Lajuan Kendell Ward v. State

Affirmed and Memorandum Opinion filed October 25, 2016.
In The
Fourteenth Court of Appeals
NO. 14-15-00473-CR
LAJUAN KENDELL WARD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Cause No. 1423997
MEMORANDUM OPINION
Appellant Lajuan Kendell Ward was convicted of aggravated robbery and
sentenced to 15 years in prison. See Tex. Penal Code Ann. § 29.03 (West 2011).
Appellant now appeals his conviction. Among other issues, appellant contends the
trial court erred when it included a separate, unindicted offense of criminal
conspiracy in the jury charge. We overrule this issue because the charge did not
include the offense of criminal conspiracy, but instead contained an instruction on
the law of parties, which need not be included in the indictment.
Most of appellant’s issues challenge the admission of evidence. Appellant
contends that the trial court erred when it admitted evidence of an extraneous bad
act during the punishment phase of his trial because the State failed to provide
notice of its intent to do so. We overrule this issue because the record on appeal
demonstrates that notice was given. Appellant also asserts that the trial court
abused its discretion when it denied his motion to suppress his recorded statement,
which was involuntary as a result of police overreaching through a promise of
leniency. We overrule this issue because our review of appellant’s statement does
not reveal a positive promise of lenient treatment by the police investigator.
Next, appellant contends that the trial court abused its discretion when it
admitted expert testimony on the location of appellant’s cell phone around the time
of the robbery because the State’s expert’s opinion was unreliable. We hold the
trial court did not abuse its discretion because the expert adequately demonstrated
his qualifications and explained the methodology used to opine on the location of
appellant’s cell phone during the robbery. Appellant also argues that the trial court
abused its discretion when it denied his motion to suppress his cell phone records
because the affidavit supporting the search warrant did not establish probable
cause. We overrule this issue because the circumstances reflected in the affidavit
as a whole established probable cause. Finally, appellant argues that the trial court
erred when it denied his motion to suppress the search warrant because the State
did not produce the warrant and supporting affidavit to the trial court. Because the
record establishes that the trial court had the opportunity to review the challenged
search warrant and affidavit, we overrule this issue. We therefore affirm the trial
court’s final judgment.
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BACKGROUND
Solomon Deegefa was working as a clerk at Pak’s Tiger Express on West
Alabama Street when a young man, later determined to be appellant, approached
Deegefa to ask him the price of different candies. Appellant moved away from the
register after asking about the candy prices but remained in the store. Appellant
was talking on his cell phone throughout this interaction. Two men, Robert Carter
and Ernest Neil, were also inside the store. Both men were playing black jack
machines. About five to ten minutes later, another man, later determined to be
Reginald Sweed, came into the store with his face covered and wearing medical-
type gloves. Sweed pointed a gun at Deegefa, forced him to the register, and told
him to open it. Sweed took the money from the register as well as Deegefa’s cell
phone and the money from his pockets. Sweed then made Deegefa lie down on the
floor, where he kicked Degeefa in the back. While this was happening at the
register, appellant dealt with the two black jack players. Carter immediately laid
down on the floor in response to appellant’s order. Appellant grabbed Neil from
behind and punched him in the back of the head multiple times, forcing him to the
floor. Appellant told both men not to get up or look at them. Appellant took
Neil’s wallet and cell phone. He also took money out of Carter’s pocket. The two
robbers then left the store.
Neil got into his truck and tried to follow Sweed but was unable to do so.
Neil began searching the area around the store and saw Sweed standing on the side
of a street close to the robbery scene. Neil asked a passerby to use his phone to
call 9-1-1. Neil then saw Sweed run off into a yard.
James Neilsen lived about two blocks from the Pak’s Tiger Express near
where Neil had seen Sweed standing on the street. Neilsen heard his dog barking
and when he looked outside, he saw a man perched on his fence. Neilsen saw the
3
man get in an older Toyota Camry that already had another person slumped down
in the passenger-side seat. The man had trouble starting the car and Neilsen wrote
down the license plate number as well as the make and model of the car. Neilsen
turned the license plate information over to the police that same day. A few days
later, Neilsen found latex gloves and a gun in his yard, which he also turned over
to the police.
Detective Paul Reese investigated the robbery. Using the license plate
number provided by Neilsen, Reese learned the Camry was registered to Sweed’s
wife, Shirley Sweed. Reese talked to Mrs. Sweed, who told him that her husband
drives the Camry. She also gave Reese Sweed’s cell phone number. Reese then
obtained Sweed’s cell phone records. In analyzing those records, Reese identified
another suspect phone number due to the timing and location of calls made to it
from Sweed’s number. Reese obtained phone records for the second number
through a search warrant and discovered that the number belonged to appellant.
Reese called appellant and conducted a non-custodial telephone interview.
Although appellant initially denied involvement in the robbery, he eventually
admitted participating in the robbery with Sweed, his uncle. According to
appellant, Sweed told him he needed to make some money and that he would pay
appellant for his help. Appellant told Reese that his job was to beat up anyone in
the store who tried to resist during the robbery. Appellant also told Reese that he
was talking to Sweed on his cell phone while he was inside the store before the
robbery. Appellant denied knowing prior to the robbery that Sweed had a gun.
Appellant told Reese that he first learned Sweed had a gun when Sweed entered
the store holding the gun in his hand. Appellant continued participating in the
robbery after that point, however, and he also fled the scene with Sweed when the
robbery was over. Appellant was arrested after this conversation.
