Heriberto Saenz v. State ( 2011 )

NUMBER 13-10-00216-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
HERIBERTO SAENZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 347th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Benavides, and Vela
Memorandum Opinion by Justice Garza
A Nueces County jury convicted appellant, Heriberto Saenz, of one count of
murder, a first-degree felony, and three counts of aggravated assault, a second-degree
felony. See TEX. PENAL CODE ANN. § 19.02 (Vernon 2003); id. § 22.02 (Vernon Supp.
2010). Saenz was sentenced to seventy years’ imprisonment for the murder count and
twenty years’ imprisonment for each of the aggravated assault counts, with the
sentences ordered to run concurrently. By a single issue on appeal, Saenz argues that
the trial court abused its discretion by permitting certain expert testimony and that the
error affected Saenz’s substantial rights. We affirm.
I. BACKGROUND
On the evening of September 30, 2009, a group of people were gathered outside
a residence located at 1112 Sabinas Street in Corpus Christi, Texas. At approximately
11:00 p.m., a red truck drove past the residence. Using a firearm, the driver of the truck
shot ten or more rounds of ammunition into the crowd, killing one woman, Claryssa
Silguero, and injuring three men. One of the injured men, Jerry Gonzalez, testified that
Saenz was the driver of the truck. Several other witnesses testified that the shooting
took place but could not identify the truck’s driver. The firearm used in the shooting was
never recovered.
One witness, Heather McCracken, testified that she called Saenz between 10:00
and 11:00 on the night in question and that Saenz told her ―that he thinks that he was
going to go hit up the Quare hood,‖ referring to La Quarenta, the neighborhood where
the shooting took place. Another witness, Bo Villanueva, testified that Saenz admitted
to the shooting while in jail.1 Uncontroverted testimony by Detective Guadalupe
Rodriguez of the Corpus Christi Police Department established that Saenz was a
member of Suicidal Barrios, a street gang.
The State also presented evidence regarding calls made by Saenz on his cell
phone that evening. Raymond McDonald, a legal compliance officer employed by T-
Mobile, Saenz’s cell phone service provider, testified that he is a ―custodian of records
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In his defense, Saenz called a witness, Mario Rocha, who testified that Villanueva said he was
going to lie about Saenz’s admission to the shooting.
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for cell phone records dealing with [Saenz’s] cell phone number.‖ McDonald
authenticated, and the trial court admitted into evidence without objection, records for
Saenz’s cell phone account on the date of the shooting, as well as records for certain
cell towers and call detail information for those towers.
The State then called Detective Ben Tead of the Corpus Christi Police
Department. Outside the presence of the jury, Detective Tead testified that he has an
associate’s degree in criminal justice and ―ha[s] attended several schools in
investigative techniques put on by the [Public Agency Training Council] and also by
Texas [Department of Public Safety] and also considerable on-the-job training.‖ He
stated that he is certified by the Texas Commission on Law Enforcement Officer
Standards and Education and that he has received specialized training in ―cell phones
and their usage.‖ Specifically, Detective Tead testified that he attended a three-day
course in March of 2009 focusing on ―isolating and identifying cellular towers to be used
to track individuals, actually track cell phones and the location, physical location, from
which they were used.‖ Detective Tead explained that cell phone companies
systematically keep records of (1) the locations of the various towers that transmit and
receive their signals, and (2) ―what cellular tower and what sector on that cellular tower
a call was first placed to and what cellular tower and sector on that cellular tower was
last communicated with by that cellular device.‖2 Detective Tead acknowledged that he
2
In his testimony before the jury, Detective Tead elaborated on what a cell phone provider’s
records typically show:
What we are going to see on our records is the first tower the cell phone communicates
with and the last tower. Now let’s say I am making a phone call when I start here in
Corpus Christi and stay on that phone call all the way to San Antonio, two hours,
whatever it is. We are going to know the tower which we made the first initiation of that
phone call and the tower that I ended the phone call at. We are not going to know which
towers [I] hit on the way through. It is just not kept in the cell companies[’] records.
