PD-0887-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 7/20/2015 4:32:01 PM Accepted 7/22/2015 4:26:01 PM PD-0887-15 ABEL ACOSTA CLERK
IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS
GAREIC JERARD HANKSTON Petitioner/Appellant
v.
THE STATE OF TEXAS Respondent/Appellee
On Petition for Discretionary Review from the Fourteenth Court of Appeals in Cause No. 14-13-00923-CR, affirming the conviction in Cause Number 1326559 from the 178th District Court of Harris County
PETITION FOR DISCRETIONARY REVIEW
ORAL ARGUMENT NOT REQUESTED ALEXANDER BUNIN Chief Public Defender Harris County, Texas
ANGELA CAMERON Assistant Public Defender Harris County, Texas Texas Bar No. 00788672 1201 Franklin, 13th Floor Houston, Texas 77002 Phone: (713) 368-0016 July 22, 2015 Fax: (713) 368-9278 angela.cameron@pdo.hctx.net
Counsel for Appellant IDENTITY OF PARTIES AND COUNSEL
APPELLANT: Mr. Gareic Hankston TDC#1893832 4304 Hwy 202 Beeville, Texas 78102
PRESIDING JUDGE: Hon. David Mendoza 178th District Court Harris County, Texas 1201 Franklin Avenue, 9th floor Houston, Texas 77002
TRIAL PROSECUTOR: Ms. Britni Cooper APPELLATE PROSECUTOR: Mr. Eric Kugler Assistant District Attorneys Harris County, Texas 1201 Franklin Avenue, 6th floor Houston, Texas 77002
DEFENSE COUNSEL AT TRIAL: Mr. Brent Mayr 4101 Washington Ave., 2nd Fl. Houston, Texas 77007
Mr. Chris Morton 1001 Texas Suite 1400 Houston, Texas 77002
DEFENSE COUNSEL ON APPEAL: Ms. Angela Cameron Assistant Public Defender Harris County, Texas 1201 Franklin Avenue, 13th floor Houston, Texas 77002
ii TABLE OF CONTENTS
Identity of Parties and Counsel..............................................................................................ii
Table of Contents ...................................................................................................................iii
Index of Authorities ............................................................................................................... v
Statement Regarding Oral Argument................................................................................... 1
Statement of the Case ............................................................................................................ 1
Statement of Procedural History .......................................................................................... 1
Grounds for Review............................................................................................................... 2
Reasons for Review ................................................................................................................ 2
Statement of Facts .................................................................................................................. 3
Argument ................................................................................................................................. 4
First Issue for Review ............................................................................................................ 4
Did the Court of Appeals err when it “utilize[d] Fourth Amendment precedent” in determining Art. 1 Section 9 of the Texas Constitution was not violated when the State obtained Appellant’s cell phone records without a warrant in light of Richardson v. State, 865 S.W.2d 844 (Tex. Crim. App. 1993)?
The Court of Appeals’ Holding ..................................................................... 4 The Court of Appeals failed to properly address Appellant’s State Constitutional Claim under Separate State Grounds .................................. 4
Second Issue for Review........................................................................................................ 7 Did the Court of Appeals err in finding Appellant did not have a Fourth Amendment reasonable expectation of privacy in his cell phone records under the third-party doctrine?
The Court of Appeals’ Holding ..................................................................... 7 iii Expectation of Privacy.................................................................................... 7
PRAYER .................................................................................................................................. 10
CERTIFICATE OF SERVICE .................................................................................................... 10
CERTIFICATE OF COMPLIANCE ........................................................................................... 11
APPENDIX .............................................................................................................................. 12
iv INDEX OF AUTHORITIES
Cases
Barfield v. State, 416 S.W.3d 743 (Tex. App. – Houston [14th Dist.] 2013, no pet.) .... 7, 8
Crittenden v. State, 899 S.W.2d 668 (Tex. Crim. App. 1995) ........................................... 5, 6
Hankston v. State, 14-13-00923-CR, 2015 WL 3751551(Tex. App. – Houston [14th Dist.] June 16, 2015)(mem. op. not designated for publication) .................passim
In re Application of U.S. for an Order Directing a Provider of Elec. Commc'n Serv. to Disclose Records to Gov't, 620 F.3d 304 (3d Cir. 2010) .................................................................... 9
In re U.S. for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013) ................................... 7
Johnson v. State, 912 S.W.2d 227 (Tex. Crim. App. 1995) ............................................... 4, 5
Ford v. State, 444 S.W.3d 171(Tex. App. – San Antonio 2014, pet. granted)................... 9
Richardson v. State, 865 S.W.2d 844 (Tex. Crim. App. 1993) ...................................... 2, 4, 6
Riley v. California, 134 S.Ct. 2473 (2014) ......................................................................... 9, 10
Smith v. Maryland, 442 U.S. 735 (1979) ............................................................................. 6, 8
United States v. Jones, 132 S. Ct. 945 (2012) ........................................................................... 8
United States v. Miller, 425 U.S. 435 (1976) ....................................................................... 6, 8
Statutes
Tex. Pen. Code §22.011 ......................................................................................................... 1
Rules
Tex. R. App. P. 66.3(b) .......................................................................................................... 2
Tex. R. App. P. 66.3(c) ........................................................................................................... 2
v Constitutional Provisions
U.S. Const. amend IV ........................................................................................................... .6
Tex. Const. Art. 1. §9 ......................................................................................................... 4, 6
vi STATEMENT REGARDING ORAL ARGUMENT
Oral argument is not requested.