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Reese turned the phone records he had obtained through the search warrants
over to Officer Eric Powell of the Houston Police Department’s communications
intelligence unit. Powell testified that the cell phone records for appellant’s and
Sweed’s cell phones reveal the calls made and received by each phone number, the
time of each call, and the identification number of the exact cell phone tower that
was used for each call. The cell phone company also provided Powell with access
to a list of the company’s towers and their locations in the Houston area. Powell
testified that by using the historic phone records for the two suspect phones and the
cell company’s list of towers, he was able to map the approximate location of each
cell phone around the time of the robbery. Powell did this by locating the cell
phone tower actually used for the calls made around that time. Powell opined that
the two cell phones were making and receiving phone calls from the vicinity of
Pak’s Tiger Express around 1:00 p.m., the approximate time of the robbery.
Powell came to this conclusion despite knowing that a cell phone does not
necessarily connect with the closest antenna but instead connects with the strongest
signal.
At the conclusion of the evidence, the jury found appellant guilty of
aggravated robbery and sentenced him to fifteen years in prison. This appeal
followed.
ANALYSIS
Appellant raises seven issues challenging his conviction. We address each
in turn.
I. The jury charge did not include an unindicted conspiracy offense.
The jury charge included an instruction explaining criminal responsibility
for the anticipated result of a conspiracy to commit a felony. The charge then
provided a definition of “conspiracy,” which tracked the definition in the Penal
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Code. See Tex. Penal Code Ann. § 15.02 (West 2011) (defining criminal
conspiracy). Based on this language, appellant argues in his first issue that the trial
court committed egregious error because it instructed the jury that, as an alternative
means of conviction, it could find appellant guilty of a criminal conspiracy offense
not authorized by the indictment.
An appellate court’s first duty in analyzing a jury charge issue is to decide
whether error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).
If the reviewing court finds error, it then analyzes that error for harm. Id. Thus,
we must first determine whether error exists in the charge. Id.
Despite appellant’s argument to the contrary, the jury was not instructed on
the separate offense of criminal conspiracy. Instead, the jury was instructed on the
law of parties as one possible means by which it could convict appellant of
aggravated robbery, the charge included in the indictment. A person may be guilty
as a party to aggravated robbery if the defendant committed the offense by his own
conduct or by the conduct of another for which he is criminally responsible. Tex.
Penal Code Ann. § 7.01(a) (West 2011). “A person is criminally responsible for an
offense committed by the conduct of another if: . . . acting with intent to promote
or assist the commission of the offense, he solicits, encourages, directs, aids, or
attempts to aid the other person to commit the offense.” Tex. Penal Code Ann.
§ 7.02(a)(2) (West 2011). “If, in the attempt to carry out a conspiracy to commit
one felony, another felony is committed by one of the conspirators, all conspirators
are guilty of the felony actually committed, though having no intent to commit it, if
the offense was committed in furtherance of the unlawful purpose and was one that
should have been anticipated as a result of the carrying out of the conspiracy.”
Tex. Penal Code Ann. § 7.02(b) (West 2011).
Consistent with section 7.02(b), the law-of-parties instruction in this case
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included an explanation of criminal responsibility for the anticipated result of a
conspiracy to commit a felony. The charge also included a definition of
“conspiracy” that tracked the language of section 15.02 of the Penal Code. The
trial court committed no error by including these matters in the charge. See
Montoya v. State, 810 S.W.2d 160, 165 (Tex. Crim. App. 1989) (rejecting murder
defendant’s complaint that parties charge under section 7.02(b) accompanied by
definition of conspiracy using language found in section 15.02 added unindicted
offense of criminal conspiracy to the charge).
Neither the Penal Code nor due-process principles of fair notice require an
indictment to include the law of parties. Marable v. State, 85 S.W.3d 287, 287
(Tex. Crim. App. 2002); see Tex. Penal Code Ann. § 7.01(c) (West 2011) (“[E]ach
party to an offense may be charged and convicted without alleging that he acted as
a principal or accomplice”). The law of parties may instead be included in the jury
instructions if the evidence supports the submission of the instruction as a possible
means by which the crime was committed. Williams v. State, 473 S.W.3d 319, 329
(Tex. App.—Houston [14th Dist.] 2014, pet. ref’d). Appellant contends in his
reply brief that such a submission was not supported by the evidence, but he
neither raised an issue nor provided argument regarding this contention in his brief
of appellant and thus failed to preserve it for our review. Cf. Tex. R. App. P.
38.1(f), (i). Appellant’s contention would fail in any event because the evidence
recounted in the background section above supports the inclusion of the law of
parties in the charge. There was ample evidence that appellant and Sweed agreed
to commit robbery and that, in the course of carrying out that conspiracy, Sweed
committed aggravated robbery by using or exhibiting a deadly weapon.
For these reasons, the trial court did not err when it included an instruction
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on conspiracy to commit aggravated robbery in the jury charge.1 We overrule
appellant’s first issue.
II. Appellant did not preserve his second issue for appellate review.
Appellant was charged with aggravated robbery. During the charge
conference, the trial court indicated it was including the law of parties as a means
by which the jury could convict appellant of aggravated robbery. Appellant
contends on appeal that he asked the trial court to include an instruction on
“conspiracy to commit robbery” as a lesser-included offense. Appellant argues in
his second issue that the trial court erred when it did not include this instruction in
the jury charge. The State responds that appellant failed to preserve this issue for
appellate review. We agree with the State.
