Jon Thomas Ford v. State , 444 S.W.3d 171 ( 2014 )

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-12-00317-CR
Jon Thomas FORD,
Appellant
v.
The STATE of Texas,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2010CR7741
Honorable Maria Teresa Herr, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Dissenting Opinion by: Luz Elena D. Chapa, Justice
Sitting: Catherine Stone, Chief Justice
Marialyn Barnard, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: August 20, 2014
AFFIRMED
A jury found appellant Jon Thomas Ford guilty of the offense of murder. Based on the
jury’s recommendation, the trial court sentenced him to forty years’ imprisonment. Ford raises
eighteen points of error on appeal, asking this court to reverse his convictions. We affirm the trial
court’s judgment.
BACKGROUND
On December 31, 2008, Dana Clair Edwards attended a New Year’s Eve party with her
friends Melissa Federspill and Alan Tarver at the home of a mutual friend. Edwards’s ex-
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boyfriend, Jon Thomas Ford, and other guests also attended the party. Edwards left the party after
midnight and was seen walking her dog by a neighbor between 12:30 a.m. and 1:00 a.m. on January
1, 2009. Edwards’s body was later discovered by her parents in the early hours of January 2, 2009.
She was found lying face down on her bathroom floor with a white, blood-soaked towel covering
her head. Although the autopsy revealed lacerations and blunt force trauma to her head, the cause
of death was determined to be strangulation by ligature sometime between the early morning hours
and noon of January 1, 2009. After an investigation, Ford was arrested and charged with
murdering Edwards.
Although Ford was at the same New Year’s Eve party as Edwards, he did not stay until
midnight to celebrate the new year. Ford left the party early because, according to testimony, he
was offended by a comment made by Federspill during a group card game regarding his and
Tarver’s resistance toward marriage. According to Federspill, the subject of marriage “was one of
the sticky spots for [Ford] and Dana Clair” during their dating relationship. When Tarver asked
later in the evening why Ford left early, Ford responded by text message: “No longer fun.”
According to Ford, he went straight home after the party and was asleep before midnight.
The State presented evidence suggesting this was not true. At trial, the State presented
circumstantial evidence linking Ford to the murder, including: (1) the testimony of Ford’s and
Edwards’s mutual friends, Federspill and Tarver, that Ford’s SUV was not parked in his home’s
driveway after the New Year’s Eve party; (2) historical cell phone data reflecting activity on Ford’s
phone in the vicinity of Edwards’s condominium around the time of the murder; (3) pictures from
a bank’s ATM camera depicting a white SUV similar to Ford’s and an unidentified figure entering
Edwards’s condominium complex around the time of the murder; and (4) Ford’s DNA on the
bloody towel covering Edwards’s face.
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After considering the evidence above, as well as other testimony and evidence presented
at trial, the jury found Ford guilty of the offense of murder. The trial court sentenced Ford to forty
years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. After
the trial court denied his motion for new trial, Ford perfected this appeal.
ANALYSIS
On appeal, Ford raises eighteen points of error, contending: (1) the evidence is legally
insufficient to support his murder conviction; (2) the trial court abused its discretion when it denied
his motion for new trial, which was based on insufficient evidence, newly discovered evidence,
and the selection of an allegedly partial juror; (3) the trial court improperly responded to a jury
note concerning the testimony of cell tower expert Kenneth Doll “regarding the possibility of a
cell phone connection between tower SX 3155 (Gallery Court) & the residence at 333 Rosemary
Ave”; (4) the trial court erred by failing to suppress historical cell phone records obtained from
AT&T and used by the State to suggest Ford’s proximity to Edwards’s residence at the time of her
murder; (5) the affidavits used to obtain the warrants to search Ford’s home, vehicle, and obtain
his DNA contained materially false statements and omissions; (6) the trial court improperly
admitted into evidence a metal three-hole punch and cordless electric drill charge cord; (7) the
State engaged in improper jury argument by calling Ford a liar during opening statements,
allegedly shifting the burden of proof during closing argument, and commenting on Ford’s failure
to testify; (8) the trial court erroneously denied Ford’s oral request for a continuance during trial;
(9) the trial court erred by denying Ford’s motion for independent examination of DNA evidence
under Texas Code of Criminal Procedure article 39.14(a); and (10) the trial court erred by
excluding “alternate perpetrator” evidence regarding a break-in at Edwards’s parent’s ranch house
the day before the murder.
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Sufficiency of the Evidence
In his first point of error, Ford contends the evidence is insufficient to support his murder
conviction. When reviewing the sufficiency of the evidence in a criminal case, we apply the
Supreme Court’s legal sufficiency standard as set out in Jackson v. Virginia, 443 U.S. 307 (1979).
See Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Applying the Jackson standard,
we view the evidence in the light most favorable to the verdict and determine whether any rational
trier of fact could have found the essential elements of the offense beyond a reasonable doubt.
Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013) (citing Jackson, 443 U.S. at
319). We are permitted to consider all of the evidence in the record, whether admissible or
inadmissible, when making our sufficiency determination. Powell v. State, 194 S.W.3d 503, 507
(Tex. Crim. App. 2006); Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); Green v.
State, 893 S.W.2d 536, 540 (Tex. Crim. App. 1995) (“If the sufficiency of the evidence is
challenged following a jury trial, appellate courts consider all of the evidence presented whether
properly or improperly admitted.”). In circumstances where the record supports conflicting
inferences, we must presume the factfinder resolved any conflicts in favor of the verdict and defer
to that determination. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App.2012); see Jackson,
443 U.S. at 318. This presumption includes conflicting inferences from circumstantial evidence.
Mayberry v. State, 351 S.W.3d 507, 509 (Tex. App.—San Antonio 2011, pet. ref’d) (citing Clayton
v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). Further, we may not re-evaluate the weight
and credibility of the evidence nor may we substitute our judgment for that of the factfinder.
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
As mentioned above, Ford was convicted of the offense of murder. In Texas, a person
commits the offense of murder if he intentionally or knowingly causes the death of an individual.
TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2011). Even for an offense as serious as murder,
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“circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and
circumstantial evidence alone can be sufficient to establish guilt.” Hooper v. State, 214 S.W.3d 9,
13 (Tex. Crim. App. 2007). In cases where the available evidence is circumstantial in nature, “it
is not necessary that every fact and circumstance ‘point directly and independently to the
defendant’s guilt; it is enough if the conclusion is warranted by the combined and cumulative force
of all the incriminating circumstances.’” Temple v. State, 390 S.W.3d 341, 359–60 (Tex. Crim.
App. 1993) (quoting Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993)).
Here, the State relied upon circumstantial evidence to convict Ford. Specifically, the State
relied upon the testimony of Federspill and Tarver, cell phone records, ATM photographs, and
DNA evidence to rebut Ford’s alibi and connect him to the murder.
According to the State’s theory of the case, the chain of events that ultimately resulted in
Edwards’s murder began when Ford became upset at the New Year’s Eve party. While guests
were playing a card game at the party, Federspill made a comment to Ford and Tarver about their
resistance or reluctance with regard to “marriage.” Ford did not appreciate the comment.
According to Federspill, Ford approached her after the comment, told her he did not appreciate it,
and left the party shortly thereafter. Additionally, after Tarver texted Ford at 11:31 p.m. about his
abrupt departure from the party, Ford responded, “No longer fun.” Federspill explained that
Edwards broke up with Ford because “[Edwards] mentioned to me that she was unhappy in the
relationship, looking for her life to progress forward in terms of marriage and/or motherhood . . .
She wanted to have kids and get married.”
Despite Ford’s claim that he went straight home and went to bed, both Tarver and
Federspill testified they did not see Ford’s white Chevy Tahoe parked in his driveway after
midnight. The pair drove to Ford’s home to deliver a cooler Ford left behind at the party. Although
Ford was known to occasionally park in a church parking lot directly behind his home, Tarver
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testified he was “looking for it right there and I don’t see it.” Ford counters that Tarver did not see
the Tahoe because it was parked in a dark corner of the church parking lot instead of its normal
place directly behind his house. However plausible, we must presume the jury resolved this
conflict in favor of the verdict and defer to that determination. See Wise, 364 S.W.3d at 903.
After using the testimony of Tarver and Federspill to prove Ford was not at home around
the time of the murder as he claimed, the State turned to historical cell phone data obtained from
Ford’s cellular provider, AT&T, to determine where he in fact was in the early hours of January
1, 2009. The information revealed in the records includes: the date and time of a cellular device’s
usage; the type of usage; the number calling and called during the usage; the duration of the usage;
and the exact location (latitude and longitude coordinates) of the tower that processed the usage of
the cellular device. According to the State’s historical cell data expert Kenneth Doll, an employee
of AT&T, this data is collected even from passive activity on the cellular device — including
letting a call go to voicemail by not answering it — because even with passive activity:
[T]he device acknowledged — the device acknowledged to the network that, yes,
here I am, in this service area . . . If your phone rings, if the phone rings, it is in
communication with our network and it has set up a communication path with the
site that it is best server [sic] with.
(emphasis added). As a result of collecting a cellular device’s active and passive activity, Doll
testified he is able to tell where a phone is located based upon the data gathered from cell towers.
Regarding this case specifically and the tower servicing the area in proximity to Edwards’s condo
— referred to as “Gallery Court” at trial — Doll testified that “[i]f you were at the Gallery Court
location and you had activity on your cellular device, this would be the sector it would be on.”
