1

No. 01-15-00239-CR

No. 01-15-00240-CR

______________________________________________

IN THE

COURT OF APPEALS FOR THE

FIRST DISTRICT OF TEXAS

AT HOUSTON

______________________________________________

OSCAR RENE RIVERA

VS.

THE STATE OF TEXAS

______________________________________________

Appealed from the 185th District Court

of Harris County, Texas

Cause Numbers 1423701 & 1423702

______________________________________________

APPELLANT’S BRIEF

______________________________________________

RANDALL J. AYERS

Attorney for Appellant

State Bar No. 01465950

P.O. Box 1569

Houston, Texas 77251-1569

rjayerslaw@comcast.net (email)

(281) 493-6333 (telephone)

(281) 493-9609 (fax)

ORAL ARGUMENT WAIVED

ACCEPTED

01-15-00239-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS

9/23/2015 12:46:39 AM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 9/23/2015 12:46:39 AM CHRISTOPHER A. PRINE Clerk
2

IDENTIFICATION OF THE PARTIES

Pursuant to Tex. R. App. P. 38.1(a), a complete list of the names of 

all interested parties is provided below:

1. OSCAR RENE RIVERA – Appellant

TDCJ Inmate #02018188

Garza West Unit

4250 Highway 202

Beeville, Texas 78102-8997

2. PATRICK RUZZO – Trial Counsel for Appellant

1900 North Loop West, Suite 500

Houston, Texas 77018-8120

3. RANDALL J. AYERS – Appellate Counsel for Appellant

P.O. Box 1569

Houston, Texas 77251-1569

4. CHRISTOPHER HANDLEY – Trial Counsel for State

Harris County District Attorney’s Office

1201 Franklin, Suite 600

Houston, Texas 77002-1997

5. ALAN CURRY – Chief Appellate Counsel for State

Harris County District Attorney’s Office

1201 Franklin, Suite 600

Houston, Texas 77002-1997

6. HONORABLE SUSAN BAETZ BROWN – Trial Judge

185th District Court

1201 Franklin, 17th Floor

Houston, Texas 77002-1913
3

TABLE OF CONTENTS

Page

IDENTIFICATION OF THE PARTIES ................................. 2

INDEX OF AUTHORITIES ............................................... 4

STATEMENT REGARDING ORAL ARGUMENT .................. 5

STATEMENT OF THE CASE ............................................ 5

ISSUES PRESENTED FOR REVIEW .................................. 6

SUMMARY STATEMENT OF FACTS ................................. 6

SUMMARY OF THE ARGUMENT .................................... 7

POINT OF ERROR ONE .................................................. 8

THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S 

CHALLENGES FOR CAUSE AGAINST FOUR SPECIFIED 

MEMBERS OF THE JURY VENIRE WHO INDICATED THAT 

THEY WOULD CONSIDER A DEFENDANT’S FAILURE TO 

TESTIFY AS EVIDENCE AGAINST HIM AT TRIAL AND AGAINST 

THREE SPECIFIED MEMBERS OF THE JURY VENIRE WHO 

INDICATED THAT THEY COULD NOT CONSIDER ASSESSING 

PROBATION IN AN APPROPRIATE CASE.

POINT OF ERROR TWO .................................................. 11

THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S 

MOTION TO SUPPRESS EVIDENCE OBTAINED FROM A CELL 

PHONE PURSUANT TO A SEARCH WARRANT WHERE THE 

AFFIDAVIT SUPPORTING THE SEARCH WARRANT FAILED TO 

ESTABLISH PROBABLE CAUSE.

CONCLUSION AND PRAYER ......................................... 15

CERTIFICATE OF SERVICE ............................................ 16

CERTIFICATE OF COMPLIANCE ..................................... 16
4

INDEX OF AUTHORITIES

 Cases Page

Cardenas v. State, 325 S.W.3d 179 (Tex. Crim. App. 2010) ................ 9

Castillo v. State, 913 S.W.2d 529 (Tex. Crim. App. 1995) .................. 10

Cordova v. State, 733 S.W.2d 175 (Tex. Crim. App. 1987) ................. 9

Estrada v. State, 154 S.W.3d 604 (Tex. Crim. App. 2005) .................. 12

Evans v. State, 530 S.W.2d 932 (Tex. Crim. App. 1975) .................... 13

Fuller v. State, 829 S.W.2d 191 (Tex. Crim. App. 1992) .................... 10

Jaben v. United States, 381 U.S. 214 (1965) ................................. 13

Johnson v. State, 803 S.W.2d 272 (Tex. Crim. App. 1990) ................ 13

Matamoros v. State, 901 S.W.2d 470 (Tex. Crim. App. 1995) ............. 13

Montoya v. State, 810 S.W.2d 160 (Tex. Crim. App. 1989) ................ 9

Pierce v. State, 696 S.W.2d 899 (Tex. Crim. App. 1985) .................... 9

Reese v. State, 712 S.W.2d 131 (Tex. Crim. App. 1986) ..................... 12

State v. McLain, 337 S.W.3d 268 (Tex. Crim. App. 2011) .................. 12

Constitutional Provisions, Statutes and Rules

Tex. Code Crim. Proc. Art. 1.06 ................................................ 12

