PD-1022-15
NO._________________
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
DEVIN GARDNER Petitioner
v.
THE STATE OF TEXAS Respondent
Petition is in Cause No.1311335D from Criminal District Court No. Two of Tarrant County, Texas, and Cause No. 02-14-00459-CR in the Court of Appeals for the Second District of Texas
PETITION FOR DISCRETIONARY REVIEW
Abe Factor TBN: 06768500 Factor, Campbell & Collins Attorneys at Law 5719 Airport Freeway Phone: (817) 222-3333 Fax: (817) 222-3330 Email: lawfactor@yahoo.com August 11, 2015 Attorneys for Petitioner Devin Gardner IDENTITY OF PARTIES AND COUNSEL
The following is a complete list of all parties to the trial court’s final judgment, as well as the names and addresses of all trial and appellate counsel.
Trial Judge: Honorable Louis Sturns, presiding judge, 213th Criminal District Court of Tarrant County
Appellant: Devin Gardner
Appellant’s Trial Counsel: Abe Factor TBN: 06768500 Factor, Campbell & Collins Attorneys at Law 5719 Airport Freeway Fort Worth, Texas 76117
AND
Elizabeth Cortright TBN: 24066884 Attorney at Law 110 East Weatherford Fort Worth, Texas 76102
Appellant’s Counsel Abe Factor on Appeal: TBN: 06768500 Factor, Campbell & Collins Attorneys at Law 5719 Airport Freeway Fort Worth, Texas 76117
Appellee: The State of Texas
Appellee’s Trial Counsel: Kacey Fickes TBN: 24060684 Pamela Bogges
ii TBN: 24068092 Assistant District Attorneys 401 W. Belknap Fort Worth, Texas 76196
Appellee’s Counsel Debra Windsor on Appeal: TBN: 00788692 Assistant District Attorney 401 W. Belknap Fort Worth, Texas 76196
iii TABLE OF CONTENTS page
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .vi
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . .1
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . 1
GROUNDS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
REASONS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
I. The Court of Appeals erred when it held that the trial court did not abuse its discretion by admitting the cell phone records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A. Opinion Below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
B. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
C. Controlling Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
D. Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
E. Harm Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
iv CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
v INDEX OF AUTHORITIES
Cases page
Alexander v. State, 88 S.W.3d 772 (Tex. App.-Corpus Christi 2002, pet. ref’d).16, 18
Casey v. State, 215 S.W.3d 870 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . . 15
Gardner v. State, 02-14-00459-CR, 2015 WL 4652718 (Tex. App.– Fort Worth, August 6, 2015, no. pet. h.) (mem. op., not designated for publication).1-2, 6, 7
Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1998). . . . . . . . . . . . . . . . . . . . 17
Jones v. State, 119 S.W.3d 766 (Tex. Crim. App. 2003). . . . . . . . . . . . . . . . . . . . 18
King v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997). . . . . . . . . . . . . . 16-17, 18
Layton v. State, 280 S.W.3d 235 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . . 8, 9
State v. Mechler, 153 S.W.3d 435 (Tex. Crim. App. 2005). . . . . . . . . 9-10, 14, 15, 16
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991) (op. on reh’g). . . 8, 9, 13
Moreno v. State, 858 S.W.2d 453 (Tex. Crim. App. 1993). . . . . . . . . . . . . . . . . . . . . 9
Rubalcado v. State, 424 S.W.3d 560 (Tex. Crim. App. 2014). . . . . . . . . . . . . . . . . . . . . 7
vi Santellan v. State, 939 S.W.2d 155 (Tex. Crim. App. 1997). . . . . . . . . . . . . . . . . . . . . 9
Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . . . . . 7
Statutes
T EX. P ENAL C ODE A NN. § 29.03(a)(2) (West 2011). . . . . . . . . . . . . . . . . . 1
Court Rules
T EX. R. A PP. P. 44.2(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 6, 18
T EX. R. E VID. 401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
T EX. R. E VID. 402. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
T EX. R. E VID. 403 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9
vii STATEMENT REGARDING ORAL ARGUMENT
Because Petitioner does not believe that oral argument will
materially assist the Court in its evaluation of matters raised by this
pleading, Petitioner respectfully waives oral argument.
