Amilpas, Jose ( 2015 )


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  •                     PD-0614-15
    NO.   PD-
    I   N     THE                         RECEIVED IN
    COURT OF CRIMINAL APPEALS
    COURT OF CRIMINAL APPEALS OF TEXAS
    NOV 18 2015
    Abel Acosta, Clerk
    JOSE AHILPAS*
    Appellant-Petitioner
    -vs-
    THE STATE OF TEXASt
    Appellee-Respondent
    ON PETITION SEEKING DISCRETIONARY REVIEW
    OF COURT OF APPEALS NO.        01-14-00053-CR FROM THE
    COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS
    AFFIRMING THE CONVICTION AND SENTENCE IN
    TRIAL COURT CASE NO.         1334791 OUT OF
    THE 174th JUDICIAL DISTRICT COURT OF HARRIS COUNTY/                TEXAS
    PETITION FOR DISCRETIONARY REVIEW
    JOSE AMILPAS/      pro se
    Robertson Unit/        TDCJ No. 1908295
    12071 FM 3522      '
    Abilene*   Texas       79601-8799
    Appellant-Petitioner
    TABLE OF CONTENTS
    SECTION                                                                       PAGE
    INDEX    OF   AUTHORITIES                                                       11
    STATEMENT REGARDING ORAL ARGUMENT                                               iv
    STATEMENT OF THE CASE                                                     *W* v
    STATEMENT OF      PROCEDURAL   HISTORY                                           v
    GROUND    FOR   REVIEW:
    THE FIRST COURT OF APPEALS ERRED WHERE IT FAILED TO FIND, RES
    NOVA, THAT ARTICLE 18.21 OF THE TEXAS CODE OF CRIMINAL PROCE
    DURE 'IS UNCONSTITUTIONAL, VIOLATING ARTICLE 1/ SECTIONS 9, 10,
    13/ 19, AND 29 OF THE TEXflis CONSTITUTION; AND THE FOURTH, FIF
    TH/' SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CON
    STITUTION, WHERE THE STATUTE DOES NOT CONTAIN A PROVISION FOR
    UNSEALING THE AFFIDAVIT, APPLICATION, AND ORDER FOR DISCOVERY
    AND DISCLOSURE PURPOSES OF PEN REGISTER INFORMATION..                    1
    ARGUMENT AND AUTHORITIES                                                         3
    CONCLUSION                                                                       8
    PRAYER FOR RELIEF                                                               10
    VERIFICATION BY UNSWSORN DECLARATION                                            11
    CERTIFICATE OF SERVICE^,                                                        12
    APPENDIX                                                                        13
    MEMORANDUM OPINION OF THE FIRST COURT OF APPEALS —    DALLAS, TEXAS
    Amilpas v. The State of Texas, No. 01-14-00053-CR (April 23, 2015)
    (not designated for publication).
    -l-
    INDEX OF AUTHORITIES
    CASE CITATIONS                                                                                                                PAGE
    Andrews v. Proctor, 
    950 S.W.2d 750
    (Tex.App.-Amarillo 1997)                                                                             6
    Belo Broadcasting Corp. v. Clark, 
    654 F.2d 423
    (5th Cir. 1981)                                                                          7
    City of Fort Worth v. Howerton, 
    149 Tex. 614
    / 
    236 S.W.2d 615
    (1951)                                                                     6
    Conley v. Daughters of the Republic, 
    106 Tex. 80
    * 
    156 S.W. 197
    (1913)........ 5
    Corsicana Cotton Mills v. Sheppard, 
    123 Tex. 352
    , 
    71 S.W.2d 247
    (1934)                                                                  6
    ,-i           I           II                      I     •'•                            -It.-
    Craner v. Sheppard/ 
    140 Tex. 271
    , 
    167 S.W.2d 147
    (1942)                                                                                 4
    Durish v. Texas State Board of Insurance,
    817 S.W.2d
    t _:
    764 (Tex.App.-Texarkana
    j    , •
    1991)                 ,.j..' . . ... .1 i.     I-J.J . 1 1 1 . ,.1.1.1 l i l l l i l . l t
    6
    Gallagher v. State, 
    690 S.W.2d 587
    (Tex.Crim.App. 1985)                                                                                 4
    Garrett v. Borden/ 
    283 S.W.3d 852
    (Tex. 2009)                                                                                           3
    Heitman v. State/ 
    815 S.W.2d 681
    (Tex.Crim.App. 1991)........................9
    Heyman: Ex parte/ 
    45 Tex. Crim. 532
    / 
    78 S.W. 349
    (1904)....................... 6
    Holmes v. State/ 
    323 S.W.3d 163
    (Tex.Crim.App. 2010)                                                                                    7
    Kimbrough v. Barnett/ 
    93 Tex. 301
    , 
    55 S.W. 120
    (1900)                                                                                   6
    LeCroy v..j Hanlon,,/ 713 S.W.2d
    j ..,
    335 (Tex.• 1986) - j •••>••     -—•••--«—-j—'--—•-—'—                 •j         --••- -• * '•-•-•
    10
    Lo; Ex parte, 
    424 S.W.3d 10
    (Tex.Crim.App. 2013)............................. 
    9 Md. v
    . Garrison, 
    480 U.S. 79
    / 
    107 S. Ct. 1013
    (1987)                                                                   7-8/11
    Pittman v. Byars/ 
    112 S.W. 102
    (Tex.Civ.App. 1908)                                                                                      5
    San Antonio & A.P. Ry. Co. v. State, 
    128 Tex. 33
    , 
    95 S.W.2d 680
    (1936)                                                                  5
    State v. Mazuca, 
    375 S.W.3d 294
    (Tex.Crim.App. 2012)                                                                                    7
    United States v. Raybould, 
    130 F. Supp. 2d 829
    (N.D. Tex. 2000)                                                                           7
    Whitworth v. Bynum/ 
    699 S.W.2d 194
    (Tex. 1985).........                                                                                 9
    CONSTITUTIONS/ STATUTES/ CODES, AND RULES                                                                                       PAGE
    1                ~          ~
    U;*S. CONST, amend. IV                                                         ........................ 3
    U.S. CONST . amend . V                                                                                                                 • 3
    U.S. CONST, amend. VI                                                                              ••            ••«•                  •3
    U.S. CONST, amend. XIV                                                                                                                 p^3
    TEX. CONST, art. 1/ § 9                                                                                      •                          3
    -ll-
    CONSTITUTIONS/ STATUTES/ CODES/ AND RULES (continued)                                                                                                     PAGE
    TEX. CONST, art. I, § 10                                                                                                                                          3
    TEX. CONST, art. I, § 13                                                                                                                                          3
    TEX. CONST, art. I, § 19                                                                                                                                          3
    TEX. CONST, art. 1/ § 29                                                                                                                          3, 6, 10
    TEX. CONST, art. V, § 3-b                                                                                                                                        10
    i   '-'        I             i '       .•       . '     . r f • •   - j ! (         I '             ' *     ' i.   >'   •' ' ' •' • **l •
    •   '    .    f
    TEX. CODE CRIM. PROC. art. 18.011                                                                                                                         5, 11
    TEX. CODE CRIM. PROC. art. 18.21                                                                                                                     passim
    TEX. CODE CRIM. PROC. art. 18.21, § 2(g)                                                                                                                    3, 4
    TEX. CODE CRIM. PROC. art. 18.21 ,§ 2(c)                                                                                                                     5-6
    TEX. CODE CRIM. PROC. art. 20.02                                                                                                                                  5
    TEX. CODE CRIM. PROC. art. 39.04..                                                                                                                           5-6
    TEX. CODE CRIM. PROC. art. 39.14                                                                                                                             5-6
    TEX . GOV . CODE / § 22.001(c)                                                                                                                                   10
    TEX. GOV. CODE/ § 51.317                                                                                                                ,•**••** 10
    TEX. GOV. CODE, § 51.318                                                                   .                                                                     10
    TEX. R. APP. PROC. 140                                                                                                                                           10
    TREATISES AND OTHER SOURCES                                                   ,                                                                           PAGE
    Carson; Wallace P., Jr.# "Last Things Last:" A Methodological Approach to
    Legal Argument instate Courts, 19 WILLIAMETTE L. REV. 641 (1983)                                                                                        9
    Mauer; John Walker* Southern State Constitutions in the 1870's:
    A Case Study of Texas 188-89/ 204/ 221-22, 246-48 (1981)                                                                                                    8
    Hyres; Sanuel D.# Mysticism, Realism and the Texas Constitution of 1876/
    9 SW. SOC.^SCI. Q. 166/182-83 (1928)                                                                      ••••••                      •••• 8_9
    J—-,_J _J». J _J„,_J..j,J.J-...Jv-J_J_J.J-Ji*i-**.<-
    Sager; Lawrence G.« Foreword: State Courts and the Strategic Space Between
    the Norms ana* Rules of Constitutional Law* 63 TEX. L. REV. 959 (1985)... 10
    Peters; Ellen A.* Common Law Antecedents of Constitutional Law
    in Connecticut/ x 53 ALB.^ L..,4 REV...„, 259 (1989) ...i .4 .jJ -J-J..J -J.J i -..!..„* -ii.J..4..'i-i'i.-               --?;..' t-, -J-hl .i.tv4-l..4
    6
    -111-
    STATEMENT REGARDING ORAL ARGUMENT
    Jose Amilpas/ Petitioner pro se in this case, believes that oral argument
    will be absolutely necessary for being able to fully explain the underlying le
    gal theories and argument demonstrating that Article 18.21 of the Texas Code of
    Criminal Procedure is unconstitutional/ where there is no provision in the sta
    tute for having an application and order unsealed/ where Article 18.21(g) make
    it mandatory that "'the district court shall seal an application and order gran
    ted under this article."   Khere Article 18.01 governs the sealing of affidavits
    requesting search warrants/ and Articles 18.011(c) and (d) govern the unsealing
    of affidavits so as not to "affect the right of a defendant to discover the
    contents of an affidavit;" and Article 20.02(d)/ of the Code of Criminal Proce
    dure/ which provides that a "defendant may petition a court to order the dis
    closure of information" contained in the records of a grand jury proceeding and
    "otherwise made secret by" Article 20.02; Article 18.21 is contrary to the pro
    visions of the Code of Criminal Procedure that entitles a defendant to discove
    ry of the contents of an affidavit/ and "secret grand jury proceedings."      Addi
    tionally, the Legislature's failure to include a provision for unsealing a rec
    ord that had been sealed under Article 18.21(g), violates a long-line of prece
    dents that had been set-in-stone by the Supreme Court of the United States.
