IN THE COURT OF APPEALS

FOR THE SECOND COURT OF APPEALS DISTRICT

FORT WORTH, TEXAS

THOMAS OLIVAS, § 

APPELLANT § 

§ 

VS. § NO: 02-14-00412-CR

§ 

THE STATE OF TEXAS, § 

APPELLEE § 

AN APPEAL FROM CONVICTION AND SENTENCE

IN CAUSE NUMBER 1376698R

IN THE 372ND DISTRICT COURT, OF

TARRANT COUNTY, TEXAS

CAPITAL MURDER

APPELLANT’S BRIEF

WES BALL

State Bar No. 01643100

4025 Woodland Park Blvd., Suite 100

Arlington, Texas 76013

Email: WBnotices@ballhase.com

Tel: (817) 860-5000

Fax: (817) 860-6645

ATTORNEY FOR APPELLANT

Oral Argument is Requested

ACCEPTED

02-14-00412-CR

SECOND COURT OF APPEALS

FORT WORTH, TEXAS

9/2/2015 5:22:25 PM

DEBRA SPISAK

CLERK

 RECEIVED IN 2nd COURT OF APPEALS FORT WORTH, TEXAS 9/2/2015 5:22:25 PM DEBRA SPISAK Clerk

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i

IN THE COURT OF APPEALS

FOR THE SECOND COURT OF APPEALS DISTRICT

FORT WORTH, TEXAS

THOMAS OLIVAS, §

APPELLANT §

§

VS. § NO: 02-14-00412-CR

§

THE STATE OF TEXAS, §

APPELLEE §

AN APPEAL FROM CONVICTION AND SENTENCE

IN CAUSE NUMBER 1376698R

IN THE 372ND DISTRICT COURT, OF

TARRANT COUNTY, TEXAS

BRIEF OF APPELLANT

TO THE HONORABLE JUDGES OF THE COURT OF APPEALS:

COMES NOW THOMAS OLIVAS, Appellant and files his appeal from 

conviction and sentence in cause number 1376698R out of the 372ND District Court 

of Tarrant County, Texas.

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LIST OF INTERESTED PARTIES

Pursuant to the Texas Rules of Appellate Procedure, Rule 38.1(a), Appellant 

lists the following persons who have an interest in the appeal for the purpose of the 

Court’s determining conflicts and recusals:

JUDGES: APPELLANT:

Hon. Scott Wisch Thomas Olivas

372nd District Court TDCJ # 01957504

401 W. Belknap St. Allred Unit

2101 FM 369 N

Iowa Park, TX 76367

TRIAL COUNSEL:

Hon. R. Kevin Rousseau Hon. Tim Moore

Hon. Tamla S. Ray Attorney for Defendant

Assistant District Attorney 115 W. Second St., Ste. 202

401 W. Belknap St. Fort Worth, Texas 76102

Fort Worth, Texas 76196

Hon. Joetta Keene

Attorney for Defendant

204 S. Mesquite Street

Arlington, TX 76010

APPELLATE COUNSEL:

Hon. Sharen Wilson, District Attorney Wes Ball

Hon. Debra Windsor, Counsel for Appellant

Assistant District Attorney & Chief 4025 Woodland Park Blvd. 

of the Post-Conviction Division Suite 100

401 W. Belknap St. Arlington, Texas 76013

Fort Worth, Texas 76196

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STATEMENT REGARDING ORAL ARGUMENT

Appellant DOES request oral argument. The issues in this case are 

sufficiently complex that the Court will benefit from oral argument.

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TABLE OF CONTENTS

LIST OF INTERESTED PARTIES ......................................................................... ii

TABLE OF AUTHORITIES ................................................................................v, vi

STATEMENT OF THE CASE..................................................................................1

SUMMARY OF THE ARGUMENTS......................................................................1

POINT OF ERROR NUMBER ONE

 (Legal insufficiency of evidence) .........................................................................8

POINT OF ERROR NUMBER TWO

 (Erroneous admission of cellular phone location records) .................................14

POINT OF ERROR NUMBER THREE

 (Erroneous admission of extraneous conduct evidence) ...................................21

PRAYER..................................................................................................................22

CERTIFICATE OF SERVICE ................................................................................23

CERTIFICATE OF COMPLIANCE.......................................................................24

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TABLE OF AUTHORITIES

CASES

Barfield v. State, 416 S.W.3d 743 (Tex. App. – Houston [14th] 2013)...................20

Brooks v. State, 323 S.W.3d 893, 896 (Tex. Crim. App. 2010)..............................11

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).............................11

Commonwealth v. Augustine, 4 N.E.3d 846, 854 (Mass. 2014)...................... 18, 19

Graham v. State, 566 S.W.2d 941 (Tex. Crim. App. 1978) ............................. 13, 18

In re Application of the U.S. for an Order Pursuant to 18 U.S.C. § 2703(d), 707 

F.3d 283, 287 (4th Cir. 2013)................................................................................16

In re Application of the United States for Historical Cell Site Data, 724 F.3d 600 

(5th Cir. 2013) .......................................................................................................20

