Ford, Jon Thomas ( 2015 )

PD1396-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
March 24, 2015 Transmitted 3/23/2015 11:28:07 PM
Accepted 3/24/2015 10:32:08 AM
ABEL ACOSTA
Cause No. PD-1396-14 CLERK
IN THE TEXAS COURT OF CRIMINAL APPEALS
JON THOMAS FORD, §
Petitioner, §
§ FROM THE
FOURTH COURT OF
vs. §
APPEALS
§ SAN ANTONIO, TEXAS
THE STATE OF TEXAS, § 04-12-00317-CR
Respondent. §
PETITIONER’S BRIEF
ON PETITION FOR DISCRETIONARY REVIEW
On appeal from Cause No. 2010-CR-7741
IN THE 186th DISTRICT COURT
BEXAR COUNTY, TEXAS
CYNTHIA EVA HUJAR ORR
Bar No. 15313350
GOLDSTEIN, GOLDSTEIN & HILLEY
310 S. St. Mary’s St.
29th Floor Tower Life Bldg.
San Antonio, Texas 78205
210-226-1463
210-226-8367 facsimile
whitecollarlaw@gmail.com
ATTORNEY FOR PETITIONER
PARTIES TO THE CASE
Representing the State of Texas, at Trial:
Susan D. Reed
Former District Attorney
Catherine Babbitt
L. Katherine Cunningham
Kirsta Leeberg Melton
Former Assistant District Attorneys
Paul Elizondo Tower
101 West Nueva, Fourth Floor
San Antonio, Texas 78205
Representing the State of Texas, on Appeal:
Susan D. Reed
Former District Attorney
Jay Brandon
Assistant District Attorney
Paul Elizondo Tower
101 West Nueva, Fourth Floor
San Antonio, Texas 78205
Petitioner: Jon Thomas Ford
Representing Jon Thomas Ford, Defendant, at Trial
Dick DeGuerin
Todd Ward
DeGuerin & Dickson
1018 Preston Ave. Seventh Floor
Houston, Texas 77002
Representing Jon Thomas Ford, Appellant, on Appeal:
Cynthia E. Orr
Goldstein, Goldstein & Hilley
310 S. St. Mary’s Street
29th Floor Tower Life Building
San Antonio, Texas 78205
ii
The Honorable MARIA TESSA HERR, presided at trial formerly in the 186th
Judicial District Court, Bexar County, San Antonio, Texas.
iii
TABLE OF CONTENTS
Parties to the Case ..................................................................................................... ii
Table of Authorities .................................................................................................. v
Statement of the Case and Procedural History ......................................................... 1
Issues Presented ........................................................................................................ 1
I. Whether a warrantless search of involuntarily conveyed historical cell
tower data is an illegal search
II. The Court of Appeal's holding, that cell tower data information conveyed
from a phone involuntarily, is public information under the third party
record doctrine; is contrary to Richardson v. State, 865 S.W.2d 844 (Tex.
Crim. App. 1993)
III. The Court of Appeal's decision held the evidence is sufficient, applying a
legal rubric expressly allowing speculation to sustain the conviction, in
conflict with this Court's decision in Hooper v. State, 214 S.W.3d 9 (Tex.
Crim. App. 2007)
Statement of Facts ..................................................................................................... 2
Summary of Argument ............................................................................................. 5
Argument .................................................................................................................. 7
Conclusion and Prayer ............................................................................................ 14
Certificate of Compliance ....................................................................................... 15
Certificate of Service .............................................................................................. 15
Appendix
Ford v. State, 444 S.W.3d 171 (Tex. App. – San Antonio 2014).
iv
TABLE OF AUTHORITIES
Cases:
City of Ontario v. Quon, 560 U.S. 746, 130 S. Ct. 2619, 177 L. Ed. 2d 216 (2010) .....
................................................................................................................................. 11
Coolridge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971)
................................................................................................................................. 11
Ford v. State, 444 S.W.3d 171 (Tex. App.-San Antonio 2014)....................... passim
Gross v. State, 380 S.W.3d 181 (Tex. Crim. App. 2012) ....................................... 12
Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007)................................ iv, 1, 12
In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n
Serv. To Disclose Records to Gov’t, 620 F.3d 304 (3d Cir. 2010) ........................... 7
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) ............ 12
Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) ............. 8
Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001) .......... 8
Madrigal v. State, 347 S.W.3d 809 (Tex. App.—Corpus Christi 2011, pet. ref’d.) ...
............................................................................................................................. 5, 13
Richardson v. State, 865 S.W.2d 844 (Tex. Crim. App. 1993) ............... iv, 1, 11, 12
Riley v. California, 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014) ............................ 8, 10
Stanford v. Texas, 379 U.S. 476, 85 S. Ct. 506, 13 L. Ed. 2d 431 (1965) ................... 8
Tracy v. Florida, 152 So. 3d 504 (Florida 2014) ..................................................... 10
United States v. Jones, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012)..................... 7, 9, 10
United States v. Karo, 468 U.S. 705, 104 S. Ct. 3296, 82 L. Ed. 2d 530 (1984) .. 8, 11
v
United States v. Miller, 425 U.S. 435, 96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976)......... 10
Rules, Statutes and Other:
Article 1, Section 9 of the Texas Constitution ........................................................ 11
Fourth Amendment of the United States Constitution .......................................... 6-8
vi
Statement of the Case and Procedural History
Appellant, JON THOMAS FORD (hereinafter “Ford”), was convicted in the of
murder and sentenced to forty (40) years imprisonment on February 24, 2012.
1CR23, 19RR89. The Fourth Court of Appeals affirmed his conviction with
Justice Luz Elena D. Chapa dissenting. Ford v. State, 444 S.W.3d 171 (Tex. App.-
San Antonio 2014). Justice Chapa found that Ford had a reasonable expectation of
privacy in his physical movements and location, also rejecting the third party
record; she would have reversed Mr. Ford’s conviction because it was obtained
with illegally seized evidence. Thereafter, this Court granted his petition for
discretionary review ordering briefing on the three questions stated below.
Issues Presented
I. Whether a warrantless search of involuntarily conveyed historical cell tower data
is an illegal search.
II. The Court of Appeal's holding, that cell tower data information conveyed from a
phone involuntarily, is public information under the third party record doctrine; is
contrary to Richardson v. State, 865 S.W.2d 844 (Tex. Crim. App. 1993).
III. The Court of Appeal's decision held the evidence is sufficient, applying a legal
rubric expressly allowing speculation to sustain the conviction, in conflict with this
Court's decision in Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007).
1
Statement of Facts
As is set out in the majority, Mr. Ford’s conviction for the murder of Dana
Claire Edwards [hereinafter DE] was primarily based upon evidence from
historical cell tower data [hereinafter HCD] ostensibly placing him at DE’s condo.
The State’s theory was formed upon HCD, alleging that Ford uncharacteristically1
flew into an unobserved rage following a conversation by others at a New Year’s
Eve (“NYE”) party. It asserts, that Ford maintained this status for two hours at
DE’s place 12R168-74, unseen by a neighbor, Jordon Hasslocher; who knew Ford
and who was outside all evening. 9R27, 45, 57-60.
The State places Ford at DE’s condo and Olmos Dam with HCD. 18R75-76.
(DE’s condo 11:45pm, Gallery Court 1:19am and Olmos Dam at 1:32am). 18R75-
76. But, Hasslocher, saw DE walking her dogs at 1:20am (15R182, 14R141), so
she was not dead at 1:19am. The State says Ford disposed of DE’s dog at Olmos
Dam at 1:32am. But video shows DE’s dog was alive the next morning. CR571,
SX132a-n. The State chose an implausible time of death2, to make HCD relevant.
However, the HCD does not fit.
1
Ford’s friends describe him as peaceful his entire life. 17R160. He rarely loses his temper,
even when provoked. 17R145. His active social life and his friends date back to his childhood.
Id.
2
DE attended the party with an alcohol and drank more at midnight. 7R193, 14R143. She left at
12:45am. 7R193. A body doesn’t metabolize alcohol after death. 14R126, 142, 154. If she died
at 1:19 am, she had less than one hour to metabolize it. Alcohol remains three hours. 15R179.
2
Ford left the NYE party at 11:30pm with others, 7R110, 7R191. He watched
TV and retired at home, his cell phone with him. SX1-A. The State claimed video
showed a person entering and exiting DE’s condo, but that it was impossible to
identify the person or the vehicles.12R171. The State argued HCD identified
Ford’s exact location, but its witness said the variables involved, the HCD cannot
definitively identify a person’s location. 8R145-146.
The State obtained “cellular site information” as well as contents of
communications, SCR 196-97 with the SCA, without a search warrant. It stated
that DE was found on 1/2/2009, but did not say when she died. The applications
discusse the NYE party and video of a vehicle like Ford’s without attaching any
significance to it or verifying that it was Ford’s. SCR180–199. The information is
sought to “develop and/or confirm investigative leads….” SCR 196-97.
Finally, the State argued unremarkable touch DNA found on the edge of a
guest towel proved Ford was present when DE was murdered. 6R37, 157-98. But,
this towel was cross-contaminated (15R50-51) and had more of the expert’s own
DNA. 15R53, 16R176. More importantly, Ford stayed at DE’s when they dated
DE’s autopsy showed no traces of alcohol. 14R126. And vitreous shows traces of alcohol for
about two hours longer than the rest of the body, and DE’s vitreous showed no traces. 14R154..
Thus, DE was alive long enough to metabolize the alcohol she consumed that night and it is,
therefore, impossible for DE’s time of death to have been before 2:02am. The State’s medical
examiner concedes, the time of death could have been noon on 1/1/2009. 14R150-51. The
defense’ medical examiner established lividity and rigor placed her time of death sometime after
4:00am on 1/1/2009. 15R182.
3
and he had been there recently, cleaning up after her dogs and putting her to bed
after she drank too much. 11R91-93; 6R102; 7R88-90. Police agreed Ford’s DNA
would have been all over the condo. 11R91-92.
DE’s parents discovered her in her guest bathroom on 1/2/2009. 9R133, 147.
They contacted police and waited alone at the scene. 9R141, 147. They
contaminated the towel by handling it, 9R148, and police also left it behind for a
week. 11R217. In photos, the towel is moved against the base of the toilet. CR564.
The only touch DNA located was on the edge of this guest towel after an
unproductive testing and its contamination with larger quantities of the scientist’s
own DNA. 15R64. The State contended the towel had been washed after Ford was
in the condo. But, DE washed used linen and was unaware Ford used the towel.
9R94.
The police also did not preserve evidence and DE’s parents controlled their
access. 12R71. Evidence was not timely collected and was lost. 11R217, 6R30-31.
The State admitted that the police “screwed up.” 6R30-31.
The Court allowed a hole punch purchased online three years after DE’s
death, SX66, in evidence as a weapon. SX58, 9R168. But, “Det. Snow reported in
his supplement report as finding no signs of forced entry, or any items missing.”
CR629.
4
The medical examiner testified the hole punch was only a possible weapon.
14R75. And the State speculated that Ford went back to DE’s home to retrieve it,
18R79, to explain why HCD allegedly placed him at the condo at 3am. There was
no evidence that a three-hole punch was used as a weapon.
The trial Court also admitted a power cord as a weapon (9R197) over
objection (9R196). Again, the mother claimed this was missing, “[t]hree years after
[DE] died” (9R196). SX66 does not have the “[f]abric or some pattern to
whatever the ligature was,” described in the autopsy report: “slightly irregular,
possibly patterned inferior margin.” 14R178, CR390, SX210.
“[T]estimony that is based solely on speculation and conjecture necessarily
lacks probative value, and therefore fails to meet the relevancy requirement of the
rules of evidence.” Madrigal v. State, 347 S.W.3d 809, 813 (Tex. App.—Corpus
Christi 2011, pet. ref’d.) But the Court of Appeals sustained Ford’s conviction on
these weapons, holding: “Speculation is a proper use of circumstantial evidence
and a question of fact for the jury to resolve.” Ford v. State, No. 04-12-00317-CR,
444 S.W.3d 171, 195 (Tex. App. – San Antonio 2014).
Summary of Argument
Tracking of individuals’ movement and location through historical cell
tower data [HCD] implicates privacy concerns because such tracking reveals
5
information from areas where there is an expectation of privacy (in their homes) as
well as associational information (whom and where they are visiting and what apps
and information they use and obtain). HCD conveys more than electronic
connection information or the phone numbers dialed into a phone as was addressed
in Smith v. Maryland, 442 U.S. 735, 99 S. Ct. 2577, 61 L.Ed.2d 220(1979).
The United States Supreme Court has recognized that obtaining a great deal
of location information implicates the Fourth Amendment because tracking an
individual’s movements over a long period exceeds what law enforcement would
be able to do. In addition, five justices questioned the continued viability of the
third party record doctrine in light of digital communication. Since cell phones
convey a great deal more than mere digital contact and without the participation of
the person who owns the cell phone, this information must be obtained with a
search warrant. Such private information conveyed via cell phone will not be
unavailable to law enforcement, but will merely require that they obtain a warrant.
Currently, search warrants can be obtained with great efficiency.
Further, a jury verdict resting on pure speculation and conjecture is not
sustainable. The Fourth Court of Appeals erred in allowing Ford’s conviction to
stand upon weapon evidence that was the product of pure speculation and
conjecture. Weapons created out of the whole cloth, from pure speculation, are not
properly used by a jury or a Court of Appeals to sustain a conviction.
6
ARGUMENT
Questions I and II are argued together
This case is particularly well suited to decide whether such data is deserving
of Fourth Amendment protection, since it concerns only data involuntarily
conveyed from Ford’s telephone to the cell towers.
“The records used by the State to pinpoint Ford’s location on
the night of Edwards’s murder were determined from records of
passive activity on his phone, i.e. he was not placing a call when his
phone connected with the cell tower. Rather, the records relevant to
the State’s case, the 11:45 p.m. and 1:19 a.m. “pings” off of the
Gallery Court tower, were from a missed call and text message,
respectively, from Tarver.” Ford v. State, 444 S.W.3d 171, 190 n. 2
(Tex. App.—San Antonio 2014).
The Third Circuit agrees that HCD is not “voluntarily” given by cell phone
customers. In In re Application of U.S. for an Order Directing a Provider of Elec.
Commc’n Serv. To Disclose Records to Gov’t, 620 F.3d 304, 317 (3d Cir. 2010)
[“[a] cell phone customer has not ‘voluntarily’ shared his location information with
a cellular provider in any meaningful way.”]
On NYE, much detail about one’s life is gathered in a short period. Justice
Sotomayor concurring in United States v. Jones, 132 S. Ct. 945, 956 (2011) stated
that “even short term monitoring” implicates privacy and chills First Amendment3
3
First Amendment protected matters must be described with scrupulous exactitude. Stanford v.
Texas, 379 U.S. 476, 485, 85 S. Ct. 506, 13 L. Ed. 2d 431 (1965).
7
protected associational and expressive freedoms. It “generates a precise,
comprehensive record of a person’s public movements that reflects a wealth of
detail about her familial, political, professional, religious, and sexual associations”
that can be obtained and searched for information from a service provider for
“years into the future.”