STATEMENT OF THE CASE
On March 4, 2013, Appellant Devin Gardner (“Mr. Gardner” or
“Appellant”) was indicted for the first degree felony offense of
aggravated robbery with a deadly weapon, alleged to have occurred on
December 23, 2012. (C.R. 6); see T EX. P ENAL C ODE A NN. § 29.03(a)(2)
(West 2011). A trial was held in the 213th Criminal District Court of
Tarrant County, the Honorable Louis Sturns, presiding, on September
15, 16, 17 &18, 2014. (II, III, IV & V R.R. passim). The jury found Mr.
Gardner guilty as charged in the indictment. (III R.R. 152). Punishment
was to the trial court, which sentenced Mr. Gardner to twenty-five (25)
years incarceration in the Texas Department of Criminal Justice. (V R.R.
24; C.R. 125). Timely Notice of Appeal was filed on September 18, 2014.
(C.R. 131).
STATEMENT OF PROCEDURAL HISTORY
The opinion of the Second Court of Appeals Affirming Mr.
Gardner’s conviction was handed down on August 6, 2015. See Gardner
1 v. State, 02-14-00459-CR, 2015 WL 4652718 (Tex. App.–Fort Worth,
August 6, 2015, no. pet. h.) (mem. op., not designated for publication).
GROUNDS FOR REVIEW
GROUND FOR REVIEW ONE
I. The Court of Appeals erred when it held that the trial court did not abuse its discretion by admitting the cell phone records.
REASONS FOR REVIEW
1. The decision by the Second Court of Appeals has decided an important question of state law in a way that conflicts with the applicable decisions of the Court of Criminal Appeals.
2. The Second Court of Appeals has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by a lower court, as to call for an exercise of the Court of Criminal Appeals’ power of supervision.
ARGUMENT
Because this petition is predicated upon error by the Second
Court of Appeals in its review of Mr. Gardner’s complaint on appeal,
a review of the pertinent evidence presented and events which
transpired below is in order.
Facts
On the night of December 23, 2012, Joe’s Food Mart in Benbrook,
Texas, was robbed by three men with bandannas covering their faces,
2 two of whom were armed.1 (III R.R. 19). The clerk who was working
that night at Joe’s Food Mart, Hisi Tamraker,2 was never asked to, nor
ever identified Mr. Gardner as one of the robbers at trial. (III R.R. 16-
41).
On the night of the robbery, Joe’s Food Mart had a surveillance
camera system, which recorded the robbery. (III R.R. 25, 30; VI R.R. St.
Ex. 11). A clip from that surveillance video was run on the local news.
(III R.R. 86). Students at the school Mr. Gardner attended, Milburn
Academy, allegedly recognized Mr. Gardner on that news clip, and
notified Laura Batik, who was Mr. Gardner’s basketball coach at
Milburn Academy. (III R.R. 90). Ms. Batik then located the surveillance
video on the internet and viewed it for herself. (III R.R. 90). Ms. Batik
testified at trial that when she viewed the video on the internet, she
recognized Mr. Gardner as one of the robbers from the surveillance
video and called Crimestoppers, and eventually the police. (III R.R. 91-
92). At trial Ms. Batik identified the person depicted in State’s Exhibits
1 There was some evidence admitted at trial that one of the robbers was armed with a weapon that might have been an Uzi machine gun. (III R.R. 65). 2 Mr. Tamraker was also the owner of Joe’s Food Mart. (III R.R. 18).
1 13, 14, 15 and 20 as Mr. Gardner.3 (III R.R. 93). With the exception of
Ms. Batik, no other witness at trial was able to identify Mr. Gardner as
one of the robbers depicted in the surveillance video from the Joe’s
Food Mart robbery.
At trial, the state was allowed to enter into evidence cell phone
records purported to belong to telephones used by Mr. Gardner. (III
R.R. 106, 108, 112 & 127; VI R.R. St. Exs. 24, 25, 27 & 28).4 The state
presented cell phone records through the testimony of Detective
Stephie Phillips of the Fort Worth Police Department. (III R.R. 96).
Outside the presence of the jury, defense counsel took Detective
Phillips on voir dire, where it was revealed that once Mr. Gardner
became a suspect in the Joe’s Food Mart robbery, Detective Phillips had
discovered that Mr. Gardner–who was on probation in Tarrant
County–had given a cell phone number to his probation officer as a
number where he could be contacted. (III R.R. 101-02). Detective
Phillips then served a search warrant on the service provider of that
telephone number, thereby obtaining those records. (III R.R. 97).
