Affirmed and Memorandum Opinion filed October 25, 2016.

In The

Fourteenth Court of Appeals

NO. 14-15-00473-CR

LAJUAN KENDELL WARD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No. 1423997

M E M O R A N D U M O P I N I O N

Appellant Lajuan Kendell Ward was convicted of aggravated robbery and 

sentenced to 15 years in prison. See Tex. Penal Code Ann. § 29.03 (West 2011). 

Appellant now appeals his conviction. Among other issues, appellant contends the 

trial court erred when it included a separate, unindicted offense of criminal 

conspiracy in the jury charge. We overrule this issue because the charge did not 

include the offense of criminal conspiracy, but instead contained an instruction on 
2

the law of parties, which need not be included in the indictment. 

Most of appellant’s issues challenge the admission of evidence. Appellant 

contends that the trial court erred when it admitted evidence of an extraneous bad 

act during the punishment phase of his trial because the State failed to provide 

notice of its intent to do so. We overrule this issue because the record on appeal 

demonstrates that notice was given. Appellant also asserts that the trial court 

abused its discretion when it denied his motion to suppress his recorded statement, 

which was involuntary as a result of police overreaching through a promise of 

leniency. We overrule this issue because our review of appellant’s statement does 

not reveal a positive promise of lenient treatment by the police investigator. 

Next, appellant contends that the trial court abused its discretion when it 

admitted expert testimony on the location of appellant’s cell phone around the time

of the robbery because the State’s expert’s opinion was unreliable. We hold the 

trial court did not abuse its discretion because the expert adequately demonstrated 

his qualifications and explained the methodology used to opine on the location of 

appellant’s cell phone during the robbery. Appellant also argues that the trial court 

abused its discretion when it denied his motion to suppress his cell phone records 

because the affidavit supporting the search warrant did not establish probable 

cause. We overrule this issue because the circumstances reflected in the affidavit 

as a whole established probable cause. Finally, appellant argues that the trial court 

erred when it denied his motion to suppress the search warrant because the State 

did not produce the warrant and supporting affidavit to the trial court. Because the 

record establishes that the trial court had the opportunity to review the challenged 

search warrant and affidavit, we overrule this issue. We therefore affirm the trial 

court’s final judgment.
3

BACKGROUND

Solomon Deegefa was working as a clerk at Pak’s Tiger Express on West 

Alabama Street when a young man, later determined to be appellant, approached 

Deegefa to ask him the price of different candies. Appellant moved away from the 

register after asking about the candy prices but remained in the store. Appellant 

was talking on his cell phone throughout this interaction. Two men, Robert Carter 

and Ernest Neil, were also inside the store. Both men were playing black jack 

machines. About five to ten minutes later, another man, later determined to be 

Reginald Sweed, came into the store with his face covered and wearing medicaltype gloves. Sweed pointed a gun at Deegefa, forced him to the register, and told 

him to open it. Sweed took the money from the register as well as Deegefa’s cell 

phone and the money from his pockets. Sweed then made Deegefa lie down on the 

floor, where he kicked Degeefa in the back. While this was happening at the 

register, appellant dealt with the two black jack players. Carter immediately laid 

down on the floor in response to appellant’s order. Appellant grabbed Neil from 

behind and punched him in the back of the head multiple times, forcing him to the 

floor. Appellant told both men not to get up or look at them. Appellant took 

Neil’s wallet and cell phone. He also took money out of Carter’s pocket. The two 

robbers then left the store.

Neil got into his truck and tried to follow Sweed but was unable to do so. 

Neil began searching the area around the store and saw Sweed standing on the side 

of a street close to the robbery scene. Neil asked a passerby to use his phone to 

call 9-1-1. Neil then saw Sweed run off into a yard. 

James Neilsen lived about two blocks from the Pak’s Tiger Express near 

where Neil had seen Sweed standing on the street. Neilsen heard his dog barking 

and when he looked outside, he saw a man perched on his fence. Neilsen saw the 
4

man get in an older Toyota Camry that already had another person slumped down 

in the passenger-side seat. The man had trouble starting the car and Neilsen wrote 

down the license plate number as well as the make and model of the car. Neilsen 

turned the license plate information over to the police that same day. A few days 

later, Neilsen found latex gloves and a gun in his yard, which he also turned over 

to the police. 

Detective Paul Reese investigated the robbery. Using the license plate 

number provided by Neilsen, Reese learned the Camry was registered to Sweed’s 

wife, Shirley Sweed. Reese talked to Mrs. Sweed, who told him that her husband 

drives the Camry. She also gave Reese Sweed’s cell phone number. Reese then 

obtained Sweed’s cell phone records. In analyzing those records, Reese identified 

another suspect phone number due to the timing and location of calls made to it 

from Sweed’s number. Reese obtained phone records for the second number 

through a search warrant and discovered that the number belonged to appellant.

Reese called appellant and conducted a non-custodial telephone interview. 

Although appellant initially denied involvement in the robbery, he eventually 

admitted participating in the robbery with Sweed, his uncle. According to 

appellant, Sweed told him he needed to make some money and that he would pay 

appellant for his help. Appellant told Reese that his job was to beat up anyone in 

the store who tried to resist during the robbery. Appellant also told Reese that he 

was talking to Sweed on his cell phone while he was inside the store before the 

robbery. Appellant denied knowing prior to the robbery that Sweed had a gun. 