A Fourth Amendment search can be conducted without any physical
intrusion, U.S. v. Karo, 468 U.S. 705, 712-713(1984); Katz v. U.S., 389 U.S. 347,
353 (1967)[a listening device need not be placed within a telephone booth to
implicate the Fourth Amendment], the Supreme Court also held that capturing
thermal images of inside a person’s residence constitutes a search because all
aspects of information from a home are intimate details. Kyllo v. U.S., 533 U.S. 27,
38 (2001).
A cell phone is “a pervasive and insistent part of our daily life, Riley v.
California, 134 S. Ct. 2473, 2484 (2014), and conveys “far more than the most
exhaustive search of a house: A phone not only contains in digital information
from many sensitive records previously found in the home; it also contains a broad
array of private information never found in a home in any form….” Id. at 2491.
Comparing a cell phone to a rotary telephone is much like comparing a
laptop to a typewriter; Yes, a laptop can produce a letter on a piece of paper just as
a typewriter could, and yes, a modern day cell phone can make a call to another
8
person just as a rotary telephone could. But, a modern day cell phone and laptop
can do so much more than their 20th century predecessors. In Ford, the cell phone
conveyed what type of communication was occurring (automatic data, calls, or
texts) and what Mr. Ford did in response to those communications (not answering,
or checking messages at home, 3R14).
Thus, Justice Chapa’s dissent correctly distinguishes a 1970s pen register
from HCD. Justice Chapa states that, much like a cell phone is different from a
cigarette pack, you can’t tell what’s in it by touch, HCD is different from a pen
register, because HCD reveals so much more. It is, in fact, information within a
cell phone besides the mere numbers dialed.
Justice Chapa’ correctly analogized the search-incident-to-arrest doctrine in
Riley to the Third Party Doctrine: “Similar to the way that the search-incident-to-
arrest doctrine was ill suited to the digital data contained on cell phones seized
during an arrest, the third-party doctrine is ‘ill suited to the digital age, in which
people reveal a great deal of information about themselves to third parties in the
course of carrying out mundane tasks.’” Ford v. State, 444 S.W.3d 171, 202 (Tex.
App.—San Antonio 2014)(quoting U.S. v. Jones, 132 S. Ct. 945 (2012)
(Sotomayor, J. concurring).
9
The majority, leapt to the conclusion that because Ford voluntarily used
AT&T, all information communicated to his provider and stored was voluntarily
revealed and were not entitled any expectation of privacy. Ford, at 190.
Since none of the HCD was voluntarily conveyed, here, it is distinguishable
from United States v. Miller, 425 U.S. 435 (1976)[bank deposits] and Smith v.
Maryland, 442 U.S. 735 (1979)[number dialed on rotary phone]. See Riley, 134
S.Ct 2473 [cell phones “display data stored on remote servers rather than on the
device itself”].
In Jones, supra, the Court recognized a reasonable expectation of privacy
in digtal data obtained without a trespass. Justice Scalia stated that this may be “an
unconstitutional invasion of privacy….” Jones, at 954. Justice Sotomayor noted,
concurring, that, Justices Altio, Ginsburg and Bryer, said such searches will shape
the evolution of societal privacy expectations. And that short-term monitoring
implicated privacy because cheap data collection evades the ordinary checks that
constrain law enforcement practices. Id. at 955-56.
Cell phones continually and automatically connect with towers, identifying
the equipment, its electronic identification number, the location of the phone, the
type of communication and what, if any, was Ford’s response. All of this occurs
unbeknownst to the user “while the cell phone is turned on regardless of whether a
call is being placed.” Tracy v. Florida, 152 So. 3d 504, 507 n.1 (Florida 2014).
10
See also SX11 data is not the same as “the invoice received by the subscriber” and
is information “not for use or disclosure.”
The Fourth Amendment must advance with technology. Coolidge v. New
Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). And jurists must
“proceed with care when considering … privacy expectations in” electronic
communication devices.4
The States’ witness testified HCD was “private” and “everybody has a
reasonable expectation of privacy.” 8R100-101. HCD note a number dialed and
convey voicemail, texts and internet. 8R108-109.
Here, we are not dealing with a vehicle on a public road. This was
information collected from inside Ford’s home, information about data downloads
and whether he responded to texts and calls. Like the presence of the beeper in
Karo’s home, United States v. Karo, 458 U.S. 705, 710, 104 S. Ct. 3296, 82
L. Ed. 2d 530 (1984), the HCD revealed Ford’s presence, his pedestrian movements
through a neighborhood, and checking voicemail at home.
Further, Richardson v. State5 demands a warrant for information from Third-
Party Records. Richardson held that using a pen register constitutes a “search”
4
City of Ontario v. Quon, 130 S. Ct. 2619, 2629 (2010).
5
Richardson v. State, 865 S.W.2d 944 (Tex. Crim. App. 1993).
11
under Article I, § 9 of the Texas Constitution.6 Seven other states rejected Smith v.
Maryland. See Richardson, , at 950-951[“the user has no practical alternative but
to forego the use of the telephone all together.”].
Further, Richardson consisted of voluntary activities while, here, there are
passive activities.7 But the Court affirmed Ford’s conviction despite the
inapplicability of the third party record doctrine. Ford’s HCD should be afforded
an expectation of privacy that society regards as reasonable. The warrantless
search sustained on the anachronistic third party record doctrine should be held
unconstitutional and his conviction reversed.
Ground III.
The Court determines whether evidence is sufficient by reviewing it in the
light most favorable to the verdict to determine whether a rational juror could have
found the essential elements beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893
(Tex. Crim. App. 2010). The rational juror is not permitted to draw conclusions
based on speculation. Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007).
Speculation may not seem entirely unreasonable, "but it is not sufficiently based on
6
See Id. at 953 (vacating and remanding to the court of appeals to decide if the search was
“‘unreasonable’ in the absence of probable cause.”
7
Richardson at 953.
12
facts or evidence to support a conviction beyond a reasonable doubt." Gross v.
State, 380 S.W.3d 181, 188 (Tex. Crim. App. 2012).
Ford’s conviction was based on speculated weapons, time of death, Ford
killing DE’s dog, climbing an 8 foot wall, running to Olmos Dam, and return to
DE’s condo twice [to fit the HCD]. 9R168, 196; 14R150–51; 18R21.
The majority opinion stated that: “Such ‘speculation’ is a proper use of
circumstantial evidence and a question of fact for the jury to resolve.” Ford, at
195. However, “[J]uries are not permitted to come to conclusions based on mere
speculation or factually unsupported inferences or presumptions.” Hooper v. State,
214 S.W.3d 9, 15 (Tex. Crim. App. 2007).
This is precisely why, a power cord and three hole punch purchased three
years after DE died, and that had none of the characteristics of the injuries was not
proper to sustain the conviction. The injury to DE’s head, was an “arced abrasion.”
CR390. The three-hole punch had linear edges. The cord [SX66] does not have
the “[f]abric or some pattern to whatever the ligature was,” described as: “slightly
irregular, possibly patterned inferior margin.” 14R178, CR390, SX120.
The speculation regarding Ford’s imagined race to the Dam to dispose of a
dog. The State said that it could provide no explanation for how Ford did this.
18R21, 79.
13
“Additionally, testimony that is based solely on speculation and conjecture
necessarily lacks probative value, and therefore fails to meet the relevancy
requirement of the rules of evidence.” Madrigal v. State, 347 S.W.3d 809, 813
(Tex. App.-Corpus Christi 2011, pet. ref’d.)( This is why the power cord, garrote
and other speculation was not proper evidence to consider in deciding whether to
sustain the conviction.
Conclusion and Prayer
For the above reasons, this Honorable Court should find that the State was required
to obtain a search warrant for the HCD and that Ford’s conviction cannot be
sustained upon this illegally obtained evidence or upon the speculation permitted
by the Court of Appeals.
Respectfully Submitted:
____/s/Cynthia E. Orr_____________
Cynthia E. Orr
Bar No. 15313350
GOLDSTEIN, GOLDSTEIN & HILLEY
310 S. St. Mary’s St.
29th Floor Tower Life Bldg.
San Antonio, Texas 78205
210-226-1463
210-226-8367 facsimile
whitecollarlaw@gmail.com
Attorney for Petitioner,
JON THOMAS FORD
14
CERTIFICATE OF COMPLIANCE
I hereby certify that this document complies with the typeface requirements of
Tex. R. App. P. 9.4(e) because it has been prepared in a conventional typeface no
smaller than 14-point for text and 12-point for footnotes. This document does
comply with the word-count limitations of Tex. R. App. P. 9.4(i)(3) because it
contains 3,723 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).
By:__/s/ Cynthia E. Orr______
CYNTHIA E. ORR
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the above Petitioner’s Petition for
Discretionary Review has been sent via E-file.Texas.gov, as registered participants,
on this the 23rd day of March, 2015 to the following:
Nicolas LaHood
District Attorney
Jay Brandon
Assistant District Attorney
Paul Elizondo Tower
101 West Nueva, Fourth Floor
San Antonio, Texas 78205
E-mail: jay.brandon@bexar.org,
____/s/Cynthia E. Orr_____________
Cynthia E. Orr
15
APPENDIX
444 S.W.3d 171, *; 2014 Tex. App. LEXIS 9159, **
Jon Thomas FORD, Appellant v. The STATE of Texas, Appellee
No. 04-12-00317-CR
COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO
444 S.W.3d 171; 2014 Tex. App. LEXIS 9159
August 20, 2014, Delivered
August 20, 2014, Filed
NOTICE: PUBLISH
SUBSEQUENT HISTORY: Petition for discretionary review granted by In re Ford, 2015 Tex. Crim. App.
LEXIS 77 (Tex. Crim. App., Feb. 4, 2015)
PRIOR HISTORY: [**1] From the 186th Judicial District Court, Bexar County, Texas. Trial Court No.
2010CR7741. Honorable Maria Teresa Herr, Judge Presiding.
DISPOSITION: AFFIRMED.
CASE SUMMARY:
OVERVIEW: HOLDINGS: [1]-A rational jury could have found defendant guilty of murder, in
violation of Tex. Penal Code Ann. § 19.02(b)(1) (2011), because witnesses testified that his car was
not at home when it should have been, cell phone records proved he was in the vicinity of the
victim's condominium at times relevant to her murder, and DNA evidence linked him to the towel
covering the victim's face; [2]-The trial court did not err under Tex. Code Crim. Proc. Ann. art.
40.001 (2006) in denying defendant's motion for a new trial based on newly discovered evidence
because evidence underlying potential "new" experts was not newly discovered; [3]-The trial court
did not err under Tex. Code Crim. Proc. Ann. art. 36.28 in responding to the jury's note regarding
the testimony of an expert because the testimony read back by the trial court included the expert's
answer to the specific question.
OUTCOME: Judgment affirmed.
CORE TERMS: cell, phone, murder, tower, site, cord, overrule, new trial, condominium complex,
juror, cellular, provider, opening statements, missing, jury argument, circumstantial, admissible,
reasonable expectation of privacy, probable cause, next contends, detective's, suppress, exiting,
abused, search warrant, continuance, towel, burden of proof, acquisition, disclosure
LEXISNEXIS(R) HEADNOTES
Criminal Law & Procedure > Juries & Jurors > Province of Court & Jury > Credibility of Witnesses
Criminal Law & Procedure > Juries & Jurors > Province of Court & Jury > Weight of the Evidence
Criminal Law & Procedure > Appeals > Standards of Review > Substantial Evidence > Sufficiency of
Evidence
Evidence > Procedural Considerations > Burdens of Proof > Proof Beyond Reasonable Doubt
Evidence > Relevance > Circumstantial & Direct Evidence
HN1 When reviewing the sufficiency of the evidence in a criminal case, an appellate court
applies the legal sufficiency standard as set out in Jackson. Applying the Jackson standard,
the appellate court views the evidence in the light most favorable to the verdict and
determines whether any rational trier of fact could have found the essential elements of
the offense beyond a reasonable doubt. The appellate court is permitted to consider all of
the evidence in the record, whether admissible or inadmissible, when making its sufficiency
determination. In circumstances where the record supports conflicting inferences, the
appellate court must presume the factfinder resolved any conflicts in favor of the verdict
and defer to that determination. This presumption includes conflicting inferences from
circumstantial evidence. Further, the appellate court may not re-evaluate the weight and
credibility of the evidence nor may it substitute our judgment for that of the factfinder.
Evidence > Relevance > Circumstantial & Direct Evidence
Criminal Law & Procedure > Criminal Offenses > Homicide > Murder > General Overview
HN2 In Texas, a person commits the offense of murder if he intentionally or knowingly causes
the death of an individual. Tex. Penal Code Ann. § 19.02(b)(1) (2011). Even for an offense
as serious as murder, circumstantial evidence is as probative as direct evidence in
establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to
establish guilt. In cases where the available evidence is circumstantial in nature, it is not
necessary that every fact and circumstance point directly and independently to the
defendant's guilt; it is enough if the conclusion is warranted by the combined and
cumulative force of all the incriminating circumstances.
Criminal Law & Procedure > Appeals > Standards of Review > Deferential Review > General
Overview
HN3 In the event of an evidentiary conflict, an appellate court must presume the jury resolved
the matter in favor of the verdict and defer to that resolution.
Criminal Law & Procedure > Appeals > Standards of Review > Abuse of Discretion > New Trial
Criminal Law & Procedure > Postconviction Proceedings > Motions for New Trial
HN4 An appellate court reviews a trial court's ruling on a motion for a new trial for an abuse of
discretion. The appellate court views the evidence in the light most favorable to the trial
court's ruling and upholds the trial court's ruling if it was within the zone of reasonable
disagreement. The appellate court may not substitute its judgment for the trial court's;
rather, it is limited to deciding whether the trial court's ruling was arbitrary or
unreasonable. Therefore, denying a motion for new trial is an abuse of discretion only
when no reasonable view of the record could support the trial court's ruling.
Criminal Law & Procedure > Postconviction Proceedings > Motions for New Trial
HN5 Under the Texas Code of Criminal Procedure, a new trial shall be granted an accused where
material evidence favorable to the accused has been discovered since trial. Tex. Code Crim.
Proc. Ann. art. 40.001 (2006). The Texas Court of Criminal Appeals interprets this
provision to require the satisfaction of the following four-part test: 1) The newly discovered
evidence was unknown or unavailable to the movant at the time of his trial; 2) The
movant's failure to discover or obtain the evidence was not due to a lack of diligence; 3)
The new evidence is admissible and is not merely cumulative, corroborative, collateral, or
impeaching; and 4) The new evidence is probably true and will probably bring about a
different result on another trial. Reaching new and different opinions from the same
foundational evidence does not render the evidence newly discovered, even if those new
opinions may be material.
Criminal Law & Procedure > Postconviction Proceedings > Motions for New Trial
Criminal Law & Procedure > Juries & Jurors > Voir Dire > Questions to Venire Panel
HN6 Generally, when a partial, biased, or prejudiced juror is selected without fault or lack of
diligence on the part of defense counsel, who has acted in good faith upon the answers
given to him on voir dire not knowing them to be inaccurate, good ground exists for a new
trial. However, because written questions are by nature vulnerable to misinterpretation,
even questions that appear to be subject to only one interpretation, "diligent" counsel will
not rely on written questionnaires to supply any information that counsel deems material.
Counsel who does so otherwise is simply not diligent.
