The State of Texas v. Neriah Louis Roberts ( 2024 )

IN THE
TENTH COURT OF APPEALS
No. 10-23-00008-CR
THE STATE OF TEXAS,
Appellant
v.
NERIAH LOUIS ROBERTS,
Appellee
From the 278th District Court
Walker County, Texas
Trial Court No. 25879
OPINION
The State of Texas appeals the trial court's order granting Appellee Neriah Louis
Roberts's motion for new trial. In a single issue, the State contends the visiting judge who
ruled on the motion for new trial abused his discretion. We reverse the trial court's order
granting Roberts's motion for new trial and render judgment reinstating the trial court's
judgment of conviction and sentence.
Background
On February 1, 2008, Tierra Adams, who was pregnant, was reported missing by
her mother. Roberts was with Adams on January 27, 2008, and fled to Venezuela on
February 13. On March 26, 2008, Adams's body was found in a shallow grave in a
wooded area of Walker County.
Roberts was extradited in 2015 and convicted of Adams's murder in 2022. The
jury assessed punishment at confinement in the Texas Department of Criminal Justice—
Institutional Division for fifty-five years and a $10,000 fine. Roberts filed a motion for
new trial in which he asserted that a crucial witness had come forward with new evidence
and, the day after the trial court denied Roberts's motion to suppress, the Fourteenth
Court of Appeals had issued an important new case, Hankston v. State, 656 S.W.3d 914(Tex. App.—Houston [14th Dist.] 2022, pet. ref'd) (op. on remand), requiring suppression
of cell phone evidence. A visiting judge heard and granted Roberts's motion for new
trial. The State of Texas appeals that ruling. See TEX. CODE CRIM. PROC. ANN. art.
44.01(a)(3).
Motion for New Trial
In a single issue, the State asserts the visiting judge abused his discretion by
granting the motion for new trial. It first contends that the visiting judge granted a new
trial without hearing the facts adduced at the trial or having a record of the trial
proceedings. The record before us does not indicate whether or not the visiting judge
State v. Roberts Page 2
read the record of the trial. Due to our disposition of the State's issue, we need not
address this argument. See TEX. R. APP. P. 47.1; State v. Zalman, 400 S.W.3d 590, 593 n.4
(Tex. Crim. App. 2013).
In addressing Roberts's arguments in the motion, the State contends that the newly
discovered evidence does not satisfy the applicable four-part test warranting a new trial.
Additionally, it argues the decision in this case would not have been altered by Hankston
because the trial judge analyzed this case in light of Carpenter v. United States, 138 S. Ct.
2206 (2018). Finally, the State contends that the trial court's ruling on the motion to
suppress, if erroneous, was harmless.
STANDARD OF REVIEW
We review a trial court's grant or denial of a motion for new trial for an abuse of
discretion. Najar v. State, 618 S.W.3d 366, 371 (Tex. Crim. App. 2021). We view the
evidence in the light most favorable to the trial court's ruling, defer to the trial court's
credibility determinations, and presume that all reasonable fact findings in support of the
ruling have been made. State v. Thomas, 428 S.W.3d 99, 104 (Tex. Crim. App. 2014). We
will reverse the trial court's ruling only if it is arbitrary or unsupported by any reasonable
view of the evidence. Najar, 618 S.W.3d at 372. There is generally no abuse of discretion
in granting a new trial if the defendant (1) articulated a valid claim in the motion, (2)
produced evidence or pointed to record evidence that substantiated his claim, and (3)
State v. Roberts Page 3
showed prejudice under applicable harmless error standards. State v. Arizmendi, 519
S.W.3d 143, 148 (Tex. Crim. App. 2017).
Newly Discovered Evidence
In his motion for new trial, Roberts asserted that a witness, Dora Trevino, came
forward with what he described as critical new information, vital to a factual
determination of guilt. At the hearing on the motion for new trial, Trevino explained that
she knows Roberts and his family because they were neighbors for twenty years. Trevino
testified that, one morning at 4:30 a.m., she saw an African American woman walking on
North Houston Rosslyn. She described her as six months pregnant, about five feet, six
inches tall, and weighing around 160 pounds. She drove past the woman without
stopping. At the time she saw the woman, Trevino was unaware of Adams's
disappearance. A few days later, she saw the missing person's report, contacted Roberts's
mother, and told her what she had seen. On cross-examination, she clarified that she was
not saying she saw Adams.