In re Application of U.S. for an Order Authorizing Disclosure of Location Info. of 

a Specified Wireless Tel., 849 F. Supp.2d 113, 120 (E.D.N.Y. 2011) ................18

In re Application of U.S. for an Order Authorizing Disclosure of Location Info. of 

a Specified Wireless Tel., 849 F.Supp.2d 526, 539 (Dist. Ct. Md. 2011) ...........19

In re Application of U.S. for an Order Authorizing the Release of Historical CellCite Info., 809 F.Supp2d 113, 120 (E.D.N.Y 2011) ............................................19

Jackson v. Virginia, 443 U.S. 307, 319 (1979)........................................................10

Katz v. United States, 389 U.S. 347, 360 (1967).....................................................18

Kyllo v. United States, 533 U.S. 27, 31-33 (2001)..................................................18

Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1990) ....................22

Richardson v. State, 865 S.W.2d 944, 948 (Tex. Crim. App. 1993).......................17

Russell v. State, 113 S.W.3d 530 (Tex. App. – Fort Worth 2003) pdr. ref’d..........22

State v. Earls, 70 A.3d 630 (New Jersey Sup. Ct. 2013).........................................17

Stobaugh v. State, 421 S.W.3d 787, 862 (Tex. App. – Fort Worth 2014)

 pet. ref’d..............................................................................................................14

Temple v. State, 390 S.W.3d 341, 359 (Tex. Crim. App. 2013).............................14

Tracey v. State, 152 So.3d 504, 526 (Fla. 2014) .....................................................19

United States v. Graham, 2015 WL 4637931 (4th Cir. Aug. 5, 2015).............. 18, 20

United States v. Jones, 565 U.S. ____, 132 S.Ct. 945 (2012).......................... 18, 19

United States v. Miller, 425 U.S. 435, 442 (1976)..................................................20

Winfrey v. State, 323 S.W.3d 875, 882 (Tex. Crim. App. 2010)............................14

Winfrey v. State, 393 S.W.3d 763, 771 (Tex. Crim. App. 2013)............................14

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Table Of Authorities (continued)

OTHER AUTHORITIES

Renee McDonald Hutchins, Tied Up in Knotts? GPS Technology and the Fourth 

Amendment, 55 UCLA L.Rev. 409, 455 (2007)...................................................19

Texas Code of Criminal Procedure, Article 18.21...................................................15

Texas Code of Criminal Procedure, Article 38.23.............................. 1, 2, 14, 15, 21

Texas Constitution, Article 1, Section 9 ....................................... 1, 2, 14, 15, 17, 21

Texas Rules of Appellate Procedure, Rule 9.4(i)(3)................................................24

Texas Rules of Appellate Procedure, Rule 38.1(a)................................................... ii

Texas Rules of Criminal Evidence 401 ...................................................................21

Texas Rules of Criminal Evidence, Rule 403..........................................................21

18 U.S.C. § 2703(d).......................................................................................... 15, 16

United States Constitution, 4th Amendment............................ 1, 2, 14, 15, 17, 18, 21

United States Constitution, 6th Amendment ............................................................17

United States Constitution, 14th Amendment .................................... 1, 2, 14, 15, 21

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STATEMENT OF THE CASE

Appellant entered a plea of not guilty to an indictment (CR. I, 6,7; RR. VI, 

32) alleging the felony offense of capital murder. Following his plea of not guilty, 

trial proceeded before a jury (RR. VI – XIX). Following the presentation of 

evidence and argument, the jury returned its verdict of guilty of the offense of 

capital murder. (CR. I, sealed; RR. XX, 79). The State having waived a sentence 

of death by lethal injection (RR. VI, 160), upon a finding of guilt, Appellant was 

sentenced to confinement in the Institutional Division of the Texas Department of 

Criminal Justice for life without the possibility of parole. (CR.I, 183-184; RR. XX, 

82). Appellant timely files this his brief complaining of error in the trial below for 

which he appeals.1

SUMMARY OF ARGUMENT

Appellant argues in his brief that the evidence to support a finding of guilt 

for the offense of capital murder is legally insufficient. Appellant further argues 

that the manner in which certain phone records were obtained by the State violated 

his rights to be free from unlawful search and seizure pursuant to the 4th and 14th

Amendments of the United States Constitution, Article 1, Section 9 of the Texas 

Constitution and Article 38.23 Texas Code of Criminal Procedure. The trial court 

 1 Appellant’s brief was due on August 31, 2015. Due to the complexity of the issues and 

the voluminous size of the trial record, undersigned counsel is filing Appellant’s brief two (2) 

days late. Contemporaneous with the filing of his brief, Appellant is filing a Motion for 

Extension of Time for the two days.

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erred in denying Appellant’s Motion to Suppress Evidence. The trial court erred in 

permitting a substitute forensic pathologist to testify concerning findings from an 

autopsy not performed by the witness substitute pathologist. The trial court erred 

in limiting cross examination of the lead detective concerning the quality of his 

investigation by prohibiting evidence concerning an alternative suspect when such 

evidence was not offered for the truth of the matters asserted. The trial court erred 

in permitting admission of extraneous conduct evidence concerning a request to 

purchase a weapon that was not relevant, whose probative value was outweighed 

by the prejudicial effect of such evidence. 