Additionally, Doll stated it would not have been possible for Ford’s phone to show activity in the
Gallery Court sector from his home address “because you don’t have line of sight to [the Gallery
Court Tower] . . . [s]o your device won’t see that tower and that tower won’t see your device.”
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At oral argument, Ford suggested Doll actually testified the tower reflected in the historical
record is the one closest to the phone placing the call, instead of Ford’s phone that was receiving
the calls and text messages. In support of this argument, Ford directed the court to the record and
our decision in Wilson v. State where historical cell phone records were used to track the
movements of a murderer on the day of his crime. See 195 S.W.3d 193, 196 (Tex. App.—San
Antonio 2006, no pet.). The record, despite citation to it by Ford, does not support this assertion.
Even if the record could be construed as lending some passing support to the proposition advanced
by Ford at oral argument, it would conflict with other portions of Doll’s testimony. In the event
of an evidentiary conflict, we must presume the jury resolved the matter in favor of the verdict and
defer to that resolution. See id. Further, our decision in Wilson does not support Ford’s argument.
In Wilson, we held the trial court did not abuse its discretion by admitting the testimony of an
expert regarding historical cell phone records over a challenge to the expert’s qualifications. 195
S.W.3d at 202. In short, Wilson, despite Ford’s contention at oral argument, is irrelevant here. See
id. at 201–02.
Despite Ford’s novel contentions at oral argument, the historical cell phone data, as
interpreted by the testimony of Doll at trial, supports the conclusion that Ford was not at his home
on the morning of the murder as he claimed. Rather, the historical cell data reveals two
communications, a missed call from Tarver at 11:45 p.m. and a text from Tarver at 1:19 a.m., both
of which place Ford in the service area of Edwards’s condo on the morning of her murder. In
addition to this historical cell data placing Ford’s phone, and presumably Ford himself, in close
proximity to the crime scene at the relevant times, the State also presented pictures from an ATM
camera that appear to show Ford’s vehicle, and possibly Ford, entering Edwards’s condominium
complex.
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Before introducing the recovered ATM camera photos, the State first admitted into
evidence a photo of Ford’s white Chevy Tahoe. The photo shows Ford’s 2004 white Chevy Tahoe
had black roof rails, which are generally used to tie down luggage, and a horizontal black stripe
down the lower quarter of the Tahoe’s side. Although these identifying features are certainly not
unique to Ford’s vehicle, the features are visible in the grainy ATM photographs and a reasonable
juror could determine a vehicle similar to Ford’s is depicted.
Even though the vehicle in the ATM photos was never conclusively identified as belonging
to Ford, the State introduced ATM photos depicting a vehicle that is similar in appearance to Ford’s
white Chevy Tahoe (i.e. exhibiting the roof rails and/or black horizontal stripe) entering and
exiting Edwards’s condo complex around the time of the murder. In addition to photos of the
vehicle, the State also introduced photos depicting a figure — claimed by the State to be Ford
based on the figure’s clothing, which allegedly matched what Ford wore that night — entering and
exiting Edwards’s condominium complex. The photos were presented to the jury as follows:
1.) Vehicle entering Edwards’s condominium complex from the north at 11:24 p.m.
on December 31, 2008.
2.) Vehicle exiting Edwards’s condominium complex to the south at 11:26 p.m. on
December 31, 2008.
3.) Vehicle driving past Edwards’s condominium complex from the south at 11:36
p.m. on December 31, 2008.
4.) Vehicle entering Edwards’s condominium complex from the north at 11:37 p.m.
on December 31, 2008.
5.) Vehicle exiting Edwards’s condominium complex to the north at 11:39 p.m. on
December 31, 2008.
6.) Figure allegedly entering Edwards’s condominium complex from the north at
11:42 p.m. on December 31, 2008.
7.) Vehicle believed to be Edwards’s red Chevy Tahoe entering the complex from the
north at 12:47 a.m. on January 1, 2009. 1
8.) Figure allegedly exiting Edwards’s condominium complex to the north at 2:02
a.m. on January 1, 2009.
9.) Vehicle passing Edwards’s condominium complex heading south at 2:07 a.m. on
January 1, 2009.
10.) Vehicle entering Edwards’s condominium complex from the south at 3:12 a.m.
1
The record reflects Edwards drove a red Chevy Tahoe.
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on January 1, 2009. This photo only reveals the vehicle’s back end and lit taillights. It
does not depict a vehicle possessing similar identifying characteristics to Ford’s, i.e.
the roof rails and black side stripe are not visible.
11.) Vehicle exiting Edwards’s condominium complex to the south at 3:16 a.m. on
January 1, 2009. Unlike the other photos, the vehicle exiting Edwards’s complex does
not have its headlights on.
The State argued to the jury that this timeline of events, based on the ATM photos, is evidence of
Ford’s activities on the night of Edwards’s murder. Although Ford countered the State’s timeline
by introducing ATM photographs of other SUVs driving past the entrance to Edwards’s
condominium complex at times relevant to the case, we presume the jury resolved any of the
conflicts in favor of the verdict and must defer to that determination. See Wise, 364 S.W.3d at
903.
The last piece of evidence the State used to link Ford to Edwards’s murder was the
identification of his DNA on the white towel found covering her face at the murder scene. The
State’s forensic expert, Robert Sailors, testified Ford was the source of human male DNA extracted
from samples of the towel removed from Edwards’s face. Although Ford presented numerous
attacks on the weight and credibility of this evidence (e.g., Ford’s DNA on the towel is
unremarkable as a former boyfriend and guest of Edwards’s condo; the towel is contaminated
evidence because Sailor’s DNA was also identified on it), we must once against presume the jury
resolved any evidentiary conflicts in favor of the verdict and defer to that determination. See Wise,
364 S.W.3d at 903.
Taken together, the State introduced evidence strongly suggesting Ford was not home at
the time of Edwards’s murder as he said, but rather was at the scene of the crime. Specifically, the
State used the testimony of Federspill and Tarver to show Ford’s car was not at home when it
should have been, cell phone records to prove he was in the vicinity of Edwards’s condominium
at times relevant to her murder, ATM photos showing a vehicle similar to Ford’s entering and
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exiting the condominium complex around the time of the murder, and DNA evidence linking Ford
with the towel covering Edwards’s face. Although Ford has diligently argued the evidence
presented by the State is neither perfect nor without conflict, our standard of review for the
sufficiency of the evidence does not weigh in Ford’s favor because we must presume conflicts are
resolved in favor of the verdict. See id.
Having reviewed the record in the light most favorable to the verdict, we hold the jury
rationally could have found Ford guilty of murder beyond a reasonable doubt. See Carrizales, 414
S.W.3d at 742. The combined and cumulative force of the incriminating circumstances presented
by the State point toward Ford’s guilt. See Temple, 390 S.W.3d at 359–60. Accordingly, we
overrule Ford’s first point of error.
Ford counters this conclusion by arguing there is a hole in the State’s storyline that is
supported by the very cell phone evidence used to convict him, evidence that renders the
circumstantial evidence presented by the State insufficient. Ford points out the cell phone records
indicate he was in the proximity of Olmos Dam at 1:32 a.m. on the morning of Edwards’s murder
because his cell phone recorded activity from a tower in that area. Those same cell records indicate
that only 13 minutes earlier, at 1:19 a.m., Ford was in the vicinity of Edwards’s condo a few miles
away. Problematically, the ATM photos used by the State do not show Ford leaving in the same
manner as the State alleges he entered the complex, i.e., walking in the front entrance. The State
had no explanation for this apparent conflict and admitted as much during its closing: “[w]ill I ever
be able to tell you precisely how the Defendant got over the [Gallery Court] wall or why the
Defendant got over the wall? No. No.” However, as stated above, we must presume the jury
resolved this conflict in the evidence in favor of the verdict and defer to that determination, as we
have already done on other occasions. See Wise, 364 S.W.3d at 903.
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In a further attack on the sufficiency of the evidence, Ford directs the court, for the first
time in its reply brief, to a Court of Criminal Appeals decision where the court reviewed a set of
circumstantial facts and determined that “[w]hile these facts together might create suspicion, . . .
they do not add up to probable cause that appellant committed the murders.” Hankins v. State, 132
S.W.3d 380, 389 (Tex. Crim. App. 2004). Ford argues that if the Court of Criminal Appeals could
not find probable cause under the facts in Hankins, then this court would err to find the present
facts sufficient to support Ford’s guilt. This argument is not persuasive as the Hankins case is
completely distinguishable. Hankins involved a determination of the existence of probable cause,
a standard inapplicable to the sufficiency review we apply here. Compare id. (determining
existence of probable cause), with Carrizales, 414 S.W.3d at 742 (setting out standard of review
for sufficiency of evidence).
Motion for New Trial
In his second point of error, Ford contends the trial court abused its discretion when it
denied his motion for new trial. Specifically, Ford argues the trial court erred because: (1) the
evidence was insufficient to establish Ford’s guilt; (2) newly discovered evidence regarding the
historical cell phone data and the ATM pictures tends to exculpate Ford; and (3) it was discovered
that a juror allegedly lied about his knowledge of cell towers on his juror selection form.
We review a trial court’s ruling on a motion for new trial for an abuse of discretion. Webb
v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). “We view the evidence in the light most
favorable to the trial court’s ruling and uphold the trial court’s ruling if it was within the zone of
reasonable disagreement.” Id. We may not substitute our judgment for the trial court’s, rather we
are limited to deciding whether the trial court’s ruling was arbitrary or unreasonable. Id.
