Brief for Appellant, Ford v. Texas (January 14, 2014)

8/12/2019 Brief for Appellant, Ford v. Texas (January 14, 2014)

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No. 04-12-00317-CR

COURT OF APPEALS

IN THE FOURTH JUDICIAL DISTRICT

SAN ANTONIO, TEXAS

JON THOMAS FORD,

Appellant, Appeal from the

186th

Judicial District Court

versus of Bexar County, Texas

Cause No. 2010-CR-7741

THE STATE OF TEXAS,

Appellee.

BRIEF FOR APPELLANT

ORAL ARGUMENT REQUESTED

CYNTHIA E. ORR

Bar No. 15313350

GOLDSTEIN, GOLDSTEIN & HILLEY

310 S. St. Marys St.

29th

Floor Tower Life Building

San Antonio, Texas 78205

210-226-1463

210-226-8367 facsimile

E-mail: [email protected]

AC

04-12-0

FOURTH COURT OF

SAN ANTONI

1/14/2014 3:

KEITH

FILED IN4th COURT OF APPEALS SAN ANTONIO, TEXAS

01/14/2014 3:09:07 PM KEITH E. HOTTLE Clerk


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PARTIES TO THE CASE

The parties to this case are as follows:

Representing the State of Texas, at Trial:

Susan D. Reed

District Attorney

Catherine Babbitt

L. Katherine Cunningham

Kirsta Leeberg Melton

Assistant District Attorneys

Paul Elizondo Tower

101 West Nueva, Fourth Floor


Representing the State of Texas, on Appeal:

Susan D. Reed

District Attorney

Paul Elizondo Tower

101 West Nueva, Fourth Floor


Representing Jon Thomas Ford, Defendant, at Trial:

Dick DeGuerin

Todd Ward

DeGuerin & Dickson

1018 Preston Ave. Seventh Floor

Houston, Texas 77002


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Representing Jon Thomas Ford, Defendant, on the Motion for New Trial:

Cynthia E. Orr

Donald H. Flanary, III

Goldstein, Goldstein & Hilley310 S. St. Marys St.

29thFloor Tower Life Bldg.


Representing Jon Thomas Ford, Appellant, on Appeal:

Cynthia E. Orr

Goldstein, Goldstein & Hilley

310 S. St. Marys St.

29thFloor Tower Life BuildingSan Antonio, Texas 78205

The Honorable MARIA TESSA HERR, presided at trial in the 186th

Judicial

District Court, Bexar County, San Antonio, Texas.


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TABLE OF CONTENTS

Parties to the Case .................................................................................................... ii

Table of Authorities ............................................................................................... viii

Request for Oral Argument ................................................................................... xiii

Statement of the Case ............................................................................................. xiv

Statement of the Issues ........................................................................................... xiv

Statement of Facts ..................................................................................................... 1

Summary of the Argument ........................................................................................ 1

POINT OF ERROR NUMBER 1: The Evidence is Legally Insufficient (CR346;

6R136; 7R110, 191; 8R19; 11R91-93; 12R68-74; 15R50-51, 53, 151; 17R145,

149, 160;passim). Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d

560 (1979). ................................................................................................................ 2

POINT OF ERROR NUMBER 2: The Trial Court Abused its Discretion When it

Denied Fords Motion for New Trial (21R16). Jones v. State, 711 S.W.2d 35 (Tex.

Crim. App. 1986) ..................................................................................................... 17

POINT OF ERROR NUMBER 3: The Trial Courts Answer to a Jury Note

Indicating a Dispute, Was Not a Fair and Reasonable Response. Texas Code of

Criminal Procedure art. 36.28 (SCR223; 8R145-146; 18R91-127; 19R7-15, 18).

Brown v. State, 870 S.W.2d 53 (Tex. Crim. App. 1994) ......................................... 22

POINT OF ERROR NUMBER 4: The State Obtained Historical Cell Site Data

Illegally in Violation of the Texas Code of Criminal Procedure art. 18.21

(SCR177(5), CR17678, 341-344, 627-632; SCR176-180, 190; 4R13-14, 19-20,

2728; 18R21). Texas Code of Criminal Procedure art. 18.21 ............................... 25


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POINT OF ERROR NUMBER 5: The State Violated the Texas Code of Criminal

Procedure Article 38.23 when it Obtained Historical Cell Tower Data Without a

Warrant. (SCR17678; 4CR2228). Texas Code of Criminal Procedure art. 38.23.

................................................................................................................................. 25

POINT OF ERROR NUMBER 6: The State Violated Article I 9 of the Texas

Constitution when it Obtained Historical Cell Site Data Without a Warrant.

(4R13). Tex. Const. Article I, 9. Richardson v. State, 865 S.W.2d 944 (Tex.

Crim. App. 1993). .................................................................................................... 25

POINT OF ERROR NUMBER 7: The State Violated 18 U.S.C. 2703 in

Obtaining Historical Cell Site Data Illegally. (4R13). 18 U.S.C. 2703 et seq. ...25

POINT OF ERROR NUMBER 8: The State Violated the Fourth Amendment to

the United States Constitution when it Obtained Historical Cell Site Data Withouta Warrant and Without Probable Cause Effecting an Unreasonable Search and

Seizure. (SCR17677, 4R2228). Fourth Amendment to the United States

Constitution; United States v. Jones, 565 U.S. ___, 132 S.Ct. 945, 181 L.Ed.2d 911

(2012) ...................................................................................................................... 25

POINT OF ERROR NUMBER 9: The State Violated the First Amendment to the

United States 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 United States Constitution. (SCR17677, 4R15, 2228). UnitedStates v. Jones, 565 U.S. ___, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) .................. 26

POINT OF ERROR NUMBER 10: 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. (SCR93-95,

102-103, 125, 665-666; 2R60-61; 3R7-9, 17; 6R23-25, 37, 135-136; 7R110, 191;

11R92-93, 151-152, 230; 12R88-89; 14R150-151; 15R53-55, 182; SX132A-B).

Cates v. State, 120 S.W.3d 352 (Tex. Crim. App. 2003) ........................................ 38


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Omissions That Eliminate Probable Cause for the Illegal Searches. (SCR93-95,

102-103, 125, 665-666; 2R60-61; 3R7-9, 17; 6R23-25, 37, 135-136; 7R110, 191;

11R92-93, 151-152, 230; 12R88-89; 14R150-151; 15R53-55, 182; SX132A-B).Franks v. Delaware, 442 U.S. 928, 99 S.Ct. 2871, 61 L.Ed.2d 304 (1979) ............ 38

POINT OF ERROR NUMBER 12: 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. (CR390, SCR101; 9R164-168,

191-192, 194-197; 14R75, 178, 191; 18R79; SX47, 58, 66, 210, 223). Texas Rules

of Evidence 401 and 602 and Simmons v. State, 622 S.W.2d 111 (Tex. Crim. App.

1981) ........................................................................................................................ 45

POINT OF ERROR NUMBER 13: The State Engaged in Improper Argument inits Opening by Name Calling Ford a Liar Twelve Times Over Sustained

Objections (CR620; 18R66, 90). Gilcrease v. State, 32 S.W.3d 277, 279 (Tex.

App.San Antonio 2000, pet refd.) ...................................................................... 49

POINT OF ERROR NUMBER 14: The State Engaged in Improper Argument in

its Closing by Burden Shifting (CR620; 18R66, 90). Gilcrease v. State, 32 S.W.3d

277, 279 (Tex. App.San Antonio 2000, pet refd.) .............................................. 49

POINT OF ERROR NUMBER 15: The State Engaged in Improper Argument byCommenting on Fords Failure to Testify (CR620; 18R66, 90). Gilcrease v. State,

32 S.W.3d 277, 279 (Tex. App.San Antonio 2000, pet refd.) ............................ 49

POINT OF ERROR NUMBER 16: The Trial Court Erroneously Denied Defense

Counsel a Continuance When He was Surprised by Adverse Cell Tower Testimony

(SCR553-557, 559-560, 673; 8R99-102, 130-132, 149, 176-177; 18R20; 20R5;

SX22-30). ORarden v. State, 777 S.W.2d 455 (Tex. App.- Dallas 1989) ............ 51

POINT OF ERROR NUMBER 17: The Trial Court Erred by Denying the

Appellants Motion for Independent Examination of DNA Evidence Denying FordHis Right to Due Process (CR49-51, 65-66, 149, 618; SCR222-223, 644-645;

3R17; 5R110; 6R24). Texas Code of Criminal Procedure art. 39.14(a); McBride v.

State, 838 S.W.2d 248, 251 (Tex. Crim. App. 1992) .............................................. 56


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POINT OF ERROR NUMBER 18: The Trial Court Abused its Discretion

Excluding the Evidence of a Break-In at Dana Clair Edwards Parents Home On

12/30/2008. (9R10, 17). Wiley v. State, 745 S.W.3d 399 (Tex. Crim. App. 2002).

