Affirmed and M emorandum Opinion filed June 16 , 2015

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 13

- 00923

- CR

GAREIC JERARD HANKSTON , Appellant

V.

THE STATE OF TEXAS , Appellee

On Appeal from the 178th District Court

Harris County, Texas Trial Court Ca use No. 1326559

M E M O R A N D U M O P I N I O N

Appellant Gareic Jerard Hankston was convicted of murder and sentenced to twenty years in prison. Appellant contends that the evidence is legally insufficient to support his conviction for murder and that the trial co u rt erred by failing to grant his pre

- trial motion to suppress his cell phone records . We affirm.

B ACKGROUND The complainant, Keith Brown, stalked appellant’s girlfriend Crystal Jordan2

on several occasions. The complainant lived two houses down from Jordan ’s
mother’s house. One day , when Jordan was living at her mother’s house, the complainant watched Jordan wash her car and took his shirt off to pose for her

. The complainant would also leave notes on Jordan’s door. On one occasion, a neighbor saw the compl ainant standing in Jordan’s mother’s driveway and the complainant told the neighbor that he was “protecting their house.” Jordan’s step

father also found the complainant’s cell phone outside her window. When Jordan
moved to her apartment complex, the compl ainant approached her and asked if she needed help with her groceries . Jordan stated that this was strange because she did
not know how the complainant found out where she had moved

. Jordan testified
that all of these encounters scared her.
On May 19, 201 1, Jordan was at home in her apartment with her daughter when she heard a soft knock at the door. Jordan asked who was there, but no one responded. The person knocked again and Jordan looked out the front window and
saw a dark

- skinned male standing outside . Jordan also saw a white van that she knew belonged to the complainant . At 8:44 p.m., Jordan called 911, her parents,
and her boyfriend, the appellant. The police responded to the 911 call and arrived at Jordan’s apartment at 8:57 p.m. Appellant and Jord an’s parents were also present. Jordan testified that appellant was aware of the complainant’s stalking but he did not seem upset or bothered by the knocking incident. However, Jordan also stated that appellant did
not think the police were taking the situ ation seriously and the police told appellant to be quiet during the investigation . Everyone left Jordan’s apartment in separate cars. Jordan and her daughter went to Jordan’s grandmother’s house for about five
minutes and then went to her mother’s house. While at her mother’s house, Jordan heard gunshots. Jordan stated that she did not know where appellant was when she3

heard the gunshots . Jordan testified that appellant came to her mother’s house after she got there, but could not remember the exact time

. The complainant’s wife Tonie was not aware that her husband had been stalking Jordan. Tonie testified that on May 19, the complainant came home
around 9:00 p.m . Tonie and the complainant argued in the front yard and Tonie
knew that the complainant had ta ken PCP because he was non responsive to her

. T he complainant was also distracted because he was looking at someone wearing jeans and a white t

- shirt walking down the street . Tonie went back inside the house, but when she tried to close the door, the compla inant told her not to leave
him out there. The complainant eventually came inside the house and began sweeping the front room. The complainant’s four children were all home at the
time.
Shortly after the complainant went inside his house, someone started banging loudly on the front door. When the complainant asked who was there, the

perso n responded by saying “it’s your son

- in

- law, Chad.” 1 The complainant opened the blinds to look outside, turned off the porch light, and then began slowly opening the door. The complainant opened the door a few inches, but then attempted to shut it when the person outside began pushing it back . The person then fired six gun shots through the door, striking the complainant with four of
them. The complainant attempted to crawl to the bedroom but died before he could get there. The complainant ’s son Gregory called 911 at 9:32 p.m. and the police were dispatched to the scene at 9:34 p.m

. The complainant’s nine

- year
- old son Malik was in the front living room

1 The complainant did not have a son

- in

- law named Chad or any relatives named Chad. Tonie testified that the complainant used to produce music with a man named Chad but they had not spoken in at least a year . Tonie also testified that her son Gregory had an uncle named Chad who lived in Louisiana but he and the complainant had neve r met or spoken

.4

when the shooting occ urred. After the knock on the door , Malik ran to the window and saw a man holding a black handgun. Malik made eye contact with the man for several seconds. Malik described the man to the police as a bald, dark

