NO. PDI N THE 

### RECEIVEDIN COURTOFCRIMINALAPPEALS 

### NOV 182015 COURT OF CRIMINAL APPEALS OF TEXAS

JOSE AHILPAS*

-vsTHE STATE OF TEXASt 

### AbelAcosta,Clerk Appellant-Petitioner

Appellee-Respondent

ON PETITION SEEKING DISCRETIONARY REVIEW OF COURT OF APPEALS NO. 01-14-00053-CR FROM THE COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AFFIRMING THE CONVICTION AND SENTENCE IN TRIAL COURT CASE NO. 1334791 OUT OF THE 174th JUDICIAL DISTRICT COURT OF HARRIS COUNTY/ TEXAS

PETITION FOR DISCRETIONARY REVIEW

JOSE AMILPAS/ pro se Robertson Unit/ TDCJ No. 1908295 12071 FM 3522 ' Abilene* Texas 79601-8799

Appellant-PetitionerTABLE OF CONTENTS SECTION PAGE

INDEX OF AUTHORITIES 11 STATEMENT REGARDING ORAL ARGUMENT iv STATEMENT OF THE CASE *W* v STATEMENT OF PROCEDURAL HISTORY v GROUND FOR REVIEW: THE FIRST COURT OF APPEALS ERRED WHERE IT FAILED TO FIND, RES NOVA, THAT ARTICLE 18.21 OF THE TEXAS CODE OF CRIMINAL PROCE DURE'IS UNCONSTITUTIONAL, VIOLATING ARTICLE 1/SECTIONS 9, 10, 13/19,AND 29 OF THE TEXflis CONSTITUTION; AND THE FOURTH, FIF TH/' SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CON STITUTION, WHERE THE STATUTE DOES NOT CONTAIN A PROVISION FOR UNSEALING THE AFFIDAVIT, APPLICATION, AND ORDER FOR DISCOVERY AND DISCLOSURE PURPOSES OF PEN REGISTER INFORMATION.. 1 ARGUMENT AND AUTHORITIES 3 CONCLUSION 8 PRAYER FOR RELIEF 10 VERIFICATION BY UNSWSORN DECLARATION 11 CERTIFICATE OF SERVICE^, 12 APPENDIX 13 MEMORANDUM OPINION OF THE FIRST COURT OF APPEALS

— DALLAS, TEXAS 

### Amilpas v. The State of Texas, No. 01-14-00053-CR (April 23, 2015) (not designated for publication).

-l-INDEX OF AUTHORITIES CASE CITATIONS PAGE Andrews v. Proctor, 950S.W.2d 750 (Tex.App.-Amarillo 1997) 6 

### BeloBroadcastingCorp. v. Clark, 654 F.2d 423 (5th Cir. 1981) 7 

### CityofFortWorthv. Howerton, 149 Tex. 614/ 236 S.W.2d 615 (1951) 6 Conleyv. Daughtersof theRepublic, 106 Tex. 80* 156 S.W. 197 (1913)........ 5 Corsicana CottonMills v. Sheppard, 123 Tex. 352, 71 S.W.2d 247 (1934) 6 ,-i I II I •'• -It.- 

### Cranerv. Sheppard/ 140 Tex. 271, 167 S.W.2d 147 (1942) 4 Durish v. Texas State Board of Insurance, 817 S.W.2d 764 (Tex.App.-Texarkana 1991) 6 t _: j , • ,.j..' . . ... .1 i. I-J.J .111. ,.1.1.1 lilllil.lt 

### Gallagherv. State, 690 S.W.2d 587 (Tex.Crim.App. 1985) 4 Garrett v. Borden/ 283 S.W.3d 852 (Tex. 2009) 3 Heitman v. State/ 815 S.W.2d 681 (Tex.Crim.App. 1991)........................9 

### Heyman: Exparte/ 45 Tex.Crim. 532/ 78 S.W. 349 (1904)....................... 6 Holmes v. State/ 323 S.W.3d 163 (Tex.Crim.App. 2010) 7 

### Kimbroughv. Barnett/ 93 Tex. 301, 55 S.W. 120 (1900) 6 

### LeCroyv. Hanlon, 713 S.W.2d 335 (Tex. 1986) 10 .j ,/ j .., • -j•••>•• -—•••--«—-j—'--—•-—'— •j --••- -•* '•-•-• 

### Lo; Exparte, 424S.W.3d 10 (Tex.Crim.App. 2013)............................. 9 Marylandv. Garrison, 480 U.S. 79/ 107 S.Ct. 1013 (1987) 7-8/11 

### Pittmanv. Byars/ 112S.W. 102 (Tex.Civ.App. 1908) 5 SanAntonio &A.P. Ry. Co. v. State, 128 Tex. 33, 95S.W.2d 680 (1936) 5 State v. Mazuca, 375 S.W.3d 294 (Tex.Crim.App. 2012) 7 

### UnitedStates v. Raybould, 130 F.Supp.2d 829 (N.D. Tex. 2000) 7 

### Whitworth v. Bynum/ 699S.W.2d 194 (Tex. 1985)......... 9 CONSTITUTIONS/ STATUTES/ CODES, AND RULES PAGE 1 ~ ~ U;*S. CONST, amend. IV ........................ 3 U.S. CONST. amend. V • 3 U.S. CONST, amend. VI •• ••«• • 3 U.S. CONST, amend. XIV p^3 TEX. CONST, art. 1/ § 9 • 3

-ll-CONSTITUTIONS/ STATUTES/ CODES/ AND RULES (continued) PAGE TEX. CONST, art. I, § 10 3 TEX. CONST, art. I, § 13 3 TEX. CONST, art. I, § 19 3 TEX. CONST, art. 1/ § 29 3, 6, 10 TEX. CONST, art. V, § 3-b 10 i '-' I i ' .• . ' . r f • • - j ! ( I ' ' * ' i. >' •' ' ' •' •**l • • ' . f TEX. CODE CRIM. PROC. art. 18.011 5, 11 TEX. CODE CRIM. PROC. art. 18.21 passim TEX. CODE CRIM. PROC. art. 18.21, § 2(g) 3, 4 TEX. CODE CRIM. PROC. art. 18.21 ,§ 2(c) 5-6 TEX. CODE CRIM. PROC. art. 20.02 5 TEX. CODE CRIM. PROC. art. 39.04.. 5-6 TEX. CODE CRIM. PROC. art. 39.14 5-6 TEX .GOV. CODE/ § 22.001(c) 10 

### TEX.GOV.CODE/ §51.317 ,•**••** 10 TEX. GOV. CODE, § 51.318
. 10 TEX. R. APP. PROC. 140 10 TREATISES AND OTHER SOURCES , PAGE Carson; Wallace P., Jr.# "Last Things Last:" AMethodological Approach to 

### LegalArgument instate Courts, 19WILLIAMETTEL.REV.641 (1983) 9 Mauer; John Walker* Southern State Constitutions in the 1870's: ACase Study of Texas 188-89/204/221-22, 246-48 (1981) 8 

### Hyres; SanuelD.#Mysticism, RealismandtheTexasConstitutionof 1876/ 9 SW.SOC.^SCI.Q. 166/182-83 (1928) •••••• •••• 8_9 J—-,_J_J». J _J„,_J..j,J.J-...Jv-J_J_J.J-Ji*i-**.<- 

### Sager; LawrenceG.« Foreword: State Courts and the Strategic Space Between the Norms ana* Rules of Constitutional Law* 63 TEX. L. REV. 959 (1985)... 10 Peters; EllenA.* Common LawAntecedents of Constitutional Law in Connecticut/ 53 ALB. L. REV. 259 (1989) 6
x ^ .,4 ..„, ...i.4 .jJ -J -J..J-J.J i-..!..„* -ii.J..4..'i-i'i.- --?;..' t-, -J-hl .i.tv4-l..4

-111-STATEMENT REGARDING ORAL ARGUMENT Jose Amilpas/ Petitioner pro se inthis case, believes that oral argument will beabsolutely necessary for being able to fully explain theunderlying le 

### gal theories andargument demonstrating that Article 18.21 of the Texas Code of Criminal Procedure is unconstitutional/ where there is no provision in the sta 

### tute for having anapplicationandorder unsealed/ where Article 18.21(g) make itmandatory that "'the district court shall seal anapplication andorder gran tedunder thisarticle." KhereArticle 18.01 governs the sealing of affidavits 

### requesting searchwarrants/ andArticles 18.011(c) and (d) govern the unsealing of affidavits so as not to "affect the right of a defendant to discover the contents of an affidavit;" and Article 20.02(d)/ of the Code of Criminal Proce 