The trial judge has a duty to prepare a jury charge that accurately sets out the
law applicable to the specific offense charged. Tex. Code Crim. Proc. Ann. art.
36.14 (West 2007); Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App.
2007). The trial judge has the duty to instruct the jury on the law applicable to the
case even if defense counsel fails to object to inclusions or exclusions in the
charge. Taylor v. State, 332 S.W.3d 483, 486 (Tex. Crim. App. 2011). A jury
instruction on a lesser-included offense, however, is not the law applicable to the
case absent a request by the defense for its inclusion in the jury charge. See
Tolbert v. State, 306 S.W.3d 776, 781 (Tex. Crim. App. 2010). The judge does not
1
Appellant also argues that the trial court erred when it instructed the jury on conspiracy
under the law of parties because it deprived him of a unanimous verdict. We conclude that
unanimity was not required with respect to the law of parties. See Leza v. State, 351 S.W.3d 344,
357 (Tex. Crim. App. 2011) (“[S]everal courts of appeals in Texas have concluded that the
Legislature did not intend that a jury should have to achieve unanimity with respect to whether
an accused was guilty of capital murder as a principal actor or as a party, or with respect to any
particular statutory alternative by which he might be found liable as a party. We agree, and hold
there was no error in the jury charge.”). Because we conclude that the trial court did not err, we
do not consider harm. Ngo, 175 S.W.3d at 743.
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have a duty to instruct the jury sua sponte on lesser-included offenses. Id.
Therefore, a defendant cannot complain on appeal about the trial judge’s failure to
include a lesser-included-offense instruction unless he requested it or objected to
its absence. Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013).
A trial judge is not required “to mull over all the evidence introduced at trial
in order to determine whether a defendant’s request for a jury instruction means
more than it says.” Bennett v. State, 235 S.W.3d 241, 243 (Tex. Crim. App. 2007).
To preserve error, a request to instruct the jury on a lesser-included offense must
be specific and clear enough to apprise the trial court of the alleged deficiency.
See Pennington v. State, 697 S.W.2d 387, 390 (Tex. Crim. App. 1985). Finally, if
an appellant’s argument on appeal regarding a lesser-included offense does not
comport with his objection or request at trial, his complaint is not preserved for
appellate review. See Penry v. State, 903 S.W.2d 715, 753 (Tex. Crim. App.
1995); Pennington, 697 S.W.2d at 390; Johnson v. State, 416 S.W.3d 602, 614–15
(Tex. App.—Houston [14th Dist.] 2013, no pet.).
During the charge conference, the following exchange occurred:
[Defense Attorney 1]: The two application paragraphs the second one
which deals with conspiracy we would request a
lesser included instruction that if they find that he
was guilty of conspiring to commit the
misdemeanor [sic] offense of robbery that he
would not be guilty of aggravated robbery.
The evidentiary basis for that would be his phone
conversation was admitted into evidence. At some
point in there he says something about we’re going
over to rough these people up or something like
that. I don’t think that he said beat them up but
going over there to assault them because uncle said
they ripped him off got some of his money. And
under the law as I understand it under conspiracy
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he can’t be guilty of aggravated robbery unless
they were conspiring to commit a felony of
robbery.
The Court: Right. But that’s encompassed in the charge. You
want me to add kind of an inverse charge?
[Defense Attorney 1]: A lesser included. “If you find that he was guilty
of the conspiracy to assault that he would not be
guilty of aggravated robbery.”
The trial court denied appellant’s request. The State then presented one last
witness and then both sides rested. At this point, the following exchange occurred:
[Defense Attorney 2]: Just to clarify for the record no other objections
other than what we talked about in previous
conference, the request for the lesser included.
The Court: What was your lesser?
[Defense Attorney 2]: I believe [Defense Attorney 1] asked for lesser
included of assault which was denied. I just
wanted to clarify we had no further objections.
The Court: You were asking for lesser included of assault?
[Defense Attorney 1]: Under the conspiracy application paragraph.
The Court: Oh, you wanted a lesser of assault.
[Defense Attorney 1]: Yes and you overruled it. We just wanted to make
sure the record - -
The Court: I didn’t understand that’s what you were asking
for. I thought you meant you wanted me to say
something about the conspiracy charge that they
couldn’t find him guilty of aggravated robbery if
they thought the original conspiracy was for
assault.
[Defense Attorney 1]: Yes, that’s correct. That’s what we were
requesting that charge, that if he was conspiring
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only to commit an assault, if that’s what the jury
finds they could not find him guilty of aggravated
robbery ’cause that would be a conspiracy to
commit a misdemeanor not a felony.
The Court: Okay. And I think that that’s covered in the way
that the charge is already written but you’re also
asking for a lesser of assault to be submitted to the
jury?
[Defense Attorney 1]: Yes. The assault by threat.
The Court: Okay. Yes that’s denied.
Appellant argues in his second issue on appeal that the trial court erred when
it denied his request for the jury charge to include “the lesser included offense of
conspiracy to commit robbery.” This contention does not match the request made
in the trial court. Therefore, appellant did not preserve this argument for appellate
review. See Penry, 903 S.W.2d at 753; Pennington, 697 S.W.2d at 390; Johnson,
416 S.W.3d at 614–15. We overrule appellant’s second issue.
III. The trial court did not abuse its discretion in admitting extraneous-
offense evidence during the punishment phase of trial because the State
provided notice of its intent to introduce such evidence.