    In the event that this Court determines that oral argument is necessary/
    Petitioner respectfully moves the Court to invite one of the attorneys from the
    Texas Civil Rights Project to participate on Petitioner's behalf/ in presenting
    oral argument.
    USE AMILPAS/ Petitioner pro se
    -iv-
    STATEMENT OF THE CASE
    Petitioner Jose Amilpas ("Amilpas") was charged with the felony offense of
    possession with intent to deliver a controlled substance.    The charge was enhan
    ced with two prior felony convictions.    On January 1, 2014/ he entered a plea of
    not guilty and proceeded to trial by jury. On that same day/ the jury found Am
    ilpas guilty as charged.    Amilpas waived a punishment trial/ and pursuant to an
    agreed recommendation by the State/ the trial court sentenced him to thirty (30)
    years imprisonment in the IQbrrectional Institutions Division of the Texas De
    partment of Criminal Justice.    Amilpas filed a timely notice of appeal on Janua
    ry 7/ 2014. Mr. Jon Munier was appointed to represent Amilpas on appeal/ but in
    the event of Mr. Munier's untimely death/ the case was abated and remanded to
    the trial court for the appointment of substitute counsel.    Amilpas's appeal was
    then submitted to a panel of Justices at the First Court of Appeals at Houston/
    in which he raised four issues: (1) and (2) complained that the    statute author
    izing    the sealing of an application and order under Article 18.21 of the Texas
    Code of Criminal Procedure was unconstitutional where it did not also contain or
    provide a provision or means to allow a defendant to have the application and an
    order unsealed; and that the unconstitutionality of the statute deprived Amilpas
    of due process of law; (3) he contended that the evidence was legally insuffici
    ent to support his conviction; and (4) the trial court committed reversible er
    ror where it overruled the defense's objection to the prosecutor's improper arg
    ument during closing.
    STATEMENT OP PROCEDURAL HISTORY
    This case was tried in the 174th Judicial District Court of Harris County/
    Texas/ before the Honorable Ruben Guerrero/ in which a guilty verdict was re
    turned by the jury on January 1, 2014. Following the verdict on guilt, pursuant
    to an agreed recommendation by the State, Amilpas was sentenced by the court, to
    thirty (30) years imprisonment in the TDCJ. Amilpas then perfected a timely ap
    peal/ submitting his BRIEF OF APPELLANT on September 2, 2014; thereafter, the
    State submitted its BRIEF OF APPELLEE on November 25/ 2014.     The appellate pan-
    -v-
    el affirmed the judgment of the trial court and issued its opinion on April 23/
    2014. Amilpas v. State/ 01-14-00053-CR (Tex.App.-Houston [1st Dist.] 2014).
    r    .i     f                     -•<                     -j
    On May 17/2015, Amilpas submitted his first PETITIONER'S MOTION TO EXTEND
    TIME TO FILE PETITION FOR DISCRETIONARY REVIEW/ requesting that the Court allow
    him until July 24/ 2015/ to file his petition.
    On July 22/ 2015/ Amilpas submitted his PETITIONER'S MOTION REQUESTING, A
    SECOND EXTENSION OF TIME DURING WHICH TIME FOR FILING HIS PETITION FOR DISCRE
    TIONARY REVIEW/ requesting that the Court allow him until October 22/ 2015, for
    submitting his petition.                                        f%
    Amilpas has herewith submitted a motion requesting a final extension of
    time under Rule 68.2(c)*s provision that allows the Court to grant an extension
    of time if itailpas "files a motion complying with Rule 10.5(b) no later than 15
    days after the last day for filing the petition." Amilpas had previously sought
    until October 22/ 2015/ for filing his petition, and that being the last day to
    file his petition/ he had until November 6/ 2015/ to file this instant petition
    along with the attached motion seeking an extension of time of 15 days.
    The CERTIFICATE OF SERVICE attahced hereto/ certifies that this petition
    was deposited into the prison's internal Legal Mail system/ under the Prison
    Mailbox Rule for mailing to the Clerk of the Court of Criminal Appeals, on Fri
    day evening/ November 6/ 2015/ in accordance with Rule 68.2(c)'s provision.
    1   This is an unpublished MEMORANDUM OPINION that was not designated for
    publication by the appellate panel.
    -vi-
    GROUNDS FOR REVIEW
    As required by the fflexas Rules of Appellate Procedure/ Petitioner indi
    cates the specific rule provisions under which he asks that the Court of Crimi
    nal Appeals review the First Court of Appeals' decision and judgment/ where:
    THE FIRST COURT OF APPEALS ERRED WHERE          IT FAILED TO FIND,      RES
    NOVA,   THAT ARTICLE 18.21 OF THE TEXAS CODE OF CRIMINAL PROCE
    DURE 'IS UNCONSTITUTIONAL*. VIOLATING ARTICLE 1/ SECTIONS 9/ 10,
    13, 19 AND 29 OF THE TEXAS CONSTITUTION, AND THE FOURTH/ FIF
    TH, SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CON
    STITUTION, WHERE THE STATUTE DOES NOT CONTAIN A PROVISION FOR
    UNSEALING THE AFFIDAVIT, APPLICATION, AND ORDER FOR DISCOVERY
    AND DISCLOSURE PURPOSES OF       PEN REGISTER INFORMATION.
    REASONS FOR GRANTING DISCRETIONARY REVIEW
    v.
    (b) Has the First Court of Appeals failed to decide an important question
    of State and federal law that has not been, but should be, settled by
    the Court of Criminal Appeals?    [Rule 66.3(b)]
    (c) Has the First Court of Appeals' failure to decide an important ques
    tion of State and federal constitutional law, resulted   in a   decision
    that conflicts with applicable decisions of the Court of Criminal Ap-
    peas and the Supreme Court of the United States? [Rule 66.3(c)]
    (d) Has the First Court of appeals failed in its function as PROTECTOR of
    the Constitution when it misconstrued the construction of Article 18.
    21/ and failed to recognize/ sua sponte/ that the statute was consti
    tutionally invalid?   [Rule 66.3(d)
    (f) Has the First Court of appeals' failure to decide a question of first
    impression regarding the constitutionality of Article 18.21, where it
    had itself noted the statute's deficiency, so far departed from the
    accepted and usual course of judicial proceedings/ and so for sanc
    tioned such a departure from the trial court that it calls for an ex
    ercise of the Court of Criminal Appeals' poser of supervision?     [Rule
    66.3(f)]
    Specifically/ the First Court of Appeals' decision requires review by the
    Court of Criminal appeals because —
    (1) The question of whether Article 18.21 is unconstitutional on confron
    tation and due process grounds/ is a matter of "first impression," as
    the statute does not harmonize'with any other Texas statute authoriz
    ing the sealing of documents and records/ as those statutes ALSO have
    provisions allowing a party to obtain access by unsealing the records
    for discovery/ or confrontation purposes.
    (2) The Court of Appeals' analysis and determination flies in the face of
    137 years of Texas jurisprudence/ where the appellate panel specific
    ally identified/ named/ and pointed to the article's constitutional
    infirmity and took no adtfion to sua sponte address it; where the Tex
    as Court of Criminal Appeals long ago held that it is the Texas judi-
    -1-
    ciary that is the "traditional protector[s] of individual's constitu
    tional rights."
    (3) Lastly, the First Court of Appeals' reasoning, and especially the re
    sult of its inaction on an obvious constitutional question/ is a "de
    relict upon the waters of the law/" for the Court of Criminal Appeals
    had observed some 24 years ago that a "failure to independently con
    strue state constitutional provisions'5 will eventually place the de
    cision in "the hands of the Supreme Court of the United States which
    is not responsible to the State's electorate."
