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

No.
04-12-00317-CR

COURT OF APPEALS
IN THE FOURTH JUDICIAL DISTRICT
SAN ANTONIO, TEXAS

JON THOMAS FORD,
Appellant, Appeal from the
186
th
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.
29
th
Floor Tower Life Building
San Antonio, Texas 78205
210-226-1463
210-226-8367 facsimile
E-mail: whitecollarlaw@gmail.com

ACCEPTED
04-12-00317-CR
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
1/14/2014 3:09:07 PM
KEITH HOTTLE
CLERK
FILED IN
4th COURT OF APPEALS
SAN ANTONIO, TEXAS
01/14/2014 3:09:07 PM
KEITH E. HOTTLE
Clerk
ii

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

iii

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

Cynthia E. Orr
Donald H. Flanary, III
Goldstein, Goldstein & Hilley
29
th
Floor Tower Life Bldg.

Representing Jon Thomas Ford, Appellant, on Appeal:

Cynthia E. Orr
Goldstein, Goldstein & Hilley
29
th

The Honorable MARIA TESSA HERR, presided at trial in the 186
th
Judicial
District Court, Bexar County, San Antonio, Texas.

iv

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

v

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 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) ...................................................................................................................... 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). United
States 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

vi

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 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.) ...................................................................... 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 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.) ............................ 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 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) .............................................. 56

vii

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

viii
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

Brooks v. 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

ix
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 [14
th
Dist.] 1994) ............... 20

Madrigal v. State, 347 S.W.3d 809 (Tex. App.Corpus Christi 2011, pet. refd.) ...
................................................................................................................................. 48

x

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

xi

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

xii
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 Supports
Limits on Law Enforcement Access to Cell Phone Location Information, 89,
(2008) ...................................................................................................................... 34

xiii

No. 04-12-00317-CR

COURT OF APPEALS
IN THE FOURTH JUDICIAL DISTRICT
SAN ANTONIO, TEXAS

JON THOMAS FORD,
Appellant, Appeal from the
186
th
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.

xiv
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).

When 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.

xv

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.

(4R13).
1
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 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 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).

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).

1
That 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.

xvi

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
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
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).

xvii
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).

1
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

2
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;
2
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).

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); Brooks v. 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.

3
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.
3
The
State claimed video showed Ford entering and exiting DEs condo, parking off

3
SX denotes States Exhibit and DX denotes Defense Exhibit.

4
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

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

5
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

6
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

7
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
State
5
is 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 a
continuance, 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 calls
and 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 next
available tower. CR553. See point of error regarding denial of continuance.

8
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.

9

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 miles west of Hwy. 37 and approximately 28 miles
west of Hwy. 181. See below.
7

7
Texas Rules of Evidence 201.

10

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 exited Gallery Court at 11:24-
11:26pm. SX149-151. It then alleged that Ford drove north on New Braunfels

11
past Gallery 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 were Ford, and the 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 light
emanating 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 activity
received or transmitted at 2:02:12am on January 1, 2009. CR346. See next point of error.

12
like Tahoes, passed on camera.
9
The 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;

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

13
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

14
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.

15
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

11
To give this Court a frame of reference, Usain Bolt, the worlds fastest man, is estimated to
run a mile in approximately 4.5 minutes.

16
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

17
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 evidence
12
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

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

18
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

19
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

20
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 in Landry.
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 all
of the exhibits to the motion to new trial in evidence.

21
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.

14
The 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 have
exercised a peremptory challenge against him had he known the information.

22
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 Procedure
15
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

15
Hereinafter TCCP.
16
The jury was confused and in dispute about whether a cell phone could send a signal to the
tower not nearest to the phone. SCR222.

23
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.

24
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:

25
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 sector
beyond 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 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.
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.

(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 Data
Without a Warrant and Without Probable Cause Effecting an Unreasonable
Search and Seizure. (SCR17677, 4R2228). Fourth Amendment to the

17
That 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.

26
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 provision
of Texas law, totally aside and apart from the U.S. Constitution The prosecutor went on to

27
Texas appellate courts review a constitutional legal ruling or other legal
ruling under a de novo standard 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. See SCR17679; 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 underthis
38.23 allegation 4R2223.
20
In Barfield v. State, 2013 Tex. App. Lexis 13493 (Tex. App-Houston [14th Dist.], no pet), the
State issued a subpoena for the information post-indictment and Barfield did not contest it was
unauthorized by State statute. See also Saenz 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 and
ample 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 admitted
that 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; a
communications 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.

28
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 vacatur of
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.

29
[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 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. 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

30
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 a wire 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 nature transmitted 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

31
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 movements
22
in violation of the First and Fourth
Amendments. The affidavits in support of the orders issued do not state probable
cause.
23

22
Ford 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.
23
The 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 with
multiple 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. It
alleges 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 crime
occurred. 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.

32
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 to Katz analysis. 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

33
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

34
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 as
Personal 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 Cell
Phone Location Information, 89, (2008).

35
Communication Through a Cellular Service Provider Is Not
Voluntary Disclosure Under Smith 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. Maryland addressed 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).

36
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

37
Order Auth. the Release of Hist. Cell-Site Info., 809 F. Supp. 2d 113, 127
(E.D.N.Y. 2011). See also Richardson v. State, 865 S.W.2d 944, 953 (Tex. Crim.
App. 1993) [rejecting Smith v. Maryland, under Art. I, 9].
Here, the States application broadly requests all data even for an idle phone.
Defense counsel described the different types of information collected to the trial
Court. 4R1314.

[I]t included locations of cell towers that serviced various uses of the
telephone. I put it that way because apparently theres several different
types of usages of cell phone. One, of course, is oral communication
between two phones. Another is text communication between two phones.
And a third is an unanswered communication, where if a phone is dialed or a
phone dials and doesnt make a connection. And yet another type of record
thats stored is data download where the phone company itself sends data
transfer to a phone. In each of those instances, records are kept by the phone
company as to which cell tower, what location is utilized by that
transmission of electronic information. And it is that information that we
seek to suppress. 4R13-14.

The State, likewise, described the variety of information it sought, obtained, and
used to prosecute Ford. 4R1920.
25

Association Information was Obtained
in Violation of the First Amendment

The State sought HCD data for the purpose of obtaining location
information. Were not talking about subscriber information. Were not talking
about number of calls. What were talking about is the location. 4R27. By

25 Fords incoming and outgoing calls, texts and datawhere the Defendants phone was
receiving that information from. 4R1920.

38
accessing and scrutinizing location data without a warrant supported by probable
cause, the State is engaged in actions that chill the freedom of association.
This is specifically the situation Justice Sotomayor warned of when she
noted that the Governments unrestrained power to assemble data that reveal
private aspects of identity is susceptible to abuse. Jones, 132 S.Ct. 945, 956
(2012) (Sotomayor, J., concurring). Searches for First Amendment protected
matters are subject to greater requirements. Search warrants must be supported by
probable cause that describes the things to be seized with scrupulous exactitude.
Stanford v. Texas, 379 U.S. 476, 485 (1965).
For all the foregoing reasons, the trial Court erred in denying Fords Motion
to Suppress HCD Evidence obtained from a cellular service provider without a
search warrant supported by probable cause.
Omissions That Eliminate Probable Cause for the Illegal Searches. (CR93-95,
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).

