W.2d 248 (Tex.Crim. App. 1992) 57

Richardson v. State, 865 S.W.2d 944 (Tex.Crim.App. 1993) 42

Robison v. State, 888 S.W.2d 473, 480-81 (Tex.Crim.App. 1994) 35

Robledo v. State, No. 04-08-00586-CR (Tex.App.—San Antonio

2009, pet. ref‘d)(not designated for publication) 49

Rodriguez v. State, 232 S.W.3d 55 (Tex.Crim.App. 2007) 45

Santellan v. State, 939 S.W.2d 155 (Tex.Crim.App. 1997) 26

10

State v. Granville, ___ S.W.3d ___, No. PD-1095-12 (Tex.Crim.

App. delivered February 26, 2014) 38

State v. McClain, 337 S.W.3d 268, 271 (Tex.Crim.App. 2011) 44

Torres v. State, 141 S.W.3d 645 (Tex.App.—El Paso 2004, pet. ref‘d) 26

United States v. Jones, 565 U.S. ___, 132 S.Ct. 945 (2012) 36

United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619,

48 L.Ed.2d 71 (1976) 37

Valencia v. State, 946 S.W.2d 81 (Tex.Crim.App. 1997) 53

Webb v. State, 232 S.W.3d 109 (Tex.Crim.App. 2007) 27

Wiley v. State, 74 S.W.3d 399 (Tex.Crim.App. 2002) 57

Williams v. State, 235 S.W.3d 742 (Tex.Crim.App. 2007) 24

11

STATEMENT OF THE CASE

Appellant Jon Thomas Ford was indicted for the murder of Dana Clair

Andrews, by ligature strangulation. (CR 5) Appellant pled not guilty and was tried

by a jury. (RR6 21) The jury convicted him of murder. (CR 16; RR19 21) After a

punishment hearing, the jury assessed punishment at imprisonment for 40 years.

(RR19 87) Appellant filed notice of appeal (CR 709), and the trial court certified

his right to appeal. (CR 22)

STATEMENT OF FACTS

The victim was Appellant‘s former girl friend, who broke up with him a few

months before she was murdered. There was no sign of forced entry into her

apartment, to which Appellant had once had a key. Appellant claimed to be home

in bed at the time, but he was placed at or near the scene by his cell phone records,

security camera footage, and his DNA on the towel covering the victim‘s face,

when there was no other reasonable explanation for its presence.

The deceased, Dana Clair Edwards, was murdered some time in the early

morning hours of New Year‘s Day, 2009, following a New Year‘s Eve party she

attended along with Appellant and other friends. (RR6 117, 121) One of those

attending was Appellant‘s friend since childhood, Alan Tarver. (RR6 76, 80) Alan

had been present when Appellant and Dana met in the summer of 2007. (RR6 89,

90) The two struck up a relationship, including double dating with Alan and his

12

girl friend at the time, Melissa Federspill. (RR6 91) But in September of 2008,

Dana broke off the relationship with Appellant. (RR6 94) Appellant was

emotional about that, hurt and unhappy. (RR6 95) However, he and Dana

remained apparently very civil, and continued to socialize with mutual friends. In

October of 2008, for example, Dana came to a fortieth birthday party Appellant

threw for himself. (RR6 96, 97)

On December 20th a group of friends including Alan, Melissa, Appellant,

and Dana rented a limousine and went driving to see Christmas lights, ending up in

New Braunfels. (RR6 98, 99) People were drinking in the limo. (RR6 101) Dana

was drunk. (RR6 102) Some people thought the limo driver was drunk as well, so

they got out at a rest stop, but Appellant and Dana rode back to San Antonio. (RR6

103) Later Alan said Appellant told him Dana passed out on the drive home, so he

had to carry her upstairs to her condo bedroom. (RR6 105, 106) He also said he

had to clean up after her dogs. (RR7 90)

According to testimony, Dana and Appellant had one more meeting between

the limo ride and New Year‘s Eve. Dana told her friend Melissa Federspill that

she went to see Appellant at his home on December 23rd

to give him a Christmas

present for his dog. (RR7 177) Appellant was crying, drinking a lot, and very

emotional. (RR7 178, 180) Dana ended up staying for five hours to try to comfort

him.

13

On New Year‘s Eve there was an earlier party Appellant and Alan both

attended, then they drove together to a different party at Mary Minor‘s home on

Treasure Way, near Nacogdoches and Loop 410. (RR6 116, 117) Appellant was

driving his white Tahoe. The party there was subdued, with not much drinking.

(RR6 127-28) Dana, for example, had only two sips of champagne. (RR6 128)

Appellant left this party abruptly. Alan texted him at 11:311 to ask why, and

Appellant responded, ―No longer fun.‖ (RR6 130, 131) Appellant didn‘t respond

to the next text Alan sent. Appellant had left a beer cooler at the party, so when

Alan and Melissa left the party about 12:45, at the same time as Dana, Alan and

Melissa drove by Appellant‘s house to return it. (RR6 131, 132) They drove up an

alley people used for access to Appellant‘s house on Rosemary. From there they

could see Appellant‘s driveway. His car wasn‘t parked there. (RR6 134) So they

turned right into a church parking lot across the alley, where Appellant sometimes

parked, and looked for his car, but didn‘t see it. It wasn‘t parked where Appellant

usually parked in that lot. (RR7 21) The defense suggested Appellant might have

parked in a dark corner of the lot, but Alan replied that he‘d never known

Appellant to park there, and Alan‘s headlights would have illuminated that corner

when he turned into the lot. (RR7 136, 137) Later Appellant told Alan he‘d parked

in that lot, but he was never specific about where. (RR7 141-42) Alan didn‘t

1 Appellant‘s cell phone records were admitted, showing times of the various calls and texts. (SX 11, RR7 7)

14

believe him. (RR7 45, 142)

That early morning, Alan texted Appellant again at 1:19 a.m. to ask where

he was, but Appellant didn‘t respond. (RR6 137) The next day, New Year‘s Day,

the group was supposed to have lunch at Neiman‘s, but instead Appellant rather

abruptly drove to Rockport, where his parents had a vacation home. (RR7 27, 28)

After Dana‘s death was discovered, Alan found Appellant‘s answers

evasive; they didn‘t match what Alan had seen. (RR7 45, 48) By the time of trial,

he hadn‘t spoken to Appellant since the month after Dana‘s death. (RR7 55)

Melissa Federspill offered similar testimony. She had not seen Dana get

sick on the limo ride. (RR7 171) At the later New Year‘s Eve party Appellant got

upset about a remark Melissa made implying that neither he nor Alan could

commit to marriage. (RR7 190) Appellant told her it rubbed him the wrong way,

and wasn‘t funny. Then he left without saying goodbye. (RR7 191, 192)

At the party, Dana arrived with a drink, but Melissa didn‘t know what was in

it, although she told a police officer in her statement soon after the party that it had

been gin and tonic. (RR7 194; RR8 38) At the party Dana took one little sip of

champagne, then gave her glass to Melissa. (RR7 193)

Melissa also described looking for Appellant‘s car in the church parking lot

behind his house and not finding it. (RR7 203-05) Appellant told her he‘d gone

right home after the party, but she didn‘t believe him. (RR7 210) After Dana‘s

15

death was discovered, her dog Grit was missing. (RR7 217-18)

A day later Melissa gave a statement to a detective. (RR7 228) She was also

shown security footage from a bank camera across the street from Dana‘s

apartment complex. She saw a car similar to Appellant‘s driving into the complex.

(RR7 229) However, she couldn‘t identify a person seen walking in. (RR7 230)

When Appellant gave a police detective his cell phone number, he also said

no one else had had his phone, and that no one else used his white Tahoe the night

of the murder. (RR12 75) He also said he went straight home after the party.

(RR12 77) But the records showed otherwise.

Kenneth Doll, the director of radio networking engineering for AT&T for

south Texas, testified extensively. (RR8 87) He helped design cell tower

placements and was ―very familiar‖ with how cell towers work. (RR8 89) He

could tell from cell tower records where a cell phone was located; that is, within a

certain sector. (RR8 96) He could tell which tower serviced a call, and from that

could tell in ―pretty close proximity‖ where the person with the phone was. (RR8

97) Several exhibits were admitted showing Appellant‘s cell phone usage the

night of December 31-January 1, including which towers handled which calls.