3 State’s Exhibits 13, 14, 15 and 20 are still photos of one of the robbers which were extracted from one of the surveillance videos. (III R.R. 69-72). 4 State’s Exhibit 24 was admitted for the record only. State’s Exhibits 25, 27 and 28 are individual pages excerpted from State’s Exhibit 24.
2 During the voir dire examination, it was revealed that the phone
account actually belonged to a Shalonda Benjamin. (III R.R. 98-99). It
was further revealed that there were no witnesses who had personal
knowledge that Mr. Gardner ever possessed either of the phones
attached to the account. (III R.R. 100). Defense counsel objected to the
admissibility of the cell phone records on the grounds that they had not
been sufficiently connected to Mr. Gardner. (III R.R. 104-05, 108, 109,
112, 113).5 Back in front of the jury, during the state’s examination of
Detective Phillips in reference to the cell phone records, it was revealed
that the phone number allegedly belonging to Mr. Gardner had sent
texts such as: “I’m fina hit a lick,” which in Detective Phillips opinion
referenced committing a robbery (III R.R. 113-14; VI R.R. St. Ex. 28); that
the sender had sent a text indicating that he’d seen himself on the news
on a date a few days after the robbery (III R.R. 115); and that Devin
Gardner’s name was included in the body of some outgoing as well as
incoming texts. (III R.R. 126).
The state rested after Detective Phillips’ testimony. (III R.R. 127).
The defense thereafter rested without presenting any evidence at guilt-
5 The trial court agreed that the objection to the cell phone records had been a running objection. (III R.R. 113).
3 innocence. (III R.R. 129). The jury found Mr. Gardner guilty as charged
in the indictment. (III R.R. 152).
GROUND FOR REVIEW ONE (Restated)
I. The Court of Appeals erred when it held that the trial court did not abuse its discretion by admitting the cell phone records.
A. Opinion Below
The Second Court of Appeals correctly identified the abuse of
discretion standard of review applicable to the trial court’s admission
of the contested evidence. See Gardner, 2015 WL 4652718 at *1.
However, the court then erroneously applied that test.
Additionally, the court of appeals cited factual evidence
supporting the admission of the cell phone records which had not been
admitted at the time that the trial court made its ruling. The challenged
cell phone records came from an account that belonged to an
individual named Shalonda Benjamin. Who that person was or her
relationship to Mr. Gardner was not explored in any way in the hearing
addressing the admission of the records. (III R.R. 96-102). Although an
individual named Shalonda Williams testified at punishment that she
was Mr. Gardner’s mother, she did not testify at guilt-innocence, nor
was there any evidence admitted at any time in the trial that Shalonda
4 Williams was previously or also known as Shalonda Benjamin.
In its opinion, the court of appeals stated “[t]he name listed for
the number’s account was Shalonda Benjamin, Gardner’s mother, but the
subscriber was listed as Gardner.” Gardner, 2015 WL 4652718 at *1
(emphasis added). By doing so, the court of appeals has sua sponte
added a critical piece of evidence linking the contested phone records
to Mr. Gardner. Restated, the court of appeals either misunderstood the
quantum of evidence the state presented at trial in its attempt to prove
up the relevance of the records, or mistakenly believed that evidence
admitted long after the contested evidentiary ruling could be used to
post hoc support that ruling. See Rubalcado v. State, 424 S.W.3d 560, 567
(Tex. Crim. App. 2014)(“When the question is whether evidence was
improperly admitted, an appellate court may consider only evidence
that was before the trial court at the time of its ruling unless the issue
was consensually relitigated at a later point in time.”)
B. Standard of Review
A trial court’s decision to admit or exclude evidence is reviewed
for an abuse of discretion. Tienda v. State, 358 S.W.3d 633, 638 (Tex.
Crim. App. 2012). As long as the trial court’s ruling is “within the zone
5 of reasonable disagreement,” an appellate court will not disturb the
ruling. Id. (quoting Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim.
App. 1991) (op. on reh’g)).
C. Controlling Law
Prior to the admission of the cell phone records, defense counsel
objected on Rules 401 and 403 grounds.6 See T EX. R. E VID. 401, 403.
Relevant evidence is that which has any tendency to make the
existence of any consequential fact more or less probable than it would
be without the evidence. Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim.
6 Prior to admission of State’s Exhibit 24, counsel stated: “I object because whatever is in there is not probative of anything, but it is - - it - - it can be highly inflammatory.” (III R.R. 102).