Omissions That Eliminate Probable Cause for the Illegal Searches. (CR93-95,
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).

Points of Error Numbers 10 and 11 will be argued together.

39
Ford filed a motion to suppress the searches to obtain his DNA and to search
his home and Tahoe based upon Franks v. Delaware, 442 U.S. 928, 99 S.Ct. 2871,
61 L.Ed.2d 304 (1979). CR93.
The keystone of the States flawed case would be evidence that Ford lied
about being at home in bed by midnight on 12/31/2008. According to its theory,
DE was killed after midnight but by 2:00am.
26
6R23-25.
Det. Carrion
27
knowingly and falsely stated that Federspill told him Fords
vehicle was not at his home or the church parking lot behind his home after
midnight. But, Det. Carrion knew Federspill and Tarver had not told him this. In
his own, recorded interview with Federspill, she told him maybe we just didnt
see his car. It could have been in the street, it could have been in the parking lot
behind his house. 2R60-61. The parking lot behind his house was the church
parking lot. (Federspills interview). Det. Carrion made the same reckless
representation with regard to Tarvers interview with him. Mr. Tarver stated he
turned into the Church parking lot behind Fords residence and did not observe
Fords white Chevy Tahoe in the parking lot. SCR102. In fact, Tarver only
looked in the middle of the church parking lot and did not observe Fords vehicle.

26
Even though ultimately the medical examiners testimony establishes the death could have
only occurred, at the earliest, at 4:00am January 1, 2009 and more likely was around noon on
January 1, 2009. 14R150-151, 15R182.
27
The Affiant.

40
6R135. Tarver stated he may have missed seeing it. 6R136.
Det. Carrion also claimed that Tarver texted Ford twice with no response
after Ford left the Mary Minor party, when in fact Det. Carrion knew, Ford
responded to Tarvers first text, that the party was no longer fun. This was
consistent with Fords alibi that he left the party before midnight to retire.
Det. Carrion also made material false statements about the video of the
entrance to the Gallery Court Condos. While he viewed these videos at the
relevant times, he falsely stated that no pedestrian traffic, other than one person at
11:42:42, appeared on the video and that no Tahoe passed by Gallery Court
heading south after the figure walked in. SCR103.
No white Chevy Tahoes are observed on the video while the male is
believed to be in the Complainants apartment complex on foot (2340 hours
to 0202 hours). There is no other pedestrian traffic visible on the video.
SCR103.

In fact, the video shows pedestrians going into the Condos that evening
28

and reflects a Tahoe driving past the Condos four and one-half minutes after the
figure walked inside. SX132-A. Seven white SUVs drive by while the 11:42
figure was still in the cul-de-sac. SX132-A and N. Det. Carrion notes none of
these, even though they look similar to Fords vehicle.

28
4:34 A person walks in front for the apartment complex. 5:39 A person walks out. 7:13 A
person walks out. 7:20 A person walks in. SCR95. Both the States medical examiner and the
defense medical examiner testify that DEs time of death was more likely later the next day
around noon. 14R150-151, 15R182.

41
Det. Carrion also falsely stated that Tarver said it was weird that Ford went
to the coast the next day since he was to meet him for lunch. Tarver never made
these statements to Det. Carrion. SCR94.
The Affiants probable cause for the search depends upon Ford having lied
about staying home after the NYE party until the next day. It also depends upon
the video showing Ford, or someone looking similar to him, and his car, going into
and out of Gallery Court. Det. Carrion omits the fact that the figure walking out at
2:02am emits a light like a cell phone screen at a time that there is no activity on
Fords phone.
In his argument concerning the motion to suppress, Ford proffered that no
witness stated that the SUVs or persons on the video footage was similar to him or
his vehicle. 3R7. Further, Ford points out the omissions in the affidavit that the
street passing Gallery Court is the route to Fords residence and the NYE party.
And he complains that his SUV is described incorrectly as lacking a luggage rack.
3R8. None of the white SUVs in the video show a black rack like Fords.
Further, counsel notes the lack of any connection averred in the affidavit between
the person in the video walking in Gallery Court at 11:42pm and the death of the
complainant. 3R9.
After excluding the false statements, and adding the material omissions, the
affidavit lacks any probable cause to believe that Fords DNA or the search of his

42
home, a year after DEs death, will produce evidence of the crime. All the
affidavit then states is that a murder occurred,
29
Ford and DE were dating and
broke up months before, Ford had difficulty with the break up but they treated each
other well and DE was killed by strangulation in her condo.
30

The State agreed Ford met the showing of false or reckless material
misstatements necessary for a Franks hearing, but opined that probable cause
remained after excluding the alleged misrepresentations and requested that the trial
Court forego a hearing. SCR125.
But, as mentioned above, no probable cause remained after considering the
evidence adduced, what Det. Carrion knew, and what remained after his reckless
false statements are extracted. It was error for the trial Court to deny the motion to
suppress on the merits.
Even considering that Fords DNA was found on a towel in DEs condo, the
affidavit for that second search warrant, without the false statements, does not state
probable cause. As Det. Carrion knew, Ford lived in DEs condo and visited it,
cleaning up after her dogs and her, days before her death. During trial, Det. Salme
agreed it was normal for a boyfriends DNA to be in DEs condo and that drying

29
The State adds flourish in argument that strangulation is personal. The affidavit does not state
this supposition. In addition, strangulation is a quiet form of killing versus a gunshot in a condo
where the walls are shared with the neighbors.
30
A condo is a place where neighbors share walls and persons committing murder may choose a
quiet way to kill; strangulation instead of a gunshot.

43
hands would leave DNA on a towel.
31
11R92-93. It is well established that when
one has access to a place, the fact that their fingerprints or DNA are present, is not
significant. See Point of Error Number 1 on sufficiency.
However, the trial Court denied a hearing and the motion on the merits.
3RR17. But Ford met the burden for a hearing on his motion. See Cates v. State,
120 S.W.3d 352, 357 (Tex. Crim. App. 2003). His motion alleged specific untrue
statements (supplemented at the argument). He averred the statements were made
in reckless disregard for the truth, made a preliminary showing of the correctness
of his allegations through the testimony of the Affiant at a prior hearing, the video
surveillance the Affiant relied upon in the affidavit, and the recorded interviews the
Affiant conducted. He also showed the Affiant disregarded known material facts
that he omitted. Further, he alleged that probable cause did not remain for the
searches after extracting the affirmative falsehoods and adding the omitted matters.
This Court should remand this case for a hearing on Fords motion to suppress.
The trial Courts findings of fact and conclusions of law conceded that false
statements were included in the search warrant affidavits
32
and removing them
from the affidavits. There was no sign of forced entry and no items missing from
DEs home, she had recently broken up with Ford who had difficulty with the

32
Stating that the false statements were unintentional even thought they were made after affiant
considered his own interviews, the video evidence he reviewed and the known facts.