STATEMENT OF THE CASE
Mr. Hankston was charged with murder (C.R. at 14). See Tex. Pen. Code
§19.02. Hankston entered a plea of “not guilty.” (8 R.R. at 27). After a jury trial,
Hankston was found guilty and sentenced by a jury to twenty (20) years imprisonment
in the Texas Department of Corrections – Institutional Division (C.R. at 180). Timely
notice of appeal was filed (C.R. at 185).
STATEMENT OF PROCEDURAL HISTORY
In an unpublished opinion, the Fourteenth Court of Appeals affirmed Mr.
Hankston’s conviction. Hankston v. State, No. 14-13-00923-CR, 2015 WL 3751551
(Tex. App. – Houston [14th Dist.], June 16, 2015) (mem. op., not designated for
publication). The Court upheld the trial court’s denial of a Motion to Suppress
Historical Cell Phone Records which were obtained without a warrant. The State
used the record to establish that close to the time of the murder Hankston was near
the complainant’s home and that immediately thereafter his phone usage was more
than any other comparable time frame in the preceding seven months. No motion for
rehearing was filed. This petition is timely if filed on or before August 17, 2015.
1 GROUNDS FOR REVIEW
Did the Court of Appeals err when it “utilize[d] Fourth Amendment precedent” in determining Art. 1 Section 9 of the Texas Constitution was not violated when the State obtained Appellant’s cell phone records without a warrant in light of Richardson v. State, 865 S.W.2d 844 (Tex. Crim. App. 1993)?
Did the Court of Appeals err in finding Appellant did not have a Fourth Amendment reasonable expectation of privacy in his cell phone records under the third-party record doctrine?
REASON FOR REVIEW
The Fourteenth Court of Appeals has decided an important question of state and federal law that has not been, but should be settled by the Court of Criminal Appeals. Tex. R. App. P. 66.3(b).
The Fourteenth Court of Appeals has decided an important question of state law in a way that conflicts with this Court’s decision in Richardson v. State, 865 S.W.2d 844 (Tex. Crim. App. 1993). Tex. R. App. P. 66.3(c).
This Court is currently considering similar issues in Ford v. State, PD- 1396-14. Oral argument was held on May 20, 2015.
2 STATEMENT OF FACTS
Keith Brown, the complainant, was shot through his front door after someone
tried to enter his home when Brown went to answer a knock on the door (8 R.R. at
181-186). Brown subsequently died from the gunshot wounds (10 R.R. at 143).
Brown’s nine year old son, M.B., was the only person to have claimed seeing the
shooter (9 R.R. 107 & 147). When M.B. heard the knock on the door, he looked out
the window and saw a man with a gun (9 R.R. 112-28). M.B. only saw the man for
about 3-4 seconds (9 R.R. 137).
Gareic Hankston was the sixth suspect in the investigation. (10 R.R. 287-315).
His arrest resulted from M.B. identifying Hankston, in the third photo lineup
presented to M.B. over a period of several months. (9 R.R. 185-188; 11 R.R. 186).
The State’s theory at trial was that Hankston shot Brown because Brown had
been stalking Hankston’s girlfriend for some time, including the night of the murder
(10 R.R. at 14) (12 R.R. at 137-140). One officer testified this motive was “the most
important piece of corroborating evidence” especially in light of the fact Brown had
been at Hankston’s girlfriend’s home “only 45 minutes to an hour before he was
killed.” (11 R.R. at 36-37).
The State obtained Hankston’s cell phone records without a warrant and
instead relied on an ex parte court order (4 R.R. at 5-6). The records obtained
included call logs as well as cell site information (10 R.R. at 340). The State used the
records to 1) place Hankston in the vicinity of Brown’s home near the time of the
3 murder and 2) to discredit Hankston’s alibi witness by showing Hankston had called
her shortly before and after the murder and 3) to show Hankston had a higher call
volume during the “23 minutes immediately after the murder… than for any other 23
minute period in 206 days” (11 R.R. at 39-40).
ARGUMENT
First Issue for Review
Did the Court of Appeals err when it “utilize[d] Fourth Amendment precedent” in determining Art. 1 Section 9 of the Texas Constitution was not violated when the State obtained Appellant’s cell phone records without a warrant in light of Richardson v. State, 865 S.W.2d 844 (Tex. Crim. App. 1993)?