Before State’s Exhibit 25 was admitted, counsel stated: “We object on the basis of the previous grounds. And we also object on the basis of the fact that no witness has tied - - has - - has indicated that either Devin Gardner made these messages or the phone was in his - - his possession at the time it was done.” (III R.R. 108).
Prior to the admission of State’s Exhibit 27, the following occurred: MR. FACTOR: Judge, I‘m assuming I have a continuing objection. I - - we’ve objected to the admission of these records, and we’ve objected on specific basis, so I‘m assuming my objection is continuing. THE COURT: Your objection is continuing. Overruled. (III R.R. 113).
Before the admission of State’s Exhibit 28, counsel stated: “We have no additional objections other than those we’ve made, but we withdraw our extraneous - - extraneous information objection because the extraneous information has been removed.” (III R.R. 127).
6 App. 2009) (citing Tex. R. Evid. 401). It is important, when determining
whether evidence is relevant, that courts examine the purpose for
which the evidence is being introduced. Id. (citing Moreno v. State, 858
S.W.2d 453 (Tex. Crim. App. 1993). It is critical that there is a direct or
logical connection between the actual evidence and the proposition
sought to be proved. Id.
Relevant evidence may be excluded by the trial court under Rule
403 if its probative value is substantially outweighed by the danger of
unfair prejudice from its admission. T EX. R. E VID. 403. There is a
presumption that relevant evidence is more probative than prejudicial.
Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997). The
opponent of the evidence has the burden to demonstrate that its
prejudicial effect substantially outweighs its probative value.
Montgomery, 810 S.W.2d at 377. If the opponent of the evidence lodges
an objection based on Rule 403, the trial court must weigh the probative
value of the evidence against the potential for unfair prejudice. Id. at
389. The criteria to be used in ruling on the objection include the
following: (1) the probative value of the evidence; (2) the potential the
evidence has to impress the jury in an irrational but nevertheless
indelible way; (3) the time needed to develop the evidence; and (4) the
7 proponent’s need for the evidence to prove a fact of consequence. State
v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005).
D. Application
Here, the entirety of the cell phone records were admitted for the
record only as State’s Exhibit 24. (III R.R. 105). However, State’s
Exhibits 25, 27, and 28 were admitted for all purposes and are extracts
from State’s Exhibit 24. (III R.R. 108, 111-13, 128). Although State’s
Exhibit 24 was admitted only for the record, on direct the State
questioned Detective Phillips regarding text messages purported to be
from Mr. Gardner which are included in State’s Exhibit 24. Specifically,
the following transpired:
Q. And on December 17, 2012, does the Defendant engage in a text message conversation with someone about a firearm?
MR. FACTOR: I - - I object, Your Honor, on - - based - - I object to the way the question is - - is formed because this witness has no personal knowledge of who - - who created the text message or who had possession of the - - of the phone at the time the text message was made even if the Court’s going to admit the contents of the text message.
THE COURT: You can rephrase the question. Go ahead.
Q. ( By Ms. Boggess) Is there a text message conversation between 817- 986-1021 and 682- 203- 5798 about something called an “Uz”?
A. Yes, ma’am.
Q. And does the 817 number discuss having fired something called an
8 Uz?
Q. In what direction does that 817 number talk about having fired something called an Uz?
A. Into the ground.
Q. Does the 817 number also send a text message to that 682 number about fully automatic or fully auto?
Q. In your experience as a robbery detective, can you - - what do you believe these people are talking about?
MR. FACTOR: I object. I object. That’s speculation. And this witness hasn’t been qualified as an expert.
THE COURT: All right. Overruled. Go ahead.
Q. ( By Ms. Boggess) What do you believe they’re talking about?
A. A fully automatic handgun or firearm.
Q. What’s an Uz?
A. An Uzi, an Israeli gun, firearm.
Q. What does it look like?
A. It’s a small box- like weapon. I believe it’s a 9 millimeter. It' s about like this, holds multiple rounds. It’s usually fully automatic.
(III R.R. 107-08).
Later, with the same witness:
9 Q. Detective, on page 17 of the text message phone record on December 23, 2012 at 18: 23: 21, does Devin Gardner’s cell phone, that 817 number, send a text message?
Q. What did he send?
A. Do you want it verbatim?
Q. If you can.
A. " I’m fina hit a lick.”
MR. FACTOR: Judge, I’m assuming I have a continuing objection. I - - we’ve objected to the admission of these records, and we've objected on specific basis, so I’m assuming my objection is continuing.
