76S-/5 PETITION NO. PD-0768-15
IN THE ORIGINAL COURT OF CRIMINAL APPEALS
AT AUSTIN, TEXAS
DANIEL FRANK LONGORIA, Jr PETITIONER
Vs
THE STATE OF TEXAS RESPONDANT
PETITIONER'S PETITION FOR DISCRETIONARY REVIEW
On Appeal from the Ninth Judicial" District Court of Appeals at
Beaumont in No. 09-13-00169-Cr from the 221st Judicial District
Court of Montgomery County in Nov ?12-05:-O5213-CR.
Daniel Frank Longoria, Jr, FILED IN #01851803-Coffield COURT OF CRIMINAL APPEALS 2661 FM 2054 OCT 0 i 2C15 Tenn.Colony, Tx. 75884 Abel Acosta, Clerk Pro se.
RECEIVED IN COURT OF CRIMINAL APPEALS
SEP 29 2015 ORAL ARGUMENT REQUESTED
Abet Acosta, Clerk IDENTITY OF JUSTICES, JUDGE, PARTIES, AND COUNSEL
JUSTICES: Before Kreger, Horton, and Leanne Johnson (opining Jus tice): 1001 Pearl St., ste. 330, Beaumont, Tx. 77701.
JUDGE AT TRIAL: Honorable Lisa Michalk: 221st Judicial District
Court, 207 West Phillips, Conroe, Texas 77301.
PETITIONER: Daniel Frank Longoria, Jr: #01851803, Coffield unit,
2661 FM 2054, Term.Colony, Tx. 75884.
PETITIONER'S APPELLATE COUNSEL: Mr. Darin J. Ray: 902 N. San fiv ".
Jacinto st., Conroe, Texas 77301.
PETITOINER'S TRIAL COUNSELS :'Mlcheal Griffin (1st chair): 122 W.
Davis st., Conroe, Texas 77301; and Mr. Brian Cain (2nd chair): 122 W. Davis St., Conroe, Texas 77301.
RESPONDANT: The State of Texas.
RESPONDANT'S APPELLATE COUNSEL: Mr. Bill Delmore: 207 W. Phillips
Second Floor, Conroe, Texas 77301.
RESPONDANT'S TRIAL COUNSEL: Ms. Jo Ann Linzer (1st chair): 207 W.
Phillips, Second Floor, Conroe, Texas 77301;;and Ms. Mary Nan
Huffman (2nd chair): 207 W. Phillips, Second Floor, Conroe, Texas
77301.
LONGORIA V. STATE PAGE ii TABLE OF CONTENTS
CONTENTS: PAGE # Cover i
Identity of Justices, Judge, Parties, and Counsel ii Table of Contents iii
Index of Authorities v
Statement Regarding Oral Argument vri'i
Statement of the Case viii
Statement of Procedural History ix
Statement of Jurisdiction x
Questions for Review: xi
1* Allowing GPS technology by another county (showing Petitioner being on.the leg monitor during guilt/innocence), and serving as evi dence of character conformity, rather than proving consciousness of guilt or flight of the crime. Should there.be a standing aut- hority(-ies) concerning the admissibility of the GPS leg monitoring? See RR4, 177-184; RR5, 50-67; 1-3
2' Acknowledging the fact that the Ninth Court of Appeals held the GPS technology was relevant to the Petitioner's case; did the Ninth Court of Appeals unreasonably depart from the accepted and usual standard of re- valancy, when it failed to Acknowledge whet her the GPS technology was either more pro bable or less probable than it would be '•"•.: without the evidence? See RR4, 177-184; RR5, 50-67. 3-9
LONGORIA V. STATE PAGE lii TABLE OF CONTENTS
CONTENTS: PAGE #
3* Calling for this Honorable Court of Criminal Appeals' power of supervision, was the Ninth Court of Appeals' decision of the probative value of the evidence not be ing sustantially outweighed by the danger of unfair prejudice unreasonably egnored other facts (admitted by the State) that severely reduced the probative value of the GPS sys tem? See RR4,ahd:RR5^generally. 7 9-13 3b* Does this conflict with this Honorable Court of Criminal Appeal's decisions on the same fact issue? See RR4, 177-184; RR5, 50- 67. 9-13
Prayer for Relief 14
Inmate Declaration 15
Proof of Mailing 16
Appendix A: Affixed
The Ninth Court of Appeals Memorandum Opinion by:
Justices Leanne Johnson (opining Justice), Kreger, and Horton—Affirming trial courts judgement on June 25, 2014.
L0NG0RIA V. STATE PAGE iv INDEX OF AUTHORITIES
CASELAW: PAGE #
Bigby v. State, 892 S.W.2d 864, 883 (Tex.App.Crim. 1994) 10,11,12 Brown v. State, 163. S.W.3d 818 (Tex.App.--Dallas, 2005) 2
Dixon v. State, No. 01-11-00443-CR (Tex.App. -- Houston [1st Dist] June 28, 2012)(not designated . for publication) 2
Ex Parte Daniel F. Longoria, Jr., No.WR-83,036-01
^~?^- (-Tex. Crim. App. June 3, 2015(per Curiam)(not de signated for publication) ^x Gilgliobianco v. State, 210 S.W.3d 637 (Tex.Crim.App.