ISSUES PRESENTED

POINT OF ERROR NUMBER ONE:

THE EVIDENCE WAS LEGALLY INSUFFICIENT 

TO SUPPORT A FINDING OF GUILT

POINT OF ERROR NUMBER TWO:

THE TRIAL COURT ERRED IN PERMITTING

ADMISSION OF PHONE RECORDS OBTAINED IN

VIOLATION OF DEFENDANT’S RIGHTS TO BE FREE FROM 

UNREASONABLE SEARCH AND SEIZURE AS PROVIDED IN 

THE 4TH AND 14TH AMENDMENTS OF THE UNITED STATES 

CONSTITUTION, ARTICLE 1 SECTION 9 OF THE TEXAS

CONSTITUTION AND ARTICLE 38.23 TEXAS CODE OF

CRIMINAL PROCEDURE

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POINT OF ERROR NUMBER THREE:

THE TRIAL COURT ERRED IN ALLOWING ADMISSION OF 

EXTRANEOUS CONDUCT EVIDENCE THAT WAS 

IRRELEVANT AND WHOSE PROBATIVE VALUE

WAS SUBSTANTIALLY OUTWEIGHED BY ITS

PREJUDICIAL EFFECT

STATEMENT OF FACTS

On March 20, 2011 Arlington Texas Fire Department was dispatched to an 

apartment fire at 10:10 p.m. (RR. VII, 53, 57). Paul Isaac Lopez who was a 

resident of the apartment complex made the 911 emergency call. Mr. Lopez knew 

the resident of the apartment that died in the fire, Mechelle Gandy and her little 

boy Asher Olivas. (RR. VII, 78). Mr. Lopez described seeing a person in a nearby 

breezeway around 9 to 10 pm. Mr. Lopez could not tell if the person was male or 

female or their race or ethnicity. This person may or may not have been associated 

with the fire. Mr. Lopez saw no one else enter or leave the victims’ apartment. 

(RR. VII, 91-93). Mr. Lopez observed the fire department removing Mechelle

Gandy’s body from the apartment and doing CPR on her. (RR. VII, 102). It was 

determined that Mechelle Gandy was deceased and had stab wounds on her body. 

(RR. VII, 263-264). Mechelle Gandy was the mother of Asher Olivas. (RR. VII, 

217). Appellant was reported to be the possible father of Asher Olivas. (RR. VII, 

221). 

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Fire Marshal Stephen Lea assisted in the investigation of the fire and 

discovered the remains of Asher Olivas, a child badly burned inside the apartment. 

Investigator Lea determined that the child’s room was the point of origin of the 

fire. (RR. XII, 9-13, 28, 48). Investigator Lea assisted in processing a vehicle that 

was driven by Appellant and in doing so “smelled” gasoline in the vehicle. Lea 

secured a carpet sample for analysis. The sample was analyzed and the results 

were negative for gasoline. (RR. XII, 64-67, 95, 128-129). Appellant had 

borrowed the vehicle from Amanda Rowe and on the evening of March 20, 2011 

had called her about when he was to return the vehicle. At the time he called her, 

he apologized for the car smelling of gasoline describing that he had moved a lawn 

mower and spilled the gas. (RR, X, 69, 73). Appellant advised Ms. Rowe in a 

later conversation that at the time of the fire, he had been at a bar in Arlington 

playing a video game called Golden Tee. He also said that the woman that was 

killed claimed he was the father of her son, but that he did not believe that he was. 

(RR. X, 86, 87). It was later determined that Appellant was likely the father of 

Asher Olivas. (RR, XVIII, 6-8, SX 303).

Law enforcement officers encountered Appellant the following day as he 

arrived at his apartment from his job at Best Buy. Appellant agreed to accompany 

officers to a local police department for an interview. (RR. X, 182-183, 189). 

Officer Shinpaugh searched Appellant’s apartment and found no incriminating 

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evidence. (RR. X, 191). Appellant cooperated by providing his consent to search 

his apartment and vehicle. (RR. X, 230). Appellant also consented to providing a 

DNA buccal swab, a search of his cellphone, and a consent to take photographs of 

his clothing and body. (RR. XII, 212-215). 

A trace analyst recovered material from Mechelle Gandy’s body including 

foreign hairs. (RR. XIII, 62-63). These hairs were analyzed and compared to 

samples from Appellant and Mechelle Gandy. Hair was determined to be of 

foreign origin and inconsistent with the hair of Appellant and Ms. Gandy. (RR. 

XVIII, 27). Lead Detective Byron Stewart testified that there were three hairs on 

Mechelle Gandy’s body that were not hers. (RR. XV, 86-88).

