Christopher James Holder v. State ( 2020 )

REVERSE and REMAND; Opinion Filed December 15, 2020
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-00818-CR
CHRISTOPHER JAMES HOLDER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 416th Judicial District Court
Collin County, Texas
Trial Court Cause No. 416-80782-2013
MEMORANDUM OPINION
Before Justices Myers, Whitehill, and Nowell
Opinion by Justice Myers
A jury convicted appellant Christopher James Holder of capital murder and
he appealed the judgment and sentence. He brought thirteen issues challenging the
sufficiency of the evidence; the trial court’s denial of appellant’s motion to suppress
his cell phone records; the alleged denial of the right to confrontation; the admission
of expert opinion; the trial court’s overruling of appellant’s objection that the State
asked a witness a question that assumed facts not in evidence; the trial court’s denial
of appellant’s motion to suppress his statement to the police; the denial of an
accomplice witness jury instruction; and cumulative error. On original submission
we affirmed the judgment of conviction. See Holder v. State, No. 05-15-00818-CR,
2016 WL 4421362 (Tex. App.—Dallas Aug. 19, 2016). The Texas Court of
Criminal Appeals granted review. While the case was pending, the United States
Supreme Court decided Carpenter v. United States, ___ U.S. ___, 138 S. Ct. 2206(2018), holding that persons have a reasonable expectation of privacy under the
Fourth Amendment in cell site location information and, therefore, a search warrant
is required to obtain seven or more days of that information. Id. at 2217. The Court
of Criminal Appeals reversed this Court, concluding appellant had a reasonable
expectation of privacy under Article I, Section 9 of the Texas Constitution in the
twenty-three days of his cell cite location information accessed by the State.1 The
case was remanded for us to determine whether appellant was harmed by the
erroneous admission of the cell cite location information. See Holder v. State, 595
S.W.3d 691, 704 (Tex. Crim. App. 2020). Having considered this question, we
reverse and remand the judgment of conviction.
DISCUSSION
The sole issue before us is whether appellant was harmed by the erroneous
admission of his cell site location information, but the parties disagree on what
standard of harm we should apply. 2 Appellant contends the constitutional harm
standard of rule 44.2(a) applies in this case, but that even under the less rigorous
1
The State conceded that the petition seeking appellant’s cell site location information did not set forth
sufficient facts to establish probable cause, id. at 704 n.27, and the State did not claim exigent circumstances
or some other recognized law enforcement need. Id.2
Because the facts of this case were thoroughly discussed in our previous opinion, we recount them
here as necessary to address the question of harm.
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harm analysis of rule 44.2(b), the harm is evident. See TEX. R. APP. P. 44.2(a), (b).
The State maintains the error in question is harmless under the rule 44.2(b) non-
constitutional harm standard. See id. 44.2(b). Accordingly, we turn first to the
question of whether we should review for harm under 44.2(a) or 44.2(b).
In Love v. State, 543 S.W.3d 835 (Tex. Crim. App. 2016), which concerned
improperly admitted text messages and which, like the present case, dealt with
Article I, section 9 of the Texas Constitution, the court held that the text messages
should have been suppressed under article 38.23(a) of the Texas Code of Criminal
Procedure. Id. at 845–46. The court then analyzed the error in question, which it
termed constitutional in nature, using the constitutional harm standard of rule
44.2(a). Id. at 846; see also Speers v. State, No. 05-14-00179-CR, 2016 WL 929223,
at *9 (Tex. App.—Dallas Mar. 10, 2016, no pet.) (mem. op., not designated for
publication) (“A constitutional error within the meaning of Texas Rule of Appellate
Procedure 44.2(a) is an error that directly offends the United States Constitution or
the Texas Constitution, without regard to any statute or rule that also might apply.”).
The court in Love ultimately concluded the error was not harmless because it could
not determine beyond a reasonable doubt that the text messages did not contribute
to the jury’s verdict at the guilt-innocence phase. Love, 543 S.W.3d at 858.