44
break up, she and he attended the same party the night of the murder, Federspill
attended that party and said Ford left an ice chest there, Federspill and Tarver
decided to take him his ice chest but did not see his car, Ford said he drove home
after leaving the party and went to sleep, and a vehicle matching Fords was shown
going in and out of the condo complex the night of the murder, a figure fitting
Fords description is in this video and phone records show Ford checked his voice
mail at 2:30 am. Plus, Fords DNA was on a bloody towel in the guest bath, that
was covering DEs face. CR665-666.
The trial Court neglected to accurately redact and add facts. Det. Carrion
knew from observing the video and from conducting interviews that Ford and his
vehicle could not be identified on video, period. He also knew Ford and DE were
cordial after their break up. Carrion knew the road passing by DEs condo is the
road taken from the party to Fords home. Also, a full year elapsed between the
time of the murder and the warrant. Further, Ford was known to live at the condo
once and was known to the Affiant to have been there recently. Det. Carrion knew
the towel, with Fords DNA, was not collected by police on 1/2/2009, that DEs
parents had full control of the condo (11R151-152, 230), and no male DNA was
discovered on the towel during two prior extractions. Only after Sailor obtained
Fords DNA was it found on the towel, however, Sailors own DNA was found in
larger quantities than Fords, establishing contamination had occurred. 15R53-55.

45
A fair probability or a substantial chance that evidence of a crime will be
found at the Tahoe, Fords home and from his DNA a year after the offense is
required for probable cause to exist to support the search warrant, are all
falsehoods are redacted and omissions added in. What is left after the proper
redaction and addition does not show a fair probability that evidence of a crime
will be located in Fords home and vehicle.
The State used the evidence obtained from the search warrant in its
argument to the jury (6R37, 12R88-89), therefore, it cannot demonstrate that it did
not impact the verdict. Fords conviction should be reversed for a new trial.
POINT OF ERROR NUMBER 12: The Trial Court Improperly Admitted
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
33
401 and 602 and Simmons v. State, 622 S.W.2d 111 (Tex.
Crim. App. 1981).

The Court of Criminal Appeals held if the weapon or instrumentality
depicted as a replica or duplicate of the original is not an exact replica or
duplicate, but is merely similar to the original, then its admissibility is subject to
the abuse of discretion rule, Simmons v. State, 622 S.W.2d 111, 114 (Tex. Crim.
App. 1981) [emphasis added], [w]hether the court acted without reference to any
guiding rules and principles or whether the [admission] was arbitrary or

33
Hereinafter TRE.

46
unreasonable. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App.
1990).
The trial Court admitted a hole-punch in evidence, SX66, as the murder
weapon but it was actually purchased by Deborah Edwards after the death of her
daughter, DE. SX58, 9R168. Det. Carrion attested, Det. Snow reported in his
supplement report as finding no signs of forced entry, or any items missing.
CR629 [emphasis added]. But Deborah Edwards was the only witness that
claimed, three years later, that a hole-punch was missing from the condo.
After the hole-punch was admitted, the State asked the medical examiner,
would it have been possible for that three-hole punch to have caused the damage
to [DE]s head? 14R75 [emphasis added]. She responded, Yes. 14R75. Thus,
the State was permitted to admit a possible speculated weapon in evidence
without objection.
34

In closing, the State argued , [y]ou think if that three-hole punch was used
as the weapon, do you think he left that there and he went back to get it? 18R79.
That was pure speculation based entirely upon prior speculation that the State used
in its supposed retrieval theory in an attempt to patch up a fatal flaw in its

34
This error was plain error, or fundamental error, that deprived Ford of a fair trial. Jimenez v.
State, 32 S.W.3d 233, 238 (Tex. Crim. App. 2000). The hole-punch was an out of the whole
cloth, possible weapon. There was no evidence that a three-hole punch was used as a weapon.
The autopsy stated that the injury to DEs head was an arced abrasion. CR390. The three-
hole-punch only presents linear edges.

47
timeline.
35

The trial Court also admitted a cordless drill charging cord as a weapon
(9R197) over objection (9R196). The hole-punch and power cord are speculative
weapons and the State presented these items to the jury as though they were used
to kill DE. Again, Deborah Edwards claimed to have discovered these items were
missing, [t]hree years after [DE] died (9R196).
The cord admitted as SX66 does not have the [f]abric or some pattern to
whatever the ligature was, described in the autopsy report: slightly irregular,
possibly patterned inferior margin. 14R178, CR390, SX210. Further, the States
assertion that this was a weapon, was not based on evidence, but on speculation of
a grieving mother who claimed to have noticed the items were missing, three years
after the crime.
Here, we do not get to the abuse of discretion rule because the objects are
not similar to anything that has been identified through evidence as a weapon.
They, therefore, have no probative value and are only inflammatory and unfairly
prejudicial. A witness may not testify to a matter unless evidence is introduced
sufficient to support a finding that the witness has personal knowledge of the
matter. TRE 602. Additionally, testimony that is based solely on speculation
and conjecture necessarily lacks probative value, and therefore fails to meet the

35
Shown by manipulated HCD and misleading testimony and argument.

48
relevancy requirement of the rules of evidence. Madrigal v. State, 347 S.W.3d
809, 813 (Tex. App.Corpus Christi 2011, pet. refd.) (citing Turro v. State, 950
S.W.2d 390, 403 (Tex. App.Fort Worth 1997, pet. refd.); TRE 401).
The admission of these two pieces of evidence deprived Ford of a fair trial
by allowing the State to present to the jury a full story and avoid the fact that it
lacked any weapons and any real evidence against Ford. Further, the harm
suffered by Ford due to the admittance of the power cord can be seen on the note
sent by jurors during deliberations. Through the note, the jurors requested to see
the Power Cord (ligature). SCR223. The fact that the jury specifically requested
the power cord and placed ligature in parenthesis demonstrates that the jury gave
great weight to this supposed evidence. They referred to it as though it was the
actual ligature that killed DE.
The admission of the evidence and the States arguments to the jury that the
items offered were those used to commit the crime harmed Ford and led to his
conviction. Therefore, Fords conviction should be reversed and remanded for a
new trial.

49
in its Opening by Name Calling Ford a Liar Twelve Times Over Sustained
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 Numbers 13-15 will be argued together.

Within moments of beginning its opening, the prosecution repeatedly called
Ford a liar (6R23-27), hes a liar (6R26). See Gilcrease v. State, 32 S.W.3d
277, 279 (Tex. App.San Antonio 2000, pet refd.), cert. denied 534 U.S. 911
(2001) (This Court found that name calling can be grounds for reversal if
employed as a repeated tactic.). The prosecution called him a liar twelve times
and each time defense counsels objection was sustained. Finally, the trial Court
called counsel before the bench, twice (6R25-26), where the State conceded to
intentionally engaging in improper argument.
36
The repeated tactic establishes that
the purpose of the States remarks was not to tell the jury what the evidence would
show, prejudice and inflame the passions of the jury. The States deliberately
disregarded multiple rulings of the trial Court, sustaining defense counsels

36
Court: [T]hats argument.
Prosecutor: Fair enough. 6R26.

50
objections, thus, Fords request for a mistrial. 6R27.
In closing, the State commented on Fords failure to testify.
And they keep talking about this rumor mill, this rumor mill. Well, you
know what? A rumor mill doesn't paralyze you. If there'sif a rumor starts
to generate, well, do something to dispel it. How about say for once to
somebody, I didn't do this! And he has not said that one time to anyone.
18R90.