### dure/ which provides that a "defendant may petition a court to order the dis closure of information" contained in therecords of a grand juryproceeding and "otherwise made secret by" Article 20.02; Article 18.21 is contrary to the pro visions of the Code of Criminal Procedure that entitles a defendant to discove 

### ryof the contents of anaffidavit/ and "secret grand juryproceedings." Addi 

### tionally, the Legislature's failure to include aprovision for unsealing arec ord that had beensealed under Article 18.21(g), violates a long-line of prece dents that had been set-in-stone bythe Supreme Court of the United States. In the event that this Courtdetermines that oral argument is necessary/ 

### Petitioner respectfullymoves the Court to invite one of the attorneys from the 

### Texas Civil Rights Project to participate on Petitioner's behalf/ inpresenting oral argument.

USE AMILPAS/ Petitioner pro se

-iv-STATEMENT OF THE CASE 

### Petitioner Jose Amilpas ("Amilpas") was charged with the felony offense of 

### possessionwith intent to deliver acontrolled substance. The charge was enhan cedwith two prior felony convictions. OnJanuary 1, 2014/ he enteredaplea of not guilty and proceeded to trial by jury. On that same day/ the jury found Am ilpas guilty as charged. Amilpas waived apunishment trial/ and pursuant to an 

### agreedrecommendationby the State/ the trial court sentencedhim to thirty (30) years imprisonment in the IQbrrectional Institutions Division of the Texas De 

### partment of Criminal Justice. Amilpas fileda timely notice of appeal onJanua 

### ry 7/ 2014. Mr. JonMunierwas appointed to represent Amilpas onappeal/ but in the event ofMr. Munier's untimely death/ the case was abated and remanded to 

### the trial court for the appointment of substitute counsel. Amilpas's appeal was then submitted to apanel ofJustices atthe First Court ofAppeals atHouston/ inwhich he raised four issues: (1) and (2) complained that the statute author 

### izing the sealing of anapplicationand order under Article 18.21 of the Texas Code of Criminal Procedure was unconstitutional where it did not also contain or 

### provide aprovision ormeans to allow adefendant to have the applicationandan order unsealed; and that the unconstitutionality of the statute deprived Amilpas 

### of dueprocess of law; (3) he contendedthat the evidencewas legallyinsuffici ent to support his conviction; and (4) the trial court committed reversible er ror where it overruled the defense's objection to the prosecutor's improper arg ument during closing. STATEMENT OP PROCEDURAL HISTORY This case was tried in the 174th Judicial District Court of Harris County/ 

### Texas/ before the Honorable Ruben Guerrero/ in which a guilty verdict was re 

### turnedby the juryonJanuary 1, 2014. Following the verdict onguilt, pursuant to an agreed recommendationby the State, Amilpas was sentencedby the court, to 

### thirty (30) years imprisonment in theTDCJ. Amilpas thenperfectedatimelyap 

### peal/ submitting his BRIEFOFAPPELLANTon September 2, 2014; thereafter, the State submitted its BRIEF OF APPELLEE onNovember 25/ 2014. The appellate pan-

-v-

### el affirmed the judgment of the trial court and issued its opinion onApril 23/ 2014. Amilpas v. State/ 01-14-00053-CR (Tex.App.-Houston [1st Dist.] 2014). r .i f -•< -j 

### On May 17/2015, Amilpas submittedhis first PETITIONER'S MOTION TOEXTEND TIME TOFILE PETITION FOR DISCRETIONARY REVIEW/ requesting that the Court allow himuntil July 24/ 2015/ tofile his petition. OnJuly 22/ 2015/ Amilpas submitted his PETITIONER'S MOTION REQUESTING, A SECOND EXTENSION OF TIME DURING WHICH TIME FOR FILING HIS PETITION FOR DISCRE 

### TIONARY REVIEW/ requesting that the Court allowhim until October 22/ 2015, for submitting his petition. f% 

### Amilpas has herewith submittedamotion requesting a final extension of time under Rule 68.2(c)*s provision that allows the Court to grant an extension 

### of time if itailpas "files amotion complying with Rule 10.5(b) no later than 15 

### days after the last day for filing thepetition." Amilpas hadpreviously sought until October 22/ 2015/ for filing his petition, and that being the last day to 

### file hispetition/ he haduntil November 6/ 2015/ to file this instantpetition along with the attachedmotion seeking an extension of time of 15 days. The CERTIFICATE OF SERVICE attahced hereto/ certifies that this petition 

### was deposited into the prison's internal Legal Mail system/ under the Prison Mailbox Rule for mailing to the Clerk of the Court of Criminal Appeals, onFri 

### day evening/ November 6/ 2015/ inaccordance with Rule 68.2(c)'s provision.

1 This is anunpublished MEMORANDUMOPINION that was not designated for publicationbythe appellate panel.

-vi-GROUNDS FOR REVIEW As required by the fflexas Rules of Appellate Procedure/ Petitioner indi cates the specific rule provisions under which he asks that the Court of Crimi nal Appeals review the First Court of Appeals' decision and judgment/ where:
THE FIRST COURT OF APPEALS ERRED WHERE IT FAILED TO FIND, RES NOVA, THAT ARTICLE 18.21 OF THE TEXAS CODE OF CRIMINAL PROCE DURE'IS UNCONSTITUTIONAL*. VIOLATING ARTICLE 1/ SECTIONS 9/10, 13, 19 AND 29 OF THE TEXAS CONSTITUTION, AND THE FOURTH/ FIF TH, SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CON STITUTION, WHERE THE STATUTE DOES NOT CONTAIN A PROVISION FOR 

### UNSEALING THEAFFIDAVIT, APPLICATION, AND ORDER FOR DISCOVERY AND DISCLOSURE PURPOSES OF PEN REGISTER INFORMATION.
REASONS FOR GRANTING DISCRETIONARY REVIEW

v. (b) Has theFirst Court of Appeals failed todecide an important question of State and federal law that has not been, but should be, settled by theCourt of Criminal Appeals? [Rule 66.3(b)] (c) Has the First Court ofAppeals' failure todecide an important ques tion of State and federal constitutional law, resulted in a decision that conflicts with applicable decisions of the Court of Criminal Appeas and the Supreme Court of the United States? [Rule 66.3(c)] (d) Has the First Court of appeals failed in its function as PROTECTOR of the Constitution when it misconstrued the construction of Article 18. 21/ and failed to recognize/ sua sponte/ that the statute was consti tutionally invalid? [Rule 66.3(d) (f) Has the First Court of appeals' failure to decide a question of first impression regarding the constitutionality of Article 18.21, where it had itself noted the statute's deficiency, so far departed from the accepted and usual course of judicial proceedings/ and so for sanc tioned such a departure from the trial court that it calls for an ex ercise of the Court of Criminal Appeals' poser of supervision? [Rule 66.3(f)] Specifically/ the First Court of Appeals' decision requires review by the Court of Criminal appeals because — (1) The question of whether Article 18.21 is unconstitutional on confron tation and due process grounds/ is a matter of "first impression," as the statute does not harmonize'with any other Texas statute authoriz ing the sealing of documents and records/ as those statutesALSO have provisions allowing a party to obtainaccess by unsealing the records fordiscovery/ or confrontation purposes. (2) TheCourt of Appeals' analysis anddetermination flies in the face of 137years of Texas jurisprudence/ where theappellate panel specific ally identified/ named/ and pointed tothe article's constitutional 

### infirmityand took no adtfion to sua sponte address it; where the Tex as Court of Criminal Appeals long ago held that it is theTexas judi-

-1-

### ciary that is the "traditional protector[s] of individual's constitu tional rights." 

### (3) Lastly, the First Court of Appeals' reasoning, and especially the re sult of its inaction on an obvious constitutional question/ is a "de relict upon the waters of the law/" for the Court of Criminal Appeals had observed some 24years ago that a "failure to independently con strue state constitutional provisions'5 will eventually place the de cision in "the hands of the Supreme Court of the United States which is not responsible to the State's electorate."