    -2-
    ARGUMENT AND AUTHORITIES
    I.   PETITIONER'S SOLE ISSUE
    L
    THE FIRST COURT OF APPEALS ERRED WHERE IT FAILED TO FIND/                   RES
    NOVA/ THAT ARTICLE 18.21 OF THE TEXAS CODE OF CRIMINAL PROCE
    DURE yIS UNCONSTITUTIONAL/ VIOLATING ARTICLE 1/ SECTIONS 9/10/
    13/ 19 AND 29 OF THE TEXAS CONSTITUTION; AND THE FOURTH/ FIF
    TH/ SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CON
    STITUTION/ WHERE THE STATUTE DOES NOT CONTAIN A PROVISION FOR
    UNSEALING THE AFFIDAVIT/          APPLICATION/    AND   THE COURT'S    ORDER/
    FOR DISCOVERY AND DISCLOSURE PURPOSES PERTAINING TO                 PEN   REG-i
    ISTER     INFORMATION.
    In its MEMORANDUM OPINION/ the First Court of Appeals construed Amilpas'
    first issue on appeal to be that the trial court denying his request to unseal
    the affidavit/ application/ and court-order directing Sprint-Nextel to disclose
    information related to his cell phone/ prevented him from evaluating the evi
    dence against him, subpoenaing rebuttal witnesses* and of questioning potential
    witnesses, violated his right to confront witnesses guaranteed by the Texas and
    United States Constitutions.       See APPENDIX (Memorandum Opinion) p. 3 [p. 4-5].
    Regarding his second issue/ the appellate panel ("panel") construed his ground
    of error to be that the same ruling of the trial court deprived him of due pro
    cess of law.    
    Id. p. 3
    |p. 5].
    In its discussion of the "applicable law," the panel determined that "the
    statute requires that *[t]he district court shall seal an application and order
    granted under this article' and includes no mention of any process by which the
    application or order may be unsealed."       
    Id. p. 4
    (p. 6] (citing TEX. CODE CRIM.
    PROC. art. 18.21, $>2'(g.})i. Then in its "analysis/" the panel makes the following
    observation:
    As the State correctly notes, article 18.21/ of the Code of Criminal Pro-
    The First Court of Appeals' opinion that is the subject of this petition/
    is attached as an exhibit in the APPRNDIX of this petition. Petitioner
    had no means by which he could obtain a xerographic copy of the opinion/
    so, he produced a word-for-^word copy by manual reproduction using a type
    writer.    See Garrett v. Borden, 
    283 S.W.3d 852
    (Tex. 2009).       Petitioner
    cites and quotes the typewritten opinion as follows:         APPENDIX p. first
    reference is to the pagination as typed at the bottom of the page [p. the
    BOLD reference in brackets is Court of Appeals* pagination of the Court's
    MEMORANDUM OPINION] .
    -3-
    cedure makes no mention of the circumstances under which an order for the
    disclosure of pen register information may be unsealed.
    APPENDIX p. 6 [p. 9] (citing TEX. CODE CRIM. PROC. ANN. art. 18.21, §2(g) ("The
    district court shall seal an application and order granted under this article,"
    in which a police officer seeks order for information related to cell tower re
    cords)). The panel correctly concluded that "Amilpas DOES NOT contend that the
    trial court*s refusal to unseal the order violated article 18.21 of the Code of
    Criminal Procedure."     IdL (emphasis added).   The panel then correctly recogniz
    ed that Amilpas' complaints were founded upon violations of the State and fede
    ral constitutions.     To frame the issue concisely, Amilpas was deprived of dis-
    covery where it was article 18.21 itself* that violated the constitutional pro
    visions. The panel itself identified the constitutional infirmity, and that is
    that   article   18.21 "makes no mention" of how a defendant may have the records
    unsealed.
    Article 18.21 is "vague" on its face where it does not specifically state
    that documents sealed by order of the court under article 18.21(g)/ can or can
    not somehow be unsealed upon a defendant's request. The approach this Court is
    to take in order to resolve the vagueness of the language of article 18.21 will
    be, first, that it is not to be given a "technical construction which would de
    feat" the statute's purpose. Cramer v. Sheppard, 
    140 Tex. 271
    , 284-85, 
    167 S.W.2d 147
    , 154 (1942). Where, here, the statute is open to more than one understand
    ing, either the sealed records may.be unsealed, or they cannot, it is not to be
    "so construed or interpreted as to lead to absurd conclusions, if any other in
    terpretation or construction can reasonably be indulged in." IdL at 
    294, 167 S.W.2d at 159
    (Alexander, C.J./ dissenting). This Court should also avoid con-
    struing a statutory provision so as to render it ambiguous or contradictory to
    another statute. Gallagher v. State, 
    690 S.W.2d 587
    , 591-92 (Tex.Crim.App. 1985)
    (en banc).
    The same standards apply when interpreting different statutory provisions
    that appear to conflict with each other. This Court must first determine whe
    ther it is possible to harmonize the provisions by a reasonable construction.
    See San Antonio & A.P. Rv. Co. v. State, 
    128 Tex. 33
    / 42, 
    95 S.W.2d 680
    / 685 (1936)
    (holding that where provisions cannot be harmonized/ more specific provision is
    to control); Conlev v. Daughters of the Republic/ 
    106 Tex. 80
    / 92, 
    156 S.W. 197
    ,
    201-02 (1913) (stating that statutes relating to same subject are to be taken
    together so effect may be given to each); Pittman v. Byars, 
    112 S.W. 102
    / 106
    ...<   ..i    ..j   i...     .i
    (Tex.Civ.App. 1908/ no writ) (reasoning that similar language in present and in
    earlier statute/ gives rise to presumption that earlier interpretations of con
    structions of language controls).
    Article 18.21 is in the chapter of the Code of Criminal Procedures estab
    lishing    the   procedures for securing search warrants from the courts.                Article
    18.011    covers the sealing of affidavits presented to the court for demonstrat
    ing the specific requirements for obtaining a warrant; and the statute also ad
    dresses the procedures for "unsealing" an affidavit and court order:
    On the expiration of an order issue under Subsection (b) and any exten-
    the affidavit must be unsealed.
    -i
    An order issue under this section may not:
    (1) prohibit the disclosure of information relating to the contents
    of a search warrant/ the return of a search warrant/ or the inventory
    of property taken pursuant to a search warrant; or
    (2) AFFECT THE RIGHT OF A DEFENDANT TO DISCOVER THE CONTENTS OF AN AF
    FIDAVIT.
    TEX. CODE CRIM. PROC. ANN. art. 18.011(c) & (d) (Vernon 2010) (emphasis added).
    Chapter 20 of the Code of Criminal Procedrue covers the Duties and Powers
    of the Grand Jury, and Article 20.02(a) mandates that n[t]he proceedings of the
    grand jury shall be secret."      However, the statute does provide that a defend
    ant "may petition a court to order the disclosure of information otherwise made
    secret by this article...." TEX. CODE CRIM. PROC. ANN. art. 20.02(d).
    •Mv'-J
    Articles 18.011 (c)&(d); and 20.02(d) demonstrate that Article 18.21, in
    order to harmonize/ should have included a provision for unsealing the affidav-
    it,   application,    and court order.        As it stands, Article 18.21 is_ unconstitu
    tional for not having a provision extending to the defendant "the right to dis
    cover"     the   instrument "made in writing under oath," pursuant to Article 18.21
    § 2(c)(1)/ and consistent with Chapter 39 Of the Code of Criminal Procedure that
    -5-
    mandates that a defendant is entitled to discovery.                        See TEX. CODE CRIM. PROC.
    ANN. art. 39.14(a); see also art. 39.04 (Applicability of Civil Rules).
    The Justices of the panel hearing Amilpas' appeal/ identified the infirm
    ity of Article 18.21/ and that was the absence of a provision permitting a cri
    minal defendant unfettered discovery of affidavits, applications, and orders of
    the court that had previously been sealed.                  The Justices of the panel have "not
    only the right/ BUT THE DUTY/ to challenge actions to be taken pursuant to any
    statute that is unconstitutional."             Durish v. Texas State Board of Insurance,
    
    817 S.W.2d 764
    / 767 (Tex. App.-Texarkana 1991/ no pet.) (emphasis added).                        The
    Constitution is the supreme law of the State/ and all public officials/ includ
    ing justices and judges of the courts/ are sworn to uphold and defend it. The
    State represents the people/ and when justices and judges of the courts seek to
    enforce the constitutional provision of Article 1/ Section 29/ that the Bill of
    Rights is to "forever remain inviolate/" the judiciary is protecting the people
    from illegal/ oppressive, and unjust laws.                  Corsicana Cotton Mills v. Sheppard,
    
    123 Tex. 352
    / 
    71 S.W.2d 247
    (1934); see also Andrews v. Proctor/ 
    950 S.W.2d 750
    (Tex.App.-Amarillo 1997/ reh'g overruled/ review granted/ reversed) (State gov
    ernment officials on all levels have not only the right but also the duty to
    challenge the validity of a statute that is unconstitutional). See, e.g./ City
    of Fort Worth v. Howerton, 
    149 Tex. 614
    , 620/ 
    236 S.W.2d 615
    / 618 (1951) (hold-
    T         j           -»         .<'      .'                  '
    ing that/ legislature cannot pass laws which are contrary to the constitution);
    Kimbrough v. Barnett/ 
    93 Tex. 301
    / 313/ 
    55 S.W. 120
    / 123 (1900) (stating that a
    a     '        ,)       j   i          i           ..:   i   i
    court is bound to follow the constitution framed by the people).                        No amount of
    acquiescence can legalize usurpation of power/ or thwart the will of the people
    which is plainly expressed in the constitution.                        See Ex parte Hevman/ 45 Tex.
