Travis Marcellaus Edwards v. State ( 2015 )

ACCEPTED
01-15-00418-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
11/24/2015 9:46:06 AM
CHRISTOPHER PRINE
CLERK
Nos. 01-15-00416-CR, 01-15-00417-CR, 01-15-00418-CR
IN THE COURT OF APPEALS FILED IN
FOR THE FIRST DISTRICT OF TEXAS 1st COURT OF APPEALS
HOUSTON, TEXAS
11/24/2015 9:46:06 AM
CHRISTOPHER A. PRINE
TRAVIS MARCELLAUS EDWARDS Clerk
Appellant
v.
THE STATE OF TEXAS
Appellee
On Appeal from Cause Numbers 1353154, 1443321, and 1443322
From the 228th District Court of Harris County, Texas
BRIEF FOR APPELLANT
ALEXANDER BUNIN
Chief Public Defender
Harris County, Texas
DAUCIE SCHINDLER
Assistant Public Defender
Harris County, Texas
Texas Bar Number 24013495
1201 Franklin, 13th Floor
Houston, Texas 77002
Phone: (713) 368-0016
Fax: (713) 386-9278
Counsel for Appellant
Oral Argument is Requested
1
IDENTITY OF PARTIES AND COUNSEL
APPELLANT: Mr. Travis M. Edwards
TDCJ No. 01996602
Garza West Transfer Facility
4250 Highway 202
Beeville, Texas 78102
TRIAL PROSECUTOR: Mr. Aaron Chapman
Assistant District Attorneys
Harris County, Texas
1201 Franklin
Houston, Texas 77002
DEFENSE COUNSEL AT TRIAL: Ms. Allie R. Booker
4801 Woodway, Suite 300E
Houston, Texas 77056
Mr. Ronald Ray, Sr.
1456 FM 1960 West
Houston, Texas 77090
PRESIDING JUDGE: Hon. Marc Carter
228th District Court
Harris County, Texas
1201 Franklin,16th Floor
Houston, Texas 77002
COUNSEL ON APPEAL FOR APPELLANT: Ms. Daucie Schindler
Assistant Public Defender
Harris County, Texas
1201 Franklin, 13th Floor
Houston, Texas 77002
Daucie.Schindler@pdo.hctx.net
2
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL................................................................................... 2
TABLE OF CONTENTS ............................................................................................................. 3
INDEX OF AUTHORITIES......................................................................................................... 5
STATEMENT OF THE CASE ...................................................................................................... 7
STATEMENT OF FACTS ............................................................................................................ 7
SUMMARY OF THE ARGUMENT ............................................................................................ 13
ARGUMENT ............................................................................................................................ 14
ISSUE ONE: The trial court erred by denying Mr. Edwards’ Motion
to Suppress evidence seized pursuant to a general
search warrant.
ARGUMENT .......................................................................................................... 14
ISSUE TWO: The trial court abused its discretion in admitting over
objection text messages that the State claimed to have
been authored by Mr. Edwards and an unknown
individual, where the evidence was not sufficiently
authenticated. There was inadequate circumstantial
evidence establishing that such evidence was what its
proponent claimed it to be, namely, a message actually
sent by Mr. Edwards.
ARGUMENT .......................................................................................................... 18
APPLICABLE LAW, STANDARD OF REVIEW, AND DISCUSSION ........................ 19
HARM ANALYSIS .................................................................................................. 24
ISSUE THREE: The evidence is legally insufficient to sustain Mr.
Edwards’ conviction for aggravated robbery because a
reasonable doubt exists regarding whether he was in
the course of committing theft at the time he allegedly
used force against the complainant.
STANDARD OF REVIEW ....................................................................................... 25
3
ISSUE FOUR: Without some form of factual sufficiency review, Mr.
Edwards is deprived of his right to meaningful review of his
conviction for aggravated robbery, as guaranteed by the U.S.
Constitution and this Court should conclude that the
evidence in this case is factually insufficient to support that
conviction.
ARGUMENT ......................................................................................................... 27
PRAYER .................................................................................................................................. 31
CERTIFICATE OF COMPLIANCE ............................................................................................ 32
CERTIFICATE OF SERVICE .................................................................................................... 33
4
INDEX OF AUTHORITIES
Cases
Angleton v. State, 971 S.W.2d 65 (Tex. Crim. App. 1998). ................................................ 19
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010). .....................................26, 28, 30
Campbell v. State, No. 13-11-00834-CR, 2012 WL 3793431 (Tex. App. -Austin August
31, 2012, no pet.). .................................................................................................20, 21, 22
Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996). .................................................. 30
Coolidge v. New Hampshire, 403 U.S. 443 (1971) .....................................................14, 16, 17
Druery v. State, 225 S.W.3d 491 (Tex. Crim. App), cert denied, 128 S. Ct. 627 (2007).. 20
Griffin v. Illinois, 351 U.S. 12 (1956). ................................................................................... 27
Griffin v. State, 19 A.3d 415 (Md. 2011). ............................................................................. 22
Hacker v. State, 389 S.W.3d 860 (Tex. Crim. App. 2014). ................................................ 27
Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007). ..................................................... 27
In re Winship, 397 U.S. 358 (1970)....................................................................................... 28
Jackson v. Virginia, 443 U.S. 307 (1979). ....................................................................... 26, 29
Lemons v. State, 298 S.W.3d 658 (Tex. App. –Tyler 2009, pet. ref’d).............................. 17
Md. v. Garrison, 480 U.S. 79 (1987)....................................................................... 14, 16
M.L.B. v. S.L.J., 519 U.S. 102 (1996). ................................................................................ 28
Moreno v. State, 755 S.W.2d 866 (Tex. Crim. App. 1988). ................................................ 26
Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002).................................................... 24
Rich v. State, 160 S.W.3d 575 (Tex. Crim. App. 2005). ..................................................... 24
Riley v. United States, 13-132, 2014 WL 2864483, ___U.S.___ (June 25, 2014)............. 18
State v. Dixon, 13-09-004445-CR, 2010 WL3419231 (Tex. App. -Corpus Christi Aug.
