NO.

04-12-00317-CR

JON THOMAS FORD,
Appellant
v.

THE STATE OF TEXAS,
Appellee


APPELLEES BRIEF

In the Court of Appeals for the
Fourth Court of Appeals District of Texas
at San Antonio


______________________________________________________________

On appeal from the 186th District Court of
Bexar County, Trial Court No. 2010-CR-7741,
Honorable Maria Teresa Herr, Judge Presiding
_______________________________________________________________

SUSAN D. REED
Criminal District Attorney
Bexar County, Texas

CATHERINE BABBITT
KIRSTA MELTON
KATHERINE CUNNINGHAM
Assistant District Attorneys
ORAL ARGUMENT REQUESTED
JAY BRANDON
Assistant District Attorney
SBN 02880500
101 W. Nueva
San Antonio TX 78205
(210) 335-2418
jay.brandon@bexar.org
ACCEPTED
04-12-00317-CR
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
3/21/2014 1:28:48 PM
KEITH HOTTLE
CLERK
FILED IN
4th COURT OF APPEALS
SAN ANTONIO, TEXAS
03/21/2014 1:28:48 PM
KEITH E. HOTTLE
Clerk

2

IDENTITY OF PARTIES AND COUNSEL

Jon Thomas Ford - Appellant (defendant in the trial court)

Dick DeGuerin - Appellants attorneys at trial
Todd Ward

Catherine Babbitt - Attorneys for the State at trial
Kirsta Melton
Katherine Cunningham

Hon. Maria Teresa Herr - Judge Presiding at trial

Jay Brandon - Attorney for the State on appeal

























3

TABLE OF CONTENTS
Page
IDENTITIES OF PARTIES AND COUNSEL 2

INDEX OF AUTHORITIES 8

STATEMENT OF THE CASE 11

STATEMENT OF FACTS 11

APPELLANTS POINT OF ERROR ONE
THE EVIDENCE IS LEGALLY INSUFFICIENT. 22

STATE'S RESPONSE
THE EVIDENCE PLACING APPELLANT
AT THE SCENE OF THE MURDER
SUFFICIENTLY ESTABLISHED GUILT. 22

APPELLANTS POINT OF ERROR TWO
THE TRIAL COURT ABUSED ITS
DISCRETION WHEN IT DENIED FORDS
MOTION FOR NEW TRIAL. 27

STATES RESPONSE
APPELLANT PRESENTED NO CLAIMS OR
CREDIBLE EVIDENCE THAT WOULD
REQUIRE GRANTING A NEW TRIAL. 27

APPELLANTS POINT OF ERROR THREE
THE TRIAL COURTS ANSWER TO A JURY
NOTE INDICATING A DISPUTE WAS NOT
A FAIR AND REASONABLE RESPONSE. 30

STATE'S RESPONSE
THE TRIAL COURT PROVIDED THE JURY
WITH ALL TESTIMONY DIRECTLY
RELATED TO ITS REQUEST. 30

APPELLANTS POINT OF ERROR FOUR
THE STATE OBTAINED HISTORICAL

4

CELL SITE DATA ILLEGALLY IN
VIOLATION OF THE TEXAS CODE
OF CRIMINAL PROCEDURE ART. 18.21. 35

APPELLANTS POINT OF ERROR FIVE
THE STATE VIOLATED THE TEXAS
CODE OF CRIMINAL PROCEDURE
ARTICLE 38.23 WHEN IT OBTAINED
HISTORICAL CELL TOWER DATA
WITHOUT A WARRANT. 35

APPELLANTS POINT OF ERROR SIX
THE STATE VIOLATED ARTICLE I 9
OF THE TEXAS CONSTITUTION WHEN
IT OBTAINED HISTORICAL CELL SITE
DATA WITHOUT A WARRANT. 35

APPELLANTS POINT OF ERROR SEVEN
THE STATE VIOLATED 18 U.S.C. 2703 IN
OBTAINING CELL SITE DATA ILLEGALLY. 35

APPELLANTS POINT OF ERROR EIGHT
THE STATE VIOLATED THE FOURTH
AMENDMENT TO THE U.S. CONSTITUTION
WHEN IT OBTAINED HISTORICAL CELL
SITE DATA WITHOUT A WARRANT AND
WITHOUT PROBABLE CAUSE EFFECTING
AN UNREASONABLE SEARCH AND SEIZURE. 35

APPELLANTS POINT OF ERROR NINE
THE STATE VIOLATED THE FIRST
AMENDMENT TO THE U.S. CONSTITUTION
WHEN IT OBTAINED HISTORICAL CELL
SITE DATA WITHOUT A WARRANT
INFRINGING ON THE RIGHT OF FREE
ASSOCIATION IN VIOLATION OF THE
FIRST AMENDMENT TO THE CONSTITUTION. 36

STATE'S RESPONSE TO ALL
THE CELL SITE DATA WERE

5

PROBABLY OBTAINED THROUGH
COURT ORDER AUTHORIZED BY
STATUTE. APPELLANT HAD NO
REASONABLE EXPECTATION OF
PRIVACY IN SUCH PUBLIC
INFORMATION IN ANY RESPECT. 36

APPELLANTS POINT OF ERROR TEN
THE SEARCH WARRANTS AFFIDAVIT
TO SEARCH FORDS HOME, TRUNK AND
DNA CONTAINS MATERIALLY FALSE
STATEMENTS AND OMISSIONS THAT
ELIMINATE PROBABLE CAUSE FOR
THE ILLEGAL SEARCHES. 44

APPELLANTS POINT OF ERROR ELEVEN
THE SEARCH WARRANTS AFFIDAVIT
TO SEARCH FORDS HOME, TRUNK AND
DNA CONTAINS MATERIALLY FALSE
STATEMENTS AND OMISSIONS THAT
ELIMINATE PROBABLE CAUSE FOR
THE ILLEGAL SEARCHES. 44

STATES RESPONSE TO BOTH
MINOR VARIATIONS IN THE OFFICERS
RECOUNTING OF WITNESS STATEMENTS
DID NOT ELIMINATE PROBABLE CAUSE. 44

APPELLANTS POINT OF ERROR TWELVE
THE TRIAL COURT IMPROPERLY ADMITTED
SUPPOSED WEAPONS, A THREE-HOLE PUNCH
AND A CORDLESS ELECTRIC DRILL CHARGE
CORD IN EVIDENCE DEPRIVING FORD OF
A FAIR TRIAL. 48

STATES RESPONSE
THE ADMITTED ITEMS WERE VIRTUALLY
IDENTICAL TO ITEMS WITNESS TESTIMONY
IDENTIFIED AS BEING IN THE APARTMENT,
SO WERE PROPERLY ADMITTED AS

6

DEMONSTRATIVE EVIDENCE. 48

APPELLANTS POINT OF ERROR THIRTEEN
THE STATE ENGAGED IN IMPROPER
ARGUMENT IN ITS OPENING BY NAME
CALLING FORD A LIAR TWELVE TIMES
OVER SUSTAINED OBJECTIONS. 50

APPELLANTS POINT OF ERROR FOURTEEN
THE STATE ENGAGED IN IMPROPER
ARGUMENT IN ITS CLOSING BY BURDEN SHIFTING. 50

APPELLANTS POINT OF ERROR FIFTEEN
THE STATE ENGAGED IN IMPROPER
ARGUMENT BY COMMENTING ON
FORDS FAILURE TO TESTIFY. 50

STATES RESPONSE TO ALL THREE
FAILURE OF THE DEFENSE TO SEEK
EVIDENCE IT CLAIMS WOULD HAVE
BEEN BENEFICIAL IS A PROPER
SUBJECT OF FINAL ARGUMENT.
THE STATE WAS ENTITLED TO COMMENT
ON APPELLANTS FAILURE TO CLAIM
INNOCENCE WHEN HE HAD OPPORTUNITIES
TO DO SO PRIOR TO TRIAL AND DID NOT. 49

APPELLANTS POINT OF ERROR SIXTEEN
THE TRIAL COURT ERRONEOUSLY
DENIED DEFENSE COUNSEL A CONTINUANCE
WHEN HE WAS SURPRISED BY ADVERSE
CELL TOWER TESTIMONY. 54

STATES RESPONSE
APPELLANT DID NOT FILE A
WRITTEN, SWORN MOTION AS
REQUIRED FOR THIS CLAIM. 54

APPELLANTS POINT OF ERROR SEVENTEEN
THE TRIAL COURT ERRED BY DENYING

7

THE APPELLANTS MOTION FOR
INDEPENDENT EXAMINATION OF DNA
EVIDENCE DENYING FORD HIS RIGHT
TO DUE PROCESS. 56

STATES RESPONSE
THE DEFENSE PRESENTED NO EVIDENCE
IN SUPPORT OF ITS REQUEST, SO IT WAS
PROPERLY DENIED BY THE COURT. 56

APPELLANTS POINT OF ERROR EIGHTEEN
THE TRIAL COURT ABUSED ITS
DISCRETION EXCLUDING THE EVIDENCE
OF A BREAK-IN AT DANA CLAIR EDWARDS
PARENTS HOME ON 12/30/2008. 58

STATES RESPONSE
THERE WAS NO EVIDENCE THIS EVENT
WAS RELATED TO THE MURDER ON
TRIAL, SO THE COURT PROPERLY
EXCLUDED IT AS IRRELEVANT. 58

PRAYER FOR RELIEF 59

CERTIFICATE OF SERVICE 60

CERTIFICATE OF COMPLIANCE 60

8

INDEX OF AUTHORITIES
Page
Archie v. State, 340 S.W.3d 734 (Tex.Crim.App. 2011) 51