Over three years later, in Dixon v. State, which concerned cell site location
information, the majority concluded the court of appeals erred in its harm analysis
and that even assuming the admission of the evidence was error under the Fourth
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Amendment, it was clearly harmless, and the admission of the evidence was
harmless beyond a reasonable doubt. See Dixon v. State, 595 S.W.3d 216, 218–20
(Tex. Crim. App. 2020). In a concurring opinion, however, Judge Hervey, joined
by two other judges, opined that while the court “analyzed the statutory error in Love
for constitutional harm, we were wrong to do so and should disavow that part of the
Court’s opinion.” Id. at 226 (Hervey, J., concurring). The concurring opinion
further stated:
We use a constitutional-harm standard to determine whether a Fourth
Amendment violation is harmful because the federal exclusionary
[rule] is constitutional in nature, inherent in the Fourth Amendment.
Hernandez v. State, 60 S.W.3d 106 (Tex. Crim. App. 2001); see TEX.
R. APP. [P.] 44.2(a). Unlike the Fourth Amendment, however, we have
held that there is no suppression remedy inherent in Article I, Section
9. Hulit v. State, 982 S.W.2d 431, 437 (Tex. Crim. App. 1998) (citing
Welchek v. State, 93 Tex. Crim. 271, 247 S.W. 524 (1922)). Instead,
the remedy for an Article I, Section 9 violation is to invoke one of
Texas’s statutory exclusionary rules.
That brings me to the problem with Love. Violations of statutes are
reviewed for non-constitutional harm, not constitutional harm. Thus,
we erred [in Love] when we analyzed the statutory error in that case for
constitutional harm. Consequently, we should overrule that part of our
opinion at our earliest opportunity. Erroneously assessing harm under
the much higher constitutional-harm standard unfairly punishes the
State.
Id. (footnotes omitted).
The State similarly points out that the Texas Constitution does not require the
exclusion of evidence obtained in violation of article I, section 9, and that article
38.23(a), the Texas exclusionary rule that most suppression claims rely on, is
statutory in nature. See Miles v. State, 241 S.W.3d 28, 33 (Tex. Crim. App. 2007)
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(Texas Legislature enacted the Texas exclusionary rule in 1925 in response to
Welchek v. State, 93 Tex. Crim. 271, 247 S.W. 524 (Tex. Crim. App. 1922), where
the Court of Criminal Appeals found no explicit or implicit exclusionary rule in the
Texas Constitution); Hulit v. State, 982 S.W.2d 431, 437 (Tex. Crim. App. 1998)
(“Article I, Section 9 creates no exclusionary rule similar to that found in Fourth
Amendment for federal prosecutions.”) (citing Welchek). Furthermore, argues the
State, the fact that article 38.23 implements the constitutional right to be free of
unreasonable searches does not alter this analysis. See Gray v. State, 159 S.W.3d
95, 97 (Tex. Crim. App. 2005) (“[M]any—perhaps most—statutes are designed to
help ensure the protection of one constitutional right or another. Having such a
purpose does not convert a statutory right into one of federal constitutional
dimension, much less a right whose violation is considered to be structural error.”).
Thus, according to the State, the non-constitutional harm standard of 44.2(b)
applies because the error in question is statutory “under a plain reading of [rule]
44.2.” The State acknowledges that Love “may implicitly suggest a contrary result,”
but it suggests that “it does not appear that the Court in Love considered the above
analysis,” and, “[a]t any rate, the analysis advanced above has been expressly
discussed and adopted by at least four members of that court.” See Dixon, 595
S.W.3d at 225 (Hervey, J., concurring); Hernandez v. State, 60 S.W.3d 106, 116
(Tex. Crim. App. 2001) (Keller, P.J., dissenting) (stating that “Article 38.23 is a
statutory mechanism, not a constitutional one, and any error predicated thereon must
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be analyzed under the standard of harm for non-constitutional errors.”).
