ACCEPTED 05-17-00257-CR FIFTH COURT OF APPEALS DALLAS, TEXAS 6/1/2018 6:12 PM LISA MATZ CLERK
FIFTH COURT OF APPEALS FILED IN No. 05-17-00257-CR 5th COURT OF APPEALS DALLAS, TEXAS 06/01/2018 6:12:54 PM LISA MATZ Ali L. Ghanbari, Appellant, Clerk v. State of Texas, Appellee
On Appeal from the 199th District Court, Collin County No. 199-81974-2013
Appellant’s Response to State’s Motion to Strike Appellant’s Brief
Michael Mowla P.O. Box 868 Cedar Hill, TX 75106 Phone: 972-795-2401 Fax: 972-692-6636 michael@mowlalaw.com Texas Bar No. 24048680 Attorney for Appellant To the Honorable Justices of the Court of Appeals:
Attorney for Appellant files this response to the State’s motion to strike the
Appellant’s Brief:
1. The allegation that Attorney for Appellant used the Appendix avoid the word-limit on the Appellant’s Brief is unfounded 1. On June 1, 2018, the State filed a motion to strike the Appellant’s Brief,
arguing that Attorney for Appellant attempted to use the Appendix to avoid the
word-limit on the Appellant’s Brief.
2. This allegation is unfounded.
3. The State also claims in its certificate of conference that “[O]n May 16,
2018, Assistant District Attorney John Rolater spoke with Appellant’s counsel,
Michael Mowla, about this motion. Mr. Mowla disagreed that his brief violates the
word limit and would oppose this motion.”
4. What Attorney for Appellant told John Rolater is that for the reasons
stated in the Appellant’s Brief, his conversation with Mr. Rolater, and explained in
this Response, this is a nonissue for Attorney for Appellant.
5. As Attorney for Appellant explained in the Appellant’s Brief, the issue
of whether Tex. Code Crim. Proc. Art. 38.23(a) requires suppression of all the
evidence obtained by the police concerning the “Ali-cellphone” is pending before
the Texas Court of Criminal Appeals (“TCCA”) in Sims v. State, No. PD-0941-17
(Tex. Crim. App., pet. gr.).
2 6. Attorney for Appellant is the attorney for Appellant Sims in that case.
7. In the Appellant’s Brief, Attorney for Appellant explained, “The issue
regarding whether Tex. Code Crim. Proc. Art. 38.23(a) (2016) requires suppression
of the evidence involves detailed briefing and cannot be presented in full in this
Brief due to the word-limitation.”
8. This means that Issue 4 is complex and cannot be briefed in full as it
was briefed in Sims.
9. Attorney for Appellant did not state that Issue 4 is inadequately
briefed so Attorney for Appellant desires this Court to look to the Appellant’s Brief
in Sims that is attached in the Appendix for “additional briefing.”
10. This is precisely what Attorney for Appellant told Mr. Rolater.
11. And, Attorney for Appellant told Mr. Rolater that he included the Brief
in Sims as a courtesy to this Court and to the State (rather than simply providing a
link to the Sims brief, which Attorney for Appellant could have done to avoid
spending time responding to this motion).
12. As Attorney for Appellant explains in the Appellant’s Brief, in Sims v.
State, 526 S.W.3d 638 (Tex. App. Texarkana 2017), the Sixth Court of Appeals ruled
that Art. 38.23(a) does not require suppression when the evidence is obtained in
violation of Tex. Code Crim. Proc. Art. 18.21 § 1(3)(c) (2016) or the Federal Stored
Communication Act (“SCA”).
3 13. On October 29, 2017, Attorney for Appellant filed a petition for
discretionary review, Sims v. State, No. PD-0941-17 (Tex. Crim. App., pet. filed Oct.
29, 2017), which was granted on February 14, 2018 on Grounds 1 and 2. Sims v.
State, No. PD-0941-17 (Tex. Crim. App., pet. gr.).
14. In Ground 1, Attorney for Appellant argued that the Sixth Court of
Appeals erred by ruling that under Tex. Code Crim. Proc. Art. 38.23(a), violations
of the Federal Stored Communication Act (“SCA”) and Tex. Code Crim. Proc. Art.
18.21 do not require suppression of evidence pertaining to the warrantless pinging
of a cellphone because: (1) the plain-language of Tex. Code Crim. Proc. Art.
