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KAREN B. MARTINEZ

OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 1

REPORTER'S RECORD

VOLUME 3 OF 21 VOLUME(S)

TRIAL COURT CAUSE NO. 1376698R

COURT OF APPEALS CASE NO. 02-14-00412-CR

THE STATE OF TEXAS

VS.

THOMAS OLIVAS

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IN THE 372ND JUDICIAL

DISTRICT COURT

TARRANT COUNTY, TEXAS

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PRETRIAL HEARING CONTINUES

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On the 30th day of January, 2014, the following

proceedings came on to be heard in the above-entitled

and numbered cause before the Honorable Scott Wisch,

Presiding Judge, held in Fort Worth, Tarrant County,

Texas;

Proceedings reported by computerized machine

shorthand with assisted realtime transcription.

KAREN B. MARTINEZ, CERTIFIED SHORTHAND REPORTER

Official Court Reporter

372nd Judicial District Court

Tarrant County, Texas

 FILED IN 2nd COURT OF APPEALS FORT WORTH, TEXAS 3/27/2015 12:36:05 PM DEBRA SPISAK Clerk

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 2

APPEARANCES:

ATTORNEYS FOR THE STATE:

HONORABLE LORI L. BURKS

SBOT NO: 24013673

HONORABLE R. KEVIN ROUSSEAU

SBOT NO: 17324950

HONORABLE TAMLA S. RAY

SBOT NO: 24046687

Assistant Criminal District Attorneys

Tim Curry Criminal Justice Center

Fort Worth Texas 76196

Phone: 817-884-1400

Fax: 817-884-3333

ATTORNEYS FOR THE DEFENDANT:

HONORABLE TIM MOORE

SBOT NO: 14378300

Attorney at Law

115 West 2nd Street, Suite 202

Fort Worth, Texas 76102

Phone: 817-332-3822

Fax: 817-332-2768

- AND -

HONORABLE JOETTA L. KEENE

SBOT NO: 11165800

Attorney at Law

204 South Mesquite Street

Arlington, Texas 76010

Phone: 817-275-6611

Fax: 817-275-6621

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KAREN B. MARTINEZ

OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 3

CHRONOLOGICAL INDEX

Volume 3 of 21

PRETRIAL HEARING CONTINUES

January 30, 2014 Page Vol.

The Court Calls Case for Trial................ 4 3

Defense First Amended Motion to Suppress

Evidence...................................... 4 3

Defendant's Closing Argument by Mr. Moore..... 6 3

State's Closing Argument by Ms. Burks......... 14 3

Court's Ruling................................ 21 3

Other Defense Motions and Rulings............. 31 3

Pretrial Hearing Concluded.................... 45 3

Court Reporter's Certificate.................. 46 3

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 4

P R O C E E D I N G S

Thursday, January 30, 2014 10:00 a.m.

(OPEN COURT, DEFENDANT PRESENT)

THE COURT: We're going to continue with

pretrial hearings on the State of Texas versus Thomas

Olivas, 1352014R, as in Romeo, the reindictment of

1298688D, for purposes of this next-day hearing. There

are motions, notices, legal documents filed on behalf of

both parties in both cause numbers. The "R" case number

is the one that will be tried, but both records will be

maintained for purposes of litigation and, if necessary,

any subsequent appeal.

Are both sides ready to resume, State?

MR. ROUSSEAU: Yes, Your Honor.

THE COURT: Defense?

MR. MOORE: We're ready.

THE COURT: All right. The next motion I've

been asked to address is Defense First Amended Motion to

Suppress Evidence, file-marked January 29th, which is

basically a motion to quash two separate batches of

data, to speak loosely, one relating to cell phone

number records and one related, loosely speaking, to

tower location records, and there are two different

orders signed by two different judges. And I've been

advised that the motion speaks for itself, this is a

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STATE v. THOMAS OLIVAS 5

question of law and it only needs to be argued, but

there are no facts or evidence to be offered other than

for the Court to take judicial notice of the contents of

the Defense motion that these are the orders that were

in the case and we want to quash any records obtained as

a result of either or both orders.

Is that accurate?

MR. MOORE: That's accurate, Judge.

THE COURT: And does the State concede and

agree for the Court to take notice that the application

and orders, one signed by Judge Westfall and one signed

by Judge Gallagher, that are attached to the Defense

motion are the orders in issue in this cause?

MR. ROUSSEAU: Your Honor, I believe so, but

I'm going to let Ms. Burks speak for me on this topic.

She's a lot more well-versed on the topic than I am, so

she's going to take over from this point in this

hearing.

THE COURT: All I was asking you, as lead

counsel and the person who's trying the case, to not put

Ms. Burks in a position, and I'm sure she knows, but

there are two orders that are attached to seek records.

MR. ROUSSEAU: Yes.

THE COURT: And you agree the orders

attached to the Defense motions are the orders that

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 6

they're trying to have the evidence suppressed, they

don't have to a file an exhibit with the court reporter.

MR. ROUSSEAU: Yes, that's fine, Judge.

THE COURT: Yeah, that's all I wanted to

check with you, Kevin.

All right. And with that, since it's just

argument...

Off the record.

(Discussion off the record)

DEFENDANT'S CLOSING ARGUMENT

MR. MOORE: Just to clarify the record, I

actually, to obtain these orders that are attached to

the first amended motion to suppress, had Judge

Gallagher, who signed one of the orders, and Judge

Westfall, who signed the other, actually signed a motion

to unseal them. These were both sealed and in the

District Clerk's possession, so I had them sign the

motion and order to unseal them and that's how they came

into being, or came to be attached to this.