Therefore, denying a motion for new trial is an abuse of discretion only when no reasonable view
of the record could support the trial court’s ruling. Id.
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Sufficient Evidence:
Ford first argues the trial court abused its discretion by denying his motion for new trial
because the evidence was insufficient to sustain his conviction. This argument is identical to
Ford’s first point of error on appeal. As we held above, the evidence is sufficient to support Ford’s
conviction, and we therefore overrule this portion of Ford’s second point of error.
“New” Evidence:
Ford next argues he should have been given a new trial because of newly discovered
evidence. Under the Texas Code of Criminal Procedure, “a new trial shall be granted an accused
where material evidence favorable to the accused has been discovered since trial.” TEX. CODE
CRIM. PROC. ANN. art. 40.001 (West 2006) (emphasis added). The Texas Court of Criminal
Appeals has interpreted this provision to require the satisfaction of the following four-part test:
1.) The newly discovered evidence was unknown or unavailable to the movant at the time
of his trial;
2.) The movant’s failure to discover or obtain the evidence was not due to a lack of
diligence;
3.) The new evidence is admissible and is not merely cumulative, corroborative, collateral,
or impeaching; and,
4.) The new evidence is probably true and will probably bring about a different result on
another trial.
Keeter v. State, 74 S.W.3d 31, 36–37 (Tex. Crim. App. 2002) (emphasis added).
Here, Ford contends he presented newly discovered, material evidence entitling him to a
new trial. The new evidence includes: (1) an expert to counter Doll’s testimony as to whether
historical cell tower data can establish a phone’s approximate location; and (2) an expert to testify
that the figure seen in the ATM photos entering the Gallery Court complex could not have been
Ford because the figure was too tall. The State counters Ford’s claims by arguing this evidence is
not actually “new.” We agree.
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The evidence underlying the potential “new” experts is not, in fact, newly discovered. Ford
had access to the historical cell data records from AT&T and the ATM images used by the State
before the start of trial. Reaching new and different opinions from the same foundational evidence
does not render the evidence newly discovered as required by Keeter, even if those new opinions
may be material. See id. Accordingly, we overrule this portion of Ford’s second point of error.
Allegedly Impartial Juror:
Ford’s final argument regarding his motion for new trial concerns juror number 66.
According to Ford, a court deputy overheard juror 66 admit after trial that he did in fact have
experience and knowledge about cell phone towers due to his training and experience with his job
at H.E.B. Ford contends this contradicted the juror’s answer on the juror questionnaire. On the
questionnaire, potential jurors were asked whether they “had any experience, training or education
in: criminal law, autopsies, DNA, forensics, cell phone towers, [etc.].” (Emphasis added). Juror
66 answered “No.”
Ford contends having juror 66 on the jury deprived him of a fair trial because juror 66 is
biased regarding the historical cell data relied upon by the State. Generally, “when a partial,
biased, or prejudiced juror is selected without fault or lack of diligence on the part of defense
counsel, who has acted in good faith upon the answers given to him on voir dire not knowing them
to be inaccurate, good ground exists for a new trial.” Franklin v. State, 12 S.W.3d 473, 478 (Tex.
Crim. App. 2000) (quoting Von January v. State, 576 S.W.2d 43, 45 (Tex. Crim. App. 1978)).
However, because “written questions are by nature vulnerable to misinterpretation — even
questions that appear to be subject to only one interpretation,” the Court of Criminal Appeals has
said “‘diligent’ counsel will not rely on written questionnaires to supply any information that
counsel deems material.” Gonzalez v. State, 3 S.W.3d 915, 917 (Tex. Crim. App. 1999). “Counsel
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who does so otherwise is simply not diligent.” Id. (holding counsel was not diligent when he did
not follow up on answers to written questionnaire with more specific questioning during voir dire.).
Here, we have not located a single instance where Ford’s trial counsel specifically
questioned the venire about cell phones or cell towers during voir dire. Therefore, we hold trial
counsel was not diligent during voir dire, see id., and Ford may not now claim he deserves a new
trial because an allegedly biased juror was selected without fault or lack of diligence on the part of
his counsel. See Franklin, 12 S.W.3d at 478 (emphasis added). Accordingly, we overrule this
portion of Ford’s second point of error.
Jury Note
Ford next contends the trial court erred by insufficiently responding to the following jury
note at trial:
Jurors have a dispute concerning the testimony of AT&T expert, Ken Doll,
regarding the possibility of a cell phone connection between tower SX 3155
(Gallery Court) & the residence at 333 Rosemary Ave.
Under Texas Code of Criminal Procedure article 36.28, if the jury disagrees as to the statement of
a witness, they may apply to the court to have read to them from the court reporter’s notes that part
of the witness’s testimony in dispute. TEX. CODE CRIM. PROC. ANN. art. 36.28. This court should
not disturb a trial judge’s decision under article 36.28 unless a clear abuse of discretion, as well as
harm, is shown. Howell v. State, 175 S.W.3d 786, 792 (Tex. Crim. App. 2005). When the jury
indicates a specific and limited portion of testimony to be read, a trial court does not abuse its
discretion by providing only the requested information. Robison v. State, 888 S.W.2d 473, 481
(Tex. Crim. App. 1994). Here, Ford contends the trial court improperly limited the amount of
Doll’s testimony read back to the jury in response to its note.
In response to Ford’s objection, the trial court clarified its decision before actually
rereading Doll’s testimony to the jury, stating:
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Well, in light of the way the question was phrased, it was fairly specific. And
although I understand that generally it covers some of the issues, but it’s in very
general terms, and so I have narrowed that request to Page 67, Line 4 through Page
68 of Line 8, which covers the same issue but with more specificity, based on the
question that was presented by the jury. So your objection is duly noted for the
record and the request is denied.
The trial court’s reasoning appears in line with the Court of Criminal Appeals’ directive regarding
jury notes: “the trial court must then interpret the communication, decide what sections of the
testimony will best answer the inquiry, then limit the re-reading accordingly.” Brown v. State, 870
S.W.2d 53, 55 (Tex. Crim. App. 1994). After explaining its decision to Ford, the trial court
proceeded to read back Doll’s testimony concerning the specific issue of whether Ford’s phone
could connect with the Gallery Court tower from his home on 333 Rosemary Ave. The testimony
included cross examination by Ford’s counsel regarding, among other things, the cell tower
technology available at the time in question, as well as Doll’s “line of sight” rationale for why the
connection with Gallery Court was impossible.
Ford contends the trial court’s rereading was insufficient because it excluded the following
testimony that arguably impeaches Doll’s response to the specific question regarding the Gallery
Court tower:
Q: 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: 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?
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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 cell – a call on a cell site
across town, but those are very rare and I would say that they’re – there – there’s a
lot of variables in there.
Although this testimony does seem to impeach Doll’s testimony regarding the possibility of a cell
phone connection between the Gallery Court tower and Ford’s residence, we holdthe excluded
cross examination above is not responsive to the jury’s specific inquiry. The jury asked
specifically about the possibility of a “cell phone connection between tower SX 3155 (Gallery
Court) & the residence at 333 Rosemary Ave.,” and the testimony read back by the trial court
included Doll’s answer to that specific question, i.e., it is impossible because the tower did not
have line of sight with the residence. The testimony proffered by Ford addresses the issue as a
broad general principle and not as a response to the jury’s specific question. Accordingly, we hold
the trial court did not clearly abuse its discretion in responding to the jury’s note as it did. See
Howell, 175 S.W.3d at 792.
Historical Cell Phone Data – Location Information
Across six points of error, Ford argues the State improperly acquired and used historical
cell phone data collected by AT&T to connect him to Edwards’s murder. AT&T’s records
regarding Ford’s cell phone were acquired by the State pursuant to a court order under Texas Code
of Criminal Procedure article 18.21, not by search warrant. See TEX. CODE CRIM. PROC. ANN. art.
18.21, Sec. 5(a) (West Supp. 2013). Ford contends this action by the State was improper and
violated his rights because: (1) the State obtained the historical cell phone records in violation of
Texas Code of Criminal Procedure article 18.21; (2) the State violated Texas Code of Criminal
Procedure article 38.23; (3) the State violated Article I, section 9 of the Texas Constitution; (4) the
State violated 18 U.S.C. § 2703; (5) the State violated the Fourth Amendment’s prohibition against
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unreasonable searches and seizures; and (6) the State violated the First Amendment’s protection
regarding the right to freely associate.
At trial, Ford contested the admissibility of the cell phone records with a motion to
suppress, which the court denied. We review a trial court’s ruling on a motion to suppress under
a bifurcated standard. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007); Guzman
v. State, 955 S.W.2d 85, 88–89 (Tex. Crim. App. 1997). We give almost total deference to the
trial court’s determination of facts, and review the trial court’s application of the law de novo. See
State v. Mendoza, 365 S.W.3d 666, 669 (Tex. Crim. App. 2012); Carmouche v. State, 10 S.W.3d
323, 328 (Tex. Crim. App. 2000). Here, both Ford and the State agree the trial court rendered a
legal ruling affecting Ford’s constitutional rights, and therefore this court should apply a de novo
standard of review. See Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006). We agree.
Ford has made two types of challenges to the historical cell site data obtained and used by
the State. First, Ford challenges the acquisition of the data based on statutory law concerning court
orders to obtain such data. Second, Ford challenges the acquisition of the data without a search
warrant, even if the acquisition is authorized by statute without a warrant.