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had never before given an opinion in court ―regarding information obtained from cell
phones or cell phone towers‖ but that he has performed analyses on such records some
twelve times previously.
Over defense counsel’s objection, the trial court qualified Detective Tead as an
expert to testify as to the location of Saenz’s cell phone at the time of the shooting
―based on the calls and the data that w[ere] provided by T-Mobile.‖ See TEX. R. EVID.
702. Detective Tead then testified before the jury that, at Detective Rodriguez’s
request, he reviewed the T-Mobile records that were previously authenticated by
McDonald and admitted into evidence. He also obtained records from T-Mobile listing
the global positioning system (―GPS‖) coordinates for all towers located in Texas. The
records showed that a thirty-second call was placed at 10:32 on the evening in question
from Saenz’s cell phone to a cell phone registered in the name of Anthony Curiel.
Detective Tead stated that Curiel ―is a known member of the Suicidal Barrio gang.‖ The
prosecutor then asked:
Q. [Prosecutor] Now were you able to determine the tower usage
that we can associate with the phone [call]?
A. [Detective Tead] Yes. This tower is located—the GPS coordinates
place it on Leopard, near Airport Road or—yes,
Airport Road.
Q. Were you able to determine which particular part of
the tower was used to complete that call?
A. Yes. It was sector two. The call started and ended
in sector two of cellular tower with a [location area
code] of 9905 and a cellular tower I.D. of 40702
which was the cellular tower off of Leopard [S]treet.
Sector two covers a serviceable area which includes
the location of the murder.
Detective Tead further testified that some ten other calls were made or received by
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Saenz’s cell phone that evening, including four calls to and from Rebecca Mills, who
was identified as Saenz’s girlfriend, and two calls placed to other Suicidal Barrios gang
members. The calls which were made at or around the approximate time of the
shooting were associated with towers located near 1112 Sabinas Street. According to
Saenz, ―[i]n essence, [Detective] Tead testified that [Saenz]’s cell phone was at or near
the crime scene at the time of the shooting.‖
The jury convicted Saenz on all counts and this appeal followed.
II. STANDARD OF REVIEW AND APPLICABLE LAW
We review a trial court’s admission of evidence for abuse of discretion.
Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). Texas Rule of
Evidence 702 provides that ―[i]f scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise.‖ TEX. R. EVID. 702. The trial
court’s task in assessing admissibility under Rule 702 ―is to determine whether the
testimony is sufficiently reliable and relevant to help the jury in reaching accurate
results.‖ Kelly v. State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992). ―Because the
possible spectrum of education, skill, and training is so wide, a trial court has great
discretion in determining whether a witness possesses sufficient qualifications to assist
the jury as an expert on a specific topic in a particular case.‖ Davis v. State, 313
S.W.3d 317, 350 (Tex. Crim. App. 2010) (citing Rodgers v. State, 205 S.W.3d 525, 527-
28 (Tex. Crim. App. 2006)). For this reason, appellate courts rarely disturb the trial
court’s determination that a specific witness is or is not qualified to testify as an expert.
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Rodgers, 23 S.W.3d at 27, n.9 (―The question of whether a witness offered as an expert
possesses the required qualifications rests largely in the trial court's discretion. Absent
a clear abuse of that discretion, the trial court’s decision to admit or exclude testimony
will not be disturbed.‖). We will uphold the trial court’s ruling unless it was outside the
zone of reasonable disagreement. Weatherred, 15 S.W.3d at 542 (citing Montgomery
v. State, 810 S.W.2d 372, 381 (Tex. Crim. App. 1990)).
The erroneous admission of expert testimony is non-constitutional error, and will
therefore be reversible only if it affects the defendant’s substantial rights. Turner v.
State, 252 S.W.3d 571, 585 (Tex. App.–Houston [14th Dist.] 2008, pet ref’d) (citing
Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)); see TEX. R. APP. P.
44.2(b).