An autopsy was performed by Shiping Bao a Deputy Medical Examiner for 

Tarrant County. Dr. Bao was not called as a witness. Nizam Peerwani, M.D., the 

Chief Medical Examiner for Tarrant County testified concerning the cause of death 

of Mechelle Gandy and Asher Olivas. Dr. Peerwani based his opinions on the 

work of Dr. Bao, photographs created at the time of the autopsy and other forensic 

testing. It was Dr. Peerwani’s opinion that Mechelle Gandy died by being stabbed 

and was deceased at the time of the fire based on an absence of carbon monoxide 

in her blood and no soot in her tracheal and bronchial tree. (RR. XIV, 8-13, 19-

20). Dr. Peerwani’s opinion concerning the cause of death of Asher Olivas was 

that there was no soot in his trachea or bronchia and no carbon monoxide in his 

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blood, but due to the severity of the burn damage to the body he could not be 

certain about the mechanism of death. He did rule Asher’s death as a homicide. 

(RR. XIV, 20). 

Recorded interviews of Appellant were admitted and published to the jury. 

During these interviews Appellant denied involvement in the fire and deaths of 

Mechelle Gandy and Asher Olivas. Appellant told detectives that he was supposed 

to go see Mechelle Gandy the previous evening, but did not do so. Appellant said 

he had intimate encounters with Mechelle Gandy and she became pregnant. 

Mechelle Gandy had been served with papers regarding child support. (RR. XIV, 

152, 154; SX 5 & 6).

The last person known to speak with Mechelle Gandy before her death was a 

babysitter, Lana Murphy who spoke with Ms. Gandy by phone on the night of 

March 20, 2011 at 9:02pm. During the conversation it was apparent to Ms. 

Murphy that no one else was present at Ms. Gandy’s home nor was anyone 

expected. (RR, XVI, 85-95). Miles Thayer who served with Appellant in the Air 

Force Reserve said that Appellant told him he was a suspect in a murder case and 

that at the time of the murder he was at home doing laundry. (RR. XVI, 130-134). 

Law enforcement examined various electronic devices in a search for 

evidence. After Appellant consented to a search of his IPhone, Detective Weber 

attempted to download the phone with forensic software which download kept 

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failing. Detective Weber resorted to examining the IPhone without forensic 

software and instead of retaining the IPhone, it was returned to Appellant 

following Appellant’s interview. (RR. XVI, 186-193). 

FBI agent Sedwick assisted in analyzing cellphone records belonging to 

Appellant and Mechelle Gandy. Agent Sedwick also analyzed cell site location 

information (CSLI) to attempt to determine Appellant’s location at various times 

near the time of the offense. Agent Sedwick’s testimony concerning the locations 

of Appellant’s phone was based on phone records obtained from AT&T pursuant 

to a court order and not based on a probable cause search warrant. (CR. I, 116-

130). Agent Sedwick was able to determine that Appellant’s IPhone was in the 

vicinity of the fire scene at times near the time of the fire. However, Agent 

Sedwick conceded that he could not say that Appellant or his phone were ever at 

Mechelle Gandy’s apartment the scene of the fire and murders. (RR. XVII, 92-93, 

142, SX 297).

The Texas Attorney General’s Office filed a paternity lawsuit. The lawsuit 

was determined not to have been served on Appellant as the Constable’s office 

made three failed attempts at service. As a result, there was never any hearing 

scheduled for this lawsuit, nor any orders for Appellant to provide his DNA sample 

to determine paternity. (RR. XVIII, 29-31). Defense investigator Paula Greene 

testified that there was a longstanding pool hall called Rack Daddy’s in an area 

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where Appellant described being at a time near the time of the fire. This location 

was consistent with the CSLI information obtained from AT&T records. (RR. 

XVIII, 42).

Appellant had been in a volatile relationship with Rebecca Raudry and they 

had a child together. (RR,XI,. 20). Appellant denied to Ms. Raudry having a 

relationship with Mechelle Gandy or that Asher was his child. Rebecca became 

convinced Appellant lied about the relationship when she was sent a photograph of 

Appellant’s genitals by Mechelle Gandy. (RR. X, 32-38, 52).

POINT OF ERROR NUMBER ONE:

THE EVIDENCE WAS LEGALLY INSUFFICIENT 

TO SUPPORT A FINDING OF GUILT

Facts:

Supplementing as well as summarizing the above-referenced “Statement of 

Facts” the following list of evidence presented at trial should assist in analyzing 

this sufficiency of the evidence issue.

State’s proffered evidence inferring guilt:

Appellant lied about possibly fathering Asher with Mechelle Gandy 

(RR. X, 87; XI, 32; XI, 209).

Appellant lied to Rebecca about relationship with Mechelle Gandy 

(RR. XI, 52).

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Appellant lied to friends about relationship with Mechelle Gandy (RR. 

XI, 209; XVI, 110-112).

Appellant requested friend to take paternity test for him (RR. XVI, 

77-78).

Appellant lied about his whereabouts (RR. XVI, 133-134).

Appellant lied about his communications with Mechelle Gandy.

Appellant lied about not having a car in a text to Mechelle Gandy

(XVII, 133).

Appellant lied about having eczema (RR. XI, 25-27, 220-221, XIII, 

137; XIV 91-92; XVI, 105-106).