Statutory Arguments
Ford raises three statutory arguments with regard to the manner in which the State obtained
historical records of his cell phone use from AT&T contending: (1) the applications did not comply
with Texas Code of Criminal Procedure article 18.21; (2) the applications violated Texas Code of
Criminal Procedure article 38.23; and (3) the applications were insufficient under 18 U.S.C.
§ 2703.
Texas Code of Criminal Procedure Article 18.21
Ford contends the State improperly obtained his historical cell phone records from AT&T
by obtaining a court order pursuant to article 18.21, section 5(a) of the Texas Code of Criminal
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Procedure. Section 5(a) states “[a] court shall issue an order authorizing disclosure of . . . 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.” TEX. CODE CRIM. PROC. ANN. art. 18.21, Sec. 5(a) (emphasis added). Here,
Ford argues the information requested by the State was not a “wire or electronic communication”
encompassed by the statute. This argument does not comport with his article 18.21 based argument
made before the trial court.
At trial, Ford argued that the assistant district attorney who signed the application was not
the “prosecutor” authorized to file the application under article 18.21(2)(b). See TEX. CODE CRIM.
PROC. ANN. art. 18.21(2)(b) (“A prosecutor may file . . .”). Ford contended the term “prosecutor”
referred only to the actual district attorney herself, an argument rejected by the trial court. Because
this article 18.21 argument does not comport with Ford’s complaint on appeal, we hold Ford did
not preserve this point of error, and his current argument cannot be raised for the first time on
appeal. See, e.g., Reynolds v. State, 423 S.W.3d 377, 383 (Tex. Crim. App. 2014). However, even
if Ford had properly preserved his present argument for our review, it still fails.
Article 18.20 defines “electronic communication” for the purposes of the order as “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, photoelectronic, or photo-optical system.”
TEX. CODE CRIM. PROC. ANN. art. 18.20, Sec. 1(15). We hold the information collected by the
State in this case is AT&T’s records of the transfer of signs, signals, and data from Ford’s cellular
phone serviced by AT&T and falls within the definition of an “electronic communication” subject
to disclosure via court order. See id. Ford attempts to distinguish the information obtained by the
State as “cellular site information” concerning connection and location data that is not “intelligence
of any nature” referenced by article 18.20, Section 1(15); however, this argument is without merit
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because it ignores the full scope and definition of “electronic communication” set out above.
Accordingly, we overrule this complaint and hold the records acquired from AT&T were obtained
pursuant to a proper order under article 18.21. See id.
Texas Code of Criminal Procedure Article 38.23
Ford next contends the State’s applications to obtain historical cell site data from AT&T
violate Texas Code of Criminal Procedure article 38.23. Article 38.23(a) states that “no evidence
obtained by an officer or other person in violation of any provisions of the Constitution or laws of
the State of Texas . . . shall be admitted in evidence against the accused on the trial of any criminal
case.” TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2005). According to Ford, because the
State’s applications were not authorized by article 18.21, the use of the evidence against him
violates article 38.23. However, as we held above, the records from AT&T do not violate article
18.21. Therefore, article 38.23 cannot serve as a basis to exclude the evidence used against Ford.
Required Disclosure of Customer Records under 18 U.S.C. § 2703
Ford next contends the State’s applications were inadequate under federal law, which
requires the government to show the existence of an ongoing investigation to obtain the court
order. See 18 U.S.C. § 2703 (2009) (“A court order for disclosure under subsection (b) or (c) may
be issued [if] . . . the records or other information sought, are relevant and material to an ongoing
criminal investigation.”). Ford contends the applications are deficient because the State needed to
illustrate an ongoing investigation but they “do not use this language.” There are two problems
with Ford’s appellate argument.
First, Ford did not make this argument in either his written motion to suppress or during
the hearing on the motion. The closest Ford came to making this argument before the trial court
is when he argued during the hearing that obtaining the cell data “must be done with a warrant
. . . [b]oth the State and federal statutes say that.” Accordingly, we hold Ford did not preserve this
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ground for our review. See TEX. R. APP. P. 33.1. However, even if Ford did preserve his argument
under section 2703, it fails on the merits.
Section 2703 requires the government entity seeking the court order to offer “specific and
articulable facts showing that there are reasonable grounds to believe that the contents of a wire or
electronic communication, or the records or other information sought, are relevant and material an
ongoing criminal investigation.” 18 U.S.C. § 2703(d). Both of the State’s applications contain a
subsection “IV” that not only describes the information requested as “relevant to the investigation
of a criminal offense,” but also sets out the self-described “supporting information/‘specific and
articulable fact(s)’.” This section includes information provided by investigating detective Leroy
Carrion explaining the background of the case against Ford and why the State needed his cellular
records. Having reviewed the State’s applications, we hold they comply with the showing of an
ongoing investigation required by section 2703(d). See 18 U.S.C. § 2703(d).
Constitutional Arguments
Ford also contends, in addition to his statutory claims, that the State unconstitutionally
obtained his cellular records from AT&T without a search warrant. Specifically, Ford contends
the State’s warrantless acquisition of the records from AT&T violated his constitutional rights
under: (1) the Fourth Amendment to the United States Constitution; (2) Article I, section nine of
the Texas Constitution; and (3) the First Amendment of the United States Constitution.
Fourth Amendment:
Ford contends the State’s acquisition of his historical cell site records from AT&T without
a search warrant violated the Fourth Amendment’s prohibition against unlawful searches and
seizures. See U.S. CONST. amend. IV. Specifically, Ford relies on the Supreme Court’s decision
in U.S. v. Jones, 132 S. Ct. 945 (2012), to argue individuals have a reasonable expectation of
privacy “in our technologically advanced tools that also reveal our locations.” As discussed above,
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we review this constitutional issue under a de novo standard of review. See Wall, 184 S.W.3d at
742.
In Jones, the police attached a Global-Positioning-System (GPS) tracking device to an
individual’s vehicle without a valid warrant. Jones, 132 S. Ct. at 947. The police then used the
GPS device to track the vehicle’s movement for the next twenty-eight days. Id. Applying a
trespass theory of Fourth Amendment protection, the Supreme Court held that attaching a GPS
tracking device to a vehicle without a warrant and using the device to record the vehicle’s location
was an impermissible search under the Fourth Amendment. See id. at 949. However, the facts in
this case distinguish it and remove it from Jones’s purview. Here, the State did not initially gather
the information sought to be suppressed. Rather, a third-party, AT&T, gathered and maintained
the information as business records of the service provided to Ford’s phone. As the Fifth Circuit
recognized when addressing a similar Fourth Amendment issue, the “question of who is recording
an individual’s information initially is key.” In re U.S. for Historical Cell Site Data, 724 F.3d 600,
610 (5th Cir. 2013).
Relying on and concurring with the Fifth Circuit’s analysis, the Fourteenth Court of
Appeals recently held a defendant’s reasonable expectation of privacy under Katz v. United States,
389 U.S. 347 (1967) and its progeny was not violated when the State obtained cell tower records
from a third party without a warrant. See Barfield v. State, 416 S.W.3d 743, 749 (Tex. App.—
Houston [14th Dist.] 2013, no pet.). In Barfield, the State offered third-party cell tower records
obtained without a warrant to establish the defendant’s whereabouts during times relevant to the
crime — just as the State did in this case. See id. at 745. According to the Fourteenth Court of
Appeals, this action did not violate the defendant’s Fourth Amendment rights because if “an
individual knowingly exposes his activities to third parties, he surrenders Fourth Amendment
protections, and, if the Government is subsequently called upon to investigate his activities for
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possible violations of the law, it is free to seek out these third parties, to inspect their records, and
to probe their recollections for evidence.” Id. at 748 (quoting In re U.S. for Historical Cell Site
Data, 724 F.3d at 610); Reporters Comm. For Freedom of Press v. Am. Tel. & Tel. Co., 593 F.2d
1030, 1043 (D.C. Cir. 1978). Furthermore, the fortuity of whether or not the third party, acting at
its own discretion, chooses to store the information makes no constitutional difference. Barfield,
416 S.W.3d at 748 (citing In re U.S. for Historical Cell Site Data, 724 F.3d at 610); Smith v.
Maryland, 442 U.S. 735, 745 (1979)). Essentially, once an individual voluntarily exposes
information to a third party, it can be used for any purpose, such as conveying it to law enforcement
authorities. Barfield, 416 S.W.3d at 748 (citing In re U.S. for Historical Cell Site Data, 724 F.3d
at 610); S.E.C. v. Jerry T. O’Brien, Inc., 467 U.S. 735, 743 (1984) (“[W]hen a person
communicates information to a third party even on the understanding that the communication is
confidential, he cannot object if the third party conveys that information or records thereof to law
enforcement authorities.”)); see also United States v. Miller, 425 U.S. 435, 443 (1976).
Applying the precedent above, Ford cannot successfully complain about the State’s
warrantless retrieval of the AT&T records. The cell site data acquired by the State is simply the
business records memorializing Ford’s voluntary subscriber transaction with AT&T for the service
he wanted from his cellular provider all along, i.e. the ability to transmit and receive data on
AT&T’s network of cell towers. See Barfield, 416 S.W.3d at 748. The fact that this data happens
to reveal the general location of Ford’s cell phone, and presumably himself, at given points in
historical time is of no consequence to the legal analysis here. Accordingly, we overrule this issue
and hold the State’s actions did not violate Ford’s Fourth Amendment rights because he could not
have a reasonable expectation of privacy in information he voluntarily conveyed to a third party.
See id. at 746–48.
