Opinion issued May 9, 2019
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-18-00078-CR ——————————— JOSE EDGARDO RIVERA, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court Harris County, Texas Trial Court Case No. 1482180
MEMORANDUM OPINION
Appellant Jose Rivera was charged by indictment with capital murder in the
course of committing robbery. A jury found him guilty of the lesser-included
offense of felony murder and assessed his punishment at life in prison. Rivera appeals, alleging in two issues that his two trial attorneys rendered ineffective
assistance. We affirm.
Factual Background
On the evening of January 9, 2015, three men later identified by police as
Rivera, Fernand Santiagovargas, and Jonny Enamorado entered a Harris County
smoke shop owned by Michael Phelan, while a fourth, Belisario Lopez, was
waiting outside as the getaway driver. Their intent was to rob the shop of any cash
and guns. The three men were armed—two had handguns and one had a rifle.
Phelan, a friend, and an employee were in the shop’s back room when the gunmen
entered.
The employee came out to greet what he thought were customers, but after
seeing their weapons, he turned to return to the back room and to try to close the
door to the back room. The employee was hit in the head and pushed into a
restroom. Phelan heard the commotion, approached the front of the shop with a
handgun, and was met with gunfire. Phelan was shot six times and eventually died
from his gunshot injuries, but he apparently shot Enamorado in the leg in the
exchange of gunfire. The attempted robbery and shootout were partially captured
on the shop’s surveillance video. After the shootout, the four would-be robbers fled
the scene to Rivera’s house, and then they took Enamorado to David Fiskal’s
2 apartment, where Enamorado had been living. Over the next two weeks,
Enamorado stayed there and recuperated from his gunshot wound.
After the crime, police received an anonymous tip that implicated Rivera,
Enamorado, and Santiagovargas.1 In a custodial interview, Enamorado provided
police with Rivera’s cell-phone number. Police subsequently obtained Rivera’s
cell-phone records, and they showed Rivera’s phone “pinging” off of cell-phone
towers in the area of the smoke shop at the time of the murder.
At Rivera’s trial, Enamorado testified as an accomplice witness. Fiskal also
testified for the State. Detective E. Powell of the Houston Police Department
testified as the State’s expert on cell site location information (CSLI). During trial,
a hearing was held on Rivera’s Daubert motion challenging the scientific
reliability of the CSLI, but not Detective Powell’s expertise in interpreting the
CSLI. Rivera’s trial counsel also made hearsay and Confrontation Clause
objections to the CSLI. Rivera’s motion and objections were overruled.
In his first issue, Rivera contends that his trial counsel rendered ineffective
assistance of counsel by failing to make constitutional and statutory objections to
the CSLI. In his second issue, he contends that his trial counsel rendered
ineffective assistance of counsel by failing to investigate and obtain an expert in
1 Santiagovargas was found guilty of capital murder and received a life sentence; and his conviction was affirmed. See Santiagovargas v. State, No. 01-17-00349-CR, 2018 WL 3580929 (Tex. App.—Houston [1st Dist.] July 26, 2018, no pet.) (mem. op., not designated for publication). 3 the field of cell site forensics to assist in the preparation for trial and in cross-
examination of Detective Powell.
Analysis
The United States Constitution and the Texas Constitution guarantee an
accused the right to reasonably effective assistance of counsel. See U.S. CONST.
amend. VI; TEX. CONST. art. I, § 10; see also Strickland v. Washington, 466 U.S.
668, 686 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997).
To prove ineffective assistance of counsel, a defendant must show that: (1) trial
counsel’s representation fell below an objective standard of reasonableness, based
on the prevailing professional norms; and (2) there is a reasonable probability that,
but for trial counsel’s deficient performance, the result of the proceeding would
have been different. See Strickland, 466 U.S. at 687–95; Dewberry v. State, 4
S.W.3d 735, 757 (Tex. Crim. App. 1999). Whether this test has been met is to be
judged on appeal by the totality of the representation, not by isolated acts or
omissions. Rodriguez v. State, 899 S.W.2d 658, 665 (Tex. Crim. App. 1995).
Our review of counsel’s representation is highly deferential, and we will find
ineffective assistance only if the defendant overcomes the strong presumption that
his counsel’s conduct fell within the range of reasonable professional assistance.
See Strickland, 466 U.S. at 689; Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim.
App. 2002). The right to “reasonably effective assistance of counsel” does not
4 guarantee errorless counsel or counsel whose competency is judged by perfect
hindsight. Saylor v. State, 660 S.W.2d 822, 824 (Tex. Crim. App. 1983).