Baines v. State, 401 S.W.3d 104 (Tex.App.Houston [14
th
Dist.]
2011, no pet.) 53

Barnett v. State, 847 S.W.2d 678 (Tex.App.Texarkana 1993, no pet.) 35

Blackshear v. State, 385 S.W.3d 589 (Tex.Crim.App. 2012) 54

Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App. 2010) 22

Brown v. State, 870 S.W.2d 53 (Tex.Crim.App. 1994) 31

Cockrell v. State, 933 S.W.2d 73 (Tex.Crim.App. 1996) 53

Dee v. State, 388 S.W.2d 946 (Tex.Crim.App. 1965) 52

Drew v. State, 743 S.W.2d 207 (Tex.Crim.App. 1987) 29

Easley v. State, 986 S.W.2d 264 (Tex.App.San Antonio 1998, no pet.) 27

Franks v. Delaware, 442 U.S. 928, 99 S.Ct. 2871, 61 L.Ed.2d 304 (1979) 44

Freeman v. State, 340 S.W.3d 717 (Tex.Crim.App. 2011) 53

Garcia v. State, 246 S.W.3d 121 (Tex.App.San Antonio 2007,
pet. refd) 26

Gilcrease v. State, 32 S.W.3d 277 (Tex.App.San Antonio 2000,
pet. refd) 51

Green v. State, 934 S.W.2d 92 (Tex.Crim.App. 1996) 48

Guzman v. State, 955 S.W.2d 85 (Tex.Crim. App. 1997). 45

Hankins v. State, 646 S.W.2d 191 (Tex.Crim.App. 1983) 26

Holland v. United States, 348 U.S. 121, 75 S.Ct. 127,

9

99 L.Ed. 150 (1954); 26

Hudson v. State, 675 S.W.2d 507 (Tex.Crim.App. 1984) 51

In re Application of the U.S. for Historical Cell Site Data, 724 F.3d
600 (5
th
Cir. 2013) 38

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781,
61 L.Ed.2d 560 (1979) 23

Jackson v. State, 17 S.W.3d 664 (Tex.Crim.App. 2000) 53

Jiminez v. State, 307 S.W.3d 325 (Tex.App.San Antonio 2009,
pet. refd) 54

Johnson v. State, 919 S.W.2d 473 (Tex.App.Fort Worth 1996,
pet. refd.) 49

Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) 38

Keeter v. State, 74 S.W.3d 31 (Tex.Crim.App. 2002) 29

Laster v. State, 275 S.W.3d 512 (Tex.Crim.App. 2009) 25

Leday v. State, 983 S.W.2d 713 (Tex.Crim.App. 1998) 51

Massey v. State, 933 S.W.2d 141 (Tex.Crim.App. 1996) 48

McBride v. State, 838 S.W.2d 248 (Tex.Crim. App. 1992) 57

Richardson v. State, 865 S.W.2d 944 (Tex.Crim.App. 1993) 42

Robison v. State, 888 S.W.2d 473, 480-81 (Tex.Crim.App. 1994) 35

Robledo v. State, No. 04-08-00586-CR (Tex.App.San Antonio
2009, pet. refd)(not designated for publication) 49

Rodriguez v. State, 232 S.W.3d 55 (Tex.Crim.App. 2007) 45

Santellan v. State, 939 S.W.2d 155 (Tex.Crim.App. 1997) 26

10


State v. Granville, ___ S.W.3d ___, No. PD-1095-12 (Tex.Crim.
App. delivered February 26, 2014) 38

State v. McClain, 337 S.W.3d 268, 271 (Tex.Crim.App. 2011) 44

Torres v. State, 141 S.W.3d 645 (Tex.App.El Paso 2004, pet. refd) 26

United States v. Jones, 565 U.S. ___, 132 S.Ct. 945 (2012) 36

United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619,
48 L.Ed.2d 71 (1976) 37

Valencia v. State, 946 S.W.2d 81 (Tex.Crim.App. 1997) 53

Webb v. State, 232 S.W.3d 109 (Tex.Crim.App. 2007) 27

Wiley v. State, 74 S.W.3d 399 (Tex.Crim.App. 2002) 57

Williams v. State, 235 S.W.3d 742 (Tex.Crim.App. 2007) 24



11

STATEMENT OF THE CASE

Appellant Jon Thomas Ford was indicted for the murder of Dana Clair
Andrews, by ligature strangulation. (CR 5) Appellant pled not guilty and was tried
by a jury. (RR6 21) The jury convicted him of murder. (CR 16; RR19 21) After a
punishment hearing, the jury assessed punishment at imprisonment for 40 years.
(RR19 87) Appellant filed notice of appeal (CR 709), and the trial court certified
his right to appeal. (CR 22)
STATEMENT OF FACTS
The victim was Appellants former girl friend, who broke up with him a few
months before she was murdered. There was no sign of forced entry into her
apartment, to which Appellant had once had a key. Appellant claimed to be home
in bed at the time, but he was placed at or near the scene by his cell phone records,
security camera footage, and his DNA on the towel covering the victims face,
when there was no other reasonable explanation for its presence.
The deceased, Dana Clair Edwards, was murdered some time in the early
morning hours of New Years Day, 2009, following a New Years Eve party she
attended along with Appellant and other friends. (RR6 117, 121) One of those
attending was Appellants friend since childhood, Alan Tarver. (RR6 76, 80) Alan
had been present when Appellant and Dana met in the summer of 2007. (RR6 89,
90) The two struck up a relationship, including double dating with Alan and his

12

girl friend at the time, Melissa Federspill. (RR6 91) But in September of 2008,
Dana broke off the relationship with Appellant. (RR6 94) Appellant was
emotional about that, hurt and unhappy. (RR6 95) However, he and Dana
remained apparently very civil, and continued to socialize with mutual friends. In
October of 2008, for example, Dana came to a fortieth birthday party Appellant
threw for himself. (RR6 96, 97)
On December 20
th
a group of friends including Alan, Melissa, Appellant,
and Dana rented a limousine and went driving to see Christmas lights, ending up in
New Braunfels. (RR6 98, 99) People were drinking in the limo. (RR6 101) Dana
was drunk. (RR6 102) Some people thought the limo driver was drunk as well, so
they got out at a rest stop, but Appellant and Dana rode back to San Antonio. (RR6
103) Later Alan said Appellant told him Dana passed out on the drive home, so he
had to carry her upstairs to her condo bedroom. (RR6 105, 106) He also said he
had to clean up after her dogs. (RR7 90)
According to testimony, Dana and Appellant had one more meeting between
the limo ride and New Years Eve. Dana told her friend Melissa Federspill that
she went to see Appellant at his home on December 23
rd
to give him a Christmas
present for his dog. (RR7 177) Appellant was crying, drinking a lot, and very
emotional. (RR7 178, 180) Dana ended up staying for five hours to try to comfort
him.

13

On New Years Eve there was an earlier party Appellant and Alan both
attended, then they drove together to a different party at Mary Minors home on
Treasure Way, near Nacogdoches and Loop 410. (RR6 116, 117) Appellant was
driving his white Tahoe. The party there was subdued, with not much drinking.
(RR6 127-28) Dana, for example, had only two sips of champagne. (RR6 128)
Appellant left this party abruptly. Alan texted him at 11:31
1
to ask why, and
Appellant responded, No longer fun. (RR6 130, 131) Appellant didnt respond
to the next text Alan sent. Appellant had left a beer cooler at the party, so when
Alan and Melissa left the party about 12:45, at the same time as Dana, Alan and
Melissa drove by Appellants house to return it. (RR6 131, 132) They drove up an
alley people used for access to Appellants house on Rosemary. From there they
could see Appellants driveway. His car wasnt parked there. (RR6 134) So they
turned right into a church parking lot across the alley, where Appellant sometimes
parked, and looked for his car, but didnt see it. It wasnt parked where Appellant
usually parked in that lot. (RR7 21) The defense suggested Appellant might have
parked in a dark corner of the lot, but Alan replied that hed never known
Appellant to park there, and Alans headlights would have illuminated that corner
when he turned into the lot. (RR7 136, 137) Later Appellant told Alan hed parked
in that lot, but he was never specific about where. (RR7 141-42) Alan didnt

1
Appellants cell phone records were admitted, showing times of the various calls and texts. (SX 11, RR7 7)

14

believe him. (RR7 45, 142)
That early morning, Alan texted Appellant again at 1:19 a.m. to ask where
he was, but Appellant didnt respond. (RR6 137) The next day, New Years Day,
the group was supposed to have lunch at Neimans, but instead Appellant rather
abruptly drove to Rockport, where his parents had a vacation home. (RR7 27, 28)
After Danas death was discovered, Alan found Appellants answers
evasive; they didnt match what Alan had seen. (RR7 45, 48) By the time of trial,
he hadnt spoken to Appellant since the month after Danas death. (RR7 55)
Melissa Federspill offered similar testimony. She had not seen Dana get
sick on the limo ride. (RR7 171) At the later New Years Eve party Appellant got
upset about a remark Melissa made implying that neither he nor Alan could
commit to marriage. (RR7 190) Appellant told her it rubbed him the wrong way,
and wasnt funny. Then he left without saying goodbye. (RR7 191, 192)
At the party, Dana arrived with a drink, but Melissa didnt know what was in
it, although she told a police officer in her statement soon after the party that it had
been gin and tonic. (RR7 194; RR8 38) At the party Dana took one little sip of
champagne, then gave her glass to Melissa. (RR7 193)
Melissa also described looking for Appellants car in the church parking lot
behind his house and not finding it. (RR7 203-05) Appellant told her hed gone
right home after the party, but she didnt believe him. (RR7 210) After Danas

15

death was discovered, her dog Grit was missing. (RR7 217-18)
A day later Melissa gave a statement to a detective. (RR7 228) She was also
shown security footage from a bank camera across the street from Danas
apartment complex. She saw a car similar to Appellants driving into the complex.
(RR7 229) However, she couldnt identify a person seen walking in. (RR7 230)
When Appellant gave a police detective his cell phone number, he also said
no one else had had his phone, and that no one else used his white Tahoe the night
of the murder. (RR12 75) He also said he went straight home after the party.
(RR12 77) But the records showed otherwise.
Kenneth Doll, the director of radio networking engineering for AT&T for
south Texas, testified extensively. (RR8 87) He helped design cell tower
placements and was very familiar with how cell towers work. (RR8 89) He
could tell from cell tower records where a cell phone was located; that is, within a
certain sector. (RR8 96) He could tell which tower serviced a call, and from that
could tell in pretty close proximity where the person with the phone was. (RR8
97) Several exhibits were admitted showing Appellants cell phone usage the
night of December 31-January 1, including which towers handled which calls.
(RR8 102)
Danas condo complex was between the party and Appellants house, all
fairly close together. But three different cell phone towers covered those areas.