And, basically, what we're talking about is

cell tower locations, cell phone records, not

necessarily content of cell phone records, such as text

messages and voice messages, things of that nature, but

the cell tower location. When you make a phone call or

you text with your cell phone, which every one of us in

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 7

this room have nowadays, there's a tower that tells an

area that you're in and it can trace you from location

to location.

And what happened in this particular case is

the District Attorney's Office, through Assistant

District Attorney Tracey Kapsidelis, prepared an

application pursuant to 18 U.S.C. Section 27.03 and

18.21 of the Code of Criminal Procedure.

THE COURT: That probably would be Section

5?

MR. MOORE: I'm sorry?

THE COURT: Would that be Section 5?

MR. MOORE: Section 5.

THE COURT: Request For Stored Information?

MR. MOORE: Correct.

THE COURT: All right. Go ahead.

MR. MOORE: Correct.

And instead of getting a search warrant,

they obtained these records pursuant to this order on

two different occasions.

Our argument, Judge, is that we certainly --

and I know some courts have held otherwise, but --

THE COURT: Courts like where?

MR. MOORE: Like the Fifth Circuit.

THE COURT: Okay. Thank you for your

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 8

candor.

MR. MOORE: The Fifth Circuit has held

basically that cell tower locations, people do not have

an expectation of privacy when they are making telephone

calls out there being traced with these cell phone

towers and, therefore, law enforcement does not need to

get a search warrant based on probable cause.

Our argument is just the opposite, that --

and certainly this Court can look to the law of other

jurisdictions in deciding this issue. I've brought you

a case, and I've provided them a case, from the New

Jersey Supreme Court, a recent case, cited the State

versus Thomas W. Earls -- I'll give you a copy -- in

which the New Jersey Supreme Court held that there is an

expectation of privacy in the cell tower locations, and

it lists -- and I won't go over all the reasons. You

can read that case. It's a very well-reasoned opinion

and points out why in our everyday world now, in our

electronically controlled world, why people should have

an expectation of privacy in their whereabouts.

THE COURT: And just to make a legal point,

from reading the summary, they take the position that

the New Jersey Constitution provides more protection

than the Fourth Amendment.

MR. MOORE: And that's exactly right. And

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 9

our argument is that the Texas Constitution, Article 1,

Section 9, provides more protection, going back to

Heitman versus State, than the United States

Constitution. And when you look at the Heitman

decision -- and there's actually a case of Damon Jerome

Richardson versus State, 865 S.W.2d 944, Court of

Criminal Appeals decision. They address the issue of a

PIN register, of getting telephone numbers that are

dialed, and indicated the people have an expectation of

privacy in those. And I would kind of compare that to

your cell phone tower locations.

THE COURT: Well, and let me just say this.

As I understand a PIN register, it's we want to start

recording who they call, not ask for the records of who

they've already called. The PIN register is to place

something to monitor future conduct, not --

MR. MOORE: That's correct.

THE COURT: -- see what else that they had

done and possibly bill for it on an itemized bill that

says you called all these places. That's already in

possession of the vendor who provides the phone service.

MR. MOORE: And you're right and -- but I

think the real comparison is this. The Fifth Circuit

has found that these are mere business records, that

there is no expectation of privacy. They're business

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 10

records because they're just gathering records for

billing purposes and that sort of thing, but when you

consider...

THE COURT: Hold on. Hold on. Based on

that last thing you said, are you still urging both

parts of your motion, as to the who's-been-called

numbers, records and the location records, or are you

only challenging the location records?

MR. MOORE: Both.

THE COURT: Okay.

MR. MOORE: Both.

THE COURT: You're just understanding the

logic on the billing records versus the tower records.

MR. MOORE: Well, I mean, they're both

really for billing purposes, or for analysis, that's

what they're for.

THE COURT: And, I guess from my position,

one of the things, the way I've scanned through these

orders, is here's the phone number and we want all the

numbers they've called, we want a list of who they

dialed and who dialed them. Are there any text messages

that were seized as part of this or is it just phone

numbers?

MR. MOORE: Just phone.

THE COURT: Okay. So that's the same type

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 11

thing that might be on a typical cell phone bill, if you

have an itemized bill. What tower you call from, all

that information, that is not on a typical cell --

MR. MOORE: I'm sorry?

THE COURT: Where you called from, what

tower you bounced your signal off of or how many towers,

your location was not part of a typical cell phone bill

or business record, even though it's electronically

maintained based upon the operation of how cell phones

work.

MR. MOORE: You're right.

THE COURT: So but you're challenging both

under the state constitution. Because it sounded like

you almost conceded the phone bill part versus the

location part, but you did not so --

MR. MOORE: No, no.

THE COURT: Okay. All right. That's fine.

Still carried as to both issues.

You may continue.

MR. MOORE: Okay. Where were we?

THE COURT: You were talking about towers

and phone bills and --

MR. MOORE: Well, I just think the bottom

line is, Judge, that people have an expectation of

privacy in where they are. You know, where you go after

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STATE v. THOMAS OLIVAS 12

work, where you visit, what church you visit, what

establishments you visit, you have an expectation of

privacy in that, and, therefore, if you have an

expectation of privacy, Article 1, Section 9 of the

Texas Constitution requires that a search warrant be

obtained to gather this information, and then basically

we're asking you to recognize that.

There's another part of our -- second part

of the motion that I've addressed, the sufficiency of

the application that Assistant DA Kapsidelis prepared

and presented to Judge Gallagher and Judge Westfall. If

you look at -- at 18 U.S.C. 27.03(d), it provides that

"a court order for disclosure under (b) or (c) may be

issued by any court that is a court of competent

jurisdiction and shall issue only if the governmental

entity offers specific and articulable facts showing

that there are reasonable grounds to believe that the

contents of a wire or electric communication, or the

records or other information sought, are relevant and

material to an ongoing criminal investigation."

