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IN THE
COURT OF CRIMINAL APPEALS ORIGINAL
OF TEXAS
Ronnie Decourtland Bass Jr., Appellant COURT OF CRIMINAL APPEALS
THE STATE OF TEXAS AUG 2 7 2015
Abel Acosta, Clerk
Petition in Cause# F11-26B^3-N
From the 195th Judicial District Court of Dallas County, Texas,
and Appeal No. 05-13-0051B-CR FILED IN
From the Court of Appeals for the COURT OF CRIMINAL APPEALS Fifth Court of Appeals District of Texas 2? 20kS
Abel Acosta, Clerk
PETITION FOR DISCRETIONARY REVIEW
ORAL ARGUMENT REQUESTED Ronnie Bass
#1 B4B1 1 1
Robertson Unit
12071 FM 3522
Abilene, TX 79601
PRO SE
Identity of Parties and Counsel V
1. Appellant: Ronnie Bass, #1848111; Robertson Unit, 12071 FM 3522 Abilene, TX 79601 2. Trial Counsel: 6116 N Central Expressway Rick Harrison, SBN: 09119510 Suite 500 Amanda Branan, SBN: 24081617 Dallas, TX 75206 3. Appellate Counsel:
Kathleen A. Walsh, SBN: 20802200 Dallas County Public Defender's Office r7:: v, Frank Crowley Courts Building 133 N Riverfront Blvd, LB2 Dallas, TX 75207
4. State's Trial Counsel Brandi Mitchell, SBN: unavailable Messina Madson, SBN: 24038123 5. State's Appellate Counsel Craig Watkins, SBN: unavailable Dallas County District Attorney's Office Frank Crouley Courts Building 133 N Riverfront Blvd, LB-19 Dallas, TX 75207
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Table of Contents
Identies of Parties and Counsel... 11
Table of Contents... iii
Index of Authorities... iv
Statement Regarding Oral Argument... .1
Statement of the Case... .1
Statement of Procedural History... .1
Ground for Review... .2
GROUND FOR REVIEW
The Court of Appeals erred when it held the illegal siezure of petitioner's cell phone was harmless because the text dialog that was entered was never actually introduced by the other parties cell phones.
Argument. . . 2-5
Prayer for Relief... . .5
Certificate of Service . .6
. .7
Appendix . . .
in
Index of Authorities
Constitution
U. S. Const. Amend. 4
Rules
Texas Rules of Appellate Procedure 44.2(a)
Cases
Hernandez v. State, 60 SW3d 106 (Tex Crim App 2001). Riley v. California, 134 S. Ct. 2473 (2014)... State v. Granville, 423 SU3d 399 (Tex Crim App 2014)
iv
TO THE COURT OF CRIMINAL ;APPEALS OF TEXAS:
Ronnie Bass petitions the Honorable Court to review the judge ment affirming his conviction for Capitol Murder in Cause No. F11- 26843-N
Statement Regarding Oral Argument The Appellant, Ronnie Bass, requests oral argument before the Court of Criminal Appeals of Texas, because oral argument will assist the Court in determining whether the Court of Appeals erred when it determined the illegal seizure of petitioner's cellphone was a harmless error that didn't contribute to his conviction.
Statement of the Case
A jury convicted Ronnie Bass of Capitol Murder of a child under six years of age, punishment was assessed at life imprisonment. In a single issue, Bass argued in the 5th Court of Appeals that the trial court erred by admitting text messages from his cellphone be cause the messages were illegally obtained. The Court of Appeals ultimately rejected his point of error and affirmed his conviction and sentence on May 28th, 2015 in an opinion not designated for publication.
Statement of Procedural History A three-justice panel of the Court of Appeals rendered it's
opinion on May 28th, 2015. Bass v. State 05-13-00518-CR (Tex App Dallas May 28th, 2015, pet. filed)(Mem op, not designated for pub
lication). No motion for rehearing was filed by Appellant. A
timely motion for extension of time to file a PDR was filed and granted by this court, extending his time to file to August. 28th,
201 5.