27, 2010, pet. ref'd). .......................................................................................................... 17
Tibbs v. Florida, 457 U.S. 31 (1982) ..................................................................................... 26
Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012). .............................. 19, 20, 21, 22
Trevino v. Thaler, 133 S. Ct. 1911 (2013)........................................................................ 28, 29
United States v. Finley, 477 F.3d 250 (5th Cir. 2007) ............................................................ 17
United States v. Leary, 846 F.2d 592 (10th Cir. 1988). ......................................................... 17
United States v. Ross, 456 U.S. 798 (1982)............................................................................ 15
United States v. Warshak, 631 F.3d 266 (6th Cir. 2010) ...................................................... 17
Tolentino v. State, 638 S.W.2d 499 (Tex. Crim. App. [Panel Op.] 1982) ......................... 14
Will. v. State, 235 S.W.3d 742 (Tex. Crim App. 2007)................................................ 26
Winfrey v. State, 323 S.W.3d 875 (Tex. Crim. App. 2010)................................................. 27
5
Statutes
Texas Criminal Procedure Code Ann. Art. 18.01 ............................................................ 14
Texas Penal Code §29.02..................................................................................................... 25
Texas Penal Code §31.03..................................................................................................... 25
Rules
Texas Rules of App. Proc. 44.2(b). .............................................................................. 19, 24
Texas Rules of Evidence 104. ............................................................................................. 19
Texas Rules of Evidence 401. ............................................................................................. 19
Texas Rules of Evidence 901. ....................................................................................... 19, 20
Constitutional Provisions
U.S. Constitution Amendment IV ..................................................................................... 14
6
STATEMENT OF THE CASE
Mr. Edwards was charged by indictment on August 14, 2012, with aggravated
assault in cause number 1353154. (1 C.R. at 17). He was charged by indictment on
September 30, 2014, with aggravated robbery in cause number 1443321, (2 C.R. at 5),
and with felon in possession of a firearm in cause number 1443322. (3 C.R. at 5).
The indictments further alleged an enhancement paragraph for a prior conviction for
aggravated robbery. Mr. Edwards pled “not guilty” as charged in the indictments. (3
R.R. at 23). After a jury trial, Mr. Edwards was found guilty on all three charges and
sentenced to thirty (30) years in the Institutional Division of the Texas Department
of Criminal Justice for both the aggravated assault and the aggravated robbery. He
was sentenced to ten (10) years for the felon in possession of a weapon charge and all
three sentences were ordered to run concurrently. (6 R.R. at 66). Timely Notice of
Appeal was filed on April 23, 2015, and undersigned counsel with the Harris County
Public Defender’s Office was appointed to represent Mr. Edwards on appeal. (1 C.R.
at 501-503, 2 C.R. at 59-61, and 3 C.R. at 57-59).
STATEMENT OF FACTS
Angel Madrazo, a Cuban immigrant to the United States, worked as a security
guard for Texas Line Agency Patrol with the assignment of monitoring the admission
of patrons to a game room. Only individuals with membership cards were admissible
to the game room and he was responsible for refusing admission to nonmembers.
Mr. Madrazo wore a security guard’s uniform, but he took off the shirt and left it in
7
his truck when he used the restroom because the restroom was small and had no
place to hang clothing. On June 21, 2012, he removed his shirt to use the restroom,
but when he returned to his post, two male nonmembers attempted to enter the game
room. When he refused admission one of the men pulled out a gun. Unable to
retrieve his own weapon quickly enough, Mr. Madrazo kicked the man with the gun
causing him to fall backwards and accidently discharge his weapon. That man, who
Mr. Madrazo identified in the courtroom as Mr. Edwards, regained his balance and
took off running. Mr. Madrazo chased the man and noticed two additional men; one
in a car and the other behind the car. A shootout ensued and Mr. Madrazo
discharged his weapon at least fifteen times. (4 R.R. at 140-161).
Two patrons of the game room, Katherine Butler and Curtis Young, saw the
men attempt to enter and heard several shots fired. Ms. Young was able to see the
guard follow the men out of the game room and duck behind a big pillar; firing his
gun. Mr. Young was outside and saw an illegally parked car with a man sitting in it.
Both of them believed that bullets seemed to be “coming from everywhere.” Mr.
Young called 911 and he was able to approach Mr. Madrazo and allow him to speak
with the 911 operator. (4 R.R. at 95; 110-124).