The Court of Appeals’ Holding
The Court of Appeals held the State’s obtaining of appellant’s cell phone
records without a warrant did not violate Article 1, section 9 of the Texas
Constitution because “he could not have a reasonable expectation of privacy in
information he voluntarily conveyed to a third party” Hankston v. State, 14-13-00923-
CR, 2015 WL 3751551, 5-6 (Tex. App. – Houston [14th Dist.] June 16, 2015, no
pet.)(mem. op. not designated for publication).
The Court of Appeals failed to properly address Appellant’s State Constitutional Claim under Separate State grounds.
In overruling Appellant’s Texas Constitutional claim, the Court of Appeals
determined it should “utilize Fourth Amendment precedent” to address Appellant’s
claim, relying on language from this Court’s opinions in Johnson v. State, 912 S.W.2d
4 227 (Tex. Crim. App. 1995) and Crittenden v. State, 899 S.W.2d 668 (Tex. Crim. App.
1995). The Court of Appeals stated:
The Court of Criminal Appeals also noted that “[a] plain reading and comparison of the language of the Fourth Amendment and Art. I, § 9 reveals no substantive difference” and they both protect the same right. Johnson, 912 S.W.2d at 232. The Court of Criminal Appeals has further stated that:
Absent some significant difference in the text of the two provisions, or some historically documented difference in attitude between the respective drafters, there would be no apparent reason to prefer an interpretation of Article I, § 9 any different from our preferred interpretation of the Fourth Amendment. We will not read Article I, § 9 differently than the Fourth Amendment in a particular context simply because we can.
Crittenden v. State, 899 S.W.2d 668, 673 n.8 (Tex. Crim. App. 1995).
Hankston at 6.
However, in Johnson this Court went on to say its opinion did not mean
“that there will be a reversion to interpreting Art. I, § 9 in lock-step with the
Supreme Court's interpretation of the Fourth Amendment…[and that]…if the
Courts of Appeals and this Court decide to raise the ceiling of the freedom of
Texas citizens from unreasonable searches and seizures, it will be done by
choosing in individual cases to interpret Art. I, § 9 in a manner justified by the
facts of the case, state precedent on the issue, and state policy considerations.”
Johnson at 234 (Tex. Crim. App. 1995).
The Court of Appeals further concluded that
5 Aside from citing to Richardson, appellant does not provide any reasoning as to why the Texas Constitution affords greater protection in this instance. Appellant cites to no authority for this proposition and does not point to any difference in the two provisions to warrant such a result.
Hankston v. State, at 6.
Richardson is enough authority for the proposition that Art. 1 § 9 provides
greater protection than the Fourth Amendment regarding the warrantless obtaining of
phone records. In Richardson, the Court found that under the Texas Constitution the
use of pen register could be a search despite the Supreme Court’s finding that it was
not a search under the Fourth Amendment. Richardson specifically discussed the Smith
v. Maryland, 442 U.S. 735 (1979) and United States v. Miller, 425 U.S. 435 (1976) third-
party business records analysis upon which the Court of Appeals relies. The Richardson
Court was “persuaded by the weight and persuasiveness of critical and judicial
authority that the Supreme Court was wrong to conclude in Smith that there was no
objectively reasonable expectation of privacy in the numbers one dials on the
telephone.” Crittenden v. State, 899 S.W.2d 668, 673 n.8 (Tex. Crim. App. 1995). Thus
Richardson provides precedent that the Texas Constitution provides greater protection
in regards to records from third parties and as such the Court of Appeals erred in not
addressing Appellant’s claim under the Texas Constitution and this Court should
grant review.
6 Second Issue for Review
Did the Court of Appeals err in finding Appellant did not have a Fourth Amendment reasonable expectation of privacy in his cell phone records under the third-party record doctrine?
The Court of Appeals held that the State’s actions in obtaining Appellant’s cell
phone records did not violate Appellant’s Fourth Amendment rights. In reaching this
conclusion, the Court of Appeals stated:
Based on this court's precedent,1 appellant cannot successfully claim that the State's acquisition of his cell tower records from Sprint violated his reasonable expectation of privacy. The cell site records acquired by the State are simply the business records memorializing appellant's voluntary subscriber transaction with Sprint for the service he wanted from his cellular provider, i.e. the ability to transmit and receive data on Sprint's network of cell towers. Ford v. State, 444 S.W.3d 171, 188 (Tex. App.–San Antonio 2014, pet. granted) (citing Barfield, 416 S.W.3d at 748). The fact that this data happens to reveal the general location of appellant's cell phone, and presumably appellant himself, at given points in time is of no consequence to the legal analysis. Id. The State's actions did not violate appellant's Fourth Amendment rights because he could not have a reasonable expectation of privacy in information he voluntarily conveyed to a third party. Hankston v. State, No. 14-13-00923-CR, 2015 WL 3751551, at *5 (Tex. App. June 16, 2015) (footnote added).