2006) 10,11
Ladrier v. State, 868 S.W.2d 417 (Tex.App.--Tyler, 1993) 5,7
Longoria v. State, No. PD-0768-15 (Tex.Crim.App. June 26, 2015) ix Montgomery v. State, 810 S.W.2d 372 (Tex.Crim.App. 1990) 4,10
Robinson v. State, 368 S.W.3d 588 (Tex;App.--Austin, 2012) 2
Saenz v. State, No. 13-10-00216-CR (Tex.App. --Corpus Christi, February 17, 2011)(not designated for publication) 2 Tennison v. State, 969 S.W.2d 578 (Tex.App-- Texar-
LONGORIA V. STATE PAGE v INDEX OF AUTHORITIES
GASELAW: PAGE #
kana, 1998) 6,7
Wilson v. State, 195 S.W.3d 193 (Tex.App.-- San
Antonio 2006)
TEXAS RULES OF APPELLATE PROCEDURE:
Rule 9.3(b) IX
Rule 66.3(a) x,9,12
Rule 66.3(f) x,3,9,12
TEXAS RULES OF EVIDENCE:
Rule 401
Rule 404(b) 5,7
LONGORIA V. STATE PAGE vi STATEMENT REGARDING ORAL ARGUMENT
Petitioner believes that oral argument will be beneficial to
this Honorable Court of Criminal Appeals because of the ever
changing state of the caselaw within Texas, and the lack of Pre cedent concerning the GPS Techology pertaining to Petitioner's Question Number 1.
LONGORIA V. STATE PAGE vii STATEMENT OF THE CASE
On September 11, 2012, the Petitioner was indicted for
murder, and the Petitioner plead not guilty to the charged of
fense. CR, 24; RR3, 5. A jury was empanelled on March 18, 2013,
and the jury found the Petitioner guilty for murder. RR6, 69.
After hearing additional evidence, the same jury assessed punish
ment at life in the Texas Department of Criminal Justice on
March 21, 2013. RR7, 91.
LONGORIA V. STATE PAGE viii STATEMENT OF PROCEDURAL HISTORY
A Jury found Petiioner guilty of Murder and sentenced him to
life in prison on March 21, 2013. RR7, 91. The Petitioner pro
perly filed a notice of appeal to the Ninth Court of Appeals at
Beaumont. Cr, 111; Appendix A *1. Justices Leanne Johnson (opin
ing Justice), Kreger, and Horton Affirmed the trial courts Judge ment on June 25, 2014. Appendix A *10. The Petitioner did:not
file a motion for rehearing within the 9th Court of Appeals.
The Petitioner filed a Habeas Application to seek for .an
out-of-time Petitioner.' for Discretionary Review (PDR) . See Ex Parte Daniel F. Longoria, Jr., No. WR-83,036-01 (Tex.Crim.App. June 3, 2015)(Per Curiam). This Honorable Court granted the
Petitioner the ability to file an out-of-time PDR on June 3, 2015
id. The Petitioner was granted an extention of time by this
Honorable Court on June 26, 2015. See Longoria v. State, No. PD-
0768-15 (Tex.Crim.App. June 26, 2015)(Postcard)(This Honorable Court suspended rule 9.3(b) of the T.R.A.P. on the same day for the same cause number).
The Petitioner's deadline to file his PDR falls on Sept
ember 28, 2015. id. Petitioner now tiemly files his PDR on or
before September 28, 2015.
LONGORIA V. STATE PAGE ix STATEMENT OF JURISDICTION
1* Pursuant to the Texas Rules of Appellate Procedure 66.3 (a), the Ninth Court of Appeals' decision is in conflict with other Precedent law on the same fact and law issue.
2* Pursuant to the Texas Rules of Appellate Procedure 66.3
(f), the Ninth Court of Appeals has unreasonably departed from the accepted and usual standard used in matters of relevancy. 3* Pursuant to the Texas Rules of Appellate Procedure 66.3
(f), the Petitioner calls for this Honorable Court's exercise of •Ets^great power of supervision to set a Precedant Law concerning
the admissibility of the GPS technology from another county—an ankle monitor during guilt/innocence phase.
4* Pursuant to the Texas Rules of Appellate Procedure 66.3
(f), the Petitioner calls for this Honorable Court's intervening power of Supervision to weigh the true facts out that severely
reduced the probative value against the prejudicial effect of the
GPS technology from another county—an ankle monitor during
guilt/innocence phase.of Petitioner's trial.
LONGORIA V. STATE FATTEIT QUESTIONS FOR REVIEW
1* Allowing GPS technology by another county (showing Peti tioner being on the leg monitor during guilt/innocence), and serving as evidence of character confornity, rather than proving
consciousness of guilt or flight of the crime. Should there be
a stadning authority(-ies) concerning the admissibility of the GPS leg monitoring? See RR4, 177-184; RR5, 50-67.
2« Acknowledging the fact that the Ninth Court of Appeals
held the GPS technology was relevant to the Petitioner's case; did the Ninth Court of Appeals unreasonably depart from the ac
cepted and usual standard of revalancy, when it failed to Acknow
ledge whether the GPS technology was either more probable or less
probable than it would be without the evidence? See RR4, 177-
184; RR5, 50-67.
3* Calling for this Honorable Court of Criminal Appeals' power of supervision, was the Ninth Court of Appeals' decision of the probative value of the evidence not being substantially out weighed by the danger of unfair prejudice unreasonably harmful to Petitioner; when the Ninth Court of Appeals blantently egnored other facts (admitted by the State) that severely reduced the ~::~ probative value of the GPS system? See RR4, and RR5 generally. 3b*0Does this Conflict with this Honorable Court of Criminal
Appeals' decisions.on the same fact issue? See RR4, 177-184; RR5,
50-67.