    Crim. $32/ 543/ 
    78 S.W. 349
    / 354 (1904).                   Many of the provisions of the Texas
    Constitution, owe their beginnings to the "common-law."                        Ellen A. Peters/ Com-
    roon Law Antecedents of Constitutional Law in Connecticut/ 53 ALB. L. REV. 259/
    261 (1989) (explaining that many constitutional rights had "common law" antece
    dents).       A defendant "has a common-law right to inspect and copy judicial rec-
    cords."    United States v. Ravbould, 
    130 F. Supp. 2d 829
    , 831 (N.D. Tex. 2000);
    lo Broadcasting Corp. v. Clark/ 
    654 F.2d 423
    (5th Cir. 1981) (The right of hav
    ing access to the court's record derives not from the Constitution/ but rather/
    common-law right of access that predates the Constitution itself). Where there
    is a right to discovery inferred in statutes that requires sealed records to be
    unsealed embodied in other state statutes/ it was apparently an oversight where
    the Legislature failed to include such a provision in Article 18.21.
    Where the panel explained that it was because Article 18.21 did not/ any-
    where/     contain a provision for unsealing the record/ it was THAT absence which
    operated to deprive Amilpas of the only defense that he really had.        See BRIEF
    FOR APPELLANT/ pp. 6-13.     The Court of Criminal Appeals recognized the severity
    of such a deprivation:
    [T]he denial of the right to present a defense is a violation of due pro
    cess and results in constitutional error.   [...]   Under Texas Rule of Ap
    pellate Procedure 44.2(a)/ if the record reveals a constitutional error/
    [this court] must reverse a judgment of conviction unless [it] determines
    beyond a reasonable doubt that the error did not contribute to the con
    viction or punishment.
    BRIEF FOR APPELLANT/ p. 11 (quoting Holmes v. State/ 
    323 S.W.3d 163
    / 173-74 (Tex.
    Crim.App. 2010)). The appellate panel concluded that any constitutional error
    "Would have been harmless beyond a reasonalbe doubt."        MEM. OP. p. 10.   However
    the panel should have used the "but for" standard of review instead of Mazuca/
    because     it would have had to if the panel had found that Article 18.21 itself
    was unconstitutional where it denied a defendant of document crucial to a de
    fense.     Amilpas was entitled to know whether the affidavit and application had
    been legally sufficient by law/ complying with the requirements of Article 18.
    21(e^W The validity of the affidavit and application must be assessed on the
    basis of the information that the requesting officers disclose/ or have a duty
    to disclose/ to the issuing judge; the constitutionality of the officers' con-
    i
    duct must be judged in light of the information available to them at the time
    they request an order under Article 18.21; and those items of evidence that e-
    merge after the order is issued/ have no bearing on whether the order was val-
    -7-
    idly issued. See Maryland v. Garrison, 
    480 U.S. 79
    / 
    107 S. Ct. 1013
    (1987).
    Because Article 18.21 does not contain a provision allowing the record to
    be unsealed, so that a defendant may exercise his right to discovery, the Court
    of Criminal Appeals should find that Article 18.21 is unconstitutional/ violat
    ing the Texas Bill of Rights/ to wit: Section 9 (providing that no order will
    issue unless it is supported by a sworn oath or affirmation); Section 10 (a de
    fendant has the right to confront his accusers and to have discovery of the ev
    idence against him); Section 13 (all courts shall be open/ as concealed and any
    documents   hidden is disfavored); Section 19 (the defendant is entitled to being
    "due   course of the law of the land*; which also disfavors concealed documents);
    and Section 29 (the "Bill of Rights" is excepted out of the general powers of
    government and shall forever remain inviolate/ and all laws contrary thereto or
    to the following provisions/ shall be void).   And/ as well/ violates the Fourth
    (court order can issue only upon sworn affidavit or application); Fifth (defen
    dant entitled to being accorded "due process of law."); Sixth (entiltled to be
    ing accorded confrontation and discovery); Fourteenth (no law permitted that a-
    bridge the laws and constitution/ and being accorded due process) Amendments of
    the United States Constitution.
    CONCLUSION
    The framers of the Texas and United States Constitutions/ and the voters
    over the years historically assigned to courts the function of interpreting and
    developing the law.   In Texas/ the 1875 convention delegates had clearly inten
    ded for judges to have plenary power to protect the people's rights.    The del
    egates distrusted the legislative and executive branches and deliberately dif
    fused and narrowly circumscribed their powers in the 1876 constitution.       See
    John Walker Mauer, Southern State Constitutions in the 1870's: A Case Study of
    Texas 188-89/ 204/ 221-22/ 246-48 (1981) (unpublished Ph.D. dissertation/ @$ file
    with St. Mary's Law Journal) (analyzing historical and political forces behind
    1876 constitution).   The delegates placed checks on judicial power by requiring
    judges to be popularly elected. IdL. at 192/ 236/ 246-48; cf. Samuel D. Myres/
    Mysticism, Realism and the Texas Constitution of 1876/ 9 SW. SOC. SCI. Q. 166/
    182-83 (1928) (concluding that constitution of 1876 imposed serious limitations
    upon power of government rendering it practically a government of negation).
    There are several arguments in favor of the popular election of judges as
    it creates an accountability that lends their office to constitutional develop
    ment.         When a judge vigorously construes the State constitution/ the voters can
    accept or reject that interpretation through the electoral process. See Heit-
    man v. State/ 
    815 S.W.2d 681
    , 688 (Tex.Crim.App. 1991) (holding that failure to
    ..j         j     -'   -•-   -i      •-   -j   -j
    independently construe state constitutional provisions places decision in hands
    of Supreme Court of the United States which is not responsible to electorate).
    The direct participation of the electorate in selecting         .jadges is vital to the
    development of Texas constitutional law. Consequently/ the election of judges
    is not a happenstance event. See, e.g., Ex parte Lo, 
    424 S.W.3d 10
    (Tex.Crim.
    App. 2013).
    The difference in institutional roles between the State and federal judi
    ciaries provides a second argument in favor of the popular election of judges.
    See Wallace P. Carson, Jr., "Last Things Last:" A Methodolgical Approach to Le-
    gal Argument in State Courts/ 19 WILLAMETTE L. REV. 641, 647 (1983) (providing
    argument in favor of primacy of Oregon Constitution).          Federal courts possesses
    circumscribed jurisdiction and the fact that they set nationally oberved norms/
    serves as a conservative influence.          State courts/ on the other hand/ historic-
    ally have had jurisdiction over virtually all matters: landlord-tenant law, fa
    mily law/ property riihts, water rights/ contracts/ criminal law/ and so on.
    Their day-to-day expertise supports the contention that state judges should
    play a substantial role in protecting constitutional rights/ most particularly
    those "within a subject area uniquely appropriate for a state's judiciary."
    Whitworth v. Bvnum, 
    699 S.W.2d 194
    / 1% (Tex. 1985); see 
    Heitman, 815 S.W.2d at 686
    (discussing the state's judiciary as traditional protector of individual's
    constitutional rights).
    A third argument for State court vigilance is that if a judge hands down
    an undersirable ruling/ the legislature can address the ruling either by sta-
    tute/ or by initiating the constitutional amendment process.                        Compare TEX. GOV.
    .1                                                                         ->                  -•   -J
    CODE ANN. §§51.317/ 51.318 (Vernon 1988) (reinstating revised Omnibus Fee Bill)
    .j   j       -'
    with LeCrov v. Hanlon, 
    713 S.W.2d 335
    / 338 (Tex. 1986) (finding original Omnibus
    ——             _j            j            _i   .j            j            -j
    Fee Bill unreasonably interfered with right of access to court). The Texas ex
    perience has shown it much easier to amend the State constitution than to.araend
    the federal constitution.             This "legislative oversight" function favors acti
    vist courts because it presents the judiciary as a partner with the other bran
    ches of Texas government in protecting individual rights.                      See Lawrence G. Sag-
    er, Foreword: State Courts and the Strategic Space Between the Norms and Rules
    of Constitutional Law/ 63 TEX. L. REV. 959/ 976 (1985) (discussing that state ju-
    diciaries have been more willing to exercise the legislative oversight function
    than federal courts).
    The constitutional amendment that allows a direct appeal to the Texai Su
    preme Court or the Court of Criminal Appeals on constitutional issues/ provides
    another structural rationale for State judicial oversight. See TEX. CONST, art.