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. To
obtain relief under article 40.001, the defendant must satisfy the following four-prong
test: (1) the newly discovered evidence was unknown or unavailable to the defendant at
the time of trial; (2) the defendant's failure to discover or obtain the new evidence was
not due to the defendant's lack of due diligence; (3) the new evidence is admissible and
State v. Roberts Page 4
not merely cumulative, corroborative, collateral, or impeaching; and (4) the new evidence
is probably true and will probably bring about a different result in a new trial. Arizmendi,
519 S.W.3d at 149.
The evidence at trial shows that Roberts and Adams were at his house on the
evening of January 27 when they began arguing. He decided to take Adams to her
mother's house. On the way, while driving on North Houston Rosslyn, between
midnight and one o'clock a.m. on January 28, Roberts left Adams on the side of the road.
Adams was five feet, one inches tall and eight and one-half months pregnant.
Roberts's mother was in possession of Trevino's statement in 2008. Roberts has
not shown that his failure to obtain the statement from his mother was not due to his lack
of due diligence. The new evidence must not be based on a witness whose identity and
knowledge of the case was known or by the exercise of reasonable diligence might have
been known before trial. Williams v. State, 549 S.W.2d 734, 736 (Tex. Crim. App. 1977).
Additionally, Trevino's statement is extremely weak. Trevino did not specify the
exact date on which she saw the woman. While the location provided by Trevino
coincided with Roberts's version of events, Trevino admitted that the only light available
was her vehicle's headlights, and she did not stop to speak to the woman. Further,
Trevino's description of the woman she saw does not match Adams's description.
Roberts has not shown that Trevino's statement will probably bring about a different
State v. Roberts Page 5
result in a new trial. Accordingly, Roberts has not shown entitlement to a new trial based
on newly discovered evidence. See id.Motion to Suppress
As a second ground in his motion for new trial, Roberts asserted that the trial court
erred in denying his motion to suppress. During the course of his trial, the Fourteenth
Court of Appeals issued Hankston v. State, holding that, in that case, cell phone tower
evidence was admitted in violation of the law and subject to a harm analysis. See
Hankston, 656 S.W.3d at 917. Roberts argued that Hankston is "an important new case that
directly impacts" his trial, there is a reasonable expectation of privacy in surveillance
information contained in cell phone locations and towers, and the trial court should have
excluded the cell phone tower evidence admitted in his trial.
We disagree that Hankston had any impact on this case. In Hankston, the
Fourteenth Court of Appeals initially rejected Hankston's contention that admission of
his cell site location information (CSLI) violated the Texas or United States Constitutions
and affirmed the conviction. See Hankston v. State, 656 S.W.3d at 916. While Hankston's
petition for writ of certiorari was pending in the United States Supreme Court, that court
decided Carpenter, holding that a defendant has an expectation of privacy in CSLI.
Carpenter, 138 S. Ct. at 2219; Hankston, 656 S.W.3d at 917. The Hankston case was
remanded back to the Fourteenth Court of Appeals to reexamine its Fourth Amendment
holding in light of Carpenter. See Hankston v. State, 582 S.W.3d 278, 279 (Tex. Crim. App.
State v. Roberts Page 6
2019). On remand, the Fourteenth Court of Appeals, applying Carpenter, determined that
the State's warrantless search of appellant's CSLI violated his Fourth Amendment right
against unreasonable searches. Hankston, 656 S.W.3d at 917. The Hankston court merely
applied the 2018 Carpenter decision. See id. It did not change applicable law in any way.