................................................................................................................................. 59

Prayer ....................................................................................................................... 60

Certificate of Compliance ........................................................................................ 61

Certificate of Service ............................................................................................... 62


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TABLE OF AUTHORITIES

Cases:

Baptist Vie Le v. State, 993 S.W.2d 650 (Tex. Crim. App. 1999) ........................... 29

Barfield v. State, __ S.W.3d __, 2013 Tex. App. Lexis 13493 (Tex. App.

Houston [14th Dist.] 2013) ...................................................................................... 27

Brooksv. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ........................................ 2

Brown v. State, 870 S.W.2d 53 (Tex. Crim. App. 1994) .................................. xiv, 22

Carlise v. State, 549 S.W.2d 698 (Tex. Crim. App. 1977) ..................................... 19

Carter v. State, 510 S.W.2d 323 (Tex. Crim. App. 1974) ....................................... 58

Cates v. State, 120 S.W.3d 352 (Tex. Crim. App. 2003) ............................ xv, 38, 43

Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) .......... 56

Cranfil v. State, 525 S.W.2d 518 (Tex. Crim. App. 1975) ...................................... 58

Dee v. State, 388 S.W.2d 946 (Tex. Crim. App. 1965) ........................................... 51

Ex parte Hobbs, 393 S.W.3d 780 (Tex. Crim. App. 2013).......................................6

Ex parte Jackson, 96 U.S. 727, 24 L.Ed. 877, 6 Otto 727 (1877) ........................... 35

Ex parte Turner, 394 S.W.3d 513 (Tex. Crim. App. 2013)......................................6

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

........................................................................................................ xvi, 18, 38, 39, 42

Gandy v. State of Alabama, 569 F.2d 1318 (5th Cir. 1978) .................................... 51


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

.......................................................................................................................... xvi, 49

Gross v. State, 380 S.W.3d 181 (Tex. Crim. App. 2012) .......................................... 2

Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) ........................................... 2

In Re: Applications of the United States of America for Historical Cell-site Data,

724 F.3d 600 (5th Cir. 2013) ................................................................................... 36

In Re: Applications of the United States for an Order Auth. the Release of Hist.

Cell-Site Info., 809 F. Supp.2d 113 (E.D.N.Y. 2011) ............................................. 37

In Re: App. of the United States for an Order Directing a Provider of Elec.

Commcn. Serv. to Disclose Records to the Govt., 620 F.3d 304 (3d Cir. 2010) ....................................................................................................................................... 36

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

Jimenez v. State, 32 S.W.3d 233 (Tex. Crim. App. 2000) ...................................... 46

Johnson v. State, 784 S.W.2d 413 (Tex. Crim. App. 1990) .................................... 58

Jones v. State, 706 S.W.2d 664 (Tex. Crim. App. 1986) ........................................ 22

Jones v. State, 711 S.W.2d 35, 37 (Tex. Crim. App. 1986) .............................xiv, 17

Jordan v. State, 36 S.W.3d 871 (Tex. Crim. App. 2001) ........................................ 58

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

........................................................................................................................... 32-35

Landry v. State, 879 S.W.2d 194 (Tex. App.-Houston [14th

Dist.] 1994) ............... 20

Madrigal v. State, 347 S.W.3d 809 (Tex. App.Corpus Christi 2011, pet. refd.) ...

................................................................................................................................. 48


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Mann v. State, 718 S.W.2d 741 (Tex. Crim. App. 1986) ........................................ 60

McBride v. State, 838 S.W.2d 248 (Tex. Crim. App. 1992) .................... xvii, 56, 64

McKee v. State, 2012 Tex. App. Lexis 2421 (Tex. App.-Dallas 2012) ................... 27

Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) ............................. 46

ORarden v. State, 777 S.W.2d 455 (Tex. App.- Dallas 1989, pet. refd.) ...... xvi, 51

Richardson v. State, 865 S.W.2d 944 (Tex. Crim. App. 1993) ............. xv, 25, 32, 37

Roberts v. State, 489 S.W.2d 893 (Tex. Crim. App. 1972) ..................................... 16

Robinson v. State, 368 S.W.3d 588 (Tex. App.-Austin 2012) ................................ 27

Rodriguez v. State, 646 S.W.2d 539 (Tex. App.Houston [1st Dist.] 1982) ......... 50

Saenz v. State, 2011 Tex. App. Lexis 1156 (Tex. App.-Corpus Christi 2011)

[unpublished] ......................................................................................... 27, Appendix

Sambrano v. State, 754 S.W.2d 768 (Tex. App.-San Antonio 1988, no pet.) ......... 19

Simmons v. State, 622 S.W.2d 111 (Tex. Crim. App. 1981) ................................... 45

Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) ..................

........................................................................................................ xvi, 32, 35, 37, 39

Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965).................. 38

State v. Holloway, 360 S.W.3d 480 (Tex. Crim. App. 2012) .................................. 57

State v. Vasilas, 187 S.W.3d 486 (Tex. Crim. App. 2006) ...................................... 30

Turro v. State, 950 S.W.2d 390 (Tex. App.Fort Worth 1997, pet. refd) ............ 48


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United States v. Jones, 565 U.S. ___, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) ..........

......................................................................................................... xv, 26, 32-34, 38

United States v. New York Tel. Co., 434 U.S. 159, 98 S.Ct. 364, 54 L.Ed.2d 376(1977) ...................................................................................................................... 35

United States v. Warshak, 631 F.3d 266 (6th Cir. 2010) ......................................... 32

Von January v. State, 576 S.W.2d 43 (Tex. Crim. App. 1978) ............................... 20

Wall v. State, 184 S.W.3d 730 (Tex. Crim. App. 2006) .......................................... 27

Wiley v. State, 74 S.W.3d 399 (Tex. Crim. App. 2002) ............................ xvii, 59-60

Wilson v. State, 195 S.W.3d 193 (Tex. App.-San Antonio 2006) ........................... 27

York v. State, 73 S.W.2d 538 (Tex. Crim. App. 1934) ............................................ 50

Rules and Statutes:

First Amendment to the United States Constitution ........................ xv, 26, 31, 37, 38

Fourth Amendment to the United States Constitution ............... xv, 25-26, 31-32, 35

Fifth Amendment to the United States Constitution ............................................... 33

18 U.S.C. 2703 .............................................................................. xv, 25-26, 28-30

18 U.S.C. 2704 ..................................................................................................... 28

47 U.S.C. 1002(a)(2)(B) ................................................................................. 30-31

Art. 1 9 of the Texas Constitution .................................................................passim

Art. 18.20 of the Texas Code of Criminal Procedure ........................................ 29-30


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Art. 18.21 of the Texas Code of Criminal Procedure ...................... xiv, 25-26, 28-30

Art. 36.28 of the Texas Code of Criminal Procedure ....................................... xiv, 22

Art. 38.23 of the Texas Code of Criminal Procedure ............................ xv, 25-26, 29

Art. 39.14 of the Texas Code of Criminal Procedure ..................................... xvii, 56

Chapter 64 of the Texas Code of Criminal Procedure ...................................... 57-58

Rule 39.1 of the Texas Rules of Appellate Procedure ........................................... xiii

Rule 401 of the Texas Rules of Evidence .................................................. xvi, 45, 48

Rule 602 of the Texas Rules of Evidence .................................................. xvi, 45, 47

Texas Government Code 311.023 ........................................................................ 29

Other:

Who Knows Where Youve Been? Privacy Concerns Regarding the Use of

Cellular Phones as Personal Locators, 18 HARV.J.L.&TECH. 307, 313 (2004) .. 34

Jennifer King & Chris Jay Hoofnagle, A Supermajority of Californians SupportsLimits on Law Enforcement Access to Cell Phone Location Information, 89,

(2008) ...................................................................................................................... 34


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No. 04-12-00317-CR

COURT OF APPEALS

IN THE FOURTH JUDICIAL DISTRICT

SAN ANTONIO, TEXAS

JON THOMAS FORD,

Appellant, Appeal from the

186th

Judicial District Court

versus of Bexar County, Texas

Cause No. 2010-CR-7741

THE STATE OF TEXAS,

Appellee.

BRIEF FOR APPELLANT, JON THOMAS FORD

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS, FOURTH

JUDICIAL DISTRICT:

Appellant, JON THOMAS FORD, by and through undersigned counsel,

respectfully submits this, his brief, and seeks that his conviction be reversed and

the judgment of the trial Court rendered, or in the alternative, that he be granted a

new trial.

REQUEST FOR ORAL ARGUMENT

Appellant, JON THOMAS FORD, requests oral argument in this case

pursuant to Rule 39.1 of the Texas Rules of Appellate Procedure.


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STATEMENT OF THE CASE

Appellant, JON THOMAS FORD (hereinafter Ford), was convicted in the

186th Judicial District Court of murder and sentenced by a jury to forty (40) years

imprisonment on February 24, 2012. 1CR23, 19RR89. A Second Amended

Motion for New Trial was timely filed on March 23, 2012, 1CR345-369; and the

Exhibits at 1CR370-649. The Motion for New Trial was denied after a hearing and

Fords Notice of Appeal was filed in a timely manner on May 23, 2012. 1CR709-

710.