Appellant had scratches on his body (RR. XIV, 92, SX 222, 223, 229, 

230).

Appellant’s vehicle smelled of gasoline (RR. XII, 65).

Evidence inferring lack of guilt:

No murder weapon found (Mechelle Gandy was stabbed).

No evidence supporting theory that Appellant was ordered to give 

DNA sample. (RR. XIX, 29-31).

Forensic testing was negative for gasoline in Appellant’s vehicle.

(RR. XII, 129).

Forensic expert says not to go by smell regarding gasoline (RR. XII, 

130).

No evidence Appellant knew where Mechelle Gandy lived (RR. XVII, 

131).

Affirmative evidence from the victim, that Appellant didn’t know 

where she lived. (RR. XVII, 131)

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No evidence Appellant was ever at Mechelle Gandy’s apartment 

FBI phone forensic analyst cannot say Appellant’s phone was ever at 

Mechelle Gandy’s apartment. (RR. XVII, 142).

No fingerprints or DNA placing Appellant at the scene. (RR. XIII, 

126, 133-135; XV, 31-32, 35; XIX, 54-138).

No victim evidence in Appellant’s vehicle including blood that would 

place Appellant at scene.

No evidence at Appellant’s apartment connecting him with offense. 

(RR. VI, 170-177).

Appellant denied offense to police investigators. (RR. XIV, 155-156; 

SX 5 & 6).

Appellant cooperated and consented to searches to assist investigators.

(RR. XII, 206, 209-215).

Police searched all area gas stations and found no evidence of 

Appellant buying gasoline. (RR. XV, 69-70)

Foreign hairs on the body of Mechelle Gandy (RR. XVIII, 27).

No DNA material from victim’s body connecting Appellant to offense 

e.g. fingernails. (RR. XIII, 96; XVIII, 8283).

Argument and authorities:

Appellant urges that the evidence is legally insufficient to support the jury’s 

guilty verdict. In reviewing legal sufficiency of the evidence, the Court must 

examine all the evidence in the light most favorable to the verdict to determine 

whether the jury could rationally find the essential elements of capital murder 

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks 

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v. State, 323 S.W.3d 893, 896 (Tex. Crim. App. 2010). In a sufficiency review, 

circumstantial evidence is just as probative as direct evidence, and circumstantial 

evidence, standing alone can be sufficient to establish guilt. Clayton v. State, 235 

S.W.3d 772, 778 (Tex. Crim. App. 2007).

In the instant case, there was no physical evidence to connect Appellant to 

the murder or the murder scene. Unlike the facts in Clayton Id. there were no 

fingerprints. There was no DNA either at the murder scene that belonged to 

Appellant, nor from the murder scene in Appellant’s vehicle or his person. 

Notably there was no blood from the victim found in the vehicle Appellant was 

driving despite substantial bleeding by the victim at the crime scene. There was no 

eyewitness that could provide a description of the actor other than testimony that a 

person was in the area that was an extremely generic description as a human being 

of unknown gender, race or other description. No weapon associated with the 

offense was connected to Appellant. While there was evidence that the fire was 

started with an accelerant, namely gasoline, the State’s forensic examination failed 

to support that there was gasoline in Appellant’s vehicle. Law enforcement agents 

described “smelling” gasoline in the subject vehicle. The forensic fire evidence 

expert testified that using smell is not a “reliable source.” The expert went on to 

say that “the hydrocarbon that you are actually smelling is not gasoline, just 

something that smells similar to gasoline.” (RR. XII, 129-130).

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A fact tending toward the State’s case is the fact that Appellant had a 

number of scratches on his body shortly after the murders. Appellant explained

these scratches as the consequence of his suffering from eczema. These statements 

about the scratches coming from his eczema established to be false through the 

testimony of several friends and acquaintances. These facts should also be 

considered with the forensic examination of victim Mechelle Gandy whose 

fingernails were examined for the presence of DNA. Had Mechelle Gandy 

engaged in defensive actions in scratching her attacker it could well be expected 

that the assailant’s DNA would be left under her nails. No such evidence was 

recovered. Additionally, words from the victim Mechelle Gandy’s text to 

Appellant affirmatively demonstrated that Appellant did not know the address 

where the victim lived. (RR. XVII, 131). 

What remains is a possible motive and a series of false statements by 

Appellant. The State’s theory of motive was that Appellant feared that he would 

be determined to be the biological father of the child Asher and would thus be 

responsible for child support for the child. The State’s theory was that Appellant 

was ordered to submit to a DNA paternity test where this determination would be 

made. Fearing the outcome of this ordered test, Appellant was motivated to kill 

Asher and his mother Mechelle and thus committed the instant offense. 

Contradicting this theory was evidence that Appellant was never served with the 

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underlying lawsuit for paternity that was filed by the Attorney General of Texas 

and the fact that no order or directive from the Court was scheduled or issued for

him to submit to a DNA paternity test. In Appellant’s interviews with detectives, 

he readily admitted his likely parentage of Asher and appears unconcerned about 

the potential determination that he is the father. (SX 5 and 6).

