Affirmed as Modified and Opinion Filed May 13, 2016
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-14-01626-CR
MARK EDWIN GUIDA, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 292nd Judicial District Court Dallas County, Texas Trial Court Cause No. F-1263747-V
MEMORANDUM OPINION Before Justices Lang, Brown, and Whitehill Opinion by Justice Whitehill Appellant strangled his girlfriend and then burned her body in a car. Appealing from his
murder with a deadly weapon conviction, for which he was sentenced to ninety-nine years
imprisonment, appellant asserts four issues arguing that:
(i) the trial court erred by not suppressing his statement to police because it was made
without Miranda warnings while he was in custody,
(ii) it was an abuse of discretion to admit into evidence his cell phone records showing
location data because the records were obtained without a search warrant,
(iii) it was an abuse of discretion to admit into evidence three gruesome photographs of
the victim’s burned body that were cumulative and prejudicial, and
(iv) the trial court erred in dismissing the first jury panel off the record. In a cross-point, the State asks that we reform the judgment to reflect the jury’s deadly
weapon finding.
For the reasons discussed below, we reject appellant’s arguments because we conclude
that:
(i) Miranda warnings were not required, and the trial court did not err in denying the
motion to suppress, because there was evidence from which the trial court could have reasonably
found that appellant was not in custody when he was interviewed by the police;
(ii) there was no Fourth Amendment violation and the trial court did not err by admitting
the cell phone records into evidence because appellant had no legitimate expectation of privacy
in records showing location data held by a third-party cell phone company;
(iii) the photographs were not erroneously admitted because the trial court could have
reasonably concluded that they were no more horrific than the crime itself and had probative
value that was not substantially outweighed by the danger of unfair prejudice; and
(iv) appellant’s issue concerning the dismissal of the jury panel was not preserved for our
review.
Additionally, the record reflects that the jury made a deadly weapon finding. We
therefore modify the judgment to reflect this finding, and as modified, affirm the trial court’s
judgment.
I. Background
In response to a 911 call, Dallas police discovered appellant’s girlfriend’s body in a
burning vehicle with license plates registered to appellant. A subsequent autopsy showed that (i)
her death was caused by strangulation and (ii) she was dead before the fire started.
–2– The lead detective on the case, Paul Ellzey, called appellant the next day and asked him
to come to the police station for an interview. Appellant agreed, and the interview was recorded.
Appellant was not Mirandized before the interview began.
During the interview, appellant provided information about himself and the victim. He
sketched out a timeline to show his activities the previous day by voluntarily referencing text
messages on his phone and looking at credit card account charges. While the interview was in
progress, however, Ellzey learned that there was surveillance video of appellant that showed him
purchasing two plastic gas canisters at a gas station.
When Ellzey told appellant that he knew appellant’s timeline was false, appellant
requested a lawyer and the interview terminated. Ellzey then placed appellant under arrest.
Prior to trial, appellant moved to suppress his statement to Ellzey, claiming that he was
not Mirandized before his custodial interrogation. At the hearing on appellant’s motion, the
court heard testimony from Ellzey and viewed the interview videotape.
The court announced its ruling on appellant’s motion at a subsequent hearing. The trial
judge held that, although the interview began at 3:05 p.m., interrogation did not commence until
5:29 p.m. (about four minutes before appellant requested an attorney). The motion to suppress
was granted as to anything that came after 5:29 p.m., but was otherwise denied.
On November 18, 2014, the court called the case to trial and stated on the record that the
parties had not succeeded in selecting a jury the day before. The judge noted that “voir dire was
conducted but the panel was dismissed with the agreement of both sides.” Both the State and the
defense then announced ready for trial and selected a jury from the new venire.
At trial, appellant’s and the victim’s cell phone records were admitted into evidence over
appellant’s objection, and an FBI agent testified about the location data in those records to
establish appellant’s location at various times on the day of the murder. According to the FBI
–3– agent, these records corroborated the State’s theory that appellant killed his girlfriend, drove her
car to the gas station to purchase gas while her body was inside the car, and then drove to the
location where the burned car was found.