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Ground for Review
The Court of Appeals erred when it held the illegal seizure of petitioner's cell phone was harmless because the text dialog that was entered was never actually introduced by the other parties cellphones .
Argument
Appellant Ronnie Bass was charged by indictment of Capitol Murder. At trial, the state sought to admit cellphone records in cluding the content of text messages obtained from Bass' cell phone service provider, Metro PCS. At trial, numerous evidentiary object ions to the admission of the records from Metro PCS were made.
Fallowing a hearing outside the presence of the jury in which the police officer who obtained the records testified, the trial court denied Bass' objections. Subsequently the officer testified before the jury and the Metro PCS records were admitted over objection.
On appeal he argued that the police violated his 4th Amendment Constitutional Right by not obtaining a ;;w grrant for the contents of his cell phone. The Court of Appeals in it's opinion failed to review the illegality of this seizure, but instead held that pur suant to Texas Rules of Appellate Procedure (TRAP) 44.2(a) any error the trial court may have committed was harmless. Hernandez- v. State, 60 SW3d 106 (Tex Crim App 2001).
REASONS FOR GRANTING REVIEW
The Court of Appeals affirmed the denial of Appellant's Motion to Suppress, holding that the cellphone records obtained from
Ronnie Bass (through iMetro PCS) were cumulative of the text mess ages obtained from the phones of the victim and co-actor, which
were admitted and read to the jury. This finding never considered
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,that the state never formally admitted the victim and co-actors exhibits formally into evidence or to publish them. Nor did it consider thta the state never validated if the text messages that were read were from new sources.
THE STATE NEVER VALIDATED IF THE TEXT MESSAGES ENTERED AT TRIAL
WERE ACTUALLY FROM NEW SOURCES, THUS HIS 4TH AMENDMENT RIGHT WAS STILL VIOLATED.
When the state referred to State's Exhibit 86 and 87, it recog nized that it petitioned the court for orders to obtain the cell phone records for both Decia Hartfield and Georgina Bolin's phone records, but it never explicitly clarified if Exhibits 86 and B7 are Hartfield or Bolin's text messages. The Court of Appeals is apparently basing that Exhibits 86 & 87 were from the cell phones of Hartfield and Bolin's phone from the prosecutor's question to the testifying Detective Took prior to reading them.
Vol. 5, page 22:
Q. (By Ms. Mitchell) And, Detective you also did petitions for Court orders to obtain cellphone records for both Decia Hartfield and Georgina Bolin's phone records?
A. Yes, I did.
Q. And you based this off their telephone numbers that you got from the call-in sheet of Ronnie Bass' texts is that correct?
A. Correct.
When the state questioned the detective about states exhibits B6 and 87 it never validated where these texts'- sources came from and more importantly the state never asked the court to formally admit them or designate them to be published. Because of this the record should assume that these were Bass' text messages from his own cell phone.
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IT CAN BE ASSUMED THE TEXT MESSAGES ONLY CAME FROM BASS' CELL
PHONE BECAUSE IF NEW SOURCES WERE ENTERED THEY WOULD HAVE BEEN
CONSIDERED HEARSAY DUE TO THEY WERE NEVER SELF-AUTHENTICATED.
Again, the only evidence of the phone records offered into the record were Ronnie Bass' where an individual from Metro PCS came
and testified to their authenticity under the Hearsay exception Texas Rule of Evidence 803(b) Records of Regular Conducted Activity, No where in the record is there any new source for text messages coming from Hartfield and/or Bolin's cellphones. If they were thus truly new sources under Tex. R. Evid 902(10), the custodian of rec ords from a new phone provider would have had to take the stand or have had to make an affidavit pertaining to them. Because there is nothing in the Clerks Record indicating evidence of the same or any given testimony on the matter, it should be clear that the phone records entered were solely from Bass' phone.
The most notable distinguishing factor concerning this issue is that the state never argued this harm analysis factor in it's own brief. If the phone records were thus truly new sources the state
would have given the Court of Appeals adequate briefing on this matter. The Court of Appeals over-stepped it's bounds by defin
itively holding Bass' text messages were admitted by a new source.
As the argument above shows Exhibits 86 & 87 were never admitted to be published in the record and the state never indicated they were from a new source when questioning Detective Took about it.