The first responder to the scene was deputy Tommy Wilks with the Harris
County Sheriff’s Office. When he arrived at the location he identified a Hispanic
male, Mr. Madrazo, and found him to be in possession of a 9-milimeter pistol. Mr.
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Madrazo gave him the weapon and an empty magazine. Deputy Wilks conducted a
protective sweep, secured the scene, and took the statements of witnesses while other
officers and the crime scene investigation unit arrived. (5 R.R. at 10-23).
Deputy Gary Clayton with the Harris County Sheriff’s Office crime scene unit
arrived at the scene and recovered a number of spent shell casings and one firearm
from outside the game room, but he was denied access to the interior of the game
room. In addition, the vehicle at the scene was processed and it was determined that
the ignition system had been broken suggesting that the vehicle had been stolen. A
deformed projectile was found on the floor of the vehicle and a cell phone was found
on top of the vehicle. Finger prints were lifted from the lid of the trunk and the
fingerprints indicated a possible match to Mr. Edwards. (5 R.R. at 26-55).
Deputy Clayton recovered four (4) Winchester Lugar 9-millimeter spent
casings, five (5) PPU Lugar 9-millimeter spent casings, one (1) CBC 9-millimeter
Lugar spent casing, two (2) Blazer 9-millimeter Lugar spent casings, one (1)
Winchester 9-millimeter Lugar spent casing, and one (1) Federal .380 caliber auto
spent casing at the scene. (5 R.R. at 83). The gun that was obtained from the security
guard at the scene was a 9-millimeter semiautomatic firearm. (5 R.R. at 78).
Therefore, nearly all of projectiles recovered were fired from the security guard’s gun.
(5 R.R. 96).
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Deputy Roberto Rincon with the robbery division of the Harris County
Sheriff’s Office was assigned to the case on June 27, 2012. He produced a photo
array that included a picture of Mr. Edwards and he presented it to Mr. Madrazo who
identified Mr. Edwards. (4 R.R. at 41-48; 54). Mr. Madrazo also gave a statement
indicating that he had discharged his weapon and believed that he had hit one of the
suspects. On the day of the robbery, a man named Rory Jones was admitted to the
hospital with a gunshot wound and he too was identified as a suspect in the robbery.
An employee at the game room, Maria Madina, was able to identify Mr. Jones as one
of the shooters at the scene, but she was not able to identify Mr. Edwards. (4 R.R. at
49-58). Accord to Deputy Rincon, Mr. Edwards was originally charged with
aggravated assault, not aggravated robbery, because there was no evidence that he
“demanded any money.” (4 R.R. at 78). In addition, Rebecca Mikulasovich, a DNA
analyst with the Harris County Institute of Forensic Sciences, analyzed several swabs
for this case and was not able to match any of the samples taken to a DNA sample
obtained from Mr. Edwards. (5 R.R. at 132-158).
Tuan Pham, an investigator with the Harris County District Attorney’s Office,
received the cell phone that was obtained in connection with this case and he
downloaded the data from the phone to a thumb drive. He generated a report
documenting all of the data obtained from the phone and the phone’s SD card
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including pictures, e-mails, and text messages that predated and were unrelated to this
case.
However, on June 21, 2012, there was a series of text messages suggesting that
someone was scoping out an unknown location for purposes of committing a
robbery. The text messages were admitted into evidence as follows:
Incoming Text: A lil Mexican man for security. One man, two chicks,
Mexicans. They by the door. The Mexican chick in purple
got the money.
Outgoing text: So it’s four people total. One security guard, two floor
workers both ladies and a dude? What side does he have
his strap on? Also is he opening the doors to let people
out?
Incoming Text: Right side but he old.
Incoming text: He swing the door open wide
Outgoing text: How many people total on the floor, 3 r 4? Whenever its
good. We ready.
Incoming text: Yea, he open it and he watching TV with two of the
workers talking. The one with the money in the purple got
the money.
Outgoing Text: So it’s just two ladies n a security guard? I keep asking
bcuz I don’t won’t no surprises.
Incoming text: One other Mexican man in a gray shirt.
Outgoing Text: Do we have a strap?
Incoming Text: Yea, on the right side.
Outgoing Text: We were finding a escape route. Is it still good?
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Incoming Text: Yea
Incoming Text: They emptying two machines.
Outgoing Text: Let them empty them all out. Keep ur eyes open. They
‘bout to hit the back room and count the scrill.
Incoming Text: Ok.
Outgoing Text: Where is the employees only room located?
Incoming Text: In the front.
Outgoing Text: To the left r right? Queen, I need specific details.
Incoming Text: Nall the back, but let me watch them ‘cause they signs
fucked up. That’s a restroom right in front, but it’s two
doors in the back.
Incoming Text: They all doing the machines with the money in a
Honeybun box.
Outgoing Text: Let them finish n when they all on the floor, text me when
it’s good.
Incoming Text: Money room back right-hand side on the ATM side.
Incoming Text: Ok, one chick in the back, but they close at 12.
Outgoing Text: Is U ready? Can that door be kicked open? Is the money
room open?
Incoming Text: The chick in black in there and the chain off the door.
What I need to do?
Outgoing text: If it’s cool n that security guard chilling, draw ur tic n hit
me.