Criminal Law & Procedure > Juries & Jurors > Jury Questions to the Court > Appellate Review
Criminal Law & Procedure > Juries & Jurors > Jury Questions to the Court > Requests to Review
Evidence
Criminal Law & Procedure > Appeals > Standards of Review > Abuse of Discretion > General
Overview
HN7 Under Tex. Code Crim. Proc. Ann. art. 36.28, if a jury disagrees as to the statement of a
witness, they may apply to the court to have read to them from the court reporter's notes
that part of the witness's testimony in dispute. Tex. Code Crim. Proc. Ann. art. 36.28. An
appellate court should not disturb a trial judge's decision under art. 36.28 unless a clear
abuse of discretion, as well as harm, is shown. When the jury indicates a specific and
limited portion of testimony to be read, a trial court does not abuse its discretion by
providing only the requested information.
Criminal Law & Procedure > Juries & Jurors > Jury Questions to the Court > Requests to Review
Evidence
HN8 With regard to jury notes, a trial court must interpret the communication, decide what
sections of the testimony will best answer the inquiry, then limit the re-reading accordingly.
Criminal Law & Procedure > Pretrial Motions & Procedures > Suppression of Evidence
Criminal Law & Procedure > Appeals > Standards of Review > De Novo Review > Motions to
Suppress
Criminal Law & Procedure > Appeals > Standards of Review > Deferential Review > General
Overview
HN9 An appellate court reviews a trial court's ruling on a motion to suppress under a bifurcated
standard. The appellate court gives almost total deference to the trial court's determination
of facts, and reviews the trial court's application of the law de novo.
Criminal Law & Procedure > Search & Seizure > Electronic Eavesdropping > General Overview
HN10 Tex. Code Crim. Proc. Ann. art. 18.21, § 5(a) (Supp. 2013) states that a court shall issue
an order authorizing disclosure of 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.
Criminal Law & Procedure > Search & Seizure > Electronic Eavesdropping > Beepers & Pagers
Criminal Law & Procedure > Search & Seizure > Electronic Eavesdropping > Pen Registers & Trap-&-
Trace Devices
HN11 See Tex. Code Crim. Proc. Ann. art. 18.20, § 1(15).
Criminal Law & Procedure > Search & Seizure > Exclusionary Rule > Rule Application &
Interpretation
HN12 Tex. Code Crim. Proc. Ann. art. 38.23(a) (2005) states that no evidence obtained by an
officer or other person in violation of any provisions of the Constitution or laws of the
State of Texas shall be admitted in evidence against the accused on the trial of any
criminal case.
Criminal Law & Procedure > Search & Seizure > Electronic Eavesdropping > Warrants
HN13 18 U.S.C.S. § 2703(d) requires a government entity seeking a court order to offer specific
and articulable facts showing that there are reasonable grounds to believe that the
contents of a wire or electronic communication, or the records or other information
sought, are relevant and material an ongoing criminal investigation.
Criminal Law & Procedure > Appeals > Standards of Review > De Novo Review > General Overview
HN14 An appellate court reviews a constitutional issue under a de novo standard of review.
Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > Scope of Protection
Criminal Law & Procedure > Search & Seizure > Expectation of Privacy
HN15 If an individual knowingly exposes his activities to third parties, he surrenders protections
under the Fourth Amendment to the United States Constitution, U.S. Const. amend. IV,
and, if the government is subsequently called upon to investigate his activities for
possible violations of the law, it is free to seek out these third parties, to inspect their
records, and to probe their recollections for evidence. Furthermore, the fortuity of
whether or not the third party, acting at its own discretion, chooses to store the
information makes no constitutional difference. Essentially, once an individual voluntarily
exposes information to a third party, it can be used for any purpose, such as conveying it
to law enforcement authorities.
Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > Scope of Protection
HN16 Like the Fourth Amendment to the United States Constitution, U.S. Const. amend. IV, the
Texas Constitution provides that the people shall be secure in their persons, houses,
papers, and possessions, from all unreasonable seizures or searches. Tex. Const. art. I, §
9.
Criminal Law & Procedure > Appeals > Procedures > Briefs
HN17 A conclusory statement in an appellate brief supported by neither argument nor authority
presents nothing for review.
Criminal Law & Procedure > Search & Seizure > Search Warrants > Affirmations & Oaths >
Sufficiency Challenges
Criminal Law & Procedure > Search & Seizure > Search Warrants > Probable Cause > General
Overview
Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > Scope of Protection
HN18 Where a defendant makes a substantial preliminary showing that a false statement
knowingly and intentionally, or with reckless disregard for the truth, was included by an
affiant in a warrant affidavit, and if the allegedly false statement is necessary to the
finding of probable cause, the Fourth Amendment to the United States Constitution, U.S.
Const. amend. IV, requires that a hearing be held at the defendant's request. The first
prong of the Franks holding requires a defendant to allege a deliberate falsehood, or the
affiant's reckless disregard for the truth, and specifically point out that portion of the
affidavit alleged to be false. The second prong of Franks requires a defendant to
accompany her allegations of falsity with either an offer of proof, affidavit, or otherwise
reliable witness statement, unless the absence of such support is satisfactorily explained.
The third and final prong of Franks requires a defendant to prove that if the deliberately
false sections of the affidavit are removed, the remainder of the "four corners" of the
affidavit no longer presents probable cause to search a particular location.
Criminal Law & Procedure > Search & Seizure > Search Warrants > Probable Cause > Totality of
Circumstances Test
Criminal Law & Procedure > Appeals > Standards of Review > Deferential Review > Probable Cause
Determinations
HN19 Probable cause for a search warrant exists when, viewed under the totality of the
circumstances, there is a fair probability that evidence of a crime will be found at the
specified location. This is a flexible and non-demanding standard. Where a magistrate
found probable cause, an appellate court applies a highly deferential standard of review
due to the constitutional preference for searches to be conducted pursuant to a warrant
as opposed to a warrantless search. The appellate court will uphold the magistrate's
probable cause determination as long as the magistrate had a substantial basis for
concluding probable cause existed.
Criminal Law & Procedure > Appeals > Standards of Review > Abuse of Discretion > Evidence
Evidence > Procedural Considerations > Rulings on Evidence
HN20 An appellate court reviews a trial court's decision to admit or exclude evidence for an
abuse of discretion. An appellate court may hold a trial court abused its discretion only if
its decision falls outside the zone of reasonable disagreement.
Criminal Law & Procedure > Appeals > Reviewability > Preservation for Review > Requirements
Criminal Law & Procedure > Appeals > Reviewability > Preservation for Review > Evidence
Criminal Law & Procedure > Appeals > Reviewability > Waiver > Waiver Triggers Generally
Criminal Law & Procedure > Appeals > Reviewability > Waiver > Admission of Evidence
HN21 An appellant affirmatively waives their right to have a trial judge determine the
admissibility of evidence when they state "no objection" to the offered evidence. A party
is not excused from the procedural requirement to object at trial to the admission of
evidence even if the error involves a constitutional right. An appellant who did not object
to the admission of evidence at trial waives any claim on appeal that the trial erred in
admitting that evidence. Tex. R. App. P. 33.1.
Evidence > Relevance > Relevant Evidence
HN22 Under the Texas Rules of Evidence, all relevant evidence is admissible, except as provided
otherwise by constitution, statute, or other rules of evidence. Tex. R. Evid. 402.
Criminal Law & Procedure > Trials > Opening Statements
HN23 During a criminal proceeding, the State has the statutory right to state to the jury the
nature of the accusations against the defendant and the facts which are expected to be
proved by the State in support thereof. Tex. Code Crim. Proc. Ann. art. 36.01(a)(3).
Criminal Law & Procedure > Trials > Motions for Mistrial
Criminal Law & Procedure > Trials > Closing Arguments > General Overview
Criminal Law & Procedure > Appeals > Standards of Review > Abuse of Discretion > Mistrial
HN24 Only in extreme circumstances of incurable prejudice will mistrial be required. In
evaluating whether a trial court abused its discretion by denying a mistrial for improper
argument, an appellate court applies and balances the following three factors: (1) the
severity of the misconduct; (2) the measures adopted to cure the misconduct; and (3)
the certainty of conviction absent the misconduct.
Criminal Law & Procedure > Jury Instructions > Curative Instructions
Criminal Law & Procedure > Trials > Closing Arguments > General Overview
HN25 Usually, an instruction to disregard an argument will cure any error caused by the
improper argument.
Criminal Law & Procedure > Trials > Closing Arguments > General Overview
Criminal Law & Procedure > Appeals > Reversible Errors > Prosecutorial Misconduct
Criminal Law & Procedure > Appeals > Prosecutorial Misconduct > Tests
HN26 Proper jury argument falls generally within one of four areas: (1) summation of the
evidence; (2) reasonable deduction from the evidence; (3) answer to argument made by
opposing counsel; and (4) a plea for law enforcement. Error exists when an argument
presents facts not supported by the record to the jury, but the error is not reversible
unless, in light of the entire record, the argument is extreme or manifestly improper.
Criminal Law & Procedure > Trials > Closing Arguments > Defendant's Failure to Testify
Criminal Law & Procedure > Appeals > Reviewability > Waiver > Waiver Triggers Generally
Criminal Law & Procedure > Appeals > Reviewability > Waiver > Prosecutorial Misconduct
Criminal Law & Procedure > Appeals > Reviewability > Preservation for Review > Prosecutorial
Misconduct
HN27 The State's comment on a defendant's failure to testify violates the defendant's state and
federal constitutional privileges against self-incrimination. However, a defendant's failure
to object to a jury argument or failure to pursue an adverse ruling to an objection to a
jury argument forfeits the defendant's right to complain about the argument on appeal.
Criminal Law & Procedure > Trials > Continuances
Criminal Law & Procedure > Pretrial Motions & Procedures > Continuances
Criminal Law & Procedure > Appeals > Reviewability > Preservation for Review > Requirements
HN28 The Texas Code of Criminal Procedure allows a continuance in a criminal action only upon
the written motion of the State or of the defendant setting forth sufficient cause. Tex.
Code Crim. Proc. Ann. art. 29.03. The Texas Court of Criminal Appeals explicitly refuses to
recognize a due process exception to the rule requiring motions for continuances to be
written and sworn in order to be preserved on appeal.
Criminal Law & Procedure > Discovery & Inspection > Discovery by Defendant > General Overview
Criminal Law & Procedure > Discovery & Inspection > Brady Materials > Duty of Disclosure
HN29 See Tex. Code Crim. Proc. Ann. art. 39.14(a) (2009).
Criminal Law & Procedure > Defenses > Burdens of Proof
HN30 When a defendant seeks to introduce evidence of an "alternate perpetrator," he must
establish a sufficient nexus between that person and the crime. It is not sufficient for a
defendant to merely proffer "unsupported speculation" that another person may have
committed the crime. Specifically, when the evidence does not point to a particular
individual as being responsible for the crime, the proffered evidence amounts to no more
than mere speculation that another person may have committed the crime.
COUNSEL: For APPELLANT: Cynthia Hujar Orr, San Antonio, TX.
For APPELLEE: Jay Brandon, Assistant District Attorney, San Antonio, TX.
JUDGES: Opinion by: Marialyn Barnard, Justice. Dissenting Opinion by: Luz Elena D. Chapa, Justice.
Sitting: Catherine Stone, Chief Justice, Marialyn Barnard, Justice, Luz Elena D. Chapa, Justice.
OPINION BY: Marialyn Barnard
OPINION
[*176] AFFIRMED
A jury found appellant Jon Thomas Ford guilty of the offense of murder. Based on the jury's
recommendation, the trial court sentenced him to forty years' imprisonment. Ford raises eighteen
points of error on appeal, asking this court to reverse his convictions. We affirm the trial court's
judgment.
BACKGROUND
On December 31, 2008, Dana Clair Edwards attended a New Year's Eve party with her friends Melissa
Federspill and Alan Tarver at the home of a mutual friend. Edwards's ex-boyfriend, Jon Thomas Ford,
and other guests also attended the party. Edwards left the party after midnight and was seen walking
her dog by a neighbor between 12:30 a.m. and 1:00 a.m. on January 1, 2009. Edwards's body was
later discovered by her [**2] parents in the early hours of January 2, 2009. She was found lying face
down on her bathroom floor with a white, blood-soaked towel covering her head. Although the autopsy
revealed lacerations and blunt force trauma to her head, the cause of death was determined to be
strangulation by ligature sometime between the early morning hours and noon of January 1, 2009.
After an investigation, Ford was arrested and charged with murdering Edwards.
Although Ford was at the same New Year's Eve party as Edwards, he did not stay until midnight to
celebrate the new year. Ford left the party early because, according to testimony, he was offended by a
comment made by Federspill during a group card game regarding his and Tarver's resistance toward
marriage. According to Federspill, the subject of marriage "was one of the sticky spots for [Ford] and
[*177] Dana Clair" during their dating relationship. When Tarver asked later in the evening why Ford
left early, Ford responded by text message: "No longer fun."
According to Ford, he went straight home after the party and was asleep before midnight. The State
presented evidence suggesting this was not true. At trial, the State presented circumstantial evidence
linking [**3] Ford to the murder, including: (1) the testimony of Ford's and Edwards's mutual friends,
Federspill and Tarver, that Ford's SUV was not parked in his home's driveway after the New Year's Eve
party; (2) historical cell phone data reflecting activity on Ford's phone in the vicinity of Edwards's
condominium around the time of the murder; (3) pictures from a bank's ATM camera depicting a white
SUV similar to Ford's and an unidentified figure entering Edwards's condominium complex around the
time of the murder; and (4) Ford's DNA on the bloody towel covering Edwards's face.
After considering the evidence above, as well as other testimony and evidence presented at trial, the
jury found Ford guilty of the offense of murder. The trial court sentenced Ford to forty years'
confinement in the Institutional Division of the Texas Department of Criminal Justice. After the trial
court denied his motion for new trial, Ford perfected this appeal.
ANALYSIS
On appeal, Ford raises eighteen points of error, contending: (1) the evidence is legally insufficient to
support his murder conviction; (2) the trial court abused its discretion when it denied his motion for
new trial, which was based on insufficient [**4] evidence, newly discovered evidence, and the
selection of an allegedly partial juror; (3) the trial court improperly responded to a jury note
concerning the testimony of cell tower expert Kenneth Doll "regarding the possibility of a cell phone
connection between tower SX 3155 (Gallery Court) & the residence at 333 Rosemary Ave"; (4) the trial
court erred by failing to suppress historical cell phone records obtained from AT&T and used by the
State to suggest Ford's proximity to Edwards's residence at the time of her murder; (5) the affidavits
used to obtain the warrants to search Ford's home, vehicle, and obtain his DNA contained materially
false statements and omissions; (6) the trial court improperly admitted into evidence a metal three-
hole punch and cordless electric drill charge cord; (7) the State engaged in improper jury argument by
calling Ford a liar during opening statements, allegedly shifting the burden of proof during closing
argument, and commenting on Ford's failure to testify; (8) the trial court erroneously denied Ford's
oral request for a continuance during trial; (9) the trial court erred by denying Ford's motion for
independent examination of DNA evidence under Texas Code of Criminal Procedure article
39.14(a) [**5] ; and (10) the trial court erred by excluding "alternate perpetrator" evidence regarding
a break-in at Edwards's parent's ranch house the day before the murder.
Sufficiency of the Evidence
In his first point of error, Ford contends the evidence is insufficient to support his murder conviction.