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Ford contends that this result, based on his supposed voluntary disclosure of information
to a third party, is improper. Specifically, Ford argues: (1) the Court of Criminal Appeals has
rejected the legal premise that a voluntary disclosure of information to a third party destroys a
reasonable expectation of privacy in said information; and (2) he did not voluntarily disclose his
location information to his service provider. We disagree.
One of the seminal Supreme Court cases for the legal analysis applied above is Smith v.
Maryland. 442 U.S. 735, 745 (1979). In Smith, the Supreme Court held the petitioner had no
Fourth Amendment, legitimate expectation of privacy in the pen register kept by his phone
provider because:
When he used his phone, petitioner voluntarily conveyed numerical information to
the telephone company and “exposed” that information to its equipment in the
ordinary course of business. In so doing, petitioner assumed the risk that the
company would reveal to police the numbers he dialed.
Id. at 744. The Court of Criminal Appeals has expressly stated Smith’s proposition represents “an
erroneous belief” of voluntarily assumed risk defeating a reasonable expectation of privacy in
dialed phone numbers. Richardson v. State, 865 S.W.2d 944, 951-52 (Tex. Crim. App. 1993).
Ford contends, therefore, this court may not rely on the third-party doctrine applied in federal
courts.
Unlike the Supreme Court’s decision in Smith, the Richardson decision does not concern
an individual’s protection under the Fourth Amendment; rather, the Court of Criminal Appeals
was determining whether the use of a pen register constitutes a “search” under Article I, section 9
of the Texas Constitution. See Richardson, 865 S.W.2d at 953. After examining Smith, the court
stated “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.” Id. However, this proclamation is regarding the Texas Constitution, as
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opposed to the Fourth Amendment of the United States Constitution that Ford is invoking here.
Accordingly, we reject Ford’s argument.
In addition to his argument based on Richardson, Ford also attacks the third-party
disclosure theory on the ground that he did not voluntarily disclose his location information to
AT&T, which cases like Smith require for a forfeiture of protected privacy interests. See Smith,
442 U.S. at 743–44 (noting “[t]his Court consistently has held that a person has no legitimate
expectation of privacy in information he voluntarily turns over to third parties” (emphasis added)).
In support of this argument, Ford directs the court to authority for the proposition that an individual
placing or receiving a call on a cell phone has not voluntarily exposed their location information.
See United States v. Davis, 2014 WL 2599917 at *10, ___ F.3d___ (11th Cir. June 11, 2014); In
re App. of the U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records
to the Gov’t., 620 F.3d 304, 317 (3d Cir. 2010); In re App. of the U.S. for an Order Auth. the
Release of Hist. Cell-Site Info., 809 F. Supp. 2d 113, 127 (E.D.N.Y. 2011). The Fifth Circuit,
responding to the same argument raised by the ACLU in U.S. for Historical Cell Site Data, rejected
Ford’s position outright. See 724 F.3d at 612–13. We agree with the Fifth Circuit’s conclusion.
The Fifth Circuit emphasized that a cell phone user generally understands: (1) their cell
phone must send a signal to a nearby cell tower in order to wirelessly connect their call; (2) if their
cell phone cannot pick up a signal, they are out of range of their service provider’s tower network;
and (3) if too many customers in the same area attempt to make calls at the same time, the call
may not go through because the network’s local towers are overloaded with traffic. Id. at 613;
Barfield, 416 S.W.3d at 748. Accordingly, a cell phone user knows that in order to receive service
the provider will have to know which tower their phone is connecting to. In re U.S. for Historical
Cell Site Data, 724 F.3d at 613; Barfield, 416 S.W.3d at 748.
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This information — AT&T’s records of which towers Ford’s phone connected with to
receive cellular service — was what the State used to determine his phone’s approximate location
at certain times on the night Edwards was murdered. Ultimately, Ford voluntarily decided to
obtain a cell phone, chose AT&T as a service provider, and availed himself of the benefits of its
network of cell towers. See Barfield, 416 S.W.3d at 748–49. Accordingly, we overrule this issue
and hold Ford voluntarily disclosed the location of his cell phone through cell site data to a third
party. See id.; In re U.S. for Historical Cell Site Data, 724 F.3d at 614.
Admittedly, unlike the situation in the Fifth Circuit case, where the user data included
affirmative activity like placing calls, Ford’s incriminating evidence was determined from records
of passive activity on his cell phone. 2 However, this is a distinction without a functional
difference. Ford still voluntarily availed himself of AT&T’s cellular service, which includes the
ability to receive data sent to a subscriber’s phone, when he chose it as his provider.
And finally, with regard to Ford’s Fourth Amendment claims, we note he directed the court,
after oral argument, to the United States Supreme Court’s recent decision in Riley v. California,
2014 WL 2864483, ___ U.S. ___ (2014). In Riley, the Court held that the police must obtain a
warrant before searching the contents of a cell phone seized incident to an arrest. Id. at *20; cf.
State v. Granville, 423 S.W.3d 399, 417 (Tex. Crim. App. 2014) (holding “a citizen does not lose
his reasonable expectation of privacy in the contents of his cell phone merely because that cell
phone is being stored in a jail property room.”). Although Riley concerned cell phones and the
Fourth Amendment, it is otherwise dissimilar to the present case. Unlike the present situation
2
The records used by the State to pinpoint Ford’s location on the night of Edwards’s murder were determined from
records of passive activity on his phone, i.e. he was not placing a call when his phone connected with the cell tower.
Rather, the records relevant to the State’s case, the 11:45 p.m. and 1:19 a.m. “pings” off of the Gallery Court tower,
were from a missed call and text message, respectively, from Tarver. None of Ford’s active cell phone usage on the
night in question, e.g., his response text to Tarver at 11:33 p.m. or his checked voicemail at 2:30 a.m., is located in the
vicinity of the Gallery Court tower near Edwards’s residence.
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where a third party collected the information later obtained by the police without a warrant, in
Riley the police directly examined the private contents of the suspect’s cell phone. Id. at *5. Riley
does not concern the third party doctrine espoused in Smith, 442 U.S. at 743–44, and relied upon
in reaching our decision. Therefore, Riley is otherwise inapplicable to the present situation
involving a court order to obtain AT&T’s business records of Ford’s use of its cell tower network.
Accordingly, we reject Ford’s argument that Riley is applicable in this case.
Article I, section 9 of the Texas Constitution:
In addition to his Fourth Amendment challenge, Ford contends the State’s warrantless
acquisitions of his historical cell site records from AT&T violated his rights under the Texas
Constitution. Specifically, Ford contends his rights under Article I, section nine — which mirror
those of the Fourth Amendment — were violated. Like the Fourth Amendment, the Texas
Constitution provides that “[t]he people shall be secure in their persons, houses, papers and
possessions, from all unreasonable seizures or searches. . .” TEX. CONST. art. I, § 9. However,
Ford did not preserve this issue for our review.
Ford’s written motion to suppress and oral argument before the trial court made no mention
of his rights under the Texas Constitution. It is also not apparent from the context of the record
that the error is preserved by way of the parties having a shared understanding of a Texas
constitutional complaint being made. See Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App.
2009); Lankston v. State, 827 S.W.2d 907, 911 (Tex. Crim. App. 1992). Accordingly, we overrule
Ford’s argument and hold he did not preserve this argument based on the Texas constitution for
our review. See Pena, 285 S.W.3d at 464 (holding appellant failed to preserve for review claim
that right to due course of law under Texas Constitution provided greater protection than due
process clause of U.S. Constitution when he did not argue at trial that Texas Constitution provided
greater protection.); TEX. R. APP. P. 33.1.
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First Amendment:
Ford next contends his First Amendment right to freely associate was violated by the
State’s warrantless acquisition of historical cell site records of his phone from AT&T. See U.S.
CONST. amend. I. Specifically, Ford argues that “[b]y accessing and scrutinizing location data
without a warrant supported by probable cause, the State is engaged in actions that chill the
freedom of association.”
Although the State contends Ford did not preserve this issue for our review, the record
reveals Ford’s counsel made the following passing reference to a First Amendment-based
argument during the hearing on the motion to suppress:
Gathering information that the Supreme Court has just said is the type of
information that is subject to a reasonable expectation of privacy, even to a First
Amendment objection on — in that sometimes this sort of information reveals
association, the Freedom of Association Clause of the Constitution of the Bills of
Rights.
Ford has supplemented this brief argument at trial with citations to Justice Sotomayor’s
concurrence in Jones, 132 S. Ct. at 956 (Sotomayor, J., concurring), and Stanford v. Texas for the
proposition that search warrants must be supported by probable cause that describes the things to
be seized with scrupulous exactitude. See 379 U.S. 476, 485 (1965). Admittedly, Justice
Sotomayor’s concurrence does express concern that “[a]wareness that the Government may be
watching chills associational and expressive freedoms . . . [a]nd the Government’s unrestrained
power to assemble data that reveal private aspects of identity is susceptible to abuse.” Jones, 132
S. Ct. at 956 (Sotomayor, J., concurring). However, Ford has not argued how that concern affects
our decision here.
Ford has not presented an actual First Amendment issue for the court to consider because
he has not argued how the State’s use of his historical cell site records actually and specifically
interfered with his freedom of association. Rather, without relevant citation to the record, Ford
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has merely argued in conclusory fashion that “the State is engaged in actions that chill the freedom
of association.” Accordingly, we hold Ford inadequately briefed this issue for our review by
failing to present an actual argument of how his First Amendment associational rights were
infringed by the State. See TEX. R. APP. P. 38.1(h); see also Lockett v. State, 16 S.W.3d 504, 505
n.2 (Tex. App.—Houston [1st Dist.] 2000, pet ref’d) (holding that conclusory statement supported
by neither argument nor authority presents nothing for our review). Further, even if Ford would
have presented a legitimate “association” argument, we hold it fails on the merits.