STATEMENT OF THE ISSUES

POINT OF ERROR NUMBER 1: The Evidence is Legally Insufficient

(CR346; 6R136;7R110, 191; 8R19; 11R91-93; 12R68-74; 15R50-51, 53, 151;

17R145, 149, 160;passim). Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979).

POINT OF ERROR NUMBER 2: The Trial Court Abused its DiscretionWhen it Denied Fords Motion for New Trial (21R16). Jones v. State, 711

S.W.2d 35 (Tex. Crim. App. 1986).


Indicating a Dispute, Was Not a Fair and Reasonable Response. Texas Code

of Criminal Procedure art. 36.28 (SCR223; 8R145-146; 18R91-127; 19R7-15,

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

POINT OF ERROR NUMBER 4: The State Obtained Historical Cell Site

Data Illegally in Violation of the Texas Code of Criminal Procedure art. 18.21(SCR177(5), CR17678, 341-344, 627-632; SCR176-180, 190; 4R13-14, 19-20,

2728; 18R21). Texas Code of Criminal Procedure art. 18.21.


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POINT OF ERROR NUMBER 5: The State Violated the Texas Code of

Criminal Procedure Article 38.23 when it Obtained Historical Cell Tower

Data Without a Warrant. (SCR17678; 4CR2228). Texas Code of Criminal

Procedure art. 38.23.

POINT OF ERROR NUMBER 6: The State Violated Article I 9 of the Texas

Constitution when it Obtained Historical Cell Site Data Without a Warrant.

(4R13).1Tex. Const. Article I, 9. Richardson v. State, 865 S.W.2d 944 (Tex.

Crim. App. 1993).


Obtaining Historical Cell Site Data Illegally. (4R13). 18 U.S.C. 2703 et seq.

POINT OF ERROR NUMBER 8: The State Violated the Fourth Amendmentto the United States Constitution when it Obtained Historical Cell Site Data

Without a Warrant and Without Probable Cause Effecting an Unreasonable

Search and Seizure. (SCR17677, 4R2228). Fourth Amendment to the

United States Constitution; United States v. Jones, 565 U.S. ___, 132 S.Ct. 945,

181 L.Ed.2d 911 (2012).

POINT OF ERROR NUMBER 9: The State Violated the First Amendment to

the United States Constitution when it Obtained Historical Cell site Data

Without a Warrant Infringing on the Right of Free Association in Violation ofthe First Amendment to the United States Constitution. (SCR17677, 4R15,

2228). United States v. Jones, 565 U.S. ___, 132 S.Ct. 945, 181 L.Ed.2d 911

(2012).



Omissions That Eliminate Probable Cause for the Illegal Searches. (SCR93-

95, 102-103, 125, 665-666; 2R60-61; 3R7-9, 17; 6R23-25, 37, 135-136; 7R110,

191; 11R92-93, 151-152, 230; 12R88-89; 14R150-151; 15R53-55, 182; SX132A-

B). Cates v. State, 120 S.W.3d 352 (Tex. Crim. App. 2003).

1That application and order does not comply with Texas law much information that is stored

that should be confidential and should require an adequate warrant in order to obtain. 4R13.


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Omissions That Eliminate Probable Cause for the Illegal Searches. (SCR93-

95, 102-103, 125, 665-666; 2R60-61; 3R7-9, 17; 6R23-25, 37, 135-136; 7R110,

191; 11R92-93, 151-152, 230; 12R88-89; 14R150-151; 15R53-55, 182; SX132A-

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

POINT OF ERROR NUMBER 12: The Court Improperly Admitted

Supposed Weapons, a Three-Hole Punch and a Cordless Electric Drill Charge

Cord in Evidence Depriving Ford of a Fair Trial. (CR390, SCR101; 9R164-

168, 191-192, 194-197; 14R75, 178, 191; 18R79; SX47, 58, 66, 210, 223). Texas

Rules of Evidence 401 and 602 and Simmons v. State, 622 S.W.2d 111 (Tex.

Crim. App. 1981).

POINT OF ERROR NUMBER 13: The State Engaged in Improper Argument

in its Opening by Name Calling Ford a Liar Twelve Times Over Sustained

Objections (CR620; 18R66, 90). Gilcrease v. State, 32 S.W.3d 277, 279 (Tex.

App.San Antonio 2000, pet refd.).


in its Closing by Burden Shifting (CR620; 18R66, 90). Gilcrease v. State, 32

S.W.3d 277, 279 (Tex. App.San Antonio 2000, pet refd.).


by Commenting on Fords Failure to Testify (CR620; 18R66, 90). Gilcrease v.

State, 32 S.W.3d 277, 279 (Tex. App.San Antonio 2000, pet refd.).

POINT OF ERROR NUMBER 16: The Trial Court Erroneously Denied

Defense Counsel a Continuance When He was Surprised by Adverse Cell

Tower Testimony (SCR553-557, 559-560, 673; 8R99-102, 130-132, 149, 176-

177; 18R20; 20R5; SX22-30). ORarden v. State, 777 S.W.2d 455 (Tex. App.-

Dallas 1989).


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POINT OF ERROR NUMBER 17: The Trial Court Erred by Denying the

Appellants Motion for Independent Examination of DNA Evidence Denying

Ford His Right to Due Process (CR49-51, 65-66, 149, 618; SCR222-223, 644-

645; 3R17; 5R110; 6R24). Texas Code of Criminal Procedure art. 39.14(a);

McBride v. State, 838 S.W.2d 248, 251 (Tex. Crim. App. 1992).


Excluding the Evidence of a Break-In at Dana Clair Edwards Parents Home

On 12/30/2008. (9R10, 17). Wiley v. State, 745 S.W.3d 399 (Tex. Crim. App.

2002).


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STATEMENT OF FACTS

Since Appellant Ford raises a sufficiency of the evidence claim, the salient

facts will be contained within each Point of Error below.

SUMMARY OF ARGUMENT

Fords trial was an emotionally charged affair in which the State used

improper argument, burden shifting, and non-probative evidence obtained by

illegal means to secure a conviction. Without a warrant, it obtained historical cell

tower data (hereinafter HCD) insisting it could pinpoint the location of Ford at

an address and time. Det. Carrion, mischaracterized his own interviews with

witnesses and a banks video surveillance of the Gallery Court cul-de-sac, where

Dana Clair Edwards (hereinafter DE) lived, to obtain a search warrant for Fords

DNA, his home and truck. This search netted no evidence of Fords guilt. In

addition to the evidence being legally insufficient, a juror lied about his knowledge

of cell towers and the jury was also misled by the States argument, its expert

witness, and the trial Courts answer to a jury note, that was not a fair and

reasonable response to the jurys question expressing its confusion about the HCD.

The trial Court also erred in admitting irrelevant objects, concocted murder

weapons (a three hole punch and an electric drill charging cord) that were obtained

by the decedents family by purchase and from their own belongings; not from the

crime scene. Nothing tied these objects to the commission of the offense. The State


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also engaged in burden shifting. The trial Court also abused its discretion by

denying the motion for new trial, since newly discovered evidence demonstrated

Fords innocence, and there was juror misconduct. And, the trial Court erred by

refusing to grant Fords motion to test DNA evidence in his motion for new trial.

ARGUMENT AND AUTHORITIES

POINT OF ERROR NUMBER 1: The Evidence is Legally Insufficient

(CR346;26R136;7R110, 191; 8R19; 11R91-93; 12R68-74; 15R50-51, 53, 151;

17R145, 149, 160;passim). Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979).

This Court determines whether evidence is sufficient by reviewing it in the

light most favorable to the verdict to determine whether a rational juror could have

found the essential elements beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Brooksv. State, 323 S.W.3d 893

(Tex. Crim. App. 2010). Also, the rational juror is not permitted to draw

conclusions based on speculation. Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim.

App. 2007). Speculation may not seem entirely unreasonable, but it is not

sufficiently based on facts or evidence to support a conviction beyond a reasonable

doubt. Gross v. State, 380 S.W.3d 181, 188 (Tex. Crim. App. 2012). Ford moved

for a directed verdict at the close of the case. 15R151.

Ford rarely loses his temper, even when provoked. 17R145. He prefers an

2 CR denotes Clerks Record; SCR denotes Supplemental Clerks Record; R denotes

Reporters Record.


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active social life and friends date back to his childhood. Id. He is also pragmatic

and is not known to argue or confront others. 17R149. His friends describe him as

kind and peaceful and maintain he has been that way his entire life. 17R160. In

fact, his kindness is an established part of his identity.Id.