While efforts at deceit and concealment are frequently indications of guilt in 

the context of the insanity defense e.g. Graham v. State, 566 S.W.2d 941 (Tex. 

Crim. App. 1978), they should not replace substantive evidence demonstrating 

guilt. Efforts at concealment in the insanity defense context show a recognition of 

the wrongfulness of a defendant’s acts directly contradicting one of the essential 

elements of the insanity defense. Deceit here may provide suspicion, but it does 

nothing to place Appellant at the scene of the offense or committing any of the acts 

that caused the death of the victims beyond that suspicion and speculation. Many 

of Appellant’s false statements were to third parties denying paternity or the 

existence of an intimate relationship and had nothing to do with the circumstances 

surrounding the offense. While “some” inference may be warranted regarding 

false statements, the cumulative total of these inferences does not replace the 

complete absence of affirmative evidence establishing Appellant’s guilt. The 

cumulative total of the inferences that can be drawn from the false statements rises 

no higher than to create a suspicion. While juries are permitted to draw multiple 

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reasonable inferences as long as each inference is supported by evidence at trial, 

juries are not permitted to come to conclusions based on mere speculation or 

factually unsupported inferences or presumptions. Winfrey v. State, 393 S.W.3d 

763, 771 (Tex. Crim. App. 2013). If the evidence presented at trial raises “only a 

suspicion of guilt, even a strong one, then that evidence is insufficient [to 

convict].” Winfrey v. State, 323 S.W.3d 875, 882 (Tex. Crim. App. 2010). In a 

circumstantial case it is unnecessary for every fact to point directly and 

independently to a defendant’s guilt; it is enough if the finding is warranted by the 

cumulative force of all of the incriminating circumstances. Temple v. State, 390 

S.W.3d 341, 359 (Tex. Crim. App. 2013); Stobaugh v. State, 421 S.W.3d 787, 862 

(Tex. App. – Fort Worth 2014) pet. ref’d. The cumulative force of all the 

circumstances in this case fail to support the jury’s verdict. The conviction should 

be reversed and a judgment of acquittal ordered.

POINT OF ERROR NUMBER TWO:

THE TRIAL COURT ERRED IN PERMITTING

ADMISSION OF PHONE RECORDS OBTAINED IN

VIOLATION OF DEFENDANT’S RIGHTS TO BE FREE FROM 

UNREASONABLE SEARCH AND SEIZURE AS PROVIDED IN 

THE 4TH AND 14TH AMENDMENTS OF THE UNITED STATES 

CONSTITUTION, ARTICLE 1 SECTION 9 OF THE TEXAS

CONSTITUTION AND ARTICLE 38.23 TEXAS CODE OF

CRIMINAL PROCEDURE

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Argument and Authorities:

Appellant at trial filed a First Amended Motion to Suppress Evidence (CR. I, 

113-130). The motion was heard in a pretrial hearing. (RR. 4-29). The motion 

centered on orders issued by two Tarrant County District Courts directed to AT&T 

to provide the State with records pertaining to Appellant’s cellular telephone. The 

records requested and of which Appellant complained were the records of AT&T 

that would include cellular tower locations, maps and other data that would 

disclose the location of Appellant’s cellular telephone at various times (CSLI or 

cell site location information). In one of the Court orders, the request was for a 

time period from March 1, 2011 through March 22, 2011. (CR. I, 128-129). The 

orders that were issued were the result of Applications filed by the State pursuant 

to 18 U.S.C. § 2703(d) and Texas Code of Criminal Procedure 18.21. (CR. I, 116-

119, 123-127). It should be noted that none of the applications or orders pertained 

to the contents of any cellular phone communications.

Appellant urges as he did in the trial court that the Court orders to AT&T to 

provide these records was in violation of his rights to be secure from unreasonable 

search and seizure under the 4th and 14th Amendments of the United States 

Constitution, Article 1, Section 9 of the Texas Constitution and Article 38.23 

Texas Code of Criminal Procedure. Appellant argues that he had a reasonable 

expectation of privacy in the cellular phone location data and that this expectation 

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of privacy required the State to seek such information on the basis of a search 

warrant premised on probable cause or qualify for an exception to the warrant 

requirement.

18 U.S.C. § 2703(d) provides:

A court order for disclosure under subsection (b) or (c) may be issued 

by any court that is a court of competent jurisdiction and shall issue 

only if the government entity offers specific and articulable facts 

showing that there are reasonable grounds to believe that the contents 

of a wire or electronic communication, or the records or other 

information sought, are relevant and material to an ongoing criminal 

investigation.

This standard is less than that required for a search warrant and has been 

described as “essentially a reasonable suspicion standard.” In re Application of the 

U.S. for an Order Pursuant to 18 U.S.C. § 2703(d), 707 F.3d 283, 287 (4th Cir. 

2013).

The trial Court after hearing argument of counsel denied Appellant’s motion 

and gave Appellant a running objection to this evidence. (RR. III, 23-28). The 

State made use of this location evidence during trial to establish with testimony 

and maps Appellant’s locations during times on the day of the offense. This 

evidence while not placing Appellant at the location of the offense, put Appellant 

in the vicinity of the offense during times near its commission.