As an intermediate appellate court, however, we are required to follow
existing precedent, and this of course includes decisions of the Court of Criminal
Appeals. Absent a contrary decision from a higher court or an intervening and
relevant change in applicable statutory law, we are bound by that precedent. See,
e.g., Merrit v. State, 529 S.W.3d 549, 554 (Tex. App.—Houston [14th Dist.] 2017,
pet. ref’d) (“As an intermediate appellate court, we lack the authority to overrule an
opinion of the Court of Criminal Appeals.”); see also Cervantes-Guervara v. State,
532 S.W.3d 827, 832 (Tex. App.—Houston [14th Dist.] 2017, no pet.); Sherman v.
State, 12 S.W.3d 489, 494 (Tex. App.—Dallas 1999, no pet.). Moreover, concurring
opinions have only persuasive value; they are not binding precedent. See, e.g.,
Unkart v. State, 400 S.W.3d 94, 101 (Tex. Crim. App. 2013) (noting that concurring
opinions have only persuasive value); Schultz v. State, 923 S.W.2d 1, 3 n.2 (Tex.
Crim. App. 1996) (“As a concurring opinion, Lugo-Lugo [650 S.W.2d 72, 87 (Tex.
Crim. App. 1983) (Clinton, J. concurring)] is not binding precedent.”). As the Fort
Worth Court of Appeals recently stated:
Appellant’s arguments implicate the violation of a statute—Article
38.23 of the Code of Criminal Procedure; thus, we would normally be
inclined to utilize the standard of Rule 44.2(b). But a recent opinion
from the Court of Criminal Appeals includes a concurrence that noted
that the court’s prior precedent appears to require the more strenuous
constitutional harm analysis when addressing the failure to exclude
evidence under Article 38.23. See Dixon v. State, 595 S.W.3d 216,
225–26 (Tex. Crim. App. 2020) (Hervey, J., concurring) (citing Love v.
State, 543 S.W.3d 835, 845 (Tex. Crim. App. 2016)). Though the
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concurrence urges the Court of Criminal Appeals to overrule the
precedent that analyzed a violation of a statute for constitutional harm,
we follow the state of the law as we understand it to be and analyze
Appellant’s claim based on the alleged violation of Article 38.23 for
constitutional harm.
Livingston v. State, No. 02-19-00288-CR, 2020 WL 6165411, at *9 (Tex. App.—
Fort Worth Oct. 22, 2020, no pet.) (mem. op., not designated for publication).
We reach a similar conclusion. The Court of Criminal Appeals has held that
the acquisition of appellant’s cell site location information without probable cause
violated privacy protections guaranteed by Article 1, section 9 of the Texas
Constitution. And the most recent binding legal authority of which we are aware
tells us that our analysis for harm in a situation like this must follow the
constitutional harm standard of rule 44.2(a). We now turn to that question.
Under rule 44.2(a), if an error is constitutional in nature, an appellate court
must reverse the judgment of conviction or punishment unless the court determines
beyond a reasonable doubt that the error did not contribute to the conviction or
punishment. TEX. R. APP. P. 44.2(a). In applying this “harmless error” test, we
inquire whether there is a reasonable possibility the error might have contributed to
the conviction or punishment. Love, 543 S.W.3d at 846 (citing Mosley v. State, 983
S.W.2d 249, 259 (Tex. Crim. App. 1998)).
Our harm analysis should focus as much as possible on the probable effect the
evidence had on the jury in light of the existence of other evidence. Id. (citing
Wesbrook v. State, 29 S.W.3d at 119). “We consider such things as the nature of the
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error, the extent to which it was emphasized by the State, its probable collateral
implications, and the weight a juror would probably place on the error.” Id. (citing
Snowden v. State, 353 S.W.3d 815, 821–22 (Tex. Crim. App. 2011)). This list is not
exclusive, and the court should review any and every circumstance apparent in the
record that logically informs a determination of whether, beyond a reasonable doubt,
the particular error contributed to the conviction or punishment. Id. (citing Snowden,
353 S.W.3d at 822). We are required to evaluate the entire record in a neutral manner
“and not ‘in the light most favorable to the prosecution.’” Id. (quoting Harris v.
State, 790 S.W.2d 568, 586 (Tex. Crim. App. 1989) (discussing constitutional harm
under former TEX. R. APP. P. 81(b)(2))).
Applying these principles, the nature of the constitutional error in this case
was the erroneous admission of evidence—appellant’s cell site location information.