(RR8 102)

Dana‘s condo complex was between the party and Appellant‘s house, all

fairly close together. But three different cell phone towers covered those areas.

16

(RR8 107) Sector 3 was the best tower to service Appellant‘s home. It showed he

was there at 11:31 when he received the text from Alan. (RR8 124-25) However,

his phone received an unanswered call at 11:45 p.m., which showed he was in the

vicinity of Gallery Court, Dana‘s condo complex. (RR8 127) A text he received at

1:19 a.m. showed him still in that area. But at 1:32 he received a text in sector 3,

in the vicinity of Olmos Dam (where the dog Grit‘s body was later found. ) (RR8

128-32)

Mr. Doll explained that the Gallery Court location would always use the

same cell tower. (RR8 131) But that tower would never service Appellant‘s home

address; it didn‘t have line of sight to it. (RR8 136) So Appellant‘s phone could

not have been at his home at 11:45 p.m. when he claimed to be home. The call to

it showed it to be in the Gallery Court area. (RR8 141) By 2:30 a.m., the phone

was back in Appellant‘s home area. (RR8 143) Mr. Doll testified positively that

Appellant‘s phone was not at his Rosemary address at 11:45 p.m. and 1:19 a.m.

(RR8 169, 170) It would have had to be in the Gallery Court area. (RR8 176-77)

Jordan Hasslocher, 27, lived in the condo unit closest to Dana‘s. (RR9 21)

He described the small complex, and said he walked around it a lot, including at

night. (RR9 27, 33) The night of the murder, he‘d seen Dana between 12:30 and 1,

when they were both out walking their dogs. (RR9 41, 42) But a friend of Jordan‘s

arrived at about 1:21, and he didn‘t see much after that. (RR9 46) He did not see

17

Appellant or his car that night, but testified no one else in the complex drove a

white Tahoe. (RR9 48, 58) Of course, he didn‘t see everything that happened in

the complex, because sometimes he was inside and sometimes he was ―buried in

reading.‖ (RR9 70-1, 72)

Deborah Edwards, Dana‘s mother, testified that the condo in question was a

two-bedroom unit; the second bedroom was used as an office. (RR9 91) Dana both

lived there and worked there, in the family homebuilding business. There was a

leak in the second bedroom‘s toilet, so the water to it had been shut off for some

time. (RR9 98) White towels were kept in that bathroom, including the white hand

towel found lying over Dana‘s face when her body was discovered. (RR9 97, 148)

Mrs. Edwards testified that her daughter washed her sheets and towels once a

week, using bleach on the towels. (RR9 93-4, 114) The rest of her testimony

involved finding her daughter‘s body and the aftermath. There was no sign of

forced entry to the condo, and the burglar bars were in place. (RR9 164)

On January 2, 2009, after Dana‘s death Appellant came to pay his respects to

her family. (RR9 171-72) He told Mrs. Edwards he‘d had a very pleasant evening

with Dana on the 23rd

, but Mrs. Edwards knew better because she‘d heard Dana‘s

account of the event. (RR9 173) When talking to her, Appellant wouldn‘t make

eye contact. (RR9 174-75) She also noticed that Appellant, though usually very

well-groomed, on this occasion had his fingernails cut very short and his fingers

18

were very red. (RR9 175) He didn‘t ask her any questions about Dana, and though

he offered to help, after the memorial service she never heard from him again.

(RR9 176, 179)

Mrs. Edwards had noticed two things missing from the condo, a large three-

hole paper punch, and the cord to a charger. (RR9 165, 193) Also missing was

Dana‘s dog Grit. (RR9 169) His body was later found in Olmos Basin. (RR9 117)

Various police officers testified about the investigation, including things

they‘d gotten wrong. One testified he should have taken fingerprints at the scene

but didn‘t. (RR11 167) The bloody towel covering the deceased‘s head wasn‘t

collected until days after the murder. (RR11 213, 219)

Video from the bank security cameras across the street was admitted, but the

footage is very grainy. (RR12 50) Detective Leroy Carrion testified to meeting

Appellant and other witnesses and taking statements from them. (RR12 74) The

detective testified to watching the bank footage and seeing what he thought was

Appellant‘s white Tahoe on it several times. (RR12 93, 96, 97, 102) It had a black

stripe like Appellant‘s and was otherwise similar. (RR12 97-8)2 At 11:24 this car

went by, from the direction of Mary Minor‘s. (RR12 96) It then returned and went

into Gallery Court for two or three minutes and came out again. (RR12 97) At

11:37 a similar car entered Gallery Court and emerged again at 11:39. (RR12 99,

2 There was a dispute about whether something on top of Appellant‘s Tahoe was a luggage rack or just ―rails,‖ but

the witness testified more than once that the car on the video, like Appellant‘s, had no luggage rack. (RR12 93, 95)

19

100) This time it headed north again, away from Appellant‘s home, but in the

direction of the shopping center, Carousel Court, right next to Gallery Court.

(RR12 102) A minute or two later a person came from that direction on foot and

went into Gallery Court. This person was wearing a dark shirt like Appellant was

that night. (RR12 105) These appearances matched up with where the cell phone

records show Appellant was at those times. (RR12 152-54) Appellant told the

detective he never used his cell phone after 11:30 p.m. on the 31st, which was

clearly a lie. (RR13 176)

At 2:02 a.m. a male exited Gallery Court on foot, looking like the earlier

arrival. (RR12 164-65) This person headed north on Broadway, toward Carousel

Court. A few minutes later a car that looked like the white Tahoe drove by from

that direction, headed south toward Appellant‘s house. (RR12 168-70) The white

Tahoe appeared again at 3:12 a.m., heading into Gallery Court, and emerged again

at 3:17. (RR12 171-72, 174)

Appellant had said he would do everything he could to help find Dana‘s

killer, but in fact the detective couldn‘t get from him the clothes he‘d been wearing

that night, in spite of asking Appellant for them. (RR12 177-79) He never asked

about the case. (RR13 37) In his statement about the night of the limo ride,

Appellant never said he went into the guest bedroom or bathroom; in fact, he‘d

closed the door to that office. (RR12 185; RR14 13) Other than that, he had last

20

been in Dana‘s home in September of 2008. Officers did get a DNA sample from

Appellant and submitted the towel for testing. (RR 11 76; RR12 186) That result

as well as the other evidence convinced the detective that Appellant was the

murderer. (RR13 40-41, 43)

The assistant medical examiner testified that the body had a deep scalp

laceration to the top of her head. (RR14 71-2) This wouldn‘t necessarily have

rendered Dana unconscious, but would have stunned her. (RR14 74-5) This could

have been made by the missing three-hole punch. (RR14 75) She had quite a few

other abrasions and bruises. (RR14 78, 83-4, 92, 103, 105, 109, 114) But the fatal

injury was a ligature mark around her neck, which had cut off her blood supply and

killed her. (RR14 83, 128)

The killer would not necessarily have been injured in this struggle. (RR14

132) Time of death was hard to determine. (RR14 139, 149-50) The contents of

her stomach, as well as her amount of rigor mortis, was consistent with her having

died between one and two o‘clock in the morning on January 1st. (RR14 135, 137-

39, 188) Her toxicology test showed no alcohol in her system, which was

consistent with her having had a sip of champagne at midnight. (RR14 126, 141-

42) The investigator did note a slight smell of alcohol at the scene of her murder.

(RR14 140) Her signs could have been consistent with her having died as late as

noon. (RR14 150)

21

The forensic scientist who did the DNA test also messed up, but did find

Appellant‘s DNA on the hand towel that had covered Dana‘s face. The towel had

a lot of blood on it, and at first the scientist found only the deceased‘s DNA on it.

(RR15 43, 47) But he isolated male DNA on the towel using a different test.