-2-ARGUMENT AND AUTHORITIES

I. PETITIONER'S SOLE ISSUE L THE FIRST COURT OF APPEALS ERRED WHERE IT FAILED TO FIND/ RES NOVA/ THAT ARTICLE 18.21 OF THE TEXAS CODE OF CRIMINAL PROCE DUREyIS UNCONSTITUTIONAL/ VIOLATING ARTICLE 1/ SECTIONS 9/10/ 13/ 19 AND 29 OF THE TEXAS CONSTITUTION; AND THE FOURTH/ FIF TH/ SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CON STITUTION/ WHERE THE STATUTE DOES NOT CONTAIN A PROVISION FOR UNSEALING THE AFFIDAVIT/ APPLICATION/ AND THE COURT'S ORDER/ FOR DISCOVERY AND DISCLOSURE PURPOSES PERTAINING TO PEN REG-i ISTER INFORMATION. In its MEMORANDUM OPINION/ the First Court of Appeals construed Amilpas' first issue on appeal to be that the trial court denying his request to unseal the affidavit/ application/ and court-order directing Sprint-Nextel to disclose information related to his cell phone/ prevented him from evaluating the evi dence against him, subpoenaing rebuttal witnesses* and of questioning potential witnesses, violated his right to confront witnesses guaranteed by the Texas and 

### United States Constitutions. See APPENDIX (MemorandumOpinion) p. 3 [p. 4-5]. Regarding his second issue/ the appellate panel ("panel") construed his ground of error to be that the same ruling of the trial court deprived him of due pro
cess of law. Id. p. 3 |p. 5]. In its discussion of the "applicable law," the panel determined that "the statute requires that *[t]he district court shall seal an application and order granted under this article' and includes no mention ofany process by which the 

### application or order may be unsealed." Id. p. 4 (p. 6] (citing TEX. CODECRIM. PROC. art. 18.21,$>2'(g.})i. Then in its "analysis/" the panel makes the following
observation: As the State correctly notes, article 18.21/ of the Code of Criminal ProThe First Court ofAppeals' opinion that is the subject of this petition/ is attached as an exhibit in the APPRNDIX of this petition. Petitioner had no means by which he could obtain a xerographic copy of the opinion/ so, he produced a word-for-^word copy by manual reproduction using a type writer. See Garrett v. Borden, 283 S.W.3d 852 (Tex. 2009). Petitioner cites andquotes the typewritten opinion as follows: APPENDIXp. first 

### reference is to the paginationas typed at thebottomofthe page [p. the BOLDreference in brackets is CourtofAppeals* pagination ofthe Court's MEMORANDUMOPINION] .

-3-cedure makes nomention of the circumstances under which anorder for the 

### disclosure of pen register informationmay beunsealed. 

### APPENDIXp. 6 [p. 9] (citingTEX. CODECRIM. PROC. ANN. art. 18.21, §2(g) ("The district court shall seal anapplicationand order granted under this article," 

### inwhich apolice officer seeks order for informationrelated to cell tower re 

### cords)). Thepanel correctlyconcluded that "Amilpas DOESNOT contend that the trial court*s refusal to unseal the order violated article 18.21 of the Code of 

### Criminal Procedure." IdL (emphasisadded). The panel then correctlyrecogniz 

### edthatAmilpas' complaintswere foundeduponviolations of the State and fede ral constitutions. To frame the issue concisely, Amilpas was deprived of dis

### coverywhere itwas article 18.21 itself* thatviolated the constitutional pro visions. Thepanel itself identifiedthe constitutional infirmity, and that is that article 18.21 "makes no mention" of how adefendant may have the records
unsealed. 

### Article 18.21 is "vague" on its facewhere it does not specificallystate 

### that documents sealedbyorder of the court under article 18.21(g)/ can or can not somehowbeunsealeduponadefendant's request. The approach this Court is to take inorder to resolve the vagueness of the language of article 18.21 will 

### be, first, that it is not to be given a "technical constructionwhichwouldde 

### feat" the statute's purpose. Cramerv.Sheppard, 140 Tex. 271, 284-85, 167 S.W.2d 147, 154 (1942). Where, here, the statute is open tomore thanone understand 

### ing, eitherthe sealedrecordsmay.beunsealed, or theycannot, it isnottobe "soconstruedor interpretedas to leadtoabsurdconclusions, if anyother in 

## terpretationorconstructioncan reasonably be indulged in." IdL at 294, 167 S.W.2dat 159 (Alexander, C.J./ dissenting). This Court shouldalso avoidcon

### struingastatutoryprovisionsoas torender it ambiguousor contradictory to another statute. Gallagherv. State, 690 S.W.2d 587, 591-92(Tex.Crim.App.1985) (enbanc). 

### The same standards applywhen interpretingdifferent statutoryprovisions 

### thatappeartoconflictwitheachother. ThisCourtmust firstdetermine whe 

## ther it ispossibletoharmonizetheprovisions by areasonable construction.See San Antonio & A.P. Rv. Co. v. State, 128 Tex. 33/ 42, 95 S.W.2d 680/ 685 (1936) (holding that where provisions cannot beharmonized/ more specific provision is to control); Conlev v. Daughters of the Republic/ 106 Tex. 80/ 92, 156 S.W. 197, 201-02 (1913) (stating that statutes relating to same subject are to be taken together so effect may be given to each); Pittman v. Byars, 112 S.W. 102/ 106

...< ..i ..j i... .i (Tex.Civ.App. 1908/ nowrit) (reasoning that similar language inpresent and in earlier statute/ gives rise to presumption that earlier interpretations of con structions of language controls). Article 18.21 is in the chapter of the Code of Criminal Procedures estab lishing the procedures for securing searchwarrants from the courts. Article 18.011 covers the sealing of affidavits presented to the court for demonstrat ing the specific requirements for obtaining a warrant; and the statute also ad 

### dresses the procedures for "unsealing" anaffidavit and court order: 

### On the expirationof an order issue under Subsection (b) and anyextenthe affidavit must be unsealed.
-i An order issue under this sectionmay not: (1) prohibit the disclosure of information relating to the contents of a searchwarrant/ the return of a searchwarrant/ or the inventory ofproperty takenpursuant to a search warrant; or (2) AFFECTTHERIGHTOFADEFENDANTTODISCOVERTHECONTENTSOF AN AF FIDAVIT. TEX. CODE CRIM. PROC. ANN. art. 18.011(c) & (d) (Vernon 2010) (emphasis added). 

### Chapter 20 of the Code of Criminal Procedrue covers the Duties and Powers of the Grand Jury, and Article 20.02(a) mandates that n[t]he proceedings of the 

### grand juryshall be secret." However, the statute does provide that adefend ant "maypetitionacourt to order the disclosure of informationotherwisemade 

### secret by this article...." TEX. CODE CRIM. PROC. ANN. art. 20.02(d).
•Mv'-J Articles 18.011 (c)&(d); and 20.02(d) demonstrate that Article 18.21, in order toharmonize/ should have included a provision for unsealing theaffidav

### it, application, and court order. As it stands, Article 18.21 is_unconstitu tional for not having aprovision extending to thedefendant "the right to dis cover" the instrument "made inwriting under oath," pursuant to Article 18.21 

### §2(c)(1)/ and consistent with Chapter 39 Of the Code of Criminal Procedure that

-5-mandates that a defendant is entitled todiscovery. See TEX. CODE CRIM. PROC. 

### ANN. art. 39.14(a); see also art. 39.04 (Applicabilityof Civil Rules). 

### TheJustices of the panel hearing Amilpas' appeal/ identified the infirm 

### ityofArticle 18.21/ and thatwas theabsence of aprovisionpermitting acri minal defendant unfettered discovery of affidavits, applications, and orders of 

### the court that hadpreviouslybeen sealed. The Justices of the panel have "not only the right/ BUTTHEDUTY/ to challenge actions to be takenpursuant to any statute that is unconstitutional." Durish v. Texas State Board of Insurance, 

### 817 S.W.2d 764/ 767 (Tex. App.-Texarkana 1991/ no pet.) (emphasis added). The Constitution is the supreme lawof the State/ and all public officials/ includ 

### ing justices and judges of the courts/ are sworn to upholdanddefend it. The State represents the people/ andwhen justices and judges of the courts seekto enforce the constitutional provision of Article 1/ Section 29/ that the Bill of 

### Rights is to "forever remain inviolate/" the judiciaryis protecting the people from illegal/ oppressive, andunjust laws. CorsicanaCottonMills v. Sheppard, 123 Tex. 352/ 71 S.W.2d 247 (1934); see also Andrews v. Proctor/ 950 S.W.2d 750 

### (Tex.App.-Amarillo 1997/ reh'g overruled/ reviewgranted/ reversed) (Stategov ernment officials onall levels have not only the right but also the duty to 

### challenge thevalidityof astatute that is unconstitutional). See, e.g./ City of Fort Worth v. Howerton, 149 Tex. 614, 620/ 236 S.W.2d 615/ 618 (1951) (holdT j -» .<' .' ' 

