Affirmed and Memorandum Opinion filed November 4 , 2021

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 19

- 00498

- CR

CHARLES MALCOLM ALYEA , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 184th District Court

Harris County, Texas Trial Cou r t C ause No. 1476015

MEMORANDUM OPINION

A ppellant Cha rles Ma lcolm Alye a appeals his conviction of murder. In one issue he contends that the trial cour t erred in ad mitting expert testimony regarding cell phone tower dat a. We affirm.

R ELIABILITY OF E XP E RT T ESTIMONY
In his sole i ssu e appellant argues that the trial court abused its d iscretio n by allowing a dete ctive to testify as an expert witness about the location of cellular phones based o n “ call detail records that gave the location of the connected t owe r. ”2

A p pellant argues that because the detective could not “ go beyond t he reports provided b y the cellular companies to explain the results they pro vided hi m, the State failed to make a clear and convincing showing that the detective ’ s exper t conclusio n s h ad a reliable foundation.
A. General Legal Principles

R u le 702 of the R u les of Evidence provides that “ [a] witness who is qualified as an expert by knowled ge, skill, experience, training , o r education may testify in the form of an opinion or otherwise i f th e expert ’ s scientif i c , technical , or other speci alized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Tex. R. Evid. 702. Before admitting expert testimony under Rule 70 2, the trial court must be sat i sfi ed that three conditions are met: (1) the witness qualifies as an expert by reason of his knowledge, skill, experience, training, or education; (2) the subject matter of the testimony is appropriate for expert testimony; and (3) admitting the expert te s tim ony will assist the fact finder in deciding the case. Vela v. State , 209 S.W.3d 128, 131 (Tex. Crim. App. 2006)

. These conditions are commonly referred to as (1) qu alification, (2) reliability, and (3) relevance. Id. Texas Rule of Evidence 705(c) go v ern s t he reliability of expert testimony and states that “[a]n expert’s opinion is inadmissible if the underlying facts or data do not provide a sufficient basis for the opinion.” Tex. R. Evid. 705(c)

. The reliability inquiry is flexible, at times focus i ng on the reliability of scientific knowledge, at other times on the expert’s personal knowledge and e xperience. Vela , 209 S.W.3d at 134

. Indeed, experience alone may provide a sufficient basis for an expert’s testimony. Id. The proponent of the exper t mu st establish some foundation for the reliability of the proffered expert’s opinion. Id.3

To be cons idered reliable, evidence from a scientific theory must satisfy three criteria: “(a) the underlying scientific theory must be valid; (b) the technique
ap p lyi ng the theory must be valid; and (c) the technique must have been properly applied on the occasion in question.” Coble v. State , 330 S.W.3d 253, 273 (Tex. Crim. App. 2010) (quoting Kelly v. State , 8 24 S.W.2d 568, 573 (Tex. Crim. App. 1992) ). When “so f

t” s cie nces are at issue, the trial court must inquire “(1) whether the field of expertise is a legitim ate one, (2) whether the subject matter of the expert’s testimony is within the scope of that field, and (3) whether the expert’s testimony properly rel i es u pon and/or utilizes the principles involved in the field.” Id. (quoting Nenno v. State , 970 S.W.2d 549, 561 (Tex. Crim. App. 1998) ). “This inquiry is somewhat more flexible than the Kelly factors applicable to Newtonian and medical science. Id. Th e genera l p rinciples announced in Kelly apply, but the specific factors outli ned in those cases may, or may not apply depending upon the

context. Id. Regardless, under both Kelly and Nenno , reliability should be evaluated by reference to the standards ap p licable t o t he professional field in question. Id.

We review a trial court’s decision on whether to allow ex pert testimony for

an abuse of discreti on

. Gallo v. State , 239 S.W.3d 757, 765 (Tex. Crim. App. 2007)

. Before reversing the trial court’s decisi o n , we must fi nd t he trial court’s ruling was so clearly wrong as to lie outside the realm within which reason able people might disagree. See Taylor v. State , 268 S.W.3d 571, 579 (Tex. Crim. App. 2008) ; Green v. State , 191 S.W.3d 888, 895 (Tex. App.