(RR15 49) Appellant was ―not excluded‖ as a source of this DNA. (RR15 52, 55)

Robert Sailors compared a known sample from Appellant with three

different cuttings on the towel. He found male DNA on two of those cuttings, and

Appellant was not excluded as the donor, meaning, essentially, that Appellant‘s

DNA was on the towel that had been covering the deceased‘s face. (RR15 52, 55)

Somewhere in the process, though, Mr. Sailors also got his own DNA on

one of the cuttings from the towel. (RR15 53-4)

DNA will dissolve in water, and it will be washed away if an item is

laundered. (RR15 64, 65-6) DNA would be washed down the drain. (RR15 66-7)

Bleach, especially, would eradicate the DNA. (RR15 67, 68) One cannot leave

DNA just by touching something. (RR15 72-3) If someone washed his hands, that

would wash away DNA, so he would leave none on the towel when he dried with

it. (RR15 71, 135, 136) If Appellant washed his hands and dried them on the towel

ten days before the murder, but the towel was washed in the meantime, his DNA

would not be found there. (RR15 140) It was much more probable that it was

deposited some time after the washing.

22

Mr. Sailors found no other male DNA on the towel. (RR15 76) No other

items were submitted to him for testing. (RR15 127)

The State rested following this witness. (RR15 150) The defense called its

own forensic pathologist, who had reviewed the Medical Examiner‘s file. (RR15

155) She agreed that it was impossible to determine an exact time of death, but

estimated that Dana had died closer to 4 a.m. than to 1:30. (RR15 205-06) She

agreed, though, that Dr. Peacock was a good doctor, and that the time of death

could have been as early as 1 – 2 a.m. (RR15 214, 216)

The defense pathologist also thought the struggle that resulted in Dana‘s

death was very violent. (RR15 196) However, the blow to the top of her head

might have stunned her. (RR 220) The doctor was also unaware of injuries Dana

had sustained in an earlier car wreck, leaving her less able to fight off her attacker.

(RR15 218)

A witness from the car dealer where Appellant bought his car testified that

the car did have a luggage rack. (RR16 24)

Another defense expert testified that Robert Sailors had handled the

evidence improperly by letting his own DNA onto it. (RR16 171) She agreed,

though, that Appellant‘s DNA was also on the towel. (RR16 182, 215-16)

Character witnesses testified that Appellant was a very gentle person whom

they had never seen lose his temper. (RR17 132, 142, 160)

23

The defense rested and both sides closed. (RR17 183) The jury found

Appellant guilty of murder. (RR19 21) After a brief punishment hearing, the jury

assessed his punishment at forty years‘ imprisonment, and the trial court sentenced

him accordingly. (RR19 87, 89)

APPELLANT’S POINT OF ERROR ONE

THE EVIDENCE IS LEGALLY INSUFFICIENT.

STATE'S RESPONSE

THE EVIDENCE PLACING APPELLANT

AT THE SCENE OF THE MURDER

SUFFICIENTLY ESTABLISHED GUILT.

SUMMARY OF THE ARGUMENT

The State placed Appellant at the scene of the murder at the time of the

murder by DNA, cell phone records, and security camera footage. While none of

these alone may have been sufficient to prove Appellant‘s guilt, their cumulative

force did. Appellant cites defensive testimony the jury clearly rejected, which does

not meet the standard for reviewing evidence.

ARGUMENT

Standard of Review

The standard of review in sufficiency of the evidence claims in criminal

cases is that of Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d

560 (1979). Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App. 2010). That standard

is whether, viewing the evidence in the light most favorable to the verdict, a

24

rational jury could have found guilt beyond a reasonable doubt. Id. The reviewing

court ―may not re-evaluate the weight and credibility of the record evidence and

thereby substitute our judgment for that of the fact-finder.‖ Williams v. State, 235

S.W.3d 742, 750 (Tex.Crim.App. 2007). The trier of fact has the sole power to

judge the credibility of witnesses. Id.

Facts

There was conflicting testimony over some issues, such as the extent to

which Appellant was upset by Dana‘s breaking up with him. But this Court must

view the evidence in the light most favorable to the verdict. The jury resolved

those conflicts. They necessarily found the following:

1. Appellant was very upset shortly before the victim‘s murder over her

breaking up with him.

2. Though Appellant told police and friends he went straight home after the

party and to sleep before midnight, his cell phone records show he did not. Instead

he was in the vicinity of the victim‘s home at the time of her murder. He was also

in the vicinity of Olmos Dam, where the victim‘s dog‘s body was later found. The

fact that his car wasn‘t parked at his house or his usual other parking spots also

proves he was not at home as he said he was.

3. The video camera footage is unclear, but it shows a car like Appellant‘s

in the victim‘s condo complex and nearby near the time of her murder. It also

25

shows a figure similar to Appellant walking into the complex before the murder

and out again afterwards.

4. Appellant‘s DNA was not just in the victim‘s condo, as the defense

claims. It was on the bloody towel with which the murderer had covered her head.

This DNA could only have been deposited there at the time of the murder.

Appellant claimed to have been in the condo eleven days earlier, but he never

claimed to have gone into that bedroom or bathroom. Otherwise he had not been

in the condo for months. The deceased washed her white towels weekly, using

bleach, which would have destroyed any DNA traces left earlier.

5. There was no evidence anyone else was in the victim‘s home at the time

of her death. There was no forced entry, and no valuables were missing.

Appellant had access to the home either because he still had a key or because Dana

would have recognized him and let him in.

6. The jury also had before it evidence of other suspicious behavior of

Appellant‘s, such as his failure to assist police or stay in touch with Dana‘s family

as he‘d promised. Even his long-term friends thought he was lying.

Law and Application

Circumstantial evidence is as valuable as direct evidence in a criminal case.

Laster v. State, 275 S.W.3d 512, 520 (Tex.Crim.App. 2009). It is reviewed in the

same manner as direct evidence, neither more stringently nor more leniently. Id.

26

The sufficiency review in such a case must still defer to the decisions of the fact-

finder. Id. Circumstantial evidence can be as strong as direct evidence, or in some

cases even more valuable to the jury. Holland v. United States, 348 U.S. 121, 137-

39, 75 S.Ct. 127, 99 L.Ed. 150 (1954); Hankins v. State, 646 S.W.2d 191, 198

(Tex.Crim.App. 1983).

Appellant cites defensive evidence such as that regarding time of death as if

it had been conclusively established, when in fact it was disputed. Both

pathologists agreed, in fact, that the time of death could have been at the time when

Appellant was in or near the victim‘s home. ―The jury, as the trier of fact, is the

sole judge of the credibility of the witnesses and the weight to be given their

testimony.‖ Easley v. State, 986 S.W.2d 264, 271 (Tex.App.—San Antonio 1998,

no pet.), citing Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997).

The direct and circumstantial evidence placed Appellant and only Appellant

in the victim‘s home at the time of her death, with the motive and means to kill her.

The jury was entitled to infer Appellant‘s consciousness of guilt from his lies about

his whereabouts and other suspicious conduct following the murder. Torres v.

State, 141 S.W.3d 645, 661 (Tex.App.—El Paso 2004, pet. ref‘d). The jury was

also entitled to reject Appellant‘s explanation for how his DNA was found close to

the victim‘s body. Garcia v. State, 246 S.W.3d 121, 129 (Tex.App.—San Antonio

2007, pet. ref‘d). All the circumstantial evidence the jury was entitled to believe

27

was consistent with Appellant‘s causing the death of the victim. Id. The evidence

of his guilt was sufficient.

APPELLANT’S POINT OF ERROR TWO


DISCRETION WHEN IT DENIED FORD’S

MOTION FOR NEW TRIAL.

STATE’S RESPONSE

APPELLANT PRESENTED NO CLAIMS OR

CREDIBLE EVIDENCE THAT WOULD

REQUIRE GRANTING A NEW TRIAL.


State‘s objections were sustained to nearly everything Appellant presented in

his motion for new trial. What followed were offers of proof or bills of exceptions,

not evidence that was before the court. No evidence supported any of Appellant‘s

claims.