    V, §3-b; TEX. GOV. CODE ANN. §22.001(c) (Vernon 1987); TEX. R. APP. P. 140 (Vernon
    2013).     This mechanism facilitates quick resolution of important questions/ and
    indicates that the drafters and voters expect the courts to play a vigorous and
    active role in constitutional development.
    Amilpas has shown this Honorable Court of Criminal Appeals that there can
    be no doubt that Article I, Section 29 of the Texas Constitution mandates that
    Article 18.21 of the Code of Criminal Procedure be voided as being unconstitu-
    tional on the basis that the statute does not contain a provision for unsealing
    the affidavit/ application, and court order/ for purposes of discovery.
    /                 i                               i                      •"'
    In its MEMORANDUM OPINION/ the panel of the First Court of Appeals iden-
    i
    tified the invalidity of Article 18.21/ yet/ even though empowered to do so sua
    l       j   •)
    sponte, even though it had not only the constitutional power to do so* but also
    the DUTY to exercise its "Legislative oversight" function; and by not doings so
    the appellate panel committed plain error.
    PRAYER
    -10-
    WHEREFORE, PREMISES CONSIDERED, Jose Amilpas respectfully prays that this
    most Honorable Court of Criminal Appeals concludes that the panel of the First
    Court of Appeals committed reversible error where it failed to, sua spnte, find
    that Article 18.21, of the Texas Code of Criminal Procedure, is unconstitution-
    al on "vagueness" grounds, where it is unclear whether or not the documents the
    court ordered sealed pursuant to the article/ could be unsealed in order to en
    able a defendant in "discovery/" consistent with the provisions of Art. 18.011
    (d)(1) & (2U TEX. CODE CRIM. PROC. ANN (Vernon 2013).
    FURTHER/ Petitioner Amilpas prays that this Court will remand this appeal
    for a determination on whether the affidavit/ application/ and court order used
    .j          j
    to authorize police to access Amilpas' cell phone's GPS function/ were statuto
    rily and constitutionally compliant/ in accordance with Maryland v. Garrison/
    
    480 U.S. 79
    / 
    107 S. Ct. 1013
    (1987).
    ALTERNATIVELY/ Amilpas prays the Court will grant review on the question
    of the constitutionality of Article 18.21/ and its affect on the case/ and will
    order "briefing" on the merits.
    Respectfully submitted/
    tf<& ATTfe^
    _ fE AMILPAS/ Petitioner pro se
    Robertson Unit/ TDCJ No. 1908295
    12071 FM 3522      J
    Abilene/   Texas       79601-8799
    VERIFICATION    BY UNSWORN DECLARATION
    1/ Jose Amilpas/ TDCJ-CID No. 1908295/ being presently incarcerated at the
    Robertson Unit of the Correctional Institutions Division of the Texas Department
    of Criminal Justice/ declare under penalty of perjury that the foregoing is true
    and correct.
    EXECUTED on this, the FIFTH day of NOVEMBER/ 2015.
    -11-
    CERTIFICATE OF SERVICE
    I hereby certify and declare that a true and correct carbon copy of the at
    tached PETITION FOR DISCRETIONARY REVIEW/ has been served on the following indi-
    i
    viduals on the SIXTH day of NOVEMBER/ 2015/ by placing same into the prison's in-
    i          i         •
    ternal Legal Mail System for delivery by regular U.S. Postal Service first class
    mail/ enclosed in postpaid and properly addressed envelopes/ mailed to:            :
    Ms. Jessica Caird, Esq.
    Assistant District: Attorney
    Harris County District Attorney's Office                                     ,
    1201 Franklin Street/ suite 600
    Houston/ Texas  77002
    i
    and
    Ms.   Lisa McMinn/     Esq.
    State Prosecutirig Attorney
    P.O. Box 13046 —         Capitol Station
    Austin/       Texas   78711-3046
    DATED: 05 NOVEMBER 2015                                 KJisMje.~7^r>^X/»i7iL^
    JOSE   AMILPAS
    AMILE
    -12-
    APPENDIX
    -13-
    IN    THE
    COURT OF APPEALS
    FOR           THE
    FIRST DISTRICT OF TEXAS
    NO.   01-14-00053-CR
    JOSE AMILPAS^ Appellant
    V.
    -J
    THE STATE OF TEXAS, Appellee
    On Appeal from the 174th District Court
    Harris County, Texas
    Trial Court Case No. 1334791
    MEMORANDUM OPINION
    Opinio© issued April 23, 2015
    Appellant Jose Amilpas was charged by indictment with fellony possession
    of more than four grams and less than 200 grams of cocaine with intent to de
    liver.     The indictment included two enhancement allegations for felony posses
    sion of a controlled substance and felony possession of a weapon.     After a ju
    ry found [2] Amilpas guilty, Amilpas and the State agreed to a plea bargain on
    sentencing — 30 years' confinement. Once Amilpas pleaded true to the enhance
    ment allegations/ the trial court sentenced him to 30 years' confinement in
    prison/ in accordance with the plea bargain. On appeal/ Amilpas contends that
    the evidence was legally insufficient to support his conviction. Amilpas also
    complains that the trial court erred by (1) denying his request to unseal the
    court order requiring Amilpas's cell phone service provider to disclose to po
    lice data allowing them to ascertain the location of his cell phone and (2) o-
    verruling his objection to the prosecutor's allegedly improper argument during
    closing.     We affirm.
    Background
    -1-
    On January 11/ 2012/ Houston Police Department's East Side Tactical Unit
    began searching for Amilpas to serve an arrest warrant for a felony evading
    arrest charge.    Unable to locate Amilpas, they requested assistance from Offi-
    cer Vigil of the Houston Police Department Criminal Intelligence Division.
    Officer Vigil testified that, on January 26/ 2012, his division obtained
    a "probable cause based court order," signed under seal by a judge, which or
    dered Sprint-Nextel to provide information regarding Amilpas's cell phone.
    Specifically/ Officer Vigil obtained information showing the signal strength
    from various cell towers in relation to Amilpas's phone and used it to triang
    ulate possible locations [3] of Amilpas's cell phone.    Based on this data/ Of
    ficer Vigil formed the belief that Amilpas could be found at a local cell
    phone store.
    Officer Vigil and Sergeant Vega of the Houston Police Department drove
    to the store/ where Officer Vigil saw and recognized Amilpas and entered the
    store with Sergeant Vega immediately behind him.    Officer Vigil testified that
    he identified himself as a Houston police officer as he entered the store.    At
    that point, Amilpas turned around/ readagd into his waistband, and threw a
    small object over the store counter.    Officer Vigil also testified that there
    were at least two other people in the store, but neither was standing near Am
    ilpas and he did not see either of them throw anything into the area where Am
    ilpas had thrown the object.
    Sergeant Vega's testimony was consistent with Officer Vigil's.   He tes
    tified that Amilpas looked "surprised" when he and Officer Vigil entered the
    store.    When Sergeant Vega identified himself as an officer and directed Amil
    pas to "get on the ground/" Amilpas did not comply. Rather/ he turned around/
    reached into his waistband, pulled out what appeared to be a knife/ and threw
    it over the counter before complying with the officers' commands to get on the
    ground.     Vega testified that he saw the general area in which the object land
    ed and that Amilpas' girlfriend was standing by the counter talking to a store
    -2-
    employee/ which was not "very close" to Amilpas.
    J                                         j
    [41   After Amilpas was handcuffed/ Sergeant Vega directed Officer Yanez of the
    Houston Police Department to find the object that Amilpas had thrown over the
    counter.       Officer Yanez testified that he   walked behind the counter to the lo
    cation where Sergeant Vega said that Amilpas had thrown an object, and he found
    a clear plastic bag/ which contained seven smaller bags.        The smaller bags con
    tained a powdery substance/ which Officer Yanez believed was cocaine.         The of
    ficers also found that Amilpas was carrying $3/070 in cash.
    Mona Colca, a criminalist with the Houston Police Department Crime Labor
    atory^ tested the powdery substance recovered at the scene and determined that
    it was 64.7 grams of cocaine.       The lab report containing the test results was
    admitted at trial.
    Officer Aguirre of the Houston Police Department testified that finding
    that quantity of cocaine packaged in seven individual bags and $3,070 in cash
    on a defendant's person indicates that the defendant is a drug dealer and in
    tends to sell the individual bags of cocaine.        According to Officer Aguirre the
    cocaine had an approximate street value of $2,200 to $3,000.
    Sealed Court Order for Disclosure of Amilpas's Cell Phone Information
    In his first and second issues Amilpas complains that the trial court er
    red in denying his request to unseal the court order directing Sprint-Nextel to
    disclose Asoilpas's cell phone data.      He contends in his first issue that this
    prevented him [5] from evaluating the evidence against him/ subpoenaing rebut
    tal witnesses/ and questioning witnesses in violation of his right to confront
    witnesses, guaranteed by the Sixth Aaaendment of the United States Constitution/
    and Article 1 Section 10 of the Texas Constitution.        In his second issue/ Amil
    pas argues that the same ruling deprived him of due process of law.