And our position is that those -- if you

read those applications attached, Exhibit C and Exhibit

A, that they failed -- kind of a comparison to an arrest

warrant or a search warrant affidavit, that they failed

to establish any facts that show that they would be

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STATE v. THOMAS OLIVAS 13

relevant and material to an ongoing criminal

investigation. And, therefore, we'd ask you to suppress

those cell phone records that were obtained and not

allow the State to use them in trial.

THE COURT: All right. I understand your

factual and your legal position. Give me just a second.

(Pause in proceedings)

THE COURT: On the record.

I have reviewed the New Jersey Supreme Court

case, its rationale and, quite frankly, a very succinct

and understandable summary of how electronic devices of

various types work and how the information is obtained,

and, basically, concluding with the fact that it is new

law in New Jersey that a warrant is required based on

the state constitution, which grants more protection

than the Fourth Amendment, notwithstanding their

statute, which I am going to assume tracks the federal

statute you cited, as does the Texas statute in Article

18.21, Section 5, and that you're telling me that I

should find, first and foremost, that the Texas

Constitution offers more protection than the Fourth

Amendment and that a warrant should be required, and,

number two, in the alternative that their application

wasn't sufficient under the statute to justify a court

releasing this information.

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KAREN B. MARTINEZ

OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 14

Are those your two legal positions?

MR. MOORE: That's correct.

THE COURT: All right. I'm on the same

page.

The State may respond.

MS. BURKS: Your Honor, am I understanding

that the Defense is waiving their argument that the U.S.

Constitution should require a warrant, as well?

MR. MOORE: No, I'm not waiving that.

THE COURT: Well, you're acknowledging that

the Fifth Circuit has ruled against you on that.

MR. MOORE: That's correct.

THE COURT: If the Supreme Court changes

their mind, you still assert it but understand that this

court is probably bound by Fifth Circuit law, but you

still want to make that objection in case the Supreme

Court changes its mind?

MR. MOORE: Exactly.

THE COURT: I gotcha.

All right. With that understanding, you may

proceed.

MS. BURKS: Thank you, Judge.

STATE'S CLOSING ARGUMENT

MS. BURKS: The first thing I would like to

address is the issue of warrant requirement.

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KAREN B. MARTINEZ

OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 15

The Fifth Circuit did address this issue.

Based upon a Southern District of Texas opinion, which

they went through all the hearings that had occurred on

Capitol Hill regarding the Electronic Communications

Privacy Act, and they included very specific findings of

the fact regarding how the technology has changed, how

it works, how the very same arguments about how you can

be pinpointed with your phone, and the Fifth Circuit did

offer its opinion, which I will give to the Court and to

the Defense, finding that the United States Constitution

does not protect those records.

They found it based upon three different, I

guess, portions of reasoning. First of all, that the

person who's creating the record, using the phone,

voluntarily contracted with a cell phone company and

gave them information which they stored. This is a

third party, not a governmental entity. And that when

one uses a cell phone we know that we are creating

records. And specifically in this case, Mr. Olivas, in

his interview with the detective, and this is Pretrial

Exhibit 2-A, page five, acknowledges when he says, the

question, "And you know that we can track your phone in

that general area? You know that? Are you aware of

that," he says, Yes, sir." So he does know his phone is

creating these records. So it is a voluntarily made

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STATE v. THOMAS OLIVAS 16

record.

Secondly, that these records were already in

possession. The Government is not requiring AT&T or

T-Mobile or any of these companies to create these

records. They were already being created. And in this

case, this is only historical information. And I would

point out that the New Jersey court is addressing the

issue, of they are calling up and actually getting

real-time information. So it's a different issue.

And then thirdly, that they have the right

to possess and access the information. And it's based

on these three factors that the Fifth Circuit concludes

that these are business records. And that is true in

this case.

That law has been applied in Texas, the fact

that this argument has been made already in Texas.

There's two opinions that I found one. One of them is

published and one of them is not. The published opinion

is out of Houston. It is Barfield v. State, 2013 WL

5861504.

THE COURT: Fourteenth. Fourteenth Court of

Appeals, all right, go ahead.

MS. BURKS: I'm sorry. Yes, the 14th.

THE COURT: Okay.

MS. BURKS: And then the second one is out

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STATE v. THOMAS OLIVAS 17

of Dallas. It is 2013 WL 1819979, in which the Defense

argued that there must be a warrant obtained in order to

get historical cell site data. In both of those cases

they followed the Fifth Circuit. There was no extra

protection granted because of the Texas Constitution,

and they rightly decide historical cell site data may be

obtained by this court order, the same type of court

order under 18.21, Section 5. That was obtained in this

particular case, as well.

So, Your Honor, we would urge the Court to

deny the Defendant's request that the Court find that

the Texas Constitution provides more protection. And we

ask that the Court follow the Fifth Circuit's

interpretation of the United States Constitution in that

it does not require a warrant to obtain historical cell

site data.

As to the Defense's argument that these

orders are insufficient, the standard that is required

under 18.21 and under the Electronic Communications

Privacy Act is that these orders contain -- or the

applications for these orders contain reasonable --

excuse me -- specific and articulable facts providing a

reasonable belief that this material will be -- that it

will be material to an ongoing investigation.

In these orders they clearly stated that a

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STATE v. THOMAS OLIVAS 18

victim was found in her burning apartment, that she was

deceased, rescue efforts had commenced, they found her,

she was deceased in her burning apartment -- in her

apartment, and that she was found to appear to have

several stab wounds -- this is indicative of a crime,

Your Honor, obviously a murder -- and that their

information that they gathered from her mother was that,

you know, who could have done this, who was mad at her,

well, she says, "Well, they've got a paternity suit

going with the potential father of her child," and that

that is the basis she believed of what had occurred to

her daughter. And they also found that his phone

number -- they went and talk to him, Mr. Olivas, this

defendant, who was the other party in that SAPCR

lawsuit, and that, first of all, the morning of March

21st, 2011, they were unable to find him, which is the

day after the victim was found in her apartment dead.