If the Court of Appeals would not have held Mr. Bass' text messages were coming from a new source other than his cellphone this potential illegal search and seizure claim would have argu able merit. As put forth in his original briefing in the Court of Appeals, a warrant was req uired to obtain the contents of his
(4)
cell phone. State v. Branville, 423 SW3d 399 (Tex Crim App 2014), Riley v. California, 134 S. Ct. 2473 (2014). Because the police did not have a warrant at the time they obtained the records from Metro PCS, and because the messages were illegally obtained the trial court erred in admitting them. If the trial court would not have allowed them to go before the jury, their is more than a reason able doubt the jury would not have convicted him. Without the text messages, their was concrete evidence that Ronnie Bass did not com mit murder, but that Georgina Boland did. Ronnie Bass had no DNA on the revolver that shot the deceased, nor was there any gunpowder residue on his hands, glasses, or clothes the state said he ware. Because DNA evidence on the revolver directly linked Georgina Boland to the crime, Ronnie Bass had more than a reasonable chance of being acquitted of the underlying text messages hadn't been admitted (Vol. 5, pg . 66) .
Prayer for Relief
For the reasons herein alleged, the Court Of Appeals erred in overruling this point of error in Appeal No. 05-13-00518-CR. Therefore, Appellant prays this Honorable Court grant this petition, order briefing, and upon reviewing the judgement entered below, re verse the judgement of the Court of Appeals and remand this case to the Court of Appeals for review consistent with this Court's holding Respectfully submitted,
(W 3>4W^"
Ronnie Bass, 1848111
Robertson Unit
12071 FM 3522
Abilene, TX 79601
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Certificate of Service
I HEREBY CERTIFY that, pursuant to Rules 9.5 and 6B.11 of the Texas Rules of Appellate Procedure, a true and correct copy of the above foregoing petition for discretionary review has been sent by first class mail to the state prosecuting attorney at P. 0. Box 13046, Austin, TX, 78711, and the Dallas County DA, Craig Watkins at, 133 N Riverfront Blvd, LB-19, Dallas, TX 75207, on this the (I day of August, 2015.
Pus^i-JU^'
Ronnie Bass, 1848111
Pro Se
(6)
APPENDIX-
Opinion of the Court of Appeals for the Fifth Court of Appeals District of Texas, Ronnie Decourtland Bass Jr v. State of Texas, No. 05-13-00518-CR (Tex App Dallas, May 28th, 2015, pet filed) (Memorandum Opinion not designated for publication.)
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AFFIRMED; Opinion Filed May 28, 2015.
In The
Court of Appeals
mtti\ Sltstrict of ulexas at Dallas No. 05-13-00518-CR
RONNIE DECOURTLAND BASS, JR., Appellant V.
THE STATE OF TEXAS, Appellee
On Appeal from the 195th Judicial District Court Dallas County, Texas
Trial Court Cause No. F11-26843-N
MEMORANDUM OPINION
Before Justices Fillmore, Stoddart, and Whitehill1 Opinion by Justice Stoddart A jury convicted Ronnie Decourtland Bass, Jr. of capital murder of a child under six
years of age.2 Punishment was assessed at life imprisonment. In a single issue, Bass argues the trial court erred by admitting text messages from his cell phone because the messages were
illegallyobtained. We affirm the trial court's judgment.
At trial, the State sought to admit cell phone records, including the content of text
messages, obtained from Bass's cell phone service provider, MetroPCS. The text messages were incriminating for Bass and showed Bass communicated with the victim immediately before the murder and with his co-actor immediately before and after the murder. At trial, Bass lodged
1Justice Bill Whitehill succeeded Justice Kerry FitzGerald, retired. Justice Whitehill has read the briefs and reviewed the record and now serves as a member of the panel.
2Bass also was convicted of murder in a separate cause number. That conviction isnot before usinthis appeal.
numerous evidentiary objections to the admission of the records from MetroPCS. Following a hearing outside the presence of the jury in which the police officer who obtained the records testified, the trial court denied Bass's objections. Subsequently the officer testified before the jury and the MetroPCS records were admitted over objection.