The States theory alleged that Ford flew into a rage following a game at a

New Years Eve (NYE) party, maintaining it for an hour while waiting for DE to

return home afterward. 12R68-74. State claimed Ford waited for DE, remaining

unseen by a person who walked the length of the 11 condos, circling DEs unit all

evening. 9R26, 57-58. Ford allegedly continued to wait while DE changed her

clothes, walked her dogs, changed her clothes again, prepared for bed, drank a

Coke, read the paper, put her hair back and prepared medication that she usually

took in the morning (14R27-28, 18R46-47). And, then murdered her around

2:02am. 12R72-73. It chose this implausible time, because it had evidence it

sought to shoehorn into a murder story. Its evidence could fit this story and time of

death, if it glossed over the concrete and scientifically indisputable failures in its

theory. So the States theory does not, in fact, hold water.

In reality, Ford left the NYE party at 11:30pm with others. 7R110, 7R191.

He went straight home where he watched TV and went to bed. See SX1-A.3The

State claimed video showed Ford entering and exiting DEs condo, parking off

3SX denotes States Exhibit and DX denotes Defense Exhibit.


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camera, and walking back. 6R31-36. But, the State conceded it is impossible to

identify the individual or the vehicle in the video. 12R66-71.

In fact, 17 other videoed vehicles match the description of Fords SUV.

4

The

State considered only seven of those SUVs because the existence of others

destroys its theory. 12R70. Additionally, two key States witnesses conceded

Fords SUV may have been at home. 6R136, 8R19.

The State contends that HCD pinpoints Fords locations, specifically at DEs

condo and Olmos Dam. 12R75-76. (DEs condo at 11:45pm, 1:19 am and throwing

her dog over the Olmos Dam at 1:32am). 12R75-76. Evidence shows DEs dog,

Grit, had garbage gut and could be seen alone on the video the next morning.

CR571. HCD established only that Ford was in San Antonio, Texas, and at best in

the Alamo Heights area where both Ford and DE lived. Regardless of where

Fords cell phone was from 1:20am until 2:00am on January 1, 2009, evidence

from the medical examiners established DEs time of death was long after,

sometime between 4:00am and noon on January 1, 2009. 15R182; 14R151.

Finally, the State argued that touch DNA found in DEs condo proved Ford

was there when DE was murdered. 6R37; 15R7-98. But, their own DNA analyst

admitted that Fords touch DNA did not appear on the evidence until after he

requested a sample of Fords DNA (15R50-51) and had contaminated the evidence

4See DX 60A-6 through 60A-11, 60B through 60B-5, 60C through 60C-3, 61A-24.


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with his own DNA as well. 15R53. More important, the touch DNA would have

been in DEs condo because Ford stayed there. 11R91-93.

During and after their lengthy relationship ended amicably, Ford spent time

in DEs condo. 11R91-93. In fact, days before DE was murdered, Ford helped her

to bed and cleaned up her dogs feces. 6R102; 7R88-90. They spent the evening

with friends, in a limo, drinking and viewing Christmas lights. 6R98-101. During

this, DE became intoxicated, passed out, and Ford gently helped her to bed.

6R102; 7R88-90. The next day he told Tarver he was relieved he was no longer in

a relationship with DE because of this type of behavior. 6R105.

Police agreed Fords DNA would have been all over the condo after

spending time there and especially after helping an intoxicated DE safely to bed

and cleaning up after her dogs. 11R91-93. Fords DNA on a towel, in the bathroom

where he washed up after helping DE that evening, is unremarkable. 11R91-92. In

fact, there was more of the scientists DNA on the towel, than there was Fords.

15R53, 16R19.

Before of the contamination, the scientist found no DNA foreign to DE on

the towel. 15R25. This is strange because the towel was handled by DEs parents

at the scene, left there for over a week, and then submitted to the laboratory.

15R35.

The contamination of the towel calls all evidence concerning it into


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question. Ex Parte Hobbs, 393 S.W.3d 780 (Tex. Crim. App. 2013) [evidence

compromised, relief granted];Ex Parte Turner,394 S.W.3d 513 (Tex. Crim. App.

2013)[evidence compromised, relief granted]. Here, the towel was contaminated

by the scientists DNA at the same time that Fords DNA first appears. 15R135.

No DNA foreign to DE appears on the towel before that. 15R25. Thus, this

evidence is unworthy of consideration and is otherwise unremarkable.

If the police found more of Fords DNA at DEs apartment, which they did

not, it would not have been unusual. 11R91-93. During their relationship, DE

became integrated into Fords social network of friends. 6R94-97. After the

relationship, DE continued to attend the same social events as Ford. 6R94-97.

While Ford cared about DE and was naturally upset when they decided to remain

just friends, their mutual friends remembered Ford as always amicable and kind to

her as he was with all his friends. 6R94-97. One of these social events both

attended was a NYE party at a mutual friends house the night before DE was

murdered. 6R120-124.

That evening, Ford first went to Roger Graggs party. 16R73. This party

was more family oriented and DE did not attend. Next, Tarvers fianc, Melissa

Federspill dropped Tarver off and then went to the other NYE party at Mary

Minors house. 6R116. Although Tarver did not originally think that Ford was at

Graggs party when he arrived, Gragg did not recall Ford ever leaving that party


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until Ford and Tarver left together sometime after 9:00pm. 6R116, 16R74.

Tarver located Ford at Graggs party at 8:31 pm, sending a text message.

SX4,11; 6R116. But, the States HCD showed the text was handled by tower

SX3155. SX11, 23. This tower was at 7887 Broadway, on top of the Carlyle,

more than a half-mile from DEs condo. The State gave it the misleading name

Gallery Court tower. 8R109. According to the States witness, Kenneth Doll

(hereinafter Doll), Ford would have been in Quadrant 1 of Tower 3155 when

he received that text message. SX11, 23; 8R109. There is no evidence Ford

spent any time on either 12/31/2008 or 1/1/2009 in the area established by

States witness as Quadrant 1 of Tower 3155, see SX23, nor was Graggs

home near this tower. It is 3 !miles away. Therefore, the theory presented by the

State5is not valid.

At 8:33pm, Ford called Tarver back. The call was reflected on cell tower

records, but Tarver could not remember speaking to Ford or any details of that

conversation. SX11; 6R116-117. Shortly afterwards, Ford and Tarver found each

5 The State's expert had told Ford's lawyer, prior to trial, that Fords phone could have been at

his home, as he said, and still utilize the Gallery Court Tower, CR560, and that it was not

possible to fix ones location from the HCD of the phone. CR 559. The Gallery Court tower

was actually located on a high rise on Broadway Street, over half a mile from Gallery Court.Id. Had Fords Counsel not been surprised by his change in testimony and been granted acontinuance, he would have secured a properly qualified expert. CR560. Such an expert would

have testified that cell phone calls will use any number of cell towers based on the traffic of callsand the computer logic distribution of those calls. Like a line of customers in a bank, where each

customer goes to the next available teller, calls are distributed to towers based on the nextavailable tower. CR553. See point of error regarding denial of continuance.


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other and the two socialized before going to Minors party at 158 Treasure Way.

6R117.

The group at Minors party, including DE, consumed alcoholic drinks and

played a game. 6R122-123. Federspill made a resentful comment directed at

Tarver regarding Fords and Tarvers resistance towards marriage. 7R189-193.6

Later, Ford privately told Federspill he did not appreciate being included in her

joke. 7R189-190. When other guests left, Ford joined them. 7R191-192. Tarver

sent Ford a text asking why he left and Ford replied that he was no longer having

fun, which Tarver testified he understood. 6R130.

According to the States HCD witness, the text conversation between Tarver

and Ford was handled by a tower located between Terrell Hills and Alamo

Heights. 8R126. Subsequent calls, text messages and a data upload from Fords

phone were handled by multiple towers in the same area. SX10-11. The total area,

which includes all cell towers in question, both Fords home and DEs condo,

Minors NYE Party, the location of her dogs remains (nine days later) at Olmos

Dam and the bank surveillance photo is approximately 2.71 square miles. See

below.

6 She and Tarver broke up in spring of 2010. 8R50-51.


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The State argued HCD identified Fords exact location, but the States

witness conceded, because of the variables involved, the cell tower data cannot

definitively identify a persons location. 8R145-146. Additionally, the State

agreed in closing that HCD could not determine whether Ford was traveling on

either Hwy. 37 or Hwy. 181 when he passed Pleasanton, Texas on 1/1/2009.

18R77-78. The latitude and longitude data for the tower near Pleasanton, indicate it

is located approximately 1.9 mileswest of Hwy. 37 and approximately 28 miles

west of Hwy. 181. See below.7

7Texas Rules of Evidence 201.


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Thus, according to the States quadrant theory and concession that HCD

could not locate Ford on Hwy. 37 or Hwy. 181. So Fords exact location cannot

ever be determined by HCD. Therefore, this evidence is not probative enough

under these circumstances to uphold the conviction.

The State also relied on low quality video hundreds of feet from the entrance

of Gallery Court. 6R23-25. One cannot determine the sex, physical characteristics,

or identity of persons observed in the video. Nor can one determine the license

plate or identify any vehicle.