ARGUMENT

Standard of Review

An appellate court reviews a trial court‘s ruling on a motion for

new trial using an abuse-of-discretion standard of review. We view

the evidence in the light most favorable to the trial court‘s ruling and

uphold the trial court‘s ruling if it was within the zone of reasonable

disagreement. We do not substitute our judgment for that of the trial

court, but rather we decide whether the trial court‘s decision was

arbitrary or unreasonable. Thus, a trial court abuses its discretion in

denying a motion for new trial only when no reasonable review of the

record could support the trial court‘s ruling.

Webb v. State, 232 S.W.3d 109, 112 (Tex.Crim.App. 2007)(citations omitted).

28

Evidence

In the hearing on the motion for new trial, defense counsel called a witness

to testify about cell phones and towers. His credentials were sketchy and his

experience did not relate to cell phones. (RR20 12, 13) The state objected that he

was not presenting newly discovered evidence, since this ―expert‖ had been

available to the defense prior to trial, and the defense had had all the information

about the cell phone records for a year before trial. (RR20 21) The trial court

sustained that objection. (RR20 23) The rest of the witness‘s testimony was

merely an offer of proof.

When the defense called another witness to testify to the height of the figure

on the videotape, the State again objected that this was not newly discovered

evidence. (RR20 42) The defense had had the security camera footage for a year

before trial. (RR20 44) There was nothing to show this witness would not have

been available for trial. The trial court sustained this objection. (RR20 47) This

witness presented nothing for the court to review.

The next day the defense called a bailiff who had overheard a juror say

something after the verdict. The State objected both to hearsay and under Rule

606(b) of the Rules of Evidence, which does not allow for the impeachment of a

verdict by such a statement. (RR21 5) The trial court sustained this objection.

(RR21 9) Again, the witness‘s subsequent offer of proof presented nothing for this

29

Court to review.

Not Newly Discovered Evidence

Under Article 40.001 of the Code of Criminal Procedure, there are four

requirements for granting a new trial based on newly discovered evidence: the

evidence was unknown to the movant before trial; the defendant‘s failure to

discover it was not due to want of diligence on his part; the evidence was material,

such that it would probably bring about a different result; and the evidence was

competent. Keeter v. State, 74 S.W.3d 31, 36-7 (Tex.Crim.App. 2002); Drew v.

State, 743 S.W.2d 207 (Tex.Crim.App. 1987). Even if Appellant‘s evidence had

been properly presented in the hearing, it would not have met this standard. This

so-called expert was available prior to trial, and the defense knew that the cell

tower evidence would be crucial to the case. They had all the evidence that might

have led them to acquire such an expert. They simply chose not to do so.

The witness‘s testimony did not qualify him as an expert in cell tower

function, so it would not have been material, nor have produced a different result at

trial. He had degrees in math and had worked for Western Union and IBM, among

others. (RR20 12-13) Nothing in his testimony qualified him as an expert in cell

towers.

Juror

Any testimony about a juror‘s supposedly saying something that

30

contradicted what he‘d written in his questionnaire was properly excluded as

hearsay, coming from the bailiff. Furthermore, it would have been inadmissible

under Rule of Evidence 606(b), which says, ―Upon an inquiry into the validity of a

verdict or indictment, a juror may not testify as to any matter or statement

occurring during the jury‘s deliberations, or to the effect of anything on any juror‘s

mind or emotions or mental processes, as influencing any juror‘s assent to or

dissent from the verdict or indictment. Nor may a juror‘s affidavit or any

statement by a juror concerning any matter about which the juror would be

precluded from testifying be admitted for any of these purposes.‖

Furthermore, if this subject had been as important as Appellant now claims,

his trial lawyer had an obligation to question prospective jurors individually about

it. Failure to do so forfeits his claim that a challenge for cause should have been

granted, when counsel did not make such a challenge. Webb, supra, at 112.

Counsel presented no competent evidence at the motion for new trial

hearing. Even the evidence offered as a bill of proof would not have been

admissible or relevant. The court did not abuse its discretion in refusing to grant a

new trial.

APPELLANT’S POINT OF ERROR THREE

THE TRIAL COURT’S ANSWER TO A JURY

NOTE INDICATING A DISPUTE WAS NOT

A FAIR AND REASONABLE RESPONSE.

STATE'S RESPONSE

31

THE TRIAL COURT PROVIDED THE JURY

WITH ALL TESTIMONY DIRECTLY

RELATED TO ITS REQUEST.


The jury sent out a note requesting certain specific testimony. The trial

court selected such testimony, then added other parts requested by the State and the

defense. Though the court refused a certain portion requested by the defense, the

court read to the jury all the testimony relevant to its specific request.

ARGUMENT

Standard of Review

The court‘s selection of testimony read back to jurors is reviewed under an

abuse of discretion standard. Brown v. State, 870 S.W.2d 53, 55 (Tex.Crim.App.

1994). If the jurors express a disagreement as to something a witness said, the

court may read to them ―that part of such witness testimony or the particular point

in dispute, and no other…‖ Tex.CodeCrim.Proc. Art. 36.28.

The Juror Request

The jurors sent out a note that read: ―Jurors have a dispute concerning the

testimony of AT&T expert, Ken Doll, regarding the possibility of a cell phone

connection between tower SX 3155 (Gallery Court) and the residence at 333

Rosemary Ave.‖ (Supp.CR 223)

The Court’s Read-Back

32

The trial court had an extensive discussion with the parties as to which

portions of the witness‘s testimony to read back. (RR18 102-26) The court largely

granted requests by the State and the defense for additional testimony. It denied

only one defense request, as follows:

MR. DEGUERIN: We would re-urge the request that you start

the segment that includes Line 67 – excuse me, Page 67, Line 4

through 68, Line 8, requested by the State, that you begin on Line 13

of Line [sic] 64 and read straight through.

THE COURT: All right. That‘s denied.

MR. DEGUERIN: And the basis of it is that is for cross-

examination on the same subject, the possibility of a connection

between the cell phone tower that is 3155 and the address of 333

Rosemary.

THE COURT: All right. Well, in light of the way the question

was phrased, it was fairly specific. And although I understand that

generally it covers some of the issues, but it‘s in very general terms,

and so I have narrowed that request to Page 67, Line 4 through Page

68 of Line 8, which covers the same issue but with more specificity,

based on the question that was presented by the jury. So your

objection is duly noted for the record and the request is denied.

(RR19 6) The trial court then read extensive portions of Mr. Doll‘s testimony to

the jurors. (RR19 7-15) This included both direct and cross-examination,

indicating that Appellant‘s phone could not have been at his home on Rosemary at

the times when it pinged off the Gallery Court tower. (RR19 14-15) Some of the

read-back testimony made this answer ambiguous, though:

Q. Mr. Doll, a couple of things. What your technology is able

to tell you is that most likely – and I think that was the words that you

33

used – most likely if the record shows that a device pings off of a

sector of a cell phone tower, it most likely is within the sector served

by that cell phone tower?

A. Yes.

Q. Or in a neighboring sector, if it‘s very close?

A. I don‘t think I said that, but…

Q. That‘s true, though, isn‘t it?

A. That is possible as we see on Rosemary, right.

Q. Well, if it‘s possible on Rosemary, it‘s possible anyplace,

isn‘t it?

A. Well, I‘m just saying that we see it on Rosemary, right?

(RR19 12-13)

The Denied Portion

All parties to the discussion referred to portions of testimony by their page

and line numbers in the court reporter‘s daily transcript, which does not correspond

to the current reporter‘s record. The defense did not read into the record the

portion of the testimony it was requesting. It is therefore impossible to determine

which precise section was requested and denied. Appellant has not set out any

particular portion of testimony in the point of error, either. Therefore nothing is

preserved for review.

Mr. DeGuerin may have been referring to his cross-examination of Mr. Doll

at pages 145-146 of RR8. This was a theoretical exchange, not referring to

34

Appellant‘s phone:

Q. You cannot say to a certainty that a cell phone device was in

the sector indicated by the records on every occasion, can you?

A. On every occasion that we talked about?

Q. No. As a general principle, you cannot tell this jury that if

the record shows that a certain sector of a cell tower was pinged by a

cell device, that that cell device was in that sector beyond any

argument, can you?

A. No.

Q. And that‘s because depending on a number of variables, a

different cell tower or a different sector might service that activity?