Counsel explained that his reason for not objecting immediately was error only and
not any tactical decision. See Affidavit CR620. However, neither a timely
objection nor an adverse ruling is required to preserve error if the argument is so
prejudicial that an instruction to disregard cannot cure the harm. Rodriguez v.
State, 646 S.W.2d 539, 54243 (Tex. App.Houston [1st Dist.] 1982). The Court
of Criminal Appeals has a long history of reversing the judgment in a criminal trial
when the prosecution has engaged in referencing the failure of the accused to
testify. See York v. State, 73 S.W.2d 538 (Tex. Crim. App. 1934) (no option but
to reverse the judgment and remand the cause for new trial). The State also shifted
the burden to Ford: If not him, who; they are going to tell you thats shifting the
burden. 18R82. Counsel immediately objects, but is overruled. And, the State
immediately burden shifted again: Who? Theyve put on a case, theyve called
witnesses, they-they have certainly cross-examined. And you know what else?
Counsel immediately objected to burden shifting and improper argument which
was overruled. 18R82. Prosecutorial jury argument that shifts the burden of proof

51
is reversible error. Dee v. State, 388 S.W.2d 946 (Tex. Crim. App. 1965). The
prejudicial effect of the tactics employed by the State in argument, in which
repeated and systematic name calling, questioning Fords decision to not testify,
and shifting the burden of proof, in a case built upon non-probative circumstantial
evidence cannot be doubted. He was convicted unfairly and this inflammatory
argument violated his right to due process. Fords conviction should be reversed
and he should be granted a new trial.
POINT OF ERROR NUMBER 16: The Trial Court Erroneously Denied
Defense Counsel a Continuance When He was Surprised by Adverse Cell
Tower Testimony (CR553-557, 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).

Ford was surprised at trial by the changed testimony of the States putative
HCD expert and his color coverage charts (including results of experiments) which
data and experiments had not been provided to the defense. The trial Court denied
the objection and the request for a continuance. 8R102.
The trial Courts denial of the continuance counsel requested deprived Ford
of due process. ORarden v. State, 777 S.W.2d 455 (Tex. App.- Dallas 1989, pet.
refd) [counsel discovered undisclosed favorable evidence during trial and wanted
to put it on, court depriving him of due process]; Gandy v. State of Alabama, 569
F.2d 1318 (5th Cir. 1978) [where lack of continuance deprives counsel and leaves
defendant with unprepared counsel, his due process rights are denied].

52
Here, counsel wanted to put on favorable evidence to Ford that he knew
existed, but that the States witness surprisingly refused to provide. Ford was in
the same position as ORarden and as Gandy. He was left with unprepared counsel
who was unable to present favorable evidence on his behalf.
Pretrial, the States witness, Doll, told counsel that Fords phone located at
333 Rosemary could utilize the Gallery Court
37
tower. CR560. This is an
important position because it flew in the face of the States trial theory. This theory
was that HCD proved Ford was physically at the decedents condo at Gallery Court
and not at home at 333 Rosemary when the State theorized was her time of death.
But when Doll testified at trial, he reversed himself and insisted (even
beyond a reasonable doubt) that activity on Fords cell phone handled by, the
Gallery Court tower, placed him exactly at the Gallery Court condos. 8R176-177.
Doll would not allow that the phone could have been recorded as active on that
tower while it was in any other area. Id. Doll also brought color-coded maps
showing coverage areas for the towers in the north central part of San Antonio that
Fords counsel had not been given. CR559. Counsel objected, stating that he was
surprised and requested a several hour continuance to properly object to and
respond to the surprise evidence. 8R101.

37
The Gallery Court tower, is a misnomer, since the tower is actually located over a half of a
mile away from Gallery Court on a high rise, the Carlyle at 7887 Broadway. CR559.

53
In response, the State misrepresented that the color charts and testimony
were merely reflective of information in the cell phone records that counsel had
had for months. But the cell phone records did not contain information about
coverage or elevations or line of sight capabilities of the cell towers. 8R101.
Counsels request for a several hour continuance, to be able to understand them
and respond, was denied. During trial, he was only given black and white copies
of these charts, which could not be understood in black and white. 8R132, CR559.
Thus, he had no ability to respond to this evidence by completion of trial.
Dolls testimony covered all of these matters. 8R101. The drawings and
experiments, which the charts represent, are private AT&T property and were not
made available and could not be obtained by the defense. 8R100. More
importantly, upon examination and reflection, they do not even represent the state
of the matters they reflect at a relevant time, December 2008-January 2009.
38

Had counsel been given the continuance and provided the actual exhibits to
prepare to examine the witness, he would have been able to point out the

38
Ken, Im going to have you take a look at SX22-30. See if you recognize that.
A. Yes, I do.
Q. All right, sir. And is that what you prepared, based upon the evidence, based upon the
Defendants cell phone records, and the knowledge that you have concerning cell towers?
A. Yes it is. 8R99.
The State refers to no time period the cell coverage information comes from. And all of the
maps utilized in the exhibits reflect they are from 2012. Further, Doll testifies that he had his
team check the path profile, current tense, for all of the cell sites. So his testimony is about
the state of cell towers and coverage in 2012, when the trial occurred. 8R131.

54
substantial discrepancies in Dolls testimony. Dolls charts in conjunction with his
testimony were offered to establish that a cell phone only ever utilized a best
closest tower.
39
But the States own evidence shows this was incorrect.
Had the witness not surprised counsel by reversing himself, the jurors would
have heard the truth, that the evidence was favorable to Ford. And had counsel
been given a continuance, he would have been able to locate an expert witness and
put him on to refute the absurd and unsupportable testimony given by Doll. See
Expert opinion of Manfred Shenk that cell phones use the next available tower,
based upon cell traffic and computer logic distribution of calls, much as customers
in a line at the bank use the next available teller. CR553-557.
Had Fords counsel been given color copies of the States charts,
40
he could
have put on this expert testimony in the twenty-one (21) remaining days before the
trial concluded (8R, 19R), and studied the charts as appellate counsel did, to
determine the charts show his testimony is not correct. See Point of Error Number
1.

39
He claimed that Fords calls always would use the best and closest tower and Fords phone
records show the use of a sector and tower where he never was that evening. See Point of Error
Number 1 on sufficiency.
40
The trial Court did not have the capability to give him color copies of the charts and the State
refused to do so. 8R132.