The States theory is that Ford left Minors party approximately 11:30pm

and drove south on New Braunfels to his home. 6R23-27. It further alleged that on

his way home, his truck entered Gallery Court, than exitedGallery Court at 11:24-

11:26pm. SX149-151. It then alleged that Ford drove north on New Braunfels


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pastGallery Court without entering. SX152. The State alleged Ford then entered

and exited Gallery Court at 11:37-11:39pm, driving north on New Braunfels.

SX153-155. At 11:42pm, an unidentifiable person, walking in a north-to-south

direction on the east side of New Braunfels. SX156. Although it is impossible to

identify this person, the States theory rests on the determination that this

unidentifiable person was Ford. 6R31-36.

At 2:02am, another unidentifiable person exited Gallery Court. SX158.

Although identification is impossible, the State contends it is Ford.8 Further, it

asserts that at 2:07am, Fords truck goes south on New Braunfels past Gallery

Court. SX159. At 3:12-3:16am, a truck enters and leaves Gallery Court. SX162.

The State argued it is Ford returning to DEs condo to retrieve a three-hole punch.

SX163-164. There is no evidence this is so.

The States theory requires proof that the two unidentifiable individuals

from the video recordings wereFord, andthe white SUVs seen in the video were

only Fords. Several vehicles matching a generic description of Fords white

Tahoe are seen in the video, but none that could be identified.

Between 11:20pm on 12/31/2008 and 3:16am on 1/1/2009, 17 white SUVs

8 By examining the video frame by frame, Dr. James was able to observe that at 2:02:12am

January 1, 2009, a soft, independent light source emanates from the figure, which closely

resembles the light given off from a cell phone sending or receiving a call or text. The lightemanating from the figure does not correspond to any other observed light source in the video,

nor is it caused by a passing vehicle. An examination of Ford's phone records show no activityreceived or transmitted at 2:02:12am on January 1, 2009. CR346. See next point of error.


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like Tahoes, passed on camera.9The State ignored 10 of these in their case. SX132.

Additionally, seven of these SUVs are observed while Ford is allegedly in DEs

condo. This is crucial because this additional traffic destroys the States theory and

explains their decision to show only portions of the video recordings to the jury.

Another problem with the States theory is Jordan Hasslocher, a resident

who lived in one of the 11 condos, walked the Gallery Court community all night,

and also walked to and from the HEB located north of Gallery Court on the east

side of New Braunfels. 9R26, 57-58. He identified himself on the video as the one

with a light emitting from his iPad earlier at 10:47pm. 9R39. Hasslochers route

that night passed in front of and behind DEs condo each time he walked the

property. 9R57. He continued this routine on 12/31/2008 through 1/1/2009. 9R58.

After DE returned home from the NYE party, he saw DE walking her dogs about

1:20am in changed clothes. He saw and heard nothing unusual. 9R43, 62.

Hasslocher knew Ford and his vehicle. 9R45. But he never saw Ford, or his

Tahoe, on NYE or the next day. 9R45, 58-60.

An unidentified person leaves Gallery Court at 2:02am, emitting the same

light as Hasslocher did at 10:47pm. See below; SX158, 9R39, 52-3. Therefore, this

person is either Hasslocher or someone with an active mobile device. This cannot

be Ford because his phone records show no phone activity at this time. See below;

9See DX60A-6 through 60A-11, 60B through 60B-5, 60C through 60C-3, 61A-24.


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SX11; 9R39.

11:47pm Walking In

2:02am With Light, Walking Out

The State also relies on testimony from both Tarver and Federspill to imply

that Ford did not go home after the party. 6R136, 8R19. According to Tarver and


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Federspill, sometime between 12:47am and 1:19am, and a night of NYE

celebrations, they drove by Fords house and did not see his vehicle where he

normally parks. Id. Both agree that Fords car could have been at his house. Id.

Ford parked in his driveway and in different spaces in the church parking lot

behind his house.Id., SX1-A.

Pursuant to the States flawed HCD analysis, Ford had to be at Olmos Dam

at 1:32am when his phone uploaded data from the tower in that area. 18R21. The

State contends that at 1:32am, Ford killed DEs dog, throwing him over Olmos

Dam. 18R79. According to this same analysis, Ford was 2.5 miles away at Gallery

Court, 13 minutes earlier, when his cell phone recorded activity from a tower in

that area. 18R21.

The State argued they lacked explanation for how Ford, who weighed over

250 lbs., scaled over an 8 ft. wall with a Jack Russell Terrier, ran through

someones backyard, and a residential neighborhood, unnoticed, then covered the

2.5 miles between Gallery Court and Olmos Dam in approximately 13 minutes.

18R21.10

The State also concedes that Ford did not get his vehicle to make this

commute. 18R21. For the States theory to be valid, Ford would have had to run

down New Braunfels and then cut through Alamo Heights neighborhood over to

10[R]unning around with a dead dog in his arms or in a sack. 18R21.


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Olmos Dam maintaining a pace of just over five minutes per mile, as the crow

flies.11

The States theory required that DEs time of death be between 12:47am and

2:02am. 6R23-25. The State failed to prove this. DE arrived at the party that night

with an alcoholic drink and also consumed wine during the party, and champagne

at midnight. 7R193, 14R143. DE left the party at approximately 12:45am and went

directly home. 7R193. DEs autopsy showed no traces of alcohol. 14R126. The

human body cannot metabolize alcohol after death. 14R126, 142, 154. The theory

gives DE basically one hour to metabolize all alcohol.

Also, the vitreous humour shows traces of alcohol for about two hours

longer than the rest of the body, and DEs vitreous humour showed no traces.

14R154. After three hours, alcohol would still remain. 15R179. Thus, DE was

alive long enough to metabolize the alcohol she consumed that night and it is,

therefore, impossible for DEs time of death to have been before 2:02am.

Additionally, the States medical examiner concedes, the time of death could

have been noon on 1/1/2009. 14R150-51. The defense medical examiner

established lividity and rigor placed her time of death sometime after 4:00am on

1/1/2009. 15R182. Both medical examiners establish that the States theory is

11To give this Court a frame of reference, Usain Bolt, the worlds fastest man, is estimated to

run a mile in approximately 4.5 minutes.


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impossible.

DEs parents discovered DE, dead in her bathroom, early on 1/2/2009.

9R133, 147. They contacted the police and remained alone at the scene. 9R141,

147. Before the police arrived, they contaminated a bloody towel by handling it.

9R148. That towel was left behind, open to the parents access and further

contaminated it for almost a week. 11R217. In police photos, one can see the towel

move from photo to photo, until it is resting against the toilet. CR564. This was the

only location of Fords touch DNA, on the edges. 15R64. The State contended that

the Fords and DE shared maid, Adalida, who it did not call to testify, and who

washed that towel. 9R93. They wanted to imply Ford had to be there the night of

the murder for his touch DNA to be there. 9R92. But, DE only washed used linen,

and she was asleep when Ford used the towel. 9R94.

This Court recognizes that the failure of the State to call or explain why it

does not call an available witness that would directly connect appellant to

the offense, creates a presumption that the witness would be favorable to the

Appellant. The rule is applicable only to cases [as here] in which the State is

relying solely on circumstantial evidence. Roberts v. State, 489 S.W.2d

893, 894 (Tex. Crim. App. 1972).

The police also failed to secure the scene and preserve evidence. DEs

parents maintained possession and controlled access to the scene. 12R71. The

police had to go through either Mr. or Mrs. Edwards to access the condo. Id.

Evidence was not timely collected and DEs underwear and her fingernail


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clippings were lost. 11R217, 6R30-31. The State opened with, the police screwed

up. Bottom line. Theres some evidence that was lost and the police should have

collected some items of evidence sooner than they did and they didnt. 6R30-31.

Even in the light most favorable to the verdict, there is insufficient evidence

for a rational juror to conclude that Ford was guilty of murdering DE. Fords

conviction should be reversed.


When it Denied Fords Motion for New Trial (21R16). Jones v. State, 711

S.W.2d 35 (Tex. Crim. App. 1986).

The trial Court abused its discretion when it did not grant the motion for new

trial, because the evidence presented by the State was insufficient to sustain the

conviction. Also, the trial Court could not weigh the credibility of defense

witnesses, during the motion for new trial hearing, because the trial Court did not

permit them to testify. Jones v. State, 711 S.W.2d 35, 37 (Tex. Crim. App. 1986).

In the motion for new trial, Ford presented newly discovered evidence12

that his

counsel did not fail to discover because of any lack of diligence. His counsel was

misled by the States witness and counsel was, therefore, not aware that he needed

the evidence. See Point of Error concerning continuance and surprise.

Historical Cell Tower Data (HCD) cannot show location. This is because a

cell phone may use any tower within approximately 20 miles. A cell phone is

12The exhibits to Fords motion for new trial were admitted without objection. 20R5.


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omni-directional, depending on traffic and computer logic, it will use the next

available tower. A good analogy is a line of bank customers using the next

available teller. CR673.