Incoming Text: I’m da only person left. What’s good?
12
Outgoing Text: When u c us, pull up, cum out, When he get out.
(5 R.R. at 184-194; State’s Exhibit 205).
SUMMARY OF THE ARGUMENT
The trial court erred in denying Mr. Edward’s Motion to Suppress and
improperly admitting evidence obtained from a cell phone found at the scene and
searched pursuant to an impermissibly general search warrant. Even if the search
warrant is deemed sufficiently specific, the text messages obtained from the phone
and attributed to Mr. Edwards and an unknown individual were inadmissible because
the state failed to properly authenticate them and the probative value of admission
was outweighed by the prejudicial effect.
In addition, Mr. Edwards argues that the evidence is in no way sufficient to
support a conviction for aggravated robbery, as there was not even a modicum of
evidence that Mr. Edwards took any measure toward committing theft of property.
Even if the evidence is legally sufficient, Mr. Edwards will be denied due process of
law if this court fails to conduct a factual sufficiency review because the evidence is
factually insufficient to support his conviction for aggravated robbery.
13
ARGUMENT
ISSUE ONE: The trial court erred by denying Mr. Edwards’ Motion
to Suppress evidence seized pursuant to a general
search warrant.
STANDARD OF REVIEW
The Fourth Amendment to the United States Constitution requires that “no
warrants shall issue, but upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the person or things to be
seized.” U.S. Const amend. IV. Likewise, the Texas Code of Criminal Procedure
article 18.01(c) requires a probable cause affidavit to set forth facts establishing that
(1) a specific offense has been committed, (2) the item to be seized constitutes
evidence of the offense or evidence that a particular person committed the offense,
and (3) the item is located at or on the person, place, or thing to be searched. Tex.
Code Crim. Proc. Art. 18.01(c); see Tolentino v. State, 638 S.W.2d 499, 501 (Tex. Crim.
App. [Panel Op.] 1982).
Items, such as data, can only be seized if there is probable cause to support
their seizure. See Coolidge v. New Hampshire, 403 U.S. 443 (1971). With respect to the
particularity requirement, the Supreme Court has recognized that it “ensures that the
search will be carefully tailored to its justifications, and will not take on the character
of the wide-ranging exploratory searches the Framers intended to prohibit.” Maryland
v. Garrison, 480 U.S. 79, 84 (1987). As a result, “the scope of a lawful search is
‘defined by the object of the search and the places in which there is probable cause to
14
believe that it may be found. Just as probable cause to believe that a stolen
lawnmower may be found in a garage will not support a warrant to search an upstairs
bedroom, probable cause to believe that undocumented aliens are being transported
in a van will not justify a warrantless search of a suitcase.’” Id. at 84-85 (citing United
States v. Ross, 456 U.S. 798, 824 (1982)).
Here, the search warrant was overbroad and failed to show that the items
seized were contraband, instruments of committing a crime, or evidence of a crime’s
commission. The search requested by law enforcement here was the very “general”
search that precipitated the enactment of the Fourth Amendment. The warrant
reads:
NOW, THEREFORE, you are commanded to enter and search one cell
phone, for items and information constituting evidence of an offense,
specifically: Aggravated Assault of a Security Officer, Theft of an Automobile,
and/or Aggravated Robbery or constitution evidence tending to show that a
particular person committed an offense that may be found therein. The
phones may be more particularly described as: a Huawei M865 cell phone with
black touchscreen and blue case, with serial number #T8U9MA1172104698.
The phone was found abandoned on top of a vehicle belonging to
complainant Ashley Alexander, at or near 12750 Woodforest, Houston, Texas,
on June 21st, 2012. At this time the cellular phone is now in the possession of
Affiant at 1201 Franklin St., Houston, Harris County, Texas, and you are
commanded to enter this phone for the purpose of searching for and seizing
all stored communication located in an electronic mailbox, voicemail, Personal
Identification Numbers, text messages, names, numbers and addresses stored
in a phone book application, all cell phone memory including flash drives,
photographs and any data, video, audio, and cellular number files listed in the
memory or stored on this cellular phone, electronic media; digital notes stored
within; audio recordings stored within; history of web sites accessed on the
world wide web; emails received, sent, deleted, saved, or otherwise; call logs
received, sent, deleted, saved or otherwise; phone numbers received, sent,
15
deleted, saved, or otherwise; text messages received, sent, deleted, saved or
otherwise; instant messaging received, sent, deleted, saved or otherwise; voice
messages received, sent, deleted, saved, or otherwise; photographs received,
sent, deleted, saved or otherwise; videos received, sent, deleted, saved, or
otherwise.
(See State’s Exhibit 4). The Supreme Court has recognized two constitutional
protections served by the warrant requirement of the Fourth Amendment. “First, the
magistrate’s scrutiny is intended to eliminate altogether searches not based on
probable cause. The premise here is that any intrusion in the way of the search or
seizure is an evil, so that no intrusion at all is justified without a careful prior
determination of necessity.” Coolidge, 403 U.S. at 467. Second, “those searches
deemed necessary should be as limited as possible. Here, the specific evil is the
‘general warrant’ abhorred by the colonists, and the problem is not that of intrusion
per se, but of a general, exploratory rummaging in a person’s belongings.” Id.