THE COURT: Your objection is continuing. Overruled.
Q. ( By Ms. Boggess) You may continue.
A. “I’m fina hit a lick Y - - WYD.”
Q. Have you ever heard the phrase “hit a lick” before?
A. Yes, ma’am. It refers in street vernacular to committing a robbery.
(III R.R. 113-14).
Further in the record, with the same witness:
Q. On December 28, 2012, at - - just one moment - on December 28, 2012, at 12: 46: 49, does that same number, Devin Gardner’s 817 number, does that phone number send a text message indicating that, “We done hit a store”?
10 (III R.R. 114).
Q. Detective, I’m showing you State’s Exhibit 28, which is a portion of the documents previously admitted for record purposes only in State’s Exhibit 24. Does that document contain the text message we discussed where Devin Gardner says he’s going to hit a lick?
A. Yes, ma’am, it is.
(III R.R. 114).
Q. ( By Ms. Boggess) Detective, on December 28, 2012, does the Defendant send a text message indicating that he’d seen himself on the news?
(III R.R. 115).
The State later sought and was granted the admission of State’s Exhibit 28 only for the text message from phone number 817-986-1021 sent on December 23, 2012 which stated “im fina hit a lick wyd[.]”
(III R.R. 127).
Unquestionably, the text messages sent from phone number 817-
986-1021 are incriminating and damaging to Mr. Gardner, and are
without a doubt inflammatory and prejudicial. See e.g., Montgomery, 810
S.W.2d at 390 (there is a potential danger that the extraneous bad act
may “impress the jury in some irrational but nevertheless indelible
way”). But this is only because the State was allowed to represent the
messages as being sent from a phone used by Mr. Gardner. Because the
11 State was never able to sufficiently show that Mr. Gardner authored the
texts, the texts message evidence was not relevant to the trial of Mr.
Gardner. See Tex. R. Evid. 401. The State was only able to connect the
phone to Mr. Gardner by conjecture and inference. Due to the
weakness of the link the Mr. Gardner, the evidence was not relevant to
the trial of Mr. Gardner, and was not admissible due to that lack of
relevance. See T EX. R. E VID. 402.
But the evidence also fails admissibility under Rule 403. Outside
the presence of the jury, Detective Phillips testified that she requested
the records for 817-986-1021 as that was a number that Mr. Gardner
had given to his probation officer as a number where he could be
contacted. (III R.R. 101-02). The actual phone account belonged to
someone named Shalonda Benjamin. (III R.R. 98). Who Shalonda
Benjamin was or how that person was connected to Mr. Gardner was
never established at trial. It was however, established at trial that there
were multiple phones and numbers attached to the account, and that
the State had no witnesses with personal knowledge that 817-986-1021
was ever used by Mr. Gardner. (III R.R. 99-100). Thus, the evidence had
little probative value of anything concerning Mr. Gardner. See Mechler,
153 S.W.3d at 440. This factor strongly points toward inadmissibility.
12 Further, the potential the evidence has to impress the jury in an
irrational but nevertheless indelible way. See id. Most evidence is
prejudicial to an opponent. See Casey v. State, 215 S.W.3d 870, 883 (Tex.
Crim. App. 2007). “Evidence is unfairly prejudicial only when it tends
to have some adverse effect upon a defendant beyond tending to prove
the fact or issue that justifies its admission into evidence.” Id. Here,
whomever sent the text messages discussed above could be reasonably
suspected of firing an Uzi, planning a robbery and then later
committing same, and being proud to have seen himself on the news
reports regarding the robbery. The strikingly distasteful “evidence”
represented by the text messages was very likely to inflame the jury
irrationally. This factor tends toward inadmissibility. See Mechler, 153
S.W.3d at 440.
Admittedly, the State did not require an unduly extended
amount of time to introduce the inflammatory text messages. This
factor does not weigh toward inadmissibility. See id.
Nor did the State have a great need for the text message
evidence. Primarily, the State would have made better use of evidence
which was actually connected to Mr. Gardner in a less tenuous manner.
Though somewhat incredible, the State already had eyewitness
13 testimony from Laura Batik–a person who knew Mr. Gardner from
daily interaction on an extended basis. It cannot be understated how
little the text message evidence served to prove a fact of consequence.
Mr. Gardner was the defendant. It was reasonable to infer that
whomever authored the texts at issue most likely was involved in some
criminal activity at some point, though whether that person was Mr.