    A.     Applicable Lav
    Section 18.21 of the Texas Code of Criminal Procedure provides that a po
    lice officer from an incorporated area may seek/ by court order signed by a
    -3-
    district judge/ pen register information/ trap and trace devices/ and mobile
    tracking devices. TEX. CODE CRIM. PROC. ANN. art. 18.21 (West Supp. 2014).    A pen
    register "means a device or process that records or decodes dialing/ routing/
    addressing/ or signaling information transmitted by an instrument or a facility
    from which a wire or electronic communication is transmitted if the information
    does not include the contents    of the communication."   TEX. CODE CRIM. PROC. ANN.
    art. 18.21/ §1(6) (West Supp. 2014).   A prosecutor with jurisdiction in a county
    r
    "may file an application for the installation and use of a pen register...."
    
    Id. § 2(a)
    (West Supp. 2014).   The application must be in writing/ under oath/
    include the subscriber name/ information/ telephone number/ and location of the
    device and "state that the installation and use of the device or equipment will
    likely produce information that is material to an ongoing criminal investiga
    tion."     
    Id. § 2(c).
    "on [61 presentation of the application/ the judge may order the ... use
    of the pen register ... and/ on request of the applicant/ the judge shall
    direct in the order that a communication common carrier or a provider of
    electronic communications service furnish all information/ facilities and
    technical assistance necessary to facilitate the installation and use of
    the device...."
    
    Id. §2(d). Additionally,
    the statute requires that "[t]he district court shall
    seal an application and order granted under this article," and includes no men
    tion of any process by which the application or order may be unsealed. Id./ § 2
    (g).
    Article 38.23(a) of the Code of Criminal Procedure provides that a[n]o e-
    vidence obtained by an officer or other person in violation of any provisions
    of the Constitution or laws of the State of Texas/ or the Constitution or laws
    of the United States of America/ shall be admitted in evidence against the ac
    cused on the trial of any criminal case.0     TEX. CODE CRIM. PROC. ANN. art. 38.23-
    (a)|West 2005). The primary purpose of article 38.23(a) is to deter unlawful
    actions that violate the rights of criminal suspects in the acquisition of evi
    dence for prosecution. Wilson v. State/ 
    311 S.W.3d 452
    / 459 (Tex.Crim.App. 2010).
    However/ if the evidence seized is sufficiently attenuated from the vio-
    lation of the law the evidence is not considered to be obtained in violation of
    the law for the purposes of article 38.23.     Johnson v. State, 
    871 S.W.2d 744
    ,
    750 (Tex.Crim.App. 1994).   To determine whether the discovery of physical evi
    dence is [71 sufficiently attenuated from the violation, we consider: (1) the
    temporal proximity of the violation of law and the seizure of physical evidence
    (2) the presence of intervening circumstances, and (3) the purposefulness or
    flagrancy of the police misconduct. See State v. Mazuca/ 
    375 S.W.3d 294
    , 301-07
    (Tex.Crim.App. 2012).
    In Mazuca/ the trial court found that the officers' stop of the car in
    which Mazuca was a passenger was illegal.      
    Id., at 296-97.
      Accordingly, the
    trial court suppressed ecstasy that the officers discovered in Mazuca's pocket
    during the detention, and the court of appeals affirmed.     
    Id., at 298-99.
      The
    Court of Criminal Appeals reversed, concluding that the discovery of the ecsta-
    cy was sufficiently attenuated from the illegals stop.    
    Id., at 308.
      The Court
    of Criminal Appeals reasoned that the officers' discovery of Mazuca's outstand
    ing arrest warrants between the time they made the illegal stop, and the time
    they found the ecstasy/ was an intervening circumstance and the officers' mis
    conduct was not "particularly purposeful and flagrant."    
    Id. B. Analysis
    Amilpas*s counsel first learned during trial of the existence of the or
    der directing disclosure of Amilpas's cell tower data.    Amilpas's counsel arg
    ued that had he known of the order earlier/ he would have moved to suppress any
    evidence that the officers discovered after arriving at the cell phone store.
    Amilpas argued [8] that the officers' use of Amilpas's cell phone data to lo
    cate him constituted an illegal search.    He requested that the trial court un
    seal the order and he moved for a continuance. The trial court denied Amilpas's
    motions to suppress and for continuance.
    Amilpas relies on United States v. Jones, 
    132 S. Ct. 945
    (2012)/ to argue
    for reversal.   In Jones, the Supreme Court held that the government's placement
    of a GPS tracking device on a subject's vehicle/sand subsequent use of informa-
    -5-
    tion obtained from the GPS device to secure his arrest warrant [sic] amounted
    to an illegal search in violation of the Fourth Amendment. 
    Id., at 947-49.
    Two
    significant factors distinguish «ffones from this case.   First/ in Jones the gov
    ernment tracked the vehicle's movements in an effort to secure evidence to ob
    tain an indictment for drug trafficking conspiracy charges. Id./ at 946. Here/
    a warrant for Amilpas's arrest for evading arrest had issued before police ob
    tained Amilpas's cell phone data/ and the police requested and used the cell
    phone data, merely to locate Amilpas in order to execute the outstanding arrest
    warrants.   Second/ in Jones, the government obtained information about the de
    fendant's location by mounting a GPS tracking device to his vehicle.       
    Id., at 949.
      Here, Sprint-Nextel complied and stored Amilpas's cell phone data for its
    own business purposes, and Officer Vigil obtained that data from Sprint-Nextel,
    rather than gathering the data himself.   See Barfield v. State/ 
    416 S.W.3d 743
    /
    748-49 (Tex. App.-Houston [14th Dist.] 2013, [91 no pet.) (trial court did not
    violate the exclusionary rule in admitting cell tower records and expert testi
    mony, because police obtaining information and data related to appellant's cell
    phone that third-party cell phone provider had collected and stored for its own
    business purposes did not violate appellant's reasonable privacy expectations
    under the Fourth Amendment).   Accordingly Jones is distinguishable and does not
    support Amilpas's argument.
    As the State correctly notes/ article 18.21/ of the Code of Criminal Pro-
    j           ...   j
    cedure, makes no mention of the circumstances under which an order for the dis-
    closure of pen register information may be unsealed.      See TEX. CODE CRIM. PROC.
    ANN. art. 18.21/ § 2(g) ("The district court shall seal an application and order
    granted under this article/" in which a police officer seeks order for informa
    tion related to cell tower records). That does not end the inquiry^ however/
    because Amilpas does not contend that the trial court's refusal to unseal the
    order violates article 18.21 of the Code of Criminal Procedure.      Rather/ Amil-
    pas's complaints are constitutional.    But/ even constitutional errors must be
    harmful to warrant reversal. TEX. R. APP. P. 44.2(a) (constitutional errors war-
    rants reversal/ "unless the court determines beyond a reasonable doubt that the
    error did not contribute to the conviction or punishment").   Here/ we need not
    decide whether any of Amilpas's claims of constitutional error have merit, be
    cause even assuming that the trial [10] court's refusal to unseal the article
    18.21 order amounted to a constitutional error/ we conclude that it would have
    been harmless beyond a reasonable doubt.
    Mazuca guides our analysis of whether Amilpas can show harm resulting out
    of an alleged constitutional error.   It sets forth a three-factor test we use
    to determine whether discovery of physical evidence is too attenuated from a
    violation of law to warrant suppression. See 
    Mazuca/ 375 S.W.3d at 301-07
    . The
    first of the three factors we consider is the temporal proximity of the viola
    tion of law and the seizure of physical evidence.     See 
    id. at 306.
      Here/ the
    officers seized the cocaine within only a few moments of locating Amilpas using
    the pen register data. Thus/ this factor in isolation favors suppression. See
    McKinney v. State/ 
    444 S.W.3d 128
    , 135 (Tex. App.-San Antonio 2014/ pet. ref'd)
    (temporal proximity weighed in favor of suppression where officer searched def
    endant and found cocaine immediately after detaining him).      However/ as the
    Court of Criminal Appeals recognized in Mazuca/ this factor "will sometimes
    prove to be, in the context of the seizure of physical evidence/ 'the least im
    portant factor'-at least relative to the other two." 
    Mazuca/ 375 S.W.3d at 306
    .
    Under the second Mazuca factor/ we consider the presence of intervening
    circumstances — that is/ we consider what occurred between the time the suspect
    was detained using the pen register data and the time the challenged evidence
    was seized. 
    Id. at 306.
       Here/ the officers observed Amilpas commit a crime—-
    [11] possession of cocaine — in the cell phone store between the time they ar
    rived to execute the arrest warrant for evading arrest and the time they seized
    the cocaine. Thus/ even assuming police obtained the article 18.21 order/ and
    located Amilpas in violation of law* their observations of Amilpas committing
    the charged offense was a significant intervening circumstance between the time
    -7-
    of the purported violation of law and the discovery of evidence.    We conclude
    that this factor weighs against suppression. See 
    Mazuca, 375 S.W.3d at 306
    (re
    cognizing that evidence need not be suppressed where there are intervening cir
    cumstances between the discovery of physical evidence and the violation of the
    law); Roberts v. State/ No. 03-12-00194-CR, 
    2014 WL 1910428
    , at *l-2 (Tex.App.-
    Austin May 8/ 2014/ no pet.) (mem. op./ not designated for publication) ("need
    not address the propriety of [officer's] actions" where officer initially stop
    ped appellant without justification^ but subsequently observed appellant drive
    with headlights off/ which was a violation of the law that independently justi
    fied the stop); Matienza v. State/ 
    699 S.W.2d 626
    / 628 (Tex. App.-Dallas 1985,
    pet. ref*d) (after officer detained defendant/ defendant pulled gun and pointed
    it at officer/ which constituted intervening offense that purged taint of any
    .i
    illegality of initial detention).