They were unable to find him. Eventually they did find

him and they interviewed him. And he gives them the

story that he was going to go meet with her but didn't.

And all of that is pretty much articulated in these --

both of these orders.

THE COURT: And I do note that he'd actually

been in contact with her on that evening.

MS. BURKS: And that it says he contacted

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STATE v. THOMAS OLIVAS 19

her, exactly, Your Honor.

THE COURT: It doesn't say he called her,

but it does say contact.

MS. BURKS: Contact.

And so, Your Honor, the level of standard

is, is not comparable to an arrest warrant. It's not

comparable to a search warrant. This standard is a

lower standard. And in this court in 2007, you actually

decided, on the Martinez case, this very same standard.

And it was a drug case and somebody was walking out with

a bag that had something heavy in it and that's all that

was there. That bag with something heavy in it was

enough to say that's specific and articulable facts.

This case far exceeds that standard. And so -- and that

case was actually affirmed by the Fort Worth Court of

Appeals, just, I can quote it for you, 236 S.W.3d 361,

Martinez v. State, and I have copies of that if you want

it, but you decided it at the time.

And so, Your Honor, the State would urge you

to deny the Defense's motion based upon their statements

that these are insufficient court orders, as well --

applications. Thank you.

THE COURT: Thank you, Lori.

Under the theory "your motion, your burden"

in the face of law, you wanting to change the law, do

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you have any response? You want the last word? Are you

satisfied with what you've said?

MR. MOORE: She correctly recited what the

Fifth Circuit decided, Judge.

THE COURT: Okay. Thanks for pointing out

this Court has apparently made wise and sound judicial

decisions in the past on drug cases, and

understanding --

MR. MOORE: I think you have, too, Judge.

THE COURT: Yeah. I appreciate that.

-- but the real issue here is probably much

narrower and, quite frankly, it is a different issue.

I'm going to address the sufficiency issue first. The

standard is not that you believe the person whose phone

records you want has committed a crime. The standard is

it relevant to an ongoing investigation. And simply

based upon the evidence before me, and I'm not going

outside the four corners of the application, but just as

a matter of common sense, an investigation is sometimes

to convict and sometimes to clear people and to narrow

the focus of who should be or is a suspect, when you

have a dead body, limited information and you go to all

sources and all leads. Pursuing a lead is relevant to

an investigation, is material to an investigation. It's

not the standards of we believe this person used this

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phone to conduct drug transactions or to hire a hit man

or to commit another crime. The bar that has to be

crossed is this isn't some cop or other person wanting

the records of his ex-wife to figure out who she's

dating or whether he should have to pay child support.

It's not the misuse of information by law enforcement

authorities for personal or otherwise. It has to be

relevant and material to an investigation. It doesn't

have to be aimed at a target of an investigation. It

might be to provide corroboration, that a witness's

story is true or false, based upon did they make the

calls to corroborate they did talk to someone at a

particular day in time or to show that they were or were

not in a different area, to provide an alibi or to rebut

an alibi or just a story from a person who's absolutely

not a suspect who's trying to help or hurt one side or

the other in a criminal dispute.

So based upon that standard, the Court finds

as a matter of fact, concludes as a matter of law that

the language articulated in each of these applications,

which appear to be identical, is legally sufficient to

set out that the phone number and its use, reading a

totality of it -- and I concede talked on the phone

would be better -- but his location, having discussed

arrangements to meet but not meeting, locating this

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person is a legitimate need or their whereabouts at the

time of an alleged offense is a legitimate purpose of a

criminal investigation, whether that information were to

help convict or help clear that person.

So your grounds of sufficiency is overruled

based on the lower and different standard for obtaining

information versus to arrest a person suspected of a

crime. It's not a probable cause standard and I will

not raise it to that level on that sufficiency basis.

On a separate and distinct issue of is a

warrant required to obtain this information, that the

application process is constitutionally infirm because

it infringes upon a citizen in Texas, in particular,

their reasonable expectation of privacy in the

electronic age, I will say with all the publicity, all

the issues concerning the NSAA, the war on terror, who's

spying on who, plays what video games, it's a legitimate

public policy concern that ought to be raised and looked

at in a free society, by lawyers on either side of the

courtroom, by citizens at large.

What can be done with a phone, the New

Jersey court correctly addressed this is the real world,

and Lori's point is totally accurate, I choose to sign

up with this company, the Fifth Circuit recognizes that,

I enter a contract and in all the fine print no one ever

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reads probably said we're keeping all this stuff and

we'll cooperate with the Government and we'll pay taxes,

and we sign that like we do on a car loan or anything

else. But the reality is, you have to have a car to get

to work in Texas and most people have to have a cell

phone to function in their job and in their life. So

the New Jersey court says it's not really a voluntarily

third-party transaction, because the reality in today's

world is you can't survive without it, and that is a

legitimate observation and maybe a legitimate concern on

the part of all citizens as our technology evolves, and

as the data from our credit cards might be stolen from

some former Soviet Republic when we stop at Target,

those are concerns that need to be addressed. But in

this specific point, this specific issue, the nature of

what's available, the knowledge of what's available --

off the record.

(Discussion off the record)

THE COURT: As a matter of fact and law -- I

will not override the Fifth Circuit on what protections

are afforded by the U.S. Constitution. So as a matter

of fact and law, I find that the state statutory scheme

in Article 18.21, Section 5, as applied in this case, is

not violative of the United States Constitution.