Defense counsel did not bring in an expert to offer testimony regarding the

impossibility that Ford was seen in the video, because he was unaware that the

State would rely on a theory he debunked in the Franks, motion to suppress. No

one identified the person in the video as Ford or similar to him.

The defense was able to locate such an expert to prove that the man seen in

the video is not Ford, for the motion for new trial. By comparing objects of known

measurement to the figures, the person seen in the video is too tall to be Ford.

Also, through the testimony of Jordan Hasslocher, he identified himself as the man

in the video at 10:47pm and must be the light emitting person at

2:02am. 9R39. As Hasslocher explained, the lighted image is the iPad he carried

that night. 9R39. Also, the person in the video at 11:42pm, is of the same height

and build as Hasslocher. SX132A. Further, the light emitting from the person at

2:02am cannot be Ford, because such a light would have to come from his cell

phone and his phone registers no HCD activity then. SX11.

The States HCD witness, Doll, told Fords lawyer, prior to trial, that Fords

phone could utilize any of several towers to accept a signal, even using Gallery

Court when at 333 Rosemary, Fords home. CR560. However, during trial, Doll


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testified that he could tell the precise location of the cell phone based upon the cell

tower used to connect the call. This change in testimony came as a surprise to

defense counsel. Had Fords counsel not been surprised by his change in

testimony, he would have secured a properly qualified expert to meet, rebut, or

defeat the testimony. Such an expert would have testified that cell phone calls will

not use a particular best cell tower but will use a tower based upon network

traffic variables. A good analogy is a line of bank customers using the next

available teller. CR553, 673.

The evidence presented at Fords motion for new trial was evidence not

known to the defendant at trial through no lack of diligence. It was material

evidence that the prosecution was wrong and would have brought about a different

result. Carlise v. State, 549 S.W.2d 698, 704-705 (Tex. Crim. App. 1977). It was

admissible and was not cumulative. Because of this, it may be impeaching as is

this crucial evidence was, as well as probative direct proof that Ford did not

commit the offense of murder. See Sambrano v. State, 754 S.W.2d 768, 770-773

(Tex. App.-San Antonio 1988, no pet.).

After trial, counsel also discovered that juror number 66, Gilberto P. Garcia,

said that he was experienced with cell towers and how they can be used to locate


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people. CR644.13

On his juror questionnaire, question number 13, he specifically

was asked if he had experience or training with cell towers and he answered that he

had not, checking a box to that effect. CR645. His answer was untrue.

Counsel asked the jurors if they each answered the questions on their

questionnaires as honestly as possible, and all indicated that they had. 5R110.

Counsel also asked jurors about cell tower evidence a number of times, so they

knew it was important. 5R65, 149.

Thus, unlike Landry v. State, 879 S.W.2d 194 (Tex. App.-Houston [14th

Dist.] 1994, pet refd.), here, the matter of HCD was critical to the case and Garcia

was asked directly about it on his questionnaire, asked if he was truthful and this

information was beyond the juror card questions addressed inLandry.

His failure to answer the jury questionnaire truthfully, particularly in this

critical area, deprived Ford of a fair trial from an impartial jury. Von January v.

State, 576 S.W.2d 43, 44-46 (Tex. Crim. App. 1978). This information exposes

that the juror was biased regarding HCD. The affidavit of Fords investigator

about what Garcia said regarding HCD location of people also reveals outside

influence.

Appellant was harmed by this. During deliberations, the jury submitted a

13 During the hearing on the motion for new trial, the State did not object to the introduction of allof the exhibits to the motion to new trial in evidence.


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question revealing their confusion. See Jury Note Point of Error Number 3. The

HCD was the only evidence the State had to attempt to connect Ford to DEs

condo that night.

What [Ford] didnt count on was technology, and its technology that

reveals his lies. He didnt count on the technology of cell phones, the

technology of cell towers, the technology of DNA, the technology of a

business surveillance video camera was just near her apartment. What you

will learn is that he wasnt where he said. He wasnt parked where he said

he was parked. He wasnt in bed when he said he was. He wasnt asleep

before midnight. 6R24.

Fords counsel was vociferous in his insistence that the juror note be

properly answered to include correct information about HCD. See Jury Note Point

of Error Number 3. He would have exercised a peremptory challenge to remove a

juror who would have provided information unknown to him on this critical issue.

As explained in the Point of Error Number 3 concerning the erroneous jury

note response by the court, the trial Courts response to this request was

unsatisfactory and the jurors were left with misleading information, and the

influence the undisclosed information juror Gilbert P. Garcia provided them.14

Because the juror failed to disclose his familiarity with HCD, Fords motion for

new trial should have been granted and his conviction should be reversed.

14The trial Court abused its discretion in denying the motion because the jurors dishonesty to a

direct question on his questionnaire demonstrated his bias and Fords counsel would haveexercised a peremptory challenge against him had he known the information.


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Since the evidence at trial and in the motion for new trial was contrary to the

law and the evidence, the trial Court abused its discretion in denying the motion.


Indicating a Dispute, Was Not a Fair and Reasonable Response. Texas Code

of Criminal Procedure15

art. 36.28 (SCR223; 8R145-146; 18R91-127; 19R7-15,

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

The jury had a dispute concerning the testimony of States witness, Doll, and

sent a note to the trial Court that read, Jurors have a dispute concerning the

testimony of AT+T expert, Doll, regarding the possibility of a cell phone

connection between tower SX3155 (Gallery Court) + the residence at 333

Rosemary Ave. SCR223.16

What testimony a court reads to the jury is reviewed under an abuse of

discretion standard. Brown v. State, 870 S.W.2d 53, 55 (Tex. Crim. App. 1994). In

the event a jury has a dispute, the court may read to them from the court reporters

notes that part of such witness testimony or the particular point in dispute, and no

other. TCCP art. 36.28. The court must give a realistic interpretation to the jurys

note so that the defendant is not deprived of a fair trial. See Jones v. State, 706

S.W.2d 664, 66668 (Tex. Crim. App. 1986) [refusing to re-read cross-

examination testimony touching upon the disputed issue, as requested by defense

15Hereinafter TCCP.

16 The jury was confused and in dispute about whether a cell phone could send a signal to thetower not nearest to the phone. SCR222.


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counsel as here, the trial court failed to give a realistic interpretation to the jurys

note and appellant was deprived of a fair trial.]. Failing to provide a reasonable

and fair response is an abuse of discretion.

Ford requested that the trial Court include testimony [b]eginning on Page

64, Line 13 through Line 7 on Page 68, of testimony from a daily transcription.

18R108. This request was based on the note, as counsel stated, keep in mind, the

question is a dispute regarding the possibility of a cell phone connection between

Tower 3155 [State calls Gallery Court at the Carlyle] and the residence at 333

Rosemary Avenue [near Alamo Heights High School]. 18R108. The trial Court

did not include this part of the testimony requested by defense, over his objection.

18R126-127. The trial Court did, however, include testimony requested by the

State, which did not properly clarify the dispute of the jurors. The re-reading of

the testimony can be viewed at 19R715.

Similar to all the testimony it read, the trial Court re-read the following:

Q. [the State] If Ford, hypothetically, maintains that the phone that weve

been discussing, that weve been talking about is solely in his possession, is

traveling with him, if he claims he is home at Rosemary Avenue, 333

Rosemary Avenue some time after 11:20 and remains there, and claims hes

at home asleep in bed before midnight, what is the only reasonable

explanation for his phone pinging at the Gallery Court location at 11:45?A. His phone would have been near the site of Gallery Court. Thats the

only way that would happen.


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Q. If, hypothetically, Mr. Ford has his phone in his possession, and, again,

he claims hes at home asleep in bed before midnight, is there any reason

why his phone would be pinging at Gallery Court at 1:19 in the morning?

A. No. 19R1011.

The State relied upon this testimony to pinpoint Ford at DEs condo. The

trial Court did not include the States witness agreeing that he could not state for a

fact that a device was in the particular sector by examining HCD:

Q. [Defense Counsel]: 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 that's because depending on a number of variables, a different cell

tower or a different sector might service that activity?

A. Yes.

Q. That's right, isn't it?

A. Yes.

Q. Okay. Let's put that together. So even though the records show a cell

tower and a sector to the cell tower, that does not mean beyond all doubt that

the cell device was in that sector, does it?

A. On these records

Q. On any record?

A. There are cases where you can set up a call on a cell site that is not the

closest cell site to you, or you could potentially even set up a cella call on

a cell site across town. 8R145146 [emphasis added].

The exclusion of the full testimony concerning this issue in dispute furthered the

jurys misunderstanding and resulted in the conviction of Ford. As counsel pointed

out:


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With all due respect to the court, Your Honor, we have Mr. Doll saying

two different things. Ms. Cunningham leads him into saying that beyond a

reasonable doubt that the cellthe cell device had to be in that sector. And

yet what I just read is Mr. Doll saying something completely opposite of

that. You cannot tell this jury thatthat the cell device was in that sectorbeyond any argument, can you? And he says, No. He acknowledges

that. 9R17 [emphasis added].