Moreover, the acts and omissions that form the basis of the defendant’s claims of
ineffective assistance must be supported by the record. Thompson v. State, 9
S.W.3d 808, 814 (Tex. Crim. App. 1999).
In issue one, Rivera specifically argues that his trial counsel were ineffective
by failing to object or to move for suppression on the grounds that his cell-phone
records had been obtained without a warrant, in violation of the Fourth
Amendment, the Stored Communications Act (18 U.S.C. § 2703(d)), and former
Code of Criminal Procedure article 18.21,2 which was repealed effective January 1,
2019.3
At the time of Rivera’s trial in January of 2018, the Court of Criminal
Appeals and all federal circuit courts of appeal that had considered the issue had
uniformly held that a warrant was not required for law enforcement to obtain CSLI
from cell-phone carriers. See Ford v. State, 477 S.W.3d 321, 330–35 (Tex. Crim.
App. 2015); Carpenter v. United States, 138 S.Ct. 2206, 2226 (2018) (Kennedy, J.,
dissenting) (collecting federal appellate cases); Eric Lode, Annotation, Validity of
2 Act of May 27, 2013, 83rd Leg., R.S., ch. 1289, §§ 6, 7, 2013 Tex. Sess. Law Serv. 3263, 3265–67. 3 Act of May 24, 2017, 85th Leg., R.S., ch. 1058, §§ 5.01, 6.03, 2017 Tex. Sess. Law Serv. 4134, 4198–99 (current version at TEX. CODE CRIM. PROC. arts. 18B.351–.359). 5 Use of Cellular Telephone or Tower to Track Prospective, Real Time, or
Historical Position of Possessor of Phone Under State Law, 94 A.L.R.6th 579
§ 6 (2014) (collecting cases where courts held that warrant not required for CSLI). In
Carpenter, the Supreme Court held that CSLI are records that carry an expectation
of privacy and that law enforcement must generally obtain a search warrant for
CSLI under the Fourth Amendment.
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Opinion issued May 9, 2019
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-18-00078-CR ——————————— JOSE EDGARDO RIVERA, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court Harris County, Texas Trial Court Case No. 1482180
MEMORANDUM OPINION
Appellant Jose Rivera was charged by indictment with capital murder in the
course of committing robbery. A jury found him guilty of the lesser-included
offense of felony murder and assessed his punishment at life in prison. Rivera appeals, alleging in two issues that his two trial attorneys rendered ineffective
assistance. We affirm.
Factual Background
On the evening of January 9, 2015, three men later identified by police as
Rivera, Fernand Santiagovargas, and Jonny Enamorado entered a Harris County
smoke shop owned by Michael Phelan, while a fourth, Belisario Lopez, was
waiting outside as the getaway driver. Their intent was to rob the shop of any cash
and guns. The three men were armed—two had handguns and one had a rifle.
Phelan, a friend, and an employee were in the shop’s back room when the gunmen
entered.
The employee came out to greet what he thought were customers, but after
seeing their weapons, he turned to return to the back room and to try to close the
door to the back room. The employee was hit in the head and pushed into a
restroom. Phelan heard the commotion, approached the front of the shop with a
handgun, and was met with gunfire. Phelan was shot six times and eventually died
from his gunshot injuries, but he apparently shot Enamorado in the leg in the
exchange of gunfire. The attempted robbery and shootout were partially captured
on the shop’s surveillance video. After the shootout, the four would-be robbers fled
the scene to Rivera’s house, and then they took Enamorado to David Fiskal’s
2 apartment, where Enamorado had been living. Over the next two weeks,
Enamorado stayed there and recuperated from his gunshot wound.
After the crime, police received an anonymous tip that implicated Rivera,
Enamorado, and Santiagovargas.1 In a custodial interview, Enamorado provided
police with Rivera’s cell-phone number. Police subsequently obtained Rivera’s
cell-phone records, and they showed Rivera’s phone “pinging” off of cell-phone
towers in the area of the smoke shop at the time of the murder.
At Rivera’s trial, Enamorado testified as an accomplice witness. Fiskal also
testified for the State. Detective E. Powell of the Houston Police Department
testified as the State’s expert on cell site location information (CSLI). During trial,
a hearing was held on Rivera’s Daubert motion challenging the scientific
reliability of the CSLI, but not Detective Powell’s expertise in interpreting the
CSLI. Rivera’s trial counsel also made hearsay and Confrontation Clause
objections to the CSLI. Rivera’s motion and objections were overruled.