Based upon the rulings of the Court of

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Appeals, I do not find as a matter of fact and law that

this process is violative of Article 1, Section 9 of the

state constitution, and understand the Defense

strenuously believes otherwise and this adverse ruling

preserves this issue for the Court of Criminal Appeals

to ultimately resolve.

Third, based upon the interview, the six

hours plus of which I observed, and the written consent

to search, I am not so sure he didn't waive any privacy

interests based upon his statements and the logical

implication of those statements when it was described

what's done with cell phones and other information. So

even if Article 1, Section 9 of the state constitution

does give greater protection, based on the specific

facts of this case, it is my opinion, in the totality of

his interviews and statements "I have nothing to hide"

"get what you want" "we can do this" "that will be

great" "the sooner the better" -- that's paraphrased --

your client from the get-go professed his innocence and

uninvolvement in the death of the paramour or the child

and repeatedly offered any assistance and opportunity to

help solve this crime and bring the real killer to

justice, and he signed it in writing and he verbally

repeated throughout his interviews. And I believe even

if Article 1, Section 9 turns out in hindsight,

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notwithstanding the Court of Appeals decisions, that the

Court of Criminal Appeals determines the Texas

Constitution gives better protection, I think verbally

and in writing he waived that right to privacy in what

appeared to be a sincere and clear effort, if to either

cooperate or give the impression that he wanted to,

that's what trials are for.

MR. MOORE: Can I interrupt you?

THE COURT: Yeah.

MR. MOORE: Does that mean, and in your

ruling, that because he said, "I'll help in any way I

can," this is effectively a consent to "go get my cell

phone records"?

THE COURT: No. My position, Tim, is not

any one thing did that. The consent to search, to

search the phone, they told him they're trying to get

the numbers, the information they told him, the

information that's available through the phone, and in

the context of the whole conversation I believe that's

the common-sense interpretation, not one limited item.

Yeah, can you look at my phone, can I do

this, fine, but to go through the process of the consent

to search in an ongoing interview where information was

explained on the type of information that's available, I

think in the totality context of this case that that

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very well could be a waiver, not one thing, but hours of

different comments, written waivers, the whole big

picture, a one-time "can we do this?"

"Yes. Fine," no conversation, no

explanation, I would not reach that conclusion.

And in all fairness, that's just an

appellate attorney assuming arguendo that the state

constitution does give greater protection. In this case

that protection appears to have been waived, but that's

not a universal ruling.

My preliminary ruling is motion denied.

Fourth Amendment does not protect against this -- well,

back up. Rewind.

Motion denied. Sufficiency of the

applications for the relevance or materiality to an

investigation challenge is denied based on fact and law

recited. Number two, challenge to the application

infirm or not in the application and the order that was

a result thereof in each of these two instances, denied

on the basis that it violates the Fourth Amendment of

U.S. Constitution. Item three, same reasoning, same

issues, motion to suppress denied as to each application

and the data obtained therefrom, that it violates

Article 1, Section 10 of the U.S. Constitution. And

so -- I mean Article 1, Section 9 of the Texas

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Constitution. And item four, even arguendo if wrong on

items two and three, or one, the consent to search and

the verbal acknowledgments throughout the interview seem

to imply, clearly, reasonably imply, a waiver and an

agreement to cooperate under the specific facts of this

case.

If I'm wrong on one through three, four as a

matter of fact and law -- my impression was a person who

is sincerely or manipulatively trying to get to the

bottom of what happened to my child to get them self

cleared and to get on with their lives so the real

murderer can be caught. And in all fairness, I have

heard no facts. The umpire doesn't take sides. And

either a deception or a sincere plea of innocence could

be true, and that's what the jury decides.

But based upon his black-and-white, in the

reading of the transcript or his face, his expressions

in the black and white of the consent to search, there

was a person there saying, "Whatever I need to do to

solve who killed my son..." and in the context of this

case, phone records, locations, what we can track, he

didn't withdraw the search of the phone. It was

explained about "we can find out where you were."

"That's fine." There wasn't any "oops, I

shouldn't -- I need to back off her." "I need to lawyer

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up." "I need to do anything else." It was nonstop

"what can I do to help," and I believe waiver is

implied, clearly. I don't think we'll get to there. I

don't think that will matter. I don't think we'll get

there, but if the Court of Criminal Appeals says the

state constitution says warrant, then that consent issue

is something that might come up, and those are my

factual observations related to that.

MR. MOORE: Thank you.

THE COURT: So any evidence admitted as a

result of either of the two orders that are attached to

the Defendant's motion to suppress, which is the subject

of this hearing, be they who called who, be they cell

tower locations, the motion to suppress is denied.

Do you want a running objection to the

admissible of any that information -- admissibility of

any of that information?

MR. MOORE: Yes, we do.

THE COURT: That will be granted. And if in

doubt, when it's offered at trial, "I renew my pretrial

objections."

"Reconsidered in light of the record," and

either, "sustained," or "overruled," depending on what

the record is at the time they're offered.

MR. MOORE: So if I say, "Judge," when these

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STATE v. THOMAS OLIVAS 29

records are offered, "we object based on our previous

hearing," you'll know what I'm talking about?

THE COURT: "Based on the pretrial

hearings," yes, I will know we are talking about this

specific motion.

The State concedes that, as well; is that

correct?

MR. ROUSSEAU: Yes, sir.

THE COURT: All right. Anything else on

that issue?

MR. MOORE: No, sir.

MR. ROUSSEAU: No, sir.

THE COURT: Off the record.

(Discussion off the record)

THE COURT: On the record.