The trial Court refused to clear up the dispute with Dolls admissions. The trial

Court abused its discretion and that directly contributed to the conviction of Ford,

this Court must reverse.

POINT OF ERROR NUMBER 4: The State Obtained Historical Cell SiteData Illegally in Violation of the Texas Code of Criminal Procedure art. 18.21

(SCR177(5), CR17678, 341-344, 627-632; SCR176-180, 190; 4R13-14, 19-20,

2728; 18R21). Texas Code of Criminal Procedure art. 18.21.

POINT OF ERROR NUMBER 5: The State Violated the Texas Code of

Criminal Procedure Article 38.23, when it Obtained Historical Cell Tower

Data Without a Warrant. (SCR17678; 4CR2228). Texas Code of Criminal

Procedure art. 38.23.

POINT OF ERROR NUMBER 6: The State Violated Article I 9 of the TexasConstitution when it Obtained Historical Cell Site Data Without a Warrant.

(4R13).17

Tex. Const. Article I, 9. Richardson v. State, 865 S.W.2d 944 (Tex.

Crim. App. 1993).


Obtaining Historical Cell Site Data Illegally (4R13). 18 U.S.C. 2703 et seq.

POINT OF ERROR NUMBER 8: The State Violated the Fourth Amendment

to the United States Constitution when it Obtained Historical Cell Site DataWithout a Warrant and Without Probable Cause Effecting an Unreasonable

Search and Seizure. (SCR17677, 4R2228). Fourth Amendment to the

17That application and order does not comply with Texas law much information that is stored

that should be confidential and should require an adequate warrant in order to obtain. 4R13.


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United States Constitution; United States v. Jones, 565 U.S. ___, 132 S.Ct. 945,

181 L.Ed.2d 911 (2012).

POINT OF ERROR NUMBER 9: The State Violated the First Amendment to

the United States 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 United States Constitution. (SCR17677, 4R15,

2228). United States v. Jones, 565 U.S. ___, 132 S.Ct. 945, 181 L.Ed.2d 911

(2012).

Points of Error Numbers 4-9 will be argued together.

The State introduced HCD obtained without a warrant or probable cause.

CR34144; CR62732. Article 38.23(b) provides that the good faith exception

does not apply to warrants lacking probable cause. Ford argued that the data was

obtained in violation of State and Federal statutory laws and constitutional laws.

SCR177; 4R2228. Counsel explained that the applications obtained HCD that

disclosed more than subscriber information or the number of calls but instead

obtained the location of the telephone and its user in violation of 18 U.S.C.

2703. TCCP art. 18.21, and the First and Fourth Amendments.18

SCR177; 4R22

28. The State acknowledged that Ford challenged the applications under TCCP

arts. 18.21, 38.23 and the First and Fourth Amendments to the United States

Constitution.19

4R2123. The trial Court denied the motion to suppress. 4R2728.

18 Now, what was obtained here? Were not talking about subscriber information. Were not

talking about number of calls. What were talking about is the location. 4R27.19

After counsel pointed out the acquisition of the data violated Texas law, the prosecutor argued,

[s]o any 38.23 argument that they would be making, which is that we have violated a provisionof Texas law, totally aside and apart from the U.S. Constitution The prosecutor went on to


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Texas appellate courts review a constitutional legal ruling or other legal

ruling under a de novostandard of review. Wall v. State, 184 S.W.3d 730, 742

(Tex. Crim. App. 2006). The present case is also before this court, res nova.

20

The motion to suppress alleged [b]oth applications failed to follow State

procedures and should, therefore, be held improper on that basis alone.,21

that

the State used improper applications and the HCD used by the State was

obtained illegally by violating the Federal and State expectation of privacy and

freedom of association. SeeSCR17679; 4R15, 2228.

The applications recite: [t]he release of said cellular phone records,

technical information, and technical assistance; are material and relevant to the

investigation of a criminal offense; supporting information/specific and articulable

fact(s) follows. This fails to meet the Federal and State requirements that the

state, if the Court looks they should be able to determine that this is being brought underthis38.23 allegation 4R2223.20InBarfield v. State,2013 Tex. App. Lexis 13493 (Tex. App-Houston [14th Dist.], no pet), theState issued a subpoena for the information post-indictment and Barfield did not contest it was

unauthorized by State statute. See alsoSaenz v. State, 2011 Tex. App. Lexis 1156 (Tex. App.-Corpus Christi 2011)[no statutory or constitutional complaint; court upheld testimony from

witness as a cell tower expert because witness did not attempt to precisely locate Saenz andample other evidence tied him to crime scene](attached at Appendix); Robinson v. State, 368

S.W.3d 588 (Tex. App.-Austin 2012)[no statutory or constitutional complaint, expert testimony

was cell tower allowed location within 2 mile radius]; Wilson v. State, 195 S.W.3d 193 (Tex.App.-San Antonio 2006)[no complaint about statute or constitutionality; testimony was admittedthat cell tower showed location within three miles];McKee v. State, 2012 Tex. App. Lexis 2421

(Tex. App.-Dallas 2012)[no complaint regarding statute, constitution, or testimony; acommunications analyst with the Texas Department of Public Safety acknowledged tower

overload could have shifted cell phone calls from one cell tower to another.].21

SCR177.


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State relies upon. 18 U.S.C. 2703(d) requires a showing that the investigation is

ongoing. But the applications do not use this language. Further, they do not state

a reasonable belief or that these are reasonable grounds to believe that the facts

shown are relevant to a legitimate law enforcement inquiry as required. See TCCP

18.21(5) (if the court determines that there is a reasonable belief) and 18 U.S.C.

2703(d) (that there are reasonable grounds to believe). Therefore, the States

applications are inadequate on their face. Both the Texas and Federal statutes

contain their own exclusion rules. TCCP 18.21 (6)(h)(2) provides for vacaturof

the order if there is not reason to believe the communications sought are relevant

to a legitimate law enforcement inquiry or that there has not been substantial

compliance with the provisions of this article. And, 18 U.S.C. 2704(b)(4) also

calls for quashal of the process if there is not a reason to believe that the

communications sought are relevant to a legitimate law enforcement inquiry, or

that there has not been substantial compliance with the provisions of this

chapter.

The States HCD Acquisition Not Authorized by Texas Law

The State applied for an order pursuant to TCCP 18.21(5), and, in

accordance with 18 U.S.C. 2703(c)(2), requiring the cell phone service provider

to furnish cellular site information. SCR180, 190. 18 U.S.C. 2703(d) requires

a State to also authorize the collection of this data before Federal law will allow it.


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[I]n the case of a State governmental authority, such a court order shall not issue

if prohibited by the law of such State. 18 U.S.C. 2703(d). In circumstances in

which State action goes beyond what is expressly authorized by code, a violation

of that code has occurred. See Baptist Vie Le v. State, 993 S.W.2d 650, 65455

(Tex. Crim. App. 1999) (explaining that when an officer took action not expressly

authorized in the Family Code, the officer violated the Family Code by his

actions.). Since art. 18.21 does not authorize the acquisition of this data, these

applications violate Texas law. TCCP art. 38.23.

TCCP art. 18.21(5) does not authorize the release of the HCD asked for by

the State.

Court order to obtain access to stored communications

Sec. 5. (a) A court shall issue an order authorizing disclosure of contents,

records, or other information of a wire or electronic communicationheld

in electronic storage if the court determines that there is reasonable beliefthat the information sought is relevant to a legitimate law enforcement

inquiry. TCCP art. 18.21(5) [emphasis added].

When construing a statute, a court may look to the title of the provision for

guidance. See Tex. Govt Code, 311.023. TCCP art. 18.21 is entitled Pen

registers and trap and trace devices; access to stored communications; mobile

tracking devices. Nothing in the title indicates that the article governs the means

by which law enforcement can obtain connection or location information.

[C]ourts must begin with the plain language of a statute in order to discern its


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meaning. State v. Vasilas, 187 S.W.3d 486, 488 (Tex. Crim. App. 2006). Article

18.21(5) of the TCCP only allows the issuance of an order for the disclosure of

contents, records, or other information of awire or electronic communication

held in electronic storage. TCCP art. 18.21(5) (emphasis added). An

electronic communication is a transfer of signs, signals, writing, images, sounds,

data, or intelligence of any naturetransmitted in whole or in part by a wire, radio,

electromagnetic, photo-electronic, or photo-optical system. TCCP art. 18.20 (15).

Here, the State asked for and obtained cellular site information. This

information is connection and location information, not information of transmitted

intelligence as authorized by TCCP art. 18.21 (5). This is distinguishable from the

Federal statute which expressly provides, under 2703 (c)(2), for disclosure of

local and long distance connection records. This is the provision that the State

attempts to rely upon in their applications. But, as pointed out above, federal law

requires that the acquisition of the information cannot violate State law. Here, the

Texas law allows only acquisition of stored information of electronic

communications, not connection information.