LONGORIA V. STATE PAGE xi COMPENDIOUS ARGUMENT
QUESTION NUMBER ONE
Allowing GPS technology by another county (showing Peti tioner being on the leg monitor during guilt/innocence), and serving as evidence of character conformity, rather than proving
consciousness of guilt or flight of the crime. Should there be
a standing authority(-ies) concerning the admissibility of the GPS leg monitoring? See RR4, 177-184; RR5, 50-67.
At the time of the shooting, Petitioner is on bond of Ft.
Bend County for aggravated assualt. RR4, 164. As a condition of
that bond, Petitioner is required to wear a GPS tracking device.
RR4, 164. Petitioner becomes separated from the GPS tracking
device at approximately 10:49P.M. on May 13, 2012, in Waller 3r
County, Texas. RR5, 66. Petitioner is arrested in this cause on
July 7, 2012. RR4, 156.
At trial, the Court allows GPS evidence informing the jury
that Petitioner is being tracked by another county, prior .to the
shooting in this cause, using a GPS device. RR4, 177-184; RR5, 50 67. Petitioner's counsel objects to the prejudicial nature of •':.'..
the evidence. RR4, 165, 176. Further, the court allows a video
relating to the GPS monitoring into.evidence. RR4, 167. This video shows the following words at the bottom of the screen: :::
zone, tamper, battery, strap, motion, GPS. RR4, 167. Petitioner's Counsel objects to the prejudicial nature of the words at the bottom of the GPS video. RR4, 169, 172, 176. Petitioner's Coun
sel suggests a means of showing the evidence without the objec-
LONGORIA V. STATE PAGE 1 COMPENDIOUS ARGUMENT
tionable words. RR4, 173.
The Petitioner has conducted a thorough research concerning
any caselaw(s) that deals with GPS technology. The Petitioner found, but not limited to, the following:
In Texas, there are many circumstances wherein tracking a
defendant's movement is allowed as evidence in the guilt/inno^e "
cence phase of a trial. See Brown v. State, 163 S.W.3d 818 (Tex. App.--Dallas, 2005, pet. ref'd)(employer tracks work truck de fendant drives with GPS system); Wilson v. State, 195 S.W.3d 193 (Tex.App.--San Antonio 2006, no pet.)(Sprint employee testifies as to the location of defendant's cell phone using tracking tech
niques); Robinson v.-State, 368 S.W.3d 588 (Tex.App.--Austin 2012 pet. ref'd)(deputy testifies as to the location of defendant's cell phone using tracking techniques), Dixon v. State, No.01-11- 00443-CR (Tex.App.--Houston [1st dist] June 28, 2012, Pet. ref'd) (Mem.op., notdesignated for publication)(tracking of officer's patrol vehicle using GPS technology allowed as evidence), Saenz v. State, No. 13-10-00216-CR (Tex.App.--Corpus Christi Febraury 17, 2011) (mem.op. Not designated for publication) (Detective test-1 ifies as to the location of defendant's cell phone during a •?".:.
shooting using tracking tracking technology). What is the sole purpose of presenting the above cases to
this Honorable Court? Axiomly, none of these cases•involve a
defendant being tracked by a county with a GPS ankle monitor at the time of the offense! Truly, Petitioner's counsel (including
LONGORIA V. STATE PAGE 2 COMPENDIOUS ARGUMENT
Petitioner) found no case(s), in Texas, in which evidence that a
defendant is being tracked via GPS technology by another county
is allowed in front of a jury during the guilt/innocence phase
of a trial. See Appellant's brief filed on July 30th 2013.
Therefore, the Petitinoer believes (pursuant to rule 66.3(f)) that there should be a standing authority on this very fact issue
The benifit of a Precedent will not only instruct the courts on
how to proceed, but to provide guidance to them when it comes to
dealing with GPS ankle monitor's during guilt/inncence. Is it
admissible or is it not admissible? The Petitioner stands with
confidence that the following two questions will show how this
GPS monitoring is not admissible, and how it can be prejudicial
to one's case. Nevertheless, the Petitioner will not limit this
Honorable Court's analysis to make a new and sole precedent on
this very issue.
Finally, this Honorable Corut should grant this Petition to
make new and governing authority on the issue of presenting GPS
tracking device (ankle monitoring) from another county being eit her admissible or not admissible during the guilt/innocence phase
QUESTION NUMBER TWO
Acknowledging the fact that the Ninth Court of Appeals held
the GPS technology was relevant to the Petitioner's case; did the Ninth Corut of Appeals unreasonably depart from the accepted and
usual standard of relevancy, when it failed to acknowledge whet-
LBNGORIA V. STATE PAGE 3 COM COMPENDIOUS ARGUMENT
her the GPS technology was either more probable or less probable than it would be without the evidence? See RR4, 177-184; RR5, 50- 67.
This Honorable Court of Criminal Appeals.:in Montgomery v.
State [810 S.W.2d 372, 391 (Tex.Crim.App. 1990)], instructed that the trial court must rely in large part upon its own observa tions and experiences of the world, and reason from there in de-.:
ciding whether proffered evidence has "any tendency to make the
existance of any fact of consequence to make the determination of
the action more probable or less probable than it would be with
out the evidence." Rule 401, Supra. The determination of rele
vance, vel non, thus depends upon one judge's perception of com
mon expericance. See Weinstein & Berger, Supra, U 401[0l], at 401-10. The process cannot be wholly in common expercience a
perticular inference is available. Where there is room for such
disagreement, an appellate court that reverses a trial court's
ruling on relevancy accomplishes nothing more than to substitute
its own reasonable perception of common experience for that of
the trial court. ... where the appellate court can say with con-r
findence that by no reasonable perception of common exprerience
can it be concluded that proffered evidence has a fact of conse
quence more or less probable than it would otherwise be, then it
canbe said the trial court abused its discretion to admit that
evidence.