- skinned male wearing a white tank top and jean s. Although Malik told the police that he saw two other people, he could not testify at trial as to whether he was positive that
he saw the other people . Malik was shown three different photo spreads throughout the course of the investigation. On November 4, 2011, Malik selected appellant’s photo from the third photo spread he was shown and identified appellant as the man he saw with a gun outside the door before the shooting

. At trial, the State offered cell tower records along with the expert testimony of Officer Robert Brown to establish appellant’s whereabouts during times relevant
to when the complainant was killed. The State also used appellant’s cell phone records to show who he called and when the phone calls were made. The State obtained appellant ’s cell phone records by using a subpoena. The State did not obtain a warrant. The trial court denied appellant’s pre

- trial motion to suppress the cell phone records.
On September 27, 2013, the jury found appellant guilty of murder and assessed punishme nt at twenty years in prison.

I SSUES AND A NALYSIS Appellant contends that the evidence is legally insufficient to support his
conviction for murder. Appellant also asserts that the trial court erred by denying his motion to suppress his cell phone reco rds because the State obtained th o se records without a warrant in violation of the Fourth Amendment and Article I,
section 9 of the Texas Constitution

.5

I. The Evidence is Legally Sufficient to Convict Appellant of Murder When reviewing the sufficiency of th e evidence, we view all of the evidence in the light most favorable to the verdict and determine, based on that evidence and any reasonable inferences from it, whether any rational trier of fact could have found the elements of the offense beyond a reasona ble doubt. Gear v. State , 340 S.W.3d 743, 746 (Tex. Crim. App. 2011); see also Jackson v. Virginia , 443 U.S. 307, 318− 19 (1979). The jury is the exclusive judge of credibility of the witnesses and the weight to be given to the evidence. See Isassi v. State , 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Further, we defer to the jury’s responsibility to fairly
resolve con flicts in testimony, weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts

. Id . This standard applies to both
circumstantial and direct evidence. Id . We do not engage in a second evaluation of the weight and credibility o f the evidence, but only ensure the jury reached a
rational decision. Muniz v. State , 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).
The jury was instructed on murder and the law of parties. A person c ommits
the offense of murder if he intentiona lly or knowi ngly causes the death of an
individual. Tex. Penal C ode § 19.02(b)(1). A person may be guilty as a party to murder if the defendant committed the offense by his own conduct or by the conduct of another for which he is criminally responsible. Tex. Penal Cod e § 7.01(a). “A person is criminally responsible for an offense committed by the
conduct of another if

: . . . acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person
to commit the offense. ” Id

. § 7.02(a)(2 ).
Appellant argues that the evidence to convict him of murder is legally
insufficient because ( 1) Malik’s identification was unreliable; ( 2) the description of6

the vehicle fleeing the scene was different from the v ehicle being driven by appellant; ( 3) appellant did not have a motive to kill the complainant ; and ( 4) appellant’s cell phone records do not conclusively establish that he was at the complainant’s house during the shooting. Although appellant attacks each piece of evidence individually, the court must “consider the combined and cumulative force
of all the evidence when viewed in the light most favorable to the verdict .” Clayton
v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
Appellant suggests that M alik’s identification was unreliable because Malik ( 1) was only nine years old at the time; ( 2) stated that appellant was bald with no
tattoos when appellant has hair and tattoos; ( 3) told his mom on the night of the shooting that he did not see the shoot er’ s face; and ( 4) felt pressured to select someone in the photo spread. Malik testified that he saw appellant holding a gun outside the door before the shooting occurred. Malik made eye contact with the appellant for three to four seconds. Although Malik described the appellant as bald, the State offered a photograph at trial in which the sides of appellant’s head were bald three weeks before the shooting occurred. Malik selected appellant’s photograph out of a photo spread presented by Officer Condon. It took Malik three
to four minutes to select appellant’s photo and he stated that he was “ pretty sure ” it
was him. At trial, Malik testified that he was confident that appellant was the man he saw outside his window on the night of the shooting. The determin ation of what weight to be given to testimonial evidence rests within the sole province of the jury because it turns on an evaluation of credibility and demeanor. Davis v. State , 177 S.W.3d 355, 359 (Tex. App.