During the punishment phase of appellant’s trial, the State sought to
introduce evidence of the details underlying appellant’s juvenile conviction for
kidnapping. The State had notified appellant that it “may use the following
extraneous offenses and/or prior convictions . . . as such become admissible: (1)
On January 27, 2010, in cause number 200901824J, Defendant was placed on
juvenile probation for . . . kidnapping in the 313the [sic] District Court of Harris
County, Texas.” The State also provided appellant with a copy of the juvenile
probation records and filed them with the trial court. Appellant stipulated to the
conviction.
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When appellant learned that the State intended to introduce evidence of the
details involved in the kidnapping episode, he objected that the State had not
provided notice of this intent to go behind the fact of the conviction as required by
article 37.07(g) of the Texas Code of Criminal Procedure. The State responded
that it provided the required notice and that it was authorized to introduce evidence
regarding the details of the prior conviction. The trial court overruled appellant’s
objection and admitted the extraneous-offense evidence. In his third issue,
appellant contends the trial court abused its discretion when it overruled his
objection and allowed the admission of evidence regarding the details of the
kidnapping.
During the punishment phase of a trial, article 37.07 permits the introduction
of evidence of extraneous offenses committed by a defendant to the extent the
court deems the evidence relevant to sentencing. Tex. Code Crim. Proc. Ann. art.
37.07 § 3(a) (West 2006). If the defendant requests notice of the State’s intent to
use an extraneous offense during the punishment phase, then the State must
provide it in the same manner required by Rule 404(b) of the Texas Rules of
Evidence. Id. § 3(g). The trial court is the authority on the threshold issue of
admissibility of relevant evidence during the punishment phase. Mitchell v. State,
931 S.W.2d 950, 953 (Tex. Crim. App. 1996). We review a trial court’s ruling on
the admissibility of extraneous-offense evidence for an abuse of discretion. Brooks
v. State, 76 S.W.3d 426, 435 (Tex. App.—Houston [14th Dist.] 2002, no pet.).
Appellant does not dispute that he received notice of the State’s intent to use
his kidnapping conviction. This is the only notice the statute requires when a prior
bad act has resulted in a conviction. See Tex. Crim. Proc. Code Ann. art. 37.07
§ 3(g) (requiring State to provide detailed information regarding extraneous
offense only when it did not result in final conviction or probated or suspended
12
sentence); cf. Brooks, 76 S.W.3d at 435 (stating in dicta that no notice is required if
court only considers evidence of extraneous offense that resulted in a final
conviction). Once notice was given, the State was permitted to introduce evidence
regarding the facts underlying appellant’s prior conviction during the punishment
phase of the trial. Hambrick v. State, 11 S.W.3d 241, 243 (Tex. App.—Texarkana
1999, no pet.) (citing Davis v. State, 968 S.W.2d 368, 373 (Tex. Crim. App.
1998)). Because appellant has not shown that the trial court abused its discretion
when it overruled his objection and admitted the evidence detailing appellant’s
kidnapping conviction, we overrule his third issue.
IV. The trial court did not abuse its discretion when it denied appellant’s
motion to suppress his statement because it was not procured through a
promise of leniency.
Appellant contends in his fourth issue that his due process rights were
violated when the police obtained his confession during a non-custodial phone
interview because the confession was “the product of promises of leniency made
by police.” The State responds that the trial court did not abuse its discretion when
it denied appellant’s motion because the police did not make positive promises of
lenient treatment during the interview.
A. Standard of review and applicable law
We review a trial court’s ruling on a motion to suppress for an abuse of
discretion and overturn the ruling only if it is outside the zone of reasonable
disagreement. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011).
We must view the evidence in the light most favorable to the trial court’s ruling.
Weide v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). At a suppression
hearing, the trial judge is the sole trier of fact and assesses the witnesses’
credibility and decides the weight to give their testimony. Id. at 24–25. When, as
13
here, the trial court makes explicit findings, we determine whether the evidence,
when viewed in the light most favorable to the ruling, supports those fact findings.
State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). We then review the
trial court’s legal rulings de novo unless its explicit fact findings supported by the
record are also dispositive of the legal ruling. Id. We uphold the ruling if it is
supported by the record and correct under any theory of the law applicable to the
case. Hereford v. State, 339 S.W.3d 111, 117–18 (Tex. Crim. App. 2011). The
burden of proof at the hearing on admissibility is on the State, which must prove
by a preponderance of the evidence that the defendant’s statement was given
voluntarily. Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995).
A statement is involuntary if the defendant was offered inducements of such
a nature or coerced to such a degree that the inducements or coercion produced the
statement. See Alvarado, 912 S.W.2d at 211. The ultimate test is whether the
defendant’s will was overborne by the police conduct. Creager v. State, 952
S.W.2d 852, 856 (Tex. Crim. App. 1997); Mason v. State, 116 S.W.3d 248, 257
(Tex. App.—Houston [14th Dist.] 2003, pet. ref’d). Claims that a confession was
obtained involuntarily in violation of due process do not require that the defendant
be in custody during the interview. Wolfe v. State, 917 S.W.2d 270, 282 (Tex.
Crim. App. 1996).
For inducement-based claims of involuntariness, the question is whether the
circumstances show that the confession was induced by a promise of a benefit.