Appellant told Reese that he first learned Sweed had a gun when Sweed entered 

the store holding the gun in his hand. Appellant continued participating in the 

robbery after that point, however, and he also fled the scene with Sweed when the 

robbery was over. Appellant was arrested after this conversation.
5

Reese turned the phone records he had obtained through the search warrants 

over to Officer Eric Powell of the Houston Police Department’s communications 

intelligence unit. Powell testified that the cell phone records for appellant’s and 

Sweed’s cell phones reveal the calls made and received by each phone number, the 

time of each call, and the identification number of the exact cell phone tower that 

was used for each call. The cell phone company also provided Powell with access 

to a list of the company’s towers and their locations in the Houston area. Powell 

testified that by using the historic phone records for the two suspect phones and the 

cell company’s list of towers, he was able to map the approximate location of each 

cell phone around the time of the robbery. Powell did this by locating the cell 

phone tower actually used for the calls made around that time. Powell opined that 

the two cell phones were making and receiving phone calls from the vicinity of 

Pak’s Tiger Express around 1:00 p.m., the approximate time of the robbery. 

Powell came to this conclusion despite knowing that a cell phone does not 

necessarily connect with the closest antenna but instead connects with the strongest 

signal. 

At the conclusion of the evidence, the jury found appellant guilty of 

aggravated robbery and sentenced him to fifteen years in prison. This appeal 

followed.

ANALYSIS

Appellant raises seven issues challenging his conviction. We address each 

in turn.

I. The jury charge did not include an unindicted conspiracy offense.

The jury charge included an instruction explaining criminal responsibility 

for the anticipated result of a conspiracy to commit a felony. The charge then 

provided a definition of “conspiracy,” which tracked the definition in the Penal 
6

Code. See Tex. Penal Code Ann. § 15.02 (West 2011) (defining criminal 

conspiracy). Based on this language, appellant argues in his first issue that the trial 

court committed egregious error because it instructed the jury that, as an alternative 

means of conviction, it could find appellant guilty of a criminal conspiracy offense

not authorized by the indictment.

An appellate court’s first duty in analyzing a jury charge issue is to decide 

whether error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). 

If the reviewing court finds error, it then analyzes that error for harm. Id. Thus, 

we must first determine whether error exists in the charge. Id. 

Despite appellant’s argument to the contrary, the jury was not instructed on 

the separate offense of criminal conspiracy. Instead, the jury was instructed on the 

law of parties as one possible means by which it could convict appellant of 

aggravated robbery, the charge included in the indictment. A person may be guilty 

as a party to aggravated robbery if the defendant committed the offense by his own 

conduct or by the conduct of another for which he is criminally responsible. Tex. 

Penal Code Ann. § 7.01(a) (West 2011). “A person is criminally responsible for an 

offense committed by the conduct of another if: . . . acting with intent to promote 

or assist the commission of the offense, he solicits, encourages, directs, aids, or 

attempts to aid the other person to commit the offense.” Tex. Penal Code Ann. 

§ 7.02(a)(2) (West 2011). “If, in the attempt to carry out a conspiracy to commit 

one felony, another felony is committed by one of the conspirators, all conspirators 

are guilty of the felony actually committed, though having no intent to commit it, if 

the offense was committed in furtherance of the unlawful purpose and was one that 

should have been anticipated as a result of the carrying out of the conspiracy.” 

Tex. Penal Code Ann. § 7.02(b) (West 2011).

Consistent with section 7.02(b), the law-of-parties instruction in this case 
7

included an explanation of criminal responsibility for the anticipated result of a 

conspiracy to commit a felony. The charge also included a definition of 

“conspiracy” that tracked the language of section 15.02 of the Penal Code. The 

trial court committed no error by including these matters in the charge. See 

Montoya v. State, 810 S.W.2d 160, 165 (Tex. Crim. App. 1989) (rejecting murder 

defendant’s complaint that parties charge under section 7.02(b) accompanied by 

definition of conspiracy using language found in section 15.02 added unindicted 

offense of criminal conspiracy to the charge). 

Neither the Penal Code nor due-process principles of fair notice require an

indictment to include the law of parties. Marable v. State, 85 S.W.3d 287, 287 

(Tex. Crim. App. 2002); see Tex. Penal Code Ann. § 7.01(c) (West 2011) (“[E]ach 

party to an offense may be charged and convicted without alleging that he acted as 

a principal or accomplice”). The law of parties may instead be included in the jury 

instructions if the evidence supports the submission of the instruction as a possible 

means by which the crime was committed. Williams v. State, 473 S.W.3d 319, 329 

(Tex. App.—Houston [14th Dist.] 2014, pet. ref’d). Appellant contends in his 

reply brief that such a submission was not supported by the evidence, but he 

neither raised an issue nor provided argument regarding this contention in his brief 

of appellant and thus failed to preserve it for our review. Cf. Tex. R. App. P. 

38.1(f), (i). Appellant’s contention would fail in any event because the evidence 

recounted in the background section above supports the inclusion of the law of 

parties in the charge. There was ample evidence that appellant and Sweed agreed 

to commit robbery and that, in the course of carrying out that conspiracy, Sweed 

committed aggravated robbery by using or exhibiting a deadly weapon.

For these reasons, the trial court did not err when it included an instruction 
8

on conspiracy to commit aggravated robbery in the jury charge.

1

 We overrule 

appellant’s first issue. 

II. Appellant did not preserve his second issue for appellate review.

Appellant was charged with aggravated robbery. During the charge 

conference, the trial court indicated it was including the law of parties as a means 

by which the jury could convict appellant of aggravated robbery. Appellant 

contends on appeal that he asked the trial court to include an instruction on 

“conspiracy to commit robbery” as a lesser-included offense. Appellant argues in 

his second issue that the trial court erred when it did not include this instruction in 

the jury charge. The State responds that appellant failed to preserve this issue for 

appellate review. We agree with the State.