On the fourth day of the trial, Roberts's counsel made an oral motion to suppress
asking the court to suppress "cell site information." She cited the United States Supreme
Court's 2018 ruling in Carpenter to assert that the State was required to, but did not, obtain
a search warrant and argued that admission of the cell site information would be
harmful.1 The trial court heard extensive arguments on the motion, asked numerous
questions, and ultimately allowed admission of the objected-to phone records, as well as
the testimony of an expert to explain them. Thus, Carpenter, the United States Supreme
Court case relied on in Hankston, was issued before Roberts's trial began and was
considered by the trial court in addressing his motion to suppress. In determining
whether the visiting judge erred in granting the motion for new trial on the basis that the
trial court erred in denying Roberts's motion to suppress, we review the trial court's
ruling on the admissibility of the CSLI evidence.
1 The cell phone records, including cell site location information, were lawfully obtained by court order in
2008 pursuant to the version of Texas Code of Criminal Procedure article 18.21 in effect at the time. See Act
of May 29, 1989, 71st Leg., R.S., ch. 958, § 1, 1989 Tex. Gen. Laws 4026, 4029-30, amended by Act of June 14,
2013, 83rd Leg., R.S., ch. 1289, § 6, repealed by Act of June 15, 2017, 85th Leg., R.S., § 5.01(2) (current version
at TEX. CODE CRIM. PROC. ANN. art. 18B.351-18B.356). In 2013, article 18.21 was amended to require a search
warrant for electronic customer data that is in electronic storage, including cell site location information.
See Act of June 14, 2013, 83rd Leg., R.S., ch. 1289, § 6 (repealed 2017) (current version at TEX. CODE CRIM.
PROC. ANN. art. 18B.353-18B.356).
State v. Roberts Page 7
Harm Analysis
Because a suspect has a reasonable expectation of privacy in the record of his
physical movements, in the absence of exceptions supporting a warrantless search, a
search warrant supported by probable cause is generally necessary for the government
to obtain a defendant's CSLI records. Carpenter, 138 S. Ct. at 2221. We will assume
without deciding that the trial court erred in admitting the CSLI evidence because it was
obtained without a warrant. Id.
When a trial court erroneously denies a motion to suppress and admits evidence
obtained in violation of the Fourth Amendment, the error is constitutional and subject to
the harmless-error analysis under Rule 44.2(a). TEX. R. APP. P. 44.2(a); Dixon v. State, 595
S.W.3d 216, 225-26 (Tex. Crim. App. 2020) (Hervey, J., concurring). Constitutional error
is harmful unless the reviewing court determines, beyond a reasonable doubt, that the
error did not contribute to the conviction or punishment. TEX. R. APP. P. 44.2(a).
We are required to evaluate the entire record in a neutral manner to determine
whether there is a reasonable possibility that the error might have contributed to the
conviction. Wells v. State, 611 S.W.3d 396, 410-11 (Tex. Crim. App. 2020); Mosley v. State,
983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh'g). The analysis should not focus
on the propriety of the outcome at trial. Scott v. State, 227 S.W.3d 670, 690 (Tex. Crim.
App. 2007). Rather, "the question is the likelihood that the constitutional error was
actually a contributing factor in the jury's deliberations in arriving at that verdict—
State v. Roberts Page 8
whether, in other words, the error adversely affected 'the integrity of the process leading
to the conviction.'" Id. The reviewing court considers whether the error moved the jury
from a state of non-persuasion to one of persuasion on a particular issue. Id.When deciding whether an error of constitutional dimension contributed to the
conviction, courts consider non-exclusive factors, such as, the source and nature of the
error, whether the error was emphasized by the State, the probable implications of the
error, and the weight the jury would likely have assigned to the error during its
deliberations. Id. Further, "the presence of overwhelming evidence supporting the jury's
verdict can also be a factor in the harmless error calculation." Wells, 611 S.W.3d at 410.
The appellate court should calculate as much as possible the probable impact of the error
on the jury in light of the existence of other evidence. Wesbrook v. State, 29 S.W.3d 103,
119 (Tex. Crim. App. 2000). The reviewing court must be able to declare itself satisfied,
to a level of confidence beyond a reasonable doubt, that the error did not contribute to
the conviction. See Scott, 227 S.W.3d at 690.