Ramirez v. State, 76 S.W.3d 121, 126–27 (Tex. App.—Houston [14th Dist.] 2002,
pet. ref’d). To render a confession involuntary, a promise must have been positive,
made or sanctioned by someone in authority, and of such an influential nature that
it would cause a defendant to speak untruthfully. Martinez v. State, 127 S.W.3d
792, 794 (Tex. Crim. App. 2004); Sossamon v. State, 816 S.W.2d 340, 345 (Tex.
14
Crim. App. 1991). General statements regarding how a confession can sometimes
result in leniency do not render a confession involuntary. Muniz v. State, 851
S.W.2d 238, 254 (Tex. Crim. App. 1993). Nor do general offers to help or
expressions of opinion that it would be best for the suspect to tell the truth. Dykes
v. State, 657 S.W.2d 796, 797 (Tex. Crim. App. 1983). Nor do predictions about
future events involving what might happen if the suspect does, or does not,
cooperate. Mason, 116 S.W.3d at 260; see Espinosa v. State, 899 S.W.3d 359,
362–64 (Tex. App.—Houston [14th Dist.] 1995, pet. ref’d) (holding statement not
rendered involuntary by officer telling suspect to “tell us what happened.
Everything will be better for you. You will get less time.”).
B. The police did not make a positive promise of lenient treatment
that induced appellant’s confession.
Appellant specifically complains of the following statement by Detective
Reese during the call:
I’m going to give you one last chance to tell me the truth. If not, then
the next time you see me it may be under different circumstances,
okay? It ain’t worth protecting [Sweed]. Last thing I’m going to tell
you — it ain’t worth it. Now tell me the truth. If you have ever done
anything in your life that’s smart, tell me the truth. I want to know the
truth on this day what happened with you and your uncle and how you
got drug into the middle of this . . . . Your mother is a hard working
woman; she taught you a lot of good values. She goes to work every
day. It ain’t worth not being able to see your mother for years. . . . It
ain’t worth it. You got a girlfriend that’s with you now that loves you.
You got a lot to live for. This ain’t worth going to prison for. Quit
lying to me and tell me the truth.
In appellant’s view, Detective Reese’s statement “could reasonably be interpreted
as promises that appellant would not go to jail if he told the truth.”2 The trial court
2
Appellant also complained in the trial court about other statements made by Detective
Reese during the telephone interview. These other statements ultimately were not included in
15
disagreed, finding that “Reese did not threaten, coerce or induce [appellant] to talk
to him on the phone.” The trial court then concluded that appellant’s statement
was voluntary.
Having considered the statement and the circumstances in which it was
given,3 we conclude that the challenged comments by Detective Reese do not rise
to the level of a positive promise that would influence a defendant to speak
untruthfully. See Dykes v. State, 657 S.W.2d 796, 797 (Tex. Crim. App. 1983)
(stating that general offers to help or expressions of opinion that it would be best
for suspect to tell the truth do not render statement involuntary); Coleman v. State,
440 S.W.3d 218, 224–25 (Tex. App.—Houston [14th Dist.] 2013, no pet.)
(concluding that general statements by officer that defendant could help himself by
confessing were not positive promises of leniency); Ramirez, 76 S.W.3d at 126–27
(concluding detective’s discussion about belief juries favor people who tell the
truth was statement of opinion not positive promise); Espinosa, 899 S.W.2d at
362–64. We hold appellant has not demonstrated that the trial court abused its
discretion when it denied his motion to suppress. We overrule appellant’s fourth
issue.
V. The trial court did not abuse its discretion in admitting the State’s
expert testimony on the location of appellant’s cell phone around the
time of the robbery.
In his fifth issue, appellant argues that because the State’s expert, Officer
Powell, was unfamiliar with the proprietary software used to determine cell tower
to which a phone will connect during a call, he was unqualified and his opinion
the portion of the interview that was admitted into evidence and played for the jury.
3
The statement at issue here was part of a three-way telephone conference call initiated
by appellant’s mother. Appellant’s confession occurred after appellant’s mother had
discontinued her participation in the call.
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unreliable. Appellant contends the trial court should therefore have excluded
Powell from testifying at trial. The State responds that Powell was qualified to
opine on the location of appellant’s cell phone during the robbery, and his lack of
knowledge regarding proprietary software did not impact the reliability of his
opinion that appellant’s cell phone was in the approximate area of the Pak’s Tiger
Express around the time of the robbery.
A. Standard of review and applicable law
Rule 702 of the Texas Rules of Evidence provides: “ A witness who is
qualified as an expert by knowledge, skill, experience, training, or education may
testify in the form of an opinion or otherwise if the expert’s scientific, technical, or
other specialized knowledge will help the trier of fact to understand the evidence or
to determine a fact in issue.” Before admitting expert testimony under Rule 702,
the trial court must be satisfied that three conditions are met: (1) the witness
qualifies as an expert by reason of his knowledge, skill, experience, training, or
education; (2) the subject matter of the testimony is appropriate for expert
testimony; and (3) admitting the expert testimony will actually assist the fact finder
in deciding the case. Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006).
These conditions are commonly referred to as (1) qualification, (2) reliability, and
(3) relevance. Id.
Qualification is distinct from reliability and relevance and should be
evaluated independently. Id. at 131. The proponent of the expert testimony bears
the burden of proving the expert is qualified. Turner v. State, 252 S.W.3d 571, 584
(Tex. App.—Houston [14th Dist.] 2008, pet. ref’d). The specialized knowledge
that qualifies a witness to give an expert opinion may be derived from specialized
education, practical experience, a study of technical works, or a varying
combination of these things. Id. at 585. The witness’s specialized knowledge
17
must be beyond that possessed by the average person, “but the gap need not
necessarily be monumental.” Davis v. State, 313 S.W.3d 317, 350 (Tex. Crim.