In his first issue, Rivera contends that his trial counsel rendered ineffective
assistance of counsel by failing to make constitutional and statutory objections to
the CSLI. In his second issue, he contends that his trial counsel rendered
ineffective assistance of counsel by failing to investigate and obtain an expert in
1 Santiagovargas was found guilty of capital murder and received a life sentence; and his conviction was affirmed. See Santiagovargas v. State, No. 01-17-00349-CR, 2018 WL 3580929 (Tex. App.—Houston [1st Dist.] July 26, 2018, no pet.) (mem. op., not designated for publication). 3 the field of cell site forensics to assist in the preparation for trial and in cross-
examination of Detective Powell.
Analysis
The United States Constitution and the Texas Constitution guarantee an
accused the right to reasonably effective assistance of counsel. See U.S. CONST.
amend. VI; TEX. CONST. art. I, § 10; see also Strickland v. Washington, 466 U.S.
668, 686 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997).
To prove ineffective assistance of counsel, a defendant must show that: (1) trial
counsel’s representation fell below an objective standard of reasonableness, based
on the prevailing professional norms; and (2) there is a reasonable probability that,
but for trial counsel’s deficient performance, the result of the proceeding would
have been different. See Strickland, 466 U.S. at 687–95; Dewberry v. State, 4
S.W.3d 735, 757 (Tex. Crim. App. 1999). Whether this test has been met is to be
judged on appeal by the totality of the representation, not by isolated acts or
omissions. Rodriguez v. State, 899 S.W.2d 658, 665 (Tex. Crim. App. 1995).
Our review of counsel’s representation is highly deferential, and we will find
ineffective assistance only if the defendant overcomes the strong presumption that
his counsel’s conduct fell within the range of reasonable professional assistance.
See Strickland, 466 U.S. at 689; Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim.
App. 2002). The right to “reasonably effective assistance of counsel” does not
4 guarantee errorless counsel or counsel whose competency is judged by perfect
hindsight. Saylor v. State, 660 S.W.2d 822, 824 (Tex. Crim. App. 1983).
Moreover, the acts and omissions that form the basis of the defendant’s claims of
ineffective assistance must be supported by the record. Thompson v. State, 9
S.W.3d 808, 814 (Tex. Crim. App. 1999).
In issue one, Rivera specifically argues that his trial counsel were ineffective
by failing to object or to move for suppression on the grounds that his cell-phone
records had been obtained without a warrant, in violation of the Fourth
Amendment, the Stored Communications Act (18 U.S.C. § 2703(d)), and former
Code of Criminal Procedure article 18.21,2 which was repealed effective January 1,
2019.3
At the time of Rivera’s trial in January of 2018, the Court of Criminal
Appeals and all federal circuit courts of appeal that had considered the issue had
uniformly held that a warrant was not required for law enforcement to obtain CSLI
from cell-phone carriers. See Ford v. State, 477 S.W.3d 321, 330–35 (Tex. Crim.
App. 2015); Carpenter v. United States, 138 S.Ct. 2206, 2226 (2018) (Kennedy, J.,
dissenting) (collecting federal appellate cases); Eric Lode, Annotation, Validity of
2 Act of May 27, 2013, 83rd Leg., R.S., ch. 1289, §§ 6, 7, 2013 Tex. Sess. Law Serv. 3263, 3265–67. 3 Act of May 24, 2017, 85th Leg., R.S., ch. 1058, §§ 5.01, 6.03, 2017 Tex. Sess. Law Serv. 4134, 4198–99 (current version at TEX. CODE CRIM. PROC. arts. 18B.351–.359). 5 Use of Cellular Telephone or Tower to Track Prospective, Real Time, or
Historical Position of Possessor of Phone Under State Law, 94 A.L.R.6th 579
§ 6 (2014) (collecting cases where courts held that warrant not required for CSLI). In
Carpenter, the Supreme Court held that CSLI are records that carry an expectation
of privacy and that law enforcement must generally obtain a search warrant for
CSLI under the Fourth Amendment. Carpenter, 138 S.Ct. at 2217, 2221.
But Carpenter did not issue until June 22, 2018, six months after Rivera’s trial.
Therefore, any Fourth Amendment objection to Rivera’s CSLI would have been
contrary to existing and controlling Texas and federal law. See United States v.
Fields, 565 F.3d 290, 294 (5th Cir. 2009) (defense attorneys are required to make
“[s]olid meritorious arguments based on directly controlling precedent”). “A fair
assessment of attorney performance requires that every effort be made to eliminate
the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the
time.” Strickland, 466 U.S. at 689 (emphasis added).