Therefore, to follow the dictates of the Fourth Amendment and avoid issuing a
general warrant, there must be probable cause to seize each item specified in the
warrant. Here, the warrant casts a dragnet over data and communications that surely
have nothing to do with this case, including those to and from third parties, who will
never know of the State’s seeing their communications with Mr. Edwards about
unrelated matters. With respect to searches of electronic information, careful
attention must be paid to the dictates of the particularity requirements of the Fourth
16
Amendment, which limits the “authorization to search to the specific areas and things
for which there is probable cause to search.” Garrison, 480 U.S. at 84.
Any search of an electronic source has the potential to unearth tens or
hundreds of thousands of individual documents, pictures, movies, or other
constitutionally protected content. It is thus imperative that the State “describe the
items to be seized with as much specificity as the government’s knowledge and
circumstances allow.” United States v. Leary, 846 F.2d 592, 600 (10th Cir. 1988). The
general warrant in this case allowed the State to conduct a “general, exploratory
rummaging in a person’s belongings” –in this case an individual’s cellphone. Coolidge,
403 U.S. at 467. This overly broad warrant makes no effort to balance the law
enforcement interest against the expectation of privacy cellphone owners have. See
United States v. Warshak, 631 F.3d 266, 285-86 (6th Cir. 2010).
In Dixon, the court found that there was some evidence that Dixon owned the
cell phone in question, therefore he had a right to exclude others and he had a
reasonable expectation of privacy in his cell phone. State v. Dixon, 13-09-00445-CR,
2010 WL 3419231 at *5-6 (Tex. App. –Corpus Christi Aug. 27, 2010, pet. Ref’d). The
Corpus Christi Court of Appeals stated that “[a] person has a privacy interest in
information contained in a cellular phone.” Id. at *6(quoting Lemons v. State, 298
S.W.3d 658, 662 (Tex. App. –Tyler 2009, pet. Ref’d) citing United States v. Finley, 477
17
F.3d 250, 259-60 (5th Cir. 2007)); see Riley v. United States, 13-132, 2014 WL 2864483,
___ U.S. ___ (June 25, 2014).
The trial court abused its discretion in denying Mr. Edwards’ Motion to
Suppress and this constitutes reversible error because the only evidence admitted at
trial that even suggests a robbery was intended came from text messages retrieved
from the overly broad search of the phone.
ISSUE TWO: The trial court abused its discretion in admitting
over objection, text messages that the State claimed to
have been authored by Mr. Edwards and an unknown
individual, where the evidence was not sufficiently
authenticated. There was inadequate circumstantial
evidence establishing that such evidence was what its
proponent claimed it to be, namely, a message actually
sent by Mr. Edwards.
ARGUMENT
The problem with the text messages that purport to reflect a conversation
between Mr. Edwards and an unknown individual, is that the prosecutor did not take
the reasonable steps that were available to authenticate such evidence, i.e., to lessen
the possibility that the messages came from someone else posing as Mr. Edwards.
The failure of the prosecutor to take the necessary steps to prove that the text
messages were what he claimed them to be, i.e., messages sent by Mr. Edwards from
his cell phone, left open the possibility that the messages in question were not
authentic and were sent by someone else under his name. By allowing the
introduction of an exhibit that had not been properly authenticated under Tex. R.
18
Evid. 901, the trial court abused its discretion and Mr. Edwards suffered harm under
Tex. R. App. P. 44.2(b).
APPLICABLE LAW, STANDARD OF REVIEW AND DISCUSSION
The question of whether or not to admit evidence at trial is a preliminary
matter to be decided by the trial court. Tex. R. Evid. 104(a). In order to be
admissible, the evidence in question must of course be relevant. Tex. R. Evid. 401.
The Texas Rules of Evidence define relevant evidence as “evidence having any
tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without
the evidence.” Id.
Sometimes the relevancy of the evidence depends upon its source, its identity,
or its connection with a particular person, place, thing, or event, in which case the
proponent of the evidence must authenticate it before it becomes relevant. Angleton v.
State, 971 S.W.2d 65 (Tex. Crim. App. 1998). The proponent meets this threshold
requirement of authenticity by satisfying the trial court, as part of the court’s “gate-
keeping” function under rule 104, that the matter in question is in fact what it is
claimed to be. Tex. R. Evid. 901(a); Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim.
App. 2012). The ultimate question of whether an item of evidence is what the
proponent claims is a question for the fact finder. Id. In a jury trial, the preliminary
question for the trial court to decide is whether the proponent of the proffered
19
evidence has supplied facts that are sufficient to support a reasonable jury
determination that the evidence is authentic. Druery v. State, 225 S.W.3d 491, 502 (Tex.
Crim. App.), cert. denied, 128 S. Ct. 627 (2007); Campbell v. State, No. 03-11-00834-CR,
2012 WL 3793431 at *3 (Tex. App. -Austin August 31, 2012, no pet.). An appellate
court reviews a trial court’s decision as to whether evidence is properly authenticated
for an abuse of discretion. Tienda, 358 S.W.3d at 638.
In Campbell, supra, the issue was whether the trial court’s introduction of
Facebook messages (allegedly sent by the defendant to the complainant) was an abuse
of discretion because they were not shown to have actually been sent by the
defendant. Thus, the question became whether such evidence had been properly
authenticated. The Austin court made the following general comments about Tex. R.