HN1 When reviewing the sufficiency of the evidence in a criminal case, we apply the Supreme Court's
legal sufficiency standard as set out in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d
560 (1979). See Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Applying the Jackson
standard, we view the evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the essential elements of the offense beyond a [*178]
reasonable doubt. Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013) (citing Jackson,
443 U.S. at 319). We are permitted to consider all of the evidence in the record, whether admissible or
inadmissible, when making our sufficiency determination. Powell v. State, 194 S.W.3d 503, 507 (Tex.
Crim. App. 2006); Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); Green v. State, 893
S.W.2d 536, 540 (Tex. Crim. App. 1995) ("If the sufficiency of the evidence is challenged following a
jury trial, appellate courts consider all of the evidence presented whether properly or improperly
admitted."). In circumstances where the record supports conflicting inferences, we must presume the
factfinder resolved any conflicts in favor of the verdict and defer to that determination. Wise v. State,
364 S.W.3d 900, 903 (Tex. Crim. App.2012); see Jackson, 443 U.S. at 318. This presumption [**6]
includes conflicting inferences from circumstantial evidence. Mayberry v. State, 351 S.W.3d 507, 509
(Tex. App.—San Antonio 2011, pet. ref'd) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
App. 2007)). Further, we may not re-evaluate the weight and credibility of the evidence nor may we
substitute our judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim.
App. 2007).
As mentioned above, Ford was convicted of the offense of murder. HN2 In Texas, a person commits
the offense of murder if he intentionally or knowingly causes the death of an individual. TEX. PENAL CODE
ANN. § 19.02(b)(1) (West 2011). Even for an offense as serious as murder, "circumstantial evidence is
as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone
can be sufficient to establish guilt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). In
cases where the available evidence is circumstantial in nature, "it is not necessary that every fact and
circumstance 'point directly and independently to the defendant's guilt; it is enough if the conclusion is
warranted by the combined and cumulative force of all the incriminating circumstances.'" Temple v.
State, 390 S.W.3d 341, 359-60 (Tex. Crim. App. 1993) (quoting Johnson v. State, 871 S.W.2d 183,
186 (Tex. Crim. App. 1993)).
Here, the State relied upon circumstantial evidence to convict Ford. Specifically, the State relied upon
the testimony of Federspill and Tarver, cell phone records, ATM photographs, and DNA evidence to
rebut Ford's alibi and connect him to the murder.
According [**7] to the State's theory of the case, the chain of events that ultimately resulted in
Edwards's murder began when Ford became upset at the New Year's Eve party. While guests were
playing a card game at the party, Federspill made a comment to Ford and Tarver about their resistance
or reluctance with regard to "marriage." Ford did not appreciate the comment. According to Federspill,
Ford approached her after the comment, told her he did not appreciate it, and left the party shortly
thereafter. Additionally, after Tarver texted Ford at 11:31 p.m. about his abrupt departure from the
party, Ford responded, "No longer fun." Federspill explained that Edwards broke up with Ford because "
[Edwards] mentioned to me that she was unhappy in the relationship, looking for her life to progress
forward in terms of marriage and/or motherhood . . . She wanted to have kids and get married."
Despite Ford's claim that he went straight home and went to bed, both Tarver and Federspill testified
they did not see Ford's white Chevy Tahoe parked in his driveway after midnight. The pair drove to
Ford's home to deliver a cooler [*179] Ford left behind at the party. Although Ford was known to
occasionally park in a church [**8] parking lot directly behind his home, Tarver testified he was
"looking for it right there and I don't see it." Ford counters that Tarver did not see the Tahoe because it
was parked in a dark corner of the church parking lot instead of its normal place directly behind his
house. However plausible, we must presume the jury resolved this conflict in favor of the verdict and
defer to that determination. See Wise, 364 S.W.3d at 903.
After using the testimony of Tarver and Federspill to prove Ford was not at home around the time of
the murder as he claimed, the State turned to historical cell phone data obtained from Ford's cellular
provider, AT&T, to determine where he in fact was in the early hours of January 1, 2009. The
information revealed in the records includes: the date and time of a cellular device's usage; the type of
usage; the number calling and called during the usage; the duration of the usage; and the exact
location (latitude and longitude coordinates) of the tower that processed the usage of the cellular
device. According to the State's historical cell data expert Kenneth Doll, an employee of AT&T, this data
is collected even from passive activity on the cellular device — including letting a call [**9] go to
voicemail by not answering it — because even with passive activity:
[T]he device acknowledged — the device acknowledged to the network that, yes, here I
am, in this service area . . . If your phone rings, if the phone rings, it is in communication
with our network and it has set up a communication path with the site that it is best server
[sic] with.
(emphasis added). As a result of collecting a cellular device's active and passive activity, Doll testified
he is able to tell where a phone is located based upon the data gathered from cell towers. Regarding
this case specifically and the tower servicing the area in proximity to Edwards's condo — referred to as
"Gallery Court" at trial — Doll testified that "[i]f you were at the Gallery Court location and you had
activity on your cellular device, this would be the sector it would be on." Additionally, Doll stated it
would not have been possible for Ford's phone to show activity in the Gallery Court sector from his
home address "because you don't have line of sight to [the Gallery Court Tower] . . . [s]o your device
won't see that tower and that tower won't see your device."
At oral argument, Ford suggested Doll actually testified the tower reflected [**10] in the historical
record is the one closest to the phone placing the call, instead of Ford's phone that was receiving the
calls and text messages. In support of this argument, Ford directed the court to the record and our
decision in Wilson v. State where historical cell phone records were used to track the movements of a
murderer on the day of his crime. See 195 S.W.3d 193, 196 (Tex. App.—San Antonio 2006, no pet.).
The record, despite citation to it by Ford, does not support this assertion. Even if the record could be
construed as lending some passing support to the proposition advanced by Ford at oral argument, it
would conflict with other portions of Doll's testimony. HN3 In the event of an evidentiary conflict, we
must presume the jury resolved the matter in favor of the verdict and defer to that resolution. See id.
Further, our decision in Wilson does not support Ford's argument. In Wilson, we held the trial court did
not abuse its discretion by admitting the testimony of an expert regarding historical cell phone records
over a challenge to the expert's qualifications. 195 S.W.3d at 202. In short, Wilson, despite Ford's
contention at oral argument, is irrelevant here. See id. at 201-02.
[*180] Despite Ford's novel contentions at oral argument, the historical cell phone data, [**11] as
interpreted by the testimony of Doll at trial, supports the conclusion that Ford was not at his home on
the morning of the murder as he claimed. Rather, the historical cell data reveals two communications,
a missed call from Tarver at 11:45 p.m. and a text from Tarver at 1:19 a.m., both of which place Ford
in the service area of Edwards's condo on the morning of her murder. In addition to this historical cell
data placing Ford's phone, and presumably Ford himself, in close proximity to the crime scene at the
relevant times, the State also presented pictures from an ATM camera that appear to show Ford's
vehicle, and possibly Ford, entering Edwards's condominium complex.
Before introducing the recovered ATM camera photos, the State first admitted into evidence a photo of
Ford's white Chevy Tahoe. The photo shows Ford's 2004 white Chevy Tahoe had black roof rails, which
are generally used to tie down luggage, and a horizontal black stripe down the lower quarter of the
Tahoe's side. Although these identifying features are certainly not unique to Ford's vehicle, the features
are visible in the grainy ATM photographs and a reasonable juror could determine a vehicle similar to
Ford's is [**12] depicted.
Even though the vehicle in the ATM photos was never conclusively identified as belonging to Ford, the
State introduced ATM photos depicting a vehicle that is similar in appearance to Ford's white Chevy
Tahoe (i.e. exhibiting the roof rails and/or black horizontal stripe) entering and exiting Edwards's condo
complex around the time of the murder. In addition to photos of the vehicle, the State also introduced
photos depicting a figure — claimed by the State to be Ford based on the figure's clothing, which
allegedly matched what Ford wore that night — entering and exiting Edwards's condominium complex.
The photos were presented to the jury as follows:
1.) Vehicle entering Edwards's condominium complex from the north at 11:24 p.m. on
December 31, 2008.
2.) Vehicle exiting Edwards's condominium complex to the south at 11:26 p.m. on
December 31, 2008.
3.) Vehicle driving past Edwards's condominium complex from the south at 11:36 p.m. on
December 31, 2008.
4.) Vehicle entering Edwards's condominium complex from the north at 11:37 p.m. on
December 31, 2008.
5.) Vehicle exiting Edwards's condominium complex to the north at 11:39 p.m. on
December 31, 2008.
6.) Figure allegedly entering Edwards's [**13] condominium complex from the north at
11:42 p.m. on December 31, 2008.
7.) Vehicle believed to be Edwards's red Chevy Tahoe entering the complex from the north
at 12:47 a.m. on January 1, 2009.1
8.) Figure allegedly exiting Edwards's condominium complex to the north at 2:02 a.m. on
January 1, 2009.
9.) Vehicle passing Edwards's condominium complex heading south at 2:07 a.m. on
January 1, 2009.
10.) Vehicle entering Edwards's condominium complex from the south at 3:12 a.m. on
January 1, 2009. This photo only reveals the vehicle's back end and lit taillights. It does
not depict a vehicle possessing similar identifying characteristics to Ford's, i.e. the roof
rails and black side stripe are not visible.
11.) Vehicle exiting Edwards's condominium complex to the south at 3:16 [*181] a.m.
on January 1, 2009. Unlike the other photos, the vehicle exiting Edwards's complex does
not have its headlights on.
The State argued to the jury that this timeline of events, based on the ATM photos, is evidence of
Ford's activities on the night of Edwards's murder. Although Ford countered the State's timeline by
introducing ATM photographs of other SUVs driving past the entrance to Edwards's condominium
complex at times [**14] relevant to the case, we presume the jury resolved any of the conflicts in
favor of the verdict and must defer to that determination. See Wise, 364 S.W.3d at 903.
FOOTNOTES
1 The record reflects Edwards drove a red Chevy Tahoe.
The last piece of evidence the State used to link Ford to Edwards's murder was the identification of his
DNA on the white towel found covering her face at the murder scene. The State's forensic expert,
Robert Sailors, testified Ford was the source of human male DNA extracted from samples of the towel
removed from Edwards's face. Although Ford presented numerous attacks on the weight and credibility
of this evidence (e.g., Ford's DNA on the towel is unremarkable as a former boyfriend and guest of
Edwards's condo; the towel is contaminated evidence because Sailor's DNA was also identified on it),
we must once against presume the jury resolved any evidentiary conflicts in favor of the verdict and
defer to that determination. See Wise, 364 S.W.3d at 903.
Taken together, the State introduced evidence strongly suggesting Ford was not home at the time of
Edwards's murder as he said, but rather was at the scene of the crime. Specifically, the State used the
testimony of Federspill and Tarver to show Ford's car was not at home [**15] when it should have
been, cell phone records to prove he was in the vicinity of Edwards's condominium at times relevant to
her murder, ATM photos showing a vehicle similar to Ford's entering and exiting the condominium
complex around the time of the murder, and DNA evidence linking Ford with the towel covering
Edwards's face. Although Ford has diligently argued the evidence presented by the State is neither
perfect nor without conflict, our standard of review for the sufficiency of the evidence does not weigh
in Ford's favor because we must presume conflicts are resolved in favor of the verdict. See id.
Having reviewed the record in the light most favorable to the verdict, we hold the jury rationally could
have found Ford guilty of murder beyond a reasonable doubt. See Carrizales, 414 S.W.3d at 742. The
combined and cumulative force of the incriminating circumstances presented by the State point toward
Ford's guilt. See Temple, 390 S.W.3d at 359-60. Accordingly, we overrule Ford's first point of error.
Ford counters this conclusion by arguing there is a hole in the State's storyline that is supported by the
very cell phone evidence used to convict him, evidence that renders the circumstantial evidence
presented by the State insufficient. Ford [**16] points out the cell phone records indicate he was in
the proximity of Olmos Dam at 1:32 a.m. on the morning of Edwards's murder because his cell phone
recorded activity from a tower in that area. Those same cell records indicate that only 13 minutes
earlier, at 1:19 a.m., Ford was in the vicinity of Edwards's condo a few miles away. Problematically, the
ATM photos used by the State do not show Ford leaving in the same manner as the State alleges he
entered the complex, i.e., walking in the front entrance. The State had no explanation for this apparent
conflict and admitted as much during its closing: "[w]ill I ever be able to tell you precisely how the
Defendant got over the [Gallery Court] wall or why the Defendant got over the wall? No. No." However,
as stated [*182] above, we must presume the jury resolved this conflict in the evidence in favor of
the verdict and defer to that determination, as we have already done on other occasions. See Wise,
364 S.W.3d at 903.
In a further attack on the sufficiency of the evidence, Ford directs the court, for the first time in its
reply brief, to a Court of Criminal Appeals decision where the court reviewed a set of circumstantial
facts and determined that "[w]hile these facts together [**17] might create suspicion, . . . they do
not add up to probable cause that appellant committed the murders." Hankins v. State, 132 S.W.3d
380, 389 (Tex. Crim. App. 2004). Ford argues that if the Court of Criminal Appeals could not find
probable cause under the facts in Hankins, then this court would err to find the present facts sufficient
to support Ford's guilt. This argument is not persuasive as the Hankins case is completely
distinguishable. Hankins involved a determination of the existence of probable cause, a standard
inapplicable to the sufficiency review we apply here. Compare id. (determining existence of probable
cause), with Carrizales, 414 S.W.3d at 742 (setting out standard of review for sufficiency of evidence).
Motion for New Trial
In his second point of error, Ford contends the trial court abused its discretion when it denied his
motion for new trial. Specifically, Ford argues the trial court erred because: (1) the evidence was
insufficient to establish Ford's guilt; (2) newly discovered evidence regarding the historical cell phone
data and the ATM pictures tends to exculpate Ford; and (3) it was discovered that a juror allegedly lied
about his knowledge of cell towers on his juror selection form.
HN4 We review a trial court's ruling on a motion for new trial for [**18] an abuse of discretion.
Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). "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." Id. We may not substitute our judgment for the trial court's, rather we are
limited to deciding whether the trial court's ruling was arbitrary or unreasonable. Id. Therefore,
denying a motion for new trial is an abuse of discretion only when no reasonable view of the record
could support the trial court's ruling. Id.
Sufficient Evidence:
Ford first argues the trial court abused its discretion by denying his motion for new trial because the
evidence was insufficient to sustain his conviction. This argument is identical to Ford's first point of
error on appeal. As we held above, the evidence is sufficient to support Ford's conviction, and we
therefore overrule this portion of Ford's second point of error.
"New" Evidence:
Ford next argues he should have been given a new trial because of newly discovered evidence. HN5
Under the Texas Code of Criminal Procedure, "a new trial shall be granted an accused where material
evidence favorable to the accused has been discovered since trial." TEX. CODE CRIM. PROC. ANN. art.
40.001 (West 2006) (emphasis [**19] added). The Texas Court of Criminal Appeals has interpreted
this provision to require the satisfaction of the following four-part test:
1.) The newly discovered evidence was unknown or unavailable to the movant at the time
of his trial;
2.) The movant's failure to discover or obtain the evidence was not due to a lack of
diligence;
3.) The new evidence is admissible and is not merely cumulative, corroborative, collateral,
or impeaching; and,
[*183] 4.) The new evidence is probably true and will probably bring about a different
result on another trial.
Keeter v. State, 74 S.W.3d 31, 36-37 (Tex. Crim. App. 2002) (emphasis added).