The trial judge has a duty to prepare a jury charge that accurately sets out the 

law applicable to the specific offense charged. Tex. Code Crim. Proc. Ann. art. 

36.14 (West 2007); Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 

2007). The trial judge has the duty to instruct the jury on the law applicable to the 

case even if defense counsel fails to object to inclusions or exclusions in the 

charge. Taylor v. State, 332 S.W.3d 483, 486 (Tex. Crim. App. 2011). A jury

instruction on a lesser-included offense, however, is not the law applicable to the 

case absent a request by the defense for its inclusion in the jury charge. See

Tolbert v. State, 306 S.W.3d 776, 781 (Tex. Crim. App. 2010). The judge does not 

 

1 Appellant also argues that the trial court erred when it instructed the jury on conspiracy 

under the law of parties because it deprived him of a unanimous verdict. We conclude that 

unanimity was not required with respect to the law of parties. See Leza v. State, 351 S.W.3d 344, 

357 (Tex. Crim. App. 2011) (“[S]everal courts of appeals in Texas have concluded that the 

Legislature did not intend that a jury should have to achieve unanimity with respect to whether 

an accused was guilty of capital murder as a principal actor or as a party, or with respect to any 

particular statutory alternative by which he might be found liable as a party. We agree, and hold 

there was no error in the jury charge.”). Because we conclude that the trial court did not err, we 

do not consider harm. Ngo, 175 S.W.3d at 743.
9

have a duty to instruct the jury sua sponte on lesser-included offenses. Id. 

Therefore, a defendant cannot complain on appeal about the trial judge’s failure to 

include a lesser-included-offense instruction unless he requested it or objected to 

its absence. Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013). 

A trial judge is not required “to mull over all the evidence introduced at trial 

in order to determine whether a defendant’s request for a jury instruction means 

more than it says.” Bennett v. State, 235 S.W.3d 241, 243 (Tex. Crim. App. 2007). 

To preserve error, a request to instruct the jury on a lesser-included offense must 

be specific and clear enough to apprise the trial court of the alleged deficiency. 

See Pennington v. State, 697 S.W.2d 387, 390 (Tex. Crim. App. 1985). Finally, if 

an appellant’s argument on appeal regarding a lesser-included offense does not

comport with his objection or request at trial, his complaint is not preserved for 

appellate review. See Penry v. State, 903 S.W.2d 715, 753 (Tex. Crim. App. 

1995); Pennington, 697 S.W.2d at 390; Johnson v. State, 416 S.W.3d 602, 614–15 

(Tex. App.—Houston [14th Dist.] 2013, no pet.).

During the charge conference, the following exchange occurred:

[Defense Attorney 1]: The two application paragraphs the second one 

which deals with conspiracy we would request a 

lesser included instruction that if they find that he 

was guilty of conspiring to commit the 

misdemeanor [sic] offense of robbery that he 

would not be guilty of aggravated robbery.

The evidentiary basis for that would be his phone 

conversation was admitted into evidence. At some 

point in there he says something about we’re going 

over to rough these people up or something like 

that. I don’t think that he said beat them up but 

going over there to assault them because uncle said 

they ripped him off got some of his money. And 

under the law as I understand it under conspiracy 
10

he can’t be guilty of aggravated robbery unless 

they were conspiring to commit a felony of 

robbery.

The Court: Right. But that’s encompassed in the charge. You 

want me to add kind of an inverse charge?

[Defense Attorney 1]: A lesser included. “If you find that he was guilty 

of the conspiracy to assault that he would not be 

guilty of aggravated robbery.”

The trial court denied appellant’s request. The State then presented one last 

witness and then both sides rested. At this point, the following exchange occurred:

[Defense Attorney 2]: Just to clarify for the record no other objections 

other than what we talked about in previous 

conference, the request for the lesser included.

The Court: What was your lesser?

[Defense Attorney 2]: I believe [Defense Attorney 1] asked for lesser 

included of assault which was denied. I just 

wanted to clarify we had no further objections.

The Court: You were asking for lesser included of assault?

[Defense Attorney 1]: Under the conspiracy application paragraph.

The Court: Oh, you wanted a lesser of assault.

[Defense Attorney 1]: Yes and you overruled it. We just wanted to make 

sure the record - -

The Court: I didn’t understand that’s what you were asking 

for. I thought you meant you wanted me to say 

something about the conspiracy charge that they 

couldn’t find him guilty of aggravated robbery if 

they thought the original conspiracy was for 

assault.

[Defense Attorney 1]: Yes, that’s correct. That’s what we were 

requesting that charge, that if he was conspiring 
11

only to commit an assault, if that’s what the jury 

finds they could not find him guilty of aggravated 

robbery ’cause that would be a conspiracy to 

commit a misdemeanor not a felony.

The Court: Okay. And I think that that’s covered in the way

that the charge is already written but you’re also 

asking for a lesser of assault to be submitted to the 

jury?

[Defense Attorney 1]: Yes. The assault by threat.

The Court: Okay. Yes that’s denied.

Appellant argues in his second issue on appeal that the trial court erred when 

it denied his request for the jury charge to include “the lesser included offense of 

conspiracy to commit robbery.” This contention does not match the request made 

in the trial court. Therefore, appellant did not preserve this argument for appellate 

review. See Penry, 903 S.W.2d at 753; Pennington, 697 S.W.2d at 390; Johnson, 

416 S.W.3d at 614–15. We overrule appellant’s second issue.

III. The trial court did not abuse its discretion in admitting extraneousoffense evidence during the punishment phase of trial because the State 

provided notice of its intent to introduce such evidence.