38.23(a) states that no evidence obtained by an officer or other person in violation
of any provisions of Texas or federal law shall be admitted in evidence against the
accused; (2) Tex. Code Crim. Proc. Art. 38.23(a) is intended to provide greater
protection than the Fourth Amendment; and (3) it is irrelevant that the SCA and Tex.
Code Crim. Proc. Art. 18.21 do not provide that suppression is available since they
are laws of Texas and the United States, and neither prohibits suppression of
illegally obtained evidence under Art. 38.23(a).
15. In Ground 2, Attorney for Appellant argued that the Sixth Court of
Appeals erred by holding that Appellant was not entitled to a reasonable expectation
of privacy in the real-time, tracking-data that was illegally seized because under the
Fourth Amendment and Tex. Code Crim. Proc. Art. 38.23(a), a person has a
4 legitimate expectation of privacy in real-time tracking-data regardless of whether he
is in a private or public location.
16. Attorney for Appellant simply stated in the Appellant’s Brief, “For a
better understanding of the issues, undersigned counsel attaches the Appellant’s
Brief in Sims in the Appendix. The arguments for Appellant would be substantially
similar as those undersigned counsel made for Mr. Sims. Sims is pending before the
TCCA, and the opinion of the TCCA will likely control the resolution of this Issue.”
17. This is all and nothing more.
2. The State’s argument that a party may include in the appendix only those pages that come strictly from the record on appeal and cannot include text from a statute, excerpts from an old law review article, or things pertinent to the issues or points presented for review is incorrect 18. Further, the State argues that because the Sims brief was “outside the
appellate record,” it should not be considered.
19. In support of this argument, the State cites Bertrand v. Bertrand, 449
S.W.3d 856, 863 & n.8 (Tex. App. Dallas 2014, no pet.) and states that this court
held that “documents contained in an appendix but outside the appellate record
cannot be considered.”
20. However, a cursory glance at page 863 and footnote 8 of Bertrand
reveals that the offending party submitted affidavits (i.e., evidence outside the
record) in the Appendix, which obviously were not included in the record on appeal
5 (emphasis supplied):
On February 5, 2013, appellant filed a pleading which contained objections to John and Andrea's motion to strike his response to the amended motion for summary judgment and a motion to vacate the order granting summary judgment and final judgment. In that pleading, appellant stated he "mailed reply brief exhibits to the Court under separate cover" from his response to the amended motion for summary judgment. The documents filed "under separate cover" are not included in the appellate record. Although appellant included a number of citations to the appellate record in his brief, he also cites extensively to documents included in his appendix, including to a number of affidavits. We cannot consider documents cited in a brief and attached as an appendix if they are not formally included in the record on appeal. See Am. Heritage Capital, LP v. Gonzalez,
Free access — add to your briefcase to read the full text and ask questions with AI
ACCEPTED 05-17-00257-CR FIFTH COURT OF APPEALS DALLAS, TEXAS 6/1/2018 6:12 PM LISA MATZ CLERK
FIFTH COURT OF APPEALS FILED IN No. 05-17-00257-CR 5th COURT OF APPEALS DALLAS, TEXAS 06/01/2018 6:12:54 PM LISA MATZ Ali L. Ghanbari, Appellant, Clerk v. State of Texas, Appellee
On Appeal from the 199th District Court, Collin County No. 199-81974-2013
Appellant’s Response to State’s Motion to Strike Appellant’s Brief
Michael Mowla P.O. Box 868 Cedar Hill, TX 75106 Phone: 972-795-2401 Fax: 972-692-6636 michael@mowlalaw.com Texas Bar No. 24048680 Attorney for Appellant To the Honorable Justices of the Court of Appeals:
Attorney for Appellant files this response to the State’s motion to strike the
Appellant’s Brief:
1. The allegation that Attorney for Appellant used the Appendix avoid the word-limit on the Appellant’s Brief is unfounded 1. On June 1, 2018, the State filed a motion to strike the Appellant’s Brief,
arguing that Attorney for Appellant attempted to use the Appendix to avoid the
word-limit on the Appellant’s Brief.
2. This allegation is unfounded.
3. The State also claims in its certificate of conference that “[O]n May 16,
2018, Assistant District Attorney John Rolater spoke with Appellant’s counsel,
Michael Mowla, about this motion. Mr. Mowla disagreed that his brief violates the
word limit and would oppose this motion.”