As the Court of Criminal Appeals stated in its opinion, and as we recounted in our
previous opinion, call log records showed that the victim in this case, Billy Tanner,
“was alive until at least 2:35 p.m. on November 10 [2012] because that is when he
ended a phone call with his parents.” Holder, 595 S.W.3d at 697. “After this call
ended, Tanner’s phone did not connect to another tower until it was recovered by
police.” Id. at n.10. Furthermore,
The [call log] records also showed that, between 3:28 p.m. and 4:16
p.m. the same day, Appellant’s cell phone connected to the tower that
“best served” Tanner’s home. (According to the State, this is when
Tanner was killed.) By 4:16 p.m., Appellant’s cell phone had left the
area, but it reentered the area at 12:41 a.m. on November 11.
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Appellant’s phone was pinging in Tanner’s coverage area until 12:44
a.m. From 12:44 a.m. to 2:11 a.m., there was no activity on Appellant’s
phone. At 2:11 a.m., the phone pinged a tower near the parking garage
where police found Tanner’s abandoned truck.
Id.
There was no forensic evidence from the crime scene—no DNA, blood,
fingerprints, or shoe prints—directly connecting appellant to Tanner’s murder.
However, the State used the cell site location data from appellant’s phone to show
his phone was “hitting off” of the cellular tower that “best served” Tanner’s home
on Saturday, November 10, 2012, between 3:28 to 4:16 p.m. This was when the
State believed Tanner was murdered (he died from blunt force trauma to the head
and multiple stab wounds).
The State also used the cell site data from appellant’s phone to show his
statements to the police regarding his whereabouts on the afternoon of Saturday,
November 10 were inconsistent with his cellular records. For example, appellant
gave detectives a timeline of where he had been on November 10, telling them he
went to the Irving tattoo shop where he worked, took his girlfriend Vanessa Garcia
to work in Irving, went to a birthday party, and then picked Vanessa up from work
and went back to her house, where he stayed with her. The following day he went
to the movies. The detectives told appellant they had his cellular records, and that
this timeline was inconsistent with what those records showed. Appellant eventually
told them he had been in the Plano area near Jupiter and Highway 190 trying to buy
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drugs from a person named “Chris.” However, that area was several miles from the
crime scene, the two areas were served by different cellular towers, and the cellular
records showed appellant’s phone was “hitting off” of the cellular tower nearest
Tanner’s house on Saturday, November 10. Appellant denied being at Tanner’s
house on November 10, and he said the last time he had been there was when Tanner
asked him to move out. Appellant also said he had never driven Tanner’s truck.
In addition, the State used the cell site data from appellant’s phone to
corroborate the testimony of Thomas Uselton, who provided substantial evidence
against appellant. Uselton testified that he and appellant visited Tanner’s house after
the murder and cleaned up the crime scene, among other things. As the Court of
Criminal Appeals summarized:
In January [of 2013], a Tarrant County fire investigator told Plano
detectives that an inmate named Thomas Uselton (Uselton) had
information about the murder. Uselton told the detectives that he had
known Appellant for a few years and that Appellant called him on
November 10 around 2:00 p.m. or 3:00 p.m. because he wanted to buy
drugs. According to Uselton, Appellant sounded “real hysterical, like
real hyper.” Uselton said that Appellant called him back later that day
and asked him to help with “something” and that he agreed. Appellant
rode with his ex-girlfriend to Fort Worth to pick up Uselton. After they
picked him up, she drove them to Appellant’s tattoo parlor, where
Appellant picked up some bleach and black latex gloves, then to
Tanner’s house. According to Uselton, when they entered Tanner’s
house, Appellant hugged him and told him that “[h]e’s dead. We ain’t
got to worry about it.” Uselton asked who was dead, but then he saw
Tanner’s body around the corner. Appellant said, “[T]hink about [y]our
family, bro. You know what it is if you say anything.” Uselton asked
what Tanner did, and Appellant responded that “He molested a little
girl.” Uselton understood Appellant’s comment as an admission that
he killed Tanner. Uselton said that Appellant’s ex-girlfriend picked
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them up at the parking garage in Irving where police found Tanner’s
abandoned truck. While Appellant and Uselton waited, Uselton
“spray[ed] everything down with bleach.” When Appellant’s ex-
girlfriend arrived, they went back to Appellant’s tattoo shop. Uselton
went to a nearby convenience store to buy some cigarettes and a drink.