Bass argues a warrant was required to obtain the contents of his cell phone, specifically text messages, the police did not have a warrant at the time they obtained the records from MetroPCS, and, because the messages were illegally obtained, the trial court erred by admitting them. In his brief on appeal, Bass does not argue he was harmed by the trial court's alleged error.
If we assume Bass preserved his sole issue and the trial court abused its discretion by admitting the records from MetroPCS, we conclude Bass did not suffer harm from the alleged error because the same content from the text messages was obtained from phones belonging to other people and was admitted before the jury. See Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007) (review trial court's decision to admit evidence for abuse of discretion); see also Tex. R. App. P. 44.2(a).
The admission of evidence obtained in violation of the Fourth Amendment is subject to a constitutional harm analysis pursuant to rule 44.2(a). See Hernandez v. State, 60 S.W.3d 106,
106 (Tex. Crim. App. 2001); see also Tex. R. App. P. 44.2(a). For constitutional errors, we "must reverse a judgment of conviction or punishment unless [we] determine[] beyond a reasonable doubt that the error did not contribute to the conviction or punishment." Tex. R. App.
P. 44.2(a). When conducting a rule 44.2(a) harm analysis, our primary question is whether there is a reasonable possibility or likelihood the error might have contributed to the conviction. Rubio
v. State, 241 S.W.3d 1, 3 (Tex. Crim. App. 2007); Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh'g). This requires us to assess the likelihood the error was a
3
contributing factor in the jury's deliberations and decision. Langham v. State, 305 S.W.3d 568, 582 (Tex. Crim. App. 2010) (quoting Scott v. State, 227 S.W.3d 670, 690 (Tex. Crim. App. 2007)). We do not focus on the propriety of the jury's verdict. Id. Nor does our analysis turn on whether the jury's verdict was supported by the evidence. Id. Instead, the question is whether the alleged constitutional error adversely affected the integrity of the process leading to the conviction. Id.
Here, after considering the record in this case, we conclude Bass was not harmed by the admission of the MetroPCS records. The State's admitted exhibits also included text messages from the victim's and the co-actor's phones, which showed the same text messages as did the records from MetroPCS. However, because of the format of the text messages from the victim's and co-actor's phones, the conversation strings were easier to read and understand than were the records obtained from MetroPCS. Additionally, after the text messages were admitted, the prosecutor and investigating officer read incriminating portions of the text messages from the victim's and co-actor's phones to the jury.
Although Bass's counsel objected to the text messages obtained from the other phones, Bass has not complained about the admission of those texts on appeal. Bass lacked standing to complain about any Fourth Amendment issues relating to the text messages retrieved from the victim's and the co-actor's phones either at the trial court or on appeal. There is no evidence Bass had a reasonable expectation of privacy in cell phones belonging to other people. See Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004); Anderson v. State, No. 05-11-00259- CR, 2013 WL 1819979, at *11 (Tex. App.—Dallas Apr. 30, 2013, no pet.) (not designated for
publication) (appellant lacked standing to complain about acquisition of co-defendants' records from phone company because he lacked privacy interest in records); Contreras v. State, No. 02-
11-00242-CR, 2012 WL 3737714, *3 (Tex. App.—Fort Worth Aug. 30, 2012, pet. ref d) (mem.
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op., not designated for publication) (appellant lacked standing to complain about seizure of phone belonging to another person).
The evidence about which Bass complains, the records obtained from MetroPCS, was cumulative of the text messages obtained from the phones of the victim and co-actor, which were admitted and read to the jury. Any error by the trial court in admitting Bass's phone records would not have adversely affected the integrity of the jury's deliberations or contributed to his conviction. The jury received the same evidence from the phones of other people—-albeit in a different, more accessible format. From this record, we conclude beyond a reasonable doubt that the admission of the records from MetroPCS did not contribute to Bass's conviction. We overrule Bass's sole issue.
We affirm the trial court's judgment.
/Craig Stoddart/
CRAIG STODDART
JUSTICE
Do Not Publish Tex. R. App. P. 47.2(b) 130518F.U05