There have been numerous other motions and

notices filed in these causes throughout the pendency of

this case, or these cases, technically. The parties

have continually advised me that they continue to share

information, to communicate. I think that was made

evident earlier in the week based upon the revelation of

the crime scene evidence that hadn't been analyzed due

to the retirement of one of the trace analysts at the

Medical Examiner's Office. And I've appreciated that.

It's the Tarrant County way. I think it's, in the

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justice system, the way it needs to work.

There are numerous filings, answers and

notices that have actually been filed in the records of

the Court's cause in response to either formal or

informal requests. I know the State has maintained an

open-file policy independent of the Michael Morton Act

and the Defense has access to electronic documents

contained in the State's file, including, but not

limited to, police reports, statements and other

matters. But if there's anything either side wishes to

a make record of for purposes of discovery or otherwise,

or motions that haven't already been directly addressed,

this is your opportunity to do so, and if I need to make

formal rulings, I will. If you simply need to put

notice in the record of what's going on, that's fine.

Who wants to go first?

MS. KEENE: Judge, we filed a number of

pretrial motions last year, and I know the State has

copies of those. We've agreed on most of those. And it

might be easier, since they're my motions, for the State

to go through and say if they agree or if there's issues

or where we are on those, since it would be them

agreeing or not agreeing.

THE COURT: That will be fine.

Kevin, are you agreeable with that

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procedure?

MR. ROUSSEAU: Yes, Your Honor.

THE COURT: All right. Then if you'll

identify the specific motion and the file-mark date and,

that way, I'll know I have a copy of it and know what

you're talking about.

MR. ROUSSEAU: Okay. I'm assuming, Your

Honor, that the motions that I have are in the same

order as they appear in the file, but, unfortunately,

the copy I have is not file-marked so --

THE COURT: Okay. Well, then just call out

the name and then I'll find it and I'll give you a

thumbs-up when I'm looking at it.

MR. ROUSSEAU: Okay. It is in the old cause

number, 1298688D, and it's Motion for Production of

Evidence Favorable to the Accused. And we have -- I

have no objection to one, no objection to two, no

objection to three, except about 3(D), it asks for the

names and addresses of all the persons interviewed by

the State in connection with this case, of who the State

does not intend to call as witnesses in this case. To

the extent that that gets into my work product, I

object. However, I have complied and will continue to

comply if any people meeting that description supply us

with anything that's Brady or related to Brady in its

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progeny in any way, I will give that up as I have.

That's the only objection I have to anything.

MS. KEENE: And, Judge, we're not entitled

to require them to give us the names of all the

witnesses under this present statute, so I understand

that and agree with his objection.

THE COURT: Okay.

MS. KEENE: And obviously Brady material...

THE COURT: I mean, Brady overrides work

product, but he's acknowledged that.

MS. KEENE: Correct.

THE COURT: Off the record.

(Discussion off the record)

THE COURT: All right. Then as to

Defendant's Motion for Production of Evidence Favorable

to the Accused, and it says filed November 4th, 2013,

the motion is granted as to -- within the limitations

requested by the State concerning work product that

wasn't Brady.

And you accept that ruling?

MS. KEENE: We do, Judge.

THE COURT: All right. Next.

MR. ROUSSEAU: Motion for Discovery. And,

Your Honor, several times you may hear -- I'm going to

refer to "Brady information" or "Brady materials". I

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want it understood that it's covering everything, Brady

in its progeny, basically impeaching evidence --

THE COURT: Mitigation.

MR. ROUSSEAU: -- exculpatory evidence, all

of the above.

THE COURT: Right.

MR. ROUSSEAU: Motion for Discovery No. 1,

it's exactly the same objection I had previously. I'll

give up anything if it's Brady related, but other than

that, I think it's probably -- as it relates to the

Office of the Tarrant County District Attorney, I

believe it's a violation of work product, but everything

else, they already have an opportunity to give that up.

THE COURT: Any objection to that?

MS. KEENE: No objection to that, Judge.

THE COURT: All right. Granted with that

understanding.

MR. ROUSSEAU: No objection to two. No

objection to three.

THE COURT: Granted to both.

MR. ROUSSEAU: As to four, name, address and

telephone number of any person the State knows to have

been present at the time and place of the alleged

offense, I have provided all of that, with the exception

of the addresses and telephone numbers to the extent

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that I have them, and I will continue to cooperate with

Ms. Keene and Mr. Moore. If they need any help locating

somebody, if I can help them, I will do that.

THE COURT: All right. Then granted within

those parameters.

MR. ROUSSEAU: Number five, no objection.

THE COURT: Granted.

MR. ROUSSEAU: Number six, same objection as

previously. I have no objection except as it relates to

work product of the District Attorney; that is, if I

personally go out and talk to somebody, I'm not going to

reduce that to writing. If I have a written statement

from them or a recorded statement, I'll provide that,

but I'm not going to produce --

THE COURT: Well, you look --

MR. ROUSSEAU: -- create a document.

THE COURT: -- at the last sentence, the end

of the paragraph...

MR. ROUSSEAU: Oh, absolutely, Your Honor.

I apologize. Since this is Brady related, they'll have

that.

THE COURT: All right. Then six is granted.

MR. ROUSSEAU: We've provided criminal

arrest and conviction records already of everyone I

believe that's been requested.

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Is that correct, Joetta?

MS. KEENE: Yes, but I don't know if it's

everyone, but we asked for all the witnesses and they

provided us with about an inch thick of what appears to

be all --

THE COURT: Anyone they anticipate

reasonably being called.

MS. KEENE: Yeah, they just said they have,

and we have that.

MR. ROUSSEAU: With the exception of peace

officers.

MS. KEENE: Correct.