When he returned, he overheard Appellant’s ex-girlfriend ask
Appellant in another room, “Why did you do it?” He replied that he
“had to.”
Uselton also told police other details about the crime that were not
public. For example, he told police that Appellant unplugged the
garage-door opener at Tanner’s house, that he helped Appellant cover
up windows and the sliding glass door with blankets, and that he helped
Appellant pour gas around the house.
Id. at 607–98. Although appellant states in his supplemental brief that Uselton was
an accomplice, we noted in our previous opinion that the jury charge did not include
an accomplice-witness instruction, and we rejected appellant’s argument that
Uselton was an accomplice as a matter of law. See Holder, 2016 WL 4421362, at
**23–24.
The evidence further showed that, while they were at the crime scene,
appellant suggested to Uselton they “make it look like a robbery.” Uselton retrieved
a laptop and some other items, and appellant grabbed Tanner’s wallet from a dresser
drawer. Appellant said, “Let me cut his head off, make sure he’s dead,” and Uselton
replied, “No, dude, I think he’s dead, bro. Leave it alone.” They walked over to
Tanner’s body and appellant, holding a butcher knife, leaned over Tanner and
stabbed him in the neck with the knife. Later, after they got to the tattoo parlor,
Uselton went into the restroom and when he came out, he saw appellant standing in
the dark crying.
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Plano police found a pair of black latex gloves at the crime scene, on Tanner’s
kitchen table. During their investigation, Plano detectives learned that appellant was
a tattoo artist, and they found a Facebook photo of appellant tattooing someone while
wearing a pair of black latex gloves like the ones found in the house. The gloves
from the crime scene were submitted for DNA testing, and the DNA analysis
determined appellant could not be excluded as a major contributor of the mixed DNA
swabs collected from the gloves. The forensic DNA analyst concluded it would be
extremely unlikely that anyone other than appellant would be the major contributor
of the DNA from the glove swabs.
Before detectives spoke with Uselton, they were aware that Tanner’s truck
had been stolen and had located it in a Las Colinas parking garage with the help of
the Irving Police Department. When the police took Uselton out of jail a few months
later to confirm his story by identifying relevant locations, Uselton directed them to
the same parking garage in Las Colinas, and he directed them to Tanner’s house.
Vanessa Garcia corroborated some of Uselton’s testimony. She testified that
she and appellant picked up Uselton on the night of Saturday November 10; they
drove to a residential neighborhood in Plano; appellant and Uselton got out of the
car and she went home; and early the following morning she picked up appellant and
Uselton near a parking garage in Las Colinas.
Appellant argues the cell site location data from his phone was the foundation
on which the State’s case was built, showing his identity as the person responsible
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for Tanner’s death. The State responds that the cell site location information was
merely one part of a multi-faceted case, and that when appellant’s cell site location
data is viewed in the context of the State’s entire case, it “would not have
substantially swayed the jury.” “Instead,” argues the State, that evidence “would
have simply incrementally improved the jury’s reason to believe the State’s other
evidence.” Yet the record shows that the State developed and relied heavily on
appellant’s cell site location data to prove its case, arguing the cellular records
showed appellant’s phone was in the area of the crime scene during the time when
the State maintained Tanner was murdered, and that appellant lied regarding his
whereabouts on Saturday, November 10. As the State told jurors in its opening
statement:
And Plano P.D., when they got these court ordered cellphone records,
they determined that the cell tower next to Bill Tanner’s house, that the
defendant’s phone had hit off of that cellphone tower around 3:10, the
closest cellphone tower to Bill’s house, around 3:10 that Saturday.
And, of course, Bill Tanner’s last phone call, the last anyone heard from
him or saw him, was at 1:45 Saturday. So the police know that the
defendant’s cellphone was hitting off the tower next to Bill Tanner’s
house.