Gardner was not supported. This factor strongly weighs toward
inadmissibility. See id. The trial court erred in admitting the phone and
text message evidence. Id.
E. Harm Analysis
Error in the admission of prejudicial evidence is not one of
constitutional dimensions; therefore, appellate courts will disregard the
error unless it affected the defendant’s substantial rights. See T EX. R.
A PP. P. 44.2(b); see also Alexander v. State, 88 S.W.3d 772, 779 (Tex.
App.-Corpus Christi 2002, pet. ref’d) (holding that the admission of a
.357 magnum revolver found with the defendant at the time of his
arrest had a substantial and injurious effect on the jury where the only
other evidence of the defendant’s identity as the killer was the
questionable testimony of the eye-witness). A substantial right is
affected when the error had a substantial and injurious effect or
14 influence in determining the jury’s verdict. King v. State, 953 S.W.2d
266, 271 (Tex. Crim. App. 1997) (citations omitted). A criminal
conviction should not be overturned for non-constitutional error if the
appellate court, after examining the record as a whole, has fair
assurance that the error did not influence the jury, or had but a slight
effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
This was not a case where there was overwhelming evidence of
guilt. The only direct evidence connecting Mr. Gardner to the robbery
was the testimony of Laura Betik, who claimed she was able to
recognize Mr. Gardner from the television broadcast of the surveillance
system video recording. Her testimony failed to adequately explain
how she was able to identify Mr. Gardner even though his face was
covered by a bandanna at all times during the robbery. Without the
inflammatory and unfairly prejudicial “evidence” represented by the
telephone records, the jury would have been left with the task of
evaluating whether Laura Batik’s incredible talent at identification was
sufficient to find that Mr. Gardner was actually one of the robbers
depicted in the video.
The text messages from the phone allegedly belonging to Mr.
Gardner had the practical effect of admitting every element of the
15 robbery–nearly an actual confession if believed by the jury to have
come from Mr. Gardner. The Court of Criminal Appeals has opined
that a defendant’s confession has a profound impact on the jury. See
Jones v. State, 119 S.W.3d 766, 783 (Tex. Crim. App. 2003). The graphic
nature of the admissions detailed in the text messages in all likelihood
had an appreciable effect on the jury. See id. at 417. In actuality, the jury
responded to the vivid, violent, and criminal nature of the texts by
convicting whomever it believed sent the texts–in this case Mr.
Gardner. The erroneous admission of the phone records had a
substantial and injurious effect or influence in determining the jury’s
verdict. See King, 953 S.W.2d at 271. The error therefore affected a
substantial right of Mr. Gardner. See T EX. R. A PP. P. 44.2(b); see also
Alexander, 88 S.W.3d at 779. Ergo, the court of appeals should have
reversed Mr. Gardner’s conviction.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully
prays that this Court grant discretionary review and allow each party
to fully brief and argue the issues before the Court of Criminal
Appeals, and that upon reviewing the judgment entered below, that
16 this Court reverse the opinion of the Second Court of Appeals and
reverse the conviction entered below.
Respectfully submitted,
/s/Abe Factor Abe Factor TBN: 06768500 Factor, Campbell & Collins Attorneys at Law 5719 Airport Freeway Fort Worth, Texas 76117 Phone: (817) 222-3333 Fax: (817) 222-3330 Email: lawfactor@yahoo.com Attorneys for Petitioner Devin Gardner
CERTIFICATE OF COMPLIANCE
I hereby certify that the word count for the portion of this filing covered by Rule 9.4(i)(1) of the Texas Rules of Appellate Procedure is 4,510.
/s/Abe Factor Abe Factor
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been furnished to counsel for the State’s Prosecuting Attorney and the Tarrant County District Attorney by a manner compliant with the Texas Rules of Appellate Procedure, on this 10th day of August , 2015.
17 APPENDIX
1. Opinion of the Second Court of Appeals.
18 COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-14-00459-CR
DEVIN GARDNER APPELLANT
THE STATE OF TEXAS STATE
----------
FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 1311335D
MEMORANDUM OPINION 1
Appellant Devin Gardner appeals his conviction for aggravated robbery
with a deadly weapon and 25-year sentence. Because we conclude the trial
court did not abuse its discretion by admitting cell-phone records, we affirm the
trial court’s judgment.
1 See Tex. R. App. P. 47.4. On December 23, 2012, shortly before 8:00 p.m., three men entered a
convenience store and forced the owner to the floor at gunpoint. The first man
had a red bandana covering the bottom half of his face and was carrying a gun.