The focus here is the relevancy of the GPS technology from
LONGORIA V. STATE PAGE 4 COMPENDIOUS ARGUMENT
another county. Relevant evidence is evidence that has a ten
dency to make the existence of a fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. This definition includes
two main components. First, the evidence must be material, i.e., that the proposition for which the evidence is offered must be
of consequence tothe determination of the case. Second, the evi dence must be probative, i.e., it must make the existance of the
fact more probable or less probable than it would be without the evidence. Ladner v. State, 868 S.W.2d 417, 422-23 (Tex.App.-- Tyler, 1993).
The Ninth Court of Appeals held the GPS evidence is rele
vant to material issues in the case, such as the perpetrator's
identity, his flight, and his consciousness of guilt, becuase :.:.:.
this evidence establishes Longoria's movements (both before and after the murder), as well as the timing of his removal of the - GPS device. Accordingly, the trial court did not commit error
in allowing the GPS evidence into the record because it was
admissible for purposes other than character conformity under
Rule 404(b). We overrule issue one. See Appendix A *8.
The Petitioner questions the Ninth Court of Appeals' deci
sion because the Ninth Court of Appeals never completed, or
acknowledged, the second main component of the Relevancy Test.
Within the first main component, while it is true, the Ninth
Court of Appeals satified the first prongsbecuase the GPS tech- rif1-,... —======== _==== LONGORIA V. STATE PAGE 5 COMPENDIOUS ARGUMENT
nology can be to Petitioner's case. See Tennison v. State, 969
S.W.2d 578, 580 (Tex.App.--Texarkana, 1998); Appendix A *8. However, there can be no logical or legal reason for failing to
uphold, and decide, the well known second main, component of this
Relevancy Test.
The trial judge understood the Prejudicial nature of the
evidence when she allows it as evidence of consciousness of guilt
and flight after the crime. RR4, 171. In addition to this, there is an abundance of other evidence that shows the Petitioner's
movement before and after the crime.
Raqwel Nazario, the decedent's daughter, places Petitioner a at the park (RR3, 47) and a'to her father's house vat:the time of : the shooting. RR3, 67. Marissa Saucedo, the deceased's niece, places Petitioner at the park. RR4, 28. Roger Keys, a caretaker
at the park, places Petitioner at the park. RR4, 84. Marty Joe Mclnnis, Peititioner's girlfriend's father, places Petitioner at the park. RR4, 119. Detective Paul Hahs places Petitioner at the park and the scene fo the shooting by use of a video in conjunc tion with eyewitness interviews. RR5 , 36-41. Imagin Mclnnis, Petitioner girlfriend's daughter, places Petitioner at the park, RR5, 207, and at the hose at the time of the shooting. RR5, 224- 230. Raymundo Zarate, III, the deceased's son, places Petitioner at the park, RR6, 11, and at the house at the time of the shoots ing. RR6, 28. Axiomly the Petitioner does not even contest his movements on the day of the crime, nor does he contest the fact
LONGORIA V. STATE PAGE 6 COMPENDIOUS ARGUMENT
of Petitioner being at the park, nor at the decease's house!
The question here is: "Does the GPS technology (being a leg monitor from another county) increase one's knowledge and enhance
the likelihood of showing that the Petitioner was at the park, or
at the decease's house, when compared-to the abundance of other
evidence proving the same given facts?" No! It does hot increase
the likelihood of ascetaining the truth about this given fact.
Ladner, 868 S.W.2d at 422-23. Truly, the probative value of this
evidence was highly decreased because of the abundance of other
evidence that shows the Petitioner's movement before and after
the crime. See Tennison, 969 S.W.2d at 580.
Even though the Texas rules of Evidence 404(b) allows for eivdence of character conformity to be presented (in front of the jury) to show flight of the crime. Is their any relevency in the probative value of the GPS technology from another county, when
their is a great amount of evidence that already shows that Peti
tioner had fled from the scene? See Tex.R.App.Proc., 404(b).
Imagin Mclnnis, Petitioner'sfgiflfriend's'duaghter, testi fies about Petitioner's location throughout the day fo the murder
and in flight away from the murder. RR5, 207-237. Imagin testis '
fies that Petitioner "ordered occupants of the car to throw out
their phones. RR5, 231. The only reasonable inference from this *.
is that Petitioner knows that phones can be tracked with GPS -?:„r..
technology. Thus, if the State introduced this GPS technology, it would be admissible under the Texas law, further proving Peti^:.-
LONGORIA V. STATE PAGE 7 COMPENDIOUS ARGUMENT
tioner's guilty state of mind, and the evidence of flight from the scene. Furthermore, detective Paul Hahs testifies exten
sively on the attempts to locate Petitioner after the murder. RR5
41-90.
Very little of this evidence has anything to do with the GPS
monitoring. Therefore, is there any probative value of the GPS
monitoring to proof flight of the crime? Very little! The GPS
tracking only confirms what Imagin tells the officers, and what
the officers told the jury. RR5, 67. It would have been simple :
for the state to say where they recovered property that could
have been used to track and apprehend Petitioner if Petitioner
had not discarded it. It would also have been very simple for
the State to argue that a reasonable inference is that Petitioner
is in flight at the time he discards the items that could have been used to track him, such as the cell phones.