The general premise underlying our holding on the Fourth Amendment issue is that the
historical cell site data obtained by the State was a legitimate business record of information Ford
initially conveyed to a third party, the subsequent conveyance of which he cannot successfully
challenge under the Fourth Amendment. See Jerry T. O’Brien, Inc., 467 U.S. at 743. If this court
were to hold that the State could not obtain Ford’s historical cell site records from AT&T without
a warrant due to First Amendment concerns, the holding would have to apply to all business
records. This is because any business record, whether it be a grocery receipt, Amazon invoice, or
charitable giving receipt, reveals an individual’s associations and could be subject to abuse by the
State. We decline to render a decision with such broad implications. Therefore, we overrule
Ford’s issue and hold his associational freedoms under the First Amendment were not infringed.
Search Warrants — Ford’s Home, Car, and DNA
In his next points of error, Ford contends he was entitled to a Franks hearing on his motion
to suppress the searches resulting from warrants to obtain his DNA, search his home, and search
his vehicle. Ford claims Detective Leroy Carrion’s affidavits, which were used to obtain the search
warrants, contained false statements that were necessary to the threshold finding of probable cause.
The United States Supreme Court held in Franks v. Delaware, 438 U.S. 154 (1978):
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[W]here the defendant makes a substantial preliminary showing that a false
statement knowingly and intentionally, or with reckless disregard for the truth, was
included by the affiant in the warrant affidavit, and if the allegedly false statement
is necessary to the finding of probable cause, the Fourth Amendment requires that
a hearing be held at the defendant’s request.
Id. at 155–56; Cates v. State, 120 S.W.3d 352, 355 (Tex. Crim. App. 2003). The Court of Criminal
Appeals has refined the requirements to obtaining a Franks hearing into three prongs. See Cates,
120 S.W.3d at 357–59. The first prong of Franks requires a defendant to allege a deliberate
falsehood, or the affiant’s reckless disregard for the truth, and specifically point out that portion of
the affidavit alleged to be false. Id. at 357. The second prong of Franks requires a defendant to
accompany her allegations of falsity with either an offer of proof, affidavit, or otherwise reliable
witness statement, unless the absence of such support is satisfactorily explained. Id. at 358. The
third and final prong of Franks requires a defendant to prove that if the deliberately false sections
of the affidavit are removed, the remainder of the “four corners” of the affidavit no longer presents
probable cause to search a particular location. Id. at 358–59. Here, the State conceded the first
two Cates prongs at trial. The trial court then redacted the affidavits and concluded probable cause
existed even in the absence of the redacted information. Therefore, we are left to consider whether
Ford established the remaining portions of Detective Carrion’s affidavits were insufficient to
support probable cause to search Ford’s home, car, and obtain his DNA.
Ford alleged before the trial court that Detective Carrion falsely stated Tarver and
Federspill’s testimony, and mischaracterized the photos taken of the Gallery Court entrance from
the ATM camera. Specifically, Ford challenged Detective Carrion’s characterization of the
testimony regarding whether Ford’s car was not seen in the church parking lot, Ford’s responses
to text messages, as well as the detective’s recitation of the contents of the ATM photographs.
Probable cause for a search warrant exists when, viewed under the totality of the
circumstances, there is a fair probability that evidence of a crime will be found at the specified
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location. State v. McLain, 337 S.W.3d 268, 272 (Tex. Crim. App. 2011). This is a flexible and
non-demanding standard. Id. (emphasis added). Here, where the magistrate did find probable
cause based on the redacted affidavits, we apply a highly deferential standard of review due to the
constitutional preference for searches to be conducted pursuant to a warrant as opposed to a
warrantless search. Id. at 271. We will uphold the magistrate’s probable cause determination as
long as the magistrate had a substantial basis for concluding probable cause existed. Id.
Here, even without the portions of Detective Carrion’s affidavit challenged by Ford, we
hold Detective Carrion’s affidavit was sufficient to establish probable cause to support the search
warrants. Specifically, the redacted affidavits assert: Ford is a recent ex-boyfriend of Edwards; he
attended the same New Year’s Eve party as Edwards; he drove to the party in his white Chevy
Tahoe; despite allegedly heading home after the party, Ford’s friends did not see his Tahoe parked
in his driveway after the party; surveillance photos depict a vehicle similar to Ford’s entering and
exiting Edwards’s condominium complex around 11:40 p.m.; surveillance photos depict a figure
consistent in appearance with Ford walking into the complex at 11:42 p.m.; and male DNA was
found on the towel covering Edwards’s head. Given the nexus between Ford and Edwards’s
murder from the information remaining in Detective Carrion’s affidavits, under the totality of the
circumstances, we hold there is a fair probability evidence relating to the murder would have been
found in Ford’s vehicle, home, and DNA. See McLain, 337 S.W.3d at 272. Accordingly, we hold
Ford did not satisfy the third prong required for a Franks hearing and overrule his point of error.
See Cates, 120 S.W.3d at 358–59.
Improperly Admitted Evidence of Alleged Murder Weapons
Ford next contends the trial court erred when it allowed the State to introduce into evidence
two pieces of demonstrative evidence representing the alleged murder weapons. Specifically, Ford
contends the trial court erred by allowing the admission of a metal three-hole punch and a charging
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cord for a wireless electric drill. The State sought to introduce these items because Deborah
Edwards, the mother of the victim, testified at trial she discovered these items were missing from
her daughter’s condominium when she was packing it up three years after the murder.
We review the trial court’s decision to admit or exclude evidence for an abuse of discretion.
Green v. State, 934 S.W.2d 92, 101–02 (Tex. Crim. App. 1996); Montgomery v. State, 810 S.W.2d
372, 379–80 (Tex. Crim. App. 1990); Young v. State, 382 S.W.3d 414, 420 (Tex. App.—Texarkana
2012, pet. ref’d). We may hold a trial court abused its discretion only if its decision falls outside
the zone of reasonable disagreement. Green, 934 S.W.2d at 102.
Three-Hole Punch
At trial, Deborah Edwards testified she discovered her daughter’s antique, metal three-hole
punch was missing from the condominium. She also testified she was able to locate and purchase
a three-hold punch that was a close match to the missing hole-punch. She testified the item she
purchased was “very similar” to the one owned by her daughter. The State then moved to offer
the hole-punch into evidence and counsel for Ford stated “No objection.”
An appellant affirmatively waives their right to have the trial judge determine the
admissibility of evidence when they state “no objection” to the offered evidence. Holmes v. State,
248 S.W.3d 194, 200 (Tex. Crim. App. 2008). A party is not excused from the procedural
requirement to object at trial to the admission of evidence even if the error involves a constitutional
right. Jimenez v. State, 32 S.W.3d 233, 235 (Tex. Crim. App. 2000). Accordingly, an appellant
who did not object to the admission of evidence at trial waives any claim on appeal that the trial
erred in admitting that evidence. See Holmes, 248 S.W.3d 200; see also TEX. R. APP. P. 33.1.
Because Ford did not object to the admission of the three-hole punch at trial, we hold Ford waived
this argument on appeal and overrule this point of error. See Holmes, 248 S.W.3d 200.
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Ford directs this court to Jimenez and contends in his brief that we should not find the
alleged error waived, but rather review it as plain or fundamental error that deprived him of a fair
or impartial trial. We disagree. Jimenez dealt with jury charge error as “fundamental error” under
Texas Code of Criminal Procedure article 36.19. See Jimenez, 32 S.W.3d at 236–37 (citing TEX.
CODE CRIM. PROC. ANN. art. 36.19). Alleged jury charge error is not at issue here, and Ford has
not directed this court to any authority applying fundamental error principles to the unobjected to
introduction of evidence at trial. Accordingly, we overrule Ford’s argument.
Charging Cord
At trial, Deborah Edwards testified that a power cord used to charge a cordless electric drill
was also missing from her daughter’s condominium. Specifically, Deborah Edwards testified:
She had one and she bought her father one just like it. And when we were putting
things up, the cord was missing from hers. It was in her office. . . . She bought
them at the same time.
The State then moved to introduce into evidence the identical charging cord from the drill Edwards
had purchased for her father. Ford objected that the cord was not relevant and invited speculation.
The State responded that the proffered “exhibit is an exact copy of the charging cord that is missing
from the deceased’s cordless charger that was in the office where she was found murdered by
strangulation.” The trial court overruled Ford’s objection and admitted the cord into evidence.
Ford contends the trial court erred, but we disagree.
As stated above, we review the trial court’s decision to admit or exclude evidence for an
abuse of discretion. Green, 934 S.W.2d at 101–02. We may hold a trial court abused its discretion
only if its decision falls outside the zone of reasonable disagreement. Green, 934 S.W.2d at 102.
Under the Texas Rules of Evidence, all relevant evidence is admissible, except as provided
otherwise by constitution, statute, or other rules of evidence. TEX. R. EVID. 402.