The second man was wearing a grey, hooded sweatshirt, with the hood up, had a
bandana covering the bottom part of his face, and was carrying a long gun. The
third man, who appeared to be unarmed, also had a hood over his head and a
bandana covering the bottom of his face. The robbers took the store’s cash and
quickly left.
Soon after the robbery, Laura Betik, a teacher at a charter high school,
watched a surveillance video of the robbery after it was shown on a television
news program. Betik had been Gardner’s basketball coach at school and had
tutored him weekly in English. Betik estimated she spent on average of six hours
a week with Gardner during basketball season and would see him daily in the
halls of the school, which was “very small.” Based on the first man’s eyebrows,
his hair cut, his body build, and his predilection for wearing red, 2 Betik was able
to identify the first man on the surveillance video as Gardner.
Based on Betik’s identification, police officers obtained a search warrant
for cell-phone records for a number Gardner previously had reported to his
community-supervision officer as his number. The warrant requested records for
2 Not only was Gardner generally known to wear red, a picture from his Facebook account showed him wearing a red bandana covering the bottom half of his face.
2 a one-month period surrounding the December 23, 2012 robbery: December 16,
2012 to January 10, 2013. The name listed for the number’s account was
Shalonda Benjamin, Gardner’s mother, but the subscriber was listed as Gardner.
Six days before the robbery, texts from the number discussed having and
shooting an Uzi, which is a longer, automatic handgun. A text message from the
number sent approximately one hour before the robbery stated, “im fina hit a
lick,” which meant the person sending the text was about to commit a robbery.
At trial, the State introduced the text messages into evidence, and Gardner
objected on the bases that they had not been sufficiently connected to him such
that they were relevant and were unfairly prejudicial. The trial court overruled
Gardner’s objections and admitted the cell-phone records into evidence.
Gardner’s sole argument on appeal is that the cell-phone records were
erroneously admitted because they were not relevant and unfairly prejudicial.
Gardner’s relevance complaint is based on his assertion that the cell-phone
number was insufficiently connected to him; thus, the texts were not probative to
any fact of consequence. See Tex. R. Evid. 401. Although Gardner does not
specifically attack whether the records were properly authenticated under rule
901, the issue of authentication necessarily arises when the relevancy of the
evidence depends upon its connection to a particular person. See Tex. R. Evid.
901(a); Dering v. State, No. 11-13-00076-CR, 2015 WL 1472013, at *2 (Tex.
App.—Eastland Mar. 26, 2015, no pet.); Campbell v. State, 382 S.W.3d 545,
548–49 (Tex. App.—Austin 2012, no pet.). Authentication is a condition
3 precedent to admissibility, and the trial court’s determination of admissibility is a
preliminary one. See Tex. R. Evid. 104, 901(a); Tienda v. State, 358 S.W.3d
633, 638 (Tex. Crim. App. 2012). We review the admission of evidence for an
abuse of discretion, which mandates deference to a trial court’s ruling as long as
it was within the zone of reasonable disagreement. See Tienda, 358 S.W.3d at
638.
Although “cell phones tend to be personal and user-specific,” a “cell-phone
number does not necessarily establish the identity of the user at a particular
moment in time with the same definitiveness that fingerprints, signatures,
photographs, or DNA may establish the identity of the perpetrator of a crime”
because “cell phones can be purloined.” Butler v. State, 459 S.W.3d 595,
601 (Tex. Crim. App. 2015); Tienda, 358 S.W.3d at 641. Accordingly, evidence
that a cell-phone number is associated with a purported sender, standing alone,
may be too attenuated. See Butler, 459 S.W.3d at 601. But the test for
authenticity, and thus relevance, is a low bar and requires only a threshold
showing that would be sufficient to support a finding that the matter in question is
what its proponent claims. Campbell, 382 S.W.3d at 549. “In cases where a
sponsoring witness may testify to an association between a cell-phone number
and a purported author [of a text message from that number], other evidence
may be available that might bridge the logical gap and permit a proper inference
that the purported author sent the message.” Butler, 459 S.W.3d at 602. For
example, the text message’s content, considered together with other
4 circumstances, may support a conclusion that a text message was indeed sent
by the purported author. See id.