A. Yes.

(RR8 145) When Mr. Doll named those variables that might cause this, though, (a

call from a high-rise or in a rural area) none of them applied to this specific case.

(RR8 146) This is why the trial court refused to read that portion. (RR19 6)

Law and Application

When a jury indicates a dispute, the trial court must read the portion of

testimony that is responsive to that question, and no other. Art. 36.28, supra. The

court in this case did so. The jury‘s question concerned the possibility of

Appellant‘s cell phone pinging off the so-called Gallery Court tower while he was

at home on Rosemary. It asked about a particular cell phone and particular

locations in this case. The portion Appellant asked to have read referred to

theoretical possibilities based on facts not in this case. Every time the witness tried

35

to answer based on these particular facts, defense counsel interrupted to say he was

just asking about general principles, not the facts of the case. (RR8 145, 146) That

would not have been responsive to the jury‘s question.

A court does not abuse its discretion by refusing to read portions of

testimony not pertinent to jurors‘ question. Robison v. State, 888 S.W.2d 473, 480-

81 (Tex.Crim.App. 1994); Barnett v. State, 847 S.W.2d 678, 678-679 (Tex.App.—

Texarkana 1993, no pet.). This court did not abuse its discretion.

APPELLANT’S POINT OF ERROR FOUR

THE STATE OBTAINED HISTORICAL

CELL SITE DATA ILLEGALLY IN

VIOLATION OF THE TEXAS CODE

OF CRIMINAL PROCEDURE ART. 18.21.

APPELLANT’S POINT OF ERROR FIVE

THE STATE VIOLATED THE TEXAS

CODE OF CRIMINAL PROCEDURE

ARTICLE 38.23 WHEN IT OBTAINED

HISTORICAL CELL TOWER DATA

WITHOUT A WARRANT.

APPELLANT’S POINT OF ERROR SIX

THE STATE VIOLATED ARTICLE I § 9

OF THE TEXAS CONSTITUTION WHEN

IT OBTAINED HISTORICAL CELL SITE

DATA WITHOUT A WARRANT.

APPELLANT’S POINT OF ERROR SEVEN

THE STATE VIOLATED 18 U.S.C. §2703 IN

OBTAINING CELL SITE DATA ILLEGALLY.

APPELLANT’S POINT OF ERROR EIGHT

THE STATE VIOLATED THE FOURTH


36


SITE DATA WITHOUT A WARRANT AND

WITHOUT PROBABLE CAUSE EFFECTING

AN UNREASONABLE SEARCH AND SEIZURE.

APPELLANT’S POINT OF ERROR NINE

THE STATE VIOLATED THE FIRST



SITE DATA WITHOUT A WARRANT

INFRINGING ON THE RIGHT OF FREE

ASSOCIATION IN VIOLATION OF THE

FIRST AMENDMENT TO THE CONSTITUTION.

STATE'S RESPONSE TO ALL

THE CELL SITE DATA WERE

PROBABLY OBTAINED THROUGH

COURT ORDER AUTHORIZED BY

STATUTE. APPELLANT HAD NO

REASONABLE EXPECTATION OF

PRIVACY IN SUCH PUBLIC

INFORMATION IN ANY RESPECT.


Appellant‘s cell phone data records were properly obtained pursuant to

statute and with a court order. The request was reviewed by two district judges

and granted. Furthermore, obtaining these records did not constitute a search.

Appellant had no reasonable expectation of privacy in the data his cell phone freely

provided every time he used it.

Some of these claims were not preserved in the trial court.

ARGUMENT

Claims Not Preserved

37

Appellant‘s written motion in the trial court relied exclusively on United

States v. Jones, 565 U.S. ___, 132 S.Ct. 945 (2012). Neither in his motion nor his

statements to the trial court did Appellant invoke the Texas Constitution, Art.

38.23, or any federal statute. Those claims have not been preserved for review.

R.APP.PRO. 33.1. Appellant argues federal law extensively in these claims, but

did not make those arguments to the trial court. They are not preserved. In fact,

Appellant‘s arguments on appeal have very little to do with what he argued to the

trial court. Appellant‘s brief at page 26 says that Appellant argued in the trial court

that the collection of the cell tower data violated a federal statute and the First and

Fourth Amendments to the U.S. Constitution. Appellant cites to RR4 22-28. But

one can scour those pages in vain for an instance of defense counsel citing any of

those provisions. The first two pages, in fact, are of the prosecutor arguing to the

court. Defense counsel‘s only mention of 38.23 is its good faith exception (RR4

27), which he does not argue now on appeal.

Appellant has not preserved any of these claims, and they present nothing

for review.

Standard of Review

The trial court ruled on the legality of obtaining the records. The State

agrees that this Court should review that legal ruling de novo.

Law and Application

38

Appellant relied in the trial court, and continues to rely here, on United

States v. Jones, 132 S.Ct. (2012). In that case the United States Supreme Court

held that police attaching a GPS device to a suspect‘s car to monitor his

movements constituted a search. Id. at 949. But that decision was based explicitly

on the fact that the government intruded onto the defendant‘s personal property by

physically placing the device on his car. ―It is important to be clear about what

occurred in this case: The Government physically occupied private property for

the purpose of obtaining information. We have no doubt that such a physical

intrusion would have been considered a ‗search‘ within the meaning of the Fourth

Amendment when it was adopted.‖ Id.

In this case, of course, there was no physical intrusion. Appellant kept his

cell phone continuously and police did not come onto his property to obtain the

records. Jones is inapplicable.

That leaves the traditional test for whether the Fourth Amendment has been

violated, whether the defendant had a ―reasonable expectation of privacy‖ in the

place searched. Id. at 950, citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507,

19 L.Ed.2d 576 (1967). In this case Appellant had no reasonable expectation of

privacy in the records maintained by AT&T. United States v. Miller, 425 U.S. 435,

442, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976)(a person has no legitimate expectation of

privacy in records maintained by a third party company). He also had no

39

reasonable expectation of privacy in the information his phone automatically

produced every time he used it. He exposed that information to the public, just as

he exposed his image when he passed before the bank‘s security cameras. A cell

phone user knows that his phone sends information to nearby towers. When he

willingly and regularly exposes his phone activities to a third party, the carrier, he

gives up Fourth Amendment protections. In re Application of the U.S. for

Historical Cell Site Data, 724 F.3d 600, 610, 613 (5th Cir. 2013).

In Application, the Fifth Circuit held that the government‘s obtaining this

cell tower data from the provider is not a search but rather a collection of business

records, which are owned by the provider, not the user of the cell phone. ―[T]hese

are the providers‘ own records of transactions to which it is a party.‖ 724 F.3d at

612.

The user may still expect that his conversation will be private. But his

location when he makes those calls is not, because he is freely providing it while

using the service. ―Communications content, such as the contents of letters, phone

calls, and emails, which are not directed to a business, but simply sent via that

business, are generally protected. However, addressing information, which the

business needs to route those communications appropriately and efficiently are

not.‖ Id. at 611. The Fifth Circuit concluded that cell phone users voluntarily

convey information about their location to service providers when they make a

40

call. Id. at 612. Since the provider stores that information for its own purposes

rather than because the government demands it, the government can collect that

information like any other business record. Cell phone users know they are

providing this information and give up any reasonable expectation of privacy in it.

The Court of Criminal Appeals recently decided that a suspect retains a

reasonable expectation of privacy in the contents of his cell phone even after

having been arrested and having the phone seized. State v. Granville, ___ S.W.3d

___, No. PD-1095-12 (Tex.Crim.App. delivered February 26, 2014). But that was

based on the unique nature of the cell phone, which ―can receive, store, and

transmit an almost unlimited amount of private information. The potential for

invasion of privacy… is enormous.‖ Slip op. at 12-13.

But that refers to the contents stored and held within the phone. The

automatic location information that the phone sends out is more akin to the outside

of a cell phone, which is constantly exposed to public view. Granville held that

officers ―could have reasonably inspected the outside of appellant‘s cell phone;

they could have tested it for fingerprints or DNA material because portions of the

cell phone are routinely exposed to the public.‖ Id. at 24. The cell phone‘s location

is also routinely exposed, every time a person uses it. Ford had no reasonable,

legitimate expectation of privacy in that information.

