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-1396-1 4

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 w as 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 compl y 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 doctri ne “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
CLERKPaul 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 carry ing 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 defens e. 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 o n 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 severa l 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