Here, Ford contends he presented newly discovered, material evidence entitling him to a new trial. The
new evidence includes: (1) an expert to counter Doll's testimony as to whether historical cell tower
data can establish a phone's approximate location; and (2) an expert to testify that the figure seen in
the ATM photos entering the Gallery Court complex could not have been Ford because the figure was
too tall. The State counters Ford's claims by arguing this evidence is not actually "new." We agree.
The evidence underlying the potential "new" experts is not, in fact, newly discovered. Ford had access
to the historical cell data [**20] records from AT&T and the ATM images used by the State before the
start of trial. Reaching new and different opinions from the same foundational evidence does not
render the evidence newly discovered as required by Keeter, even if those new opinions may be
material. See id. Accordingly, we overrule this portion of Ford's second point of error.
Allegedly Impartial Juror:
Ford's final argument regarding his motion for new trial concerns juror number 66. According to Ford, a
court deputy overheard juror 66 admit after trial that he did in fact have experience and knowledge
about cell phone towers due to his training and experience with his job at H.E.B. Ford contends this
contradicted the juror's answer on the juror questionnaire. On the questionnaire, potential jurors were
asked whether they "had any experience, training or education in: criminal law, autopsies, DNA,
forensics, cell phone towers, [etc.]." (Emphasis added). Juror 66 answered "No."
Ford contends having juror 66 on the jury deprived him of a fair trial because juror 66 is biased
regarding the historical cell data relied upon by the State. HN6 Generally, "when a partial, biased, or
prejudiced juror is selected without fault or [**21] lack of diligence on the part of defense counsel,
who has acted in good faith upon the answers given to him on voir dire not knowing them to be
inaccurate, good ground exists for a new trial." Franklin v. State, 12 S.W.3d 473, 478 (Tex. Crim. App.
2000) (quoting Von January v. State, 576 S.W.2d 43, 45 (Tex. Crim. App. 1978)). However, because
"written questions are by nature vulnerable to misinterpretation — even questions that appear to be
subject to only one interpretation," the Court of Criminal Appeals has said "'diligent' counsel will not
rely on written questionnaires to supply any information that counsel deems material." Gonzales v.
State, 3 S.W.3d 915, 917 (Tex. Crim. App. 1999). "Counsel who does so otherwise is simply not
diligent." Id. (holding counsel was not diligent when he did not follow up on answers to written
questionnaire with more specific questioning during voir dire.).
Here, we have not located a single instance where Ford's trial counsel specifically questioned the venire
about cell phones or cell towers during voir dire. Therefore, we hold trial counsel was not diligent
during voir dire, see id., and Ford may not now claim he deserves a new trial because an allegedly
biased juror was selected without fault or lack of diligence on the part of his counsel. See Franklin, 12
S.W.3d at 478 (emphasis added). Accordingly, we overrule this portion of Ford's second point [**22]
of error.
Jury Note
Ford next contends the trial court erred by insufficiently responding to the following jury note at trial:
[*184] 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)
& the residence at 333 Rosemary Ave.
HN7 Under Texas Code of Criminal Procedure article 36.28, if the jury disagrees as to the statement of
a witness, they may apply to the court to have read to them from the court reporter's notes that part
of the witness's testimony in dispute. TEX. CODE CRIM. PROC. ANN. art. 36.28. This court should not disturb
a trial judge's decision under article 36.28 unless a clear abuse of discretion, as well as harm, is
shown. Howell v. State, 175 S.W.3d 786, 792 (Tex. Crim. App. 2005). When the jury indicates a
specific and limited portion of testimony to be read, a trial court does not abuse its discretion by
providing only the requested information. Robison v. State, 888 S.W.2d 473, 481 (Tex. Crim. App.
1994). Here, Ford contends the trial court improperly limited the amount of Doll's testimony read back
to the jury in response to its note.
In response to Ford's objection, the trial court clarified its decision before actually rereading Doll's
testimony to the jury, stating:
Well, in light of the way the question was phrased, it was fairly specific. And although I
understand that generally [**23] 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.
The trial court's reasoning appears in line with the Court of Criminal Appeals' directive HN8 regarding
jury notes: "the trial court must then interpret the communication, decide what sections of the
testimony will best answer the inquiry, then limit the re-reading accordingly." Brown v. State, 870
S.W.2d 53, 55 (Tex. Crim. App. 1994). After explaining its decision to Ford, the trial court proceeded to
read back Doll's testimony concerning the specific issue of whether Ford's phone could connect with
the Gallery Court tower from his home on 333 Rosemary Ave. The testimony included cross
examination by Ford's counsel regarding, among other things, the cell tower technology available at
the time in question, as well as Doll's "line of sight" rationale for why the connection with Gallery Court
was impossible.
Ford contends the trial court's rereading was insufficient because it excluded the following testimony
that arguably [**24] impeaches Doll's response to the specific question regarding the Gallery Court
tower:
Q: 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.
...
Q: Okay. Let's put that together. So even though the records show a cell tower and a
sector to the cell tower, that does not mean beyond all doubt that the cell device was in
that sector, does it?
A: There are cases where you can set up a call on a cell site that is not the closest cell site
to you, or you could potentially even set up a cell — a call on a cell site across town, but
those are very [*185] rare and I would say that they're — there — there's a lot of
variables in there.
Although this testimony does seem to impeach Doll's testimony regarding the possibility of a cell phone
connection between the Gallery Court tower and Ford's residence, we hold the excluded cross
examination above is not responsive to the jury's specific inquiry. The jury [**25] asked specifically
about the possibility of a "cell phone connection between tower SX 3155 (Gallery Court) & the
residence at 333 Rosemary Ave.," and the testimony read back by the trial court included Doll's answer
to that specific question, i.e., it is impossible because the tower did not have line of sight with the
residence. The testimony proffered by Ford addresses the issue as a broad general principle and not as
a response to the jury's specific question. Accordingly, we hold the trial court did not clearly abuse its
discretion in responding to the jury's note as it did. See Howell, 175 S.W.3d at 792.
Historical Cell Phone Data — Location Information
Across six points of error, Ford argues the State improperly acquired and used historical cell phone
data collected by AT&T to connect him to Edwards's murder. AT&T's records regarding Ford's cell phone
were acquired by the State pursuant to a court order under Texas Code of Criminal Procedure article
18.21, not by search warrant. See TEX. CODE CRIM. PROC. ANN. art. 18.21, Sec. 5(a) (West Supp. 2013).
Ford contends this action by the State was improper and violated his rights because: (1) the State
obtained the historical cell phone records in violation of Texas Code of Criminal Procedure article 18.21;
(2) the State violated Texas Code of Criminal Procedure article 38.23; (3) the State violated Article I,
section 9 of the Texas Constitution; (4) the State violated 18 U.S.C. § 2703; (5) the State
violated [**26] the Fourth Amendment's prohibition against unreasonable searches and seizures; and
(6) the State violated the First Amendment's protection regarding the right to freely associate.
At trial, Ford contested the admissibility of the cell phone records with a motion to suppress, which the
court denied. HN9 We review a trial court's ruling on a motion to suppress under a bifurcated
standard. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007); Guzman v. State, 955
S.W.2d 85, 88-89 (Tex. Crim. App. 1997). We give almost total deference to the trial court's
determination of facts, and review the trial court's application of the law de novo. See State v.
Mendoza, 365 S.W.3d 666, 669 (Tex. Crim. App. 2012); Carmouche v. State, 10 S.W.3d 323, 328 (Tex.
Crim. App. 2000). Here, both Ford and the State agree the trial court rendered a legal ruling affecting
Ford's constitutional rights, and therefore this court should apply a de novo standard of review. See
Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006). We agree.
Ford has made two types of challenges to the historical cell site data obtained and used by the State.
First, Ford challenges the acquisition of the data based on statutory law concerning court orders to
obtain such data. Second, Ford challenges the acquisition of the data without a search warrant, even if
the acquisition is authorized by statute without a warrant.
Statutory Arguments
Ford raises three statutory arguments with regard to the manner in which the State obtained historical
records of his [**27] cell phone use from AT&T contending: (1) the applications did not comply with
Texas Code of Criminal Procedure article 18.21; (2) the applications violated Texas Code of Criminal
Procedure article 38.23; and (3) [*186] the applications were insufficient under 18 U.S.C. § 2703.
Texas Code of Criminal Procedure Article 18.21
Ford contends the State improperly obtained his historical cell phone records from AT&T by obtaining a
court order pursuant to article 18.21, section 5(a) of the Texas Code of Criminal Procedure. HN10
Section 5(a) states "[a] court shall issue an order authorizing disclosure of . . . 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." TEX. CODE CRIM. PROC. ANN. art. 18.21, Sec. 5(a) (emphasis added). Here, Ford argues the
information requested by the State was not a "wire or electronic communication" encompassed by the
statute. This argument does not comport with his article 18.21 based argument made before the trial
court.
At trial, Ford argued that the assistant district attorney who signed the application was not the
"prosecutor" authorized to file the application under article 18.21(2)(b). See TEX. CODE CRIM. PROC. ANN.
art. 18.21(2)(b) ("A prosecutor may file . . ."). Ford contended the term "prosecutor" referred only to
the actual district attorney herself, an argument rejected by the trial court. Because this article 18.21
argument does not comport with Ford's [**28] complaint on appeal, we hold Ford did not preserve
this point of error, and his current argument cannot be raised for the first time on appeal. See, e.g.,
Reynolds v. State, 423 S.W.3d 377, 383 (Tex. Crim. App. 2014). However, even if Ford had properly
preserved his present argument for our review, it still fails.
Article 18.20 defines "electronic communication" for the purposes of the order as HN11 "a transfer of
signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in
part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system." TEX. CODE CRIM. PROC.
ANN. art. 18.20, Sec. 1(15). We hold the information collected by the State in this case is AT&T's
records of the transfer of signs, signals, and data from Ford's cellular phone serviced by AT&T and falls
within the definition of an "electronic communication" subject to disclosure via court order. See id. Ford
attempts to distinguish the information obtained by the State as "cellular site information" concerning
connection and location data that is not "intelligence of any nature" referenced by article 18.20,
Section 1(15); however, this argument is without merit because it ignores the full scope and definition
of "electronic communication" set out above. Accordingly, we overrule this complaint and hold the
records acquired [**29] from AT&T were obtained pursuant to a proper order under article 18.21.
See id.
Texas Code of Criminal Procedure Article 38.23
Ford next contends the State's applications to obtain historical cell site data from AT&T violate Texas
Code of Criminal Procedure article 38.23. HN12 Article 38.23(a) states that "no evidence obtained by
an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas
. . . shall be admitted in evidence against the accused on the trial of any criminal case." TEX. CODE CRIM.
PROC. ANN. art. 38.23(a) (West 2005). According to Ford, because the State's applications were not
authorized by article 18.21, the use of the evidence against him violates article 38.23. However, as we
held above, the records from AT&T do not violate article 18.21. Therefore, article 38.23 cannot serve
as a basis to exclude the evidence used against Ford.
[*187] Required Disclosure of Customer Records under 18 U.S.C. § 2703
Ford next contends the State's applications were inadequate under federal law, which requires the
government to show the existence of an ongoing investigation to obtain the court order. See 18 U.S.C.
§ 2703 (2009) ("A court order for disclosure under subsection (b) or (c) may be issued [if] . . . the
records or other information sought, are relevant and material to an ongoing criminal investigation.").
Ford contends the applications are deficient because the State needed to illustrate an [**30] ongoing
investigation but they "do not use this language." There are two problems with Ford's appellate
argument.
First, Ford did not make this argument in either his written motion to suppress or during the hearing
on the motion. The closest Ford came to making this argument before the trial court is when he argued
during the hearing that obtaining the cell data "must be done with a warrant . . . [b]oth the State and
federal statutes say that." Accordingly, we hold Ford did not preserve this ground for our review. See
TEX. R. APP. P. 33.1. However, even if Ford did preserve his argument under section 2703, it fails on the
merits.
HN13 Section 2703 requires the government entity seeking the court order to offer "specific and
articulable facts showing that there are reasonable grounds to believe that the contents of a wire or
electronic communication, or the records or other information sought, are relevant and material an
ongoing criminal investigation." 18 U.S.C. § 2703(d). Both of the State's applications contain a
subsection "IV" that not only describes the information requested as "relevant to the investigation of a
criminal offense," but also sets out the self-described "supporting information/'specific and articulable
fact(s)'." This section includes [**31] information provided by investigating detective Leroy Carrion
explaining the background of the case against Ford and why the State needed his cellular records.
Having reviewed the State's applications, we hold they comply with the showing of an ongoing
investigation required by section 2703(d). See 18 U.S.C. § 2703(d).
Constitutional Arguments
Ford also contends, in addition to his statutory claims, that the State unconstitutionally obtained his
cellular records from AT&T without a search warrant. Specifically, Ford contends the State's warrantless
acquisition of the records from AT&T violated his constitutional rights under: (1) the Fourth
Amendment to the United States Constitution; (2) Article I, section nine of the Texas Constitution; and
(3) the First Amendment of the United States Constitution.
Fourth Amendment:
Ford contends the State's acquisition of his historical cell site records from AT&T without a search
warrant violated the Fourth Amendment's prohibition against unlawful searches and seizures. See U.S.
CONST. amend. IV. Specifically, Ford relies on the Supreme Court's decision in U.S. v. Jones, 132 S. Ct.
945, 181 L. Ed. 2d 911 (2012), to argue individuals have a reasonable expectation of privacy "in our
technologically advanced tools that also reveal our locations." As discussed above, HN14 we review
this constitutional issue under a de novo standard of review. See Wall, 184 S.W.3d at 742.
In Jones, the police attached a Global-Positioning-System (GPS) tracking device to an
individual's [**32] vehicle without a valid warrant. Jones, 132 S. Ct. at 947. The police then used the
GPS device to track the vehicle's movement for the next twenty-eight days. Id. Applying a trespass
theory of Fourth Amendment protection, [*188] the Supreme Court held that attaching a GPS
tracking device to a vehicle without a warrant and using the device to record the vehicle's location was
an impermissible search under the Fourth Amendment. See id. at 949. However, the facts in this case
distinguish it and remove it from Jones's purview. Here, the State did not initially gather the
information sought to be suppressed. Rather, a third-party, AT&T, gathered and maintained the
information as business records of the service provided to Ford's phone. As the Fifth Circuit recognized
when addressing a similar Fourth Amendment issue, the "question of who is recording an individual's
information initially is key." In re U.S. for Historical Cell Site Data, 724 F.3d 600, 610 (5th Cir. 2013).
Relying on and concurring with the Fifth Circuit's analysis, the Fourteenth Court of Appeals recently
held a defendant's reasonable expectation of privacy under Katz v. United States, 389 U.S. 347, 88 S.
Ct. 507, 19 L. Ed. 2d 576 (1967) and its progeny was not violated when the State obtained cell tower
records from a third party without a warrant. See Barfield v. State, 416 S.W.3d 743, 749 (Tex. App.—
Houston [14th Dist.] 2013, no pet.). In Barfield, the State offered third-party cell tower records
obtained without a warrant to establish [**33] the defendant's whereabouts during times relevant to
the crime — just as the State did in this case. See id. at 745. According to the Fourteenth Court of
Appeals, this action did not violate the defendant's Fourth Amendment rights because HN15 if "an
individual knowingly exposes his activities to third parties, he surrenders Fourth Amendment
protections, and, if the Government is subsequently called upon to investigate his activities for possible
violations of the law, it is free to seek out these third parties, to inspect their records, and to probe
their recollections for evidence." Id. at 748 (quoting In re U.S. for Historical Cell Site Data, 724 F.3d at
610); Reporters Comm. For Freedom of Press v. Am. Tel. & Tel. Co., 593 F.2d 1030, 1043, 192 U.S.