16

(RR8 107) Sector 3 was the best tower to service Appellants home. It showed he
was there at 11:31 when he received the text from Alan. (RR8 124-25) However,
his phone received an unanswered call at 11:45 p.m., which showed he was in the
vicinity of Gallery Court, Danas condo complex. (RR8 127) A text he received at
1:19 a.m. showed him still in that area. But at 1:32 he received a text in sector 3,
in the vicinity of Olmos Dam (where the dog Grits body was later found. ) (RR8
128-32)
Mr. Doll explained that the Gallery Court location would always use the
same cell tower. (RR8 131) But that tower would never service Appellants home
address; it didnt have line of sight to it. (RR8 136) So Appellants phone could
not have been at his home at 11:45 p.m. when he claimed to be home. The call to
it showed it to be in the Gallery Court area. (RR8 141) By 2:30 a.m., the phone
was back in Appellants home area. (RR8 143) Mr. Doll testified positively that
Appellants phone was not at his Rosemary address at 11:45 p.m. and 1:19 a.m.
(RR8 169, 170) It would have had to be in the Gallery Court area. (RR8 176-77)
Jordan Hasslocher, 27, lived in the condo unit closest to Danas. (RR9 21)
He described the small complex, and said he walked around it a lot, including at
night. (RR9 27, 33) The night of the murder, hed seen Dana between 12:30 and 1,
when they were both out walking their dogs. (RR9 41, 42) But a friend of Jordans
arrived at about 1:21, and he didnt see much after that. (RR9 46) He did not see

17

Appellant or his car that night, but testified no one else in the complex drove a
white Tahoe. (RR9 48, 58) Of course, he didnt see everything that happened in
the complex, because sometimes he was inside and sometimes he was buried in
reading. (RR9 70-1, 72)
Deborah Edwards, Danas mother, testified that the condo in question was a
two-bedroom unit; the second bedroom was used as an office. (RR9 91) Dana both
lived there and worked there, in the family homebuilding business. There was a
leak in the second bedrooms toilet, so the water to it had been shut off for some
time. (RR9 98) White towels were kept in that bathroom, including the white hand
towel found lying over Danas face when her body was discovered. (RR9 97, 148)
Mrs. Edwards testified that her daughter washed her sheets and towels once a
week, using bleach on the towels. (RR9 93-4, 114) The rest of her testimony
involved finding her daughters body and the aftermath. There was no sign of
forced entry to the condo, and the burglar bars were in place. (RR9 164)
On January 2, 2009, after Danas death Appellant came to pay his respects to
her family. (RR9 171-72) He told Mrs. Edwards hed had a very pleasant evening
with Dana on the 23
rd
, but Mrs. Edwards knew better because shed heard Danas
account of the event. (RR9 173) When talking to her, Appellant wouldnt make
eye contact. (RR9 174-75) She also noticed that Appellant, though usually very
well-groomed, on this occasion had his fingernails cut very short and his fingers

18

were very red. (RR9 175) He didnt ask her any questions about Dana, and though
he offered to help, after the memorial service she never heard from him again.
(RR9 176, 179)
Mrs. Edwards had noticed two things missing from the condo, a large three-
hole paper punch, and the cord to a charger. (RR9 165, 193) Also missing was
Danas dog Grit. (RR9 169) His body was later found in Olmos Basin. (RR9 117)
Various police officers testified about the investigation, including things
theyd gotten wrong. One testified he should have taken fingerprints at the scene
but didnt. (RR11 167) The bloody towel covering the deceaseds head wasnt
collected until days after the murder. (RR11 213, 219)
Video from the bank security cameras across the street was admitted, but the
footage is very grainy. (RR12 50) Detective Leroy Carrion testified to meeting
Appellant and other witnesses and taking statements from them. (RR12 74) The
detective testified to watching the bank footage and seeing what he thought was
Appellants white Tahoe on it several times. (RR12 93, 96, 97, 102) It had a black
stripe like Appellants and was otherwise similar. (RR12 97-8)
2
At 11:24 this car
went by, from the direction of Mary Minors. (RR12 96) It then returned and went
into Gallery Court for two or three minutes and came out again. (RR12 97) At
11:37 a similar car entered Gallery Court and emerged again at 11:39. (RR12 99,

2
There was a dispute about whether something on top of Appellants Tahoe was a luggage rack or just rails, but
the witness testified more than once that the car on the video, like Appellants, had no luggage rack. (RR12 93, 95)

19

100) This time it headed north again, away from Appellants home, but in the
direction of the shopping center, Carousel Court, right next to Gallery Court.
(RR12 102) A minute or two later a person came from that direction on foot and
went into Gallery Court. This person was wearing a dark shirt like Appellant was
that night. (RR12 105) These appearances matched up with where the cell phone
records show Appellant was at those times. (RR12 152-54) Appellant told the
detective he never used his cell phone after 11:30 p.m. on the 31
st
, which was
clearly a lie. (RR13 176)
At 2:02 a.m. a male exited Gallery Court on foot, looking like the earlier
arrival. (RR12 164-65) This person headed north on Broadway, toward Carousel
Court. A few minutes later a car that looked like the white Tahoe drove by from
that direction, headed south toward Appellants house. (RR12 168-70) The white
Tahoe appeared again at 3:12 a.m., heading into Gallery Court, and emerged again
at 3:17. (RR12 171-72, 174)
Appellant had said he would do everything he could to help find Danas
killer, but in fact the detective couldnt get from him the clothes hed been wearing
that night, in spite of asking Appellant for them. (RR12 177-79) He never asked
about the case. (RR13 37) In his statement about the night of the limo ride,
Appellant never said he went into the guest bedroom or bathroom; in fact, hed
closed the door to that office. (RR12 185; RR14 13) Other than that, he had last

20

been in Danas home in September of 2008. Officers did get a DNA sample from
Appellant and submitted the towel for testing. (RR 11 76; RR12 186) That result
as well as the other evidence convinced the detective that Appellant was the
murderer. (RR13 40-41, 43)
The assistant medical examiner testified that the body had a deep scalp
laceration to the top of her head. (RR14 71-2) This wouldnt necessarily have
rendered Dana unconscious, but would have stunned her. (RR14 74-5) This could
have been made by the missing three-hole punch. (RR14 75) She had quite a few
other abrasions and bruises. (RR14 78, 83-4, 92, 103, 105, 109, 114) But the fatal
injury was a ligature mark around her neck, which had cut off her blood supply and
killed her. (RR14 83, 128)
The killer would not necessarily have been injured in this struggle. (RR14
132) Time of death was hard to determine. (RR14 139, 149-50) The contents of
her stomach, as well as her amount of rigor mortis, was consistent with her having
died between one and two oclock in the morning on January 1
st
. (RR14 135, 137-
39, 188) Her toxicology test showed no alcohol in her system, which was
consistent with her having had a sip of champagne at midnight. (RR14 126, 141-
42) The investigator did note a slight smell of alcohol at the scene of her murder.
(RR14 140) Her signs could have been consistent with her having died as late as
noon. (RR14 150)

21

The forensic scientist who did the DNA test also messed up, but did find
Appellants DNA on the hand towel that had covered Danas face. The towel had
a lot of blood on it, and at first the scientist found only the deceaseds DNA on it.
(RR15 43, 47) But he isolated male DNA on the towel using a different test.
(RR15 49) Appellant was not excluded as a source of this DNA. (RR15 52, 55)
Robert Sailors compared a known sample from Appellant with three
different cuttings on the towel. He found male DNA on two of those cuttings, and
Appellant was not excluded as the donor, meaning, essentially, that Appellants
DNA was on the towel that had been covering the deceaseds face. (RR15 52, 55)
Somewhere in the process, though, Mr. Sailors also got his own DNA on
one of the cuttings from the towel. (RR15 53-4)
DNA will dissolve in water, and it will be washed away if an item is
laundered. (RR15 64, 65-6) DNA would be washed down the drain. (RR15 66-7)
Bleach, especially, would eradicate the DNA. (RR15 67, 68) One cannot leave
DNA just by touching something. (RR15 72-3) If someone washed his hands, that
would wash away DNA, so he would leave none on the towel when he dried with
it. (RR15 71, 135, 136) If Appellant washed his hands and dried them on the towel
ten days before the murder, but the towel was washed in the meantime, his DNA
would not be found there. (RR15 140) It was much more probable that it was
deposited some time after the washing.