During the punishment phase of appellant’s trial, the State sought to 

introduce evidence of the details underlying appellant’s juvenile conviction for 

kidnapping. The State had notified appellant that it “may use the following 

extraneous offenses and/or prior convictions . . . as such become admissible: (1) 

On January 27, 2010, in cause number 200901824J, Defendant was placed on 

juvenile probation for . . . kidnapping in the 313the [sic] District Court of Harris 

County, Texas.” The State also provided appellant with a copy of the juvenile 

probation records and filed them with the trial court. Appellant stipulated to the 

conviction.
12

When appellant learned that the State intended to introduce evidence of the 

details involved in the kidnapping episode, he objected that the State had not 

provided notice of this intent to go behind the fact of the conviction as required by 

article 37.07(g) of the Texas Code of Criminal Procedure. The State responded 

that it provided the required notice and that it was authorized to introduce evidence 

regarding the details of the prior conviction. The trial court overruled appellant’s 

objection and admitted the extraneous-offense evidence. In his third issue,

appellant contends the trial court abused its discretion when it overruled his 

objection and allowed the admission of evidence regarding the details of the 

kidnapping.

During the punishment phase of a trial, article 37.07 permits the introduction

of evidence of extraneous offenses committed by a defendant to the extent the 

court deems the evidence relevant to sentencing. Tex. Code Crim. Proc. Ann. art. 

37.07 § 3(a) (West 2006). If the defendant requests notice of the State’s intent to 

use an extraneous offense during the punishment phase, then the State must 

provide it in the same manner required by Rule 404(b) of the Texas Rules of 

Evidence. Id. § 3(g). The trial court is the authority on the threshold issue of 

admissibility of relevant evidence during the punishment phase. Mitchell v. State, 

931 S.W.2d 950, 953 (Tex. Crim. App. 1996). We review a trial court’s ruling on 

the admissibility of extraneous-offense evidence for an abuse of discretion. Brooks 

v. State, 76 S.W.3d 426, 435 (Tex. App.—Houston [14th Dist.] 2002, no pet.).

Appellant does not dispute that he received notice of the State’s intent to use 

his kidnapping conviction. This is the only notice the statute requires when a prior 

bad act has resulted in a conviction. See Tex. Crim. Proc. Code Ann. art. 37.07 

§ 3(g) (requiring State to provide detailed information regarding extraneous 

offense only when it did not result in final conviction or probated or suspended 
13

sentence); cf. Brooks, 76 S.W.3d at 435 (stating in dicta that no notice is required if 

court only considers evidence of extraneous offense that resulted in a final 

conviction). Once notice was given, the State was permitted to introduce evidence

regarding the facts underlying appellant’s prior conviction during the punishment

phase of the trial. Hambrick v. State, 11 S.W.3d 241, 243 (Tex. App.—Texarkana 

1999, no pet.) (citing Davis v. State, 968 S.W.2d 368, 373 (Tex. Crim. App. 

1998)). Because appellant has not shown that the trial court abused its discretion 

when it overruled his objection and admitted the evidence detailing appellant’s 

kidnapping conviction, we overrule his third issue.

IV. The trial court did not abuse its discretion when it denied appellant’s 

motion to suppress his statement because it was not procured through a 

promise of leniency.

Appellant contends in his fourth issue that his due process rights were 

violated when the police obtained his confession during a non-custodial phone 

interview because the confession was “the product of promises of leniency made 

by police.” The State responds that the trial court did not abuse its discretion when 

it denied appellant’s motion because the police did not make positive promises of 

lenient treatment during the interview.

A. Standard of review and applicable law

We review a trial court’s ruling on a motion to suppress for an abuse of 

discretion and overturn the ruling only if it is outside the zone of reasonable 

disagreement. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011). 

We must view the evidence in the light most favorable to the trial court’s ruling. 

Weide v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). At a suppression 

hearing, the trial judge is the sole trier of fact and assesses the witnesses’ 

credibility and decides the weight to give their testimony. Id. at 24–25. When, as 
14

here, the trial court makes explicit findings, we determine whether the evidence, 

when viewed in the light most favorable to the ruling, supports those fact findings. 

State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). We then review the 

trial court’s legal rulings de novo unless its explicit fact findings supported by the 

record are also dispositive of the legal ruling. Id. We uphold the ruling if it is 

supported by the record and correct under any theory of the law applicable to the 

case. Hereford v. State, 339 S.W.3d 111, 117–18 (Tex. Crim. App. 2011). The 

burden of proof at the hearing on admissibility is on the State, which must prove 

by a preponderance of the evidence that the defendant’s statement was given 

voluntarily. Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995).

A statement is involuntary if the defendant was offered inducements of such 

a nature or coerced to such a degree that the inducements or coercion produced the 

statement. See Alvarado, 912 S.W.2d at 211. The ultimate test is whether the 

defendant’s will was overborne by the police conduct. Creager v. State, 952 

S.W.2d 852, 856 (Tex. Crim. App. 1997); Mason v. State, 116 S.W.3d 248, 257 

(Tex. App.—Houston [14th Dist.] 2003, pet. ref’d). Claims that a confession was 

obtained involuntarily in violation of due process do not require that the defendant 

be in custody during the interview. Wolfe v. State, 917 S.W.2d 270, 282 (Tex. 

Crim. App. 1996). 

For inducement-based claims of involuntariness, the question is whether the 

circumstances show that the confession was induced by a promise of a benefit. 

