Lead Opinion
OPINION
Opinion by:
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-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 Tar-ver’s resistance toward marriage. According to Federspill, the subject of marriage “was one of the sticky spots for [Ford] and
According to Ford, he went straight home after the party and was asleep before midnight. The State presented evidence suggesting this was no.t 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; (8) 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.
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 8155 (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.
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,
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, “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,
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 Tar-ver and Federspill testified they did not see Ford’s white Chevy Tahoe parked in his driveway after midnight. The pah-drove to Ford’s home to deliver a cooler
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.”
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
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. 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*181 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,
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,
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 ear 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 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 récord 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,
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
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 “[wjhile these facts together might create suspicion, ... they do not add up to probable cause that appellant committed the murders.” Hankins v. State,
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,
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 mov-ant 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,
*183 4.) The new evidence is probably true and will probably bring about a different result on another trial.
Keeter v. State,
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.
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,
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,
Jury Note
Ford next contends the trial court erred by insufficiently responding to the following jury note at trial:
*184 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,
In response to Ford’s objection, the trial court clarified its decision before actually rereading Doll’s testimony to the jury, stating:
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,
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.
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Q: Okay. Let’s put that together. So ■ even though the records show a cell tower and a sector to the cell tower, that does not mean beyond all doubt that the cell device was in that sector, does it?
A: 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*185 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 hold the 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,
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 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,
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)
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 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,
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, photoelec-tronic, or photo-optical system.” Tex. Code Crim. Proc. Ann. art. 18.20, See. 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 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.
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 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 warrant-less 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, — U.S.-,
In Jones, the police attached a Global-Positioning-System (GPS) tracking device to an individual’s vehicle without a valid warrant. Jones,
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,
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,
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.
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,
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,
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,
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,
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,
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.
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, — U.S. -,
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,
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 Soto-mayor’s concurrence in Jones,
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, Ine.,
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,
[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,
Ford alleged before the trial court that Detective Carrion falsely stated Tarver and Federspill’s testimony, and mischarac-terized 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 location. State v. McLain,
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,
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 cord for a wireless electric drill. The State sought to introduce these items be
We review the trial court’s decision to admit or exclude evidence for an abuse of discretion. Green v. State,
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,
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,
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
As stated above, we review the trial court’s decision to admit or exclude evidence for an abuse of discretion. Green,
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,
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; (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*196 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, “[Ijet’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:
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,
Only in extreme circumstances of incurable prejudice will mistrial be required. Hawkins,
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 State
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,
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
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?
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,
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,
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,
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
Ford, however, directs this court to Rodriguez v. State,
Additionally, Ford directs this court to the decision of York v. State,
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,
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.
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 788 (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 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,
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,
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
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,
In support of his “context evidence” argument, Ford directs the court to Mann v. State,
[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.
Dissenting Opinion by: LUZ ELENA D. CHAPA, Justice.
Notes
. The record reflects Edwards drove a red Chevy Tahoe.
. 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.
. The State argues there is no error preserved for our review because the "motion was not
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.
Dissenting Opinion
dissenting.
“[A] Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.” Kyllo v. United States,
The amount of detailed information that a cell phone provider has the means to track, collect, and record about its customers as they conduct their everyday lives is staggering. See United States v. Jones, - U.S. -,
The majority holds that the third-party doctrine precludes Ford from having a reasonable expectation of privacy in this “historical cell site data” because he “voluntarily disclosed” it to his cell phone provider in the course of using his cell phone. To achieve this result, the majority relies on Smith v. Maryland,
But the Supreme Court has recently recognized that modern cell phones — now a “pervasive and insistent” part of modern life — present privacy concerns far beyond the founding principles of the Fourth Amendment and the circumstances of the founding era. See Riley,
The majority’s application of the third-party doctrine sweeps intimate details of a person’s life outside the scope of the Fourth Amendment’s protections because cell phone customers “voluntarily disclose” their location information simply by owning and using their cell phones. The majority thus confronts cell phone customers with a choice between Seylla and Charybdis: either forego the use of technology that has become a pervasive and insistent part of modern, everyday life or forego the protections of the Fourth Amendment. I cannot join such a sweeping and mechanical application of Smith and Miller.
Instead,” I agree with the Third and Eleventh Circuits and conclude that “a cell phone customer has not ‘voluntarily’
Because the Fourth Amendment required suppression of the historical cell site data, the denial of Ford’s motion to suppress was constitutional error. When an appellate court determines there was constitutional error at trial, it must “reverse a judgment of conviction ... unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction_”Tex.R.App. P. 44.2(a). The evidence’ against Ford was largely circumstantial, and I am unable to conclude beyond a reasonable doubt the erroneous admission of the historical cell site data did not contribute to Ford’s conviction. I would therefore reverse Ford’s conviction and remand this case to the trial court for further proceedings. Because the majority does not do so, I dissent.
. Although the majority primarily cites to opinions from the Fifth Circuit and the Fourteenth Court of Appeals, the underpinnings of its reasoning flow directly from the also-cited Smith and Miller.
. The first commercial cell phone system was introduced in 1983. Mobile .Telephone, Encyclopedia Britannica Online, http://www. britannica.com/EBchecked/topic/1482373/ mobile-telephone/279851/ development-of-cellular-systems (last updated Sept. 5, 2013).