22

Mr. Sailors found no other male DNA on the towel. (RR15 76) No other
items were submitted to him for testing. (RR15 127)
The State rested following this witness. (RR15 150) The defense called its
own forensic pathologist, who had reviewed the Medical Examiners file. (RR15
155) She agreed that it was impossible to determine an exact time of death, but
estimated that Dana had died closer to 4 a.m. than to 1:30. (RR15 205-06) She
agreed, though, that Dr. Peacock was a good doctor, and that the time of death
could have been as early as 1 2 a.m. (RR15 214, 216)
The defense pathologist also thought the struggle that resulted in Danas
death was very violent. (RR15 196) However, the blow to the top of her head
might have stunned her. (RR 220) The doctor was also unaware of injuries Dana
had sustained in an earlier car wreck, leaving her less able to fight off her attacker.
(RR15 218)
A witness from the car dealer where Appellant bought his car testified that
the car did have a luggage rack. (RR16 24)
Another defense expert testified that Robert Sailors had handled the
evidence improperly by letting his own DNA onto it. (RR16 171) She agreed,
though, that Appellants DNA was also on the towel. (RR16 182, 215-16)
Character witnesses testified that Appellant was a very gentle person whom
they had never seen lose his temper. (RR17 132, 142, 160)

23

The defense rested and both sides closed. (RR17 183) The jury found
Appellant guilty of murder. (RR19 21) After a brief punishment hearing, the jury
assessed his punishment at forty years imprisonment, and the trial court sentenced
him accordingly. (RR19 87, 89)
APPELLANTS POINT OF ERROR ONE
THE EVIDENCE IS LEGALLY INSUFFICIENT.

STATE'S RESPONSE
THE EVIDENCE PLACING APPELLANT
AT THE SCENE OF THE MURDER
SUFFICIENTLY ESTABLISHED GUILT.
SUMMARY OF THE ARGUMENT
The State placed Appellant at the scene of the murder at the time of the
murder by DNA, cell phone records, and security camera footage. While none of
these alone may have been sufficient to prove Appellants guilt, their cumulative
force did. Appellant cites defensive testimony the jury clearly rejected, which does
not meet the standard for reviewing evidence.
ARGUMENT
Standard of Review
The standard of review in sufficiency of the evidence claims in criminal
cases is that of Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d
560 (1979). Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App. 2010). That standard
is whether, viewing the evidence in the light most favorable to the verdict, a

24

rational jury could have found guilt beyond a reasonable doubt. Id. The reviewing
court may not re-evaluate the weight and credibility of the record evidence and
thereby substitute our judgment for that of the fact-finder. Williams v. State, 235
S.W.3d 742, 750 (Tex.Crim.App. 2007). The trier of fact has the sole power to
judge the credibility of witnesses. Id.
Facts
There was conflicting testimony over some issues, such as the extent to
which Appellant was upset by Danas breaking up with him. But this Court must
view the evidence in the light most favorable to the verdict. The jury resolved
those conflicts. They necessarily found the following:
1. Appellant was very upset shortly before the victims murder over her
breaking up with him.
2. Though Appellant told police and friends he went straight home after the
party and to sleep before midnight, his cell phone records show he did not. Instead
he was in the vicinity of the victims home at the time of her murder. He was also
in the vicinity of Olmos Dam, where the victims dogs body was later found. The
fact that his car wasnt parked at his house or his usual other parking spots also
proves he was not at home as he said he was.
3. The video camera footage is unclear, but it shows a car like Appellants
in the victims condo complex and nearby near the time of her murder. It also

25

shows a figure similar to Appellant walking into the complex before the murder
and out again afterwards.
4. Appellants DNA was not just in the victims condo, as the defense
claims. It was on the bloody towel with which the murderer had covered her head.
This DNA could only have been deposited there at the time of the murder.
Appellant claimed to have been in the condo eleven days earlier, but he never
claimed to have gone into that bedroom or bathroom. Otherwise he had not been
in the condo for months. The deceased washed her white towels weekly, using
bleach, which would have destroyed any DNA traces left earlier.
5. There was no evidence anyone else was in the victims home at the time
of her death. There was no forced entry, and no valuables were missing.
Appellant had access to the home either because he still had a key or because Dana
would have recognized him and let him in.
6. The jury also had before it evidence of other suspicious behavior of
Appellants, such as his failure to assist police or stay in touch with Danas family
as hed promised. Even his long-term friends thought he was lying.
Law and Application
Circumstantial evidence is as valuable as direct evidence in a criminal case.
Laster v. State, 275 S.W.3d 512, 520 (Tex.Crim.App. 2009). It is reviewed in the
same manner as direct evidence, neither more stringently nor more leniently. Id.

26

The sufficiency review in such a case must still defer to the decisions of the fact-
finder. Id. Circumstantial evidence can be as strong as direct evidence, or in some
cases even more valuable to the jury. Holland v. United States, 348 U.S. 121, 137-
39, 75 S.Ct. 127, 99 L.Ed. 150 (1954); Hankins v. State, 646 S.W.2d 191, 198
(Tex.Crim.App. 1983).
Appellant cites defensive evidence such as that regarding time of death as if
it had been conclusively established, when in fact it was disputed. Both
pathologists agreed, in fact, that the time of death could have been at the time when
Appellant was in or near the victims home. The jury, as the trier of fact, is the
sole judge of the credibility of the witnesses and the weight to be given their
testimony. Easley v. State, 986 S.W.2d 264, 271 (Tex.App.San Antonio 1998,
no pet.), citing Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997).
The direct and circumstantial evidence placed Appellant and only Appellant
in the victims home at the time of her death, with the motive and means to kill her.
The jury was entitled to infer Appellants consciousness of guilt from his lies about
his whereabouts and other suspicious conduct following the murder. Torres v.
State, 141 S.W.3d 645, 661 (Tex.App.El Paso 2004, pet. refd). The jury was
also entitled to reject Appellants explanation for how his DNA was found close to
the victims body. Garcia v. State, 246 S.W.3d 121, 129 (Tex.App.San Antonio
2007, pet. refd). All the circumstantial evidence the jury was entitled to believe

27

was consistent with Appellants causing the death of the victim. Id. The evidence
of his guilt was sufficient.
APPELLANTS POINT OF ERROR TWO
THE TRIAL COURT ABUSED ITS
DISCRETION WHEN IT DENIED FORDS
MOTION FOR NEW TRIAL.

STATES RESPONSE
APPELLANT PRESENTED NO CLAIMS OR
CREDIBLE EVIDENCE THAT WOULD
REQUIRE GRANTING A NEW TRIAL.
SUMMARY OF THE ARGUMENT
States objections were sustained to nearly everything Appellant presented in
his motion for new trial. What followed were offers of proof or bills of exceptions,
not evidence that was before the court. No evidence supported any of Appellants
claims.
ARGUMENT
Standard of Review
An appellate court reviews a trial courts ruling on a motion for
new trial using an abuse-of-discretion standard of review. We view
the evidence in the light most favorable to the trial courts ruling and
uphold the trial courts ruling if it was within the zone of reasonable
disagreement. We do not substitute our judgment for that of the trial
court, but rather we decide whether the trial courts decision was
arbitrary or unreasonable. Thus, a trial court abuses its discretion in
denying a motion for new trial only when no reasonable review of the
record could support the trial courts ruling.

Webb v. State, 232 S.W.3d 109, 112 (Tex.Crim.App. 2007)(citations omitted).

28

Evidence
In the hearing on the motion for new trial, defense counsel called a witness
to testify about cell phones and towers. His credentials were sketchy and his
experience did not relate to cell phones. (RR20 12, 13) The state objected that he
was not presenting newly discovered evidence, since this expert had been
available to the defense prior to trial, and the defense had had all the information
about the cell phone records for a year before trial. (RR20 21) The trial court
sustained that objection. (RR20 23) The rest of the witnesss testimony was
merely an offer of proof.
When the defense called another witness to testify to the height of the figure
on the videotape, the State again objected that this was not newly discovered
evidence. (RR20 42) The defense had had the security camera footage for a year
before trial. (RR20 44) There was nothing to show this witness would not have
been available for trial. The trial court sustained this objection. (RR20 47) This
witness presented nothing for the court to review.
The next day the defense called a bailiff who had overheard a juror say
something after the verdict. The State objected both to hearsay and under Rule
606(b) of the Rules of Evidence, which does not allow for the impeachment of a
verdict by such a statement. (RR21 5) The trial court sustained this objection.
(RR21 9) Again, the witnesss subsequent offer of proof presented nothing for this

29

Court to review.
Not Newly Discovered Evidence
Under Article 40.001 of the Code of Criminal Procedure, there are four
requirements for granting a new trial based on newly discovered evidence: the
evidence was unknown to the movant before trial; the defendants failure to
discover it was not due to want of diligence on his part; the evidence was material,
such that it would probably bring about a different result; and the evidence was
competent. Keeter v. State, 74 S.W.3d 31, 36-7 (Tex.Crim.App. 2002); Drew v.
State, 743 S.W.2d 207 (Tex.Crim.App. 1987). Even if Appellants evidence had
been properly presented in the hearing, it would not have met this standard. This
so-called expert was available prior to trial, and the defense knew that the cell
tower evidence would be crucial to the case. They had all the evidence that might
have led them to acquire such an expert. They simply chose not to do so.
The witnesss testimony did not qualify him as an expert in cell tower
function, so it would not have been material, nor have produced a different result at
trial. He had degrees in math and had worked for Western Union and IBM, among
others. (RR20 12-13) Nothing in his testimony qualified him as an expert in cell
towers.
Juror
Any testimony about a jurors supposedly saying something that