The victim’s son testified that, on the day of the murder, he looked under the door to his
mother’s bedroom and saw appellant on top of his mother, fighting. He heard his mother say
that she could not breathe, and then she stopped moving and was silent. On cross-examination,
however, the son admitted that his trial testimony was not consistent with what he previously
told a forensic interviewer.
Appellant testified in his defense. Although he admitted lying to Ellzey during the
interview, and offered a new version of events, he denied killing his girlfriend.
When both sides rested, the jury found appellant guilty and, after a punishment hearing,
assessed punishment at ninety-nine years imprisonment.
II. Analysis
A. First Issue: Was appellant’s statement to the police inadmissible because he was subjected to custodial interrogation without Miranda warnings?
Appellant argues that he was in custody when he gave his statement to the police and
therefore should have been Mirandized.1 It is undisputed that appellant was not advised of his
rights when he began his interview with the police. Therefore, his statement is inadmissible if it
was custodial. See Miranda v. Arizona, 384 U.S. 436, 444 (1966).
1. Standard of Review
We review a trial court’s denial of a motion to suppress under a bifurcated standard of
review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We review the trial
1 Appellant’s motion to suppress challenged the statement as both a violation of article 38.22 and Miranda. Article 38.22 provides that a defendant must be provided with warnings virtually identical to those required by Miranda, as well as a warning that an accused has the right to terminate the interview at any time. See TEX. CODE CRIM. PROC. ANN. art. 38.22; Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007). Our analysis here is the same as to both.
–4– court’s factual findings for abuse of discretion and review de novo the trial court’s application of
the law to the facts. Id. We give almost total deference to a trial court’s determination of
historical facts, especially those based on evaluating witness credibility or demeanor. Gonzales
v. State, 369 S.W.3d 851, 854 (Tex. Crim. App. 2012). And, at a suppression hearing, the trial
court is the sole and exclusive factfinder and judge of the witnesses’ credibility and may choose
to believe or disbelieve all or any part of the witnesses’ testimony. Maxwell v. State, 73 S.W.3d
278, 281 (Tex. Crim. App. 2002); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).
2. What constitutes custodial interrogation?
Miranda requires a law enforcement officer to warn an individual of certain
constitutional rights if the individual is considered to be the subject of “custodial interrogation.”
See Miranda, 384 U.S. at 444. Conversely, the Miranda requirements do not apply if the
statements do not result from custodial interrogation. Dowthitt v. State, 931 S.W.2d 244, 263
(Tex. Crim. App. 1996); see also Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (Miranda
warnings are only required when there has been such a restriction on a person’s freedom as to
render him “in custody”).
The accused has the initial burden to establish that his or her statements were the product
of a custodial interrogation. Herrera, 241 S.W.3d at 526. Accordingly, the State need not “show
compliance with Miranda . . . warnings unless and until the defendant proves that the statements
he wishes to exclude were the product of custodial interrogation.” Id. at 526 (citing Wilkerson v.
State, 173 S.W.3d 521, 532 (Tex. Crim. App. 2005)).
There are at least four general situations which may constitute custody for purposes of
Miranda and article 38.22: (i) when the suspect is physically deprived of his freedom of action in
any significant way, (ii) when a law enforcement officer tells the suspect that he cannot leave,
(iii) when law enforcement officers create a situation that would lead a reasonable person to
–5– believe that his freedom of movement has been significantly restricted, and (iv) when there is
probable cause to arrest and law enforcement officers do not tell the suspect that he is free to
leave. Dowthitt, 931 S.W.2d at 255. For any of these situations to constitute custody, “the
restriction upon freedom of movement must amount to the degree associated with an arrest . . . .”
Id. (citing Stansbury v. California, 511 U.S. 318, 322 (1994)).
3. Would the circumstances of appellant’s interview lead a reasonable person to conclude that he was not free to leave?
Appellant initially argued that the entire interview constituted custodial interrogation.