4. What Attorney for Appellant told John Rolater is that for the reasons
stated in the Appellant’s Brief, his conversation with Mr. Rolater, and explained in
this Response, this is a nonissue for Attorney for Appellant.
5. As Attorney for Appellant explained in the Appellant’s Brief, the issue
of whether Tex. Code Crim. Proc. Art. 38.23(a) requires suppression of all the
evidence obtained by the police concerning the “Ali-cellphone” is pending before
the Texas Court of Criminal Appeals (“TCCA”) in Sims v. State, No. PD-0941-17
(Tex. Crim. App., pet. gr.).
2 6. Attorney for Appellant is the attorney for Appellant Sims in that case.
7. In the Appellant’s Brief, Attorney for Appellant explained, “The issue
regarding whether Tex. Code Crim. Proc. Art. 38.23(a) (2016) requires suppression
of the evidence involves detailed briefing and cannot be presented in full in this
Brief due to the word-limitation.”
8. This means that Issue 4 is complex and cannot be briefed in full as it
was briefed in Sims.
9. Attorney for Appellant did not state that Issue 4 is inadequately
briefed so Attorney for Appellant desires this Court to look to the Appellant’s Brief
in Sims that is attached in the Appendix for “additional briefing.”
10. This is precisely what Attorney for Appellant told Mr. Rolater.
11. And, Attorney for Appellant told Mr. Rolater that he included the Brief
in Sims as a courtesy to this Court and to the State (rather than simply providing a
link to the Sims brief, which Attorney for Appellant could have done to avoid
spending time responding to this motion).
12. As Attorney for Appellant explains in the Appellant’s Brief, in Sims v.
State, 526 S.W.3d 638 (Tex. App. Texarkana 2017), the Sixth Court of Appeals ruled
that Art. 38.23(a) does not require suppression when the evidence is obtained in
violation of Tex. Code Crim. Proc. Art. 18.21 § 1(3)(c) (2016) or the Federal Stored
Communication Act (“SCA”).
3 13. On October 29, 2017, Attorney for Appellant filed a petition for
discretionary review, Sims v. State, No. PD-0941-17 (Tex. Crim. App., pet. filed Oct.
29, 2017), which was granted on February 14, 2018 on Grounds 1 and 2. Sims v.
State, No. PD-0941-17 (Tex. Crim. App., pet. gr.).
14. In Ground 1, Attorney for Appellant argued that the Sixth Court of
Appeals erred by ruling that under Tex. Code Crim. Proc. Art. 38.23(a), violations
of the Federal Stored Communication Act (“SCA”) and Tex. Code Crim. Proc. Art.
18.21 do not require suppression of evidence pertaining to the warrantless pinging
of a cellphone because: (1) the plain-language of Tex. Code Crim. Proc. Art.
38.23(a) states that no evidence obtained by an officer or other person in violation
of any provisions of Texas or federal law shall be admitted in evidence against the
accused; (2) Tex. Code Crim. Proc. Art. 38.23(a) is intended to provide greater
protection than the Fourth Amendment; and (3) it is irrelevant that the SCA and Tex.
Code Crim. Proc. Art. 18.21 do not provide that suppression is available since they
are laws of Texas and the United States, and neither prohibits suppression of
illegally obtained evidence under Art. 38.23(a).
15. In Ground 2, Attorney for Appellant argued that the Sixth Court of
Appeals erred by holding that Appellant was not entitled to a reasonable expectation
of privacy in the real-time, tracking-data that was illegally seized because under the
Fourth Amendment and Tex. Code Crim. Proc. Art. 38.23(a), a person has a
4 legitimate expectation of privacy in real-time tracking-data regardless of whether he
is in a private or public location.
16. Attorney for Appellant simply stated in the Appellant’s Brief, “For a
better understanding of the issues, undersigned counsel attaches the Appellant’s
Brief in Sims in the Appendix. The arguments for Appellant would be substantially
similar as those undersigned counsel made for Mr. Sims. Sims is pending before the
TCCA, and the opinion of the TCCA will likely control the resolution of this Issue.”