In isolation, a cell phone number is in some respects similar to a return address on a letter. If the return address is the location where the purported author happens to live, it may suggest that the person who lives at the address is the author of the letter. Or it might not— at least on its own, if multiple people happen to live at or have access to that same address. But a letter bearing the return address of a purported author, combined with other circumstances including its appearance and contents, may be sufficient to authenticate a letter as having been sent by the person purported to be its author.
Id. at 601–02. A court’s initial determination of whether evidence has been
sufficiently authenticated to be admissible is dependent on the facts and
circumstances of each case. Tienda, 358 S.W.3d at 639.
In this case, Gardner reported the cell-phone number as his own number
to his community-supervision officer. Gardner was listed as the subscriber for
the number. Ten days before the robbery occurred, a text from the number
discussed having and shooting a gun similar to one of the guns seen in the
surveillance video from the robbery. A text from that same number sent
approximately one hour before the robbery showed that the sender was planning
to commit a robbery. Betik, who was very familiar with Gardner, was able to
positively and confidently identify Gardner as one of the robbers on the
surveillance video. We conclude that the cell-phone records were authenticated
through circumstantial evidence such that the number could be sufficiently
connected to Gardner, rendering the records relevant and admissible under rules
401 and 901. See Tex. R. Evid. 401, 901(a); Butler, 459 S.W.3d at 603–05;
5 Jackson v. State, Nos. 05-14-00274-CR, 05-14-00275-CR, 2015 WL 3797806, at
*3–4 (Tex. App.—Dallas June 17, 2015, no pet. h.) (mem. op., not designated for
publication). We overrule this portion of Gardner’s first point.
Gardner also contends that the cell-phone records, even if relevant, were
unfairly prejudicial and inadmissible. See Tex. R. Evid. 403. Relevant evidence
is presumed to be more probative than prejudicial, and such evidence should be
excluded under rule 403 only if there is a “clear disparity between the degree of
prejudice of the offered evidence and its probative value.” Conner v. State,
67 S.W.3d 192, 202 (Tex. Crim. App. 2001). It is important to note that the rule
prohibits the admission of evidence carrying a danger of unfair prejudice. Unfair
prejudice justifying exclusion means more than a tendency to injure or prejudice
a defendant, which of course is the point of introducing evidence in the first
place, but refers to an undue tendency to suggest a decision on an improper
basis. See Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999);
1 Steven Goode et al., Texas Practice Series: Guide to the Texas Rules of
Evidence § 403.2 (3d ed. 2015). In making a rule 403 determination, a trial court
is to balance many factors including the probative force of the evidence, the
State’s need for the evidence, any tendency to suggest a decision on an
improper basis or confuse the jury, and the likelihood that the presentation of the
evidence will consume an inordinate amount of time. See Gigliobianco v. State,
210 S.W.3d 637, 641–42 & n.8 (Tex. Crim. App. 2006).
6 In this case, Betik’s in-court identification of Gardner, while confidently
given, was based on a video where the bottom half of the man’s face was
covered by a bandana, which shows the State’s need for the cell-phone records.
The State did not spend an inordinate amount of time at trial developing the cell-
phone evidence, and there is no record indication that the admission of the
records resulted in jury confusion or an improper verdict. We conclude that there
was not a clear disparity between the degree of prejudice arising from admission
of the cell-phone records and their probative value. Thus, the trial court did not
abuse its discretion by admitting the evidence over Gardner’s rule 403 objection.
See, e.g., Dodson v. State, No. 2-08-286-CR, 2010 WL 2889693, at *4–5 (Tex.
App.—Fort Worth July 22, 2010, pet. ref’d) (mem. op., not designated for
publication) (concluding evidence of defendant’s previous convenience-store
robbery admitted in subsequent robbery prosecution more probative than
prejudicial because prior robbery “assisted the jury in understanding Dodson’s
identity as one of the robbers in the D & S Food Mart robbery”); Rogers v. State,
183 S.W.3d 853, 864–65 (Tex. App.—Tyler 2005, no pet.) (concluding murder
victim’s phone message left for her boss the day before her death not unduly
prejudicial); accord United States v. Acosta, 972 F.2d 86, 89 (5th Cir. 1992)
(holding evidence of interstate phone calls between defendant and defendant’s
brother in counterfeiting prosecution not unfairly prejudicial).
We overrule Appellant’s sole issue and affirm the trial court’s judgment.
See Tex. R. App. P. 43.2(a).
7 /s/ Lee Gabriel
LEE GABRIEL JUSTICE
PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: August 6, 2015