– Houst o n [14th Di st. ] 2006, pet. ref’d)

. Absent a clear abuse of discretion, the trial court’s decision to admit or exclude expert testimony will not be disturbed. Wyatt v. State , 23 S.W.3d 18, 27 (Tex. Crim. App. 2000)

.4

B. Background

The State call ed a detectiv e with t he Har ris C o unty Sh e riff ’ s Office as an expert to testi f

y on the approximate location of appellant ’ s c ell phone before, during , and after the murd ers using appellant ’ s cell phone records, one of the complainant ’ s cell phone records, and a list of t he cell phon e t owers in t he area. The trial court conducted a hearing outs ide the pre sence of the jury to cons ider appellant ’ s motion to ex clude the detective ’ s expert testimony. At the hearing, the detect ive testi fied about his qualifications to opine on these sub jec ts. He stated that he ha d been with the Harris Count y Sheriff ’ s Office for sixtee n years and in vestigating homicides for six years

. The detective ha d sixty to seventy credited tr aining hours in “ cell phone related investigations ” and a noth er twenty to th irty hours working with another office r in the H ouston Po lice Departm ent

. 1 He ha s also testifie d in other cases about cell phone mapping and that he uses an application of cell phone d ata in approximately 90% of his cases. The detective ha s looked at hun dreds of cases with multiple phones in each case , using the cell phone data and “ examining it. ” The dete ctive testified that he was

not a “ scientist ” on cell phone towers and could not go into the “ underlying theories and why scientists bel ie v e that is a good science ” behind cell phone tower mapping , that he could just read the data produced from th e cell phone carriers. The detective also testified that the data was “ good ” because it ha d been used in tho usands of courtro oms across the coun tr y and supp ort ed by the judges in those

courtrooms.
The detective testified that he used the calls m a d e in t he c e ll phone records to pl ot distances from the cell towers connected to , t o create “ sectors ” to generally

1 Th e office r tha t the detective work ed with was “ one of the lo n gest te nured members of [t he Houston P o lice Departm ent’s ] criminal intelligence di vision who ha s testified in hundred s of trials with re gard to cell ph one mapping

. ”5

e stimate where the cell phon e is loc a te d at the t ime of the call

. He explained that multiple phone calls made “ eliminates the possib ility of being off tar get . The more you have , the more informatio n there is, the easier it is to pai nt th at picture

. ” In this case t he detective also use d wi t ne ss stateme nts and surveillance footage to confirm that the dat a provided in the cell phone records wa s ac curate ly po rtraying the sec tor plotted from th e dat a

. The detective also used additional records, such as cell phone records of other per sons, to c o rr oborate hi s f ind ings or show how his findings might be faulty.

W hen asked wheth er it was possible that all the calls may have been routed to one tower, t he detective testified that the call s could not have all been routed to

one tower because when c a ll s are bein g routed “ off tow er , ” the records will

m ention that in the report. In addition to comp ilin g the findings in to a PowerPoint presentation , t he detective sent his fin dings to another officer with the Hou ston P o lice Department for peer review. T h e detective also provided a report on his analysis and findings. The report states that “ cell phones constantly mon i tor their environment , con tinuously comm unicating with the cellular network and looking for the best signal and tower (antenna) to camp on

. ”

T h e trial court concl u ded tha t the detective ’ s testimony about the mapping done from the cell phone reco rds was a dmissible and complied with Rule 702 of the Rules of Evidence

. C. Anal ysis Appellant argues t hat the State failed to pro v e that the conclus i on s about the cell phones ’ locations b ased on cell tower data we re reliab le , namely that the da ta that was used to c o mp ile the reports about the cell phone lo cation was not pr oved to be reliable by the State. Appellant further argues that the detective w r on gly assumed that cell ph o nes always connect to the closest tower

.6

Here, the detective di d not simply rely on the in f ormation in the reports provided by the cellula r phone companies, but instead used other inf ormation to help identify faults or corrobo ra t e his findings based on th e reports

. Appellant ’ s argument is that the detective ne ed s to know the underlyi ng particularities regarding how cell ph ones connect or choose connect ions to cell towers before being able to testify reliab ly , but as other cour ts ha ve concluded , t h is knowledge is not relevant to the “ relatively simple tas k ” of mapping the general location of the cell phone by using to wers i den tified in the call re cords. See Thompso n v. State , 425 S.W.3d 480 , 489 (Tex. App.

— Houston [1 st D ist.] 2012 , pet. ref ’ d ); Ro binson v. State , 368 S.W.3d 588, 601 (Tex. App.

— Austin 2012 , pet. ref ’ d) ; see also Ward v. Stat e , No. 14

- 15

- 00473

- CR, 2016 WL 6238339 , *10 (Tex. App.