The phone records were admitted in evidence and further explained with 

additional exhibits and maps. FBI Special Agent Mark Sedwick presented 

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testimony based on the cellular phone records obtained in the referenced orders. 

At each step of the admission of the evidence and consistent with the granted 

running objection, Appellant renewed his objections which were overruled. (RR. 

XVI, 125-126; SX 295; RR. XVII, 92-94, 126; SX 297; SX 298, 299, 300).

The issue presented is the subject of developing case law. Appellate Courts

throughout the United States have split on whether the orders to produce these 

records is Constitutionally permissible. At trial, Appellant cited State v. Earls, 70 

A.3d 630 (New Jersey Sup. Ct. 2013)2. In Earls the Supreme Court of New Jersey 

held that there is a reasonable expectation of privacy in the location of a person’s 

cell phone and law enforcement is required to obtain a search warrant to obtain 

such location data. Id. at 588. The United States Constitution guarantees “the 

right of the people to be secure in their persons, houses, papers, and effects, against 

unreasonable searches and seizures...” The 6th Amendment of the U.S. 

Constitution. Article 1, Section 9 of the Texas Constitution provides “The people 

shall be secure in their persons, houses, papers and possessions, from all 

unreasonable searches, and no warrant to search any place, or to seize any person 

or thing, shall issue... without probable cause, supported by oath or affirmation.” 

To determine whether a violation of the Fourth Amendment has occurred, cases 

 2 The trial Court noted that the New Jersey Constitution offers greater protection than the 

4th Amendment. Appellant argues that likewise, Article 1, Section 9 of the Texas Constitution

provides greater protection than the 4th Amendment of the United States Constitution. “If 

anything, Article 1, § 9 recognizes that same basic protection, but in terms more imperative.” 

Richardson v. State, 865 S.W.2d 944, 948 (Tex. Crim. App. 1993).

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have focused on whether the government had violated an individual’s reasonable 

expectation of privacy. Kyllo v. United States, 533 U.S. 27, 31-33 (2001), Katz v. 

United States, 389 U.S. 347, 360 (1967).

In United States v. Graham, 2015 WL 4637931 (4th Cir. Aug. 5, 2015)3 the 

Court held that the government’s warrantless procurement of cell phone location 

information recorded by the defendant’s cell phone service provider violated the 4th

Amendment of the United States Constitution as an unreasonable search. Id. at 6. 

The Court went on to say, “We hold that the government conducts a search under 

the Fourth Amendment when it obtains and inspects a cell phone user’s historical 

CSLI for an extended period of time.4

” Id. at 8. The Court in Graham, dispensed 

with the government’s argument that there was no reasonable expectation of 

privacy.

The Supreme Court considered long-term electronic location surveillance in 

United States v. Jones, 565 U.S. ____, 132 S.Ct. 945 (2012). While Jones

concerned a GPS device placed on the defendant’s vehicle over an extended period 

of time, five Justices agreed that “longer term GPS monitoring in investigations of 

most offenses impinges on expectations of privacy. Id. at 955. The privacy 

 3 Case was affirmed based on application of Federal good faith exception. 

4 In Graham one of the government applications sought records for a 221 day time period. 

In In re Application of U.S. for an Order Authorizing Disclosure of Location Info. of a Specified 

Wireless Tel., 849 F. Supp.2d 113, 120 (E.D.N.Y. 2011) the request was for a period of 30 days. 

In Commonwealth v. Augustine, 4 N.E.3d 846, 854 (Mass. 2014) the request was for a two-week 

period. In the instant case in one of the Applications, the request was for a 21 day period. (CR. I, 

128).

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interests affected by long-term GPS monitoring apply with equal or greater force to 

historical CSLI for an extended time period. Commonwealth v. Augustine, 4 N.E. 

3d 846, 861 (Mass. 2014). “Citizens of this country largely expect the freedom to 

move about in relative anonymity without the government keeping an 

individualized, turn-by-turn itinerary of our comings and goings.” Renee 

McDonald Hutchins, Tied Up in Knotts? GPS Technology and the Fourth

Amendment, 55 UCLA L.Rev. 409, 455 (2007).

Inspection of historical CSLI may provide even more private information 

than the GPS device challenged in Jones as the GPS device is limited to the 

movement of an automobile whereas a cell phone seldom leaves it’s owner’s 

presence. Unlike GPS, historical CSLI data can permit the government to track a 

person’s movements between public and private spaces. Other Courts that have 

recognized an expectation of privacy in long-term CSLI include Tracey v. State, 

152 So.3d 504, 526 (Fla. 2014); In re Application of U.S. for an Order 

Authorizing Disclosure of Location Info. of a Specified Wireless Tel., 849 

F.Supp.2d 526, 539 (Dist. Ct. Md. 2011); In re Application of U.S. for an Order 

Authorizing the Release of Historical Cell-Cite Info., 809 F.Supp2d 113, 120 

(E.D.N.Y 2011).