Expectation of Privacy
The Barfield opinion is based on the reasoning of In re U.S. for Historical Cell Site
Data, 724 F.3d 600, 610 (5th Cir.2013). As recognized by the Barfield court “[t]he
1 The Court of Appeals is referencing its prior case of Barfield v. State, 416 S.W.3d 743 (Tex. App. – Houston [14th Dist.] 2013, no pet.).
7 Fifth Circuit opinion hinges on a determination of whether individuals have a
‘reasonable expectation of privacy’ in their location information transmitted each time
they make a cell phone call and received and stored by their service provider.” Barfield
at 747. In finding no Fourth Amendment violation, the Fifth Circuit relied on the
third-party doctrine of Smith v. Maryland, 442 U.S. 735 (1979) and United States v. Miller,
425 U.S. 435 (1976).
However, the validity of the third-party records doctrine as applied to
technological advances is not certain. In her concurring opinion in United States v.
Jones, Justice Sotomayor noted:
it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as Justice ALITO notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” post, at 962, and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.
8 United States v. Jones, 132 S. Ct. 945, 957, 181 L. Ed. 2d 911 (2012) (internal citations
omitted).
Additionally, whether the user of a cell phone voluntarily reveals his location to
his service provider is also not settled law. The Third Circuit reached the opposite
conclusion from the Fifth Circuit on this issue and stated:
A cell phone customer has not “voluntarily” shared his location information with a cellular provider in any meaningful way. As the EFF notes, it is unlikely that cell phone customers are aware that their cell phone providers collect and store historical location information. Therefore, “[w]hen a cell phone user makes a call, the only information that is voluntarily and knowingly conveyed to the phone company is the number that is dialed and there is no indication to the user that making that call will also locate the caller; when a cell phone user receives a call, he hasn't voluntarily exposed anything at all.”
In re Application of U.S. for an Order Directing a Provider of Elec. Commc'n Serv. to Disclose
Records to Gov't, 620 F.3d 304, 317-18 (3rd Cir. 2010) (internal citations omitted).
Finally, as Justice Chapa pointed out in her dissent in Ford v. State,
the Supreme Court has recently recognized that modern cell phones— now a “pervasive and insistent” part of modern life—present privacy concerns far beyond the founding principles of the Fourth Amendment and the circumstances of the founding era… The Court recognized that “[m]odern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse” and that “[c]ell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee's person.” Id. at 2488–89.
Ford v. State, 444 S.W.3d 171, 202 (Tex. App. – San Antonio 2014, pet. granted) citing
Riley v. California, 134 S.Ct. 2473 (2014). Justice Chapa went on to conclude that
“[s]imilar to the way that the search-incident-to-arrest doctrine was ill suited to the
9 digital data contained on cell phones seized during an arrest, the third-party doctrine is
‘ill suited to the digital age, in which people reveal a great deal of information about
themselves to third parties in the course of carrying out mundane tasks.’” Id.
The issue of how the third-party record doctrine applies in light of the modern
technology of cell phones is a novel question of law that has yet to be answered by
this Court or U.S. Supreme Court and as such this Court should grant review.
PRAYER
For these reasons, Mr. Hankston prays this Court to grant discretionary review.
Respectfully submitted,
ALEXANDER BUNIN Chief Public Defender Harris County Texas
/s/ Angela Cameron ANGELA CAMERON Assistant Public Defender 1201 Franklin, 13th floor Houston Texas 77002 (713) 368-0016 TBA No. 00788672 email: angela.cameron@pdo.hctx.net
CERTIFICATE OF SERVICE
I certify that I provided a copy of the foregoing petition to the Harris County District Attorney and the State Prosecuting Attorney via e-filing service on the 20th day of July 2015.
/s/ Angela Cameron ANGELA CAMERON
10 CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4(i)(3), undersigned counsel certifies that this brief complies
with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).
1. This petition for discretionary review contains 3,236 words printed in a
proportionally spaced typeface.
2. This brief is printed in a proportionally spaced, serif typeface using Garamond
14 point font in text and Garamond 12 point font in footnotes produced by
Microsoft Word software.
3. Upon request, undersigned counsel will provide an electronic version of this
brief and/or a copy of the word printout to the Court.
4. Undersigned counsel understands that a material misrepresentation in
completing this certificate, or circumvention of the type-volume limits in Tex. R. App.
Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against
the person who signed it.