Then they go talk to the defendant. They talk to him, and they want to
get his side of the story. And they ask him, “Where were you on
Saturday?” And he gives sort of a spiel about what he was doing. The
one thing that he says was that he was not in Plano, because he lived
down in Irving. That’s where he’s from. That’s where the tattoo shop
was, wasn’t anywhere near Plano. So they know, well, your cellphone
was. So they ask him, “Did you have your cellphone with you? Maybe
somebody else was using it. Maybe somebody borrowed it.” Yes, his
cellphone was always with him. Next they ask what his number was to
confirm. They confirm they have the right phone. They have the right
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phone number. So they know that doesn’t make sense.
So once he says this story, they confront him with it, say, well, what
you’re telling us doesn’t make a lot of sense, because your cellphone
was in Plano. He doesn’t have a real good explanation, because he’s
lying. You can see that.
Then the detective plants a suggestion. Well, could it be because maybe
you were using methamphetamine, and you were in Plano at the time
buying methamphetamine? Ah, yes. Ah, yes. So then he says, yes, I
was in Plano, and I was looking to score. However, when asked what
part of Plano, he puts himself south, around 190 and Jupiter, which is
going to be closer to the Richardson/Plano border than where Mr.
Tanner’s home was, which is closer to Spring Creek and Parker in east
Plano. And you will hear that there’s cellphone towers around 190 that
are different than the cellphone towers that would hit if they were closer
to Bill Tanner’s house. And the police officers know that it’s still not
right. So now they know that the defendant had his phone. They know
that his phone is hitting off the cell tower closest to Bill Tanner’s house,
and Bill—we didn’t hear from him after that Saturday around 1:45.
The State continued to emphasize these issues in its closing argument:
Coincidentally, 43 minutes after Bill Tanner makes his last phone call,
the defendant shows up near the crime scene. And no, the phone
records, they don’t say, hey, this person is at a particular address. But
what they do tell you, and in this specific instance, they tell you that
he’s hitting off a very specific tower, and a specific side of that tower,
the side of that tower that serves the crime scene’s address. The most
likely tower and side of tower to serve that address, the best server, as
the AT&T engineer, K.D. Burdett testified, that’s the server that’s
going to serve that address. That’s the tower that’s going to serve it.
And remember, you know there’s several addresses, there’s several
places where, you know, we can be multiple towers in a lot of these
addresses, or multiple sides of the towers, but not 3121 Royal Oaks
[Tanner’s Plano, Texas address]. It’s this one tower, tower 2397/1151,
that one side of the tower.
And that directly discredits the defendant’s statements to the police.
What did he tell the police? He tells them, I wasn’t in Plano. I wasn’t
in Plano at all. I was in Irving. I was either at Vanessa Garcia’s house
or at the tattoo shop. I took Vanessa Garcia to work in Lewisville. I
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went to a birthday party in Irving, pretty much in Irving and picking her
up in Lewisville. That’s it. What did we do that night? We stayed—
just hung out, stayed at her house. We didn’t really go anywhere. Gas
is expensive. That’s what he tells the police. Forgets to mention Plano
altogether. Why is that?
And yet these show that he, in fact, was in Plano. When the police
confront him with that evidence, say, hey, we’ve got your phone
records, we know you were in Plano, can you tell us why, give us
something, we’re trying to figure things out because you’re not being
honest with us, initially he can’t think of anything. “I don’t know. I
wasn’t in Plano.” He maintains that.
And then eventually he comes up with a different story. Well, you
know, I did go to Plano. I did go to Plano, and it was to buy drugs, and
it was from this guy, and I went over in the Jupiter/190 area,
Jupiter/George Bush area. That’s where this guy lives. And I bought
some drugs. I didn’t want to get him in trouble. Okay?
Looking at this map, you can tell Jupiter/190 area, where it is. It’s
nowhere near where the crime scene is, nowhere near where the crime
scene tower is. So that story just didn’t fly. It doesn’t check out. It
doesn’t match with the evidence. But that’s the defendant’s story,
because he’s got to come up with something.
What else do the phone records show you? Well, they show you that
that night the defendant travels to Fort Worth, again contrary to his
story of, “We stayed at home,” travels to Fort Worth, and he picks up
Thomas Uselton, something that again corroborates Thomas Uselton's
story, something that corroborates Vanessa Garcia’s story. “Yeah, we
went to Fort Worth.” Defendant conveniently leaves that out when he’s
talking to the police. And again, we can see exactly the phone tower
that he hits off of when he gets to Fort Worth, and it’s the one that
services that Kroger where Thomas Uselton says he was waiting off of
Camp Bowie.