According to Roberts, he and Adams had argued, and he left her on the side of the
road near his northwest Houston home between midnight and 1:00 a.m. the morning of
January 28. He returned to his home without her. On February 7, police interviewed
Roberts. Shortly thereafter they obtained his cell phone records. On February 13,
unbeknownst to law enforcement, Roberts left the country. Adams's body was found in
a shallow grave in a wooded area on Pinedale Road in Walker County on March 26.
State v. Roberts Page 9
1) CSLI Evidence
Law enforcement obtained cell phone records for three phone numbers associated
with Roberts. One was used by Roberts's mother, one was used by Karen Frimpong, who
was described as Roberts's girlfriend, and one was used by Roberts.
The State's cell phone expert, Breck McDaniel, reviewed cell phone records from
Roberts's phone and Frimpong's phone for location information.2 Regarding a number
of calls, he was able to determine which cell sites were used to process those calls. By
looking at the time an outgoing call was made using a certain cell site, it can be deduced
that phone was within range of that cell site. He explained that a phone can be up to
twenty-one miles away from the cell site.
Generally, McDaniel mapped out Roberts's cell site tower usage beginning near
his home in northwest Houston on the evening of January 27, 2008. Then, on the morning
of January 28, cell site usage indicates the phone traveled north, in the vicinity of
Interstate 45, to a point north of Pinedale Road. At 6:27 a.m. on the morning of January
28, Roberts's phone called Frimpong's phone while connected to a cell site in "the Walker
County, Huntsville area." Successive cell site connections indicate the phone called
Frimpong's phone that morning while traveling in a southerly direction, apparently
along Interstate 45 through Huntsville and Conroe and back to north Houston.
2Although the raw CSLI data was admitted as exhibits at trial, those exhibits required expert interpretation.
We therefore focus our analysis on testimony regarding that data.
State v. Roberts Page 10
McDaniel also explained that the cell site information indicates that, on the
morning of January 28, Frimpong's phone traveled northward in the vicinity of Interstate
45 and FM 1960 from the Spring area to the north side of Willis, then south through
Conroe and back to the immediate Houston area.
The phone records indicate that, on the morning of January 24, Roberts's phone
connected to a cell site in south Walker County. There is no explanation in evidence for
his presence in that area on that day.
In opening argument to the jury, the prosecutor explained that a cell phone expert
would describe how, early in the morning of January 28, Roberts's cell phone was
"pinging" in north Huntsville, the nearest tower to where the body was found, and then
he drove back home. In closing argument, the prosecutor explained that the timeline "is
where the story all comes together." The prosecutor again identified the timeline of
Roberts's alleged actions based on the phone records: at 9:05 p.m. on January 27 he was
on the northwest side of Houston, and at 6:27 a.m. on January 28 he was near Pinedale
Road. After he called Frimpong at 6:27, she headed north. He headed south as she
headed north, then their phones "ping" back to Houston.
Although other witnesses briefly touched on the fact that cell phone records exist,
McDaniel interpreted the records and presented most of the testimony regarding their
significance. His testimony comprised less than 75 pages, including cross-examination,
less than ten percent of the State's case-in-chief. The State's summary of CSLI evidence
State v. Roberts Page 11
in closing argument constituted roughly one percent of the State's entire closing
argument.
2) Other Evidence Supporting the Verdict
Although Roberts stated in his interview with police that he did not want to be
associated with Adams, he admitted to having a sexual relationship with her and said
there is a chance he was the father of her child. Roberts admitted that he and Adams
fought on January 27 before he made her get out of the car. He claimed that he last saw
her between midnight on January 27 and one a.m. on January 28. Roberts was apparently
the last person to see her alive.