Finally, the important question that Petitioner inquires
from this Honorable Court of Criminal Appeals is: "Is the GPS technology of another county (being a leg monitor in connection to the Aggravated Assualt charge) more probable than it would be without the evidence?" No! If this Honorable Court set aside this
GPS monitoring evidence, as the Petitioner has shown, this Honor able Court will be able to concluded with confidence that the ;-.v
jury would have still been able to place the Petitioner at the scene, at the park, during Petitioner's flight of the crime, and simply all of the movements of the Petitioner concerning this
LONGORIA V. STATE PAGE 8 COMPENDIOUS ARGUMENT
criminal offense. Therefore, this Honorable Court can also con
clude with confidence that the Ninth Court of Appeals' decision
is erroneous and in conflict with other precedent law. Further,
the Petitioner believes, with confidence and respect, that this
Honorable Corut should grant this Petition for further review.
See TexR.App.Proc., 66.3(a), (f).
QUESTION NUMBER THREE
Calling for this Honorable Court of Criminal Appeals' power of supervision, was the Ninth Court of Appeals' decision of the probative value of the evidence not being substantially outweighs ed by the danger of unfair prejudice unreasonably harmful to Pet itioner; when the Ninth Court of Appeals blantently egnored other
facts (admitted by the State) that ;:severelyr ;reduced the probative value of the GPS system? See RR4, and RR5, generally.
Part B: Does this Conflict with this Honorable Corut of
Criminal Appeals' decisions on the dame fact issue? See RR4, 177- 184; RR5, 50-67.
The Ninth Court of Appeals held the probative value of the
GPS evidence (showing Longoria's movements and actions immedi ately before, duringy and after the commission of the crime) was significant, because this evidence was relevant to establishing the identity element of the crime. In establishing Longoria's flight after the murder, the GPS evidence demonstrated his con sciousness of guilt, and tended to rebut the defendant's mis- identification theory defense developed by the defendant during LONGORIA V. STATE PAGE 9 COMPENDIOUS ARGUMENT
the cross-examination of one of the State's witnesses and during the defendant's closing argument. See Appendix A '''9.
However, It has well been settled that in assessing the pro
bative value of evidence, an appellate court must look to the strength fo the proponent's other evidence and the need the pro ponent has for the evidence in question. See Bigby v. State, 892
S.W.2d 864, 883 (Tex.Crim.App. 1994). The Petitioner assures this
Honorable Corut of Criminal Appeals that, "Probative value'-', :;:.;.«. means more than simply relevance. Gilgliobianco v. State, 210
S.W.3d 637, 641 (Tex.Crim.App. 2006)(citing old chief v. U.S., 519 U.S. 172, 184, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997)). Re:he. Rather, the "Probative value" refers to the inherent pro
bative force of an item of evidence—that is, how strongly it
serves to make more or less probable the existance of a fact of
consequence to the liligation—coupled with the proponent's need
forrthat item of evidence. We explained in Mongomery v. State,
810 S.W.2d 372, 390 (Tex.Crim.App. 1990)(op. on reh'g), that ">; "[w]hen the proponent [of an item of evidence] has other compel ling or undisputed evidence'•."•to establish the proposition or fact
that the [item of evidence] goes to prove, the [probative value of the item of- evidence] will weigh far less than it otherwise might in the probative-versus-prejudicial balance." Id.
Considering the over whelming facts presented in the Peti
tioner's petition herein, and other and same compelling and un disputed facts completely diminished the probative value of the
LONGORIA V. STATE PAGE 10 COMPENDIOUS ARGUMENT
GPS monitoring from other county. Further, the Ninth Court of Appeals' decision was misplaced when it came to the use of Peti tioner's misidentification. No where in the record did the State
(or the trial judge) offer or allow the GPS monitoring from anot her county for the use of identification. The trial jduge solely allowed the GPS monitoring in to establish "the consciousness of guilt and flight after the crime." RR4, 171. In other words, the GPS monitor was stricken .down to the movements of the petitioner
at the time of the offense. RR4, 171-184.
Again, the Ninth Court of Appeals is not at liberty to blan- tantly egnore this Honorable Court's decision made in GigliobiT.:.-. anco. then push it to the side and hold that'"Longoria failed to preserve the 'cumulative evidence' argument for appeal. See Ap pendix A *5; compare Appendix A *9. Just to egnore the other evidence that wieghs against the probative value of the GPS mon itoring. Furthermore, this is in complete condiction to this Honorable Court's "probative value" definiation because the focus is on the "other compelling or undisputed evidence to establish" the weight of the probative force. See Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex.Crim.App. 2006); compare* Appendix A *5,9. Finally-and clearly, the probative force of the GPS monitor ing is very little to none, when-objectively viewing the abund ance of the other evidence that is undisputed, on the same pur-cs pose. Just as this Honorable Court states: "probative value refers to the inherent probative force of an item of Evidence—
LONGORIA V. STATE PAGE 11 COMPENDIOUS ARGUMENT
that is, how strongly it serves to make more or less probalbe the
existance of a fact of consequence to the litigation—coupled •:.:
with the proponent's need for that item of evidence." Giglio-
biance, 210 S.W.3d at 641. Therefore, this very situation is
deserving of this Honorable Court's attention to grant this
Petitioner for discretionary review. See Tex.R.App.Proc. 66.3(a),
ill- In regards to the unfair prejudice, the Petitioner presence
the following, but not limited to, as shown:
The Ninth Court of Appeals ultimately decided: "It was with
in the zome of reasonable disagreement for the trial court to :::.!.
find that the probative value of the evidence was not substan^
tially outweighted by the;danger of unfair prejudice." Appendix A -V9-10.