But counsel clarified appellant’s position at oral argument to be that custody began when
appellant started talking to Ellzey about his timeline and tried to leave the room. This
distinction, however, does not affect our analysis.
Appellant was one of several people, including family members, scheduled to be
interviewed. When Ellzey contacted appellant, he was extremely cooperative. Appellant said
that he had no place to stay since his name was not on the victim’s apartment lease, so he
planned to return to Louisiana.
The victim’s brother-in-law, Phil Spencer, accompanied appellant to the police station on
December 21. Another detective interviewed Spencer at the same time, and did not tell him that
appellant was a suspect.
Appellant had been crying and appeared to be genuinely upset. Ellzey said that he did
not give appellant Miranda warnings because he was “a family member” being interviewed for
vital information and was not a suspect.
The interview began at approximately 2:50 p.m. when Ellzey began by asking appellant
background information such as his birthdate, family information, and address. He then asked
appellant to help him understand who the victim was.
–6– Appellant was very cordial, and provided details about the victim’s children and work,
how he met her, and their relationship. He explained that he had known the victim for four
years, and had just moved into her apartment with her and her children. He was concerned about
Ellzey making value judgments about the victim because she worked as a dancer. Ellzey assured
appellant that he would not do so.
When appellant requested something to drink, Ellzey gave him choices and then brought
him some water. Ellzey can be heard whistling as he leaves the room to get the water.
Appellant had his cell phone with him, and it was on throughout the interview. Appellant
sent text messages, retrieved data, and at one point, called his mother. Ellzey said he would not
have allowed him free access to his phone had appellant been considered a suspect rather than a
witness.
Ellzey asked appellant to discuss his conduct on the day of the murder. One task that
appellant identified was stopping to get some cash. Appellant then voluntarily used his cell
phone to check his bank account for information on where he got the cash, and to identify other
charges he had made.
Shortly after the interview began, appellant asked if he was a suspect. Ellzey replied that,
“at this point everyone is a suspect because we know nothing.” Appellant seemed satisfied, and
assured Ellzey that he wanted to do everything he could to help find the person responsible for
the crime.
As appellant was trying to recall the timing and sequence of events on the prior day,
Ellzey gave him a pen and paper to construct a timeline. Appellant readily agreed, and devoted
considerable effort to looking up details on his phone.
–7– At one point, Ellzey asked appellant how the timeline was progressing. Appellant replied
that he was still working on it, and Ellzey asked if there was time for him to make a pot of
coffee. Appellant replied affirmatively.
While Ellzey was out, appellant walked out of camera range. There are noises on the
video. Appellant argues the noises sound like appellant is trying to open the door and then sound
like he knocked on the door. Appellant asked Ellzey for more paper, and sat back down.
Nothing in his tone or posture suggested that appellant believed that he was confined or not free
to go. The door is not visible on the video, and there is no discussion in the interview about
whether it was locked or otherwise secured.
Later, appellant knocked on the door again, and sat back down. There are no audible
sounds of a door handle being turned. Thus, the record is silent as to whether appellant could
have opened the door on his own.
When Ellzey returned to the room, the tone was still conversational, relaxed, and non-
confrontational. Ellzey said that he was going to check his messages and appellant asked if he
could get out of the room. Ellzey replied, “Yeah, give me just a minute,” and then left the room.
While Ellzey was out of the room, appellant called his mother on his cell phone. He was
calm, and did not say that he was in custody or believed that he was not free to go. In fact,
appellant said that he left his dog at a kennel and planned to pick it up that night before returning
to his motel. He also asked his mother who would be picking him up in Dallas to assist him with
his return to Louisiana. And appellant told his mother that he wanted to come to the police
station so that he could tell the police about what kind of a person the victim was so that she
would not be judged harshly. Finally, he told his mother, “This guy seems cool.”
As the interview progressed, other detectives were providing Ellzey with information,
and he began to believe that appellant was not being truthful. One detective told him that he had
–8– viewed gas station surveillance video that showed appellant buying gas canisters and doing
things he had not mentioned to Ellzey.