55
A true expert on cell phone call distribution would have been able to testify
as Manfred Shenks affidavit
41
provides. He could have offered evidence that Doll
was not qualified to testify about what tower would handle a cell phone call, a text
message or a data upload. Doll was only familiar with cell tower capacity, not call
distribution logic.
42
Nor was he familiar with the fact that a cell phone is omni-
directional and thus can utilize a tower within 31.2 miles for the average phone.
Tracking from a call detail record to a specific address or even an area is
absurd.
43

Ford was harmed by this since the State relied heavily upon the HCD and
Fords lack of his own expert regarding cell towers to convince the jury, that the
States view was wrong. 18R20. The State even criticized Ford for not calling his
own expert, shifting the burden of proof to Ford. 18R20. Since Ford was deprived
of due process by the lack of the continuance to adequately respond to the very

41
Admitted in evidence at the motion for new trial hearing without objection. 20R5.
42
Kenneth Doll has responsibilities including the number, positioning, and strength of cell
towers to provide adequate coverage for the number of cell phone using AT&T in a given area.
His scope of responsibility, regarding which he testified, does not include network traffic logic
utilized to distribute calls, text messages, and data transfers to cell towers using the AT&T
system. Therefore he is not qualified to opine regarding what cell tower a cellular telephone call
will utilize when in a certain geographical location in Alamo Heights, Texas. CR673.
43
Tracking from a call detail record to an address based on a call detail record is absurd. The
cell phones RF (radio frequency) signal is omni-directional and at .6 watts (a usual power
output) radiates out to a theoretical limit of 31.2 miles. Terrain as in hills, buildings and
obstructions will shorten this distance. But let us assume a usable signal for 20 miles. Thus our
cell phone hand set is located somewhere within 400+ square miles. CR673. Note that the
line of sight experiments that Ken Doll did were with 2012 cell tower coverage, did not take
into account the elevation of Fords home and conceded that a signal from a higher elevation
would have made a difference reaching the tower he called Gallery Court. 8R149.

56
faulty surprise evidence, this Court reviews the harm by determining whether the
State can prove it had no impact on the verdict beyond a reasonable doubt.
Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
Because the State relied on this evidence as its key evidence to convict and argued
it to the jury, it cannot show there was no harm to Ford. This is especially true in
light of the jurys confusion over HCD. See Jury Note Point of Error Number 3.
Fords conviction should be reversed and he should be granted a new trial.
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 39.14(a);
McBride v. State, 838 S.W.2d 248, 251 (Tex. Crim. App. 1992).

Ford filed a Motion for DNA Evidence Testing with the trial Court prior to
his Motion for New Trial. See CR4951. Ford was not allowed to test fibers, as
well as four brown human hairs found on the hand of the victim.
The trial Courts denial of the motion (CR49-51) was an abuse of discretion
that harmed him. Counsel for Ford, Todd Ward, submitted an affidavit explaining
that he was made aware that hair and fiber evidence collected from the body of DE
was in the possession of the State. CR618. Counsel for Ford expected the State to
test all the trace evidence in its possession. However, just before trial, counsel for
Ford determined that the testing had not been done when an expert who would
have performed the testing was not listed on the States disclosure of expert

57
witnesses dated 12/27/2011. 2R6, CR618. Ford fully expected that if DNA
evidence of another persons presence in DEs condo was found on her body, it
would be probative of her assailant and favorable to Ford. CR618.
Ford moved the trial Court for independent examination of samples in the
possession of the State for his Motion for New Trial, including but not limited to
four (4) brown human hairs found in the left hand of [DE]. CR65-66. It stated
that the court must allow discovery of evidence that is material to the defense of
the accused, and a defendant has a right to inspect evidence indispensable to the
States case because that evidence is necessarily material to the defense of the
accused. CR65. McBride v. State, 838 S.W.2d 248, 251 (Tex. Crim. App. 1992).
The States response relied upon State v. Holloway, 360 S.W.3d 480 (Tex. Crim.
App. 2012). In Holloway, the appellant, relying upon TCCP, Chapter 64, filed a
motion for DNA testing of presumptive blood on the knife that was admitted at
trial as the murder weapon. Holloway, 360 S.W.3d at 481. The Court of
Criminal Appeals held that the convicting court was without jurisdiction to order
a new trial under Chapter 64. Holloways attempted use of a motion for new trial
as a relief vehicle was much too late. The motion was made four years after the
Court of Criminal Appeals refused his petition for discretionary review. Id. at 481.
The time for filing a motion for new trial had long passed.

58
Here, Ford submitted his motion before the expiration of the trial Courts
jurisdiction and before the motion for new trial was due. Further, the conviction of
Ford was not final at that time. See Johnson v. State, 784 S.W.2d 413, 414 (Tex.
Crim. App. 1990) (A conviction from which an appeal has been taken is not
considered final until the appellate court affirms the conviction and issues its
mandate. (citing Carter v. State, 510 S.W.2d 323, 324 (Tex. Crim. App. 1974));
see also Jordan v. State, 36 S.W.3d 871, 876 (Tex. Crim. App. 2001) (A motion
for new trial, which also has the potential for undoing the proceedings, may
likewise render a conviction nonfinal. (citing Cranfil v. State, 525 S.W.2d 518,
522 (Tex. Crim. App. 1975)). Since the conviction was not final, this was not a
post-conviction proceeding requiring the employ of Chapter 64. The Motion for
New Trial had not been submitted to the trial Court, no hearing on the Motion had
been held, and the trial had not entered the appellate phase. The trial Court still
had jurisdiction over the case, was able to order the DNA testing by an expert of
Fords choosing, and erred by not doing so. If examining the hair and fibers found
on the body of DE proved the presence of someone without access to the condo of
DE, then the evidence would be exculpatory or mitigating. This evidence would be
very probative of someone who could not explain their presence and would be
exculpatory or mitigating for Ford.

59
Because Ford was entitled to marshal this evidence at this critical stage of
the proceeding, he was denied due process and compulsory process. This Court
should remand this case for an out of time motion for new trial and order the trial
Court to proceed in a manner consistent with this Courts opinion that Ford is
entitled to such testing.
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).

Ford sought to admit evidence that the Edwards home was burglarized on
12/30/2008 without signs of any break-in. Similarly to DEs condo, there was no
sign of any forced entry and the Edwards home is in a gated community. They
only discovered a knife taken.
The trial Court excluded the evidence as suggesting an alternate perpetrator
without a sufficient nexus. 9R17. But the break-in, being so close in time to DEs
death and so similar in damage to the entry to her condo, was relevant to suggest a
common culprit. Wiley v. State, 74 S.W.3d 399 (Tex. Crim. App. 2002).
In Wiley v. State, 74 S.W.3d 399 (Tex. Crim. App. 2002) the defendant tried
to accuse a by stander of setting a fire with which he was charged, but he showed
no connection between the bystander and the fire. The person was literally a
mentally impaired mere by stander. Unlike Wiley, Ford offered the evidence of

60
the break-in at the Edwards home earlier since it was so close in time, the day
before, and in character, no sign of forced entry at an Edwards property by a
person familiar with the Edwards home, and access to the gate code and
locks. The very close time nature of the break-ins at DE's condo and the Edwards
home provides compelling evidence that they are related. The necessary
connection is shown here. Further this is context evidence. Such evidence is
almost always admissible. Cf., Mann v. State, 718 S.W.2d 741 (Tex. Crim. App.
1986). As pointed out in Mann, offenses rarely occur in a vacuum. The break-in to
Mr. and Mrs. Edwards property immediately preceding the break-in to their other
property provided context to the offense. It was a harbinger of things to come.
To analyze this case to Wiley, there would have to be no relation between the
break-in on the 30th and the break-in on the 31st or 1st. But they are very much
related. In addition to being so close in time, they are break-ins that are similar
and to the same family's properties. Both the condo and the home belonged to the
Edwards parents.
PRAYER
Since the evidence was legally insufficient to sustain Fords conviction it
should be reversed and rendered. With regard to all of the error, in the trial and
motion for new trial proceedings, Ford respectfully requests that his conviction be
reversed and he be granted a new trial.