Statute and Court Order

41

The State obtained this information by use of court orders signed by district

judges (Supp. CR 189, 199), which the legislature has specifically authorized for

obtaining this type of information. Section 5(a) of Article 18.21 of the Code of

Criminal Procedure says, ―A court shall issue an order authorizing disclosure of

contents, records, or other information of a wire or electronic communication held

in electronic storage if the court determines that there is reasonable belief that the

information sought is relevant to a legitimate law enforcement inquiry.‖ This

statute was revised but altered little in 2013, after the decision in Jones.

The application for the court order recited most of the facts known to police

up to that time. It said that Appellant left the party before the deceased and

claimed to have gone to bed and to sleep before midnight. (CR 183) However,

friends drove by his house and didn‘t see his car there. They also sent him texts to

which he didn‘t respond. A car matching his was seen driving in and out of the

deceased‘s complex, and a man walked in. Ford‘s phone records the detective had

already subpoenaed showed he had checked his voice mail at about 2:30 in the

morning, shortly after the figure on the video left the complex, at a time when

Appellant claimed to have been asleep.

This information provided a reasonable belief that the information was

―relevant to a legitimate law enforcement inquiry.‖ Police knew Appellant had

received texts and called his voice mail at a time when his whereabouts were in

42

question. The records would be relevant to that issue.

Appellant argues that the application is inadequate because it didn‘t state

that it provides reasonable grounds to believe that the facts will be relevant to a law

enforcement inquiry. But the statute doesn‘t require such an application to say that

the information is relevant; it only has to convince a judge that it provides such

reason to believe. Two impartial district judges reviewed these applications and

approved the request, signing orders. The records were obtained properly pursuant

to the statute. Appellant‘s claim is without merit.

Reliance on Richardson v. State Misplaced

Appellant relies on Richardson v. State, 865 S.W.2d 944 (Tex.Crim.App.

1993), to argue that the Texas Constitution provides more protection than the

Fourth Amendment, and that this statute violates Art. I, §9 of the Texas

Constitution. But Richardson doesn‘t apply to this case for several reasons. First,

Appellant did not cite it or the Texas Constitution in the trial court, so has waived

this claim.

Second, Richardson concerned the use of a pen register, which like the GPS

device in Jones required a physical intrusion by police to obtain the phone

information. Id. at 946. Finally, Richardson doesn‘t have a clear holding, and

certainly not one that applies to this case. The majority opinion concludes, ―It

follows that the use of a pen register may well constitute a ‗search‘ under Article I,

43

§9 of the Texas Constitution. The question remaining is whether such a search

would be ‗unreasonable‘ in the absence of probable cause.‖ Id. at 953-54. But the

opinion remands the case to the court of appeals to answer that question.

In this case obtaining the records was not a search. Two impartial judges

decided that obtaining the information was reasonable. Richardson, which was not

argued to the trial court, does not apply.

Other Arguments

Appellant also argues that Art. 18.21, Sec. 5 authorizes access to stored

―communications‖ but not to cell phone location information such as was used in

this case. But the statute authorizes disclosure of ―contents, records, or other

information… held in electronic storage,‖ which would include the location data.

Furthermore, a related statute broadly defines ―electronic communication‖ as

―intelligence of any nature transmitted‖ by the system. 18.21, Sec. 1(1), 18.20 Sec.

1(15). Location would certainly fall within that definition.

Conclusion

These business records were properly obtained pursuant to statute and court

order. Appellant voluntarily disclosed the information about his location. No one

forced him to take his phone along on his criminal enterprise. Obtaining the

records from a third party was not a search. The trial court did not abuse its

discretion in overruling Appellant‘s motion to suppress this evidence.

44

APPELLANT’S POINT OF ERROR TEN






THE ILLEGAL SEARCHES.

APPELLANT’S POINT OF ERROR ELEVEN






THE ILLEGAL SEARCHES.

STATE’S RESPONSE TO BOTH

MINOR VARIATIONS IN THE OFFICER’S

RECOUNTING OF WITNESS STATEMENTS

DID NOT ELIMINATE PROBABLE CAUSE.


Citing no authority, Appellant claims there was false information in the

affidavits used to obtain search warrants, and that without such information the

affidavits do not provide probable cause to issue the warrants. But the statements

are only minor variations on information witnesses gave to the detective. The

affidavits still provide probable cause.

ARGUMENT

Inadequate Briefing

For his primary claim, Appellant cites only Franks v. Delaware, 442 U.S.

928, 99 S.Ct. 2871, 61 L.Ed.2d 304 (1979), for the general proposition that the

45

searches were illegal, and does not argue how Franks might apply to this case.

Rule of Appellate Procedure 38.1(i) requires that arguments be supported by

―appropriate citations to authorities.‖ Appellant‘s argument is not. It is

inadequately briefed, and the Court should not address it.

Standard of Review

A search warrant may issue only if a judge is presented with a signed

affidavit that establishes probable cause to believe that an offense has been

committed, that the items sought constitute evidence of that offense, and that the

items are located on a particular person or at a particular place. Art. 18.01(c),

V.A.C.C.P. Such affidavits should be read in a common sense manner. A

reviewing court should give ―great deference to a magistrate‘s determination of

probable cause….‖ Rodriguez v. State, 232 S.W.3d 55, 59 (Tex.Crim.App. 2007).

When a court‘s fact findings are based on demeanor and credibility, they are

accorded almost total deference. Guzman v. State, 955 S.W.2d 85, 59 (Tex.Crim.

App. 1997).

Facts

The trial court made findings of fact and conclusions of law on this issue.

The findings of fact included that Ford and the victim had recently broken up and

Ford was unhappy about it; that Ford claimed to have gone home and to sleep

before midnight; that when Melissa and Alan drove by his house later ―his vehicle

46

was not plainly visible and the house lights were off‖; that a vehicle matching

Ford‘s was observed on videotape entering and exiting the victim‘s condo

complex; that someone fitting Ford‘s description including his clothing also

appears on the video walking into the complex; that the same figure exited the

complex and then the car matching Ford‘s drives away; that phone records showed

Ford had checked his cell phone at 2:30 a.m., about twenty minutes after the male

figure left Gallery Court, and a time when Ford claimed to have been asleep; and

that male DNA was found on a bloody towel covering the victim‘s face. (CR 666)

The court addressed minor discrepancies between the claims in the affidavit

and the witnesses‘ recorded statements, such as what Alan Tarver said. The

affidavit said, ―Mr. Tarver stated he text messaged Ford, asking if he was going to

another party, Ford did not respond.‖ (CR 666) This was true. Tarver texted

Appellant immediately before this asking why he‘d left Minor‘s party, and

Appellant did respond, but he didn‘t respond to the question of whether he was

going to another party. Another discrepancy is that the search warrant said, ―Mr.

Tarver stated he turned into the [Appellant‘s] residence and did not observe Ford‘s

white Chevy Tahoe in the parking lot.‖ (CR 667) His recorded statement said,

―There were, like, a couple of cars parked in the church parking lot, but I don‘t

think, they were down by the door to the church, and I don‘t think one of them was

a Tahoe.‖ In other words, he didn‘t see Appellant‘s car. The court then found ―that

47

any misstatements in the affidavit by Detective Carrion were not made with

reckless disregard for the truth and were unintentional. The Court finds there was

still sufficient probable cause to support the issuance of the warrant.‖ (CR 668)

The court further found that even after excising the false statements the affidavit

still established probable cause.

These rulings should be afforded great deference, and are supported by the

evidence.