App. D.C. 376 (D.C. Cir. 1978). Furthermore, the fortuity of whether or not the third party, acting at its
own discretion, chooses to store the information makes no constitutional difference. Barfield, 416
S.W.3d at 748 (citing In re U.S. for Historical Cell Site Data, 724 F.3d at 610); Smith v. Maryland, 442
U.S. 735, 745, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979)). Essentially, once an individual voluntarily
exposes information to a third party, it can be used for any purpose, such as conveying it to law
enforcement authorities. Barfield, 416 S.W.3d at 748 (citing In re U.S. for Historical Cell Site Data, 724
F.3d at 610); S.E.C. v. Jerry T. O'Brien, Inc., 467 U.S. 735, 743, 104 S. Ct. 2720, 81 L. Ed. 2d 615
(1984) ("[W]hen a person communicates information to a third party even on the understanding that
the communication is confidential, he cannot object if the third party conveys that information or
records thereof to law enforcement authorities.")); see also United States v. Miller, 425 U.S. 435, 443,
96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976).
Applying the precedent above, Ford cannot [**34] successfully complain about the State's
warrantless retrieval of the AT&T records. The cell site data acquired by the State is simply the
business records memorializing Ford's voluntary subscriber transaction with AT&T for the service he
wanted from his cellular provider all along, i.e. the ability to transmit and receive data on AT&T's
network of cell towers. See Barfield, 416 S.W.3d at 748. The fact that this data happens to reveal the
general location of Ford's cell phone, and presumably himself, at given points in historical time is of no
consequence to the legal analysis here. Accordingly, we overrule this issue and hold the State's actions
did [*189] not violate Ford's Fourth Amendment rights because he could not have a reasonable
expectation of privacy in information he voluntarily conveyed to a third party. See id. at 746-48.
Ford contends that this result, based on his supposed voluntary disclosure of information to a third
party, is improper. Specifically, Ford argues: (1) the Court of Criminal Appeals has rejected the legal
premise that a voluntary disclosure of information to a third party destroys a reasonable expectation of
privacy in said information; and (2) he did not voluntarily disclose his location information to his
service [**35] provider. We disagree.
One of the seminal Supreme Court cases for the legal analysis applied above is Smith v. Maryland. 442
U.S. 735, 745, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979). In Smith, the Supreme Court held the
petitioner had no Fourth Amendment, legitimate expectation of privacy in the pen register kept by his
phone provider because:
When he used his phone, petitioner voluntarily conveyed numerical information to the
telephone company and "exposed" that information to its equipment in the ordinary course
of business. In so doing, petitioner assumed the risk that the company would reveal to
police the numbers he dialed.
Id. at 744. The Court of Criminal Appeals has expressly stated Smith's proposition represents "an
erroneous belief" of voluntarily assumed risk defeating a reasonable expectation of privacy in dialed
phone numbers. Richardson v. State, 865 S.W.2d 944, 951-52 (Tex. Crim. App. 1993). Ford contends,
therefore, this court may not rely on the third-party doctrine applied in federal courts.
Unlike the Supreme Court's decision in Smith, the Richardson decision does not concern an individual's
protection under the Fourth Amendment; rather, the Court of Criminal Appeals was determining
whether the use of a pen register constitutes a "search" under Article I, section 9 of the Texas
Constitution. See Richardson, 865 S.W.2d at 953. After examining Smith, the court stated "society
recognizes as objectively reasonable the expectation [**36] of the telephone customer that the
numbers he dials as a necessary incident of his use of the telephone will not be published to the rest of
the world." Id. However, this proclamation is regarding the Texas Constitution, as opposed to the
Fourth Amendment of the United States Constitution that Ford is invoking here. Accordingly, we reject
Ford's argument.
In addition to his argument based on Richardson, Ford also attacks the third-party disclosure theory on
the ground that he did not voluntarily disclose his location information to AT&T, which cases like Smith
require for a forfeiture of protected privacy interests. See Smith, 442 U.S. at 743-44 (noting "[t]his
Court consistently has held that a person has no legitimate expectation of privacy in information he
voluntarily turns over to third parties" (emphasis added)). In support of this argument, Ford directs the
court to authority for the proposition that an individual placing or receiving a call on a cell phone has
not voluntarily exposed their location information. See United States v. Davis, 754 F.3d 1205, 2014 WL
2599917 at *10 (11th Cir. 2014); In re App. of the U.S. for an Order Directing a Provider of Elec.
Commc'n Serv. to Disclose Records to the Gov't., 620 F.3d 304, 317 (3d Cir. 2010); In re App. of the
U.S. for an Order Auth. the Release of Hist. Cell-Site Info., 809 F. Supp. 2d 113, 127 (E.D.N.Y. 2011).
The Fifth Circuit, responding to the same argument raised by the ACLU in U.S. for Historical Cell Site
Data, rejected Ford's position outright. See 724 F.3d at 612-13. [*190] We agree with the Fifth
Circuit's [**37] conclusion.
The Fifth Circuit emphasized that a cell phone user generally understands: (1) their cell phone must
send a signal to a nearby cell tower in order to wirelessly connect their call; (2) if their cell phone
cannot pick up a signal, they are out of range of their service provider's tower network; and (3) if too
many customers in the same area attempt to make calls at the same time, the call may not go through
because the network's local towers are overloaded with traffic. Id. at 613; Barfield, 416 S.W.3d at 748.
Accordingly, a cell phone user knows that in order to receive service the provider will have to know
which tower their phone is connecting to. In re U.S. for Historical Cell Site Data, 724 F.3d at 613;
Barfield, 416 S.W.3d at 748.
This information — AT&T's records of which towers Ford's phone connected with to receive cellular
service — was what the State used to determine his phone's approximate location at certain times on
the night Edwards was murdered. Ultimately, Ford voluntarily decided to obtain a cell phone, chose
AT&T as a service provider, and availed himself of the benefits of its network of cell towers. See
Barfield, 416 S.W.3d at 748-49. Accordingly, we overrule this issue and hold Ford voluntarily disclosed
the location of his cell phone through cell site data to a third party. See id.; In re U.S. for Historical Cell
Site Data, 724 F.3d at 614.
Admittedly, unlike [**38] the situation in the Fifth Circuit case, where the user data included
affirmative activity like placing calls, Ford's incriminating evidence was determined from records of
passive activity on his cell phone.2 However, this is a distinction without a functional difference. Ford
still voluntarily availed himself of AT&T's cellular service, which includes the ability to receive data sent
to a subscriber's phone, when he chose it as his provider.
FOOTNOTES
2 The records used by the State to pinpoint Ford's location on the night of Edwards's murder were
determined from records of passive activity on his phone, i.e. he was not placing a call when his
phone connected with the cell tower. Rather, the records relevant to the State's case, the 11:45
p.m. and 1:19 a.m. "pings" off of the Gallery Court tower, were from a missed call and text
message, respectively, from Tarver. None of Ford's active cell phone usage on the night in question,
e.g., his response text to Tarver at 11:33 p.m. or his checked voicemail at 2:30 a.m., is located in
the vicinity of the Gallery Court tower near Edwards's residence.
And finally, with regard to Ford's Fourth Amendment claims, we note he directed the court, after oral
argument, to the United [**39] States Supreme Court's recent decision in Riley v. California, U.S.
, 134 S. Ct. 2473, 189 L. Ed. 2d 430, 2014 WL 2864483 (2014). In Riley, the Court held that the
police must obtain a warrant before searching the contents of a cell phone seized incident to an arrest.
134 S. Ct. 2473, 189 L. Ed. 2d 430, Id. WL at *20; cf. State v. Granville, 423 S.W.3d 399, 417 (Tex.
Crim. App. 2014) (holding "a citizen does not lose his reasonable expectation of privacy in the contents
of his cell phone merely because that cell phone is being stored in a jail property room."). Although
Riley concerned cell phones and the Fourth Amendment, it is otherwise dissimilar to the present case.
Unlike the present situation where a third party collected the information later obtained by the police
without a warrant, in Riley the police directly examined the private contents of the suspect's cell
phone. 134 S. Ct. 2473, 189 L. Ed. 2d 430, Id. WL at *5. Riley does not concern the third party
doctrine espoused in Smith, 442 U.S. at 743-44, and relied upon in reaching our decision. Therefore,
Riley is [*191] otherwise inapplicable to the present situation involving a court order to obtain
AT&T's business records of Ford's use of its cell tower network. Accordingly, we reject Ford's argument
that Riley is applicable in this case.
Article I, section 9 of the Texas Constitution:
In addition to his Fourth Amendment challenge, Ford contends the State's warrantless acquisitions of
his historical cell site records from AT&T violated his rights under the Texas Constitution. [**40]
Specifically, Ford contends his rights under Article I, section nine — which mirror those of the Fourth
Amendment — were violated. HN16 Like the Fourth Amendment, the Texas Constitution provides that
"[t]he people shall be secure in their persons, houses, papers and possessions, from all unreasonable
seizures or searches. . ." TEX. CONST. art. I, § 9. However, Ford did not preserve this issue for our
review.
Ford's written motion to suppress and oral argument before the trial court made no mention of his
rights under the Texas Constitution. It is also not apparent from the context of the record that the
error is preserved by way of the parties having a shared understanding of a Texas constitutional
complaint being made. See Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009); Lankston v.
State, 827 S.W.2d 907, 911 (Tex. Crim. App. 1992). Accordingly, we overrule Ford's argument and hold
he did not preserve this argument based on the Texas constitution for our review. See Pena, 285
S.W.3d at 464 (holding appellant failed to preserve for review claim that right to due course of law
under Texas Constitution provided greater protection than due process clause of U.S. Constitution
when he did not argue at trial that Texas Constitution provided greater protection.); TEX. R. APP. P.
33.1.
First Amendment:
Ford next contends his First Amendment right to freely associate was violated by the State's
warrantless acquisition of historical cell site records of his phone from AT&T. [**41] See U.S. CONST.
amend. I. Specifically, Ford argues that "[b]y accessing and scrutinizing location data without a
warrant supported by probable cause, the State is engaged in actions that chill the freedom of
association."
Although the State contends Ford did not preserve this issue for our review, the record reveals Ford's
counsel made the following passing reference to a First Amendment-based argument during the
hearing on the motion to suppress:
Gathering information that the Supreme Court has just said is the type of information that
is subject to a reasonable expectation of privacy, even to a First Amendment objection on
— in that sometimes this sort of information reveals association, the Freedom of
Association Clause of the Constitution of the Bills of Rights.
Ford has supplemented this brief argument at trial with citations to Justice Sotomayor's concurrence in
Jones, 132 S. Ct. at 956 (Sotomayor, J., concurring), and Stanford v. Texas for the proposition that
search warrants must be supported by probable cause that describes the things to be seized with
scrupulous exactitude. See 379 U.S. 476, 485, 85 S. Ct. 506, 13 L. Ed. 2d 431 (1965). Admittedly,
Justice Sotomayor's concurrence does express concern that "[a]wareness that the Government may be
watching chills associational and expressive freedoms . . . [a]nd the Government's unrestrained power
to assemble data that reveal private aspects of identity [**42] is susceptible to abuse." Jones, 132
S. Ct. at 956 (Sotomayor, J., concurring). However, Ford has not argued how that concern affects our
decision here.
[*192] Ford has not presented an actual First Amendment issue for the court to consider because he
has not argued how the State's use of his historical cell site records actually and specifically interfered
with his freedom of association. Rather, without relevant citation to the record, Ford has merely argued
in conclusory fashion that "the State is engaged in actions that chill the freedom of association."
Accordingly, we hold Ford inadequately briefed this issue for our review by failing to present an actual
argument of how his First Amendment associational rights were infringed by the State. See TEX. R. APP.
P. 38.1(h); see also Lockett v. State, 16 S.W.3d 504, 505 n.2 (Tex. App.—Houston [1st Dist.] 2000, pet
ref'd) (holding that HN17 conclusory statement supported by neither argument nor authority presents
nothing for our review). Further, even if Ford would have presented a legitimate "association"
argument, we hold it fails on the merits.
The general premise underlying our holding on the Fourth Amendment issue is that the historical cell
site data obtained by the State was a legitimate business record of information Ford initially conveyed
to a third party, the subsequent conveyance of which he cannot successfully challenge [**43] under
the Fourth Amendment. See Jerry T. O'Brien, Inc., 467 U.S. at 743. If this court were to hold that the
State could not obtain Ford's historical cell site records from AT&T without a warrant due to First
Amendment concerns, the holding would have to apply to all business records. This is because any
business record, whether it be a grocery receipt, Amazon invoice, or charitable giving receipt, reveals
an individual's associations and could be subject to abuse by the State. We decline to render a decision
with such broad implications. Therefore, we overrule Ford's issue and hold his associational freedoms
under the First Amendment were not infringed.
Search Warrants — Ford's Home, Car, and DNA
In his next points of error, Ford contends he was entitled to a Franks hearing on his motion to suppress
the searches resulting from warrants to obtain his DNA, search his home, and search his vehicle. Ford
claims Detective Leroy Carrion's affidavits, which were used to obtain the search warrants, contained
false statements that were necessary to the threshold finding of probable cause.
The United States Supreme Court held in Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed.
2d 667 (1978):
[W]here the HN18 defendant makes a substantial preliminary showing that a false
statement knowingly and intentionally, or with reckless disregard for the truth,
was [**44] included by the affiant in the warrant affidavit, and if the allegedly false
statement is necessary to the finding of probable cause, the Fourth Amendment requires
that a hearing be held at the defendant's request.
Id. at 155-56; Cates v. State, 120 S.W.3d 352, 355 (Tex. Crim. App. 2003). The Court of Criminal
Appeals has refined the requirements to obtaining a Franks hearing into three prongs. See Cates, 120
S.W.3d at 357-59. The first prong of Franks requires a defendant to allege a deliberate falsehood, or
the affiant's reckless disregard for the truth, and specifically point out that portion of the affidavit
alleged to be false. Id. at 357. The second prong of Franks requires a defendant to accompany her
allegations of falsity with either an offer of proof, affidavit, or otherwise reliable witness statement,
unless the absence of such support is satisfactorily explained. Id. at 358. [*193] The third and final
prong of Franks requires a defendant to prove that if the deliberately false sections of the affidavit are
removed, the remainder of the "four corners" of the affidavit no longer presents probable cause to
search a particular location. Id. at 358-59. Here, the State conceded the first two Cates prongs at trial.
The trial court then redacted the affidavits and concluded probable cause existed even in the absence
of the redacted [**45] information. Therefore, we are left to consider whether Ford established the
remaining portions of Detective Carrion's affidavits were insufficient to support probable cause to
search Ford's home, car, and obtain his DNA.
Ford alleged before the trial court that Detective Carrion falsely stated Tarver and Federspill's
testimony, and mischaracterized the photos taken of the Gallery Court entrance from the ATM camera.
Specifically, Ford challenged Detective Carrion's characterization of the testimony regarding whether
Ford's car was not seen in the church parking lot, Ford's responses to text messages, as well as the
detective's recitation of the contents of the ATM photographs.