Harm. Is there any harm that was done in the admission of
the GPS monitoring? The Petitioner believes that the answer that
this Honorable Court can greatly c-o-ncornor is yes—there is egre
gious harm. First, the GPS monitor has very little probative
value as explained. Second, there is an irrational impression
on the GPS monitoring evidence because the monitor naturally
gives a false impression that the Petitioner committed another
murder, or an extremely aweful cirme of soem sort. Although the
trial judge did not allow the charge of the crime to be exposed
to the jury, there is no record of the judge limiting the jury to
not consider why the Petitioner was on the monitor, and stricken
their consideration down to only Petitioner's movement at the LONGORIA V. STATE PAGE 12 COMPENDIOUS ARGUMENT
tiMe' of the offense.
Third, the State took a large amount of the trial to intro
duce and present the GPS evidence. Given the large amount of '::'.?.
time, it is impossible for the jury to not consider the obvious
question: "what idd the accused do to get on the GPS monitor?"
In other words, it took their minds of off—during their deli
beration—who pulled the trigger, when their is evidence that clearly establishes another person being seen on the secne with
a handgun. And lastly, Is there a need for the GPS evidence?
If this Honorable Court can set the GPS evidence aside, and con
clude that the State established the dame facts irbi'r.f light'and his movement at the scene) without the GPS evidence; then, there
is no need for the GPS evidence at all.
Axiomly, the unfair prejudice clearly outweighes the proba-^
tive value at hand. Truly, the facts of this case fit into a
righteous reversal at hand.
Finally, to give inference to the facts presented in this 7
petitioner, this Honorable Court can conclude—with confidence—
that the unfair prejudice .substantialy outweighes the probative
value. Therefore, the Ninth Court of Appeals' decision is in complete contradiction to the well establish case law holdings
on the same fact issue as in this case.
As an: entirety, this petition should be granted, in whole, or in part, or as this Honorable Court deems fit.
LONGORIA V. STATE PAGE 13 PRAYER FOR RELIEF
Petitioner prays that this Honorable Court will grant this petition for further review, or to aquit, or for a new trial.
Daniel Frank Longoria-f Jr . TDCJ #01851803-Coffield 2661 FM 2054 Tenn.Colony, Tx. 75884 Pro se.
LONGORIA V. STATE PAGE 14 INMATE DECLARATION
I, Daniel Frank Longoria, Jr., TDCJ #01851803, being incar
cerated in:the TDCJ -CID Coffield unit in Anderson county, Texas,
declares that the foregoing is true and correct under the penalty
of perjury.
Executed this day of September 23, 2015.
Daniel rank bra Longoria'f Jr #01851803-Coffield 2661 FM 2054 Tenn.Colony, Tx. 75884 Pro se.
LONGORIA V. STATE PAGE 15 PROOF OF MAILING
I, Daniel Frank Longoria, Jr., TDCJ #01851803, being incar
cerated in the TDCJ-CID Coffield unit in Anderson county, Texas,
declares that I have placed this Petition for Discretionary
Review into the internal mailing system of the Coffield unit on
September 23, 2015.
This is true and correct under the penalty of perjury.
Executed this day of September 23, 2015.
Daniel FrankLongoria,*^Jr. s ' #01851803-Coffield 2661 FM 2054 Tenn.Colony, Tx. 75884 Pro se.
LONGORIA V. STATE PAGE 16 PETITION NO. PD-0768-15
IN THE
COURT OF CRIMINAL APPEALS
DANIEL FRANK LONGORIA, Jr PETITIONER
Vs
THE STATE OF TEXAS RESPONDANT
APPENDIX A: THE NINTH COURT OF APPEALS
OPINION AT BEAUMONT IN NO. 09-13-00169-CR
On Appeal from the Ninth Judicial District Court of Appeals at Beaumont in No. 09-13-00169-Cr from the 221st Judicial District
Court of Montgomery County in No. 12-05-05213-CR.
Daniel Frank Lnogoria, Jr
#01851803-Coffield
2661 FM 2054
Tenn.Colony, Tx. 75884
Pro se.
ORAL ARGUMENT REQUESTED In The
Court ofAppeals
Ninth District of Texas at Beaumont
NO. 09-13-00169-CR
DANIEL FRANK LONGORIA JR., Appellant
THE STATE OF TEXAS, Appellee
On Appeal from the 221st District Court Montgomery County, Texas Trial Cause No. 12-05-05213-CR
MEMORANDUM OPINION
Appellant Daniel Frank Longoria Jr. (Longoria)1 was convicted for the murder of Raymundo Zarate Jr. (Zarate). On appeal, Longoria raises two issues,
both pertaining to the trial court's admission of certain GPS evidence from an
ankle monitor that he was wearing at the time of the murder. He contends that the
trial court erred because the evidence was inadmissible under Rules 403 and
404(b) of the Texas Rules of Evidence.
'The indictment states "Daniel Frank Longoria, Jr. AKA Daniel Longoria[.]" 1 We overrule both issues and affirm the judgment.