— Houston [1st Dist.] 2005, no pet.). The jury w as free to believe or disbelieve any or part of Malik’s testimony. See id

. The State also o ffered evidence to corroborate Malik’s testimony, including ( 1) the description of appellant’s vehicle; ( 2) appellant’s motive for the killing; and7

( 3) appellant’s cell phone records reflecting his whereabouts during the shooting and phone calls he made before and after the shooting

. The State established that the appellant’s car matched the description of a vehicle seen fleeing the scene after the shooting . Office r Burrow testified that he spoke to a neighbor who saw a 2000 or 2006 burgundy Honda Civic being drive n from the scene. The appellant was driving a 2002 burgundy Honda Accord on the night of the shooting. Officer Burrow testified that the police examined

p hotographs of Honda Civics and Honda Accords from those years and found that they were “pretty similar.”
The jury also heard evidence that appellant had a possible motive for the killing. T he shooting occurred less than one hour after the complainant show ed up at Jordan’s apartmen t. Appellant knew that the complainant had stalked Jordan on
several occasions and knew the complainant knocked on her door that night. Jordan testified that she and appellant did not think the police were taking the stalking seri ously enough and that the police told appellant to be quiet during their investigation . Although Jordan testified that appellant seemed normal that night , she stated that “[h]e wasn’t happy with the situation.” Officer Burrow also testified
that he believe d the crime was personally motivated because the shooter did not wear a mask or try to force entry into the home and he banged loudly on the door and shot appellant through the door as soon as he saw that someone was there

. Appellant’s phone records estab lished that he was in the vicinity of the complainant’s home during the shooting. Although appellant contends that this is
the same area where Jo rdan’s mother ’s house is located, Jordan testified that she did not know where the appellant was when she heard the gunshots. The cell phone
records also reflected that there was a lull in activity on appellant’s phone from
9:24 p.m. to 9:32 p.m., when the shooting occurred . During this period of time,8

there were no incoming or outgoing communications on appellant’ s phone. The complainant ’s son called 911 at 9:32 p.m. Officer Burrow testified that at 9:32

p.m. , there was a burst in activity on appellant’s phone in which thirty

- eight telecommunications were exchanged from 9:32 p.m. to 9:55 p.m . Officer Burrow
stated that this was the highest volume in appellant’s phone records over the course
of a seven

- month period.
Viewing the evidence in the light most favorable to the verdict, we conclude
that a rational trier of fact could have found the essential elements of mu rder beyond a reasonable doubt. See Gear , 340 S.W.3d at 746

. Because the evidence is legally sufficient to convict appellant as the principal , we need not determine whether the evidence is legally sufficient to convict appellant of murder as a party
to the shooting. See Barnes v. State , 62 S.W.3d 288, 299 (Tex. App.

— Austin 2001, pet. ref’d) (“When different theories of liability are submitted to the jury in the disjunctive, a general verdict is sufficient if the evidence supports on e of the
theories .” ) ( cit ing Rabbani v. State , 847 S.W.2d 555, 558

− 5 9 (Tex. Crim. App. 1992)); see also Morris v. State , 892 S.W.2d 205, 208 (Tex. App.

— Texarkana 1994, no pet. ) (holding that “even if the law of parties was incorrectly applied, it would be harmless error because the conviction could be supported on the St ate’s main theory that [the defendant] was a primary actor because the evidence clearly supported such a theory ”). We overrule appellant’s first issue regarding the legal sufficiency of his
conviction

.
II. The Trial Court Did Not Err by Denying Appellant’s M otion to Suppress
In his second issue, appellant contends that the State’s acquisition of his cell phone records violated the Fourth Amendment to the United States Constitution9

and Article I, section 9 of the Texas Constitution.
When reviewing a trial cou rt’s ruling on a motion to suppress, we apply an abuse of discretion standard and overturn the trial court’s ruling only if it is outside the zone of reasonable disagreement. Martinez v. State , 348 S.W.3d 919, 922 (Tex. Crim. App. 2011). We view the eviden ce in the light most favorable to the trial court’s ruling. Johnson v. State , 414 S.W.3d 184, 192 (Tex. Crim. App. 2013). Although we generally defer to a trial court’s determination of facts and credibility, we review a constitutional legal ruling, such a s whether a search or seizure governed by the Fourth Amendment occurred in a particular case, under a de novo
standard of review. Wall v. State , 184 S.W.3d 730, 742 (Tex. Crim. App. 2006).