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Here, the power cord introduced by the State was properly admitted over objection as
demonstrative evidence of an item missing from the victim’s home. The victim died from
strangulation by ligature and it is relevant that a possible ligature, the power cord, was missing
from the victim’s home. Whether or not the power cord is the type of ligature used to murder the
victim is a question of fact to be determined by the jury and is not the present issue. The present
issue is whether or not the power cord introduced by the State is acceptable demonstrative evidence
of the power cord missing from the victim’s home. Here, Deborah Edwards testified the victim
had purchased identical drills with identical charging cords for her father and herself. Accordingly,
we hold the trial court did not abuse its discretion by allowing the State’s exhibit as demonstrative
evidence of the missing power cord. See Green, 934 S.W.2d at 101–02.
Ford’s counter argument seems to focus on the State’s purpose for introducing the power
cord — to present it as the murder weapon used to strangle Edwards. Ford argues, in essence, the
admission of the cord as the speculative murder weapon is not based on the evidence and deprived
him “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.” This argument is without merit. The
State elicited testimony that the cord was missing from the crime scene, presented an identical
cord into evidence, and argued that the missing cord could have in fact been the murder weapon.
Such “speculation” is a proper use of circumstantial evidence and a question of fact for the jury to
resolve.
Improper Jury Argument
Ford next contends his “conviction should be reversed and he should be granted a new
trial” because of several alleged instances of improper jury argument by the State. Specifically,
Ford argues: (1) the State improperly called Ford a liar twelve times during opening statements;
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(2) the State improperly shifted the burden of proof during its closing argument; and (3) the State
improperly commented on Ford’s failure to testify during its closing argument.
Opening Statements
Ford contends the State engaged in improper jury argument when it allegedly called him a
“liar” twelve times during opening statements. Having reviewed the portion of opening statements
referenced by Ford in his brief, it appears Ford objected to the following instances of being called
a “liar” at trial:
1.) “What you will see is a man who has his lies down.”
2.) “What you will see is that he’s able to account for everything and he has the lies down.
And you will know that they are lies by the technology . . .”
3.) “I expect that you will see that he is lying. And I expect that the evidence will show
that he is lying and that he has an answer for everything. And you will hear that on his
DVD. It is his statement. What you will recognize is that he gives an alibi and that
that alibi is a blatant lie and that will be revealed by the assertions in this case.”
4.) “He didn’t count on those things. And he didn’t count on the technology to reveal his
lies.”
5.) “The evidence will show that time and time again – and the evidence will highlight that
this self-constructed alibi is a lie.”
The trial court sustained Ford’s objections as to the first four instances set out above, but did not
rule on his fifth objection. Instead, the trial court stated after the fifth objection, “[l]et’s move on,
please.” Despite an instruction to “move on,” the State continued and stated:
You will see that he lied repeatedly to police, to friends, to everyone. And you will
see that this alibi is a lie.
Ford’s counsel objected again, prompting the trial court to ask the State to discuss “what you
expect the evidence to show, please.” To which the State responded: “Sure. . . [t]he evidence will
show he’s a liar.” The trial court then asked counsel to approach the bench. After a brief discussion
of the issue, the trial court gave the following instruction to the jury:
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All right. Ladies and Gentlemen of the Jury, we have an — ongoing opening
statements going on, so the opening statement is to tell you what the evidence is
expected to show. In the course of opening, if there’s argument, and right now I
think the reference to, in particular, the issue being that the Defendant is a liar, that
part I’m — I’m holding is argument and I’m asking you to disregard that portion
of the opening statement.
Ford then moved for a mistrial, and the trial court denied his request.
During a criminal proceeding, the State has the statutory right to state to the jury the nature
of the accusations against the defendant and the facts which are expected to be proved by the State
in support thereof. TEX. CODE CRIM. PROC. ANN. art. 36.01(a)(3); Taylor v. State, 947 S.W.2d
698, 706 (Tex. App.—Fort Worth 1997, pet. ref’d). Because the trial court sustained Ford’s
ongoing objection to the State’s accusations in its opening statement, and instructed the jury to
disregard said statements, “[t]he only adverse ruling — and thus the only occasion for making a
mistake — was the trial court’s denial of the motion for mistrial.” Archie v. State, 340 S.W.3d
374, 738 (Tex. Crim. App. 2011) (quoting Hawkins v. State, 135 S.W.3d 72, 76–77 (Tex. Crim.
App. 2004). Therefore, the proper issue is whether the trial court abused its discretion by denying
Ford’s request for a mistrial. See Archie, 34 S.W.3d at 738–39; Hawkins, 135 S.W.3d at 77.
Only in extreme circumstances of incurable prejudice will mistrial be required. Hawkins,
135 S.W.3d at 77. In evaluating whether the trial court abused its discretion by denying a mistrial
for improper argument, we apply and balance the following three factors: (1) the severity of the
misconduct (magnitude of the prejudicial effect of remarks); (2) the measures adopted to cure the
misconduct (efficacy of any cautionary instruction by the trial court); and (3) the certainty of
conviction absent the misconduct (strength of evidence supporting conviction). Archie, 34 S.W.3d
at 739 (adopting factors from Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998)).
Here, after applying the foregoing factors to the statements made by the State, we hold the
trial court did not abuse its discretion by denying Ford’s request for a mistrial. First, although the
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State used the blunt and arguably prejudicial approach of referring to Ford’s “lies,” it does not
appear it engaged in an overtly improper opening statement. Under article 36.01, the State has a
statutory right to present to the jury its accusations against the defendant and the facts that support
it, which is what it appears the State is doing here — casting aspersions on Ford’s alibi. See TEX.
CODE CRIM. PROC. ANN. art. 36.01(a)(3). The State’s principal theory of the case and accusation
against Ford is that his alibi of being at home at the time of Edwards’ murder is a lie, and that he
was in fact at Edwards’s home murdering her. The challenged statements, in essence, make
abundantly clear to the jury that the State believes the evidence will illustrate Ford’s alibi is a lie.
Accordingly, we hold the State’s actions do not constitute outright misconduct that goes outside
the scope of opening statements and prejudices Ford. See id. Admittedly, the use of the term
“lies” is charged language that could be viewed as prejudicial in nature; however, as discussed
below, the trial court’s instruction to the jury resolved any damage that might have been caused
by the statements.
At Ford’s request, the trial court instructed the jury to disregard the portion of the State’s
opening statement setting Ford out as a “liar.” It is presumed the jury duly obeyed this instruction
to disregard the contested portions of the State’s opening argument. Archie, 340 S.W.3d at 741.
This court has held that “[u]sually, an instruction to disregard the argument will cure any error
caused by improper argument.” Berkley v. State, 298 S.W.3d 712, 714 (Tex. App.—San Antonio
2009, pet. ref’d). Here, we see no reason to hold the instruction did not cure any harm caused by
the State’s opening, and Ford has not presented any argument to rebut the curative strength of the
jury instruction. Accordingly, we overrule Ford’s argument and hold the trial court did not abuse
its discretion when it denied Ford’s request for a mistrial. See Archie, 34 S.W.3d at 738–39.
Ford, however, has directed this court to our decision in Gilcrease v. State for the
proposition that name calling can be grounds for reversal if employed as a repeated tactic. See 32
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S.W.3d 277, 279 (Tex. App.—San Antonio 2000, pet. ref’d). In Gilcrease, the State argued during
closing argument the victim “was selected by this bastard over here to be his victim.” Id. at 278.
The trial court overruled an objection to calling the defendant a “bastard,” and we held the trial
court should have sustained the objection and admonished the State’s attorney. Id. at 279.
Gilcrease is distinguishable from the present case. The use of the term “bastard” served no
legitimate purpose and is substantially more inflammatory than the references to the “lies” the
State legitimately expected to prove to the jury here. Simply stated, referring to the defendant’s
“lies,” even though a repeated tactic, is not name calling on par with the term “bastard.”
Additionally, unlike in Gilcrease, Ford’s objections to the State’s comments were sustained and
he obtained a jury instruction to disregard the potentially harmful references to Ford’s “lies.”
Accordingly, Gilcrease is distinguishable.
Burden Shifting
Ford next contends the State improperly shifted the burden of proof during its closing
argument. After discussing Ford’s alibi and the evidence presented at trial, the State made the
following closing argument:
If not him, who? I mean, they’re going to tell you that’s shifting the burden of
proof. . . Who? They’ve put on a case. They’ve called witnesses. They – they
have certainly cross-examined. Who?
Ford’s objection to this argument was overruled by the trial court.
Proper jury argument falls generally within one of four areas: (1) summation of the
evidence; (2) reasonable deduction from the evidence; (3) answer to argument made by opposing
counsel; and (4) a plea for law enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim.
App. 2008). Error exists when an argument presents facts not supported by the record to the jury,
but this error is not reversible unless, in light of the entire record, the argument is extreme or
manifestly improper. See id.
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Here, the trial court properly overruled Ford’s objection because the State’s argument was
a reasonable deduction from the evidence. See id. Having presented its theory of the case and
web of circumstantial evidence linking Ford to the murder, it was a reasonable deduction from the
evidence for the State to argue no one else could have or would have committed this crime except
Ford. Accordingly, we hold the State engaged in proper jury argument.
Ford counters by citing to Dee v. State, 388 S.W.2d 946 (Tex. Crim. App. 1965), for the
proposition that prosecutorial jury argument that shifts the burden of proof is reversible error. Not
only does Ford’s passing citation fail to describe how the State actually shifted the burden of proof,
but also Ford’s reliance on Dee is misplaced. The eventual reversal in Dee was not based on an
improper argument shifting the burden of proof, but rather the prosecution’s argument erroneously
placing the defendant’s character in issue. See id. at 947; see also Waldo v. State, 746 S.W.2d 750,
756 (Tex. Crim. App. 1988) (noting Dee concerned prosecution erroneously placing the
defendant’s character at issue). Accordingly, Dee is not on point and does not offer any direct
support for Ford’s position.