Ellzey returned to the interview room at approximately 5:21, and appellant asked for
more water. Ellzey said, “Sure, come on,” and the two left the room together.
When appellant and Ellzey returned to the room, Ellzey told appellant that his timeline
was not accurate, and asked where he was at 5:49 the previous day. He then told appellant that
there was surveillance video of him purchasing gas canisters at gas station, which appellant
denied.
At 5:33, appellant requested a lawyer. When appellant invoked his right to counsel,
Ellzey’s questioning ceased, and he told appellant that he was being charged with capital murder
and was not free to go.
Ellzey’s testimony at the suppression hearing confirmed that appellant was not a suspect
when the interview began. He also said that the interview room was not locked because
appellant was a witness being interviewed. Furthermore, appellant was free to come and go and
there was no officer at the door. On cross-examination, Ellzey said that another officer could
have locked the door, but he believes he would have heard it because the deadbolt lock makes a
loud click noise.
For several reasons, we conclude that, on this record, the trial court could have
reasonably concluded that appellant did not meet his burden to show that he was in custody until
just before the interview ended. He voluntarily went to the police station with a family member
who was also scheduled to be interviewed. He said that he wanted to talk to the police and assist
with the investigation.
Furthermore, up to the point when appellant asked for a lawyer, Ellzey never told
appellant that he could not leave, nor did his tone and demeanor suggest this. Likewise,
–9– appellant’s tone and demeanor do not suggest that he believed he was not free to go. When
appellant asked if he could get out of the room, Ellzey agreed and asked him to wait a minute.
Appellant did not protest. In fact, when appellant asked for more water, he and Ellzey left the
room.
Additionally, there is no direct evidence that the door to the interview room was locked,
and we decline to speculate about whether it was locked or if or why appellant knocked on the
door. Ellzey affirmatively testified that he did not lock the door, and we defer to the trial court’s
implied finding that his testimony was credible. See e.g., State v. Kelley, 204 S.W.3d 808, 819
(Tex. Crim. App. 2006) (appellate court implies necessary findings to support trial court’s
ruling).
Appellant was extremely cooperative, constructing his timeline with painstaking detail.
He volunteered information, including the charges made to his bank account. The exchange
between Ellzey and appellant remained congenial and relaxed, and appellant did not appear to be
intimidated or threatened.
Moreover, unlike a suspect, appellant was allowed free access to his cell phone, and used
it to respond to text messages, access data, and call his mother. When speaking with his mother,
he said that Ellzey seemed “pretty cool” and talked about his plans for later in the evening.
Appellant gave no indication that he ever believed he was not free to go.
Finally, appellant contends that Ellzey’s “overt questioning” constituted interrogation.
But even if we were to characterize the questioning as interrogation, Miranda is not triggered
unless appellant was also in custody. See Miranda, 384 U.S. at 444; see also Oregon v.
Mathiason, 429 U.S. at 495 (holding that interrogation was not custodial).
–10– For the above reasons, the trial court did not err in concluding that Miranda warnings
were not required until four minutes before Ellzey placed appellant under arrest. We thus
resolve appellant’s first issue against him.
B. Second Issue: Was it error to admit appellant’s cell phone records showing cell site location data?
Appellant objected on various grounds when the State called FBI Special Agent Mark
Sedwick who used their cell phone records to testify about appellant’s and the victim’s locations
on the day of the murder. The trial court overruled all of the objections.
Appellant’s brief argues that the trial court erred in doing so because the State obtained
the records without a search warrant in violation of the Fourth Amendment.2 But in the interim,
the Texas Court of Criminal Appeals decided Ford v. State, which held that a warrantless search
of cell phone records’ location data does not violate the Fourth Amendment. Ford v. State, 477
S.W.3d 321, 330 (Tex. Crim. App. 2015). And, as appellant acknowledged at oral argument,
Ford’s salient facts are indistinguishable from the facts in this case.