### ing that/ legislature cannot pass laws whichare contraryto theconstitution); Kimbrough v. Barnett/ 93 Tex. 301/ 313/ 55 S.W. 120/ 123 (1900) (stating that a a ' ,) j i i ..: i i court is bound to follow theconstitution framed by thepeople). No amount of 

### acquiescence can legalize usurpationof power/ or thwart thewill of the people which is plainly expressed inthe constitution. See Exparte Hevman/ 45 Tex. Crim. $32/ 543/ 78 S.W. 349/ 354 (1904). Many of the provisions of the Texas Constitution, owe their beginnings tothe "common-law." Ellen A. Peters/ Comroon Law Antecedents of Constitutional Law inConnecticut/ 53 ALB. L. REV. 259/ 

### 261 (1989) (explaining that many constitutional rights had "common law" antece dents). Adefendant "has acommon-law right to inspect and copy judicial rec-cords." United States v. Ravbould, 130 F.Supp.2d 829, 831 (N.D. Tex. 2000); loBroadcasting Corp. v. Clark/ 654 F.2d 423 (5th Cir. 1981) (The right ofhav 

### ing access to the court's recordderives not fromthe Constitution/ but rather/ common-lawright of access that predates the Constitution itself). Where there is aright todiscovery inferred in statutes that requires sealedrecords tobe unsealed embodied inother state statutes/ it wasapparently an oversight where 

### the Legislature failed to include such aprovision inArticle 18.21. 

### Where thepanel explained that it was because Article 18.21 didnot/ anywhere/ contain aprovision for unsealing the record/ it was THAT absence which 

### operated to deprive Amilpas of the onlydefense that he reallyhad. See BRIEF 

### FORAPPELLANT/ pp. 6-13. The Court of Criminal Appeals recognized the severity of such a deprivation: 

### [T]hedenial of the right topresent adefense is aviolation of due pro cess andresults inconstitutional error. [...] Under Texas Rule of Ap 

### pellate Procedure 44.2(a)/ if the record reveals a constitutional error/ 

### [this court] must reverse a judgment of convictionunless [it] determines beyond areasonable doubt that the errordidnot contribute to the con viction or punishment. 

### BRIEF FORAPPELLANT/ p. 11 (quoting Holmes v. State/ 323 S.W.3d 163/ 173-74 (Tex. Crim.App. 2010)). The appellatepanel concluded that any constitutional error "Would have been harmless beyond a reasonalbe doubt." MEM. OP. p. 10. However 

### the panel shouldhave used the "but for" standard of review instead of Mazuca/ because it would have had to if the panel had found that Article 18.21 itself
was unconstitutional where it denied adefendant ofdocument crucial to a de 

### fense. Amilpas was entitled to knowwhether the affidavit and applicationhad 

### been legallysufficient by law/ complying with the requirements of Article 18. 21(e^W The validity of the affidavit and application must be assessed on the basis of the information that the requesting officers disclose/ or have aduty 

### to disclose/ to the issuing judge; the constitutionalityof the officers' con- i 

### duct must be judged in light of the informationavailable to them at the time 

### theyrequest anorderunderArticle 18.21; and those items of evidence that e

### mergeafter theorder is issued/ havenobearing onwhether the orderwas val-

-7-

### idly issued. SeeMaryland v. Garrison, 480 U.S. 79/ 107 S.Ct. 1013 (1987). Because Article 18.21 does not contain a provision allowing the record to be unsealed, so that a defendant mayexercise his right todiscovery, theCourt 

### of Criminal Appeals should find that Article 18.21 is unconstitutional/ violat 

### ing the Texas Bill of Rights/ to wit: Section 9 (providing that no orderwill issue unless it is supportedby aswornoathor affirmation); Section 10 (ade fendant has the right to confront his accusers and to have discovery of the ev 

### idence against him); Section 13 (all courts shall be open/ as concealed and any documents hidden isdisfavored); Section 19(thedefendant is entitled tobeing "due course of the law of the land*; which also disfavors concealed documents); and Section 29 (the "Bill ofRights" is excepted out of the general powers of 

### government and shall forever remain inviolate/ and all laws contrary thereto or to the following provisions/ shall be void). And/ as well/ violates the Fourth 

### (court order can issue onlyupon swornaffidavit orapplication); Fifth (defen dant entitled tobeing accorded "due process of law."); Sixth (entiltled to be 

### ing accorded confrontation and discovery); Fourteenth (no lawpermitted that a

### bridge the laws and constitution/ and being accorded due process) Amendments of the United States Constitution. CONCLUSION The framers of the Texas and United States Constitutions/ and the voters 

### over theyears historicallyassigned to courts the functionof interpreting and developing the law. InTexas/ the 1875 conventiondelegates had clearly inten ded for judges tohave plenarypower toprotect thepeople's rights. The del 

### egatesdistrusted the legislative and executivebranches and deliberately dif fused and narrowlycircumscribed their powers in the 1876 constitution. See JohnWalker Mauer, Southern State Constitutions in the 1870's: A Case Study of Texas 188-89/ 204/ 221-22/ 246-48 (1981) (unpublished Ph.D. dissertation/ @$ file 

### with St. Mary's LawJournal) (analyzinghistorical andpolitical forces behind 1876 constitution). The delegates placed checks on judicial power by requiring 

### judges tobe popularly elected. IdL.at 192/ 236/ 246-48; cf. Samuel D. Myres/

### Mysticism, Realism and the Texas Constitution of 1876/ 9SW. SOC. SCI.Q. 166/ 182-83 (1928) (concluding that constitutionof 1876 imposed serious limitations 

### uponpower of government rendering itpracticallyagovernment of negation). There are several arguments in favor of the popular election of judges as 

### it creates an accountability that lends their office to constitutional develop ment. When a judge vigorously construes the State constitution/ the voters can 

### accept or reject that interpretationthrough the electoral process. See Heitman v. State/ 815 S.W.2d 681, 688 (Tex.Crim.App. 1991) (holding that failure to ..j j -' -•- -i •- -j -j 

### independentlyconstrue state constitutional provisions places decision inhands 

### of SupremeCourt of theUnitedStateswhich is not responsible toelectorate). Thedirect participation of the electorate inselecting .jadges isvital to the 

### development of Texas constitutional law. Consequently/ the electionof judges 

### is not a happenstance event. See, e.g., Exparte Lo, 424 S.W.3d 10 (Tex.Crim. App. 2013). The difference in institutional roles between the State and federal judi 

### ciaries provides asecond argument in favor of the popular election of judges. See Wallace P. Carson, Jr., "Last Things Last:" AMethodolgical Approach toLe

### gal Argument inStateCourts/ 19WILLAMETTE L. REV. 641, 647 (1983) (providing argument in favor of primacyof Oregon Constitution). Federal courts possesses circumscribed jurisdictionand the fact that they set nationally obervednorms/ serves as aconservative influence. State courts/ onthe other hand/ historic

### allyhave had jurisdictionover virtuallyall matters: landlord-tenant law, fa mily law/ property riihts, waterrights/ contracts/ criminal law/ and so on. 

### Theirday-to-dayexpertise supports the contention that state judges should 

### playasubstantial role inprotecting constitutional rights/ most particularly those "withinasubject area uniquely appropriate for a state's judiciary." Whitworthv. Bvnum, 699 S.W.2d 194/ 1% (Tex. 1985); see Heitman, 815 S.W.2d at 

### 686 (discussing the state's judiciaryas traditional protector of individual's constitutional rights). 

### Athirdargument for State court vigilance is that if ajudgehandsdown
an undersirable ruling/ the legislature can address the ruling either by sta-tute/ or by initiating the constitutional amendment process. Compare TEX. GOV. .1 -> -• -J 

### CODEANN. §§51.317/ 51.318 (Vernon 1988) (reinstating revisedOmnibus Fee Bill) .j j -' with LeCrov v. Hanlon, 713 S.W.2d 335/ 338 (Tex. 1986) (finding original Omnibus

—— _j j _i .j j -j 

### Fee Bill unreasonably interferedwith right of access to court). The Texas ex 

### perience has shown itmucheasier toamend the State constitution thanto.araend the federal constitution. This "legislative oversight" function favors acti vist courts because it presents the judiciaryas a partner with the other bran 

### ches of Texas government in protecting individual rights. See Lawrence G. Sager, Foreword: State Courts and the Strategic Space Between the Norms and Rules of Constitutional Law/ 63 TEX. L. REV. 959/ 976 (1985) (discussing that state ju

### diciaries have beenmore willing to exercise the legislative oversight function than federal courts). 

### The constitutional amendment that allows a direct appeal to the Texai Su 

### preme Court or the Court of Criminal Appeals on constitutional issues/ provides another structural rationale for State judicial oversight. SeeTEX. CONST, art. 