61

Respectfully submitted:

CYNTHIA E. ORR
Bar No. 15313350
GOLDSTEIN, GOLDSTEIN & HILLEY
29
th
210-226-1463
210-226-8367 facsimile
E-mail: whitecollarlaw@gmail.com

By:____/s/ Cynthia E. Orr____________
CYNTHIA E. ORR

Attorney for Appellant,
JON THOMAS FORD

CERTIFICATE OF COMPLIANCE
I hereby certify that this document complies with the typeface requirements of
Tex. R. App. P. 9.4(e) because it has been prepared in a conventional typeface no
smaller than 14-point for text and 12-point for footnotes. This document does not
comply with the word-count limitations of Tex. R. App. P. 9.4(i); but it does
comply with this Courts order granting a word-count of 18,000 words, because it
contains 16,868 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).

By:____/s/ Cynthia E. Orr____________
CYNTHIA E. ORR

62

CERTIFICATE OF SERVICE

I hereby certify that a copy of the above foregoing Appellants Brief has been
delivered via e-mail to the Bexar County District Attorneys Appellate Section at
Jeanette.canales@bexar.org and via hand delivery to Susan Reed, District
Attorney, Paul Elizondo Tower, 100 Nueva St., 4
th
Floor, San Antonio, Texas
78205, on this the 14th day of January, 2014.
By:____/s/ Cynthia E. Orr____________
CYNTHIA E. ORR