In Ford, the State used four days of historical cell phone data to show the defendant’s
location on the day of and the day following a murder. Id. at 321. The cell phone data was
obtained from the cell phone provider without a warrant, and the defendant argued that using that
data violated his Fourth Amendment protection against unreasonable search and seizure.
The court of criminal appeals disagreed, holding that the government did not violate the
defendant’s Fourth Amendment rights. Id. at 335. In so concluding, the court noted that Ford
“had no legitimate expectation of privacy in records held by a third-party cell phone company
identifying which cell-phone towers communicated with his cell phone at particular points in the
past.” Id. at 330.
2 Contrary to appellant’s assertion, there was a search warrant, but it was obtained a month after the court order authorizing the subpoena of the records.
–11– The same type of non-content cell phone location data is at issue here, and Ford controls
our analysis. Therefore, the trial court did not err by admitting the cell phone records into
evidence. See Doyal v. State, No. 05-14-00943-CR, 2016 WL 447528, at *3 (Tex. App.—Dallas
Feb. 4, 2016, no pet. h.) (mem. op.); Speers v. State, No. 05-14-00179-CR, 2016 WL 929223, at
*8 (Tex. App.—Dallas March 10, 2016, no pet. h.) (mem. op.). We thus resolve appellant’s
second issue against him.
C. Third Issue: Did the trial court abuse its discretion by admitting three photographs of the victim’s burned corpse?
At trial, appellant objected to the admission of three photographs based on “rule 403” and
because they were “inappropriate.” The State responded that over 300 photographs were taken
and had been narrowed down to only the bare minimum necessary to show the crime scene as
described. Appellant’s third issue complains that the trial court abused its discretion in admitting
these crime scene photographs—State’s exhibits 21, 22 and 23—because they were cumulative
and unduly prejudicial.
1. Standard of Review and Applicable Law
The admissibility of photographs is within the trial court’s sound discretion. Paredes v.
State, 129 S.W.3d 530, 539 (Tex. Crim. App. 2004). And we will not disturb a trial court’s
evidentiary ruling if the trial court’s decision falls within the “zone of reasonable disagreement.”
See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990).
Rule 403 provides that 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; see Gigliobianco v. State, 210 S.W.3d 637, 640 (Tex. Crim. App. 2006).
Moreover, rule 403 favors admitting relevant evidence and carries a presumption that relevant
–12– evidence will be more probative than prejudicial. Shuffield v. State, 189 S.W.3d 782, 787 (Tex.
Crim. App. 2006).
In addition to usual Rule 403 considerations, in deciding whether to admit photographs, a
trial court may consider the following factors to determine whether the danger of unfair prejudice
substantially outweighs the evidence’s probative value: (i) the number of photographs, (ii) the
size of the photograph, (iii) whether the photographs are in color or black and white, (iv) whether
the photographs are gruesome, (v) whether the body is naked or clothed, and (vi) whether the
body has been altered by autopsy. Reese v. State, 33 S.W.3d 238, 241 (Tex. Crim. App. 2000).
Courts should also consider other available means of proof and the circumstances unique to each
individual case. Emery v. State, 881 S.W.2d 702, 710 (Tex. Crim. App. 1994).
2. Was the trial court’s balancing of probative value against the danger of unfair prejudice outside the zone of reasonable disagreement?
The photographs at issue show the condition of the victim’s body as it was found in the
burned-out car at the crime scene. The record does not reflect the photographs’ size or whether
they were originally in color or black and white. It is also not possible to determine whether the
victim was clothed.
While the photographs are gruesome, a trial court does not err merely because it admits
gruesome photographs into evidence. Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App.
1995). Moreover, although the pictures show a disturbing reality, they are no more gruesome
than the facts of the offense itself. See Orr v. State, 306 S.W.3d 380, 402 (Tex. App.—Fort
Worth 2010, no pet.) (photographs were probative of injuries and no more gruesome than would
be expected).
Appellant nonetheless contends that showing the victim’s burned corpse had little
inherent probative force. We disagree. After the photographs were admitted into evidence, a
police officer used the photographs to testify about the crime scene. Thus, the photographs had –13– probative value because they provided context for the officer’s testimony about the crime scene.