What happens after that? Well, he travels back to Irving. Thomas
Uselton says, “Hey, we went to Irving, we stopped off at the tattoo shop,
he got some cleaning supplies, got some gloves.” All consistent with
the evidence and consistent with the phone records, as he pings off a
tower, the tower that serves—one of the towers that serves the tattoo
shop at 11:49 p.m.
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And then on to the crime scene, from 12:41 to 12:44 a.m. Now, you
don’t have a lot of activity on the phone at this time, because it goes off
after 12:44 a.m. There’s no activity. Nothing is registering on a tower.
Again, consistent with the phone being turned off.
Later, toward the end of its closing argument, the State told jurors their task was akin
to assembling the pieces of a puzzle:
As the State, we have to prove the case to you beyond a reasonable
doubt. It’s not beyond all doubt. It’s not beyond a shadow of a doubt.
It’s beyond a reasonable doubt. And in this particular case, and it’s like
[the State] pointed out to you in jury selection, we have those pieces of
the puzzle, those different pieces of evidence. When you look at them,
and you analyze them alone, they’re insignificant. They mean
something. It could be a number of different things. But when you
start putting the pieces together, adding them up, they start to show you
something. They start to give you a clearer picture. And you may not
have the full picture. There’s going to be holes. We talked about that.
We discussed that. But when you look at all the evidence together, it
becomes clearer what happened in this case. It becomes clearer that the
defendant murdered Bill Tanner.
The State’s puzzle analogy illustrates that there was other evidence of guilt in
this case apart from the cell site location data, such as Uselton’s testimony and the
evidence corroborating it. It is also true, as the State points out in its supplemental
brief, that “‘[a] defendant’s conduct after the commission of a crime which indicates
a ‘consciousness of guilt’ is admissible to prove that he committed the offense.’”
Hedrick v. State, 473 S.W.3d 824, 830 (Tex. App.—Houston [14th Dist.] 2015, no
pet.) (quoting Ross v. State, 154 S.W.3d 804, 812 (Tex. App.—Houston [14th Dist.]
2004, pet. ref’d)); see also Eadha v. State, No. 05-17-01296-CR, 2019 WL 3423278,
at *3 (Tex. App.—Dallas July 30, 2019, no pet.) (not designated for publication).
Likewise, concealing incriminating evidence is probative of wrongful conduct and
–16–
a circumstance of guilt. See Guevara v. State, 152 S.W.3d 45, 49–50 (Tex. Crim.
App. 2004); see also Nisbett v. State, 552 S.W.3d 244, 267 (Tex. Crim. App. 2018).
But to say that appellant’s cell site location information only incrementally improved
the jury’s reason to believe the State’s other evidence goes a bridge too far.
Uselton’s testimony, for example, certainly suggests appellant was involved in the
crime; however, appellant’s cell site location information was a crucial part—if not
the crucial part—of the State’s case. This evidence showed appellant was in the area
of the crime scene during the time when Tanner was supposed to have been
murdered, and that appellant lied regarding his whereabouts on that day. Without
appellant’s cell site location information, in other words, a major piece of the puzzle
is missing. Therefore, after reviewing the record as a whole, we conclude the
probable impact of the improperly admitted cell site location information was great.
And because we cannot determine beyond a reasonable doubt that the cell site
location information did not contribute to the jury’s verdict, the error was not
harmless. See TEX. R. APP. P. 44.2(a).
Accordingly, we reverse the judgment of conviction and remand this case for
further proceedings.
/Lana Myers
LANA MYERS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b).
150818RF.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CHRISTOPHER JAMES HOLDER, On Appeal from the 416th Judicial District
Appellant Court, Collin County, Texas
Trial Court Cause No. 416-80782-2013.
No. 05-15-00818-CR V. Opinion delivered by Justice Myers.
Justices Whitehill and Nowell participating.
THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the judgment of the trial court is REVERSED
and the cause REMANDED for further proceedings consistent with this opinion.
Judgment entered this 15th day of December, 2020.
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