Background Facts
On or about the evening of May 13, 2012, Zarate was shot and killed in the
front yard of his home. Earlier that day, Zarate was at a local park with his family
when he and another man (later identified as Longoria) got into an argument. The
argument developed after Zarate suggested that Longoria should leave the
basketball court area in the park. Zarate's son testified that Zarate did not want
Longoria near Zarate's family because Longoria was cursing and appeared to be
drunk. Later that evening, Longoria and his girlfriend, his girlfriend's daughter,
and Longoria's son drove to Zarate's residence to continue the argument. Zarate
was shot and killed at his residence.
On the day of the shooting, Longoria was wearing a GPS tracking device
placed on him as a requirement of his bond under a different offense out of Fort
Bend County, Texas. After the shooting, Longoria fled the scene. He removed the
GPS tracking device within two hours of the murder of Zarate. Over a month after
the shooting, the police located Longoria and arrested him for the murder of
Zarate.
During the murder trial, the prosecution sought to introduce evidence from
the GPS device (including the GPS coordinates and mapping, as well as a video
relating to the GPS) to establish that Longoria was at the park, that he was in 2 Zarate's neighborhood after the incident at the park, that he was at the scene at the
time of the shooting, and that he fled from the scene and disconnected his GPS.
Longoria challenged the GPS evidence. Outside the presence of the jury, the trial
court held a hearing specifically relating to the GPS evidence, and Longoria voiced
the following objections:
[Defense Counsel]: And, Judge, I just have two objections for the record. The first being that any mention of global positioning system at all in the inference will immediately be from the jury that something bad has happened, he has another offense, somebody in the government is watching him for a reason. That is our first objection. The second objection is any of the documents he brought with him are not business records.
So my first objection is any mention of GPS obviously would have the effect of the government is watching him, there has got to be a reason and it has got to be bad. And, two, to admit these documents as business records, as far as to admit items that are prepared purposely and surely for litigation, and not in the regular course of business.
The trial court overruled the objections and it allowed the admission of evidence
from the GPS tracking device, but it did not allow into evidence any testimony or
evidence regarding the reason for Longoria's having to wear the device. Issues on Appeal
On appeal, Longoria makes no complaint about whether the documents were business records. Rather, Longoria argues that the trial court erred in overruling his objections to the GPS evidence pursuant to Rule 404(b) and Rule 403. See Tex. R. Evid. 404(b), 403. Specifically, he contends on appeal that the GPS evidence was
inadmissible evidence of other crimes, wrongs, or acts. Further he contends it was
more prejudicial than probative and that it was "cumulative evidence." The State
contends Longoria failed to preserve an objection under either Rule 404(b) or Rule
403. See Tex. R. App. P. 33.1(a).
To preserve error for appellate review, a party's objection generally must be
sufficiently specific so as to "'let the trial judge know what he wants, why he
thinks himself entitled to it, and do so clearly enough for the judge to understand
him at a time when the trial court is in a proper position to do something about it.'"
Malone v. State, 405 S.W.3d 917, 925 (Tex. App.—Beaumont 2013, pet. ref d)
(quoting Resendez v. State, 306 S.W.3d 308, 313 (Tex. Crim. App. 2009)). In order
to raise a Rule 403 complaint, the objecting party must make a 403 objection
separate from its Rule 404(b) objection. See Montgomery v. State, 810 S.W.2d 372,
389 (Tex. Crim. App. 1991) (op. on reh'g).
After reviewing the record, we conclude that Longoria preserved a Rule
404(b) objection at trial when he challenged the admission of the evidence on the grounds that the GPS evidence (a) referred to another offense he allegedly
committed and (b) implied he was being watched for other reasons or because he
was bad. As to the Rule 403 objection, the State specifically acknowledged during the
hearing on the admissibility of the GPS evidence that the defendant was objecting
to the "prejudicial nature" of the GPS evidence, and the trial court expressly found
that the probative value of the evidence "outweighs the prejudicial effect, as long
as you limit it to the fact that he had this monitor and here is the data."
Accordingly, an objection regarding the "prejudicial nature" of the GPS under
Rule 403 was before the trial court. Longoria, however, failed to articulate any
objection that the evidence was "a needless presentation of cumulative evidence[,]"
and there is no indication in the record that the trial court made a "cumulative
evidence" ruling. Therefore, we conclude that Longoria failed to preserve the
"cumulative evidence" argument for appeal. See Tex. R. App. P. 33.1
Standard of Review
We review a trial court's decision to admit evidence under Rules 404(b) and
403 for an abuse of discretion. See De La Paz v. State, 279 S.W.3d 336, 343-44
(Tex. Crim. App. 2009). "As long as the trial court's ruling is within the 'zone of
reasonable disagreement,' there is no abuse of discretion, and the trial court's
ruling will be upheld." Id. (quoting Montgomery, 810 S.W.2d at 391). If the trial
court's decision is correct on any theory of law applicable to the case, we will
uphold the decision. De La Paz, 279 S.W.3d at 344. Rule 404(b)
On appeal, Longoria argues that the GPS evidence constitutes "character
evidence" or evidence of an "extraneous act" and that it was inadmissible under
Rule 404(b). Longoria contends that the "only true purpose" of the GPS evidence
was "to show the jury that [he] has committed, or is alleged to have committed, a
crime in another county, thereby prejudicing the jury [.]"
Rule 404(b) expressly provides that evidence of other crimes, wrongs, or
acts is not admissible to prove the character of the defendant in order to show he
acted in conformity therewith. Rule 404(b) codifies the common law principle that
a defendant should be tried only for the offense for which he is charged and not for
being a criminal generally. Rogers v. State, 853 S.W.2d 29, 32 n.3 (Tex. Crim. App. 1993); see also Segundo v. State, 270 S.W.3d 79, 87 (Tex. Crim. App. 2008) (explaining that the defendant is generally to be tried only for the offense charged,
not for any other crimes).