APPENDIX
Neutral
As of: January 14, 2014 3:29 PM EST
Saenz v. State
Court of Appeals of Texas, Thirteenth District, Corpus Christi - Edinburg
February 17, 2011, Delivered; February 17, 2011, Filed
NUMBER 13-10-00216-CR
Reporter: 2011 Tex. App. LEXIS 1156; 2011 WL 578757
HERIBERTO SAENZ, Appellant, v. THE
STATE OF TEXAS, Appellee.
Notice: PLEASE CONSULT THE TEXAS
RULES OF APPELLATE PROCEDURE FOR
CITATION OF UNPUBLISHED OPIN-
IONS.
Subsequent History: petition for discretionary
review dismd Saenz v. State, 2011 Tex. Crim.
App. Unpub. LEXIS 260 (Tex. Crim. App., Apr.
13, 2011)
Petition for discretionary review refused by In
re Saenz, 2011 Tex. Crim. App. LEXIS 817 (Tex.
Crim. App., June 8, 2011)
Prior History: [*1] On appeal from the 347th
District Court of Nueces County, Texas.
Core Terms
expert, testified, witness, tower, cell phone,
testimony, qualification, evidence, location,
record, train, trial, jury, experience, trial court,
shoot, education, cellular, abuse, expertise,
qualified, complex, degree, admit, cell, crime,
phone, time, admission, important
Case Summary
Procedural Posture
Appellant was convicted in the 347th District
Court of Nueces County (Texas) of one count of
murder under Tex. Penal Code Ann. 19.02
(2003) and three counts of aggravated assault
under Tex. Penal Code Ann. 22.02 (Supp.
2010). Appellant sought review.
Overview
Appellant claimed expert testimony was improp-
erly admitted. The court affirmed. A detec-
tives expert opinion under Tex. R. Evid. 702
was based on his analysis of records provided by
a phone company and admitted into evidence
without objection. Because an analysis of cell
phone records was relatively simple, the re-
quired degree of education, training and experi-
ence was not extremely high. The detectives
qualifications, including four years as an offi-
cer, a three-day course in cell phone call track-
ing, and 12 times in performing such, were suf-
ficient to allow him to assist the trier of fact
to understand the evidence. The detectives tes-
timony was neither conclusive nor disposi-
tive. He did not purport to identify appellants
precise whereabouts based on the records,
and he merely explained that the cell phone
was in the vicinity of the crime scene. There was
other ample evidence tying appellant to the
crimes. Because the trial court did not err in ad-
mitting expert testimony, the court did not
need to address whether appellants substantial
rights were affected.
Outcome
The court affirmed.
LexisNexis Headnotes
Criminal Law & Procedure > ... > Standards of Re-
view > Abuse of Discretion > Evidence
HN1 The appellate court reviews a trial courts
admission of evidence for abuse of discre-
tion.
Evidence > Admissibility > Expert Witnesses
Evidence > Admissibility > Expert Witnesses > Help-
fulness
Evidence > ... > Testimony > Expert Wit-
nesses > Qualifications
HN2 See Tex. R. Evid. 702.
Criminal Law & Procedure > ... > Standards of Re-
view > Abuse of Discretion > Evidence
HN3 The trial courts task in assessing admissi-
bility under Tex. R. Evid. 702 is to determine
whether the testimony is sufficiently reliable and
relevant to help the jury in reaching accurate re-
sults. Because the possible spectrum of edu-
cation, skill, and training is so wide, a trial court
has great discretion in determining whether a
witness possesses sufficient qualifications to as-
sist the jury as an expert on a specific topic
in a particular case. For this reason, appellate
courts rarely disturb the trial courts determina-
tion that a specific witness is or is not quali-
fied to testify as an expert. The question of
whether a witness offered as an expert pos-
sesses the required qualifications rests largely
in the trial courts discretion. Absent a clear
abuse of that discretion, the trial courts deci-
sion to admit or exclude testimony will not be
disturbed. The appellate court will uphold
the trial courts ruling unless it was outside the
zone of reasonable disagreement.
Criminal Law & Procedure > Appeals > Reversible Er-
ror > Evidence
Evidence > Admissibility > Expert Witnesses
HN4 The erroneous admission of expert testi-
mony is non-constitutional error, and will there-
fore be reversible only if it affects the defen-
dants substantial rights. Tex. R. App. P. 44.2(b).
HN5 The Texas Court of Criminal Appeals set
forth the following non-exclusive list of ques-
tions for appellate courts to consider when de-
termining if a trial court abused its discretion
in ruling on an expert witnesss qualifications:
First, is the field of expertise complex? The
degree of education, training, or experience that
a witness should have before he can qualify
as an expert is directly related to the complex-
ity of the field about which he proposes to tes-
tify. If the expert evidence is close to the ju-
rys common understanding, the witnesss
qualifications are less important than when the
evidence is well outside the jurys own expe-
rience. Second, how conclusive is the experts
opinion? The more conclusive the experts
opinion, the more important is his degree of ex-
pertise. And third, how central is the area of ex-
pertise to the resolution of the lawsuit? The
more dispositive it is of the disputed issues, the
more important the experts qualifications are.
If DNA is the only thing tying the defendant to
the crime, the reliability of the expertise and
the witnesss qualifications to give his opinion
are more crucial than if eyewitnesses and a
confession also connect the defendant to the
crime.
HN6 The degree of education, training, or expe-
rience that a witness should have before he
can qualify as an expert is directly related to
the complexity of the field about which he pro-
poses to testify.
Judges: Before Justices Garza, Benavides, and
Vela. Memorandum Opinion by Justice
Garza.
Opinion by: DORI CONTRERAS GARZA
Opinion
MEMORANDUM OPINION
Memorandum Opinion by Justice Garza
ANueces County jury convicted appellant, Heri-
berto Saenz, of one count of murder, a first-
degree felony, and three counts of aggravated as-
sault, a second-degree felony. SeeTEX. PENAL
Page 2 of 6
2011 Tex. App. LEXIS 1156, *1
CODE ANN. 19.02 (Vernon 2003); id. 22.02
(Vernon Supp. 2010). Saenz was sentenced to
seventy years imprisonment for the murder
count and twenty years imprisonment for each
of the aggravated assault counts, with the sen-
tences ordered to run concurrently. By a single
issue on appeal, Saenz argues that the trial
court abused its discretion by permitting cer-
tain expert testimony and that the error af-
fected Saenzs substantial rights. We affirm.
I. BACKGROUND
On the evening of September 30, 2009, a
group of people were gathered outside a resi-
dence located at 1112 Sabinas Street in Corpus
Christi, Texas. At approximately 11:00 p.m.,
a red truck drove past the residence. Using a fire-
arm, the driver of the truck shot ten or more
rounds of ammunition into the crowd, killing
one woman, Claryssa [*2] Silguero, and injur-
ing three men. One of the injured men, Jerry
Gonzalez, testified that Saenz was the driver of
the truck. Several other witnesses testified
that the shooting took place but could not iden-
tify the trucks driver. The firearm used in the
shooting was never recovered.
One witness, Heather McCracken, testified that
she called Saenz between 10:00 and 11:00 on
the night in question and that Saenz told her that
he thinks that he was going to go hit up the
Quare hood, referring to La Quarenta, the
neighborhood where the shooting took place.
Another witness, Bo Villanueva, testified
that Saenz admitted to the shooting while in
jail.
1
Uncontroverted testimony by Detective
Guadalupe Rodriguez of the Corpus Christi Po-
lice Department established that Saenz was a
member of Suicidal Barrios, a street gang.
The State also presented evidence regarding
calls made by Saenz on his cell phone that eve-
ning. Raymond McDonald, a legal compliance
officer employed by T-Mobile, Saenzs cell
phone service provider, testified that he is a cus-
todian [*3] of records for cell phone records
dealing with [Saenzs] cell phone number. Mc-
Donald authenticated, and the trial court admit-
ted into evidence without objection, records
for Saenzs cell phone account on the date of
the shooting, as well as records for certain cell
towers and call detail information for those
towers.
The State then called Detective Ben Tead of
the Corpus Christi Police Department. Outside
the presence of the jury, Detective Tead testi-
fied that he has an associates degree in crimi-
nal justice and ha[s] attended several
schools in investigative techniques put on by
the [Public Agency Training Council] and also
by Texas [Department of Public Safety] and
also considerable on-the-job training. He stated
that he is certified by the Texas Commission
on Law Enforcement Officer Standards and Edu-
cation and that he has received specialized
training in cell phones and their usage. Spe-
cifically, Detective Tead testified that he at-
tended a three-day course in March of 2009 fo-
cusing on isolating and identifying cellular
towers to be used to track individuals, actu-
ally track cell phones and the location, physi-
cal location, from which they were used. De-
tective Tead explained [*4] that cell phone
companies systematically keep records of (1)
the locations of the various towers that trans-
mit and receive their signals, and (2) what cel-
lular tower and what sector on that cellular
tower a call was first placed to and what cellu-
lar tower and sector on that cellular tower
was last communicated with by that cellular de-
vice.
2
Detective Tead acknowledged that he
had never before given an opinion in court re-
garding information obtained from cell
phones or cell phone towers but that he has per-
1
In his defense, Saenz called a witness, Mario Rocha, who testified that Villanueva said he was going to lie about Saenzs ad-
mission to the shooting.
2
In his testimony before the jury, Detective Tead elaborated on what a cell phone providers records typically show:
What we are going to see on our records is the first tower the cell phone communicates with and the last tower.