30

contradicted what hed written in his questionnaire was properly excluded as
hearsay, coming from the bailiff. Furthermore, it would have been inadmissible
under Rule of Evidence 606(b), which says, Upon an inquiry into the validity of a
verdict or indictment, a juror may not testify as to any matter or statement
occurring during the jurys deliberations, or to the effect of anything on any jurors
mind or emotions or mental processes, as influencing any jurors assent to or
dissent from the verdict or indictment. Nor may a jurors affidavit or any
statement by a juror concerning any matter about which the juror would be
precluded from testifying be admitted for any of these purposes.
Furthermore, if this subject had been as important as Appellant now claims,
his trial lawyer had an obligation to question prospective jurors individually about
it. Failure to do so forfeits his claim that a challenge for cause should have been
granted, when counsel did not make such a challenge. Webb, supra, at 112.
Counsel presented no competent evidence at the motion for new trial
hearing. Even the evidence offered as a bill of proof would not have been
admissible or relevant. The court did not abuse its discretion in refusing to grant a
new trial.
APPELLANTS POINT OF ERROR THREE
THE TRIAL COURTS ANSWER TO A JURY
NOTE INDICATING A DISPUTE WAS NOT
A FAIR AND REASONABLE RESPONSE.

STATE'S RESPONSE

31

THE TRIAL COURT PROVIDED THE JURY
WITH ALL TESTIMONY DIRECTLY
RELATED TO ITS REQUEST.
SUMMARY OF THE ARGUMENT
The jury sent out a note requesting certain specific testimony. The trial
court selected such testimony, then added other parts requested by the State and the
defense. Though the court refused a certain portion requested by the defense, the
court read to the jury all the testimony relevant to its specific request.
ARGUMENT
Standard of Review
The courts selection of testimony read back to jurors is reviewed under an
abuse of discretion standard. Brown v. State, 870 S.W.2d 53, 55 (Tex.Crim.App.
1994). If the jurors express a disagreement as to something a witness said, the
court may read to them that part of such witness testimony or the particular point
in dispute, and no other Tex.CodeCrim.Proc. Art. 36.28.
The Juror Request
The jurors sent out a note that read: Jurors have a dispute concerning the
testimony of AT&T expert, Ken Doll, regarding the possibility of a cell phone
connection between tower SX 3155 (Gallery Court) and the residence at 333
Rosemary Ave. (Supp.CR 223)
The Courts Read-Back

32

The trial court had an extensive discussion with the parties as to which
portions of the witnesss testimony to read back. (RR18 102-26) The court largely
granted requests by the State and the defense for additional testimony. It denied
only one defense request, as follows:
MR. DEGUERIN: We would re-urge the request that you start
the segment that includes Line 67 excuse me, Page 67, Line 4
through 68, Line 8, requested by the State, that you begin on Line 13
of Line [sic] 64 and read straight through.

THE COURT: All right. Thats denied.

MR. DEGUERIN: And the basis of it is that is for cross-
examination on the same subject, the possibility of a connection
between the cell phone tower that is 3155 and the address of 333
Rosemary.

THE COURT: All right. Well, in light of the way the question
was phrased, it was fairly specific. And although I understand that
generally it covers some of the issues, but its in very general terms,
and so I have narrowed that request to Page 67, Line 4 through Page
68 of Line 8, which covers the same issue but with more specificity,
based on the question that was presented by the jury. So your
objection is duly noted for the record and the request is denied.

(RR19 6) The trial court then read extensive portions of Mr. Dolls testimony to
the jurors. (RR19 7-15) This included both direct and cross-examination,
indicating that Appellants phone could not have been at his home on Rosemary at
the times when it pinged off the Gallery Court tower. (RR19 14-15) Some of the
read-back testimony made this answer ambiguous, though:
Q. Mr. Doll, a couple of things. What your technology is able
to tell you is that most likely and I think that was the words that you

33

used most likely if the record shows that a device pings off of a
sector of a cell phone tower, it most likely is within the sector served
by that cell phone tower?

A. Yes.

Q. Or in a neighboring sector, if its very close?

A. I dont think I said that, but

Q. Thats true, though, isnt it?

A. That is possible as we see on Rosemary, right.

Q. Well, if its possible on Rosemary, its possible anyplace,
isnt it?

A. Well, Im just saying that we see it on Rosemary, right?

(RR19 12-13)

The Denied Portion
All parties to the discussion referred to portions of testimony by their page
and line numbers in the court reporters daily transcript, which does not correspond
to the current reporters record. The defense did not read into the record the
portion of the testimony it was requesting. It is therefore impossible to determine
which precise section was requested and denied. Appellant has not set out any
particular portion of testimony in the point of error, either. Therefore nothing is
preserved for review.
Mr. DeGuerin may have been referring to his cross-examination of Mr. Doll
at pages 145-146 of RR8. This was a theoretical exchange, not referring to

34

Appellants phone:
Q. You cannot say to a certainty that a cell phone device was in
the sector indicated by the records on every occasion, can you?

A. On every occasion that we talked about?

Q. No. As a general principle, you cannot tell this jury that if
the record shows that a certain sector of a cell tower was pinged by a
cell device, that that cell device was in that sector beyond any
argument, can you?
A. No.

Q. And thats because depending on a number of variables, a
different cell tower or a different sector might service that activity?

A. Yes.

(RR8 145) When Mr. Doll named those variables that might cause this, though, (a
call from a high-rise or in a rural area) none of them applied to this specific case.
(RR8 146) This is why the trial court refused to read that portion. (RR19 6)
Law and Application
When a jury indicates a dispute, the trial court must read the portion of
testimony that is responsive to that question, and no other. Art. 36.28, supra. The
court in this case did so. The jurys question concerned the possibility of
Appellants cell phone pinging off the so-called Gallery Court tower while he was
at home on Rosemary. It asked about a particular cell phone and particular
locations in this case. The portion Appellant asked to have read referred to
theoretical possibilities based on facts not in this case. Every time the witness tried

35

to answer based on these particular facts, defense counsel interrupted to say he was
just asking about general principles, not the facts of the case. (RR8 145, 146) That
would not have been responsive to the jurys question.
A court does not abuse its discretion by refusing to read portions of
testimony not pertinent to jurors question. Robison v. State, 888 S.W.2d 473, 480-
81 (Tex.Crim.App. 1994); Barnett v. State, 847 S.W.2d 678, 678-679 (Tex.App.
Texarkana 1993, no pet.). This court did not abuse its discretion.
APPELLANTS POINT OF ERROR FOUR
THE STATE OBTAINED HISTORICAL
CELL SITE DATA ILLEGALLY IN
VIOLATION OF THE TEXAS CODE
OF CRIMINAL PROCEDURE ART. 18.21.

APPELLANTS POINT OF ERROR FIVE
THE STATE VIOLATED THE TEXAS
CODE OF CRIMINAL PROCEDURE
ARTICLE 38.23 WHEN IT OBTAINED
HISTORICAL CELL TOWER DATA
WITHOUT A WARRANT.

APPELLANTS POINT OF ERROR SIX
THE STATE VIOLATED ARTICLE I 9
OF THE TEXAS CONSTITUTION WHEN
IT OBTAINED HISTORICAL CELL SITE
DATA WITHOUT A WARRANT.

APPELLANTS POINT OF ERROR SEVEN
THE STATE VIOLATED 18 U.S.C. 2703 IN
OBTAINING CELL SITE DATA ILLEGALLY.

APPELLANTS POINT OF ERROR EIGHT
THE STATE VIOLATED THE FOURTH
AMENDMENT TO THE U.S. CONSTITUTION

36

WHEN IT OBTAINED HISTORICAL CELL
SITE DATA WITHOUT A WARRANT AND
WITHOUT PROBABLE CAUSE EFFECTING
AN UNREASONABLE SEARCH AND SEIZURE.

APPELLANTS POINT OF ERROR NINE
THE STATE VIOLATED THE FIRST
AMENDMENT TO THE U.S. CONSTITUTION
WHEN IT OBTAINED HISTORICAL CELL
SITE DATA WITHOUT A WARRANT
INFRINGING ON THE RIGHT OF FREE
ASSOCIATION IN VIOLATION OF THE
FIRST AMENDMENT TO THE CONSTITUTION.