/s/ Angela Cameron ANGELA L. CAMERON
11 Hankston v. State, Not Reported in S.W.3d (2015)
the complainant standing in Jordan's mother's driveway and the complainant told the neighbor that he was “protecting 2015 WL 3751551 their house.” Jordan's stepfather also found the complainant's Only the Westlaw citation is currently available. cell phone outside her window. When Jordan moved to her SEE TX R RAP RULE 47.2 FOR apartment complex, the complainant approached her and DESIGNATION AND SIGNING OF OPINIONS. asked if she needed help with her groceries. Jordan stated that this was strange because she did not know how the DO NOT PUBLISH—TEX. R. APP. P. 47.2(B). complainant found out where she had moved. Jordan testified Court of Appeals of Texas, that all of these encounters scared her. Houston (14th Dist. On May 19, 2011, Jordan was at home in her apartment with Gareic Jerard Hankston, Appellant her daughter when she heard a soft knock at the door. Jordan v. asked who was there, but no one responded. The person The State of Texas, Appellee knocked again and Jordan looked out the front window and saw a dark-skinned male standing outside. Jordan also saw NO. 14–13–00923–CR | a white van that she knew belonged to the complainant. At Memorandum Opinion filed June 16, 2015 8:44 p.m, Jordan called 911, her parents, and her boyfriend, the appellant. On Appeal from the 178th District Court, Harris County, Texas, Trial Court Cause No. 1326559 The police responded to the 911 call and arrived at Jordan's Attorneys and Law Firms apartment at 8:57 p.m. Appellant and Jordan's parents were also present. Jordan testified that appellant was aware of the Devon Anderson and Eric Kugler, for The State Bar of Texas. complainant's stalking but he did not seem upset or bothered by the knocking incident. However, Jordan also stated that Angela Lee Cameron, for Gareic Jerard Hankston. appellant did not think the police were taking the situation Panel consists of Justices Christopher, Donovan, and Wise. seriously and the police told appellant to be quiet during the investigation. Everyone left Jordan's apartment in separate cars. Jordan and her daughter went to Jordan's grandmother's house for about five minutes and then went to her mother's MEMORANDUM OPINION house. While at her mother's house, Jordan heard gunshots. Ken Wise, Justice Jordan stated that she did not know where appellant was when she heard the gunshots. Jordan testified that appellant came to *1 Appellant Gareic Jerard Hankston was convicted of her mother's house after she got there, but could not remember murder and sentenced to twenty years in prison. Appellant the exact time. contends that the evidence is legally insufficient to support his conviction for murder and that the trial court erred by failing The complainant's wife Tonie was not aware that her husband to grant his pre-trial motion to suppress his cell phone records. had been stalking Jordan. Tonie testified that on May 19, We affirm. the complainant came home around 9:00 p.m. Tonie and the complainant argued in the front yard and Tonie knew that the complainant had taken PCP because he was nonresponsive to her. The complainant was also distracted because he was BACKGROUND looking at someone wearing jeans and a white t-shirt walking The complainant, Keith Brown, stalked appellant's girlfriend down the street. Tonie went back inside the house, but when Crystal Jordan on several occasions. The complainant she tried to close the door, the complainant told her not lived two houses down from Jordan's mother's house. One to leave him out there. The complainant eventually came day, when Jordan was living at her mother's house, the inside the house and began sweeping the front room. The complainant watched Jordan wash her car and took his complainant's four children were all home at the time. shirt off to pose for her. The complainant would also leave notes on Jordan's door. On one occasion, a neighbor saw
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Hankston v. State, Not Reported in S.W.3d (2015)
*2 Shortly after the complainant went inside his house, someone started banging loudly on the front door. When ISSUES AND ANALYSIS the complainant asked who was there, the person responded by saying “it's your son-in-law, Chad.” 1 The complainant Appellant contends that the evidence is legally insufficient opened the blinds to look outside, turned off the porch light, to support his conviction for murder. Appellant also asserts and then began slowly opening the door. The complainant that the trial court erred by denying his motion to suppress his opened the door a few inches, but then attempted to shut cell phone records because the State obtained those records it when the person outside began pushing it back. The without a warrant in violation of the Fourth Amendment and person then fired six gunshots through the door, striking the Article I, section 9 of the Texas Constitution. complainant with four of them. The complainant attempted to crawl to the bedroom but died before he could get there. The complainant's son Gregory called 911 at 9:32 p.m. and I. The Evidence is Legally Sufficient to Convict the police were dispatched to the scene at 9:34 p.m. Appellant of Murder When reviewing the sufficiency of the evidence, we view 1 all of the evidence in the light most favorable to the The complainant did not have a son-in-law named Chad verdict and determine, based on that evidence and any or any relatives named Chad. Tonie testified that the reasonable inferences from it, whether any rational trier of complainant used to produce music with a man named fact could have found the elements of the offense beyond Chad but they had not spoken in at least a year. Tonie also testified that her son Gregory had an uncle named a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 Chad who lived in Louisiana but he and the complainant (Tex.Crim.App.2011); see also Jackson v. Virginia, 443 had never met or spoken. U.S. 307, 318–19 (1979). The jury is the exclusive judge of credibility of the witnesses and the weight to be given The complainant's nine-year-old son Malik was in the front to the evidence. See Isassi v. State, 330 S.W.3d 633, living room when the shooting occurred. After the knock on 638 (Tex.Crim.App.2010). Further, we defer to the jury's