John Nelson testified that, sometime at the end of January or first of February, at
between 7:30 and 8:00 a.m., he helped a man whose car was stuck in mud on Pinedale
Road. He explained that the car was backed up in the ditch and there was a shovel near
the back of the car. He explained that he used his truck and a chain to extract the car. He
testified that the car was a black, four-door, smaller sedan. He was not sure of the make,
either Toyota or Nissan. Nelson was there by the road, helping the stranded motorist,
for fifteen to thirty minutes. In March, when the body was found in the same area, he
contacted law enforcement to report his experience. Nelson picked Roberts out of a photo
lineup. He also identified Roberts in open court as the man he helped.
State v. Roberts Page 12
Law enforcement searched Roberts's home and found items of clothing similar to
those worn by the individual Nelson spoke to. They also found Roberts's black 2005
Nissan Altima at the home.
Other circumstantial evidence also supported the conviction. Evidence showed
that Roberts made a large withdrawal from his retirement account on January 24 and
wrote a large check to his mom. While there was no evidence tying the money to the
murder, the jury could draw reasonable inferences from basic facts. See Hooper v. State,
214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Since Roberts paid for his plane ticket in cash,
the jury could infer Roberts needed cash for his trip to Venezuela. Additionally, a
forensic scientist explained that she found black synthetic fibers on Adams's clothing that
were microscopically similar in some characteristics to a carpet sample from the trunk of
Roberts's car. On February 13, shortly after being interviewed by police and while law
enforcement was still investigating Adams's disappearance, Roberts, who was born on
the Caribbean island of Dominica, fled to Venezuela and used an alias in Dominica.
Viewing the record in its entirety, in a neutral manner, we conclude that other,
properly admitted evidence was a significant basis for the jury to determine Roberts was
guilty, and the CSLI evidence provided only a small part of the evidence establishing
Roberts's guilt. Other evidence seriously undermined Roberts's credibility. The jury had
the benefit of the police interview of Roberts from which the jury could have drawn
conclusions about his credibility, to which we defer. See Thomas, 428 S.W.3d at 104. The
State v. Roberts Page 13
jury heard eyewitness testimony placing Roberts at the burial site the morning after
Roberts and Adams argued. General descriptions of the car and Roberts's clothes
matched what was found at his home. Although there were some discrepancies in
Nelson's testimony regarding the date and details about the car, the jury is the exclusive
judge of witness credibility and the weight to be given their testimony. See Wesbrook, 29
S.W.3d at 111. It is also the exclusive province of the jury to reconcile conflicts in the
evidence. Id. Further, forensic evidence linked the body to Roberts's car. Finally, the
jury may draw an inference of guilt from the fact that Roberts fled to Venezuela. Clayton
v. State, 235 S.W.3d 772, 780 (Tex. Crim. App. 2007).
Error in the admission of CSLI evidence is harmless beyond a reasonable doubt
when, as here, it only incrementally improved the jury's reason to believe other evidence
presented by the State. Dixon, 595 S.W.3d at 220. After performing the Rule 44.2(a) harm
analysis, we hold that, beyond a reasonable doubt, the error in admitting the CSLI
evidence did not contribute to Roberts's conviction. See TEX. R. APP. P. 44.2(a); Mosley,
983 S.W.2d at 259. No reasonable view of the record could support the visiting judge's
ruling on the motion for new trial on the basis that cell phone tower evidence was
erroneously admitted. See Thomas, 428 S.W.3d at 104. Accordingly, Roberts has not
shown entitlement to a new trial on the basis that the trial court erroneously denied his
motion to suppress. We sustain the State's sole issue.
State v. Roberts Page 14
Conclusion
There is no merit in the newly discovered evidence ground or the argument that
Hankston requires suppression of the CSLI evidence in this case as asserted in Roberts's
motion for new trial. Furthermore, Roberts did not show prejudice under applicable
harmless error standards. Arizmendi, 519 S.W.3d at 148. Accordingly, the visiting judge
abused his discretion in granting the motion. See Najar, 618 S.W.3d at 372. We reverse
the trial court's order granting Roberts's motion for a new trial and render judgment
reinstating the trial court's judgment of conviction and Roberts's sentence. See TEX. R.
APP. P. 43.3.
STEVE SMITH
Justice
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Reversed and rendered
Opinion delivered and filed July 11, 2024
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