Evid. 901, which are applicable here:
Rule 901 of the Texas Rules of Evidence provides a nonexclusive
list of methods for authentication of evidence. See Tex.R. Evid. 901. For
example, evidence may be authenticated by testimony from a witness
with knowledge that a matter is what it is claimed to be. Id. R. 901(b)(1).
Evidence may also be authenticated by “appearance, contents,
substance, internal patterns, or other distinctive characteristics, taken in
conjunction with circumstances.” Id. R. 901(b)(4). In the context of
communications, the authentication issue that generally arises is whether
the evidence is sufficiently linked to the purported author. With respect
to electronic communications-such as e-mails, text messages, and as in
this case, Facebook-the rules of evidence, including rule 901, are
considered at least generally “adequate to the task.” See Tienda, 358
S.W.3d at 638. Printouts of emails, internet chat room dialogues, and
text messages have all been admitted into evidence when found to be
20
sufficiently linked to the purported author so as to justify the
submission to the jury for its ultimate determination. See id. at 639.
Notwithstanding the above, it is important to note that given the nature of
electronic communication, the mere fact that a communication has come from a
certain electronic source is, without more, not enough to establish that it therefore
must have come from a certain person. In Tienda, supra, which dealt with the
admissibility of what was claimed by the State to be a MySpace page of the defendant,
the Court of Criminal Appeals pointed out:
However, mindful that the provenance of such electronic writings can
sometimes be open to question—computers can be hacked, protected
passwords can be compromised, and cell phones can be purloined—
courts in other cases have held that not even the prima facie
demonstration required to submit the issue of authentication to the jury
has been satisfied. That an email on its face purports to come from a
certain person’s email address, that the respondent in an internet chat
room dialogue purports to identify himself, or that a text message
emanates from a cell phone number assigned to the purported author—
none of these circumstances, without more, has typically been regarded
as sufficient to support a finding of authenticity. Tienda, 358 S.W.3d at
641; see also Tienda, footnote 35 (a list of citations where authentication
of electronic messages was not found to be adequate, where there were
no contextual clues to show that the message came both from the
particular site and from the sender in question).
In Campbell, supra, the Austin Court of Appeals pointed out a twofold problem
with respect to establishing that a Facebook message came from a specific individual:
Facebook presents an authentication concern that is twofold. First,
because anyone can establish a fictitious profile under any name, the
21
person viewing the profile has no way of knowing whether the profile is
legitimate. Griffin v. State, 19 A.3d 415, 421 (Md. 2011)(citing David
Hector Montes, Living Our Lives Online: The Privacy Implications of Online
Social Networking, J.L. & Pol’y for the Info. Soc’y, Spring 2009, at 507,
508). Second, because a person may gain access to another person’s
account by obtaining the user’s name and password, the person viewing
communications on or from an account profile cannot be certain that
the author is in fact the profile owner. Id. Thus, the fact that an
electronic communication on its face purports to originate from a
certain person’s social networking account is generally insufficient
standing alone to authenticate that person as the author of the
communication. See Tienda, 358 S.W.3d at 642. However, the most
appropriate method for authenticating electronic evidence, as with any
kind of evidence, “will often depend on the nature of the evidence
and the circumstance of the particular case.” Id. at 641. Campbell,
supra, 2012 WL 3793431 at *4.
There are differences between the Facebook messages in Campbell and the text
messages in this case. First, the messages sent from Campbell’s Facebook account
contained a “unique speech pattern…that Campbell, a native of Jamaica, used in
testifying at trial.” Campbell, supra, 2012 WL 3793431 at *6. No pattern was established
in this case by showing any similarity between the text messages attributed to Mr.
Edwards and his normal way of speaking or writing.
Anyone in possession of the Mr. Edwards’ cellphone could have posted the
text message. It is not hard to imagine a different outcome in this case, especially with
regard to his conviction of aggravated robbery, if it had turned out that the message
allegedly sent from Mr. Edwards had been sent from someone else. In determining
whether the context of the text messages suggests that they are authentic, i.e., that
22
they were really sent by Mr. Edwards, this Court should remain mindful of what
available steps the prosecutor could have taken…but didn’t bother to take.
The instant case also differs from Campbell in that whereas the message in
Campbell specifically referenced the criminal incident for which Campbell was on trial,
the text messages in the instant case did not. Campbell was accused of hitting his
girlfriend several times in the face. He specifically alluded to this by stating in the
Facebook message “I should never put my hand on you, who is me to do that to
you.” Campbell, supra, 2012 WL 3793431 at *5. He also specifically indicated in the
message his awareness that he had committed the criminal act he was on trial for
(“don’t lock me up please I am begging you” and “I am guilty what was I thinking”).
In contrast, the text messages here make no specific allusion to any particular location
and do not comport with the evidence otherwise admitted describing the scene and
the complainant who was described as a “lil Mexican” in the text message, but in
actuality is “very tall”. (5 R.R. at 188; 4 R.R. at 94).