App. 2010). In addition, the witness’s background must be tailored to the specific
area of expertise about which he intends to testify. Vela, 209 S.W.3d at 133. In
other words, to determine whether a witness is qualified to testify as an expert, the
trial court must consider whether the witness has a sufficient background in a
particular field and whether that background goes to the very matter on which the
witness is to give an opinion. Id. Because the possible spectrum of education,
skill, and training is so wide, a trial court has considerable discretion in
determining whether a witness possesses sufficient qualifications to assist the jury
as an expert. Rodgers v. State, 205 S.W.3d 525, 527–28 (Tex. Crim. App. 2006).
Texas Rule of Evidence 705(c) governs the reliability of expert testimony
and states that “[a]n expert’s opinion is inadmissible if the underlying facts or data
do not provide a sufficient basis for the opinion.” Tex. R. Evid. 705(c). The
reliability inquiry is flexible, at times focusing on the reliability of scientific
knowledge, at other times on the expert’s personal knowledge and experience.
Vela, 209 S.W.3d at 134. Indeed, experience alone may provide a sufficient basis
for an expert’s testimony. Id. The proponent of the expert must establish some
foundation for the reliability of the proffered expert’s opinion. Id.
To be considered reliable, evidence from a scientific theory must satisfy
three criteria: “(a) the underlying scientific theory must be valid; (b) the technique
applying the theory must be valid; and (c) the technique must have been properly
applied on the occasion in question.” Coble v. State, 330 S.W.3d 253, 273 (Tex.
Crim. App. 2010) (quoting Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App.
1992)). When “soft” sciences are at issue, the trial court must inquire “(1) whether
the field of expertise is a legitimate one, (2) whether the subject matter of the
18
expert’s testimony is within the scope of that field, and (3) whether the expert’s
testimony properly relies upon and/or utilizes the principles involved in the field.”
Id. (quoting Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998)). “This
inquiry is somewhat more flexible than the Kelly factors applicable to Newtonian
and medical science.”4 Id. The general principles announced in Kelly apply, but
the specific factors outlined in those cases may, or may not apply depending upon
the context. Id. Regardless, under both Kelly and Nenno, reliability should be
evaluated by reference to the standards applicable to the particular professional
field in question. Id.
We use the abuse-of-discretion standard to review a trial court’s decision on
whether to allow expert testimony. Gallo v. State, 239 S.W.3d 757, 765 (Tex.
Crim. App. 2007). Before reversing the trial court’s decision, we must find the
trial court’s ruling was so clearly wrong as to lie outside the realm within which
reasonable people might disagree. See Taylor v. State, 268 S.W.3d 571, 579 (Tex.
Crim. App. 2008); Green v. State, 191 S.W.3d 888, 895 (Tex. App.—Houston
[14th Dist.] 2006, pet. ref’d). Absent a clear abuse of discretion, the trial court’s
decision to admit or exclude expert testimony will not be disturbed. Wyatt v. State,
23 S.W.3d 18, 27 (Tex. Crim. App. 2000).
B. The record supports the trial court’s ruling that Officer Powell
was qualified to testify and his opinion was reliable.
The State called Officer Powell as an expert to testify on the approximate
4
Kelly v. State, 824 S.W2d 568, 573 (Tex. Crim. App. 1992). The factors found in Kelly
include: (1) the extent to which the underlying scientific theory and technique are accepted as
valid by the relevant scientific community, if such a community can be ascertained; (2) the
qualifications of the expert testifying; (3) the existence of literature supporting or rejecting the
underlying scientific theory and technique; (4) the potential rate of error of the technique; (5) the
availability of other experts to test and evaluate the technique; (6) the clarity with which the
underlying scientific theory and technique can be explained to the court; and (7) the experience
and skill of the person(s) who applied the technique on the occasion in question. Id.
19
location of appellant’s cell phone before, during, and after the robbery at Pak’s
Tiger Express using: (1) historic phone records from appellant’s cell phone
provider, and (2) a list of the provider’s Houston-area cell phone towers and their
locations5 in Houston. The trial court held a hearing outside the presence of the
jury to consider appellant’s motion to exclude Powell’s testimony. At the hearing,
Powell testified about his qualifications to opine on these subjects. Powell testified
that he had nearly 384 hours of formal training through the Houston Police
Department, the FBI, and the U. S. Marshal’s office regarding how cell phone
networks operate, cell phone company record-keeping practices, how to analyze
and use cell phone records, and how to map cell phone towers. Powell further
testified that he had worked in the Houston Police Department’s Criminal
Intelligence Division for six years performing these types of tasks on a daily basis.
Powell testified that appellant’s cell phone records report the exact tower a cell
phone connected to for each call made or received. Powell also testified that he
was aware that a cell phone connects to the tower with the strongest signal, not just
the closest tower. Powell admitted that he was not familiar with the proprietary
software the phones use to determine which tower has the strongest signal. Powell
was familiar with the geographic sector each tower served, however.