the door, Malik ran to the window and saw a man holding responsibility to fairly resolve conflicts in testimony, weigh a black handgun. Malik made eye contact with the man for the evidence, and to draw reasonable inferences from basic several seconds. Malik described the man to the police as a facts to ultimate facts. Id. This standard applies to both bald, dark-skinned male wearing a white tank top and jeans. circumstantial and direct evidence. Id. We do not engage Although Malik told the police that he saw two other people, in a second evaluation of the weight and credibility of the he could not testify at trial as to whether he was positive that evidence, but only ensure the jury reached a rational decision. he saw the other people. Malik was shown three different Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App.1993). photo spreads throughout the course of the investigation. On November 4, 2011, Malik selected appellant's photo from *3 The jury was instructed on murder and the law of parties. the third photo spread he was shown and identified appellant A person commits the offense of murder if he intentionally as the man he saw with a gun outside the door before the or knowingly causes the death of an individual. Tex. Penal shooting. Code § 19.02(b)(1). A person may be guilty as a party to murder if the defendant committed the offense by his At trial, the State offered cell tower records along with own conduct or by the conduct of another for which he is the expert testimony of Officer Robert Brown to establish criminally responsible. Tex. Penal Code § 7.01(a). “A person appellant's whereabouts during times relevant to when the is criminally responsible for an offense committed by the complainant was killed. The State also used appellant's cell conduct of another if: ... acting with intent to promote or phone records to show who he called and when the phone calls assist the commission of the offense, he solicits, encourages, were made. The State obtained appellant's cell phone records directs, aids, or attempts to aid the other person to commit the by using a subpoena. The State did not obtain a warrant. The offense.” Id. § 7.02(a)(2). trial court denied appellant's pre-trial motion to suppress the cell phone records. Appellant argues that the evidence to convict him of murder is legally insufficient because (1) Malik's identification was On September 27, 2013, the jury found appellant guilty of unreliable; (2) the description of the vehicle fleeing the scene murder and assessed punishment at twenty years in prison. was different from the vehicle being driven by appellant;
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Hankston v. State, Not Reported in S.W.3d (2015)
(3) appellant did not have a motive to kill the complainant; The jury also heard evidence that appellant had a possible and (4) appellant's cell phone records do not conclusively motive for the killing. The shooting occurred less than one establish that he was at the complainant's house during the hour after the complainant showed up at Jordan's apartment. shooting. Although appellant attacks each piece of evidence Appellant knew that the complainant had stalked Jordan on individually, the court must “consider the combined and several occasions and knew the complainant knocked on her cumulative force of all the evidence when viewed in the light door that night. Jordan testified that she and appellant did most favorable to the verdict.” Clayton v. State, 235 S.W.3d not think the police were taking the stalking seriously enough 772, 778 (Tex.Crim.App.2007). and that the police told appellant to be quiet during their investigation. Although Jordan testified that appellant seemed Appellant suggests that Malik's identification was unreliable normal that night, she stated that “[h]e wasn't happy with the because Malik (1) was only nine years old at the time; (2) situation.” Officer Burrow also testified that he believed the stated that appellant was bald with no tattoos when appellant crime was personally motivated because the shooter did not has hair and tattoos; (3) told his mom on the night of the wear a mask or try to force entry into the home and he banged shooting that he did not see the shooter's face; and (4) loudly on the door and shot appellant through the door as soon felt pressured to select someone in the photo spread. Malik as he saw that someone was there. testified that he saw appellant holding a gun outside the door before the shooting occurred. Malik made eye contact *4 Appellant's phone records established that he was in with the appellant for three to four seconds. Although Malik the vicinity of the complainant's home during the shooting. described the appellant as bald, the State offered a photograph Although appellant contends that this is the same area where at trial in which the sides of appellant's head were bald Jordan's mother's house is located, Jordan testified that she three weeks before the shooting occurred. Malik selected did not know where the appellant was when she heard the appellant's photograph out of a photo spread presented by gunshots. The cell phone records also reflected that there Officer Condon. It took Malik three to four minutes to select was a lull in activity on appellant's phone from 9:24 p.m. to appellant's photo and he stated that he was “pretty sure” it 9:32 p.m., when the shooting occurred. During this period of was him. At trial, Malik testified that he was confident that time, there were no incoming or outgoing communications on appellant was the man he saw outside his window on the appellant's phone. The complainant's son called 911 at 9:32 night of the shooting. The determination of what weight to be p.m. Officer Burrow testified that at 9:32 p.m., there was a given to testimonial evidence rests within the sole province burst in activity on appellant's phone in which thirty-eight of the jury because it turns on an evaluation of credibility and telecommunications were exchanged from 9:32 p.m. to 9:55 demeanor. Davis v. State, 177 S.W.3d 355, 359 (Tex.App.– p.m. Officer Burrow stated that this was the highest volume Houston [1st Dist.] 2005, no pet.). The jury was free to believe in appellant's phone records over the course of a seven-month or disbelieve any or part of Malik's testimony. See id. period.