See Frank v. State, 183 S.W.3d 63, 68 (Tex. App.—Fort Worth 2005, pet. ref’d). In addition,
depiction of the reality of this offense is powerful, probative evidence of the State’s case. See
Chamberlain v. State, 998 S.W.2d 230, 237 (Tex. Crim. App. 1999).
Appellant also argues that there was a risk that the jurors would give undue weight to the
photographs that they were, “in all probability, not equipped to evaluate,” and while only a small
amount of time was spent presenting the evidence, it nonetheless had a distracting effect on the
jurors. But as the court of criminal appeals has observed, “[w]hen the power of the visible
evidence emanates from nothing more than what the defendant has himself done, we cannot hold
that the trial court abused its discretion merely because it admitted the evidence.” Sonnier v.
State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995).
The three photographs were not cumulative in the sense of being identical, nor was the
number of photographs excessive.
Under these circumstances, the trial court could reasonably have determined that
admitting the photographs did not present a danger of unfair prejudice that substantially
outweighed their probative value. Therefore, the trial court did not abuse its discretion by
overruling appellant’s rule 403 objection and admitting the photographs into evidence. We thus
resolve appellant’s third issue against him.
D. Fourth Issue: Did the trial court err by dismissing the first jury panel “off the record”?
Appellant’s fourth issue argues that the trial court erred by dismissing the first jury panel
off the record. Specifically, appellant asserts that the absence of a record on the voir dire and
dismissal of the first venire precludes meaningful review of the trial court’s actions for potential
error on appeal.
–14– But when the court said that the first panel had been dismissed “off the record” by
agreement of the parties, appellant did not object to the absence of a record on the first voir dire
or to continuing with the second panel. After the jury was selected from the second panel,
appellant said that he had no objection to the jury. And, although appellant filed a motion for
new trial, the motion did not complain about this issue.
To preserve a complaint for appellate review, a defendant must make a timely objection
to the trial court, state with sufficient specificity the grounds for the ruling sought, and obtain an
adverse ruling on his objection. TEX. R. APP. P. 33.1; Buchanan v. State, 207 S.W.3d 772, 775
(Tex. Crim. App. 2006). There is no such objection here. Consequently, the issue was not
preserved for our review. See TEX. R. APP. P. 33.1. We therefore reject appellant’s fourth issue.
E. State’s Cross-Point: Should the judgment be modified to include the jury’s deadly weapon finding?
In a cross-point, the State asks us to modify the judgment to reflect that the murder was
committed by using a deadly weapon. Where the jury is the factfinder, as it was here, it is
deemed to have made an affirmative deadly weapon finding if it finds the defendant guilty as
alleged in the indictment and the indictment alleges a deadly weapon. Crumpton v. State, 301
S.W.3d 663, 664 (Tex. Crim. App. 2009).
Here, the indictment alleged that appellant committed murder by using a deadly weapon.
The jury found appellant guilty as charged in the indictment. The judgment, however, does not
include a deadly weapon finding. Instead, it says “Findings on Deadly Weapon: N/A.”
Because the jury made a deadly weapon finding, the judgment should be modified to
reflect that finding. We therefore sustain the State’s cross-point and modify the judgment to
include the jury’s deadly weapon finding.
–15– III. Conclusion
Having resolved all of appellant’s issues against him, we modify the judgment to include
a deadly weapon finding and, as modified, affirm.
/Bill Whitehill/ BILL WHITEHILL JUSTICE
Do Not Publish TEX. R. APP. P. 47 141626F.U05
–16– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MARK EDWIN GUIDA, Appellant On Appeal from the 292nd Judicial District Court, Dallas County, Texas No. 05-14-01626-CR V. Trial Court Cause No. F-1263747-V. Opinion delivered by Justice Whitehill. THE STATE OF TEXAS, Appellee Justices Lang and Brown participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED : to include a deadly weapon finding As REFORMED, the judgment is AFFIRMED.
Judgment entered May 13, 2016.
–17–