— Hou ston [ 14th Dist.] Oct. 25, 2016, pet. ref’d ) (mem. op., not designated for p ublication )

. Appellant argues that th e detective could only say with confiden ce that the phone connected to a cell site somewhe re with in a radius of twenty miles, but because of the detective ’s assumption that a cell phon e woul d connect to the

nearest to wer the de te ctive ’s testimony is “unrea listic and unte nable

. ” Regardi ng the alleg ation that the detective testified that a cell ph one always connects to the closest tow er , th e record does not bear this out. The detective testif ied that he reviewed the c e ll phone r ec ords provided by the carrie rs , in this case AT&T and T

Mob ile, to determine which tower the phone s connected to at sp ec ific times during the relevant dates

. Specifically , the detective reviewed records from app ellant ’ s phone beginning on April 30, 2015, a nd ending on May 1, 2015. The d ete ctive also reviewed rec ords from one of the complainant ’ s phone s be ginning on Apri l 3 0, 2015 , and ending on May 1, 2015. The records them se lves show the to wer connected to by the ph one, there was no interpre t ation invo lv ed

. The detective testifie d tha t if a call was being rout ed “ off

- tower ” that it would be indicated in the records pr ov ided by the carrier , but that such an indication would not change the7

location of the phone i n rel ation to the tower

. The de tective al so testified that a situation in w hich every call was routed to one tower would not happen

. The dete ctive testifi ed t ha t he could “ rea d th e data that [the carriers ] provide so that I can tell you the general location of a cell pho ne b as ed on th e in format io n
prov i ded and where towers are located. ” The dete ctive t estified t hat he could not : give an exact distance of w here t he phone is going t o be in relation to the tower. I can give a sector. What w e do is generally estimate dista nces. Distanc es from th e tower to where the phone sh ould be or
se ctor ends is a bet ter term or generally estimated from approximately
one half t o two thirds the di st ance between the towers. Again, that ’s
an es timate. [I ]f all you have is one phone call, you ca n say, I suppose s om ething could have gone hayw ire there. W hen you have multi ple phone calls, that eliminates the possibility of it bein g off target. The mo re you have, the more information there is, the easier it is to paint that picture

. T he de tectiv e ’ s repo rt states th at c ell phones monitor their env iro nments to look for the best signal, not necessa rily the clo se st sign al

. T he de tective took the dat a provided by the cellular phone companies and placed that data into the “ field ” b y lo cating each cell site on a mappin g prog ram. The detective located the cell site from a satellite picture and then from a str eet vi ew picture. The de tective then co nnected the locations of those cell sites to other geographic location s o f in terest in the case , such as the murder scen es , th e ho mes of appellant and one of the complainant s , the home of other witnesses, the home of
app el lant ’ s parents , a nd a gas station where appellant purchased lighter fluid. The detective also indicated that h e checked his results through o ther evidence he

c olle cted in the case, such as the s urveillance video at the Shell station where appellant purc ha sed lighter fluid t he night of the murders , as well as witness

statements about where the appellant or one of t he complainant s were a t different8

times on th e ni ght of the murders

. Lastly, the de tective indicated tha t his results

were reviewed b y an ot her officer in the Houston Police Department.

T he detective did not testify that the cell phones used by appe llant and the
comp l ainant were necessar ily cl osest t o the to wers that they connected t o, just that the towers told him t he direction the ph ones c onnected from and t hat it limited th e location of the phones to a certain geographic sector. F o r instance, the detectiv e
t estified that between 11 :30 p.m. and 1 1 : 51 p.m. on April 30, 2015, both the

a ppellant and a complain ant were “ somewhere in the v ici ni ty of Cloverleaf ” a nd

“ somewhere in the vicinity of the eastern portion of Cloverleaf. ” The detective indicated tha t , bec ause en ough c alls were made , he ha d suf fi ci ent information to see the “ gene ral way they traveled ” but couldn ’ t tell what stre ets or rout es were taken. In his analysis, t he detective used multiple cell tow er c onnections over many hours , wh ich he te stifi ed re duced the likelihood of any error.

A p pe llant also provides case examples to ill ustrate how wron gful convictions may be obt aine d from this type of t estimony . However, appel lant fails to detail how the evidence was faulty in the overturned c ases or how su ch principles are applicable to the ca s e at ha nd. For instance, in one of appellant ’ s

case examples, Lisa Rober ts ’ s ex

- girlf rie nd was murde red , and her body wa s found in a park

. Roberts v. Ho wton , 13 F. Su pp. 3d 1077, 1081 ( D. Or. 2014). Detectives revi ewed R o berts ’ s cell phone records and f ou nd that her phone connected to a t ower within four miles of the park where th e body was foun d on the m orning of the mu rder. Id . at 1086