The State also offered evidence to corroborate Malik's Viewing the evidence in the light most favorable to the testimony, including (1) the description of appellant's vehicle; verdict, we conclude that a rational trier of fact could have (2) appellant's motive for the killing; and (3) appellant's cell found the essential elements of murder beyond a reasonable phone records reflecting his whereabouts during the shooting doubt. See Gear, 340 S.W.3d at 746. Because the evidence and phone calls he made before and after the shooting. is legally sufficient to convict appellant as the principal, we need not determine whether the evidence is legally sufficient The State established that the appellant's car matched the to convict appellant of murder as a party to the shooting. See description of a vehicle seen fleeing the scene after the Barnes v. State, 62 S.W.3d 288, 299 (Tex.App.–Austin 2001, shooting. Officer Burrow testified that he spoke to a neighbor pet. ref'd) (“When different theories of liability are submitted who saw a 2000 or 2006 burgundy Honda Civic being driven to the jury in the disjunctive, a general verdict is sufficient if from the scene. The appellant was driving a 2002 burgundy the evidence supports one of the theories.”) (citing Rabbani Honda Accord on the night of the shooting. Officer Burrow v. State, 847 S.W.2d 555, 558–59 (Tex.Crim.App.1992)); testified that the police examined photographs of Honda see also Morris v. State, 892 S.W.2d 205, 208 (Tex.App.– Civics and Honda Accords from those years and found that Texarkana 1994, no pet.) (holding that “even if the law of they were “pretty similar.” parties was incorrectly applied, it would be harmless error because the conviction could be supported on the State's main
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theory that [the defendant] was a primary actor because the Cir.2010). However, this court recently rejected appellant's evidence clearly supported such a theory”). argument in Barfield v. State. See 416 S.W.3d 743 (Tex.App.– Houston [14th Dist.] 2013, no pet.). We overrule appellant's first issue regarding the legal sufficiency of his conviction. *5 In Barfield, the State used third-party cell tower records to establish the defendant's whereabouts during times relevant to when the complainant was murdered. Id. at 745. The II. The Trial Court Did Not Err by Denying Appellant's State obtained the records through use of a subpoena and Motion to Suppress did not obtain a search warrant. Id. The defendant in In his second issue, appellant contends that the State's Barfield similarly argued that the State violated his reasonable acquisition of his cell phone records violated the Fourth expectation of privacy because it obtained the cell tower Amendment to the United States Constitution and Article I, records without a warrant. Id. at 748. This court in Barfield section 9 of the Texas Constitution. disagreed and reasoned that:
When reviewing a trial court's ruling on a motion to suppress, When an individual knowingly we apply an abuse of discretion standard and overturn exposes his activities to third parties, the trial court's ruling only if it is outside the zone of he surrenders Fourth Amendment reasonable disagreement. Martinez v. State, 348 S.W.3d 919, protections, and, if the Government 922 (Tex.Crim.App.2011). We view the evidence in the is subsequently called upon to light most favorable to the trial court's ruling. Johnson v. investigate his activities for possible State, 414 S.W.3d 184, 192 (Tex.Crim.App.2013). Although violations of the law, it is free to we generally defer to a trial court's determination of facts seek out these third parties, to inspect and credibility, we review a constitutional legal ruling, such their records, and to probe their as whether a search or seizure governed by the Fourth recollections for evidence. Amendment occurred in a particular case, under a de novo standard of review. Wall v. State, 184 S.W.3d 730, 742 Id. (quoting In re Application of United States for Historical (Tex.Crim.App.2006). Cell Site Data, 724 F.3d 600, 610 (5th Cir.2013) (internal quotations omitted)); Reporters Comm. for Freedom of Press v. Am. Tel. & Tel. Co., 593 F.2d 1030, 1043 (D.C.Cir.1978). A. Fourth Amendment Challenge The mere fortuity of whether or not the third party, in its The Fourth Amendment to the United States Constitution own discretion, elects to store the information makes no protects against unreasonable searches and seizures. U.S. constitutional difference. Barfield, 416 S.W.3d at 748. Once Const. amend. IV; Walter v. State, 28 S.W.3d 538, 540 an individual exposes information to a third party, it can (Tex.Crim.App.2000). The capacity to claim the protection be used for any purpose, including conveying it to law of the Fourth Amendment depends upon whether the person enforcement authorities. Id. has a legitimate expectation of privacy in the invaded place. Walter, 28 S.W.3d at 541. Under the Fourth Amendment, The court also emphasized the fact that the transmission of a search conducted without a warrant issued upon probable location information by the cell user to the service provider is cause is “per se unreasonable ... subject only to a few voluntary because the user knows generally that “cell phones specifically established and well-delineated exceptions.” exchange signals with nearby cell towers, that if they are in Reasor v. State, 12 S.W.3d 813, 817 (Tex.Crim.App.2000) an area without network towers, their call will not connect, (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 219 and if they are in an area with heavy cell usage, they may also (1973)). have trouble connecting.” Id. The user voluntarily decides to obtain a cell phone, choose a provider, and make a call In arguing that he has a reasonable expectation of privacy in from a particular location. Id. at 748–49. Thus, in relying his historical cell site records, appellant relies on the Supreme primarily on the Fifth Circuit's decision in In re Application Court's decision in United States v. Jones, 132 S.Ct. 945 of United States, this court held that the State's obtaining of (2012), and the Third Circuit's decision in In re Application cell tower records from a third-party provider does not violate of United States for an Order Directing a Provider of Elec. a defendant's reasonable expectation of privacy. Id. at 749. Commc'n Serv. to Disclose Records to Gov't, 620 F.3d 304 (3d