We conclude that knowledge regarding the cell phone’s proprietary software
was not relevant to the relatively simple task Officer Powell was called upon to
perform: map the location of appellant’s cell phone by using the towers identified
in appellant’s cell phone records and the locations of the cell phone provider’s
towers. See Thompson v. State, 425 S.W.3d 480, 489 (Tex. App.—Houston [1st
Dist.] 2012, pet. ref’d) (“The complexity of the technique employed in this case to
interpret the records is not great—[the witness] only needed to know how the
5
The cell phone provider gives police online access to their tower list, which provides
each tower’s location using its latitude and longitude.
20
records were produced and what the data in each column signified.”); Robinson v.
State, 368 S.W.3d 588, 601 (Tex. App.—Austin 2012, pet. ref’d) (“The analysis is
straightforward and not particularly complex.”). Officer Powell’s training and
experience were on the exact subject about which he was asked to testify during
appellant’s trial. We conclude the trial court did not abuse its discretion when it
determined Officer Powell was qualified to testify as an expert. See Thompson,
425 S.W.3d at 489 (concluding trial court did not abuse its discretion when it
determined that officer with less training than Powell was qualified as an expert to
render opinion on location of defendant’s cell phone); Robinson, 368 S.W.3d at
600–01 (concluding police witness with training similar to Officer Powell’s was
qualified to render opinion on general location of defendant’s cell phone).
Appellant also argues that the trial court abused its discretion in admitting
Officer Powell’s testimony because his opinion was unreliable. Appellant argues it
was unreliable for three reasons: (1) Powell was unfamiliar with the proprietary
software the phones use to connect with a tower, (2) he was unaware of the
variables present around Pak’s Tiger Express that theoretically could affect which
tower a cell phone would connect to at a given time, and (3) he incorrectly testified
that cell phones connect to the closest tower. The first two complaints do not
impact the reliability of Officer Powell’s opinion because the historic cell phone
records reveal the exact tower appellant’s cell phone connected to before, during,
and after the robbery, thereby removing any doubt about the potential impact of
environmental or other factors impacting which tower was used. See Thompson,
425 S.W.3d at 488–89 (rejecting challenge to expert opinion based on argument it
was possible defendant’s cell phone was located miles away from tower shown in
records). Appellant’s third complaint misstates Officer Powell’s testimony.
Officer Powell never testified that a cell phone always communicates with the
21
closest tower. Powell instead testified that a cell phone connects to the tower with
the strongest signal, which may or may not be the tower closest to the cell phone
but generally will be within a half-mile to one mile from the phone in a congested
urban area. He also testified that about 90 percent of the time, he can locate a
person by identifying the towers to which his cell phone connects when calls are
made or received. Because Officer Powell was aware of (1) the basic functioning
of cell phones and how they connect with cell phone towers, and (2) the areas
served by each cell phone tower, we conclude the trial court did not abuse its
discretion when it determined that his opinion on the general location of
appellant’s cell phone around the time of the Pak’s Tiger Express robbery was
reliable. See id. We overrule appellant’s fifth issue.
VI. The trial court did not err when it denied appellant’s motion to
suppress his cell phone records.
Appellant argues in his sixth issue that the trial court erred when it denied
his motion to suppress his cell phone records because Detective Reese’s affidavit
used in the application for the search warrant failed to establish probable cause.
The State responds the trial court committed no error because the affidavit
established probable cause.
A. Standard of review and applicable law
As discussed above, we ordinarily review a trial court’s ruling on a motion
to suppress evidence for an abuse of discretion. Martinez, 348 S.W.3d at 922. We
give almost total deference to the trial court’s determination of historical facts that
depend on credibility and review de novo the trial court’s application of the law to
those facts. State v. Dugas, 296 S.W.3d 112, 115 (Tex. App.—Houston [14th
Dist.] 2009, pet. ref’d). We also review de novo the trial court’s application of the
law of search and seizure. Id. When reviewing a magistrate’s decision to issue a
22
warrant, however, trial and appellate courts apply a highly deferential standard in
keeping with the constitutional preference for a warrant. Rodriguez v. State, 232
S.W.3d 55, 61 (Tex. Crim. App. 2007).
The Code of Criminal Procedure allows the issuance of a search warrant to
seize property or items that constitute evidence of an offense. Dugas, 296 S.W.3d
at 115 (citing Tex. Code Crim. Proc. Ann. art. 18.02(10) (West 2005) and Muniz v.
State, 264 S.W.3d 392, 396 (Tex. App.—Houston [1st Dist.] 2008, no pet.)).
Before a search warrant may be issued, a sworn affidavit must be filed setting forth
sufficient facts to show probable cause that (1) a specific offense has been
committed; (2) the specifically described property or items to be searched for or
seized constitute evidence of that offense or evidence that a particular person
committed that offense; and (3) the property or items constituting such evidence
are located at or on the particular person, place, or thing to be searched. Id. (citing
Tex. Code Crim. Proc. Ann. art. 18.01(c) (West 2015)).
Probable cause to support the issuance of a search warrant exists when a
magistrate has a substantial basis for concluding that a search would uncover
evidence of wrongdoing. Id. When making this determination, the magistrate is
not bound by such standards as proof beyond a reasonable doubt or by a
preponderance of the evidence; rather, the magistrate’s sole concern should be
probability. Rodriguez, 232 S.W.3d at 60. The test is whether a reasonable
reading of the affidavit by the magistrate would lead to the conclusion that the
affidavit provided a substantial basis for the issuance of the search warrant. Id.