STATE'S RESPONSE TO ALL
THE CELL SITE DATA WERE
PROBABLY OBTAINED THROUGH
COURT ORDER AUTHORIZED BY
STATUTE. APPELLANT HAD NO
REASONABLE EXPECTATION OF
PRIVACY IN SUCH PUBLIC
INFORMATION IN ANY RESPECT.
SUMMARY OF THE ARGUMENT
Appellants cell phone data records were properly obtained pursuant to
statute and with a court order. The request was reviewed by two district judges
and granted. Furthermore, obtaining these records did not constitute a search.
Appellant had no reasonable expectation of privacy in the data his cell phone freely
provided every time he used it.
Some of these claims were not preserved in the trial court.
ARGUMENT
Claims Not Preserved

37

Appellants written motion in the trial court relied exclusively on United
States v. Jones, 565 U.S. ___, 132 S.Ct. 945 (2012). Neither in his motion nor his
statements to the trial court did Appellant invoke the Texas Constitution, Art.
38.23, or any federal statute. Those claims have not been preserved for review.
R.APP.PRO. 33.1. Appellant argues federal law extensively in these claims, but
did not make those arguments to the trial court. They are not preserved. In fact,
Appellants arguments on appeal have very little to do with what he argued to the
trial court. Appellants brief at page 26 says that Appellant argued in the trial court
that the collection of the cell tower data violated a federal statute and the First and
Fourth Amendments to the U.S. Constitution. Appellant cites to RR4 22-28. But
one can scour those pages in vain for an instance of defense counsel citing any of
those provisions. The first two pages, in fact, are of the prosecutor arguing to the
court. Defense counsels only mention of 38.23 is its good faith exception (RR4
27), which he does not argue now on appeal.
Appellant has not preserved any of these claims, and they present nothing
for review.
Standard of Review
The trial court ruled on the legality of obtaining the records. The State
agrees that this Court should review that legal ruling de novo.
Law and Application

38

Appellant relied in the trial court, and continues to rely here, on United
States v. Jones, 132 S.Ct. (2012). In that case the United States Supreme Court
held that police attaching a GPS device to a suspects car to monitor his
movements constituted a search. Id. at 949. But that decision was based explicitly
on the fact that the government intruded onto the defendants personal property by
physically placing the device on his car. It is important to be clear about what
occurred in this case: The Government physically occupied private property for
the purpose of obtaining information. We have no doubt that such a physical
intrusion would have been considered a search within the meaning of the Fourth
Amendment when it was adopted. Id.
In this case, of course, there was no physical intrusion. Appellant kept his
cell phone continuously and police did not come onto his property to obtain the
records. Jones is inapplicable.
That leaves the traditional test for whether the Fourth Amendment has been
violated, whether the defendant had a reasonable expectation of privacy in the
place searched. Id. at 950, citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507,
19 L.Ed.2d 576 (1967). In this case Appellant had no reasonable expectation of
privacy in the records maintained by AT&T. United States v. Miller, 425 U.S. 435,
442, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976)(a person has no legitimate expectation of
privacy in records maintained by a third party company). He also had no

39

reasonable expectation of privacy in the information his phone automatically
produced every time he used it. He exposed that information to the public, just as
he exposed his image when he passed before the banks security cameras. A cell
phone user knows that his phone sends information to nearby towers. When he
willingly and regularly exposes his phone activities to a third party, the carrier, he
gives up Fourth Amendment protections. In re Application of the U.S. for
Historical Cell Site Data, 724 F.3d 600, 610, 613 (5
th
Cir. 2013).
In Application, the Fifth Circuit held that the governments obtaining this
cell tower data from the provider is not a search but rather a collection of business
records, which are owned by the provider, not the user of the cell phone. [T]hese
are the providers own records of transactions to which it is a party. 724 F.3d at
612.
The user may still expect that his conversation will be private. But his
location when he makes those calls is not, because he is freely providing it while
using the service. Communications content, such as the contents of letters, phone
calls, and emails, which are not directed to a business, but simply sent via that
business, are generally protected. However, addressing information, which the
business needs to route those communications appropriately and efficiently are
not. Id. at 611. The Fifth Circuit concluded that cell phone users voluntarily
convey information about their location to service providers when they make a

40

call. Id. at 612. Since the provider stores that information for its own purposes
rather than because the government demands it, the government can collect that
information like any other business record. Cell phone users know they are
providing this information and give up any reasonable expectation of privacy in it.
The Court of Criminal Appeals recently decided that a suspect retains a
reasonable expectation of privacy in the contents of his cell phone even after
having been arrested and having the phone seized. State v. Granville, ___ S.W.3d
___, No. PD-1095-12 (Tex.Crim.App. delivered February 26, 2014). But that was
based on the unique nature of the cell phone, which can receive, store, and
transmit an almost unlimited amount of private information. The potential for
invasion of privacy is enormous. Slip op. at 12-13.
But that refers to the contents stored and held within the phone. The
automatic location information that the phone sends out is more akin to the outside
of a cell phone, which is constantly exposed to public view. Granville held that
officers could have reasonably inspected the outside of appellants cell phone;
they could have tested it for fingerprints or DNA material because portions of the
cell phone are routinely exposed to the public. Id. at 24. The cell phones location
is also routinely exposed, every time a person uses it. Ford had no reasonable,
legitimate expectation of privacy in that information.
Statute and Court Order

41

The State obtained this information by use of court orders signed by district
judges (Supp. CR 189, 199), which the legislature has specifically authorized for
obtaining this type of information. Section 5(a) of Article 18.21 of the Code of
Criminal Procedure says, A court shall issue an order authorizing disclosure of
contents, records, or other information of a wire or electronic communication held
in electronic storage if the court determines that there is reasonable belief that the
information sought is relevant to a legitimate law enforcement inquiry. This
statute was revised but altered little in 2013, after the decision in Jones.
The application for the court order recited most of the facts known to police
up to that time. It said that Appellant left the party before the deceased and
claimed to have gone to bed and to sleep before midnight. (CR 183) However,
friends drove by his house and didnt see his car there. They also sent him texts to
which he didnt respond. A car matching his was seen driving in and out of the
deceaseds complex, and a man walked in. Fords phone records the detective had
already subpoenaed showed he had checked his voice mail at about 2:30 in the
morning, shortly after the figure on the video left the complex, at a time when
Appellant claimed to have been asleep.
This information provided a reasonable belief that the information was
relevant to a legitimate law enforcement inquiry. Police knew Appellant had
received texts and called his voice mail at a time when his whereabouts were in

42

question. The records would be relevant to that issue.
Appellant argues that the application is inadequate because it didnt state
that it provides reasonable grounds to believe that the facts will be relevant to a law
enforcement inquiry. But the statute doesnt require such an application to say that
the information is relevant; it only has to convince a judge that it provides such
reason to believe. Two impartial district judges reviewed these applications and
approved the request, signing orders. The records were obtained properly pursuant
to the statute. Appellants claim is without merit.
Reliance on Richardson v. State Misplaced
Appellant relies on Richardson v. State, 865 S.W.2d 944 (Tex.Crim.App.
1993), to argue that the Texas Constitution provides more protection than the
Fourth Amendment, and that this statute violates Art. I, 9 of the Texas
Constitution. But Richardson doesnt apply to this case for several reasons. First,
Appellant did not cite it or the Texas Constitution in the trial court, so has waived
this claim.
Second, Richardson concerned the use of a pen register, which like the GPS
device in Jones required a physical intrusion by police to obtain the phone
information. Id. at 946. Finally, Richardson doesnt have a clear holding, and
certainly not one that applies to this case. The majority opinion concludes, It
follows that the use of a pen register may well constitute a search under Article I,

43

9 of the Texas Constitution. The question remaining is whether such a search
would be unreasonable in the absence of probable cause. Id. at 953-54. But the
opinion remands the case to the court of appeals to answer that question.
In this case obtaining the records was not a search. Two impartial judges
decided that obtaining the information was reasonable. Richardson, which was not
argued to the trial court, does not apply.
Other Arguments
Appellant also argues that Art. 18.21, Sec. 5 authorizes access to stored
communications but not to cell phone location information such as was used in
this case. But the statute authorizes disclosure of contents, records, or other
information held in electronic storage, which would include the location data.
Furthermore, a related statute broadly defines electronic communication as
intelligence of any nature transmitted by the system. 18.21, Sec. 1(1), 18.20 Sec.
1(15). Location would certainly fall within that definition.
Conclusion
These business records were properly obtained pursuant to statute and court
order. Appellant voluntarily disclosed the information about his location. No one
forced him to take his phone along on his criminal enterprise. Obtaining the
records from a third party was not a search. The trial court did not abuse its
discretion in overruling Appellants motion to suppress this evidence.

44

APPELLANTS POINT OF ERROR TEN
THE SEARCH WARRANTS AFFIDAVIT
TO SEARCH FORDS HOME, TRUNK AND
DNA CONTAINS MATERIALLY FALSE
STATEMENTS AND OMISSIONS THAT
ELIMINATE PROBABLE CAUSE FOR
THE ILLEGAL SEARCHES.

APPELLANTS POINT OF ERROR ELEVEN
THE SEARCH WARRANTS AFFIDAVIT
TO SEARCH FORDS HOME, TRUNK AND
DNA CONTAINS MATERIALLY FALSE
STATEMENTS AND OMISSIONS THAT
ELIMINATE PROBABLE CAUSE FOR
THE ILLEGAL SEARCHES.