Ramirez v. State, 76 S.W.3d 121, 126–27 (Tex. App.—Houston [14th Dist.] 2002, 

pet. ref’d). To render a confession involuntary, a promise must have been positive, 

made or sanctioned by someone in authority, and of such an influential nature that 

it would cause a defendant to speak untruthfully. Martinez v. State, 127 S.W.3d 

792, 794 (Tex. Crim. App. 2004); Sossamon v. State, 816 S.W.2d 340, 345 (Tex. 
15

Crim. App. 1991). General statements regarding how a confession can sometimes 

result in leniency do not render a confession involuntary. Muniz v. State, 851 

S.W.2d 238, 254 (Tex. Crim. App. 1993). Nor do general offers to help or 

expressions of opinion that it would be best for the suspect to tell the truth. Dykes 

v. State, 657 S.W.2d 796, 797 (Tex. Crim. App. 1983). Nor do predictions about 

future events involving what might happen if the suspect does, or does not,

cooperate. Mason, 116 S.W.3d at 260; see Espinosa v. State, 899 S.W.3d 359, 

362–64 (Tex. App.—Houston [14th Dist.] 1995, pet. ref’d) (holding statement not 

rendered involuntary by officer telling suspect to “tell us what happened. 

Everything will be better for you. You will get less time.”).

B. The police did not make a positive promise of lenient treatment

that induced appellant’s confession.

Appellant specifically complains of the following statement by Detective 

Reese during the call:

I’m going to give you one last chance to tell me the truth. If not, then 

the next time you see me it may be under different circumstances, 

okay? It ain’t worth protecting [Sweed]. Last thing I’m going to tell 

you — it ain’t worth it. Now tell me the truth. If you have ever done 

anything in your life that’s smart, tell me the truth. I want to know the 

truth on this day what happened with you and your uncle and how you 

got drug into the middle of this . . . . Your mother is a hard working 

woman; she taught you a lot of good values. She goes to work every 

day. It ain’t worth not being able to see your mother for years. . . . It 

ain’t worth it. You got a girlfriend that’s with you now that loves you. 

You got a lot to live for. This ain’t worth going to prison for. Quit 

lying to me and tell me the truth.

In appellant’s view, Detective Reese’s statement “could reasonably be interpreted 

as promises that appellant would not go to jail if he told the truth.”2 The trial court 

 

2 Appellant also complained in the trial court about other statements made by Detective 

Reese during the telephone interview. These other statements ultimately were not included in 
16

disagreed, finding that “Reese did not threaten, coerce or induce [appellant] to talk 

to him on the phone.” The trial court then concluded that appellant’s statement 

was voluntary. 

Having considered the statement and the circumstances in which it was 

given,3 we conclude that the challenged comments by Detective Reese do not rise 

to the level of a positive promise that would influence a defendant to speak 

untruthfully. See Dykes v. State, 657 S.W.2d 796, 797 (Tex. Crim. App. 1983) 

(stating that general offers to help or expressions of opinion that it would be best 

for suspect to tell the truth do not render statement involuntary); Coleman v. State, 

440 S.W.3d 218, 224–25 (Tex. App.—Houston [14th Dist.] 2013, no pet.) 

(concluding that general statements by officer that defendant could help himself by 

confessing were not positive promises of leniency); Ramirez, 76 S.W.3d at 126–27 

(concluding detective’s discussion about belief juries favor people who tell the 

truth was statement of opinion not positive promise); Espinosa, 899 S.W.2d at

362–64. We hold appellant has not demonstrated that the trial court abused its 

discretion when it denied his motion to suppress. We overrule appellant’s fourth 

issue.

V. The trial court did not abuse its discretion in admitting the State’s 

expert testimony on the location of appellant’s cell phone around the 

time of the robbery.

In his fifth issue, appellant argues that because the State’s expert, Officer 

Powell, was unfamiliar with the proprietary software used to determine cell tower 

to which a phone will connect during a call, he was unqualified and his opinion

 

the portion of the interview that was admitted into evidence and played for the jury.

3 The statement at issue here was part of a three-way telephone conference call initiated 

by appellant’s mother. Appellant’s confession occurred after appellant’s mother had 

discontinued her participation in the call. 
17

unreliable. Appellant contends the trial court should therefore have excluded 

Powell from testifying at trial. The State responds that Powell was qualified to 

opine on the location of appellant’s cell phone during the robbery, and his lack of 

knowledge regarding proprietary software did not impact the reliability of his 

opinion that appellant’s cell phone was in the approximate area of the Pak’s Tiger 

Express around the time of the robbery.

A. Standard of review and applicable law

Rule 702 of the Texas Rules of Evidence provides: “ A witness who is 

qualified as an expert by knowledge, skill, experience, training, or education may 

testify in the form of an opinion or otherwise if the expert’s scientific, technical, or 

other specialized knowledge will help the trier of fact to understand the evidence or 

to determine a fact in issue.” Before admitting expert testimony under Rule 702, 

the trial court must be satisfied that three conditions are met: (1) the witness 

qualifies as an expert by reason of his knowledge, skill, experience, training, or 

education; (2) the subject matter of the testimony is appropriate for expert 

testimony; and (3) admitting the expert testimony will actually assist the fact finder 

in deciding the case. Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006). 

These conditions are commonly referred to as (1) qualification, (2) reliability, and 

(3) relevance. Id.

Qualification is distinct from reliability and relevance and should be 

evaluated independently. Id. at 131. The proponent of the expert testimony bears 

the burden of proving the expert is qualified. Turner v. State, 252 S.W.3d 571, 584 

(Tex. App.—Houston [14th Dist.] 2008, pet. ref’d). The specialized knowledge 

that qualifies a witness to give an expert opinion may be derived from specialized 

education, practical experience, a study of technical works, or a varying 

combination of these things. Id. at 585. The witness’s specialized knowledge 
18

must be beyond that possessed by the average person, “but the gap need not 

necessarily be monumental.” Davis v. State, 313 S.W.3d 317, 350 (Tex. Crim. 