Extraneous offense evidence, however, may be admissible for other
purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Tex. R. Evid. 404(b). The
list of examples in Rule 404(b) is nonexhaustive. See Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). For example, extraneous offense evidence may
be admissible to demonstrate conduct by a defendant that indicates a consciousness 6 of guilt. See Torres v. State, 794 S.W.2d 596, 598 (Tex. App.—Austin 1990, no
pet.); see also Urtado v. State, 605 S.W.2d 907, 915 (Tex. Crim. App. 1980)
("Flight is evidence of guilt."). This consciousness-of-guilt evidence may include
evidence of a person's conduct (such as "flight" or destruction of evidence) that
occurs subsequent to the commission of a crime. See Torres, 794 S.W.2d at 598-
600. Such evidence is relevant to prove that the person committed the act with
which he is charged. Id. An extraneous offense may also be admissible to show
identity when identity is at issue in the case, or when the defense cross examines
witnesses or alleges that someone else committed the crime. See Page v. State, 213
S.W.3d 332, 336 (Tex. Crim. App. 2006); Lane v. State, 933 S.W.2d 504, 519
(Tex. Crim. App. 1996). "Whether extraneous offense evidence has relevance apart
from character conformity, as required by Rule 404(b), is a question for the trial
court." Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). The trial
court's Rule 404(b) ruling admitting evidence is generally within the zone of
reasonable disagreement "if there is evidence supporting that an extraneous
transaction is relevant to a material, non-propensity issue." Devoe v. State, 354
S.W.3d 457, 469 (Tex. Crim. App. 2011).
Texas courts utilize a two-step analysis for determining the admissibility of
extraneous offenses or uncharged acts. Rogers, 853 S.W.2d at 32-33. Courts
determine first whether the evidence is relevant to a material issue in the case and 7 second whether the relevant evidence should be admitted as an exception to Rule
404(b). Id. The GPS evidence is relevant to material issues in the case, such as the
perpetrator's identity, his flight, and his consciousness of guilt, because this
evidence establishes Longoria's movements (both before and after the murder), as
well as the timing of his removal of the GPS device. Accordingly, the trial court
did not commit error in allowing the GPS evidence into the record because it was
admissible for purposes other than character conformity under Rule 404(b). We
overrule issue one.
Rule 403
Longoria also argues the GPS evidence was inadmissible under Rule 403.
Rule 403 provides that "[although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue
delay, or needless presentation of cumulative evidence." Tex. R. Evid. 403. The
Rule 403 balancing factors include, but are not limited to, the following: (1) the
probative value of the evidence; (2) the potential to impress the jury in some
irrational, yet indelible, way; (3) the time needed to develop the evidence; and (4)
the proponent's need for the evidence. Hernandez v. State, 390 S.W.3d 310, 324
(Tex. Crim. App. 2012); Shuffieldv. State, 189 S.W.3d 782, 787 (Tex. Crim. App.
2006). The rules of evidence favor the admission of relevant evidence and carry a 8 presumption that relevant evidence is more probative than prejudicial. Jones v.
State, 944 S.W.2d 642, 652 (Tex. Crim. App. 1996).
We conclude that the trial court did not err in its balancing of the Rule 403
factors and in finding that the probative value of the evidence was not substantially
outweighed by the danger of unfair prejudice under Rule 403. The State articulated
a need for the evidence and the GPS evidence occurred close in time to the charged
offense. The probative value of the GPS evidence (showing Longoria's movements
and actions immediately before, during, and after the commission of the crime)
was significant, because this evidence was relevant to establishing the identity
element of the crime. In establishing Longoria's flight after the murder, the GPS
evidence demonstrated his consciousness of guilt, and tended to rebut the
defendant's misidentification theory of defense developed by the defendant during
the cross-examination of one of the State's witnesses and during the defendant's
closing argument. Although the State spent some time during the trial on the presentation ofthe GPS evidence, the amount oftime was not unreasonable in light of other evidence presented during the trial as a whole. Furthermore, due to the nature of the technical details and technology involved, it was not the type of
information that might otherwise cause an inflammatory response. We conclude the trial court did not abuse its discretion in admitting the GPS evidence in this
case. It was within the zone of reasonable disagreement for the trial court to find 9 that the probative value of the evidence was not substantially outweighed by the
danger of unfair prejudice. Therefore, we overrule issue two.
Having overruled both of appellant's issues, we affirm the judgment of the
trial court.
AFFIRMED.
LEANNE JOHNSON Justice
Submitted on April 24, 2014 Opinion Delivered June 25, 2014 Do Not Publish
Before Kreger, Horton, and Johnson, JJ.
10 IN THE NINTH COURT OF APPEALS
09-13-00169-CR
Daniel Frank Longoria Jr. v.
The State of Texas
On Appeal from the 221st District Court of Montgomery County, Texas Trial Cause No. 12-05-05213 CR
JUDGMENT
THE NINTH COURT OF APPEALS, having considered this cause on appeal, concludes that the judgment of the trial court should be affirmed. IT IS THEREFORE ORDERED, in accordance with the Court's opinion, that the judgment of the trial court is affirmed. Opinion of the Court delivered by Justice Leanne Johnson June 25, 2014
AFFIRMED
Copies of this judgment and the Court's opinion are certified for observance.
Carol Anne Harley Clerk of the Court 6". 5 <* ^J o
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