Law and Application

The magistrate‘s determination will be upheld as long as the magistrate had

―a substantial basis for concluding the probable cause existed.‖ State v. McClain,

337 S.W.3d 268, 271 (Tex.Crim.App. 2011). The facts that remain in the affidavit

include that Ford and the victim had recently broken up, that a car similar to his

drove into her condo complex near the time of her death, that after the car drove

out and turned toward the nearby shopping center a man walked into the complex

from that direction who matched Appellant‘s clothing including the shirt he wore

to the party, that Appellant used his phone at a time he claimed to be asleep and

that was consistent with when the male figure left the condo complex, that friends

looked for his car and didn‘t see it at the time he claimed to be at home, and that

male DNA was found on the towel covering the victim‘s face. Viewing all these

and the other accurate statements in the affidavit in a common sense fashion, they

48

provide probable cause to issue the search warrant. Franks requires preliminary

proof that statements in the affidavit were false and were made knowingly and

intentionally or with reckless disregard for the truth. Massey v. State, 933 S.W.2d

141, 146 (Tex.Crim.App. 1996). Appellant did not meet that threshold. The court

found otherwise, based on the testimony and demeanor of the police witness. The

discrepancies are so minor or nonexistent that they do not show a reckless

disregard for the truth. Appellant cites no authority to the contrary. The court‘s

findings and denial are supported by the evidence. This claim is without merit.

APPELLANT’S POINT OF ERROR TWELVE

THE TRIAL COURT IMPROPERLY ADMITTED

SUPPOSED WEAPONS, A THREE-HOLE PUNCH

AND A CORDLESS ELECTRIC DRILL CHARGE

CORD IN EVIDENCE DEPRIVING FORD OF

A FAIR TRIAL.

STATE’S RESPONSE

THE ADMITTED ITEMS WERE VIRTUALLY

IDENTICAL TO ITEMS WITNESS TESTIMONY

IDENTIFIED AS BEING IN THE APARTMENT,

SO WERE PROPERLY ADMITTED AS

DEMONSTRATIVE EVIDENCE.


The three-hole punch was admitted without objection and presents nothing

for review. As for the cord, the victim‘s mother testified it was identical to a cord

missing from the scene, which appeared likely to have been the murder weapon. It

was made clear to the jury that this was not the same cord, but was just like the

49

missing one. It was properly admitted.

ARGUMENT

Error Waived

When the three-hole punch was offered in evidence, Appellant‘s lawyer

affirmatively said, ―No objection.‖ (RR9 168) This waived any claim on appeal.

R.App.Pro. 33.1; Holmes v. State, 248 S.W.3d 194, 200 (Tex.Crim.App. 2008).

Standard of Review

As Appellant says, rulings on admission of evidence are reviewed under an

abuse of discretion standard. If the ruling was within the zone of reasonable

disagreement, it will be upheld on appeal. Green v. State, 934 S.W.2d 92, 102

(Tex.Crim.App. 1996).

Law and Application

Mrs. Edwards testified that when she cleaned out her daughter‘s office (the

second bedroom), she discovered a charger for a portable drill and its charging

cord were missing. (RR9 193) ―She [Dana] had one and she bought her father one

just like it.‖ This cord was identical to the one from the father‘s charger. (RR9

194-95) When the cord was offered in evidence, the defense objected that it was

irrelevant and ―invites speculation.‖ (RR9 196) The objection was overruled and

the item admitted. (RR9 197)

An item similar to a lost item is admissible if it will aid the jury in

50

determining an important issue in the trial. Johnson v. State, 919 S.W.2d 473, 477

(Tex.App.—Fort Worth 1996, pet. ref‘d.). See also, Robledo v. State, No. 04-08-

00586-CR (Tex.App.—San Antonio 2009, pet. ref‘d)(not designated for

publication)(same holding).

This piece of evidence did not invite speculation. The witness who was

familiar with both items said this cord was identical to the missing one. The

proponent made clear to the jury that this was not the ligature used to kill the

deceased, but was just like that missing item. The court did not abuse its discretion

in admitting the exhibit, especially over the objection that was made.

APPELLANT’S POINT OF ERROR THIRTEEN


ARGUMENT IN ITS OPENING BY NAME

CALLING FORD A LIAR TWELVE TIMES

OVER SUSTAINED OBJECTIONS.

APPELLANT’S POINT OF ERROR FOURTEEN


ARGUMENT IN ITS CLOSING BY BURDEN SHIFTING.

APPELLANT’S POINT OF ERROR FIFTEEN


ARGUMENT BY COMMENTING ON

FORD’S FAILURE TO TESTIFY.

STATE’S RESPONSE TO ALL THREE

FAILURE OF THE DEFENSE TO SEEK

EVIDENCE IT CLAIMS WOULD HAVE

BEEN BENEFICIAL IS A PROPER

SUBJECT OF FINAL ARGUMENT.

THE STATE WAS ENTITLED TO COMMENT

ON APPELLANT’S FAILURE TO CLAIM

51

INNOCENCE WHEN HE HAD OPPORTUNITIES

TO DO SO PRIOR TO TRIAL AND DID NOT.


The prosecutor was saying the evidence would show that Appellant lied

about where he was at the time of the murder, which was true. Some of these

remarks were made without objection. The trial court instructed the jury to

disregard others, so there was no harm.

The State did not shift the burden of proof by pointing out the truth, which

was that the defense had as much power as the State to bring evidence before the

jury. Finally, the prosecutor did not comment on Appellant‘s failure to testify.

She commented properly that he had never told his friends he didn‘t commit the

murder. That is a proper subject for argument.

ARGUMENT

The court‘s rulings are subject to an abuse of discretion standard.

1. ―Lying‖ remarks

In opening statement, the prosecutor said repeatedly that Appellant lied

about where he was at the time of the murder. (RR6 22-26) Contrary to

Appellant‘s assertion that he objected and was sustained every time, he did not.

The first time he objected, he didn‘t obtain a ruling. (RR6 22)The prosecutor later

said without objection, ―I expect that you will see that he is lying. And I expect

that the evidence will show that he is lying and that he has an answer for

52

everything.‖ (RR6 23) Also, ―What he didn‘t count on was technology, and it‘s

technology that reveals his lies‖ didn‘t draw objection. (RR6 24)

Finally, the court instructed the jury that the purpose of opening statement

was not to argue the case, and the jury should disregard the arguments. (RR6 27)

First, these remarks did reflect what the prosecutor expected the evidence to

show, that Appellant had lied to police about where he was at the time of the

offense, about where his car was parked, about being asleep. This was a proper

opening statement. Only once did the prosecutor actually call Appellant a liar

(RR6 26), and the jury was instructed to disregard that.

In Gilcrease v. State, 32 S.W.3d 277, 279 (Tex.App.—San Antonio 2000,

pet. ref‘d), the prosecutor called the defendant a ―bastard.‖ Although objection

was overruled, the prosecutor didn‘t use the term again, just as the prosecutor in

this case didn‘t use the term ―liar‖ again. This Court held the argument was

improper, but didn‘t cause a wrongful verdict. The conviction was affirmed.

The prosecutor pointed out without objection that Appellant had lied to

police. Where the same evidence comes before a jury without objection, any error

is harmless. Leday v. State, 983 S.W.2d 713, 717-18 (Tex.Crim.App. 1998);

Hudson v. State, 675 S.W.2d 507, 511 (Tex.Crim.App. 1984).

Finally, it is presumed that a jury obeys a trial court‘s instruction to

disregard. Archie v. State, 340 S.W.3d 734, 741 (Tex.Crim.App. 2011).

53

2. ―Burden Shifting‖

In closing argument the prosecutor showed the jury clips of the crime scene,

then said, ―If not him, who?‖ (RR18 82) She then added, ―I mean, they‘re going to

tell you that‘s shifting the burden.‖ Indeed that prompted the defense to object,

which was overruled. The prosecutor then amplified, ―Who? They‘ve put on a

case. They‘ve called witnesses. They – they have certainly cross-examined.

Who? And you know what else – ‖ Another objection was overruled, and the

prosecutor continued to explain that no evidence pointed to anyone other than Ford

as the killer. There was no forced entry and nothing stolen, suggesting the victim

knew her assailant. This was a proper summation of the evidence.

Summation of the evidence is a proper subject for jury argument. Freeman

v. State, 340 S.W.3d 717, 727 (Tex.Crim.App. 2011). The one case cited by

Appellant to say this was burden shifting is not on point. Dee v. State, 388 S.W.2d

946 (Tex.Crim.App. 1965), doesn‘t mention shifting of the burden of proof. This

argument merely pointed out the lack of credible evidence of any killer other than

Appellant. Jackson v. State, 17 S.W.3d 664, 674 (Tex.Crim.App. 2000); Baines v.