A. Fourth Amendment Challenge

The Fourth Amendment to the United Sta tes Constitution p rotects against
unreasonable searches and seizures. U.S. Const . amend. IV; Walter v. State , 28 S.W.3d 538, 540 (Tex. Crim. App. 2000). The capacity to claim the protection of the Fourth Amendment depends upon whether the person has a legi timate expectation of privacy in the invaded place. Walter , 28 S.W.3d at 541. Under the Fourth Amendment, a search conducted without a warrant issued upon probable
cause is “ per se unreasonable . . . subject only to a few specifically established and
well

- delineated exceptions .” Reasor v. State , 12 S.W.3d 813, 817 (Tex. Crim. App. 2000) (quoting Schneckloth v. Bustamonte , 412 U.S. 218, 219 (1973)).
In arguing that he has a reasonable expectation of privacy in his historical cell site records, appellant rel ies on the Supreme Court’s decision in United States
v. Jones , 132 S. Ct. 945 (2012), and the Third Circuit’s decision in In re Application of United States for an Order Directing a Provider of Elec. Commc’n
Serv. t o Disclose Records to Gov’t , 620 F.3d 304 (3d Cir. 2010). However, this court recently rejected appellant’s argument in Barfield v. State

. See 416 S .W.3d10

743 (Tex. App.

— Houston [14th Dist.] 2013, no pet.).

In Barfield , the State used third

- party cell tower records to establish the
defendant’s wh ereabouts during times relevant to when the complainant was
murdered. Id . at 745. The State obtained the records through use of a subpoena and
did not obtain a search warrant. Id . The defendant in Barfield similarly argued that
the State violated his reaso nable expectation of privacy because it obtained the cell
tower records without a warrant. Id . at 748. This court in Barfield disagreed and
reasoned that:
When an individual knowingly exposes his activities to third parties, he surrenders Fourth Amendment protections, and, if the Government is subsequently called upon to investigate his activities for possible violations of the law, it is free to seek out these third parties, to inspect their records, and to probe their recollections for evidence.

Id . (quot ing In re Application of United States for Historical Cell Site Data , 724 F.3d 600, 610 (5th Cir. 2013) (internal quotations omitted)); Reporters Comm. for Freedom of Press v. Am. Tel. & Tel. Co. , 593 F.2d 1030, 1043 (D.C. Cir. 1978 ). The mere fortuity of whether or not the third party, in its own discretion, elects to
store the information makes no constitutional difference. Barfield , 416 S.W.3d at
748. Once an individual exposes information to a third party, it can be used for any purpose, including conve ying it to law enforcement authorities. Id

. The court also emphasized the fact that the transmission of location information by the cell user to the service provider is voluntary because the user knows generally that “cell phones exchange signals with nea rby cell towers, that if they are in an area without network towers, their call will not connect, and if they are in an area with heavy cell usage, they may also have trouble connecting.” Id

. The user voluntarily decides to obtain a cell phone, choose a pr ovider, and make a call from a particular location. Id . at 748−49. Thus, in relying primarily on the11

Fifth Circuit’s decision in In re Application of United States , this court held that the State’s obtaining of cell tower records from a third

- party provider does not violate a defendant’s reasonable expectatio n of privacy. Id . at 749. Appellant asks this court to reconsider its holding in Barfield , arguing that it was wrongly decided. Appellant directs this court to the Third Circuit’s decision in In re Application of United States for an Order Directing a Pr ovider of Elec.
Commc’n Serv. t o Disclose Records to Gov’t

. See 620 F.3d at 317 −18 (holding that a “cell phone customer has not ‘voluntarily’ shared his location information with a cellular provider in any meaningful way”). However, we decline appellant’s invitation to review our prior decision on this issue. Based on this court’s

pr ecedent, appellant cannot successfully claim that the State’s acquisition of his cell tower records from Sprint violated his reasonable expectation of privacy

. The
cell site records acquired by the State are simply the business records memorializing appell ant’s voluntary subscriber transaction with Sprint for the service he wanted from his cellular provider, i.e. the ability to transmit and receive data on Sprint’s network of cell towers. Ford v. State , 444 S.W.3d 171, 188 (Tex. App.