HN19 Probable cause for a search warrant exists when, viewed under the totality of the
circumstances, there is a fair probability that evidence of a crime will be found at the specified location.
State v. McLain, 337 S.W.3d 268, 272 (Tex. Crim. App. 2011). This is a flexible and non-demanding
standard. Id. (emphasis added). Here, where the magistrate did find probable cause based on the
redacted affidavits, we apply a highly deferential standard of review due to the constitutional
preference for searches to be conducted pursuant to a warrant as opposed to a warrantless
search. [**46] Id. at 271. We will uphold the magistrate's probable cause determination as long as
the magistrate had a substantial basis for concluding probable cause existed. Id.
Here, even without the portions of Detective Carrion's affidavit challenged by Ford, we hold Detective
Carrion's affidavit was sufficient to establish probable cause to support the search warrants.
Specifically, the redacted affidavits assert: Ford is a recent ex-boyfriend of Edwards; he attended the
same New Year's Eve party as Edwards; he drove to the party in his white Chevy Tahoe; despite
allegedly heading home after the party, Ford's friends did not see his Tahoe parked in his driveway
after the party; surveillance photos depict a vehicle similar to Ford's entering and exiting Edwards's
condominium complex around 11:40 p.m.; surveillance photos depict a figure consistent in appearance
with Ford walking into the complex at 11:42 p.m.; and male DNA was found on the towel covering
Edwards's head. Given the nexus between Ford and Edwards's murder from the information remaining
in Detective Carrion's affidavits, under the totality of the circumstances, we hold there is a fair
probability evidence relating to the murder would have [**47] been found in Ford's vehicle, home,
and DNA. See McLain, 337 S.W.3d at 272. Accordingly, we hold Ford did not satisfy the third prong
required for a Franks hearing and overrule his point of error. See Cates, 120 S.W.3d at 358-59.
Improperly Admitted Evidence of Alleged Murder Weapons
Ford next contends the trial court erred when it allowed the State to introduce into evidence two pieces
of demonstrative evidence representing the alleged murder weapons. Specifically, Ford contends the
trial court erred by allowing the admission of a metal three-hole punch and a charging cord for a
wireless electric drill. The State sought to introduce these items because [*194] Deborah Edwards,
the mother of the victim, testified at trial she discovered these items were missing from her daughter's
condominium when she was packing it up three years after the murder.
HN20 We review the trial court's decision to admit or exclude evidence for an abuse of discretion.
Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996); Montgomery v. State, 810 S.W.2d
372, 379-80 (Tex. Crim. App. 1990); Young v. State, 382 S.W.3d 414, 420 (Tex. App.—Texarkana
2012, pet. ref'd). We may hold a trial court abused its discretion only if its decision falls outside the
zone of reasonable disagreement. Green, 934 S.W.2d at 102.
Three-Hole Punch
At trial, Deborah Edwards testified she discovered her daughter's antique, metal three-hole punch was
missing from the condominium. She also testified she was able to [**48] locate and purchase a
three-hold punch that was a close match to the missing hole-punch. She testified the item she
purchased was "very similar" to the one owned by her daughter. The State then moved to offer the
hole-punch into evidence and counsel for Ford stated "No objection."
HN21 An appellant affirmatively waives their right to have the trial judge determine the admissibility
of evidence when they state "no objection" to the offered evidence. Holmes v. State, 248 S.W.3d 194,
200 (Tex. Crim. App. 2008). A party is not excused from the procedural requirement to object at trial
to the admission of evidence even if the error involves a constitutional right. Jimenez v. State, 32
S.W.3d 233, 235 (Tex. Crim. App. 2000). Accordingly, an appellant who did not object to the admission
of evidence at trial waives any claim on appeal that the trial erred in admitting that evidence. See
Holmes, 248 S.W.3d 200; see also TEX. R. APP. P. 33.1. Because Ford did not object to the admission of
the three-hole punch at trial, we hold Ford waived this argument on appeal and overrule this point of
error. See Holmes, 248 S.W.3d 200.
Ford directs this court to Jimenez and contends in his brief that we should not find the alleged error
waived, but rather review it as plain or fundamental error that deprived him of a fair or impartial trial.
We disagree. Jimenez dealt with jury charge error [**49] as "fundamental error" under Texas Code of
Criminal Procedure article 36.19. See Jimenez, 32 S.W.3d at 236-37 (citing TEX. CODE CRIM. PROC. ANN.
art. 36.19). Alleged jury charge error is not at issue here, and Ford has not directed this court to any
authority applying fundamental error principles to the unobjected to introduction of evidence at trial.
Accordingly, we overrule Ford's argument.
Charging Cord
At trial, Deborah Edwards testified that a power cord used to charge a cordless electric drill was also
missing from her daughter's condominium. Specifically, Deborah Edwards testified:
She had one and she bought her father one just like it. And when we were putting things
up, the cord was missing from hers. It was in her office. . . . She bought them at the same
time.
The State then moved to introduce into evidence the identical charging cord from the drill Edwards had
purchased for her father. Ford objected that the cord was not relevant and invited speculation. The
State responded that the proffered "exhibit is an exact copy of the charging cord that is missing from
the deceased's cordless charger that was in the office where she was found murdered by
strangulation." The trial court overruled Ford's objection and admitted the cord into evidence. Ford
[*195] contends the trial court erred, but we [**50] disagree.
As stated above, we review the trial court's decision to admit or exclude evidence for an abuse of
discretion. Green, 934 S.W.2d at 101-02. We may hold a trial court abused its discretion only if its
decision falls outside the zone of reasonable disagreement. Green, 934 S.W.2d at 102. HN22 Under
the Texas Rules of Evidence, all relevant evidence is admissible, except as provided otherwise by
constitution, statute, or other rules of evidence. TEX. R. EVID. 402.
Here, the power cord introduced by the State was properly admitted over objection as demonstrative
evidence of an item missing from the victim's home. The victim died from strangulation by ligature and
it is relevant that a possible ligature, the power cord, was missing from the victim's home. Whether or
not the power cord is the type of ligature used to murder the victim is a question of fact to be
determined by the jury and is not the present issue. The present issue is whether or not the power
cord introduced by the State is acceptable demonstrative evidence of the power cord missing from the
victim's home. Here, Deborah Edwards testified the victim had purchased identical drills with identical
charging cords for her father and herself. Accordingly, we hold the trial court did not abuse [**51] its
discretion by allowing the State's exhibit as demonstrative evidence of the missing power cord. See
Green, 934 S.W.2d at 101-02.
Ford's counter argument seems to focus on the State's purpose for introducing the power cord — to
present it as the murder weapon used to strangle Edwards. Ford argues, in essence, the admission of
the cord as the speculative murder weapon is not based on the evidence and deprived him "of a fair
trial by allowing the State to present to the jury a full story and avoid the fact that it lacked any
weapons and any real evidence against Ford." This argument is without merit. The State elicited
testimony that the cord was missing from the crime scene, presented an identical cord into evidence,
and argued that the missing cord could have in fact been the murder weapon. Such "speculation" is a
proper use of circumstantial evidence and a question of fact for the jury to resolve.
Improper Jury Argument
Ford next contends his "conviction should be reversed and he should be granted a new trial" because
of several alleged instances of improper jury argument by the State. Specifically, Ford argues: (1) the
State improperly called Ford a liar twelve times during opening statements; (2) the State [**52]
improperly shifted the burden of proof during its closing argument; and (3) the State improperly
commented on Ford's failure to testify during its closing argument.
Opening Statements
Ford contends the State engaged in improper jury argument when it allegedly called him a "liar" twelve
times during opening statements. Having reviewed the portion of opening statements referenced by
Ford in his brief, it appears Ford objected to the following instances of being called a "liar" at trial:
1.) "What you will see is a man who has his lies down."
2.) "What you will see is that he's able to account for everything and he has the lies down.
And you will know that they are lies by the technology . . ."
3.) "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 everything. And you will hear that on his
[*196] DVD. It is his statement. What you will recognize is that he gives an alibi and
that that alibi is a blatant lie and that will be revealed by the assertions in this case."
4.) "He didn't count on those things. And he didn't count on the technology to reveal his
lies."
5.) "The evidence will show that time and time again — and [**53] the evidence will
highlight that this self-constructed alibi is a lie."
The trial court sustained Ford's objections as to the first four instances set out above, but did not rule
on his fifth objection. Instead, the trial court stated after the fifth objection, "[l]et's move on, please."
Despite an instruction to "move on," the State continued and stated:
You will see that he lied repeatedly to police, to friends, to everyone. And you will see that
this alibi is a lie.
Ford's counsel objected again, prompting the trial court to ask the State to discuss "what you expect
the evidence to show, please." To which the State responded: "Sure. . . [t]he evidence will show he's a
liar." The trial court then asked counsel to approach the bench. After a brief discussion of the issue, the
trial court gave the following instruction to the jury:
All right. Ladies and Gentlemen of the Jury, we have an — ongoing opening statements
going on, so the opening statement is to tell you what the evidence is expected to show. In
the course of opening, if there's argument, and right now I think the reference to, in
particular, the issue being that the Defendant is a liar, that part I'm — I'm holding is
argument and I'm [**54] asking you to disregard that portion of the opening statement.
Ford then moved for a mistrial, and the trial court denied his request.
HN23 During a criminal proceeding, the State has the statutory right to state to the jury the nature of
the accusations against the defendant and the facts which are expected to be proved by the State in
support thereof. TEX. CODE CRIM. PROC. ANN. art. 36.01(a)(3); Taylor v. State, 947 S.W.2d 698, 706 (Tex.
App.—Fort Worth 1997, pet. ref'd). Because the trial court sustained Ford's ongoing objection to the
State's accusations in its opening statement, and instructed the jury to disregard said statements, "
[t]he only adverse ruling — and thus the only occasion for making a mistake — was the trial court's
denial of the motion for mistrial." Archie v. State, 340 S.W.3d 734, 738 (Tex. Crim. App. 2011)
(quoting Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004). Therefore, the proper issue
is whether the trial court abused its discretion by denying Ford's request for a mistrial. See Archie, 340
S.W.3d at 738-39; Hawkins, 135 S.W.3d at 77.
HN24 Only in extreme circumstances of incurable prejudice will mistrial be required. Hawkins, 135
S.W.3d at 77. In evaluating whether the trial court abused its discretion by denying a mistrial for
improper argument, we apply and balance the following three factors: (1) the severity of the
misconduct (magnitude of the prejudicial effect of remarks); (2) the measures adopted to cure the
misconduct (efficacy of any cautionary instruction by [**55] the trial court); and (3) the certainty of
conviction absent the misconduct (strength of evidence supporting conviction). Archie, 340 S.W.3d at
739 (adopting factors from Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998)).
Here, after applying the foregoing factors to the statements made by the State, we hold the trial court
did not abuse its discretion by denying Ford's request for a mistrial. First, although the State [*197]
used the blunt and arguably prejudicial approach of referring to Ford's "lies," it does not appear it
engaged in an overtly improper opening statement. Under article 36.01, the State has a statutory right
to present to the jury its accusations against the defendant and the facts that support it, which is what
it appears the State is doing here — casting aspersions on Ford's alibi. See TEX. CODE CRIM. PROC. ANN.
art. 36.01(a)(3). The State's principal theory of the case and accusation against Ford is that his alibi of
being at home at the time of Edwards' murder is a lie, and that he was in fact at Edwards's home
murdering her. The challenged statements, in essence, make abundantly clear to the jury that the
State believes the evidence will illustrate Ford's alibi is a lie. Accordingly, we hold the State's actions do
not constitute outright misconduct that goes outside the scope of opening statements [**56] and
prejudices Ford. See id. Admittedly, the use of the term "lies" is charged language that could be viewed
as prejudicial in nature; however, as discussed below, the trial court's instruction to the jury resolved
any damage that might have been caused by the statements.
At Ford's request, the trial court instructed the jury to disregard the portion of the State's opening
statement setting Ford out as a "liar." It is presumed the jury duly obeyed this instruction to disregard
the contested portions of the State's opening argument. Archie, 340 S.W.3d at 741. This court has held
that "[u]sually, an HN25 instruction to disregard the argument will cure any error caused by improper
argument." Berkley v. State, 298 S.W.3d 712, 714 (Tex. App.—San Antonio 2009, pet. ref'd). Here,
we see no reason to hold the instruction did not cure any harm caused by the State's opening, and
Ford has not presented any argument to rebut the curative strength of the jury instruction.
Accordingly, we overrule Ford's argument and hold the trial court did not abuse its discretion when it
denied Ford's request for a mistrial. See Archie, 340 S.W.3d at 738-39.
Ford, however, has directed this court to our decision in Gilcrease v. State for the proposition that
name calling can be grounds for reversal if employed as a repeated tactic. See 32 S.W.3d 277, 279
(Tex. App.—San Antonio 2000, pet. ref'd). In Gilcrease, the [**57] State argued during closing
argument the victim "was selected by this bastard over here to be his victim." Id. at 278. The trial
court overruled an objection to calling the defendant a "bastard," and we held the trial court should
have sustained the objection and admonished the State's attorney. Id. at 279. Gilcrease is
distinguishable from the present case. The use of the term "bastard" served no legitimate purpose and
is substantially more inflammatory than the references to the "lies" the State legitimately expected to
prove to the jury here. Simply stated, referring to the defendant's "lies," even though a repeated
tactic, is not name calling on par with the term "bastard." Additionally, unlike in Gilcrease, Ford's
objections to the State's comments were sustained and he obtained a jury instruction to disregard the
potentially harmful references to Ford's "lies." Accordingly, Gilcrease is distinguishable.
Burden Shifting
Ford next contends the State improperly shifted the burden of proof during its closing argument. After
discussing Ford's alibi and the evidence presented at trial, the State made the following closing
argument:
If not him, who? I mean, they're going to tell you that's shifting the burden [**58] of
proof. . . Who? They've put on a case. They've called witnesses. They — they have
certainly cross-examined. Who?
[*198] Ford's objection to this argument was overruled by the trial court.
HN26 Proper jury argument falls generally within one of four areas: (1) summation of the evidence;
(2) reasonable deduction from the evidence; (3) answer to argument made by opposing counsel; and
(4) a plea for law enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). Error
exists when an argument presents facts not supported by the record to the jury, but this error is not
reversible unless, in light of the entire record, the argument is extreme or manifestly improper. See id.
Here, the trial court properly overruled Ford's objection because the State's argument was a
reasonable deduction from the evidence. See id. Having presented its theory of the case and web of
circumstantial evidence linking Ford to the murder, it was a reasonable deduction from the evidence for
the State to argue no one else could have or would have committed this crime except Ford.
Accordingly, we hold the State engaged in proper jury argument.
Ford counters by citing to Dee v. State, 388 S.W.2d 946 (Tex. Crim. App. 1965), for the proposition
that prosecutorial jury argument that shifts the burden of proof is reversible error. [**59] Not only
does Ford's passing citation fail to describe how the State actually shifted the burden of proof, but also
Ford's reliance on Dee is misplaced. The eventual reversal in Dee was not based on an improper
argument shifting the burden of proof, but rather the prosecution's argument erroneously placing the
defendant's character in issue. See id. at 947; see also Waldo v. State, 746 S.W.2d 750, 756 (Tex.