In summary, the trial court abused its discretion in allowing the text messages
into evidence over defense counsel’s objection that there was no proper foundation
and the probative value does not “substantially outweigh the undue prejudice.’ (5
R.R. at 175-180). The trial court’s ruling was not within the zone of reasonable
disagreement and it was error to admit the text messages.
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HARM ANALYSIS
Because error in the admission of evidence is non-constitutional, the Appellant
must show that the error affected his substantial rights. Tex. R. App. P. 44.2(b). A
substantial right is affected when the error has a substantial or injurious effect or
influence in determining the jury’s verdict. Rich v. State, 160 S.W.3d 575, 577 (Tex.
Crim. App. 2005). In determining whether the error influenced the jury, or only had a
slight effect, a reviewing court must consider whether the State emphasized the error,
whether the erroneously admitted evidence was cumulative, and whether it was
elicited from an expert. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).
The prosecutor repeatedly referred to the text messages in closing argument.
Without the introduction of the text messages, the State’s case turned entirely upon
the testimony of the Complainant. The text messages formed the main part of the
prosecutor’s closing argument (6 R.R. at 31-33). The jury specifically requested the
text messages during deliberation, (1 C.R. at 483 and 2 C.R. at 41), and the text
messages were not cumulative of other evidence, but in fact the only evidence to
suggest an intended theft. As a result, the error in admitting the text messages was
harmful under Tex. R. App. P. 44.2(b).
24
ISSUE THREE: The evidence is legally insufficient because a
reasonable doubt exists in the record regarding
whether Mr. Edwards was in the course of committing
theft at the time he used force against the complainant.
Under the Texas Aggravated Robbery statute a person commits robbery if, in
the course of committing theft and with intent to obtain or maintain control of the
property, he intentionally or knowingly threatens or places another in fear of
imminent bodily injury or death. Tex. Penal Code § 29.02(a)(2). A person commits
theft if he unlawfully appropriates property with intent to deprive the owner of it.
Tex. Penal Code § 31.03(a). Appropriation is unlawful if it is without the owner’s
effective consent. Tex. Penal code § 31.03(b)(1). A person commits aggravated
robbery if he uses or exhibits a deadly weapon during the commission of robbery.
Tex. Penal Code § 29.03(a)(2). Thus, Mr. Edwards committed the offense of
aggravated robbery as alleged in the indictment if (a) while in the course of unlawfully
appropriating property, and (b) without Madrazo’s consent (c) with the intent to
deprive him of property, (d) Mr. Edwards (e) intentionally or knowingly (f)
threatened or placed Madrazo in fear of bodily injury or death (g) while using or
exhibiting a deadly weapon. See Tex. Penal Cod §§ 29.02(a)(2), 29.03(a)(2), §
31.03(a), (b)(1).
In order to obtain a valid conviction under this statute, the fact finder must
decide that the defendant is guilty “beyond a reasonable doubt,” but, ultimately, the
25
evidence on which the case is decided must be sufficient to support the conviction.
See Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010); Jackson v. Virginia, 443 U.S.
307 (1979). Evidence is legally insufficient when the “only proper verdict” is
acquittal. Tibbs v. Florida, 457 U.S. 31, 41-42 (1982). The appellate court’s role is that
of a due process safe guard, ensuring only the rationality of the trier of fact’s finding
of the essential elements of the offense beyond a reasonable doubt. Moreno v. State,
755 S.W.2d 866, 867 (Tex. Crim. App. 1988). Although deference is accorded to the
fact finder to weigh the evidence presented and to draw reasonable inferences from
the facts, the appellate court must “ensure that the evidence presented actually
supports a conclusion that the defendant committed” the criminal offense of which
he is accused. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Under
Jackson, there are two circumstances in which evidence is legally insufficient: “(1) the
record contains no evidence, or merely a ‘modicum’ of evidence, probative of an
element of the offense, or (2) the evidence conclusively establishes a reasonable
doubt.
No witness testified that he attempted to obtain control over their property.
In fact, Deputy Robert Rincon testified that Mr. Edwards was not originally charged
with aggravated robbery because there was no evidence that he ever “demanded any
money.” (4 R.R. at 78). There is some suspicion that Mr. Edwards could have been
there to take property based on text messages that cannot be affirmatively attributed
26
to him, but even the text messages are not conclusive evidence of his intent to
commit theft as alleged in the indictment. The fact finder is “not permitted to draw
conclusions based on speculation.” Hooper v. State, 214 S.W.3d 9, 16 (Tex. Crim. App.
2007). If the evidence at trial raises only a suspicion of guilt, even a strong suspicion,
then that evidence is insufficient. Winfrey v. State, 323 S.W.3d 875, 882 (Tex. Crim.
App. 2010). Evidence of “suspicion linked to other suspicion” is not enough to
sustain a conviction. Hacker v. State, 389 S.W.3d 860, 874 (Tex. Crim. App. 2014).
Although Mr. Edwards may have been aggressive in his attempt to enter the
game room, the state chose to charge him with aggravated robbery and the evidence
at trial fails to prove that he intended to obtain or maintain control of any property.
It is impossible to say from the evidence at trial that the acts of Mr. Edwards tended
to effect the commission of aggravated robbery. Because the evidence is insufficient
to find that Mr. Edwards committed the offense of aggravated robbery as alleged in
the indictment he should be acquitted by this court of that offense.