III. ANALYSIS
In Rodgers, the Texas Court of Criminal Appeals set forth the following non-
exclusive list of questions for appellate courts to consider when determining if a trial
court abused its discretion in ruling on an expert witness’s qualifications:
First, is the field of expertise complex? The degree of education, training,
or experience that a witness should have before he can qualify as an
expert is directly related to the complexity of the field about which he
proposes to testify. If the expert evidence is close to the jury’s common
understanding, the witness’s qualifications are less important than when
the evidence is well outside the jury’s own experience. . . . Second, how
conclusive is the expert’s opinion? The more conclusive the expert’s
opinion, the more important is his degree of expertise. . . . And third, how
central is the area of expertise to the resolution of the lawsuit? The more
dispositive it is of the disputed issues, the more important the expert's
qualifications are. If DNA is the only thing tying the defendant to the
crime, the reliability of the expertise and the witness's qualifications to give
his opinion are more crucial than if eyewitnesses and a confession also
connect the defendant to the crime.
Rodgers, 205 S.W.3d at 528; see Davis, 313 S.W.3d at 350.
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With respect to the first prong, the State argues that ―interpreting the cell phone
data and locating calls within a particular geographic area on a map based on the
location of the cell towers used in those calls was not complex, but a relatively simple
process.‖ The State contends that the process employed by Detective Tead ―appears
to involve little more than understanding that cell phones generally connect to the
nearest tower location and then applying that principle to facts supplied by the cell
phone provider.‖ We agree with that characterization of Detective Tead’s testimony.
On the other hand, Saenz complains that Detective Tead ―has minimal training
and almost no experience. [He] has no Bachelor’s Degree, has no background in cell
phones or cell phone technology, has done no independent research in this area, has
not published anything on the subject, has done minimal analyses, and has never
before testified in court on the subject.‖ Saenz compares Detective Tead’s
qualifications with those of a similar expert considered in Wilson v. State, 195 S.W.3d
193, 200-02 (Tex. App.–San Antonio 2006, no pet.). In that case, the San Antonio
Court of Appeals found that the trial court did not abuse its discretion in admitting expert
testimony by Crystal Danko, a Sprint employee whose duties included accessing
customer records in order to provide tower locations. Id. at 201. Danko had a
Bachelor’s Degree in Criminal Justice and had testified in court multiple times regarding
the tracking of cell phone calls. Id. Saenz argues that Detective Tead’s ―education,
training, and experience cannot begin to compare‖ with that of Danko. See id. We
disagree. Detective Tead’s expert opinion was based on his analysis of records
provided by T-Mobile and admitted into evidence without objection by defense counsel.
Although the process involved in compiling the data is technically complex, the process
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involved in reading and analyzing the data is not. Moreover, ―[t]he degree of education,
training, or experience that a witness should have before he can qualify as an expert is
directly related to the complexity of the field about which he proposes to testify.‖
Rodgers, 205 S.W.3d at 528. Because an analysis of cell phone records such as the
one performed by Detective Tead is relatively simple, the required degree of education,
training and experience was not extremely high. See id. Detective Tead’s
qualifications—four years’ experience as a police officer, a three-day course in cell
phone call tracking, and twelve times performing call tracking analyses—were sufficient
to allow him to ―assist the trier of fact to understand the evidence.‖ TEX. R. EVID. 702;
see Kelly, 824 S.W.2d at 572.
With respect to the second and third prongs under Rodgers, we find that
Detective Tead’s testimony was neither conclusive nor dispositive. Detective Tead did
not purport to identify Saenz’s precise whereabouts based on the cell phone records;
rather, he merely explained that Saenz’s cell phone was in the vicinity of the crime
scene at the time of the shooting. Moreover, there was ample other evidence tying
Saenz to the crime, such as Gonzalez’s eyewitness testimony that Saenz was the
shooter, as well as McCracken’s testimony that Saenz told her that ―he was going to go
hit up‖ the neighborhood where the shooting took place.
We conclude that the trial court did not abuse its discretion in admitting Detective
Tead’s expert testimony. Having so found, we need not address whether Saenz’s
substantial rights were affected by the ruling. See TEX. R. APP. P. 47.1. We overrule
Saenz’s issue.
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IV. CONCLUSION
The judgment of the trial court is affirmed.
DORI CONTRERAS GARZA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
17th day of February, 2011.
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