Crim. App. 1988) (noting Dee concerned prosecution erroneously placing the defendant's character at
issue). Accordingly, Dee is not on point and does not offer any direct support for Ford's position.
Ford's Failure to Testify
Ford next contends the following jury argument by the State was an improper comment on his failure
to testify at trial:
And they keep talking about this rumor mill, this rumor mill. Well, you know what? A
rumor mill doesn't paralyze you. 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.
Ford failed to object to this allegedly improper comment on his failure to testify.
HN27 The State's comment on an accused's failure to testify violates the defendant's state and federal
constitutional privileges against self-incrimination. [**60] Archie, 340 S.W.3d at 738. However, a
defendant's failure to object to a jury argument or failure to pursue an adverse ruling to an objection
to a jury argument forfeits the defendant's right to complain about the argument on appeal. Cockrell v.
State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); see Mathis v. State, 67 S.W.3d 918, 927 (Tex. Crim.
App. 2002) (affirming Cockrell as being in line with Texas Rule of Appellate Procedure 33.1).
As stated above, Ford did not object to the State's argument complained of on appeal. Accordingly, we
hold this argument was not preserved for our review. See Cockrell, 933 S.W.2d at 89.
Ford, however, directs this court to Rodriguez v. State, 646 S.W.2d 539, 542-43 (Tex. App.—Houston
[1st Dist.] 1982, no writ.), to support the proposition directly quoted in his brief that "neither a timely
objection nor an adverse ruling is required to preserve error if the argument is so prejudicial that an
instruction to disregard cannot cure the harm." There are two [*199] problems with Ford's counter
argument. First, Rodriguez does not contain this language nor does it support the proposition for which
it is cited. See id. Second, even if Rodriquez supported Ford's argument, it conflicts with Cockrell,
which expressly held that any prior cases to the contrary, such as Romo v. State, 631 S.W.2d 504 (Tex.
Crim. App. 1982), are overruled. Cockrell, 933 S.W.2d at 89 (overruling Romo, 631 S.W.2d 504, which
held a defendant may complain for the first time on appeal about an unobjected-to, erroneous jury
argument that could not have been cured by an instruction [**61] to disregard.).
Additionally, Ford directs this court to the decision of York v. State, 126 Tex. Crim. 659, 73 S.W.2d 538
(Tex. Crim. App. 1934), for the proposition that the Court of Criminal Appeals has a long history of
reversing criminal judgments where the prosecution has engaged in referencing the failure of the
accused to testify. See id. ("For the error in the argument mentioned we have no option but to reverse
the judgment and remand the cause for new trial."). That may be the case; however, the Court of
Criminal Appeals also requires a defendant to properly preserve the issue of improper jury argument
for appeal. See Cockrell, 933 S.W.2d at 89. Accordingly, we overrule Ford's point of error.
Equitable Continuance
Ford next contends the trial court erred when it denied his oral request for a continuance. Ford sought
the continuance in order to review exhibits presented by State expert Kenneth Doll. At trial, Doll used
color charts representing cellular coverage that had, admittedly, not been provided to Ford before trial.
The State contended the charts contained only information that was included in the cell phone records
that had in fact been provided to Ford before trial. Ford asked the trial court for "at least a couple of
hours" to review the charts, and the trial court [**62] denied his request.
HN28 The Texas Code of Criminal Procedure allows a continuance in a criminal action only upon the
written motion of the State or of the defendant setting forth sufficient cause. TEX. CODE CRIM. PROC. ANN.
art. 29.03 (emphasis added). Ford argues there is a due process exception to the rule requiring a
continuance to be in writing. See O'Rarden v. State, 777 S.W.2d 455, 459 (Tex. App.—Dallas 1989,
pet. ref'd). The Court of Criminal Appeals has "explicitly refused to recognize a due process exception
to the rule requiring motions for continuances to be written and sworn in order to be preserved on
appeal." Blackshear v. State, 385 S.W.3d 589, 591 (Tex. Crim. App. 2012) (citing to Anderson v. State,
301 S.W.3d 276, 280 (Tex. Crim. App. 2009)). Likewise, this court has expressly rejected this notion.
Jimenez v. State, 307 S.W.3d 325, 331 (Tex. App.—San Antonio 2009, pet. ref'd). Accordingly, we
overrule Ford's point of error and hold his failure to file a written continuance failed to preserve error
for our review. See Blackshear, 385 S.W.3d at 590.
Independent Examination of DNA Evidence
After his conviction, but prior to the filing of the motion for new trial, Ford filed a motion for
independent testing of DNA evidence in the State's possession, including but not limited to, four brown
human hairs found on Edwards's left hand at the scene of her murder. The trial court denied Ford's
motion at the hearing on the motion for new trial. Ford contends the trial court abused its discretion by
doing so.3
FOOTNOTES
3 The State argues [**63] there is no error preserved for our review because the "motion was not
presented to the court during the hearing, and Appellant never asked the court to rule on it." This
is simply not the case. During the hearing on Ford's motion for new trial, his counsel reminded the
trial court that:
We do have my motion for DNA testing, the mitochondrial blood testing of the right
hand of Ms. Edwards. I want to obtain the Court's ruling on that motion so I may
preserve the issue that I'm raising for this motion for new trial.
The trial court then denied Ford's motion on the record.
[*200] Under the version of Texas Code of Criminal Procedure article 39.14(a) applicable at the time
of trial:
HN29 Upon motion of the defendant showing good cause therefor and upon notice to the
other parties . . . the court in which an action is pending shall order the State before or
during trial of a criminal action therein pending or on trial to produce and permit the
inspection . . . [of] evidence material to any matter involved in the action and which are in
the possession, custody or control of the State or any of its agencies.
Act of April 16, 2009, 81st Leg., R.S., ch. 276, 2009 Tex. Gen. Laws 733 (amended 2014) (current
version at TEX. CODE CRIM. PROC. ANN. art. 39.14(a) (West 2014)) (emphasis added). The State [**64]
contends Ford's motion was not timely filed, and therefore the trial court did not err by denying the
motion. We agree.
Article 39.14(a) allowed discovery and inspection of the material evidence sought by Ford when
requested "before or during trial." See id. (emphasis added). Here, Ford's motion was filed after he
was found guilty of murdering Edwards, not before or during trial, and was therefore not timely under
article 39.14(a). See id. Accordingly, we overrule Ford's argument and hold the trial court did not err
by denying his motion to inspect DNA evidence.
Alternate Perpetrator Evidence
Ford next contends the trial court erred by denying his attempt to introduce evidence that the Edwards
family's Gillespie County home was burglarized without signs of forced entry on December 30, 2008,
the day before Edwards's murder. Ford argues this evidence was admissible as alternate perpetrator
evidence and, alternatively, admissible as contextual evidence.
As noted above, we review a trial court's ruling on the admissibility of evidence for an abuse of
discretion. Green, 934 S.W.2d at 101-02. We may hold a trial court abused its discretion only if its
ruling falls outside the zone of reasonable disagreement. Id. at 102.
Ford's first argument is that the evidence [**65] of the burglary is admissible alternate perpetrator
evidence. HN30 When a defendant seeks to introduce evidence of an "alternate perpetrator," he must
establish a sufficient nexus between that person and the crime. Lopez v. State, 314 S.W.3d 54, 61
(Tex. App.—San Antonio 2010, pet. ref'd) (citing Wiley v. State, 74 S.W.3d 399, 406 (Tex. Crim. App.
2002)). This court has recognized it is not sufficient for a defendant to merely proffer "unsupported
speculation" that another person may have committed the crime. Id. at 61. Specifically, when the
evidence does not point to a particular individual as being responsible for the crime, the proffered
evidence amounts to no more than mere speculation that another person may have committed the
crime. See id. at 61-62 (emphasis added).
Here, Ford has not directed the court to any particular alternate individual suspected of committing the
crime. Rather, Ford has directed the court to the burglary to [*201] suggest an unidentified common
culprit. The evidence proffered by Ford does not present a sufficient nexus for admissible alternate
perpetrator evidence. See id. at 61. Instead of suggesting an identified particular individual as being
responsible for the crime, Ford merely provided speculation that there is a common culprit for both
incidents. Accordingly, we overrule this portion of the issue and hold the trial [**66] court did not
abuse its discretion. See Green, 934 S.W.2d at 101-02
Ford also argues evidence of the Gillespie County burglary is admissible "context evidence" with regard
to Edwards's murder. He makes this argument for the first time on appeal. Accordingly, he has not
preserved this argument for our review. See Reynolds, 423 S.W.3d at 383; TEX. R. APP. P. 33.1.
However, even if Ford's "context evidence" argument were preserved, it still fails.
In support of his "context evidence" argument, Ford directs the court to Mann v. State, 718 S.W.2d
741 (Tex. Crim. App. 1986), for the proposition the evidence proffered here is almost always
admissible. Specifically, Ford argues offenses rarely occur in a vacuum, and the burglary at the
Gillespie County property immediately preceding the events at Edwards's condominium provides
admissible context evidence for the murder. We disagree. Mann does not support the "context
evidence" Ford sought to introduce at trial. Rather, Mann concerned introduction of extraneous offense
evidence used against the defendant and held:
[E]vidence of the context of the offense is almost always admissible under the reasoning
that events do not occur in a vacuum and the jury has a right to have the offense place in
its proper setting so that all of the evidence may be realistically evaluated.
Id. at 744. Here, Ford [**67] was not attempting introduce extraneous offense "context" evidence
against himself. Accordingly, we overrule Ford's argument.
CONCLUSION
Based on the foregoing, we overrule Ford's points of error and affirm the trial court's judgment.
Marialyn Barnard, Justice
Publish
DISSENT BY: Luz Elena D. Chapa
DISSENT
"[A] Fourth Amendment search occurs when the government violates a subjective expectation of
privacy that society recognizes as reasonable." Kyllo v. United States, 533 U.S. 27, 33, 121 S. Ct.
2038, 150 L. Ed. 2d 94 (2001); see Katz v. United States, 389 U.S. 347, 360-62, 88 S. Ct. 507, 19 L.
Ed. 2d 576 (1967) (Harlan, J., concurring). Ford's cell phone provider tracked, collected, and recorded
information about Ford's physical movements and location whenever he received or placed a call or
text message. This "historical cell site data" was based on the cell phone towers through which his calls
and texts were routed. Because I would hold that Ford retained an objectively reasonable expectation
of privacy in his physical movements and location, I respectfully dissent from the court's judgment
affirming Ford's conviction.
The amount of detailed information that a cell phone provider has the means to track, collect, and
record about its customers as they conduct their everyday lives is staggering. See United States v.
Jones, 132 S. Ct. 945, 963, 181 L. Ed. 2d 911 (2012) (Alito, J., concurring in judgment). For instance, "
[h]istoric location information is a standard [**68] feature on many smart phones and can
reconstruct someone's specific movements down to the [*202] minute, not only around town but also
within a particular building." Riley v. California, 134 S. Ct. 2473, 2490, 189 L. Ed. 2d 430 (2014).
Although less precise than GPS records, the historic cell site data compiled by cell phone providers can
generate a "comprehensive record of a person's public movements that reflects a wealth of detail
about her familial, political, professional, religious, and sexual associations." See Jones, 132 S. Ct. at
955 (Sotomayor, J., concurring); see also id. at 963 (Alito, J., concurring in judgment).
The majority holds that the third-party doctrine precludes Ford from having a reasonable expectation
of privacy in this "historical cell site data" because he "voluntarily disclosed" it to his cell phone
provider in the course of using his cell phone. To achieve this result, the majority relies on Smith v.
Maryland, 442 U.S. 735, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979) and United States v. Miller, 425 U.S.
435, 96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976).1 These cases predate the advent of the earliest
commercially available handheld cell phones.2
FOOTNOTES
1Although the majority primarily cites to opinions from the Fifth Circuit and the Fourteenth Court of
Appeals, the underpinnings of its reasoning flow directly from the also-cited Smith and Miller.
2 The first commercial cell phone system was introduced in 1983. Mobile Telephone,
[**69] ENCYCLOPEDIA BRITANNICA ONLINE,
http://www.britannica.com/EBchecked/topic/1482373/mobile-telephone/279851/Development-of-
cellular-systems (last updated Sept. 5, 2013).
But the Supreme Court has recently recognized that modern cell phones—now a "pervasive and
insistent" part of modern life—present privacy concerns far beyond the founding principles of the
Fourth Amendment and the circumstances of the founding era. See Riley, 134 S. Ct. at 2484. In Riley,
the Court held that the search-incident-to-an-arrest doctrine did not allow arresting officers to search
the digital contents of cell phones seized in connection with an arrest. Id. at 2493-94. The Court
recognized that "[m]odern cell phones, as a category, implicate privacy concerns far beyond those
implicated by the search of a cigarette pack, a wallet, or a purse" and that "[c]ell phones differ in both
a quantitative and a qualitative sense from other objects that might be kept on an arrestee's person."
Id. at 2488-89. Thus, the Court eschewed a "mechanical application" of its prior precedent that might
well have supported a warrantless search of the appellant's cell phone. Id. at 2484. Similar to the way
that the search-incident-to-arrest doctrine was ill suited to the digital data contained on cell phones
seized during an arrest, the third-party doctrine is "ill suited to the digital age, in which people reveal a
great deal [**70] of information about themselves to third parties in the course of carrying out
mundane tasks." Jones, 132 S. Ct. at 957 (Sotomayor, J., concurring).
The majority's application of the third-party doctrine sweeps intimate details of a person's life outside
the scope of the Fourth Amendment's protections because cell phone customers "voluntarily disclose"
their location information simply by owning and using their cell phones. The majority thus confronts
cell phone customers with a choice between Scylla and Charybdis: either forego the use of technology
that has become a pervasive and insistent part of modern, everyday life or forego the protections of
the Fourth Amendment. I cannot join such a sweeping and mechanical application of Smith and Miller.
Instead, I agree with the Third and Eleventh Circuits and conclude that "a cell phone customer has not
'voluntarily' [*203] shared his location information with a cellular provider in any meaningful way."
In re Application of U.S. for an Order Directing a Provider of Elec. Commc'ns Serv. to Disclose Records
to Gov't, 620 F.3d 304, 317 (3rd Cir. 2010); United States v. Davis, 754 F.3d 1205, 1216-17 (11th Cir.
2014). I would therefore hold that Ford did not voluntarily surrender his reasonable expectation of
privacy in his physical location and movements simply by using his cell phone. Because the State did
not secure a warrant before obtaining the historical cell site data from [**71] Ford's cell phone
provider, Ford's Fourth Amendment rights were violated, and the trial court should have granted his
motion to suppress.
Because the Fourth Amendment required suppression of the historical cell site data, the denial of Ford's
motion to suppress was constitutional error. When an appellate court determines there was
constitutional error at trial, it must "reverse a judgment of conviction . . . unless the court determines
beyond a reasonable doubt that the error did not contribute to the conviction . . . . TEX. R. APP. P.
44.2(a). The evidence against Ford was largely circumstantial, and I am unable to conclude beyond a
reasonable doubt the erroneous admission of the historical cell site data did not contribute to Ford's
conviction. I would therefore reverse Ford's conviction and remand this case to the trial court for
further proceedings. Because the majority does not do so, I dissent.
Luz Elena D. Chapa, Justice
Publish
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Citation: 444 s.W.3d 171
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Date/Time: Monday, March 23, 2015 - 11:34 PM EDT
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