State, 401 S.W.3d 104, 109 (Tex.App.—Houston [14th Dist.] 2011, no

pet.)(permissible for prosecutor to point out lack of evidence in defendant‘s favor).

It was not improper.

3. ―Comment on Appellant‘s Failure to Testify‖

54

The prosecutor‘s argument was not a comment on Appellant‘s failure to

testify at trial. Throughout trial, the defense had brought out evidence that the

―rumor mill‖ in Alamo Heights had been very active after Dana‘s murder, which

somehow made police falsely suspicious of him. (RR7 57, etc.) The prosecutor

was addressing that claim: ―If there‘s – if a rumor starts to generate, well, do

something to dispel it. How about say for once to somebody, I didn‘t do this! And

he has not said that one time to anyone.‖ (RR18 90)

This was so obviously a comment about events before trial rather than

during it that the defense did not object. Because of this, this claim is waived. The

case Appellant cites that this claim can be raised in spite of lack of objection

predates Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996), which held

that failure to object waives any claim to improper jury argument. See also,

Valencia v. State, 946 S.W.2d 81, 82-3 (Tex.Crim.App. 1997)(failure to object

waives error; cases holding otherwise are overruled).

None of these claimed errors deprived Appellant of a fair trial.

APPELLANT’S POINT OF ERROR SIXTEEN

THE TRIAL COURT ERRONEOUSLY

DENIED DEFENSE COUNSEL A CONTINUANCE

WHEN HE WAS SURPRISED BY ADVERSE

CELL TOWER TESTIMONY.

STATE’S RESPONSE

APPELLANT DID NOT FILE A

WRITTEN, SWORN MOTION AS

REQUIRED FOR THIS CLAIM.

55


Appellant claims his counsel was surprised by charts of cell phone usage the

State introduced at trial. But the defense had all the information in the charts

months before trial. The trial court was not required to believe his claim that the

witness had changed his testimony from what he had told counsel pre-trial.

Finally, Appellant now claims he needed time to find an expert to refute the

testimony, but he did not make that request to the trial court.

ARGUMENT

Article 29.03 of the Code of Criminal Procedure requires a written, sworn

motion for continuance to preserve the error Appellant now claims. Blackshear v.

State, 385 S.W.3d 589, 591 (Tex.Crim.App. 2012). The motion must be sworn. Id.

There is no due process exception to his requirement, as Appellant now claims. Id.

This Court has previously recognized that a written motion is required to

preserve this error for appeal. Jiminez v. State, 307 S.W.3d 325, 331 (Tex.App.—

San Antonio 2009, pet. ref‘d). The case cited by Appellant for this proposition has

been overruled by this line of cases.

There is no merit to Appellant‘s claim in any event. The defense had the

evidence on which the State‘s expert‘s testimony was based. Appellant cross-

examined the witness adequately. His request for time to find a competing expert

was not made until after trial, long after the court‘s ruling.

56

This unpreserved claim is without merit and should be overruled.

APPELLANT’S POINT OF ERROR SEVENTEEN

THE TRIAL COURT ERRED BY DENYING

THE APPELLANT’S MOTION FOR

INDEPENDENT EXAMINATION OF DNA

EVIDENCE DENYING FORD HIS RIGHT

TO DUE PROCESS.

STATE’S RESPONSE

THE DEFENSE PRESENTED NO EVIDENCE

IN SUPPORT OF ITS REQUEST, SO IT WAS

PROPERLY DENIED BY THE COURT.


Though Appellant did file a motion requesting DNA testing of hair and

fibers, the motion was not presented to the trial court and the court did not rule on

it. Appellant presented nothing in support of the motion. This claim is not

preserved, and the court did not abuse its discretion.

ARGUMENT

The record shows that a motion to test DNA evidence was filed March 14,

2012, before the May hearing on Appellant‘s motion for new trial. However, the

proposed order attached to the motion is unsigned and doesn‘t contain a ruling by

the court. (CR 51) This motion was not presented to the court during the hearing,

and Appellant never asked the court to rule on it. To preserve a complaint for

appeal, an appellant must have made that complaint to the trial court and obtained

a ruling. R.App.Pro. 33.1. Appellant did not. This claim presents nothing to

57

review.

Appellant attempts to rely on McBride v. State, 838 S.W.2d 248 (Tex.Crim.

App. 1992), which in turn relies on Art. 39.14, V.A.C.C.P. The case cites that

statute as saying that ―…the court in which an action is pending may order the

State before or during the trial of a criminal action…‖ Id. at 250. Appellant‘s

motion, made after trial was over, was untimely.

This unpreserved claim is without merit.

APPELLANT’S POINT OF ERROR EIGHTEEN


DISCRETION EXCLUDING THE EVIDENCE

OF A BREAK-IN AT DANA CLAIR EDWARDS’

PARENTS’ HOME ON 12/30/2008.

STATE’S RESPONSE

THERE WAS NO EVIDENCE THIS EVENT

WAS RELATED TO THE MURDER ON

TRIAL, SO THE COURT PROPERLY

EXCLUDED IT AS IRRELEVANT.


Appellant wanted to put on evidence that the day before Dana‘s murder, her

family‘s ranch house in Gillespie County was burglarized. Appellant pointed out

that these events were close in time and to the same family‘s properties, but

showed no other relevance. He did not suggest that another perpetrator may have

committed both crimes. In fact, Ford himself was the only suspect in the

extraneous burglary. This offense was irrelevant and properly excluded.

58

Appellant has shown no harm from that denial.

ARGUMENT

A trial court‘s ruling excluding evidence is reviewed under an abuse of

discretion standard. Appellant proffered that an unknown person had broken into

Mr. and Mrs. Edwards‘ ranch house and taken a knife. There was no sign of

forced entry. This happened December 30th, a day or two before Dana‘s murder.

This burglary remained unsolved by the time of trial, though Dana‘s parents had

accused Appellant of committing it. (RR9 10-11)

But Appellant showed no connection between the two events. He theorized

that they may have had a ―common perpetrator,‖ but offered no evidence that was

someone other than Appellant. The extraneous offense was irrelevant. The trial

court properly excluded it under Rule of Evidence 403.

In Wiley v. State, 74 S.W.3d 399 (Tex.Crim.App. 2002), the defendant was

accused of setting fire to his failing restaurant. He sought to offer proof that a

mentally disabled man had been hanging around the restaurant, and had been

lighting matches. But the Court of Criminal Appeals held this evidence was

properly excluded. ―It is not sufficient for a defendant merely to offer up

unsupported speculation that another person may have done the crime. Such

speculative blaming intensifies the grave risk of jury confusion, and it invites the

jury to render its findings based on emotion or prejudice.‖ Id. at 407. In this case,

59

Appellant showed even less relevance, not even suggesting that another person

committed the extraneous offense.

The trial court properly balanced the very weak probative value of this

evidence against its potential prejudicial effect, and did not abuse its discretion in

excluding it. Id. at 408. This point is without merit.

Appellant has presented no claim showing he received anything less than a

fair trial. All his points are without merit and should be overruled.

PRAYER FOR RELIEF

The State prays that this Court will affirm the judgment of the trial court.

Respectfully submitted,

SUSAN D. REED

Criminal District Attorney

Bexar County, Texas

______________________________

JAY BRANDON

Assistant Criminal District Attorney

Bexar County, Texas

101 West Nueva, 3rd

Floor

San Antonio, Texas 78204

(210) 335-2418

State Bar No. 02880500

[email protected]

Attorneys for the State

Jay Brandon

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CERTIFICATE OF COMPLIANCE

I certify, in accordance with Rule 9.4 of the Texas Rules of Appellate Procedure

that this document contains 12,640 words.

_____________________________

JAY BRANDON

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing brief was sent by first-class mail to

Cynthia E. Orr, Attorney for Appellant, 310 S.St. Mary‘s, 29th

floor, San Antonio,

Texas 78205, on the 21st day of March, 2014.

___________________________

JAY BRANDON

Jay Brandon

Jay Brandon

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Brief for Appellee, Ford v. Texas (March 21, 2014)

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