STATES RESPONSE TO BOTH
MINOR VARIATIONS IN THE OFFICERS
RECOUNTING OF WITNESS STATEMENTS
DID NOT ELIMINATE PROBABLE CAUSE.
SUMMARY OF THE ARGUMENT
Citing no authority, Appellant claims there was false information in the
affidavits used to obtain search warrants, and that without such information the
affidavits do not provide probable cause to issue the warrants. But the statements
are only minor variations on information witnesses gave to the detective. The
affidavits still provide probable cause.
ARGUMENT
Inadequate Briefing
For his primary claim, Appellant cites only Franks v. Delaware, 442 U.S.
928, 99 S.Ct. 2871, 61 L.Ed.2d 304 (1979), for the general proposition that the

45

searches were illegal, and does not argue how Franks might apply to this case.
Rule of Appellate Procedure 38.1(i) requires that arguments be supported by
appropriate citations to authorities. Appellants argument is not. It is
inadequately briefed, and the Court should not address it.
Standard of Review
A search warrant may issue only if a judge is presented with a signed
affidavit that establishes probable cause to believe that an offense has been
committed, that the items sought constitute evidence of that offense, and that the
items are located on a particular person or at a particular place. Art. 18.01(c),
V.A.C.C.P. Such affidavits should be read in a common sense manner. A
reviewing court should give great deference to a magistrates determination of
probable cause. Rodriguez v. State, 232 S.W.3d 55, 59 (Tex.Crim.App. 2007).
When a courts fact findings are based on demeanor and credibility, they are
accorded almost total deference. Guzman v. State, 955 S.W.2d 85, 59 (Tex.Crim.
App. 1997).
Facts
The trial court made findings of fact and conclusions of law on this issue.
The findings of fact included that Ford and the victim had recently broken up and
Ford was unhappy about it; that Ford claimed to have gone home and to sleep
before midnight; that when Melissa and Alan drove by his house later his vehicle

46

was not plainly visible and the house lights were off; that a vehicle matching
Fords was observed on videotape entering and exiting the victims condo
complex; that someone fitting Fords description including his clothing also
appears on the video walking into the complex; that the same figure exited the
complex and then the car matching Fords drives away; that phone records showed
Ford had checked his cell phone at 2:30 a.m., about twenty minutes after the male
figure left Gallery Court, and a time when Ford claimed to have been asleep; and
that male DNA was found on a bloody towel covering the victims face. (CR 666)
The court addressed minor discrepancies between the claims in the affidavit
and the witnesses recorded statements, such as what Alan Tarver said. The
affidavit said, Mr. Tarver stated he text messaged Ford, asking if he was going to
another party, Ford did not respond. (CR 666) This was true. Tarver texted
Appellant immediately before this asking why hed left Minors party, and
Appellant did respond, but he didnt respond to the question of whether he was
going to another party. Another discrepancy is that the search warrant said, Mr.
Tarver stated he turned into the [Appellants] residence and did not observe Fords
white Chevy Tahoe in the parking lot. (CR 667) His recorded statement said,
There were, like, a couple of cars parked in the church parking lot, but I dont
think, they were down by the door to the church, and I dont think one of them was
a Tahoe. In other words, he didnt see Appellants car. The court then found that

47

any misstatements in the affidavit by Detective Carrion were not made with
reckless disregard for the truth and were unintentional. The Court finds there was
still sufficient probable cause to support the issuance of the warrant. (CR 668)
The court further found that even after excising the false statements the affidavit
still established probable cause.
These rulings should be afforded great deference, and are supported by the
evidence.
Law and Application
The magistrates determination will be upheld as long as the magistrate had
a substantial basis for concluding the probable cause existed. State v. McClain,
337 S.W.3d 268, 271 (Tex.Crim.App. 2011). The facts that remain in the affidavit
include that Ford and the victim had recently broken up, that a car similar to his
drove into her condo complex near the time of her death, that after the car drove
out and turned toward the nearby shopping center a man walked into the complex
from that direction who matched Appellants clothing including the shirt he wore
to the party, that Appellant used his phone at a time he claimed to be asleep and
that was consistent with when the male figure left the condo complex, that friends
looked for his car and didnt see it at the time he claimed to be at home, and that
male DNA was found on the towel covering the victims face. Viewing all these
and the other accurate statements in the affidavit in a common sense fashion, they

48

provide probable cause to issue the search warrant. Franks requires preliminary
proof that statements in the affidavit were false and were made knowingly and
intentionally or with reckless disregard for the truth. Massey v. State, 933 S.W.2d
141, 146 (Tex.Crim.App. 1996). Appellant did not meet that threshold. The court
found otherwise, based on the testimony and demeanor of the police witness. The
discrepancies are so minor or nonexistent that they do not show a reckless
disregard for the truth. Appellant cites no authority to the contrary. The courts
findings and denial are supported by the evidence. This claim is without merit.
APPELLANTS POINT OF ERROR TWELVE
THE TRIAL COURT IMPROPERLY ADMITTED
SUPPOSED WEAPONS, A THREE-HOLE PUNCH
AND A CORDLESS ELECTRIC DRILL CHARGE
CORD IN EVIDENCE DEPRIVING FORD OF
A FAIR TRIAL.

STATES RESPONSE
THE ADMITTED ITEMS WERE VIRTUALLY
IDENTICAL TO ITEMS WITNESS TESTIMONY
IDENTIFIED AS BEING IN THE APARTMENT,
SO WERE PROPERLY ADMITTED AS
DEMONSTRATIVE EVIDENCE.
SUMMARY OF THE ARGUMENT
The three-hole punch was admitted without objection and presents nothing
for review. As for the cord, the victims mother testified it was identical to a cord
missing from the scene, which appeared likely to have been the murder weapon. It
was made clear to the jury that this was not the same cord, but was just like the

49

missing one. It was properly admitted.
ARGUMENT
Error Waived
When the three-hole punch was offered in evidence, Appellants lawyer
affirmatively said, No objection. (RR9 168) This waived any claim on appeal.
R.App.Pro. 33.1; Holmes v. State, 248 S.W.3d 194, 200 (Tex.Crim.App. 2008).
Standard of Review
As Appellant says, rulings on admission of evidence are reviewed under an
abuse of discretion standard. If the ruling was within the zone of reasonable
disagreement, it will be upheld on appeal. Green v. State, 934 S.W.2d 92, 102
(Tex.Crim.App. 1996).
Law and Application
Mrs. Edwards testified that when she cleaned out her daughters office (the
second bedroom), she discovered a charger for a portable drill and its charging
cord were missing. (RR9 193) She [Dana] had one and she bought her father one
just like it. This cord was identical to the one from the fathers charger. (RR9
194-95) When the cord was offered in evidence, the defense objected that it was
irrelevant and invites speculation. (RR9 196) The objection was overruled and
the item admitted. (RR9 197)
An item similar to a lost item is admissible if it will aid the jury in

50

determining an important issue in the trial. Johnson v. State, 919 S.W.2d 473, 477
(Tex.App.Fort Worth 1996, pet. refd.). See also, Robledo v. State, No. 04-08-
00586-CR (Tex.App.San Antonio 2009, pet. refd)(not designated for
publication)(same holding).
This piece of evidence did not invite speculation. The witness who was
familiar with both items said this cord was identical to the missing one. The
proponent made clear to the jury that this was not the ligature used to kill the
deceased, but was just like that missing item. The court did not abuse its discretion
in admitting the exhibit, especially over the objection that was made.
APPELLANTS POINT OF ERROR THIRTEEN
THE STATE ENGAGED IN IMPROPER
ARGUMENT IN ITS OPENING BY NAME
CALLING FORD A LIAR TWELVE TIMES
OVER SUSTAINED OBJECTIONS.

APPELLANTS POINT OF ERROR FOURTEEN
THE STATE ENGAGED IN IMPROPER
ARGUMENT IN ITS CLOSING BY BURDEN SHIFTING.

APPELLANTS POINT OF ERROR FIFTEEN
THE STATE ENGAGED IN IMPROPER
ARGUMENT BY COMMENTING ON
FORDS FAILURE TO TESTIFY.

STATES RESPONSE TO ALL THREE
FAILURE OF THE DEFENSE TO SEEK
EVIDENCE IT CLAIMS WOULD HAVE
BEEN BENEFICIAL IS A PROPER
SUBJECT OF FINAL ARGUMENT.
THE STATE WAS ENTITLED TO COMMENT
ON APPELLANTS FAILURE TO CLAIM

51

INNOCENCE WHEN HE HAD OPPORTUNITIES
TO DO SO PRIOR TO TRIAL AND DID NOT.
SUMMARY OF THE ARGUMENT
The prosecutor was saying the evidence would show that Appellant lied
about where he was at the time of the murder, which was true. Some of these
remarks were made without objection. The trial court instructed the jury to
disregard others, so there was no harm.
The State did not shift the burden of proof by pointing out the truth, which
was that the defense had as much power as the State to bring evidence before the
jury. Finally, the prosecutor did not comment on Appellants failure to testify.
She commented properly that he had never told his friends he didnt commit the
murder. That is a proper subject for argument.
ARGUMENT
The courts rulings are subject to an abuse of discretion standard.
1. Lying remarks
In opening statement, the prosecutor said repeatedly that Appellant lied
about where he was at the time of the murder. (RR6 22-26) Contrary to
Appellants assertion that he objected and was sustained every time, he did not.
The first time he objected, he didnt obtain a ruling. (RR6 22)The prosecutor later
said without objection, I expect that you will see that he is lying. And I expect
that the evidence will show that he is lying and that he has an answer for

52

everything. (RR6 23) Also, What he didnt count on was technology, and its
technology that reveals his lies didnt draw objection. (RR6 24)
Finally, the court instructed the jury that the purpose of opening statement
was not to argue the case, and the jury should disregard the arguments. (RR6 27)
First, these remarks did reflect what the prosecutor expected the evidence to
show, that Appellant had lied to police about where he was at the time of the
offense, about where his car was parked, about being asleep. This was a proper
opening statement. Only once did the prosecutor actually call Appellant a liar
(RR6 26), and the jury was instructed to disregard that.
In Gilcrease v. State, 32 S.W.3d 277, 279 (Tex.App.San Antonio 2000,
pet. refd), the prosecutor called the defendant a bastard. Although objection
was overruled, the prosecutor didnt use the term again, just as the prosecutor in
this case didnt use the term liar again. This Court held the argument was
improper, but didnt cause a wrongful verdict. The conviction was affirmed.
The prosecutor pointed out without objection that Appellant had lied to
police. Where the same evidence comes before a jury without objection, any error
is harmless. Leday v. State, 983 S.W.2d 713, 717-18 (Tex.Crim.App. 1998);
Hudson v. State, 675 S.W.2d 507, 511 (Tex.Crim.App. 1984).
Finally, it is presumed that a jury obeys a trial courts instruction to
disregard. Archie v. State, 340 S.W.3d 734, 741 (Tex.Crim.App. 2011).