17. This is all and nothing more.
2. The State’s argument that a party may include in the appendix only those pages that come strictly from the record on appeal and cannot include text from a statute, excerpts from an old law review article, or things pertinent to the issues or points presented for review is incorrect 18. Further, the State argues that because the Sims brief was “outside the
appellate record,” it should not be considered.
19. In support of this argument, the State cites Bertrand v. Bertrand, 449
S.W.3d 856, 863 & n.8 (Tex. App. Dallas 2014, no pet.) and states that this court
held that “documents contained in an appendix but outside the appellate record
cannot be considered.”
20. However, a cursory glance at page 863 and footnote 8 of Bertrand
reveals that the offending party submitted affidavits (i.e., evidence outside the
record) in the Appendix, which obviously were not included in the record on appeal
5 (emphasis supplied):
On February 5, 2013, appellant filed a pleading which contained objections to John and Andrea's motion to strike his response to the amended motion for summary judgment and a motion to vacate the order granting summary judgment and final judgment. In that pleading, appellant stated he "mailed reply brief exhibits to the Court under separate cover" from his response to the amended motion for summary judgment. The documents filed "under separate cover" are not included in the appellate record. Although appellant included a number of citations to the appellate record in his brief, he also cites extensively to documents included in his appendix, including to a number of affidavits. We cannot consider documents cited in a brief and attached as an appendix if they are not formally included in the record on appeal. See Am. Heritage Capital, LP v. Gonzalez, 436 S.W.3d 865, 882 n.3 (Tex. App.—Dallas 2014, no pet.).
21. Obviously, affidavits, which are new evidence and are never in a record
on appeal, are not appropriate for an appendix.
22. Attorney for Appellant did not include “documents” that are evidence
pertaining to Appellant’s case that are outside the record on appeal such as affidavits
or other documents. Attorney for Appellant merely attached the Sims brief to alert
this Court and the State.
23. Bertrand is a civil case. The only applicable rule for an Appendix is
Tex. Rule App. Proc. 38.1(k)(2) (2018), which provides,
Optional Contents. The appendix may contain any other item pertinent to the issues or points presented for review, including copies or excerpts of relevant court opinions, laws, documents on which the suit was based, pleadings, excerpts from the reporter’s record, and similar material. Items should not be included in the appendix to attempt to avoid the page limits for the brief.
24. An alert to this Court (and the State) that the issues in Issue 4 are
6 pending before the TCCA can reasonably be construed as “[a]ny other item pertinent
to the issues or points presented for review, including copies or excerpts of relevant
court opinions, laws, documents on which the suit was based, pleadings, excerpts
from the reporter’s record, and similar material.”
25. Otherwise, if the State were correct that the only items that could be
included in the Appendix are pages that come strictly from the record on appeal, a
party would not be permitted to include in an appendix text from a statute or excerpts
from an old law review article that is not found on Lexis or Westlaw. This of course
is not the case.
26. Attorney for Appellant rarely uses an appendix in criminal appeals, and
again, Attorney for Appellant included the Sims brief only as a courtesy to the Court
and the State so that both are alerted to the pending Sims case and the fact that the
decision of the TCCA in Sims will be controlling on Issue 4.
27. Attorney for Appellant awaits this Court’s instructions.
28. If this Court asks Attorney for Appellant to file an amended brief
without the Appendix, Attorney for Appellant will be happy to do so.
29. If, on the other hand, this Court agrees that the Appendix is included
only as a courtesy to the Court and the State so that both are alerted to the pending
Sims case and the fact that the decision of the TCCA in Sims will be controlling on
Issue 4, Attorney for Appellant will not expect the State to address arguments
7 outside what is briefed in Issue 4 in the body of the Appellant’s Brief.
30. Attorney for Appellant certainly will not expect the State to respond to
the arguments contained in the Sims brief, as this would not be appropriate and
would be irrelevant since the decision of the TCCA will likely control.
Prayer
Attorney for Appellant awaits instructions from this Court.
Respectfully submitted,
Michael Mowla P.O. Box 868 Cedar Hill, TX 75106 Phone: 972-795-2401 Fax: 972-692-6636 michael@mowlalaw.com Texas Bar No. 24048680 Attorney for Appellant
/s/ Michael Mowla Michael Mowla
Certificate of Service
I certify that on June 1, 2018, a copy of this document was served on John Rolater of the Collin County District Attorney’s Office, Appellate Division, by Texas efile or email to daappeals@collincountytx.gov.