— San Antonio 2014 , pet. granted) (citing Barfield , 416 S.W.3d at 748). The fact that this data happens to reveal the general location of appellant’s cell phone , and presumably appellant himself, at given points in time is of no consequence to the legal analysis. Id

. The State’s a ctions did not violate appellant’s Fourth Amendment rights because he could not have a reasonable expectation of privacy in information he voluntarily conveyed to a third party.

B. Texas Constitution Challenge Appellant also contends that the State’s acqui sition of his cell phone records without a warrant violated his rights under Article I, section 9 of the Texas
Constitution because the Texas Constitution provides greater protection than the12

Supreme Court decisions that address the Fourth Amendment. In su pport of his contention, appellant cites to Richardson v. State , a case in which the Court of Criminal Appeals held that “the use of a pen register may well constitute a ‘search’ under Article I, § 9 of the Texas Constitution.” 865 S.W.2d 944, 953 (Tex. Cr im. App. 1993). Like the Fourth Amendment, the Texas Constitution provides that “[t]he people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches . . . .” Tex. Const. art. I, § 9. In Heitman v. Sta te , the Court of Criminal Appeals acknowledged that it can interpret this provision in
a manner that grant s defendants greater rights under Article I, section 9 of the Texas Constitution than afforded by the Supreme Court’s interpretation of the
United Sta tes Constitution. 2 815 S.W.2d 68 1 , 690 & n.1 (Tex. Crim. App. 1991). Despite this conclusion, at least one appellate court has reasoned that merely “[b]ecause we can do so, however, does not mean we should do so.” Johnson v.
State , 864 S.W.2d 708, 718 (Tex . App.

— Dallas 1993 ), aff’d , 912 S.W.2d 227 (Tex. Crim. App. 1995) (emphasis in original) . The Court of Criminal Appeals also noted that “[a] plain reading and comparison of the language of the Fourth Amendment and Art. I, § 9 reveals no substantive differe nce ” and they both protect the same right. Johnson , 912 S.W.2d at 232 . The Court of Criminal Appeals has
further stated that:
Absent some significant difference in the text of the two provisions, or some historically documented difference in attitude betwe en the respective drafters, there would be no apparent reason to prefer an interpretation of Article I, § 9 any different from our preferred

2 As noted by the First Court of Appeals, at least one scholarly treatise has recognized that there are only three cases in which the Court of Criminal Appeals has construed Article I, section 9 more broadly than the Fourth Amendment. Ro thenberg v. State , 176 S.W.3d 53, 59 n.7 (Tex. App.

— Houston [1st Dist.] 2004, pet. ref’d) (citing 40 George E. Dix & Robert O

. Dawson, Texas Practice: Criminal Practice & Procedure § 5.04 (2d ed. 2011)).13

interpretation of the Fourth Amendment . We will not read Article I, § 9 differently than the Fourth Amendment in a particular context simply because we can

. Crittenden v. State , 899 S.W.2d 668, 673 n.8 (Tex. Crim. App. 1995).
Aside from citing to Richardson , appellant does not provide any reasoning as to why the Texas Constitution affords greater protection in this in stance. Appellant cites to no authority for this proposition and does not point to any difference in the two provisions to warrant such a result. Thus, we utilize Fourth Amendment precedent to conclude that the State’s acquisition of appellant’s cell phone records do es not violate Article I, section 9 of the Texas C onstitution. We overrule appellant’s first issue regarding his motion to suppress.

C ONCLUSION We conclude that the evidence is legally sufficient to convict the appellant
of murder and the trial court did not err by denying appellant’s motion to suppress

.

/s/ Ken Wise Justice

Panel consists of Justices Christopher , Donovan , and Wise

. Do Not Publish

— T EX

. R. A PP

. P. 47.2( b).