THE COURT: And, in all fairness, I

authorized that to comply with NCIC/TCIC. I verbally

authorized that a long time ago.

MS. KEENE: Correct.

THE COURT: And you understand, since we

have a record, that at the conclusion of trial you need

to return that information to the State unless it's

under seal in evidence with the court reporter.

MS. KEENE: I understand.

THE COURT: I know that, but I'm just

letting the FBI and Department of Public Safety know

that, as well.

All right. You may continue.

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MR. ROUSSEAU: No objection to eight, nine

or ten.

THE COURT: Those will be granted, as was

seven, previously.

MR. ROUSSEAU: Yes, sir. No objection to

number 11 except as relates to work product of the

District Attorney's Office.

THE COURT: Eleven is granted as to -- if

work product is something you're going to offer, like

you have someone draw you a diagram or you draw a

diagram to question a witness, if that's something to be

in evidence and offered, then obviously it switches to a

drawing or a chart that's being used for trial, but if

it's just for internal use only, not granted to that.

MS. KEENE: I understand that, Judge. I

wasn't asking for their work product, in any of these --

THE COURT: No, I know.

MS. KEENE: -- if that was interpreted. I

don't want their work product.

THE COURT: In all fairness, some of the

best work product sometimes turns into the best exhibits

because --

MS. KEENE: It does.

THE COURT: -- when you --

MS. KEENE: It does.

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THE COURT: -- interview the witness, you do

a better job of it than maybe the officer who talked to

them for five minutes when you talked to them for 30.

So with that understanding, it's granted.

MR. ROUSSEAU: No objections to 12, 13 or

14.

THE COURT: They'll each be granted.

MR. ROUSSEAU: Fifteen I believe is not

applicable -- well, co-defendants...

THE COURT: Well, there aren't any

co-defendants and the witnesses are covered by a prior

section.

MS. KEENE: Correct. We'll waive 15.

THE COURT: Fifteen is waived.

MR. ROUSSEAU: Number 16, no objection.

THE COURT: It's granted.

MR. ROUSSEAU: And that's the end of that

motion.

Next, Motion for Disclosure of Expert

Witnesses, they're entitled to that and obviously I have

no objection.

THE COURT: That will be granted.

MR. ROUSSEAU: And I have an identical, at

least -- I have the same request filed, also, Your

Honor.

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THE COURT: Then let's just address that at

this time.

MS. KEENE: We'll comply. We don't have any

at this point to disclose, but when we decide if we do

or don't -- once we decide we do, then we will give

those to the State.

THE COURT: All right. And I will just tell

you this. Once you get your new trial date upon

conclusion of the DNA evidence, or the other testing,

whenever you get your trial date, you'll disclose it to

them 30 days before the trial date.

MS. KEENE: That's fine.

THE COURT: Okay. Or, let me say, no later

than 30 days before. You can disclose whenever you see

fit, if you're sure you're going to call someone.

MS. KEENE: Correct.

THE COURT: And that's testifying experts.

MS. KEENE: Correct.

THE COURT: Or they don't get to testify if

you don't, but consulting experts, it's not applicable.

And you may continue, Mr. Rousseau.

MR. ROUSSEAU: Yes, sir.

THE COURT: Next.

MR. ROUSSEAU: Motion in limine is the next

one, Defendant's statements. I believe you ruled on

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STATE v. THOMAS OLIVAS 39

these yesterday, Your Honor.

THE COURT: Hold on two seconds.

MS. KEENE: Judge, I had one, Motion to

Conduct Voir Dire Examination of State's Expert

Witnesses. Should be right after Expert Disclosure.

MR. ROUSSEAU: Yeah. Yes, I apologize.

THE COURT: That's okay.

MR. ROUSSEAU: I skipped over that one.

THE COURT: Well, in all fairness, mine

aren't in the order you've been calling them. I'm

having to surf so -- they're jumbled, so it doesn't

matter.

MR. ROUSSEAU: I believe she's entitled to

it without an order.

THE COURT: All right. Defendant's 39.14

motion is granted. You want 705 hearings or at least...

MS. KEENE: At least ask if we do, I guess,

Judge.

THE COURT: Yeah, I mean -- off the record.

(Discussion off the record)

THE COURT: On the record.

All right. As far as the 705 hearing, as we

approach the trial date, the State will let the Defense

know which of their many potential experts they're

likely to call in their case-in-chief and we'll have an

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STATE v. THOMAS OLIVAS 40

organizational heads-up on who probably will need a 705

hearing or not. I'll let y'all informally discuss it.

But if in doubt, I just don't want the jury

sucker-punched with not being able to take breaks when

we can schedule 705 hearings around it to keep it

convenient for them.

MR. ROUSSEAU: As long as -- I would request

that apply to both sides.

THE COURT: Yes. That would -- you reserve

the right to request a 705 hearing, as well.

MR. ROUSSEAU: Thank you.

THE COURT: So anyone that's going to call

an expert or elicit potentially what under the law we

would call expert testimony, even if they would

otherwise be a lay witness, advise the Court and

opposing counsel there could be a legal right to request

a 705 hearing and we have it addressed.

MS. KEENE: That's correct.

THE COURT: All right.

MR. ROUSSEAU: Motion in limine?

MS. KEENE: Judge, our first motion in

limine is Defendant's statements. You ruled on those

yesterday. I would not include those in the motion in

limine at this time based on the Court's rulings, but if

there were any other statements made by Thomas Olivas

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 41

that we didn't cover yesterday, I guess I would still

ask for that to be within the motion in limine.

THE COURT: Not be elicited unless...

MS. KEENE: Without having a hearing. I

think we covered them all yesterday but --

MR. ROUSSEAU: Anything I can think of right

now, Your Honor, is going to be statements he's made to

non-law enforcement personnel.