### V, §3-b; TEX.GOV.CODEANN. §22.001(c) (Vernon1987); TEX.R.APP. P. 140 (Vernon 2013). This mechanism facilitates quick resolution of important questions/ and indicates that the drafters and voters expect the courts to play a vigorous and active role in constitutional development. 

### Amilpas has shown this Honorable Court of Criminal Appeals that there can be nodoubt that Article I, Section 29 of the Texas Constitution mandates that 

### Article 18.21 of the Code of Criminal Procedure be voided as being unconstitutional on the basis that the statute does not contain aprovision for unsealing 

### the affidavit/ application, and court order/ for purposes of discovery. / i i •"' 

### In its MEMORANDUMOPINION/ the panel of the First Court of Appeals iden- i 

### tified the invalidityof Article 18.21/ yet/ even thoughempowered to do so sua l j •) 

### sponte, even though ithadnot only the constitutional power todo so* but also theDUTYto exercise its "Legislative oversight" function; and by not doings so the appellate panel committed plain error.

PRAYER

-10-WHEREFORE, PREMISES CONSIDERED, JoseAmilpas respectfully prays that this most Honorable Court of Criminal Appeals concludes that the panel of the First Court of Appeals committed reversible error where it failed to, sua spnte, find that Article 18.21, of the Texas Code of Criminal Procedure, is unconstitutional on "vagueness" grounds, where it isunclear whether or not the documents the court ordered sealed pursuant to the article/ could beunsealed inorder to en able a defendant in "discovery/" consistent with theprovisions of Art. 18.011 (d)(1) & (2U TEX. CODE CRIM. PROC. ANN (Vernon 2013). FURTHER/ Petitioner Amilpas prays that this Court will remand this appeal for a determination on whether the affidavit/ application/ and court order used .j j to authorize police to access Amilpas' cell phone's GPS function/ were statuto 

### rily and constitutionally compliant/ inaccordance with Maryland v. Garrison/ 480 U.S. 79/ 107 S.Ct. 1013 (1987). ALTERNATIVELY/ Amilpas prays the Court will grant review on thequestion of the constitutionality of Article 18.21/ and its affect on the case/ andwill order "briefing" on the merits. Respectfully submitted/ tf<& ATTfe^

_ fE AMILPAS/ Petitioner pro se Robertson Unit/ TDCJ No. 1908295 12071 FM 3522 J Abilene/ Texas 79601-8799

VERIFICATION BY UNSWORN DECLARATION 1/ Jose Amilpas/ TDCJ-CIDNo. 1908295/ being presently incarcerated at the Robertson Unit of the Correctional Institutions Division of the Texas Department of Criminal Justice/ declare under penalty of perjury that the foregoing is true and correct. EXECUTED on this, the FIFTH day of NOVEMBER/ 2015.

-11-CERTIFICATE OF SERVICE Ihereby certify and declare that a true and correct carbon copy of the at tached PETITION FOR DISCRETIONARY REVIEW/ has been served on the following indi- i viduals on the SIXTH day of NOVEMBER/ 2015/ byplacing same into theprison's in- i i • ternal Legal Mail System for delivery by regular U.S. Postal Service first class mail/ enclosed in postpaid and properly addressed envelopes/ mailed to: : Ms. Jessica Caird, Esq. Assistant District: Attorney Harris County District Attorney's Office , 1201 Franklin Street/ suite 600 Houston/ Texas 77002 i and Ms. Lisa McMinn/ Esq. State Prosecutirig Attorney P.O. Box 13046

— Capitol Station Austin/ Texas 78711-3046 

# DATED: 05NOVEMBER 2015 KJisMje.~7^r>^X/»i7iL^

AMILE JOSE AMILPAS

-12-APPENDIX

-13-IN THE COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS

NO. 01-14-00053-CR 

### JOSE AMILPAS^ Appellant

V.

-J THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court Harris County, Texas Trial Court Case No. 1334791

MEMORANDUM OPINION Opinio© issuedApril 23, 2015 

### Appellant Jose Amilpas was chargedby indictmentwith fellonypossession of more than four grams and less than 200 grams of cocaine with intent tode liver. The indictment included two enhancement allegations for felony posses 

### sion of a controlled substance and felonypossession of aweapon. After a ju 

### ryfound [2] Amilpas guilty, Amilpas andthe Stateagreedtoapleabargainon sentencing

— 30 years' confinement. OnceAmilpas pleaded true to the enhance 

### ment allegations/ the trial court sentenced him to 30years' confinement in 

### prison/ inaccordancewith thepleabargain. Onappeal/ Amilpas contends that the evidencewas legally insufficient to support his conviction. Amilpas also 

### complains that the trial court erredby (1) denying his request to unseal the court order requiring Amilpas's cellphone serviceprovider todisclose topo licedataallowing themto ascertain the locationof his cell phone and (2) o

### verrulinghisobjectionto theprosecutor's allegedly improperargumentduring closing. We affirm. Background

-1-OnJanuary 11/ 2012/ Houston Police Department's East Side Tactical Unit 

### began searching for Amilpas to serve an arrest warrant for a felony evading arrest charge. Unable to locate Amilpas, they requested assistance from Officer Vigil of the Houston Police Department Criminal Intelligence Division. Officer Vigil testified that, onJanuary 26/ 2012, hisdivision obtained
a "probable cause based court order," signed under seal by a judge, which or dered Sprint-Nextel to provide information regarding Amilpas's cell phone. Specifically/ Officer Vigil obtained information showing the signal strength fromvarious cell towers in relation to Amilpas's phone and used it to triang ulate possible locations [3] ofAmilpas's cell phone. Based on this data/ Of ficer Vigil formed the belief that Amilpas could be found at a local cell phone store. Officer Vigil and Sergeant Vega of the Houston Police Department drove to the store/ where Officer Vigil saw andrecognized Amilpas and entered the store with Sergeant Vega immediately behind him. Officer Vigil testified that he identified himself as a Houston police officer as he entered the store. At that point, Amilpas turned around/ readagd into his waistband, and threw a 

### small object over the store counter. Officer Vigil also testified that there
were at least two other people in the store, but neither was standing near Am 

### ilpas and he didnot see either of themthrow anything into the area where Am ilpas had thrown the object. 

### Sergeant Vega's testimony was consistent with Officer Vigil's. He tes tified that Amilpas looked "surprised" when he and Officer Vigil entered the 

### store. When Sergeant Vega identified himself as anofficer and directed Amil 

### pas to "get on the ground/" Amilpas didnot comply. Rather/ he turnedaround/ reached intohis waistband, pulled out what appeared to be aknife/ and threw it over the counter before complying with the officers' commands toget on the 

### ground. Vega testified that he saw the general area inwhich the object land edand that Amilpas' girlfriend was standing by the counter talking to astore

-2-employee/ which was not "very close" toAmilpas.
J j [41 After Amilpas was handcuffed/ Sergeant Vega directed Officer Yanez of the Houston Police Department to find the object thatAmilpas had thrown over the counter. Officer Yanez testified that he walked behind the counter to the lo cation where Sergeant Vega said that Amilpas had thrown anobject, and he found
a clear plastic bag/ which contained seven smaller bags. The smaller bags con tained a powdery substance/ which Officer Yanez believed was cocaine. The of ficers also found thatAmilpas was carrying $3/070 in cash. Mona Colca, a criminalist with the Houston Police Department Crime Labor 

### atory^ tested thepowdery substance recoveredat the sceneand determined that it was 64.7 grams of cocaine. The labreport containing the test results was admitted at trial. Officer Aguirre of the Houston Police Department testified that finding that quantity of cocaine packaged inseven individual bags and $3,070 incash
on a defendant's person indicates that the defendant is a drug dealer and in tends to sell the individual bags of cocaine. According to Officer Aguirre the cocaine had an approximate street value of $2,200 to $3,000. Sealed Court Order forDisclosure of Amilpas's Cell Phone Information

In his first and second issues Amilpas complains that the trial court er red indenying his request tounseal the court order directing Sprint-Nextel to disclose Asoilpas's cell phone data. He contends in his first issue that this 

### prevented him [5] from evaluating the evidence against him/ subpoenaing rebut tal witnesses/ and questioning witnesses inviolation ofhis right toconfront 