Defense attorneys are not required to anticipate changes in the law:
“Clairvoyance is not a required attribute of effective representation.” Fields, 565
F.3d at 294–97 (counsel not ineffective for failing to object to defendant’s
sentence that would have been objectionable under subsequent Supreme Court
case). Additionally, applicable Texas and federal law was that a violation of either
6 the Stored Communications Act or article 18.21 did not require suppression of the
evidence unless a constitutional violation also occurred. See, e.g., United States v.
Wallace, 885 F.3d 806, 809–10 (5th Cir. 2018); Love v. State, 543 S.W.3d 835, 845
n.8 (Tex. Crim. App. 2016).
In conclusion, based on the law at the time of trial, Rivera’s trial counsel
were not deficient in failing to object to the CSLI on constitutional and statutory
grounds. And having concluded that Rivera’s trial counsel were not deficient, we
need not address the prejudice element. See Williams v. State, 301 S.W.3d 675, 687
(Tex. Crim. App. 2009) (“An appellant’s failure to satisfy one prong of the
Strickland test negates a court’s need to consider the other prong.”). We overrule
issue one.
Rivera’s second issue contends that his trial counsel were ineffective by
failing to investigate and obtain an expert in the field of cell-site forensics to assist
in the preparation for trial and in the cross-examination of Detective Powell.
The record does not reflect trial counsel’s reasons for not obtaining a
defense expert on CSLI. It also does not reflect how a defense expert on CSLI
could have assisted trial counsel or the substance of the testimony that such an
expert could have provided. See Noriega v. State, No. 01-16-00404-CR, 2017 WL
3597732, at *5 (Tex. App.—Houston [1st Dist.] Aug. 22, 2017, no pet.) (mem. op.,
not designated for publication) (“When challenging trial counsel’s decision not to
7 call an expert witness, the defendant must show that an expert was available and
would have testified in a manner beneficial to him.”) (citing Jones v. State, 500
S.W.3d 106, 116–17 (Tex. App.—Houston [1st Dist.] 2016, no pet.)).
But the record (trial counsel’s fee vouchers) does reflect that Rivera’s two
trial attorneys billed a total of 48 hours reviewing and researching cell-phone
records and that trial counsel were able to adequately cross-examine Detective
Powell in the Daubert hearing and before the jury. Additionally, nothing in the
record suggests that trial counsel did not adequately understand CSLI. Cf. Nieves v.
State, No. 01-14-00294–CR, 2015 WL 4251009, at *8 (Tex. App.—Houston [1st
Dist.] July 14, 2015, no pet.) (mem. op., not designated for publication) (“Nothing
in the record here indicates that trial counsel did not sufficiently understand the
DNA evidence or that counsel did not hire a consulting (as opposed to a testifying)
expert to aid his understanding of the science or develop his defensive strategy.”).
A silent record that provides no explanation for counsel’s actions usually
will not overcome the strong presumption of reasonable assistance. Thompson, 9
S.W.3d at 813–14. To warrant reversal without affording counsel an opportunity to
explain his actions, “the challenged conduct must be ‘so outrageous that no
competent attorney would have engaged in it.’” Roberts v. State, 220 S.W.3d 521,
533 (Tex. Crim. App. 2007) (quoting Goodspeed v. State, 187 S.W.3d 390, 392
(Tex. Crim. App. 2005)). In situations where trial counsel has not been afforded an
8 opportunity to explain his actions, usually an appellate court will summarily reject
the complaint. See, e.g., Scheanette v. State, 144 S.W.3d 503, 510 (Tex. Crim.
App. 2004); Hervey v. State, 131 S.W.3d 561, 564 (Tex. App.—Waco 2004, no
pet.) (“[T]rial counsel should ordinarily be afforded an opportunity to explain the
actions taken or not taken, as the case may be, before being condemned as
unprofessional and incompetent.”).
Because the record is silent as to trial counsel’s strategy regarding a defense
expert on CSLI and because Rivera has not demonstrated that trial counsel’s
actions regarding CSLI were so outrageous that no competent attorney would have
engaged in them, we cannot say that the record supports a finding that trial counsel
were ineffective. See Roberts, 220 S.W.3d at 533. We overrule issue two.
Conclusion
Having overruled Rivera’s two issues, we affirm the trial court’s judgment.
Richard Hightower Justice
Panel consists of Chief Justice Radack and Justices Higley and Hightower.
Do not publish. TEX. R. APP. P. 47.2(b).