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Appellant asks this court to reconsider its holding in Barfield, (Tex.Crim.App.1991). Despite this conclusion, at least one arguing that it was wrongly decided. Appellant directs this appellate court has reasoned that merely “[b]ecause we can court to the Third Circuit's decision in In re Application of do so, however, does not mean we should do so.” Johnson United States for an Order Directing a Provider of Elec. v. State, 864 S.W.2d 708, 718 (Tex.App.–Dallas 1993), Commc'n Serv. to Disclose Records to Gov't. See 620 F.3d aff'd, 912 S.W.2d 227 (Tex.Crim.App.1995) (emphasis in at 317–18 (holding that a “cell phone customer has not original). The Court of Criminal Appeals also noted that “[a] ‘voluntarily’ shared his location information with a cellular plain reading and comparison of the language of the Fourth provider in any meaningful way”). However, we decline Amendment and Art. I, § 9 reveals no substantive difference” appellant's invitation to review our prior decision on this and they both protect the same right. Johnson, 912 S.W.2d at issue. Based on this court's precedent, appellant cannot 232. The Court of Criminal Appeals has further stated that: successfully claim that the State's acquisition of his cell tower records from Sprint violated his reasonable expectation of Absent some significant difference in privacy. The cell site records acquired by the State are simply the text of the two provisions, or some the business records memorializing appellant's voluntary historically documented difference subscriber transaction with Sprint for the service he wanted in attitude between the respective from his cellular provider, i.e. the ability to transmit and drafters, there would be no apparent receive data on Sprint's network of cell towers. Ford v. State, reason to prefer an interpretation of 444 S.W.3d 171, 188 (Tex.App.–San Antonio 2014, pet. Article I, § 9 any different from our granted) (citing Barfield, 416 S.W.3d at 748). The fact that preferred interpretation of the Fourth this data happens to reveal the general location of appellant's Amendment. We will not read Article cell phone, and presumably appellant himself, at given points I, § 9 differently than the Fourth in time is of no consequence to the legal analysis. Id. The Amendment in a particular context State's actions did not violate appellant's Fourth Amendment simply because we can. rights because he could not have a reasonable expectation Crittenden v. State, 899 S.W.2d 668, 673 n.8 of privacy in information he voluntarily conveyed to a third (Tex.Crim.App.1995). party.
2 As noted by the First Court of Appeals, at least one B. Texas Constitution Challenge scholarly treatise has recognized that there are only *6 Appellant also contends that the State's acquisition three cases in which the Court of Criminal Appeals has of his cell phone records without a warrant violated his construed Article I, section 9 more broadly than the rights under Article I, section 9 of the Texas Constitution Fourth Amendment. Rothenberg v. State, 176 S.W.3d 53, 59 n.7 (Tex.App.–Houston [1st Dist.] 2004, pet. ref'd) because the Texas Constitution provides greater protection (citing 40 George E. Dix & Robert O. Dawson, Texas than the Supreme Court decisions that address the Fourth Practice: Criminal Practice & Procedure § 5.04 (2d ed. Amendment. In support of his contention, appellant cites to 2011)). Richardson v. State, a case in which the Court of Criminal Appeals held that “the use of a pen register may well Aside from citing to Richardson, appellant does not provide constitute a ‘search’ under Article I, § 9 of the Texas any reasoning as to why the Texas Constitution affords Constitution.” 865 S.W.2d 944, 953 (Tex.Crim.App.1993). greater protection in this instance. Appellant cites to no authority for this proposition and does not point to any Like the Fourth Amendment, the Texas Constitution provides difference in the two provisions to warrant such a result. Thus, that “[t]he people shall be secure in their persons, houses, we utilize Fourth Amendment precedent to conclude that the papers and possessions, from all unreasonable seizures or State's acquisition of appellant's cell phone records does not searches....” Tex. Const. art. I, § 9. In Heitman v. State, the violate Article I, section 9 of the Texas Constitution. Court of Criminal Appeals acknowledged that it can interpret this provision in a manner that grants defendants greater We overrule appellant's first issue regarding his motion to rights under Article I, section 9 of the Texas Constitution suppress. than afforded by the Supreme Court's interpretation of the United States Constitution. 2 815 S.W.2d 681, 690 & n.1
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CONCLUSION
We conclude that the evidence is legally sufficient to convict All Citations the appellant of murder and the trial court did not err by Not Reported in S.W.3d, 2015 WL 3751551 denying appellant's motion to suppress.
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
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