Jacob Cordero v. State ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00450-CR
NO. 02-13-00451-CR
NO. 02-13-00452-CR
NO. 02-13-00453-CR
NO. 02-13-00454-CR
NO. 02-13-00455-CR
NO. 02-13-00456-CR
NO. 02-13-00457-CR
JACOB CORDERO APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
TRIAL COURT NOS. 1288869D, 1297257D, 1297258D, 1297259D, 1297261D,
1297262D, 1297263D, 1297264D
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MEMORANDUM OPINION1
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See Tex. R. App. P. 47.4.
A drive-by shooting occurred, multiple persons were injured, and one died.
Appellant Jacob Cordero was indicted and tried in eight consolidated cases
stemming from the drive-by shooting: one charge with two counts of engaging in
organized crime and murder and seven charges with two counts for engaging in
organized crime and aggravated assault. A jury found Cordero guilty of all
sixteen offenses and assessed his punishment at ninety-nine years’ confinement
for each count in the murder case and at fifty years’ confinement for each count
in each of the other seven cases. The trial court sentenced Cordero accordingly
and ordered that the sentences run concurrently.
In two issues, Cordero asserts that the trial court erred by admitting expert
cell-phone-investigation testimony from United States Secret Service Agent Paul
Ahner. Telephone records for the cell phone number being used by Cordero on
the evening of the offenses were admitted into evidence through a sponsoring
employee of AT&T. Agent Ahner then testified from the records concerning the
calls made from Cordero’s cell phone and the location of the cell phone towers
accessed by Cordero’s cell phone at or near the time of the shooting, thus
identifying the location of Cordero’s phone at various times on the night of the
shooting. Cordero challenged at trial and challenges on appeal the “reliability of
the science of locating cell phone towers and the cell phones using the towers”
and the “reliability of the technique for locating the position of the cell towers and
identifying the phones placing calls through those towers.” The trial court
conducted a hearing on the admissibility of Agent Ahner’s testimony; Cordero
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asserts that the trial court could have taken judicial notice of the validity of the
scientific theories underlying the collection of cell phone to cell tower
transmissions and the relevant geographic locations of cell towers if the State
had provided the trial court with a relevant court decision accepting the
underlying science as valid, but Cordero contends that the State failed to do so.
Cordero also complains that Agent Ahner did not know whether the procedure he
used to plot the locations of Cordero’s phone on the night of the shooting was a
scientifically accepted practice; Agent Ahner testified only that this is the
procedure utilized by the United States Secret Service.
The State argues that the trial court did not abuse its discretion by
admitting Agent Ahner’s testimony. The State contends that Agent Ahner’s
testimony was admissible as lay witness testimony, points out that “cell site
analysis enjoys overwhelming acceptance in the federal judiciary,” and requests
this court to take judicial notice of its reliability.2 Alternatively, the State argues
that, in any event, any error was harmless because Detective Cedillo offered
essentially the same testimony as Agent Ahner.
We agree with the State that error, if any, in the admission of Agent
Ahner’s testimony was rendered harmless by the subsequent unobjected-to
2
We question whether the record created in the trial court during the
reliability hearing sufficiently establishes the reliability of the underlying scientific
theory and technique of cell phone cell tower tracking, and moreover, judicial
notice of reliability is an inquiry better performed by our court of criminal appeals.
Cf. Emerson v. State, 880 S.W.2d 759 (Tex. Crim. App. 1994) (performing
reliability analysis of HGN test).
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testimony of Dectective Cedillo. See, e.g., Coble v. State, 330 S.W.3d 253, 282
& n.82 (Tex. Crim. App. 2010) (explaining general rule that error in admission of
evidence may be rendered harmless by subsequent admission of same evidence
without objection); Valle v. State, 109 S.W.3d 500, 509–10 (Tex. Crim. App.
2003) (same); Leday v. State, 983 S.W.2d 713, 716–21 (Tex. Crim. App. 1998)
(same); Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986) (same).
Detective Cedillo testified,
Q. At the point or at some point, then, were you able to obtain the
Defendant’s cell phone records?
A. Yes.
Q. What did you do with the records that you obtained?
A. At that time I began to identify the numbers that he was calling
and more specifically focusing on the time and date of this offense.
Q. Focusing in on the time and date of this offense, were you able
to utilize cell tower records in providing you some additional
information?
A. Yes.
Q. And using those records, what did you learn?
A. I learned that Jacob Cordero was at or near the scene of this
offense when this shooting was taking place. I also learned that
minutes after that, Jacob Cordero traveled towards the east side of
Fort Worth or the Poly area for several minutes and then, after that,
traveled back south and later rested in Burleson.
This testimony by Dective Cedillo proves the same facts proved through Agent
Aher’s testimony: the location of Cordero’s cell phone on the evening of the
shooting both before and after the shooting. We therefore hold that, even
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assuming that the trial court abused its discretion by admitting Agent Aher’s
testimony, this error was harmless based on the subsequent admission of
Detective Cedillo’s testimony, which was admitted without objection. See
Anderson, 717 S.W.2d at 628 (“Inadmissible evidence can be rendered harmless
if other evidence at trial is admitted without objection and it proves the same fact
that the inadmissible evidence sought to prove.”).
We overrule Cordero’s two issues, and we affirm the trial court’s
judgments.
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: May 28, 2015
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