When reviewing an issuing magistrate’s probable-cause determination, an
appellate court should interpret the affidavit in a common-sense and realistic
manner, recognizing that the magistrate may draw reasonable inferences. Id. at 61.
When in doubt, a reviewing court defers to all reasonable inferences that the
23
magistrate could have made. Id. The determination whether an affidavit
established probable cause “is a flexible and non[-]demanding standard.” Id.
When making this determination, reviewing courts should consider whether there
are sufficient facts, coupled with inferences from those facts, to establish a fair
probability that evidence of a particular crime will likely be found at the specified
location. Id. at 62. In other words, reviewing courts should focus on the combined
logical force of the facts included in the affidavit and not whether there are other
facts that could have or even should have been included. Id. When determining
the sufficiency of an affidavit to establish probable cause, a reviewing court is
limited to the four corners of the affidavit. Bonds v. State, 403 S.W.3d 867, 873
(Tex. Crim. App. 2013). Whether the facts mentioned in an affidavit establish
probable cause depends on the totality of the circumstances. Id.
B. The affidavit supporting the search warrant for appellant’s cell
phone records is not conclusory and establishes probable cause.
Appellant argues the trial court erred when it denied his motion to suppress
because Detective Reese’s affidavit is conclusory. In appellant’s view, the
affidavit lacks crucial, specific facts such as which robbery suspect was talking on
the cell phone inside the store, the exact timing of “prior to and after the robbery,”
as well as the lack of any showing of who was actually using the relevant cell
phones during those times. We disagree that, under the appropriate standard of
review, Detective Reese’s affidavit was insufficient to establish probable cause.
In his affidavit, Detective Reese stated that he was the officer assigned by
the Houston Police Department to investigate the robbery at the Pak’s Tiger
Express store located on West Alabama Street. Reese went on to state that the
clerk, Deegefa, informed him that the unarmed suspect was talking on a cell phone
while “canvassing out the store” prior to the robbery. Reese also reported that one
24
of the victims followed the suspects to the residence at 401 Sul Ross, where he
found his cell phone that had been taken by the unarmed robbery suspect. Reese
then stated that he talked to James Nielsen, who lived at 401 Sul Ross. Neilsen
told Reese he saw a man climb over his fence and get into a Toyota Camry.
Nielsen wrote down the Camry’s license plate number and turned it over to the
police. Reese reported that, using that license plate number, he learned the Camry
was registered to Shirley Sweed, who told him that her husband, Reginald Sweed,
drove the car. Reese then reported that he talked to Sweed, who told him his cell
phone number and consented to Reese obtaining copies of his cell phone records.
Reese explained that he had examined Sweed’s cell phone records and determined
that Sweed was communicating with another cell phone prior to and after the
robbery. Reese then stated that he believed this number, the target of the requested
search warrant, would provide evidence related to the Pak’s Tiger Express robbery.
We hold that Reese’s affidavit is not conclusory because the facts stated
therein, and reasonable inferences to be drawn from those facts, provided the
magistrate a substantial basis conclude there was a fair probability that the records
for the cell phone with which Sweed was communicating prior to and after the
robbery would provide evidence of the offense or that a particular person
committed the offense. See Gabriel v. State, 290 S.W.3d 426, 434–35 (Tex.
App.—Houston [14th Dist.] 2009, no pet.) (holding affidavit was not conclusory
because it provided substantial basis for magistrate to conclude search warrant
would uncover further evidence of theft); Uresti v. State, 98 S.W.3d 321, 335 (Tex.
App.—Houston [1st Dist.] 2003, no pet.) (same). We therefore overrule
appellant’s sixth issue.
25
VII. The record establishes that the trial court had the opportunity to review
the challenged search warrant and affidavit.
As discussed in part VI above, appellant filed a motion to suppress his cell
phone records based on the argument that the supporting affidavit failed to
establish probable cause. Appellant attached the search warrant and supporting
affidavit to his motion, which is included in the appellate record. In addition, the
State questioned Reese about the search warrant during the hearing on appellant’s
motion to suppress. Now, in his seventh issue, appellant argues that the trial court
erred when it denied his motion to suppress because the State did not produce the
search warrant and the affidavit for inspection by the trial court.
Appellant cites Miller v. State in support of his argument. 736 S.W.3d 643,
647–48 (Tex. Crim. App. 1987) (quoting Gant v. State, 649 S.W.2d 30, 33 (Tex.
Crim. App. 1979)). In Miller, the Court of Criminal Appeals observed that error
will result if the State relies on a warrant and the record does not reflect that the
warrant was exhibited to the trial court for a ruling. Id. at 648. The purpose
behind this requirement is to ensure that the trial court had the opportunity to
inspect the challenged documents and determine whether probable cause existed
and the defendant’s rights were protected. Underwood v. State, 967 S.W.2d 925,
927 (Tex. App.—Beaumont 1998, pet. ref’d). Because the record reflects that the
trial court had this opportunity, we overrule appellant’s seventh issue. See
Cannady v. State, 582 S.W.2d 467, 469 (Tex. Crim. App. [Panel Op.] 1979)
(rejecting defendant’s contention that State did not produce search warrant during
hearing because reporter’s notes of hearing indicate witness identified warrant and
record included copy of affidavit and portion of warrant).
26
CONCLUSION
Having overruled all issues raised by appellant in this appeal, we affirm the
trial court’s judgment.
/s/ J. Brett Busby
Justice
Panel consists of Justices Christopher, McCally, and Busby.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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