App. 2010). In addition, the witness’s background must be tailored to the specific 

area of expertise about which he intends to testify. Vela, 209 S.W.3d at 133. In 

other words, to determine whether a witness is qualified to testify as an expert, the 

trial court must consider whether the witness has a sufficient background in a 

particular field and whether that background goes to the very matter on which the 

witness is to give an opinion. Id. Because the possible spectrum of education, 

skill, and training is so wide, a trial court has considerable discretion in 

determining whether a witness possesses sufficient qualifications to assist the jury 

as an expert. Rodgers v. State, 205 S.W.3d 525, 527–28 (Tex. Crim. App. 2006).

Texas Rule of Evidence 705(c) governs the reliability of expert testimony 

and states that “[a]n expert’s opinion is inadmissible if the underlying facts or data 

do not provide a sufficient basis for the opinion.” Tex. R. Evid. 705(c). The 

reliability inquiry is flexible, at times focusing on the reliability of scientific 

knowledge, at other times on the expert’s personal knowledge and experience. 

Vela, 209 S.W.3d at 134. Indeed, experience alone may provide a sufficient basis 

for an expert’s testimony. Id. The proponent of the expert must establish some 

foundation for the reliability of the proffered expert’s opinion. Id. 

 To be considered reliable, evidence from a scientific theory must satisfy 

three criteria: “(a) the underlying scientific theory must be valid; (b) the technique 

applying the theory must be valid; and (c) the technique must have been properly 

applied on the occasion in question.” Coble v. State, 330 S.W.3d 253, 273 (Tex. 

Crim. App. 2010) (quoting Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 

1992)). When “soft” sciences are at issue, the trial court must inquire “(1) whether 

the field of expertise is a legitimate one, (2) whether the subject matter of the 
19

expert’s testimony is within the scope of that field, and (3) whether the expert’s 

testimony properly relies upon and/or utilizes the principles involved in the field.” 

Id. (quoting Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998)). “This 

inquiry is somewhat more flexible than the Kelly factors applicable to Newtonian 

and medical science.”

4

 Id. The general principles announced in Kelly apply, but 

the specific factors outlined in those cases may, or may not apply depending upon 

the context. Id. Regardless, under both Kelly and Nenno, reliability should be 

evaluated by reference to the standards applicable to the particular professional 

field in question. Id.

We use the abuse-of-discretion standard to review a trial court’s decision on 

whether to allow expert testimony. Gallo v. State, 239 S.W.3d 757, 765 (Tex. 

Crim. App. 2007). Before reversing the trial court’s decision, we must find the 

trial court’s ruling was so clearly wrong as to lie outside the realm within which 

reasonable people might disagree. See Taylor v. State, 268 S.W.3d 571, 579 (Tex. 

Crim. App. 2008); Green v. State, 191 S.W.3d 888, 895 (Tex. App.—Houston 

[14th Dist.] 2006, pet. ref’d). Absent a clear abuse of discretion, the trial court’s 

decision to admit or exclude expert testimony will not be disturbed. Wyatt v. State, 

23 S.W.3d 18, 27 (Tex. Crim. App. 2000). 

B. The record supports the trial court’s ruling that Officer Powell 

was qualified to testify and his opinion was reliable. 

The State called Officer Powell as an expert to testify on the approximate 

 

4 Kelly v. State, 824 S.W2d 568, 573 (Tex. Crim. App. 1992). The factors found in Kelly

include: (1) the extent to which the underlying scientific theory and technique are accepted as 

valid by the relevant scientific community, if such a community can be ascertained; (2) the 

qualifications of the expert testifying; (3) the existence of literature supporting or rejecting the 

underlying scientific theory and technique; (4) the potential rate of error of the technique; (5) the 

availability of other experts to test and evaluate the technique; (6) the clarity with which the 

underlying scientific theory and technique can be explained to the court; and (7) the experience 

and skill of the person(s) who applied the technique on the occasion in question. Id.
20

location of appellant’s cell phone before, during, and after the robbery at Pak’s 

Tiger Express using: (1) historic phone records from appellant’s cell phone 

provider, and (2) a list of the provider’s Houston-area cell phone towers and their 

locations

5

in Houston. The trial court held a hearing outside the presence of the 

jury to consider appellant’s motion to exclude Powell’s testimony. At the hearing, 

Powell testified about his qualifications to opine on these subjects. Powell testified 

that he had nearly 384 hours of formal training through the Houston Police 

Department, the FBI, and the U. S. Marshal’s office regarding how cell phone 

networks operate, cell phone company record-keeping practices, how to analyze 

and use cell phone records, and how to map cell phone towers. Powell further 

testified that he had worked in the Houston Police Department’s Criminal 

Intelligence Division for six years performing these types of tasks on a daily basis. 

Powell testified that appellant’s cell phone records report the exact tower a cell 

phone connected to for each call made or received. Powell also testified that he 

was aware that a cell phone connects to the tower with the strongest signal, not just 

the closest tower. Powell admitted that he was not familiar with the proprietary 

software the phones use to determine which tower has the strongest signal. Powell 

was familiar with the geographic sector each tower served, however. 