53

2. Burden Shifting
In closing argument the prosecutor showed the jury clips of the crime scene,
then said, If not him, who? (RR18 82) She then added, I mean, theyre going to
tell you thats shifting the burden. Indeed that prompted the defense to object,
which was overruled. The prosecutor then amplified, Who? Theyve put on a
case. Theyve called witnesses. They they have certainly cross-examined.
Who? And you know what else Another objection was overruled, and the
prosecutor continued to explain that no evidence pointed to anyone other than Ford
as the killer. There was no forced entry and nothing stolen, suggesting the victim
knew her assailant. This was a proper summation of the evidence.
Summation of the evidence is a proper subject for jury argument. Freeman
v. State, 340 S.W.3d 717, 727 (Tex.Crim.App. 2011). The one case cited by
Appellant to say this was burden shifting is not on point. Dee v. State, 388 S.W.2d
946 (Tex.Crim.App. 1965), doesnt mention shifting of the burden of proof. This
argument merely pointed out the lack of credible evidence of any killer other than
Appellant. Jackson v. State, 17 S.W.3d 664, 674 (Tex.Crim.App. 2000); Baines v.
State, 401 S.W.3d 104, 109 (Tex.App.Houston [14
th
Dist.] 2011, no
pet.)(permissible for prosecutor to point out lack of evidence in defendants favor).
It was not improper.
3. Comment on Appellants Failure to Testify

54

The prosecutors argument was not a comment on Appellants failure to
testify at trial. Throughout trial, the defense had brought out evidence that the
rumor mill in Alamo Heights had been very active after Danas murder, which
somehow made police falsely suspicious of him. (RR7 57, etc.) The prosecutor
was addressing that claim: If theres if a rumor starts to generate, well, do
something to dispel it. How about say for once to somebody, I didnt do this! And
he has not said that one time to anyone. (RR18 90)
This was so obviously a comment about events before trial rather than
during it that the defense did not object. Because of this, this claim is waived. The
case Appellant cites that this claim can be raised in spite of lack of objection
predates Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996), which held
that failure to object waives any claim to improper jury argument. See also,
Valencia v. State, 946 S.W.2d 81, 82-3 (Tex.Crim.App. 1997)(failure to object
waives error; cases holding otherwise are overruled).
None of these claimed errors deprived Appellant of a fair trial.
APPELLANTS POINT OF ERROR SIXTEEN
THE TRIAL COURT ERRONEOUSLY
DENIED DEFENSE COUNSEL A CONTINUANCE
WHEN HE WAS SURPRISED BY ADVERSE
CELL TOWER TESTIMONY.

STATES RESPONSE
APPELLANT DID NOT FILE A
WRITTEN, SWORN MOTION AS
REQUIRED FOR THIS CLAIM.

55


SUMMARY OF THE ARGUMENT
Appellant claims his counsel was surprised by charts of cell phone usage the
State introduced at trial. But the defense had all the information in the charts
months before trial. The trial court was not required to believe his claim that the
witness had changed his testimony from what he had told counsel pre-trial.
Finally, Appellant now claims he needed time to find an expert to refute the
testimony, but he did not make that request to the trial court.
ARGUMENT
Article 29.03 of the Code of Criminal Procedure requires a written, sworn
motion for continuance to preserve the error Appellant now claims. Blackshear v.
State, 385 S.W.3d 589, 591 (Tex.Crim.App. 2012). The motion must be sworn. Id.
There is no due process exception to his requirement, as Appellant now claims. Id.
This Court has previously recognized that a written motion is required to
preserve this error for appeal. Jiminez v. State, 307 S.W.3d 325, 331 (Tex.App.
San Antonio 2009, pet. refd). The case cited by Appellant for this proposition has
been overruled by this line of cases.
There is no merit to Appellants claim in any event. The defense had the
evidence on which the States experts testimony was based. Appellant cross-
examined the witness adequately. His request for time to find a competing expert
was not made until after trial, long after the courts ruling.

56

This unpreserved claim is without merit and should be overruled.
APPELLANTS POINT OF ERROR SEVENTEEN
THE TRIAL COURT ERRED BY DENYING
THE APPELLANTS MOTION FOR
INDEPENDENT EXAMINATION OF DNA
EVIDENCE DENYING FORD HIS RIGHT
TO DUE PROCESS.

STATES RESPONSE
THE DEFENSE PRESENTED NO EVIDENCE
IN SUPPORT OF ITS REQUEST, SO IT WAS
PROPERLY DENIED BY THE COURT.
SUMMARY OF THE ARGUMENT
Though Appellant did file a motion requesting DNA testing of hair and
fibers, the motion was not presented to the trial court and the court did not rule on
it. Appellant presented nothing in support of the motion. This claim is not
preserved, and the court did not abuse its discretion.
ARGUMENT
The record shows that a motion to test DNA evidence was filed March 14,
2012, before the May hearing on Appellants motion for new trial. However, the
proposed order attached to the motion is unsigned and doesnt contain a ruling by
the court. (CR 51) This motion was not presented to the court during the hearing,
and Appellant never asked the court to rule on it. To preserve a complaint for
appeal, an appellant must have made that complaint to the trial court and obtained
a ruling. R.App.Pro. 33.1. Appellant did not. This claim presents nothing to

57

review.
Appellant attempts to rely on McBride v. State, 838 S.W.2d 248 (Tex.Crim.
App. 1992), which in turn relies on Art. 39.14, V.A.C.C.P. The case cites that
statute as saying that the court in which an action is pending may order the
State before or during the trial of a criminal action Id. at 250. Appellants
motion, made after trial was over, was untimely.
This unpreserved claim is without merit.
APPELLANTS POINT OF ERROR EIGHTEEN
THE TRIAL COURT ABUSED ITS
DISCRETION EXCLUDING THE EVIDENCE
OF A BREAK-IN AT DANA CLAIR EDWARDS
PARENTS HOME ON 12/30/2008.

STATES RESPONSE
THERE WAS NO EVIDENCE THIS EVENT
WAS RELATED TO THE MURDER ON
TRIAL, SO THE COURT PROPERLY
EXCLUDED IT AS IRRELEVANT.
SUMMARY OF THE ARGUMENT
Appellant wanted to put on evidence that the day before Danas murder, her
familys ranch house in Gillespie County was burglarized. Appellant pointed out
that these events were close in time and to the same familys properties, but
showed no other relevance. He did not suggest that another perpetrator may have
committed both crimes. In fact, Ford himself was the only suspect in the
extraneous burglary. This offense was irrelevant and properly excluded.

58

Appellant has shown no harm from that denial.
ARGUMENT
A trial courts ruling excluding evidence is reviewed under an abuse of
discretion standard. Appellant proffered that an unknown person had broken into
Mr. and Mrs. Edwards ranch house and taken a knife. There was no sign of
forced entry. This happened December 30
th
, a day or two before Danas murder.
This burglary remained unsolved by the time of trial, though Danas parents had
accused Appellant of committing it. (RR9 10-11)
But Appellant showed no connection between the two events. He theorized
that they may have had a common perpetrator, but offered no evidence that was
someone other than Appellant. The extraneous offense was irrelevant. The trial
court properly excluded it under Rule of Evidence 403.
In Wiley v. State, 74 S.W.3d 399 (Tex.Crim.App. 2002), the defendant was
accused of setting fire to his failing restaurant. He sought to offer proof that a
mentally disabled man had been hanging around the restaurant, and had been
lighting matches. But the Court of Criminal Appeals held this evidence was
properly excluded. It is not sufficient for a defendant merely to offer up
unsupported speculation that another person may have done the crime. Such
speculative blaming intensifies the grave risk of jury confusion, and it invites the
jury to render its findings based on emotion or prejudice. Id. at 407. In this case,

59

Appellant showed even less relevance, not even suggesting that another person
committed the extraneous offense.
The trial court properly balanced the very weak probative value of this
evidence against its potential prejudicial effect, and did not abuse its discretion in
excluding it. Id. at 408. This point is without merit.
Appellant has presented no claim showing he received anything less than a
fair trial. All his points are without merit and should be overruled.
PRAYER FOR RELIEF
The State prays that this Court will affirm the judgment of the trial court.
Respectfully submitted,
SUSAN D. REED
Criminal District Attorney
Bexar County, Texas

______________________________
JAY BRANDON
Assistant Criminal District Attorney
Bexar County, Texas
101 West Nueva, 3
rd
Floor
San Antonio, Texas 78204
(210) 335-2418
State Bar No. 02880500
jay.brandon@bexar.org

Attorneys for the State



Jay Brandon

60

CERTIFICATE OF COMPLIANCE
I certify, in accordance with Rule 9.4 of the Texas Rules of Appellate Procedure
that this document contains 12,640 words.
_____________________________
JAY BRANDON

CERTIFICATE OF SERVICE
I certify that a copy of the foregoing brief was sent by first-class mail to
Cynthia E. Orr, Attorney for Appellant, 310 S.St. Marys, 29
th
floor, San Antonio,
Texas 78205, on the 21st

day of March, 2014.

___________________________
JAY BRANDON
Jay Brandon
Jay Brandon