    Under the third Mazuca factor/ we consider the purposefulness or flagran-
    cy of the police misconduct. See 
    Mazuca/ 375 S.W.3d at 306
    (considering "wheth
    er the police have deliberately perpetrated what they knew would be an unlawful
    stop in the [12] specific hope or expectation that it will generate some legit
    imate after-the-fact justification to arrest and/or search/ or they have other
    wise conducted themselves in particularly egregious disregard of the right to
    privacy and/or personal integrity that the Fourth Amendment protects").   Here/
    the officers obtained the order directed to Sprint-Nextel/ in accordance with
    the statute's terms/ and acted pursuant to the order in locating Amilpas to ex
    ecute his arrest warrant for evading arrest.   We conclude that there is no in
    dication in the record that the officers engaged in misconduct of any sort. See
    
    Mazuca/ 375 S.W.3d at 310
    (behavior was not so particularly purposeful or fla
    grant that intervening factor could not purge the taint where officer "never
    went beyond the bounds of what would have been constitutionally permissible toad
    the stop been justified at its inception").
    Haying considered all three Mazuca factors/ we conclude that the signifi
    cant intervening circumstance between the officers' detention of Amilpas, and
    their seizure of the challenged evidence — their observation of Amilpas posses
    sing cocaine — together with the absence of any misconduct on the part of po
    lice renders the evidence sufficiently attenuated from the alleged violation of
    law in obtaining and failing to disclose the contents of the article 18.21 or
    der that the trial court would not have erred in denying a motion to suppress
    the cocaine even if Amilpas had learned of and challenged the article 18.21 or
    der pre-trial. For the same reason/ we overrule Amilpas's arguments that the
    trial court's failure to unseal the [13] article 18.21 order violated his right
    to evaluate evidence against him/ subpoena rebuttal witnesses/ and to confront
    witnesses/ as well as his right to due process of law.          Because any theoretical
    infirmity in the article 18.21 order would have been sufficiently attenuated
    from the seizure of evidence under Mazuca/ article 38.23 would not require sup
    pression. Accordingly/ we hold that constitutional error in the trial court's
    refusal to unseal the court order/ if any/ would have been harmless beyond any
    reasonable doubt.          See TEX. R. APP. P. 44.2(a).
    We overrule Amilpas's first and second issues.
    Sufficiency of the Evidence
    In his third issue/ Amilpas contends that the evidence was legally insuf
    ficient to support his conviction.
    A.       Standard of Review
    Evidence is insufficient to support a conviction if/ considering all rec
    ord evidence in the light most favorable to the verdict, a factfinder could not
    have rationally found that each essential element of the charged offense was
    proven beyond a reasonable doubt. Gonzalez v. State, 
    337 S.W.3d 473
    / 478 (Tex.
    App.-Houston [1st Dist.] 2011^ pet. ref'd) (citing Jackson v. Virginia, 443 0.S.
    307/ 319/ 
    99 S. Ct. 2781
    / 2789 (1979)).           We determine whether the necessary in-
    %     j     ..j   -        .i
    ferences are reasonably based upon the combined and cumulative force of all the
    evidence viewed in the light
    •"
    most favorable to the verdict.-J Clayton v.
    iS
    State/.J
    235 S.W.3d [14] 772/ 778 (Tex.Crim.App. 2007) (quoting Hooper v. State/ 
    214 S.W. 3d
    9/ 16-17 (Tex.Crim.App. 2007)).          When the record supports conflicting infer-
    ences, we presume that the factfinder resolved the conflicts in favor of the
    .1
    verdict/ and defer                  to        that resolution.      
    Jackson/ 443 U.S. at 326
    / 99 S.Ct. at
    )                                                   _,            ./       .-i   ~i           ;         -i   _J
    2793; 
    Clayton/ 235 S.W.3d at 778
    .                          We likewise defer to the factfinder's evalu-
    i             j   .j           -i
    ation of the credibility of the evidence and the weight to give the evidence.
    
    Gonzalez/ 337 S.W.3d at 479
    (citing Williams v. State/ 
    235 S.W.3d 742
    / 750 (Tex.
    I           ~I   J                                       L3        i              —• ~l       i               .J
    Crim.App. 2007)).                   The reviewing court must also "consider all evidence which
    the jury was permitted/ whether rightly or wrongly/ to consider."                                                Thomas v.
    State, 
    753 S.W.2d 688
    , 695 (Tex.Crim.App. 1988) (en banc) (emphasis omitted).
    B.        Applicable Law
    To prove unlawful possession of a controlled substance, the State must
    prove/ beyond a reasonable doubt/ that the defendant exercised control/ manage
    ment/ or care over the substance and that he knew the matter possessed was con
    traband. Poindexter v. State, 
    153 S.W.3d 402
    /405 (Tex.Crim.App. 2005). Regard
    less of whether the evidence is direct or circumstantial it must establish that
    a defendant's connection to                         the contraband was more than fortuitous.                       
    Id., at 405-06.
               This "affirmative links rule is designed to protect the innocent by
    stander from conviction based solely upon his fortuitous proximity to someone
    else's drugs." 
    Id. at 406
    (internal quotation omitted). Thus, "[w]hen the def
    endant is not in [15] exclusive possession of the place where the substance was
    found it cannot be concluded that the accused had knowledge of and control over
    the contraband unless there are additional independent facts and circumstances
    which affirmatively link the accused to the contraband."                                    Deshong v. State/ 
    625 S.W.2d 327
    / 329 (Tex.Crim.App. [Panel Op.] 1981) (citing Wiersing v. State/ 571
    188/ 190 (Tex.Crim.App. 1978)).
    Though not an exhaustive list/ the Court of Criminal Appeals has recogni
    zed the following affirmative links:
    (1) the defendant's presence when a search is conducted; (2) whether the
    contraband was in plain view; (3) the defendant's proximity to and the
    accessibility of the narcotic; (4) whether the defendant was under the
    influence of narcotics when arrested; (5) whether the defendant possessed
    other contraband or narcotics when arrested; (6) whether the defendant
    made incriminating statements when arrested; (7) whether the defendant
    attempted to flee; (8) whether the defendant made furtive gestures; (9)
    whether there was an odor of contraband: (10) whether other contraband or
    -10-
    drug paraphernalia were present; (11) whether the defendant owned or had
    the right to possess the place where the drugs were found; (12) whether
    the place where the drugs were fouki«; was enclosed; (13) whether the def
    endant was found with a large amount of cash; and (14) whether the con
    duct of the defendant indicated a consciousness of guilt.
    Evans v. State/ 
    202 S.W.3d 158
    , 162 n.12 (Tex.Crim.App. 2006); see also Gilbert
    v. State/ 
    874 S.W.2d 290
    / 298 (Tex. App.-Houston [1st Dist.] 1994/ pet. ref'd).
    It is not the number of links that is dispositive/ but rather the logical force
    of all the evidence/ both.direct and circumstantial.    
    Evans/ 202 S.W.3d at 162
    .
    Therefore/ each case must be examined according to its own facts, on a case-by-
    case basis. |.16] Robertson v. State, 8§:. S.W.3d 730/ 736 (Tex.App.-Houston [1st
    Dist.] 2002/ pet. ref'd).   A factor that contributes to sufficiency in one sit
    uation may be of little value under a different set of facts.    
    Id. C. Analysis
    Amilpas contends that there is legally insufficient evidence to support
    his conviction because the police officers did not see that the item he threw
    over the counter was cocaine/ there was evidence that the    item he threw was a
    knife/ and there is no evidence of several affirmative links.
    We conclude sufficient evidence connects ^milpas with the cocaine.    First
    Amilpas was present at the scene when police arrived.    See 
    Evans, 202 S.W.3d at 162
    , n. 12 (presence when search conducted is affirmative link).    Second/ Offi
    cer Vigil and Sergeant Vega both testified that Amilpas would not obey their
    commands until after he removed an object from his clothing and threwrit over
    the store counter.   See 
    id. (furtive gestures
    and conduct evidencing conscious
    ness of guilt are affirmative links).    Third/ both officers testified that they
    saw Amilpas throw an object behind the counter and Officer Yanez testified that
    he found seven small plastic bags containing cocaine inside a larger plastic
    bag in the location in which Sergeant Vega [had] told Officer Yanez the object
    landed.   The cocaine was in plain view, on the floor of the store/ and was lo
    cated near where Amilpas had been standing/ when he threw the object.    See, 
    id. (whether contraband
    was in plain view/ [17] as well as proximity and accessibi
    lity of contraband to appellant are affirmative links).    Fourth Amilpas had ap-
    -11-
    proximately $3,070 in cash on his person.      See 
    id. (large amount
    of cash on de
    fendant's person is affirmative link).      Finally, the cocaine weighed approxi
    mately 64.7 grams and had a value between $2,200 and $3,000.        See. 