It is often argued in support of the warrantless method of obtaining CSLI 

that since the records are created and maintained by a non-government third party 

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(third-party doctrine) then a person has no expectation of privacy in what amount 

to business records. United States v. Miller, 425 U.S. 435, 442 (1976). The Court 

in Graham said “It is clear to us ... that cell phone users do not voluntarily convey 

their CSLI to their service providers.” The Court found the third-party doctrine 

inapplicable. Id. at 14. The Court said that CSLI information is not voluntarily 

conveyed to the third party and that it is the voluntary conveyance—not the mere 

fact that the information winds up in the hands of a third party’s records that 

demonstrates the assumption of risk of disclosure and thus the lack of any 

reasonable expectation of privacy. Id. at 15. As an example the Court notes that 

when a call is received by the user who does not answer, the location information 

is still generated without any affirmative act by the user. Thus, the user has not 

voluntarily exposed anything at all. 

Appellant argues that cases cited by the State at trial, Barfield v. State, 416 

S.W.3d 743 (Tex. App. – Houston [14th] 2013) and In re Application of the United 

States for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013) were wrongly 

decided. Those cases rely on the third-party doctrine. The United States Supreme 

Court has yet to address this issue which is a by-product of modern technology. 

These two cases cited by the State fail to address the “real” expectation of privacy 

and the involuntary nature of the disclosure as admirably discussed in Graham. 

Appellant urges that the CSLI was obtained in violation of his Constitutional rights 

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under the 4th and 14th Amendments of the United States Constitution, Article 1, 

Section 9 of the Texas Constitution and Article 38.23 Texas Code of Criminal 

Procedure. The admission of these records and the testimony from these records 

that identified Appellant’s locations was harmful and thus reversible error.

POINT OF ERROR NUMBER THREE:

THE TRIAL COURT ERRED IN ALLOWING ADMISSION OF 

EXTRANEOUS CONDUCT EVIDENCE THAT WAS 

IRRELEVANT AND WHOSE PROBATIVE VALUE

WAS SUBSTANTIALLY OUTWEIGHED BY IT 

PREJUDICIAL EFFECT

Argument and Authorities:

The State presented evidence from Appellant’s coworker Ryan Bridges from 

Truluck’s restaurant that Appellant asked him about acquiring a handgun with a 

suppressor. (RR. XVI, 33). According to Mr. Bridges, Appellant advised him that 

he wanted a gun that could not be traced back to him and that he wanted to shoot 

raccoons. The request was made one or two months before the murders. (RR. 

XVI, 34). Appellant objected to this evidence as not relevant to the case, pointing 

out that no firearm or suppressor was used in the offense. The State responded that 

the evidence shows intent to commit murder. Appellant’s objections were based 

on Texas Rules of Criminal Evidence 401 and 403. (RR. XVI, 41)

Appellant urges that admission of this evidence was not only irrelevant and 

not related to any facts in the case, but was highly prejudicial substantially 

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outweighing its nonexistent probative value. Mr. Bridges was known at work to 

have been a firearms instructor and was seeking a Federal firearms dealer’s license 

and would be knowledgeable about firearms. He advised that acquisition of such 

weapons is highly regulated. (RR. XVI, 35). Mr. Bridges said that Appellant never 

told him he wanted a weapon to kill anyone. He further testified that buying such a 

weapon was not illegal if you went through the proper process to do so. (RR. XVI, 

39-40). There was nothing in the conversation about obtaining the weapon that 

made any connection to either victim in the case. The evidence was probative of 

nothing and thus not relevant. 

If extraneous offense evidence is not “relevant” apart from supporting an 

inference of “character conformity,” it is absolutely inadmissible. Montgomery v. 

State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1990). See also Russell v. State, 113 

S.W.3d 530 (Tex. App. – Fort Worth 2003) pdr. ref’d. The evidence suggested

poor character and therefore its erroneous admission was harmful.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant prays that this 

Honorable Court reverse this cause and enter a judgment of acquittal for 

insufficient evidence, or remand the case for a new trial and for such other and 

further relief to which he may be entitled.

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Respectfully submitted,

/s/ Wes Ball

WES BALL

State Bar No. 01643100

4025 Woodland Park Blvd.

Suite 100

Arlington, Texas 76013

Email: WBnotices@ballhase.com

Telephone: (817)860-5000

Fax No.: (817)860-6645

ATTORNEY FOR APPELLANT

CERTIFICATE OF SERVICE

On this the 2nd day of September 2015, a true and correct copy of the above 

and foregoing Appellant=s Brief was delivered by the Efile portal to the PostConviction Division of the Tarrant County District Attorney’s Office and mailed to 

Appellant.

/s/ Wes Ball

WES BALL

Attorney for Appellant

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CERTIFICATE OF COMPLIANCE

In compliance with Rule 9.4(i)(3) of the Texas Rules of Appellate 

Procedure, I certify that the Appellant’s Brief was prepared using Microsoft Word, 

and according to that program’s word count function, the document contains 3,017

words.

/s/ Wes Ball

WES BALL

Attorney for Appellant

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