Further, 47 U.S.C. 1002 (a)(2)(B) provides, with regard to information

required solely pursuant to the authority for pen registers and trap and trace

devices, a carrier need not allow the government to access call-identifying

information that may disclose the physical location of the subscriber (except to


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the extent that the location may be determined from the telephone number). 47

U.S.C. 1002(a)(2)(B). As stated by defense counsel, What were talking about

is the location. 4R27.

Because Texas law does not authorize the State to obtain HCD and federal

law does not authorize it absent State law doing so, the evidence was obtained

illegally.

Obtaining HCD is a Search Requiring a Warrant

Additionally, obtaining HCD without a warrant based upon probable cause,

violated the Fourth Amendment. By obtaining HCD, the State conducted a search

of Fords associational movements22

in violation of the First and Fourth

Amendments. The affidavits in support of the orders issued do not state probable

cause.23

22Ford disagrees with the States characterization that this evidence has any probative value to

show a persons exact location, or location within a sector of a city. See Point of Error Number

1. The Department of Justice agrees that such data does not reveal ones location. CR150.23The application for the release of cellular records lists facts that show the body of DE was

found on 1/2/2009. No time of death is indicated. DE attended a party on 12/31/2008 withmultiple friends, including Ford. Ford left the party before DE. DE left the party with two

friends. The two friends drove by Fords home and did not see his vehicle outside of his garage.It could have been inside the garage. Ford claimed to have gone home before midnight and gone

to sleep. The application states that video footage shows a vehicle similar to Fords entering and

exiting Gallery Court and a man wearing clothes similar to Fords walking into the condos cul-de-sac. About an hour later, the person seen walking into the condo is seen walking out. Italleges that person is now carrying a white bag. Minutes later a vehicle matching the description

of Fords is seen driving by. At no time does the application mention a time at which the crimeoccurred. Nor does it allege it happened from 12/31/2008 1/1/2009. There is no identification

of Ford or his vehicle. These facts do not state probable cause or even reasonable suspicion.SCR180199.


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The fact that through a communication network gives rise to Fourth

Amendment considerations. United States v. Warshak, 631 F.3d 266, 285 (6th Cir.

2010). United States v. Jones, 132 S.Ct. 945 (2012), states that [s]ituations

involving merely the transmission of electronic signals without trespass would

remain subject toKatzanalysis. Jones, 132 S.Ct. at 953.

Our high Court has stated that the Supreme Court in Smith v. Maryland

operate[d] under what we regard as an erroneous belief that any voluntary

disclosure of information will destroy a reasonable expectation of privacy of that

information. Richardson v. State, 865 S.W.2d 944, 95152 (Tex. Crim. App.

1993). It rejected the third party doctrine relied upon by federal courts. It stated

that [a]s with information imparted to a doctor, we share a common understanding

that the numbers we call remain our own affair, and will go no further. Thus,

society recognizes as objectively reasonable the expectation of the telephone

customer that the numbers he dials as a necessary incident of his use of the

telephone will not be published to the rest of the world. Richardson v. State, 865

S.W.2d at 953 [Art. I, 9 provides greater protection than the Fourth Amendment].

The State used Fords HCD to ostensibly track him to the precise location of the

Olmos Dam, and the addresses 18 Gallery Court and 333 Rosemary. The ability

and use of these [GPS devices] and other new devices [HCD] will continue to


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shape the average persons expectations about the privacy of his or her daily

movements. Jones, 132 S.Ct. at 963 (Alito, J., concurring). Thus, this concerns

Fifth Amendment associational freedoms as well. A person who knows all of

anothers travels can deduce whether he is a weekly church goer, a heavy drinker,

a regular at the gym, an unfaithful husband, an outpatient receiving medical

treatment, an associate of particular individuals or political groupsand not just

one such fact about a person, but all such facts. Id.at 562.

The State uses this evidence to do just that:

[T]he phone records show he pinged at Gallery Court at 1:19. And the

phone records show he pinged down at the Olmos Dam at approximately

1:32. So what do I know? I know that he, along with the phone that's

attached to his hands, was at Gallery Court at 1:19 and at Olmos Dam at

1:32. 18R21.

In Jones, a case about installation of GPS devices, the Supreme Court

discussed in dicta the expectation of privacy we enjoy in our technologically

advanced tools that also reveal our locations. It noted that the Court, may have to

grapple with these vexing problems

in some future case where a classic

trespassory search is not involved and resort must be had to Katz analysis; but

there is no reason for rushing forward to resolve them here. Jones, 132 S.Ct. at

954. Justice Scalia was referring to violations of an expectation of privacy as

surveillance becomes cumulative. Jones, 132 S.Ct. at 954 (It may be that

achieving the same result through electronic means, without an accompanying


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trespass, is an unconstitutional invasion of privacy, but the present case does not

require us to answer that question.). Justice Sotomayor noted in the concurrence

that, the same technological advances that have made possible nontrespassory

surveillance techniques will also affect the Katz test by shaping the evolution of

societal privacy expectations. Jones, 132 S.Ct. at 955.

She also wrote, [a]wareness that the Government may be watching chills

associational and expressive freedoms. Id. at 955 (2012) (Sotomayor, J.,

concurring). And Justice Alito, joined by Justices Ginsberg, Breyer, and Kagan,

point out that [p]erhaps most significant, cell phones and other wireless devices

now permit wireless carriers to track and record the location of usersand as of

June 2011, it has been reported, there were more than 322 million wireless devices

in use in the United States. Id. at 963 (Alito, J., concurring).

The conclusion that the expectation of privacy in HCD held by Ford is one

that society is prepared to recognize as reasonable.24

Accordingly, the acquisition

of HCD required a warrant.

24 Who Knows Where Youve Been? Privacy Concerns Regarding the Use of Cellular Phones asPersonal Locators, 18 HARV. J.L. & TECH. 307, 313 (2004); Jennifer King & Chris Jay

Hoofnagle,A Supermajority of Californians Supports Limits on Law Enforcement Access to CellPhone Location Information, 89, (2008).


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Communication Through a Cellular Service Provider Is Not

Voluntary Disclosure UnderSmith v. Maryland

The Supreme Court has consistently held that a person has no legitimate

expectation of privacy in information he voluntarily turns over to third parties,

when it comes to numbers dialed into a telephone device. Smith v. Maryland, 442

U.S. 735, 74344, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). However, it is illogical

to apply this reasoning to HCD. Smith v. Marylandaddressed the privacy issues

that arose in the phone numbers [the customer] dialed that were recorded by the

telephone company. Id. at 745. The Court also explained that [n]either the

purport of any communication between the caller and the recipient of the call, their

identities, nor whether the call was even completed is disclosed by pen registers,

much less location information. Id. at 741 (quoting United States v. New York Tel.

Co., 434 U.S. 159, 167, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977)). Smith v. Maryland,

was limited [g]iven a pen registers limited capabilities. Id. at 742. The Court

has long recognized that other information conveyed through third parties is

protected, such as the phone conversations and letters conveyed through letter

carriers. See Katz v. U.S., 389 U.S. 347 (1967) (listening and recording phone

conversations violates the Fourth Amendment);Ex parte Jackson, 96 U.S. 727, 24

L.Ed. 877, 6 Otto 727 (1877) (Fourth Amendment applies to contents of U.S.

Mail).


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The Fifth Circuit also recognizes HCD is not conveyed voluntarily. Unlike

dialed telephone numbers, which are voluntarily conveyed by the cell owner to the

service provider, HCD is transmitted automatically during the registration process,

entirely independent of the users input, control, or knowledge. Therefore, the

Fifth Circuit declined to address the legitimacy of orders requesting data from all

phones that use a tower during a particular interval, orders requesting cell site

information for the recipient of a call from the cell phone specified in the order, or

orders requesting location information for the duration of the calls or when the

phone is idle. In re U.S. for Hist. Cell Site Data, 724 F.3d 600, 615 (5th Cir.

2013). [A] cell phone customer has not voluntarily shared his location

information with a cellular provider in any meaningful way. In Re: App. of the

U.S. for an Order Directing a Provider of Elec. Commcn. Serv. to Disclose

Records to the Govt., 620 F.3d 304, 317 (3d Cir. 2010). When a cell phone user

makes a call, the only information that is voluntarily and knowingly conveyed to

the phone company is the number that is dialed and there is no indication to the

user that making that call will also locate the caller; when a cell phone user

receives a call, he hasnt voluntarily exposed anything at all. Id. In short, [t]he

fiction that the vast majority of the American population consents to warrantless

government access to the records of a significant share of their movements by

choosing to carry a cell phone must be rejected. In re App. of the U.S. for an


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Order Auth. the Release of Hist. Cell-Site Info., 809 F

Brief for Appellant, Ford v. Texas (January 14, 2014)

Documents

Transcript of Brief for Appellant, Ford v. Texas (January 14, 2014)