Ford’s Failure to Testify
Ford next contends the following jury argument by the State was an improper comment on
his failure to testify at trial:
And they keep talking about this rumor mill, this rumor mill. Well, you know what?
A rumor mill doesn’t paralyze you. If there’s – if 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.
Ford failed to object to this allegedly improper comment on his failure to testify.
The State’s comment on an accused’s failure to testify violates the defendant’s state and
federal constitutional privileges against self-incrimination. Archie, 340 S.W.3d at 738. However,
a defendant’s failure to object to a jury argument or failure to pursue an adverse ruling to an
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objection to a jury argument forfeits the defendant’s right to complain about the argument on
appeal. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); see Mathis v. State, 67
S.W.3d 918, 927 (Tex. Crim. App. 2002) (affirming Cockrell as being in line with Texas Rule of
Appellate Procedure 33.1).
As stated above, Ford did not object to the State’s argument complained of on appeal.
Accordingly, we hold this argument was not preserved for our review. See Cockrell, 933 S.W.2d
at 89.
Ford, however, directs this court to Rodriguez v. State, 646 S.W.2d 539, 542–43 (Tex.
App.—Houston [1st Dist.] 1982, no writ.), to support the proposition directly quoted in his brief
that “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.” There are two problems
with Ford’s counter argument. First, Rodriguez does not contain this language nor does it support
the proposition for which it is cited. See id. Second, even if Rodriquez supported Ford’s argument,
it conflicts with Cockrell, which expressly held that any prior cases to the contrary, such as Romo
v. State, 631 S.W.2d 504 (Tex. Crim. App. 1982), are overruled. Cockrell, 933 S.W.2d at 89
(overruling Romo, 631 S.W.2d 504, which held a defendant may complain for the first time on
appeal about an unobjected-to, erroneous jury argument that could not have been cured by an
instruction to disregard.).
Additionally, Ford directs this court to the decision of York v. State, 73 S.W.2d 538 (Tex.
Crim. App. 1934), for the proposition that the Court of Criminal Appeals has a long history of
reversing criminal judgments where the prosecution has engaged in referencing the failure of the
accused to testify. See id. (“For the error in the argument mentioned we have no option but to
reverse the judgment and remand the cause for new trial.”). That may be the case; however, the
Court of Criminal Appeals also requires a defendant to properly preserve the issue of improper
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jury argument for appeal. See Cockrell, 933 S.W.2d at 89. Accordingly, we overrule Ford’s point
of error.
Equitable Continuance
Ford next contends the trial court erred when it denied his oral request for a continuance.
Ford sought the continuance in order to review exhibits presented by State expert Kenneth Doll.
At trial, Doll used color charts representing cellular coverage that had, admittedly, not been
provided to Ford before trial. The State contended the charts contained only information that was
included in the cell phone records that had in fact been provided to Ford before trial. Ford asked
the trial court for “at least a couple of hours” to review the charts, and the trial court denied his
request.
The Texas Code of Criminal Procedure allows a continuance in a criminal action only upon
the written motion of the State or of the defendant setting forth sufficient cause. TEX. CODE CRIM.
PROC. ANN. art. 29.03 (emphasis added). Ford argues there is a due process exception to the rule
requiring a continuance to be in writing. See O’Rarden v. State, 777 S.W.2d 455, 459 (Tex. App.—
Dallas 1989, pet. ref’d). The Court of Criminal Appeals has “explicitly refused to recognize a due
process exception to the rule requiring motions for continuances to be written and sworn in order
to be preserved on appeal.” Blackshear v. State, 385 S.W.3d 589, 591 (Tex. Crim. App. 2012)
(citing to Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009)). Likewise, this court
has expressly rejected this notion. Jimenez v. State, 307 S.W.3d 325, 331 (Tex. App.—San
Antonio 2009, pet. ref’d). Accordingly, we overrule Ford’s point of error and hold his failure to
file a written continuance failed to preserve error for our review. See Blackshear, 385 S.W.3d at
280.
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Independent Examination of DNA Evidence
After his conviction, but prior to the filing of the motion for new trial, Ford filed a motion
for independent testing of DNA evidence in the State’s possession, including but not limited to,
four brown human hairs found on Edwards’s left hand at the scene of her murder. The trial court
denied Ford’s motion at the hearing on the motion for new trial. Ford contends the trial court
abused its discretion by doing so. 3
Under the version of Texas Code of Criminal Procedure article 39.14(a) applicable at the
time of trial:
Upon motion of the defendant showing good cause therefor and upon notice to the
other parties . . . the court in which an action is pending shall order the State before
or during trial of a criminal action therein pending or on trial to produce and permit
the inspection . . . [of] evidence material to any matter involved in the action and
which are in the possession, custody or control of the State or any of its agencies.
Act of April 16, 2009, 81st Leg., R.S., ch. 276, 2009 Tex. Gen. Laws 733 (amended 2014) (current
version at TEX. CODE CRIM. PROC. ANN. art. 39.14(a) (West 2014)) (emphasis added). The State
contends Ford’s motion was not timely filed, and therefore the trial court did not err by denying
the motion. We agree.
Article 39.14(a) allowed discovery and inspection of the material evidence sought by Ford
when requested “before or during trial.” See id. (emphasis added). Here, Ford’s motion was filed
after he was found guilty of murdering Edwards, not before or during trial, and was therefore not
3
The State argues there is no error preserved for our review because the “motion was not presented to the court during
the hearing, and Appellant never asked the court to rule on it.” This is simply not the case. During the hearing on
Ford’s motion for new trial, his counsel reminded the trial court that:
We do have my motion for DNA testing, the mitochondrial blood testing of the right hand of Ms.
Edwards. I want to obtain the Court’s ruling on that motion so I may preserve the issue that I’m
raising for this motion for new trial.
The trial court then denied Ford’s motion on the record.
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timely under article 39.14(a). See id. Accordingly, we overrule Ford’s argument and hold the trial
court did not err by denying his motion to inspect DNA evidence.
Alternate Perpetrator Evidence
Ford next contends the trial court erred by denying his attempt to introduce evidence that
the Edwards family’s Gillespie County home was burglarized without signs of forced entry on
December 30, 2008, the day before Edwards’s murder. Ford argues this evidence was admissible
as alternate perpetrator evidence and, alternatively, admissible as contextual evidence.
As noted above, we review a trial court’s ruling on the admissibility of evidence for an
abuse of discretion. Green, 934 S.W.2d at 101–02. We may hold a trial court abused its discretion
only if its ruling falls outside the zone of reasonable disagreement. Id. at 102.
Ford’s first argument is that the evidence of the burglary is admissible alternate perpetrator
evidence. When a defendant seeks to introduce evidence of an “alternate perpetrator,” he must
establish a sufficient nexus between that person and the crime. Lopez v. State, 314 S.W.3d 54, 61
(Tex. App.—San Antonio 2010, pet. ref’d) (citing Wiley v. State, 74 S.W.3d 399, 406 (Tex. Crim.
App. 2002)). This court has recognized it is not sufficient for a defendant to merely proffer
“unsupported speculation” that another person may have committed the crime. Id. at 61.
Specifically, when the evidence does not point to a particular individual as being responsible for
the crime, the proffered evidence amounts to no more than mere speculation that another person
may have committed the crime. See id. at 61–62 (emphasis added).
Here, Ford has not directed the court to any particular alternate individual suspected of
committing the crime. Rather, Ford has directed the court to the burglary to suggest an unidentified
common culprit. The evidence proffered by Ford does not present a sufficient nexus for admissible
alternate perpetrator evidence. See id. at 61. Instead of suggesting an identified particular
individual as being responsible for the crime, Ford merely provided speculation that there is a
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common culprit for both incidents. Accordingly, we overrule this portion of the issue and hold the
trial court did not abuse its discretion. See Green, 934 S.W.2d at 101–02
Ford also argues evidence of the Gillespie County burglary is admissible “context
evidence” with regard to Edwards’s murder. He makes this argument for the first time on appeal.
Accordingly, he has not preserved this argument for our review. See Reynolds, 423 S.W.3d at 383;
TEX. R. APP. P. 33.1. However, even if Ford’s “context evidence” argument were preserved, it
still fails.
In support of his “context evidence” argument, Ford directs the court to Mann v. State, 718
S.W.2d 741 (Tex. Crim. App. 1986), for the proposition the evidence proffered here is almost
always admissible. Specifically, Ford argues offenses rarely occur in a vacuum, and the burglary
at the Gillespie County property immediately preceding the events at Edwards’s condominium
provides admissible context evidence for the murder. We disagree. Mann does not support the
“context evidence” Ford sought to introduce at trial. Rather, Mann concerned introduction of
extraneous offense evidence used against the defendant and held:
[E]vidence of the context of the offense is almost always admissible under the
reasoning that events do not occur in a vacuum and the jury has a right to have the
offense place in its proper setting so that all of the evidence may be realistically
evaluated.
Id. at 744. Here, Ford was not attempting introduce extraneous offense “context” evidence against
himself. Accordingly, we overrule Ford’s argument.
CONCLUSION
Based on the foregoing, we overrule Ford’s points of error and affirm the trial court’s
judgment.
Marialyn Barnard, Justice
Publish
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