– 88. When confronted with this information, Robert s ’ s defense counsel recommen ded that she ple ad guilty to the lesser c harge of manslaughter. Id . at 110 1. R o berts accepted the plea

. Id

. Years later upon peti tion for w rit of habe a s corpus, the court concluded that her defense counsel had rendered ineffective assistance for failin g to hire their own expert witness to i nv estigate the cell phone records an d tower data to put o n evidence to9

refute the prosec ut or ’ s possible expert witness testimony

. Id. As part of the writ
proce eding , in order to show that refuting the conclu sions dr awn by the prosecut or ’ s expert was poss ib le, Robert s attached expert report s fr om two experts to support her assertio n that had h er c ounsel con ducted a reasonab le investigation or consulted with an expert, he would have understoo d t he evidence against Robe rts better and advised her accordingly. I d . at 1102. The court concluded t hat

coun sel ’ s conduc t fell below an object ive standard of reasonable ness because his

“ assessment of the evidence, and his fa ilure to re tain an expert, was not based upon a reasonabl e investigation or understanding of the e vidence. ” Id

. “ [T]he
pre sentatio n of expert testimony at trial, concerning the v ariabl es i mpacting t he reliability of the cell tower evidence to pinpoint the caller ’ s location , likely would have changed the outcom e of the trial. ” Id

. I n this case, th e detective merely offered ge ographi c sectors from the records provided. 2 The detective d id n ot purport to offer a “ pin

- point ” location of the appellant on the dates analyzed . A ppellant was permitted to cross

- examin e the detective and highlight that the pa rticular methodology used i s subje ct to limitation s

. Se e Daubert v . Merrell Dow Pharm., Inc

. , 509 U.S . 579, 596 (1993 ) ( “ Vigorous cross

- examination, presentation of contrar y evidence, and careful instruction on the burden of proof are the traditio nal an d appropriate means of attacking sha ky but admis sibl e evidence

. ” ).

Und er the circumstance s prese nted herein, based on the testimony of the detective and how he arrived at hi s conclusions and that they were suppor ted by

2 Texas appella te c ourts h a ve repeatedly classified this type of testimony as non

- comple x and relatively “ straight

- forward

. ” See Thompson v. State , 425 S.W.3d 480, 488

– 89 (Tex. App.

— Houston [1st Dis t.] 2012, pet. ref ’ d); Robinson v. State , 368 S.W.3d 588, 599

– 601 (Tex. App.

— Austin 2012, pet. ref ’ d) ; Ward v. State , 1 4

- 15

- 00473

- C R, 2 016 WL 623 8339 (Tex. App.

— Houston [14th Dist.] Oct. 25, 2016, pet. ref’d) (mem. op. , not designated for pub lication) ; Pat terson v. State , 05

- 13

- 00450

- CR, 2015 WL 2400809 (Tex. App.

— Dallas May 19, 2 015, pe t

. ref’d) ( not designated for pub lic ation)

.10

other data , such as eyewitnes s test im ony , surveillance footage at the S hell st ation ,
an d camera f

ootage fro m the homes of wi t nesses that corroborate the detective ’ s expert report , we cannot con clude that the tr ial court abused its discretion in dete rmining the expert ’ s testimony regar ding t he location of the cell phones based

on the cell pho ne record s was re lia ble in this case. See Rhomer v. State , 569 S.W

. 3d 664 , 672 n.1 (Tex. Crim. App. 2019) ( “ Reliability is evaluated by looki ng at the method the expert used to come to his con clusi ons. [T he ex pert ’ s] testimony was reliable because it was based on t he informa tion he gathered at the scene: the

measurements he took, the pictures he capt ured, t he damage he ob ser ved, a nd the diagram he created. ” ) ; s ee also William v. State , 606 S.W

. 3d 48 , 56 (T ex. App.

— Houston [1st Dist.] 2020, pet. ref ’ d ) ( “ Th e tas k [th e expert] was called upon to perform was not complex and it was verifi able. . . . Cell phone records showed the

exac t tower to which the phone connected , and [the expert] testified that sh e che ck ed the records for accuracy. . . . the trial co urt did not a b use its discretion when it determined that [the expert ’ s] opinion on the general location of . . . the phones wa s reliable. ” ). We overrule appellant ’ s sole issue on appeal.
C ONCLUSION
Ha ving ov erruled appellant ’ s sole issue on a ppe al, we af fi rm t he judgm ent of the trial court.

/s/ Ken Wise Justice

Panel consists of Justices Wise , Bourliot , and Spain

. D o Not Publish

— T EX

. R. A PP

. P. 47. 2( b).