### witnesses, guaranteed by the SixthAaaendment of the United States Constitution/ and Article 1 Section 10 of the Texas Constitution. In his second issue/ Amil 

### pas argues that the same ruling deprived himof due process of law. A. Applicable Lav Section 18.21 of the Texas Code of Criminal Procedure provides that a po lice officer from an incorporated area may seek/ by court order signed by a

-3-district judge/ pen register information/ trap and trace devices/ and mobile tracking devices. TEX. CODE CRIM. PROC. ANN. art. 18.21 (West Supp. 2014). Apen register "means a device orprocess that records or decodes dialing/ routing/ addressing/ or signaling information transmitted by an instrument or a facility from which a wire or electronic communication is transmitted if the information does not include the contents of the communication." TEX. CODE CRIM. PROC. ANN. art. 18.21/ §1(6) (West Supp. 2014). Aprosecutor with jurisdiction in a county

r "may file an application for the installation and use of a pen register...." Id. §2(a) (West Supp. 2014). The application must be inwriting/ under oath/ include the subscriber name/ information/ telephone number/ and location of the device and "state that the installation and use of the device or equipment will likely produce information that is material to an ongoing criminal investiga tion." Id. § 2(c). "on [61 presentation of the application/ the judge may order the ... use of the pen register ... and/ on request of the applicant/ the judge shall direct in the order that a communication common carrier or a provider of electronic communications service furnish all information/ facilities and technical assistance necessary to facilitate the installation and use of the device...." Id. §2(d). Additionally, the statute requires that "[t]he district court shall seal an application and order granted under this article," and includes no men tion ofany process bywhich the application ororder may be unsealed. Id./ § 2 (g). Article 38.23(a) of the Code of Criminal Procedure provides that a[n]o evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas/ or the Constitution or laws of the United States of America/ shall be admitted in evidence against the ac cused on the trial of any criminal case.0 TEX. CODE CRIM. PROC. ANN. art. 38.23- (a)|West 2005). The primary purpose of article 38.23(a) is to deter unlawful actions that violate the rights of criminal suspects in the acquisition of evi dence for prosecution. Wilson v. State/ 311 S.W.3d 452/ 459 (Tex.Crim.App. 2010). However/ if the evidence seized is sufficiently attenuated from the vio-lation of the law the evidence is not considered to be obtained in violation of the law for the purposes of article 38.23. Johnsonv. State, 871 S.W.2d 744, 750 (Tex.Crim.App. 1994). To determine whether thediscovery of physical evi dence is [71 sufficiently attenuated from the violation, we consider: (1) the temporal proximity of theviolation of law and the seizure of physical evidence (2) the presence of intervening circumstances, and (3) the purposefulness or flagrancy of the police misconduct. See State v. Mazuca/ 375 S.W.3d 294, 301-07 (Tex.Crim.App. 2012). In Mazuca/ the trial court found that the officers' stop of the car in which Mazuca was a passenger was illegal. Id., at 296-97. Accordingly, the trial court suppressed ecstasy that theofficers discovered in Mazuca's pocket during the detention, and the court of appeals affirmed. Id., at 298-99. The Court of Criminal Appeals reversed, concluding that thediscovery of the ecstacy was sufficiently attenuated from the illegals stop. Id., at 308. The Court of Criminal Appeals reasoned that the officers' discovery of Mazuca's outstand ing arrest warrants between the time they made the illegal stop, and thetime they found the ecstasy/ was an intervening circumstance and the officers' mis conduct was not "particularly purposeful and flagrant." Id. B. Analysis Amilpas*s counsel first learned during trial of the existence of the or der directing disclosure of Amilpas's cell tower data. Amilpas's counsel arg ued that had he known of the order earlier/ he would have moved to suppress any evidence that the officers discovered after arriving at the cell phone store. Amilpas argued [8] that theofficers' use of Amilpas's cell phone data to lo cate him constituted an illegal search. He requested that the trial court un seal the order and he moved for a continuance. The trial court denied Amilpas's motions to suppress and for continuance. Amilpas relies on United Statesv. Jones, 132 S.Ct. 945 (2012)/ toargue for reversal. InJones, the Supreme Court held that the government's placement of a GPS tracking device on a subject's vehicle/sand subsequent use of informa-

-5-tionobtained from the GPS device to secure his arrest warrant [sic] amounted 

### to an illegal search in violation of the Fourth Amendment. Id., at 947-49. Two significant factors distinguish «ffones from this case. First/ inJones the gov ernment tracked the vehicle's movements in an effort to secure evidence to ob tain an indictment fordrug trafficking conspiracy charges. Id./ at 946. Here/
a warrant for Amilpas's arrest for evading arrest had issued before police ob tained Amilpas's cell phone data/ and the police requested and used the cell 

### phone data, merely to locate Amilpas in order to execute the outstanding arrest warrants. Second/ inJones, the government obtained information about the de fendant's location bymounting a GPS tracking device to his vehicle. Id., at 949. Here, Sprint-Nextel complied and stored Amilpas's cell phone data for its
own business purposes, and Officer Vigil obtained that data from Sprint-Nextel, 

### rather thangathering the data himself. See Barfieldv. State/ 416 S.W.3d 743/ 748-49 (Tex.App.-Houston [14th Dist.] 2013, [91 no pet.) (trial court did not 

### violate the exclusionaryrule in admitting cell tower records and expert testi mony, because police obtaining information and data related to appellant's cell 

### phone that third-party cell phoneprovider had collectedand stored for its own 

### business purposes did not violate appellant's reasonableprivacyexpectations under the Fourth Amendment). AccordinglyJones is distinguishable and does not support Amilpas's argument. As the State correctly notes/ article 18.21/ of the Code of Criminal Pro- j ... j cedure, makes no mention of the circumstances under which an order for the disclosure of penregister information may be unsealed. SeeTEX. CODE CRIM. PROC. ANN. art. 18.21/ §2(g) ("The district court shall seal anapplication and order 

### granted under this article/" inwhich apolice officer seeks order for informa 

### tionrelated to cell tower records). That does not end the inquiry^ however/ because Amilpas does not contend that the trial court's refusal to unseal the order violates article 18.21 of the Code of Criminal Procedure. Rather/ Amil

### pas's complaints are constitutional. But/ even constitutional errors must be harmful to warrant reversal. TEX. R. APP. P. 44.2(a) (constitutional errors war-rants reversal/ "unless the court determines beyond a reasonable doubt that the
error did not contribute to the conviction orpunishment"). Here/ we need not 

### decide whether any of Amilpas's claims of constitutional error havemerit, be cause evenassuming that the trial [10] court's refusal to unseal the article 18.21 order amounted to a constitutional error/ we conclude that itwould have beenharmless beyond a reasonable doubt. 

### Mazuca guides our analysis of whether Amilpas canshowharmresulting out of analleged constitutional error. It sets forth a three-factor test we use todetermine whether discovery of physical evidence is too attenuated from a 

### violation of law towarrant suppression. SeeMazuca/ 375 S.W.3dat 301-07. The first of the three factors we consider is the temporal proximity of the viola tion of law and the seizure of physical evidence. See id. at 306. Here/ the 

### officers seized the cocaine within onlyafewmoments of locating Amilpas using 

### thepenregisterdata. Thus/ this factor in isolation favors suppression. See 

## McKinneyv. State/ 444S.W.3d128, 135 (Tex.App.-SanAntonio 2014/ pet. ref'd) (temporal proximityweighed in favorof suppressionwhereofficer searcheddef endant and found cocaine immediately after detaining him). However/ as the 

### Court of Criminal Appeals recognized in Mazuca/ this factor "will sometimes 

### provetobe, inthecontextof the seizureofphysical evidence/ 'theleast im portant factor'-at least relative to the other two." Mazuca/ 375 S.W.3dat
306. 