THE COURT: Here's my position. Anything

that under the most liberal or conservative

interpretation might evoke 38.22 issues, if we haven't

already addressed it, bring it up outside the jury's

presence. If it's to third parties who are not obvious

direct agents of the State and bound by Miranda-type

considerations, then the limine does not apply to

conversations with other individuals.

MS. KEENE: And it specifically says law

enforcement.

THE COURT: Yeah, I see that.

MR. ROUSSEAU: Okay.

THE COURT: And if they are an agent of law

enforcement, if the cop sent someone to go --

MS. KEENE: Exactly.

THE COURT: Yeah, so I -- I'm just making

that clear.

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STATE v. THOMAS OLIVAS 42

MS. KEENE: I like that, Judge, thank you.

THE COURT: All right. Motion in Limine,

Convictions and Extraneous Bad Acts.

MS. KEENE: They've given us -- and I think

the next motion, or incoming, is notice of extraneous

offenses. They've given a list of I'd say 20ish --

THE COURT: It's filed.

MS. KEENE: -- extraneous offenses. I would

say those would be the ones I'm talking about. I know

of no others, and they obviously have not given me

notice of any others. So it would be really any of

those, that conduct, I would like a motion in limine on

prior to it being offered into evidence.

THE COURT: For purposes of the

guilt/innocence phase, if it's not part of the same

transaction/contextual evidence of an alleged murder and

arson, then it's granted.

MS. KEENE: Oh, yeah, yeah, yeah,

absolutely.

THE COURT: If there were to be a punishment

phase where there would be sentencing options for the

jury --

MS. KEENE: Not.

THE COURT: -- then 37.07 issues, the limine

wouldn't apply.

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STATE v. THOMAS OLIVAS 43

MS. KEENE: Absolutely.

THE COURT: They could follow the punishment

rules without previewing their punishment case for the

Court.

MS. KEENE: I agree with that, Judge.

THE COURT: All right. Then within that

context, the motion is granted.

MS. KEENE: And then, Judge, I can actually

address the next one. We addressed the two motions to

suppress. So the final motion we have is Motion to

Inspect, Examine and Test Physical Evidence.

The prosecutors -- both prosecutors and then

the Defense team have already met with Detective

Stewart, the crime scene officers. We've already looked

at all of the evidence. We did that prior to -- I filed

the motion, but we did it prior to -- I think it was

actually in December. At that point we did not have any

desire to test any evidence, based on what we saw, based

on everything that we've seen in the reports. Of

course, I don't know what's about to happen with the

evidence that's being taken to test. So, basically,

this has been complied with. We don't need any rulings

on this except I don't want to waive it because I don't

know what's going to happen with the new evidence that's

being tested.

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STATE v. THOMAS OLIVAS 44

THE COURT: Well, let me just say this. All

evidence that at this time you're aware will be offered,

that any testing has been done, you received the

reports, you have information, you don't need anything

new, and based upon the stuff that Pat Eddings did not

look at that we do not know if it's simply hair or hair

with DNA potential, based on the outcome of that

testing, you may or may not want to have independent

testing.

MS. KEENE: Exactly. Perfectly stated.

THE COURT: All right. And that's the only

thing we know of that hasn't been addressed informally

and professionally by the parties throughout their

investigation.

MS. KEENE: That's all we know about, Judge.

THE COURT: All right. Then the motion has

been complied with voluntarily up to date and you can

inspect and review the other evidence when it's back

just as you've done everything else, and if you want

something else, I will assume -- if there's no motion

requesting funds to test or retest, I will assume you're

satisfied.

MS. KEENE: We are, Judge.

THE COURT: I mean with the new stuff, as

well.

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 45

MS. KEENE: Yes, yes, yes, yes.

THE COURT: All right. If you don't file

anything new for a retest or additional tests, then I

will assume you're satisfied with what you have as you

are to date.

MS. KEENE: Yes, sir.

THE COURT: All right. Any other motions

the Defense needs a record of at this time?

MS. KEENE: None, Judge.

THE COURT: Any motions or anything the

State needs a record of at this time, since we've

already covered your notice of expert issue?

MR. ROUSSEAU: I don't think I have anything

else, Your Honor. I may have a motion in limine as we

get to closer to trial, but nothing that can't be

handled right then.

THE COURT: All right. Off the record.

(Discussion off the record)

THE COURT: Then we'll be in recess pending

an update on the trace evidence analysis or potential

for further analysis, which I hope we will get sooner

instead of later. And we're in recess.

(Pretrial Hearing concluded at 11:15 a.m.)

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STATE v. THOMAS OLIVAS 46

COURT REPORTER'S CERTIFICATE

THE STATE OF TEXAS )

COUNTY OF TARRANT )

I, Karen B. Martinez, Official Court Reporter in and

for the 372nd District Court of Tarrant County, State of

Texas, do hereby certify that the above and foregoing

contains a true and correct transcription of all

portions of evidence and other proceedings requested in

writing by counsel for the parties to be included in

this volume of the Reporter's Record, in the

above-styled and numbered cause, all of which occurred

in open court or in chambers and were reported by me.

I further certify that this Reporter's Record of the

proceedings truly and correctly reflects the exhibits,

if any, admitted by the respective parties.

I further certify that the total cost for the

preparation of this Reporter's Record is located at the

end of Volume 21.

WITNESS MY OFFICIAL HAND this the 30th day of March,

2015.

/s/ Karen B. Martinez 

Karen B. Martinez, Texas CSR 6735

Expiration Date: 12/31/2015

Official Court Reporter

372nd District Court

Tarrant County, Texas

(817)884-2996

kbmartinez@tarrantcounty.com

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