    Robertson, 80 S.W.3d at 740
    ("The amount of contraband found is a factor we can consider in
    determining if an affirmative link exists.").
    Amilpas contends that the judgment must be reversed because evidence of
    many of the affirmative links is absent in this case.      In support of his argu-
    ment, Amilpas cites to Allen v. State, 
    249 S.W.3d 68
    ©! (Tex.App.-Austin 2008, no
    pet.), because the Allen court held there was insufficient evidence to support
    Allen's conviction where many links were absent.      In Allen/ the evidence showed
    that Allen did not live at the apartment where the cocaine was found/ no co
    caine was found on his person, Allen did not attempt to flee or hide any items
    when officers entered, Allen cooperated with the police and made no furitive
    [sic] gestures/ and most of the cocaine was hidden in a different room.         
    Id. at 694/
    702. Although several of the same links are absent in this case, unlike
    in Allen, here/ there is evidence that (1) Amilpas was carrying a significant
    amount of cash/ and (2) attempted to rid himself of the cocaine that he carried
    on his person when the officers entered the store.      Accordingly/ Allen does not
    support Amilpas's argument. See 
    id. Lair v.
    State/ 
    265 S.W.3d 580
    / 588 (Tex.
    App.-Houston [1st Dist.] 2008, pet. ref'd) [18] (evidence was sufficient to sup-
    port conviction where nine links were not present because, "possible links that
    do not exist ... do not negate the links that are present"); see algo, SatftheH
    v. State, 
    321 S.W.3d 127
    , 134 (Tex. App.-Houston [1st Dist.] 2010/ pet. ref'd)
    —•       1      ..,                              *
    ("The absence of various links does not constitute evidence of innocence to be
    weighed against the links present.").
    Amilpas also contends that evidence that he threw an object over the coun
    ter is insufficient evidence to link him to the cocaine because (1) Sergeant
    Vega testified that the object appeared to be a knife and (2) other people who
    may have possessed the cocaine were present in the store. While there was some
    evidence from which a rational juror could infer that the object Amilpas threw
    was a knife/ the jury rejected that conclusion. We presume the jury resolved
    -12-
    conflicting evidence in favor of the verdict and defer to that determination.
    Merritt v. State, 
    368 S.W.3d 516
    , 526 (Tex.Crim.App. 2012); see also Henson v.
    i           ..i   j            i                   i , . i                       .j
    State, 
    388 S.W.3d 762
    / 773 (Tex.App.-Houston [1stDist.] 2012) ("verdict of guil-
    j        -j   ...           i                          i                               -i
    ty is an implicit finding rejecting the defendant's [defensive] theory")/ aff'd
    
    407 S.W.3d 764
    (Tex.Crim.App. 2013).
    Considering all of the evidence in the light most favorable to the ver
    dict, we conclude that sufficient affirmative links connect Amilpas to the co-
    i
    caine and that a rational trier of fact could have found beyond a reasonable
    doubt that Amilpas exercised care, custody/ or control over the cocaine knowing
    that it was f19J contraband.                               See 
    Evans, 202 S.W.3d at 166
    ("amply sufficient
    I                        !         .J   .J
    evidence connecting appellant to the actual care, custody/ control or manage-
    ment of the cocaine" when viewing circumstantial evidence "in combination and
    its sum total"); Noah v. State, 
    495 S.W.2d 260
    , 263 (Tex.Crim.App. 1973) (suf-
    :           i            .   ,         s                  i   .j
    ficient evidence to support possession of heroin conviction where officer saw
    defendant throw package, he returned to place where package had been thrown to
    recover it three to five minutes after defendant had thrown it, and package had
    contained heroin); Sneed v. State, 
    875 S.W.2d 792
    , 795 (Tex.App.-Fort Worth 19-
    94, no pet.) (although defendant did not have exclusive control over place that
    cocaine was found, evidence of possession sufficient where officer saw defend-
    i
    ant take cocaine out of pocket and throw it on floor).
    We overrule Amilpas's third issue.
    Permissible Jury Argument
    In his fourth issue, Amilpas contends that the prosecutor made an improp
    er closing argument because he referred to Amilpas's subpoena power, which was
    an attempt to shift the burden of proof.
    A.           Applicable Lav
    y
    "The law provides for, and presumes, a fair trial free from improper arg-
    uraent by the State."                    Thompson v. State, 
    89 S.W.3d 843
    , 850 (Tex. App.-Houston
    [1st Dist.] 2002/ pet. ref'd) (citing Long v. State/ 
    823 S.W.2d 259
    / 267 [20]
    (Tex.Crim.App. 1991) (en banc)).                                The approved areas of jury argument are (1)
    -13-/
    summation of the evidence, (2) reasonable deduction from the evidence, (3)29 S.W.3d 103
    , 115 (Tex.Crim.App. 2000) (en banc); Andrade v.
    ;            i           i    j        i
    State, 
    246 S.W.3d 217
    , 229-30 (Tex.App.-Houston [14th Dist.] 2007, pet. ref'd).
    !            >   i           i                     i     i                      i            !         i           .1
    In examining challenges to a jury argument, a court considers the remark in the
    context in which it appears.                              Gaddis v. State, 
    753 S.W.2d 396
    , 398 (Tex.Crim.
    ;      i      ii           I                    .i.i
    App. 1988).
    ;           .J
    Courts have held that, during jury argument/ the State may comment on the
    defendant's failure to present evidence in his favor.                                 See Jackson v. State/ 17
    .i           i
    S.W.3d 664/ 674 (Tex.Crim.App. 2000) ("We have held that the prosecutor may com-
    .i   .i            i               ,           j    -j
    ment on the defendant's failure to produce witnesses and evidence so long as
    the remark does not fault the defendant for exercising his right not to testi
    fy."); Patrick v. State, 
    906 S.W.2d 481
    , 491 (Tex.Crim.App. 1995) ("[l]f the Ian-
    guage can reasonably be construed to refer to appellant's failure to produce e-
    vidence other than his own testimony/ the comment is not improper.").                                                 Jury ar
    gument pointing out that the defendant has failed to present evidence in his
    favor does not shift the burden of proof but instead summarizes the state of
    the        evidence and is a                    reasonable        deduction   from the evidence.            See Caron v.
    State, 
    162 S.W.3d 614
    , 618 (Tex.App.-Houston [14th Dist.] 2005, no pet.) (hold-
    ———— j                  ...             j                                              '       i
    ing that prosecutor's [21] statement that "[i]f there is something out there to
    exonerate you, you want to make it known" was permissible jury argument).
    B.             Analysis
    Amilpas complains that the prosecutor's closing argument was improper be
    cause he referred to Amilpas's subpoena power and the fact that no witness had
    testified that the cocaine found in the store belonged to her.                                         Before the pro
    secutor made the argument, Amilpas's counsel argued that Amilpas's girlfriend
    was also present at the store and that the cocaine could have been hers.
    The prosecutor responded:
    [T]he girl who was next to the defendant in that store was between 5 and
    8 feet away dealing with a clerk as they entered. More importantly, the
    only person who threw anything behind the counter, the only person who
    -14-
    possessed the cocaine those officers found wasn't some mysterious girl.
    It was the defendant.
    Ladies and gentlemen, keep in mind the burden is with the State and the
    State has the burden "alone.   [Amilpas] has rights, including the right of
    subpoena power. Did you see any girl standing here today saying: Yeah,
    it was my cocaine?
    Amilpas objected that the State was "shifting the burden of proof," and the
    trial court overruled his objection.
    Having considered the allegedly improper argument in context, we conclude
    that the prosecutor's statement was a permissible response to Amilpas's coun
    sel's argument because it was a remark on Amilpas's failure to produce evidence
    from other sources.   See 
    Wesbrook, 29 S.W.3d at 115
    (answer to argument of op
    posing |22] counsel is an approved area of jury argument); Harris v. State, 122
    S.W.3d 871,884 (Tex.App.-Fort Worth 2003, pet. ref'd) (prosecutor's comment "a-
    bout the subpoena power of a defendant is proper if it refers to the defend
    ant's failure to produce evidence from other sources").      Accordingly, the pros
    ecutor's statement did not shift the burden of proof to Amilpas.      See Baines v.
    State, 
    401 S.W.3d 104
    , 109 (Tex.App.-Houston [14th Dist.] 2011/ no pet.)(prose-
    cutor's statement that defendant "has the same subpoena power" and could have
    called witnesses to testify in his defense was "a permissible remark about ap
    pellant's failure to produce evidence in his favor on his defense and did not
    shift the burden of proof to appellant").     We hold that the trial court did not
    err in overruling Amilpas's objection to improper jury argument.
    We overrule Amilpas's fourth issue.
    Conclusion
    We affirm the trial court's judgment.
    Rebeca    Huddle
    Justice
    Panel consists of Justices Jennings/             Higley/ and Huddle.
    Do not publish.       TEX. R. APP. P. 47.2(b).
    -15-