### Under the secondMazuca factor/ we consider the presence of intervening circumstances

— that is/ we consider what occurred between the time the suspect 

### was detainedusing thepenregisterdataand the time the challenged evidence was seized. Id. at 306. Here/ the officers observedAmilpas commit acrime—- 

## [11] possessionofcocaine

—inthecellphone store between the timetheyar rived toexecute the arrestwarrant for evading arrest and the time they seized 

### the cocaine. Thus/ evenassuming policeobtained the article 18.21 order/ and 

## locatedAmilpas inviolationof law* their observations of Amilpas committing thechargedoffensewas asignificant interveningcircumstancebetweenthetime

-7-ofthe purported violation of lawand the discovery of evidence. We conclude 

### that this factor weighs against suppression. SeeMazuca, 375 S.W.3d at306 (re cognizing that evidence need not besuppressedwhere there are intervening cir cumstances between the discovery of physical evidence andthe violation of the law); Roberts v. State/ No. 03-12-00194-CR, 2014 WL 1910428, at *l-2 (Tex.App.- 

### AustinMay 8/ 2014/ no pet.) (mem. op./ not designated for publication) ("need not address the propriety of [officer's] actions" where officer initially stop 

### pedappellant without justification^but subsequently observedappellant drive with headlights off/ which was a violation of the law that independently justi fied the stop); Matienza v. State/ 699 S.W.2d 626/ 628 (Tex.App.-Dallas 1985, 

### pet. ref*d) (after officer detained defendant/ defendant pulled gun and pointed it at officer/ which constituted intervening offense that purged taint of any .i illegality of initial detention). Under the thirdMazuca factor/ we consider the purposefulness or flagran

### cyof the policemisconduct. SeeMazuca/ 375 S.W.3d at 306 (considering "wheth
erthe police have deliberatelyperpetrated what theyknew would be anunlawful 

### stop in the [12] specific hope or expectation that it will generate some legit imate after-the-fact justification to arrest and/or search/ orthey have other wise conducted themselves in particularly egregious disregard of the right to 

### privacyand/or personal integrity that the FourthAmendment protects"). Here/ the officers obtained the order directed to Sprint-Nextel/ inaccordance with the statute's terms/ and acted pursuant to the order in locating Amilpas to ex ecute his arrest warrant for evading arrest. We conclude that there is no in dication in the record that the officers engaged inmisconduct of anysort. See Mazuca/ 375 S.W.3d at 310 (behavior was not so particularly purposeful or fla 

### grant that intervening factor couldnot purge the taint where officer "never went beyond the bounds of what wouldhave been constitutionallypermissible toad the stop been justified at its inception"). Haying considered all three Mazuca factors/ weconclude that the signifi cant intervening circumstance between theofficers' detention of Amilpas, andtheir seizure of thechallenged evidence

— their observation of Amilpas posses 

### sing cocaine

— togetherwith the absence of any misconduct on the part of po lice renders the evidence sufficiently attenuated from the alleged violation of 

### law in obtaining and failing todisclose the contents of the article 18.21 or der that the trial court would not have erred in denying a motion to suppress 

### the cocaine even if Amilpas had learned of and challenged the article 18.21 or 

### derpre-trial. For the same reason/ we overrule Amilpas's arguments that the trial court's failure to unseal the [13] article 18.21 order violated his right 

### to evaluate evidence against him/ subpoena rebuttal witnesses/ and to confront 

### witnesses/ as well as his right to due process of law. Because any theoretical 

### infirmity in the article 18.21 order would have been sufficiently attenuated from the seizure of evidence under Mazuca/ article 38.23 would not require sup 

### pression. Accordingly/ we hold that constitutional error in the trial court's refusal tounseal the court order/ if any/ would have been harmless beyond any reasonable doubt. See TEX. R.APP. P. 44.2(a). We overrule Amilpas's first and second issues. Sufficiency of the Evidence 

### Inhis third issue/ Amilpas contends that the evidence was legally insuf ficient to support his conviction.
A. Standard of Review Evidence is insufficient to support a conviction if/ considering all rec 

### ord evidence in the light most favorable to the verdict, a factfinder could not 

### have rationally found that each essential element of the charged offense was 

### provenbeyond areasonabledoubt. Gonzalezv. State, 337 S.W.3d473/ 478 (Tex. 

### App.-Houston [1stDist.] 2011^pet. ref'd) (citingJacksonv. Virginia, 443 0.S. 307/ 319/ 99 S.Ct. 2781/ 2789 (1979)). We determine whether the necessary in- % j ..j

- .i 

### ferences are reasonablybasedupon the combined and cumulative force of all the evidence viewed inthe light most favorable to the verdict. Claytonv. State/ •" -J iS .J 

### 235 S.W.3d [14] 772/ 778 (Tex.Crim.App. 2007) (quoting Hooperv. State/ 214 S.W. 

### 3d 9/ 16-17 (Tex.Crim.App. 2007)). When the record supports conflicting infer-ences, we presume that the factfinder resolved the conflicts in favor of the .1 verdict/ and defer to that resolution. Jackson/ 443 U.S. at 326/ 99 S.Ct. at ) _, ./ .-i ~i ; -i _J 2793; Clayton/ 235 S.W.3d at 778. We likewise defer to the factfinder's evalu- i j .j -i ation of the credibility of the evidence and the weight to give the evidence. Gonzalez/ 337 S.W.3d at 479 (citing Williams v. State/ 235 S.W.3d 742/ 750 (Tex. I ~I J L3 i —• ~l i .J Crim.App. 2007)). The reviewing court must also "consider all evidence which the jury was permitted/ whether rightly or wrongly/ to consider." Thomas v. State, 753 S.W.2d 688, 695 (Tex.Crim.App. 1988) (enbanc) (emphasis omitted). B. Applicable Law To prove unlawful possession of a controlled substance, the State must prove/ beyond a reasonable doubt/ that thedefendant exercised control/ manage ment/ or care over the substance and that he knew the matter possessed was con traband. Poindexter v. State, 153 S.W.3d 402/405 (Tex.Crim.App. 2005). Regard less of whether the evidence is direct or circumstantial it must establish that

a defendant's connection to the contraband was more than fortuitous. Id., at 405-06. This "affirmative links rule is designed to protect the innocent by stander from conviction based solely upon his fortuitous proximity to someone 

### else's drugs." Id. at 406 (internal quotation omitted). Thus, "[w]hen the def endant is not in [15] exclusive possession of theplace where the substance was found it cannot be concluded that the accused hadknowledge of and control over the contraband unless there are additional independent facts andcircumstances which affirmatively link the accused to the contraband." Deshong v. State/ 625 S.W.2d 327/ 329 (Tex.Crim.App. [Panel Op.] 1981) (citing Wiersing v. State/ 571 188/ 190 (Tex.Crim.App. 1978)). 

### Though not an exhaustive list/ the Court of Criminal Appeals has recogni zed the following affirmative links: 

### (1) the defendant's presence when a search is conducted; (2) whether the contraband was in plain view; (3) the defendant's proximity to and the accessibility of the narcotic; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband or narcotics when arrested; (6) whether thedefendant made incriminating statements when arrested; (7) whether the defendant 

### attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor of contraband: (10) whether other contraband or

-10-drug paraphernalia were present; (11) whether the defendant owned or had the right to possess the place where the drugs were found; (12) whether the place where the drugs were fouki«; was enclosed; (13) whether the def endant was found with a large amount of cash; and (14) whether the con duct of the defendant indicated a consciousness of guilt. Evansv. State/ 202 S.W.3d 158, 162 n.12 (Tex.Crim.App. 2006); see also Gilbert
v. State/ 874 S.W.2d 290/ 298 (Tex. App.-Houston [1st Dist.] 1994/ pet. ref'd). It is not the number of links that is dispositive/ but rather the logical force of all the evidence/ both.direct and circumstantial. Evans/ 202 S.W.3d at 162. Therefore/ each case must be examined according to its own facts, on a case-by

### case basis. |.16] Robertsonv. State, 8§:.S.W.3d 730/ 736 (Tex.App.-Houston [1st Dist.] 2002/ pet. ref'd). A factor thatcontributes to sufficiency in one sit uation may be of little valueunder a different set of facts. Id. C. Analysis Amilpas contends that there is legallyinsufficient evidence to support his conviction because the police officers did not see that the item he threw

over the counter was cocaine/ there was evidence that the item he threw was a knife/ and there is no evidence of several affirmative links. We conclude sufficient evidence connects ^milpaswith the cocaine. First Amilpas was present at the scene when police arrived. SeeEvans, 202 S.W.3d at 162, n. 12 (presence when search conducted isaffirmative link). Second/ Offi cer Vigil and Sergeant Vega both testified that Amilpas would not obey their commands until after heremoved anobject from his clothing and threwrit over the store counter. See id. (furtive gestures and conduct evidencing conscious
ness ofguilt are affirmative links). Third/ both officers testified that they
sawAmilpas throw anobject behind the counter and Officer Yanez testified that he found seven small plastic bags containing cocaine inside a larger plastic 

### bag in the location inwhich Sergeant Vega [had] told Officer Yanez the object landed. The cocaine was inplain view, onthe floor of the store/ and was lo 

### catednear where Amilpas had been standing/ when he threw the object. See, id. (whether contraband was inplain view/ [17] aswell as proximity and accessibi lity of contraband to appellant are affirmative links). Fourth Amilpas had ap-

-11-

### proximately $3,070 in cash onhis person. See id. (large amount of cash onde fendant's person is affirmative link). Finally, the cocaine weighed approxi mately 64.7 grams and had avalue between $2,200 and $3,000. See. Robertson, 80 S.W.3d at 740 ("The amount of contraband found is a factor we can consider in determining if anaffirmative link exists."). 