We conclude that knowledge regarding the cell phone’s proprietary software

was not relevant to the relatively simple task Officer Powell was called upon to 

perform: map the location of appellant’s cell phone by using the towers identified 

in appellant’s cell phone records and the locations of the cell phone provider’s 

towers. See Thompson v. State, 425 S.W.3d 480, 489 (Tex. App.—Houston [1st 

Dist.] 2012, pet. ref’d) (“The complexity of the technique employed in this case to 

interpret the records is not great—[the witness] only needed to know how the 

 

5 The cell phone provider gives police online access to their tower list, which provides 

each tower’s location using its latitude and longitude.
21

records were produced and what the data in each column signified.”); Robinson v. 

State, 368 S.W.3d 588, 601 (Tex. App.—Austin 2012, pet. ref’d) (“The analysis is 

straightforward and not particularly complex.”). Officer Powell’s training and 

experience were on the exact subject about which he was asked to testify during 

appellant’s trial. We conclude the trial court did not abuse its discretion when it 

determined Officer Powell was qualified to testify as an expert. See Thompson, 

425 S.W.3d at 489 (concluding trial court did not abuse its discretion when it 

determined that officer with less training than Powell was qualified as an expert to 

render opinion on location of defendant’s cell phone); Robinson, 368 S.W.3d at 

600–01 (concluding police witness with training similar to Officer Powell’s was 

qualified to render opinion on general location of defendant’s cell phone).

Appellant also argues that the trial court abused its discretion in admitting 

Officer Powell’s testimony because his opinion was unreliable. Appellant argues it 

was unreliable for three reasons: (1) Powell was unfamiliar with the proprietary 

software the phones use to connect with a tower, (2) he was unaware of the 

variables present around Pak’s Tiger Express that theoretically could affect which 

tower a cell phone would connect to at a given time, and (3) he incorrectly testified 

that cell phones connect to the closest tower. The first two complaints do not 

impact the reliability of Officer Powell’s opinion because the historic cell phone 

records reveal the exact tower appellant’s cell phone connected to before, during, 

and after the robbery, thereby removing any doubt about the potential impact of 

environmental or other factors impacting which tower was used. See Thompson, 

425 S.W.3d at 488–89 (rejecting challenge to expert opinion based on argument it 

was possible defendant’s cell phone was located miles away from tower shown in 

records). Appellant’s third complaint misstates Officer Powell’s testimony. 

Officer Powell never testified that a cell phone always communicates with the 
22

closest tower. Powell instead testified that a cell phone connects to the tower with 

the strongest signal, which may or may not be the tower closest to the cell phone

but generally will be within a half-mile to one mile from the phone in a congested 

urban area. He also testified that about 90 percent of the time, he can locate a 

person by identifying the towers to which his cell phone connects when calls are 

made or received. Because Officer Powell was aware of (1) the basic functioning 

of cell phones and how they connect with cell phone towers, and (2) the areas 

served by each cell phone tower, we conclude the trial court did not abuse its 

discretion when it determined that his opinion on the general location of 

appellant’s cell phone around the time of the Pak’s Tiger Express robbery was 

reliable. See id. We overrule appellant’s fifth issue.

VI. The trial court did not err when it denied appellant’s motion to 

suppress his cell phone records.

Appellant argues in his sixth issue that the trial court erred when it denied 

his motion to suppress his cell phone records because Detective Reese’s affidavit

used in the application for the search warrant failed to establish probable cause. 

The State responds the trial court committed no error because the affidavit 

established probable cause.

A. Standard of review and applicable law

As discussed above, we ordinarily review a trial court’s ruling on a motion 

to suppress evidence for an abuse of discretion. Martinez, 348 S.W.3d at 922. We 

give almost total deference to the trial court’s determination of historical facts that 

depend on credibility and review de novo the trial court’s application of the law to 

those facts. State v. Dugas, 296 S.W.3d 112, 115 (Tex. App.—Houston [14th 

Dist.] 2009, pet. ref’d). We also review de novo the trial court’s application of the 

law of search and seizure. Id. When reviewing a magistrate’s decision to issue a 
23

warrant, however, trial and appellate courts apply a highly deferential standard in 

keeping with the constitutional preference for a warrant. Rodriguez v. State, 232

S.W.3d 55, 61 (Tex. Crim. App. 2007).

The Code of Criminal Procedure allows the issuance of a search warrant to 

seize property or items that constitute evidence of an offense. Dugas, 296 S.W.3d 

at 115 (citing Tex. Code Crim. Proc. Ann. art. 18.02(10) (West 2005) and Muniz v. 

State, 264 S.W.3d 392, 396 (Tex. App.—Houston [1st Dist.] 2008, no pet.)). 

Before a search warrant may be issued, a sworn affidavit must be filed setting forth 

sufficient facts to show probable cause that (1) a specific offense has been 

committed; (2) the specifically described property or items to be searched for or 

seized constitute evidence of that offense or evidence that a particular person 

committed that offense; and (3) the property or items constituting such evidence 

are located at or on the particular person, place, or thing to be searched. Id. (citing 

Tex. Code Crim. Proc. Ann. art. 18.01(c) (West 2015)).

Probable cause to support the issuance of a search warrant exists when a 

magistrate has a substantial basis for concluding that a search would uncover 

evidence of wrongdoing. Id. When making this determination, the magistrate is 

not bound by such standards as proof beyond a reasonable doubt or by a 

preponderance of the evidence; rather, the magistrate’s sole concern should be 

probability. Rodriguez, 232 S.W.3d at 60. The test is whether a reasonable 

reading of the affidavit by the magistrate would lead to the conclusion that the 

affidavit provided a substantial basis for the issuance of the search warrant. Id.

When reviewing an issuing magistrate’s probable-cause determination, an 

appellate court should interpret the affidavit in a common-sense and realistic 

manner, recognizing that the magistrate may draw reasonable inferences. Id. at 61. 