Now lets say I am making a phone call when I start here in Corpus Christi and stay on that phone call all the way
to San Antonio, two hours, whatever it is. We are going to know the tower which we made the first initiation of
Page 3 of 6
2011 Tex. App. LEXIS 1156, *1
formed analyses on such records some twelve
times previously.
Over defense counsels objection, the trial
court qualified Detective Tead as an expert to
testify as to the location of Saenzs cell phone at
the time of the shooting based on the calls
and the data that w[ere] provided by T-
Mobile. SeeTEX. R. EVID. 702. Detective Tead
then testified before the jury that, at Detec-
tive Rodriguezs request, he reviewed the T-
Mobile records that were previously authenti-
cated by McDonald and admitted into evidence.
He also obtained records from T-Mobile list-
ing the global positioning system (GPS) coor-
dinates for all towers located in Texas. The re-
cords showed that a thirty-second call was
placed at 10:32 on the evening in question from
Saenzs cell phone to a cell phone registered
in the name of Anthony Curiel. Detective Tead
stated that Curiel is a known member of the
Suicidal Barrio gang. The prosecutor then
asked:
Q. [Prosecutor] Now were you able
to determine the tower usage that we
can associate with the phone [call]?
A. [Detective Tead] Yes. This tower is
locatedthe GPS coordinates place
it on Leopard, near Airport Road or
yes, Airport Road.
Q. Were you able to determine which
particular part of the tower was
used to complete that call? [*6] A.
Yes. It was sector two. The call started
and ended in sector two of cellular
tower with a [location area code] of
9905 and a cellular tower I.D. of
40702 which was the cellular tower
off of Leopard [S]treet. Sector two
covers a serviceable area which in-
cludes the location of the murder.
Detective Tead further testified that some
ten other calls were made or received by
Saenzs cell phone that evening, including
four calls to and from Rebecca Mills,
who was identified as Saenzs girlfriend,
and two calls placed to other Suicidal Bar-
rios gang members. The calls which
were made at or around the approximate
time of the shooting were associated with
towers located near 1112 Sabinas Street.
According to Saenz, [i]n essence, [Detec-
tive] Tead testified that [Saenz]s cell
phone was at or near the crime scene at
the time of the shooting.
The jury convicted Saenz on all counts and
this appeal followed.
II. STANDARD OF REVIEW AND APPLICABLE LAW
HN1 We review a trial courts admission of evi-
dence for abuse of discretion. Weatherred v.
State, 15 S.W.3d 540, 542 (Tex. Crim. App.
2000). Texas Rule of Evidence 702 provides that
HN2 [i]f scientific, technical, or other special-
ized knowledge will assist the [*7] trier of
fact to understand the evidence or to determine
a fact in issue, a witness qualified as an ex-
pert by knowledge, skill, experience, training,
or education, may testify thereto in the form of
an opinion or otherwise. TEX. R. EVID. 702.
HN3 The trial courts task in assessing admissi-
bility under Rule 702 is to determine
whether the testimony is sufficiently reliable
and relevant to help the jury in reaching accu-
rate results. Kelly v. State, 824 S.W.2d 568,
572 (Tex. Crim. App. 1992). Because the pos-
sible spectrum of education, skill, and train-
ing is so wide, a trial court has great discretion
in determining whether a witness possesses
sufficient qualifications to assist the jury as an
expert on a specific topic in a particular
case. Davis v. State, 313 S.W.3d 317, 350
(Tex. Crim. App. 2010) (citing Rodgers v. State,
205 S.W.3d 525, 527-28 (Tex. Crim. App.
2006)). For this reason, appellate courts rarely
disturb the trial courts determination that a spe-
cific witness is or is not qualified to testify as
that phone call and the tower that I ended the phone call at. We are not going to know which towers [I] hit on the
way through. It is just not kept in the cell companies[] [*5] records.
Page 4 of 6
2011 Tex. App. LEXIS 1156, *4
an expert. Rodgers, 205 S.W.3d at 528, n.9
(The question of whether a witness offered as
an expert possesses the required qualifica-
tions rests largely in the trial courts discretion.
[*8] Absent a clear abuse of that discretion,
the trial courts decision to admit or exclude tes-
timony will not be disturbed.). We will up-
hold the trial courts ruling unless it was out-
side the zone of reasonable disagreement.
Weatherred, 15 S.W.3d at 542 (citing Montgom-
ery v. State, 810 S.W.2d 372, 381 (Tex. Crim.
App. 1990)).
HN4 The erroneous admission of expert testi-
mony is non-constitutional error, and will there-
fore be reversible only if it affects the defen-
dants substantial rights. Turner v. State, 252
S.W.3d 571, 585 (Tex. App.Houston [14th
Dist.] 2008, pet refd) (citing Johnson v. State,
967 S.W.2d 410, 417 (Tex. Crim. App.
1998)); seeTEX. R. APP. P. 44.2(b).
III. ANALYSIS
In Rodgers, HN5 the Texas Court of Criminal
Appeals set forth the following non-exclusive
list of questions for appellate courts to con-
sider when determining if a trial court abused
its discretion in ruling on an expert witnesss
qualifications:
First, is the field of expertise com-
plex? The degree of education, train-
ing, or experience that a witness
should have before he can qualify as
an expert is directly related to the
complexity of the field about which
he proposes to testify. If the expert evi-
dence is close to [*9] the jurys com-
mon understanding, the witnesss
qualifications are less important than
when the evidence is well outside
the jurys own experience. . . . Sec-
ond, how conclusive is the experts
opinion? The more conclusive the
experts opinion, the more important
is his degree of expertise. . . . And
third, how central is the area of exper-
tise to the resolution of the lawsuit?
The more dispositive it is of the dis-
puted issues, the more important
the experts qualifications are. If
DNA is the only thing tying the defen-
dant to the crime, the reliability of
the expertise and the witnesss quali-
fications to give his opinion are
more crucial than if eyewitnesses and
a confession also connect the defen-
dant to the crime.
Rodgers, 205 S.W.3d at 528; see Davis,
313 S.W.3d at 350.
With respect to the first prong, the State argues
that interpreting the cell phone data and locat-
ing calls within a particular geographic area on a
map based on the location of the cell towers
used in those calls was not complex, but a rela-
tively simple process. The State contends
that the process employed by Detective Tead
appears to involve little more than understand-
ing that cell phones generally connect to the
nearest [*10] tower location and then applying
that principle to facts supplied by the cell
phone provider. We agree with that character-
ization of Detective Teads testimony.
On the other hand, Saenz complains that Detec-
tive Tead has minimal training and almost
no experience. [He] has no Bachelors Degree,
has no background in cell phones or cell
phone technology, has done no independent re-
search in this area, has not published any-
thing on the subject, has done minimal analy-
ses, and has never before testified in court on the
subject. Saenz compares Detective Teads
qualifications with those of a similar expert con-
sidered in Wilson v. State, 195 S.W.3d 193,
200-02 (Tex. App.San Antonio 2006, no pet.).
In that case, the San Antonio Court of Ap-
peals found that the trial court did not abuse
its discretion in admitting expert testimony by
Crystal Danko, a Sprint employee whose du-
ties included accessing customer records in or-
der to provide tower locations. Id. at 201. Danko
had a Bachelors Degree in Criminal Justice
and had testified in court multiple times regard-
ing the tracking of cell phone calls. Id. Saenz
argues that Detective Teads education, train-
ing, and experience cannot begin to com-
pare [*11] with that of Danko. See id. We dis-
agree. Detective Teads expert opinion was
Page 5 of 6
2011 Tex. App. LEXIS 1156, *7
based on his analysis of records provided by T-
Mobile and admitted into evidence without ob-
jection by defense counsel. Although the pro-
cess involved in compiling the data is
technically complex, the process involved in
reading and analyzing the data is not. More-
over, HN6 [t]he degree of education, training,
or experience that a witness should have be-
fore he can qualify as an expert is directly re-
lated to the complexity of the field about which
he proposes to testify. Rodgers, 205 S.W.3d
at 528. Because an analysis of cell phone re-
cords such as the one performed by Detective
Tead is relatively simple, the required degree
of education, training and experience was not
extremely high. See id. Detective Teads quali-
ficationsfour years experience as a police
officer, a three-day course in cell phone call
tracking, and twelve times performing call track-
ing analyseswere sufficient to allow him to
assist the trier of fact to understand the evi-
dence. TEX. R. EVID. 702; see Kelly, 824
S.W.2d at 572.
With respect to the second and third prongs un-
der Rodgers, we find that Detective Teads tes-
timony was neither conclusive [*12] nor dis-
positive. Detective Tead did not purport to
identify Saenzs precise whereabouts based
on the cell phone records; rather, he merely ex-
plained that Saenzs cell phone was in the vi-
cinity of the crime scene at the time of the shoot-
ing. Moreover, there was ample other evidence
tying Saenz to the crime, such as Gonzalezs
eyewitness testimony that Saenz was the shooter,
as well as McCrackens testimony that Saenz
told her that he was going to go hit up the
neighborhood where the shooting took place.
We conclude that the trial court did not abuse its
discretion in admitting Detective Teads ex-
pert testimony. Having so found, we need not ad-
dress whether Saenzs substantial rights were
affected by the ruling. SeeTEX. R. APP. P. 47.1.
We overrule Saenzs issue.
IV. CONCLUSION
The judgment of the trial court is affirmed.
DORI CONTRERAS GARZA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
17th day of February, 2011.
Page 6 of 6
2011 Tex. App. LEXIS 1156, *11

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