ISSUE FOUR: Without some form of factual sufficiency review,
Mr. Edwards is deprived of his right to meaningful
review of his conviction for aggravated robbery, as
guaranteed by the U.S. Constitution and this Court
should conclude that the evidence in this case is
factually insufficient to support that conviction.
If a state gives criminal defendants a right to appeal, the process of appellate
review must be consistent with the requirements of due process and equal protection.
See Griffin v. Illinois, 351 U.S. 12, 18 (1956). The Supreme Court’s decisions
27
concerning access to judicial process reflect both equal protection and due process
concerns. “(I)n the Court’s Griffin-line cases, ‘[d]ue process and equal protection
principles converge.’ …The due process concern homes in on the essential fairness
of the state-ordered proceedings anterior to adverse state action.” M.L.B. v. S.L.J.,
519 U.S. 102, 120 (1996).
In a case from Texas, the Supreme Court said: “[F]or present purposes, a
distinction between (1) a State that denies permission to raise [a] claim on direct
appeal and (2) a State that in theory grants permission but, as a matter of procedural
design and systemic operation, denies a meaningful opportunity to do so is a
distinction without a difference.” Trevino v. Thaler, 133 S. Ct. 1911, 1921 (2013).
The problem with Texas’ legal-sufficiency review as applied to criminal appeals
post-Brooks is this: the courts of appeal have too often used catch phrases like
“almost total deference” and “any evidence to support the verdict” to deny
meaningful review of whether the State actually satisfied its burden to prove every
essential fact necessary to an offense beyond a reasonable doubt. The reasonable
doubt standard is “indispensable to command the respect and confidence of the
community in applications of criminal law. It is critical that the moral force of the
criminal law not be diluted by a standard of proof that leaves people in doubt
whether innocent men are being condemned. It is also important in our free society
that every individual going about his ordinary affairs have confidence that his
28
government cannot adjudge him guilty of a criminal offense without a proper
factfinder of his guilt with utmost certainty.” In re Winship, 397 U.S. 358, 364 (1970).
In Trevino, the Supreme Court concluded that Texas law did not offer a
meaningful opportunity for defendants to present a claim of ineffective assistance of
trial counsel on direct appeal. Because of this problem, which the Court considered
to be structural constitutional error, the Court decided that the defendant was not
procedurally barred from raising a federal habeas claim of ineffective assistance.
Trevino, 133 S. Ct. at 1921.
In this case, the structural problem relates to how Jackson deferential standard
of a “scintilla of evidence” impairs meaningful review of whether Mr. Edwards was
convicted of aggravated robbery on evidence beyond a reasonable doubt.
When reviewing courts limit their analysis to the question of whether any
evidence at all supports a jury’s verdict, they can never reach the real question: did
the evidence prove beyond a reasonable doubt that the defendant was guilty? The
“merging” of the legal and factual sufficiency standards of review is not facially
problematic, but, as in Trevino, the systemic operation of the Brooks rule makes it
highly unlikely that a defendant will have a meaningful review of evidentiary
sufficiency issues.
Even if the evidence were found to be legally sufficient to convict Mr.
Edwards of aggravated robbery, it was not factually sufficient under the pre-Brooks
29
standard, which required the appellate courts to review the evidence in a neutral light,
not in the light most favorable to the verdict. See Clewis v. State, 922 S.W.2d 126, 129
(Tex. Crim. App. 1996), overruled by Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App.
2010). Viewing all of the evidence in a neutral light, no rational jury could find
beyond a reasonable doubt that Mr. Edwards had the intent to obtain and maintain
control of the property of the complainant. The evidence was factually insufficient to
support the conviction.
30
PRAYER
Mr. Edwards prays that this Honorable Court reverse the judgment of the trial
court and order a judgment of acquittal as to the aggravated robbery conviction and
reverse the judgment of the trial court and order a new trial as to the aggravated
assault and felon in possession of a firearm convictions. Or, in the alternative, Mr.
Edwards asks this court to reverse all three convictions and remand to the trial court
for a new trial.
Respectfully submitted,
Alexander Bunin
Chief Public Defender
/s/ Daucie Schindler
Daucie Schindler
State Bar No. 24013495
Public Defender’s Office
Harris County, Texas
Assistant Public Defender
1201 Franklin, 13th Floor
Houston, Texas 77002
Daucie.Schindler@pdo.hctx.net
Tel: 713-274-6717
Fax: 713-368-9278
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CERTIFICATE OF COMPLIANCE
Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this
brief complies with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).
1. Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1), this brief
contains fewer than 7,142 words printed in a proportionally spaced typeface.
2. This brief is printed in a proportionally spaced, serif typeface using Garamond
14 point font in text and Garamond 13 point font in footnotes produced by
Microsoft Word Software.
3. Undersigned counsel understands that a material misrepresentation in
completing this certificate, or circumvention of the type-volume limits in Tex. R. App.
Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against
the person who signed it.
/s/ Daucie Schindler
DAUCIE SCHINDLER
32
CERTIFICATE OF SERVICE
I certify that on the 24th day of November, 2015, a copy of the foregoing
instrument has been electronically served upon the Appellate Division of the Harris
County District Attorney’s Office.
/s/ Daucie Schindler
DAUCIE SCHINDLER
33