### Amilpas contends that the judgment must be reversed because evidence of many of the affirmative links is absent in this case. In support of his argument, Amilpas cites to Allen v. State, 249 S.W.3d 68©! (Tex.App.-Austin 2008, no pet.), because the Allen court held there was insufficient evidence to support Allen's convictionwhere many links were absent. In Allen/ the evidence showed that Allen did not live at the apartment where the cocaine was found/ no co 

### caine was found onhis person, Allen did not attempt to flee or hide any items when officers entered, Allen cooperated with the police and made no furitive 

### [sic] gestures/ andmost of the cocaine was hidden inadifferent room. Id. at 694/ 702. Although several of the same links are absent in this case, unlike inAllen, here/ there is evidence that (1) Amilpas was carrying a significant 

### amount of cash/ and (2) attempted to rid himself of the cocaine that he carried 

### onhis personwhen the officers entered the store. Accordingly/ Allendoes not 

### support Amilpas's argument. See id. Lair v. State/ 265 S.W.3d 580/ 588 (Tex. App.-Houston[1st Dist.] 2008, pet. ref'd) [18] (evidencewas sufficient to support convictionwhere nine links were not present because, "possible links that donot exist ... do not negate the links that are present"); see algo, SatftheH 

### v. State, 321 S.W.3d 127, 134 (Tex.App.-Houston [1st Dist.] 2010/ pet. ref'd)

—• 1 .., <i > * 

### ("The absence of various links does not constitute evidence of innocence to be weighed against the links present."). Amilpas also contends that evidence that he threw an object over the coun ter is insufficient evidence to link him to the cocaine because (1) Sergeant 

### Vega testified that the object appeared tobe aknife and (2) other peoplewho mayhave possessed the cocaine were present in the store. While therewas some evidence fromwhich arational juror could infer that the object Amilpas threw 

### was aknife/ the juryrejected that conclusion. We presume the jury resolved

-12-conflicting evidence in favor of theverdict and defer to that determination. Merritt v. State, 368 S.W.3d 516, 526 (Tex.Crim.App. 2012); see also Henson v. i ..i j i i,.i .j State, 388 S.W.3d 762/ 773 (Tex.App.-Houston [1stDist.] 2012) ("verdict of guil- j -j ... i i -i ty is animplicit finding rejecting the defendant's [defensive] theory")/ aff'd 407 S.W.3d 764 (Tex.Crim.App. 2013). Considering all of the evidence in the light most favorable to the ver dict, we conclude that sufficient affirmative links connect Amilpas to the co- i caine and that a rational trier of fact could have found beyond a reasonable doubt that Amilpas exercised care, custody/ or control over the cocaine knowing that it was f19J contraband. See Evans, 202 S.W.3d at 166 ("amply sufficient I ! .J .J evidence connecting appellant to the actual care, custody/ control or management of the cocaine" whenviewing circumstantial evidence "in combination and its sum total"); Noah v. State, 495 S.W.2d 260, 263 (Tex.Crim.App. 1973) (suf- : i . , s i .j ficient evidence to support possession of heroin conviction where officer saw defendant throwpackage, he returned to place wherepackage had been thrown to recover it three to five minutes after defendant had thrown it, and package had contained heroin); Sneed v. State, 875 S.W.2d 792, 795 (Tex.App.-Fort Worth 19- 94, nopet.) (although defendant didnot have exclusive control over place that cocaine was found, evidence of possession sufficient where officer saw defend- i ant take cocaine out of pocket and throw it on floor). We overrule Amilpas's third issue. Permissible Jury Argument In his fourth issue, Amilpas contends that theprosecutor made an improp
er closing argument because he referred to Amilpas's subpoena power, which was an attempt to shift the burden of proof. A. Applicable Lav

y "The law provides for, and presumes, a fair trial free from improper arguraent bythe State." Thompson v. State, 89 S.W.3d 843, 850 (Tex. App.-Houston 

### [1st Dist.] 2002/ pet. ref'd) (citing Long v. State/ 823 S.W.2d 259/ 267 [20] (Tex.Crim.App. 1991) (en banc)). The approved areas of juryargument are (1)

-13-/summation of theevidence, (2) reasonable deduction from the evidence, (3)<answer to the argument of opposing counsel, and (4) plea for law enforcement. See Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App. 2000) (en banc); Andrade v. ; i i j i State, 246 S.W.3d 217, 229-30 (Tex.App.-Houston [14th Dist.] 2007, pet. ref'd). ! > i i i i i ! i .1 In examining challenges to a juryargument, a court considers the remark in the context in which it appears. Gaddis v. State, 753 S.W.2d 396, 398 (Tex.Crim.
; i ii I .i.i App. 1988).
; .J Courts have held that, during juryargument/ the State may comment on the defendant's failure to present evidence in his favor. See Jackson v. State/ 17 .i i S.W.3d 664/ 674 (Tex.Crim.App. 2000) ("Wehave held that theprosecutor maycom-

.i .i i , j -j ment on the defendant's failure to produce witnesses and evidence so long as the remark does not fault the defendant for exercising his right not to testi fy."); Patrickv. State, 906 S.W.2d 481, 491 (Tex.Crim.App. 1995) ("[l]f the Ianguage canreasonably be construed to refer to appellant's failure to produce evidence other than his owntestimony/ thecomment is not improper."). Jury ar gument pointing out that the defendant has failed to present evidence in his favor does not shift the burden of proof but instead summarizes the state of the evidence and is a reasonable deduction from the evidence. See Caron v. State, 162 S.W.3d 614, 618 (Tex.App.-Houston [14th Dist.] 2005, no pet.) (hold-

———— j ... j ' i ing that prosecutor's [21] statement that "[i]f there is something out there to exonerate you, you want to make it known" was permissible jury argument). B. Analysis Amilpas complains that the prosecutor's closing argument was improper be cause he referred to Amilpas's subpoena power and the fact that no witness had testified that the cocaine found in the store belonged to her. Before the pro secutor made the argument, Amilpas's counsel argued that Amilpas's girlfriend
was also present at the store and that the cocaine could have been hers. The prosecutor responded: [T]he girl who was next to the defendant in that store was between 5 and 8 feet away dealing with a clerk as they entered. More importantly, the only person who threw anything behind the counter, the only personwho

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### possessed the cocaine those officers found wasn't some mysterious girl. It was the defendant. 

### Ladies andgentlemen, keep inmind the burden iswith the State and the State has the burden"alone. [Amilpas] has rights, including the right of 

### subpoenapower. Didyou see anygirl standing here today saying: Yeah, it was my cocaine? 

### Amilpas objected that the State was "shifting the burden of proof," and the trial court overruled his objection. 

### Having considered the allegedly improper argument in context, we conclude that the prosecutor's statement was a permissible response to Amilpas's coun 

### sel's argument because it was aremark onAmilpas's failure to produce evidence from other sources. See Wesbrook, 29 S.W.3d at 115 (answer to argument of op 

### posing |22] counsel is an approvedarea of juryargument); Harris v. State, 122 S.W.3d 871,884 (Tex.App.-Fort Worth 2003, pet. ref'd) (prosecutor's comment "a

### bout the subpoena power of adefendant is proper if it refers to the defend ant's failure to produce evidence fromother sources"). Accordingly, the pros ecutor's statement didnot shift the burden of proof toAmilpas. See Baines v. 

### State, 401 S.W.3d 104, 109 (Tex.App.-Houston [14thDist.] 2011/ no pet.)(prosecutor's statement that defendant "has the same subpoena power" and could have called witnesses to testify in his defense was "a permissible remark about ap 

### pellant's failure toproduce evidence inhis favor onhis defense anddidnot shift the burden of proof to appellant"). We hold that the trial court did not err in overruling Amilpas's objection to improper jury argument. We overrule Amilpas's fourth issue. Conclusion We affirm the trial court's judgment.

Rebeca Huddle Justice Panel consists of Justices Jennings/ Higley/ and Huddle. Do not publish. TEX. R. APP. P. 47.2(b).

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