When in doubt, a reviewing court defers to all reasonable inferences that the 
24

magistrate could have made. Id. The determination whether an affidavit 

established probable cause “is a flexible and non[-]demanding standard.” Id. 

When making this determination, reviewing courts should consider whether there 

are sufficient facts, coupled with inferences from those facts, to establish a fair 

probability that evidence of a particular crime will likely be found at the specified 

location. Id. at 62. In other words, reviewing courts should focus on the combined 

logical force of the facts included in the affidavit and not whether there are other 

facts that could have or even should have been included. Id. When determining 

the sufficiency of an affidavit to establish probable cause, a reviewing court is 

limited to the four corners of the affidavit. Bonds v. State, 403 S.W.3d 867, 873 

(Tex. Crim. App. 2013). Whether the facts mentioned in an affidavit establish 

probable cause depends on the totality of the circumstances. Id.

B. The affidavit supporting the search warrant for appellant’s cell 

phone records is not conclusory and establishes probable cause.

Appellant argues the trial court erred when it denied his motion to suppress 

because Detective Reese’s affidavit is conclusory. In appellant’s view, the 

affidavit lacks crucial, specific facts such as which robbery suspect was talking on 

the cell phone inside the store, the exact timing of “prior to and after the robbery,” 

as well as the lack of any showing of who was actually using the relevant cell 

phones during those times. We disagree that, under the appropriate standard of 

review, Detective Reese’s affidavit was insufficient to establish probable cause.

In his affidavit, Detective Reese stated that he was the officer assigned by 

the Houston Police Department to investigate the robbery at the Pak’s Tiger 

Express store located on West Alabama Street. Reese went on to state that the 

clerk, Deegefa, informed him that the unarmed suspect was talking on a cell phone 

while “canvassing out the store” prior to the robbery. Reese also reported that one 
25

of the victims followed the suspects to the residence at 401 Sul Ross, where he 

found his cell phone that had been taken by the unarmed robbery suspect. Reese 

then stated that he talked to James Nielsen, who lived at 401 Sul Ross. Neilsen 

told Reese he saw a man climb over his fence and get into a Toyota Camry. 

Nielsen wrote down the Camry’s license plate number and turned it over to the 

police. Reese reported that, using that license plate number, he learned the Camry 

was registered to Shirley Sweed, who told him that her husband, Reginald Sweed,

drove the car. Reese then reported that he talked to Sweed, who told him his cell 

phone number and consented to Reese obtaining copies of his cell phone records. 

Reese explained that he had examined Sweed’s cell phone records and determined 

that Sweed was communicating with another cell phone prior to and after the 

robbery. Reese then stated that he believed this number, the target of the requested 

search warrant, would provide evidence related to the Pak’s Tiger Express robbery.

We hold that Reese’s affidavit is not conclusory because the facts stated 

therein, and reasonable inferences to be drawn from those facts, provided the 

magistrate a substantial basis conclude there was a fair probability that the records 

for the cell phone with which Sweed was communicating prior to and after the 

robbery would provide evidence of the offense or that a particular person 

committed the offense. See Gabriel v. State, 290 S.W.3d 426, 434–35 (Tex. 

App.—Houston [14th Dist.] 2009, no pet.) (holding affidavit was not conclusory 

because it provided substantial basis for magistrate to conclude search warrant 

would uncover further evidence of theft); Uresti v. State, 98 S.W.3d 321, 335 (Tex. 

App.—Houston [1st Dist.] 2003, no pet.) (same). We therefore overrule 

appellant’s sixth issue.
26

VII. The record establishes that the trial court had the opportunity to review 

the challenged search warrant and affidavit. 

As discussed in part VI above, appellant filed a motion to suppress his cell 

phone records based on the argument that the supporting affidavit failed to 

establish probable cause. Appellant attached the search warrant and supporting 

affidavit to his motion, which is included in the appellate record. In addition, the 

State questioned Reese about the search warrant during the hearing on appellant’s 

motion to suppress. Now, in his seventh issue, appellant argues that the trial court 

erred when it denied his motion to suppress because the State did not produce the 

search warrant and the affidavit for inspection by the trial court. 

Appellant cites Miller v. State in support of his argument. 736 S.W.3d 643,

647–48 (Tex. Crim. App. 1987) (quoting Gant v. State, 649 S.W.2d 30, 33 (Tex. 

Crim. App. 1979)). In Miller, the Court of Criminal Appeals observed that error 

will result if the State relies on a warrant and the record does not reflect that the 

warrant was exhibited to the trial court for a ruling. Id. at 648. The purpose 

behind this requirement is to ensure that the trial court had the opportunity to 

inspect the challenged documents and determine whether probable cause existed 

and the defendant’s rights were protected. Underwood v. State, 967 S.W.2d 925, 

927 (Tex. App.—Beaumont 1998, pet. ref’d). Because the record reflects that the 

trial court had this opportunity, we overrule appellant’s seventh issue. See 

Cannady v. State, 582 S.W.2d 467, 469 (Tex. Crim. App. [Panel Op.] 1979) 

(rejecting defendant’s contention that State did not produce search warrant during 

hearing because reporter’s notes of hearing indicate witness identified warrant and 

record included copy of affidavit and portion of warrant).
27

CONCLUSION

Having overruled all issues raised by appellant in this appeal, we affirm the 

trial court’s judgment.

/s/ J. Brett Busby

Justice

Panel consists of Justices Christopher, McCally, and Busby.

Do Not Publish — TEX. R. APP. P. 47.2(b).