Paul Elizondo Tower – 101 W. Nueva St., Fourth Floor - San Antonio, Texas 78205 

(210) 335-2311 

For Victim Assistance call (210) 335-2105 

Nicholas “Nico” LaHood

Criminal District Attorney 

Bexar County, Texas 

May 21, 2015 

Mr. Abel Acosta, Clerk

Court of Criminal Appeals

P.O. Box 12308

Austin TX 78711

 Re: Ford v. State, No. PD-1396-14 

Dear Mr. Acosta:

This is in response to the letter filed by Cynthia Orr, counsel for Appellant Jon 

Thomas Ford, following our oral argument in that case yesterday. 

 First Appellant argues again that the defense relied on the Texas Constitution in 

the trial court. The Fourth Court held this claim was not preserved, and Appellant has not 

challenged that holding on petition for discretionary review. Furthermore, it is not true. 

Ms. Orr cites a portion of the trial record in which defense trial counsel said, “That 

application and order does not comply with Texas law,” to argue that this vague claim 

invoked the Texas constitution. It did not. This was a reference to defense counsel’s 

claim in the trial court that the application had to be signed by the elected district 

attorney, not an assistant district attorney. (RR4 13) But he was taking this proposition 

from Sec. 2 of Art. 18.21, regarding an application for pen registers. The same language 

is not found in Sec. 5, the section at issue in this appeal. This claim was so obviously 

without merit it was not raised on appeal. Defense counsel never mentioned the Texas 

constitution in the trial court.

 Much of what follows in the letter has been raised before. On page 2 Appellant 

argues that Justice Sotomayor “rejected” the third party record doctrine “in the context of 

digital data.” The opinion to which she refers, U.S. v. Jones, did not involve the 

collection of cell phone data, nor did Justice Sotomayor singlehandedly overrule 

longstanding Supreme Court precedents.

I have already responded in my brief to the claim that Appellant did not 

voluntarily convey information when he received texts. The Fourth Court held that 

PD-1396-14

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 5/21/2015 1:35:18 PM

Accepted 5/26/2015 8:28:49 AM

ABEL ACOSTA

CLERK
Paul Elizondo Tower – 101 W. Nueva St., Fourth Floor - San Antonio, Texas 78205

(210) 335-2311

For Victim Assistance call (210) 335-2105

Appellant’s voluntary acts that conveyed his location information to a third party were 

obtaining cell phone coverage and a cell phone and carrying it with him the night of the 

murder. Appellant has not challenged that holding.

As for the passing claim on the bottom of page 3 that trial defense counsel could 

not obtain the cell phone records, the prosecution provided those records to the defense. 

It is clear from the trial record that Mr. DeGuerin had all the records the State had.

Appellant also discusses cases in which data other than locations was collected in 

one way or another. This has no application to this case, in which the State introduced 

only the records showing Appellant’s general locations. His friend Alan Tarver testified 

to the contents of the texts he sent, which were trivial and irrelevant to the prosecution.

Finally, the Richardson case, as I have pointed out, relies on the Texas 

Constitution, not preserved by Appellant, and has no holding and no application to this 

case.

Ms. Orr’s second letter seems to argue that the prosecutor conceded something in 

the trial court, which is not the case. Ms. Melton advanced several arguments, all of them 

valid, with a final fall-back position saying even if the application was improper police 

acted in good faith. This was not a concession. It was a good attorney making a series of 

arguments.

Please convey this letter to the Court and thank the judges on my behalf for their

respectful and collegial attention during our oral argument.

Very truly yours,

/s/ Jay Brandon

copy: Cynthia Orr