Tex. Code Crim. Proc. 18.01(b) ................................................ 12

Tex. Code Crim. Proc. Art. 35.16(c)(2) ........................................ 9

Tex. Const. Art. I §9 .............................................................. 12

Tex. R. App. Proc. 38.1(a) ....................................................... 2

Tex. R. App. Proc. 39.7 ......................................................... 5

U.S. Const., Amend. IV .......................................................... 12
5

STATEMENT REGARDING ORAL ARGUMENT

Pursuant to Tex. R. App. P. 39.7, Appellant waives oral argument.

STATEMENT OF THE CASE

Appellant was charged in separate indictments with the offenses of 

indecency with a child and sexual assault of a child. (CR-A 14; CR-B 17)

1

.

Appellant pled not guilty and proceeded to trial. (CR-A 121-122, 135; CR-B

127-128, 136; RR-V3 6-7). The trial jury found Appellant guilty in both 

indictments, and subsequently assessed Appellant’s punishment at ten years 

probation in the indecency with a child case and eight years in prison in the 

sexual assault of a child case. (CR-A 100, 119, 121-122, 136-137; CR-B 

110, 124, 127-128, 137-138; RR-V4 92-95; RR-V5 6-7). The trial court 

granted the State’s motion to cumulate the two sentences. (CR-A 108, 122, 

137; CR-B 138; RR-V5 9-10). Appellant filed timely written notice of 

appeal. (CR-A 129-130, 137; CR-B 130-131, 138; RR-V5 8). 

 1

 CR-A = Clerk’s Record, Volume I of I in Cause No. 1423701; CR-B = Clerk’s Record, 

Volume I of I in Cause No. 1423702; RR = Reporter’s Record, Volumes 1 through 6.
6

ISSUES PRESENTED FOR REVIEW

Did the trial court commit error when it denied Appellant’s challenges 

for cause against members of the jury venire who were biased against 

applicable law that Appellant was entitled to rely upon at trial, specifically 

Appellant’s right not to testify at trial, and his right to have the jury consider 

the full range of punishment, including probation?

Did the trial court commit error when it denied Appellant’s motion to 

suppress evidence recovered in a search of a cell phone?

SUMMARY STATEMENT OF FACTS

Appellant was a childhood friend of the father of the complainant, and 

temporarily lived with the complainant’s family over a period of several 

months. (RR-V3 10-15, 32-34; RR-V4 7-14). The complainant testified that 

beginning when she was 15 years old, she engaged in a series of voluntary 

and consensual sexual activities with Appellant. (RR-V3 15, 37, 72-73; RRV4 7-12, 17-24, 26-30, 65). Appellant was 38 years old at the time. (RR-V3

72-73; RR-V4 63-64). The complainant testified to several incidents of 

sexual activity with Appellant that took place over a period of several 

months, and included acts of both oral sex and sexual intercourse. (RR-V4
7

17-24, 26-35, 44-52). The complainant’s father eventually discovered what 

was going on between Appellant and the complainant, whereupon he kicked 

Appellant out of his residence and called the police, who began an 

investigation that eventually resulted in the filing of charges against 

Appellant. (RR-V3 16-19, 26, 38, 96-97, 104; RR-V4 35-40). The 

complainant testified that her relationship with Appellant continued even 

after her parents had kicked Appellant out and notified the police. (RR-V4

40-61). The complainant testified that she continued to meet Appellant at 

motels where they would engage in oral sex and sexual intercourse, and that 

this continued until her parents caught her talking to Appellant on a cell 

phone that he had given to her. (RR-V3 50-53; RR-V4 40-55, 58-61).

SUMMARY OF THE ARGUMENT

The trial court erred when it denied Appellant’s challenges for cause 

against seven specific members of the jury venire where the record 

established by a preponderance of the evidence that each of the seven 

potential jurors was biased or prejudice against applicable law upon which 

Appellant was entitled to rely at trial, and further when it denied Appellant’s 

motion to suppress evidence obtained from a search of a cell phone

conducted pursuant to a search warrant that failed to establish probable 

cause to support the search.
8

POINT OF ERROR ONE

THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S 

CHALLENGES FOR CAUSE AGAINST FOUR SPECIFIED 

MEMBERS OF THE JURY VENIRE WHO INDICATED THAT 

THEY WOULD CONSIDER A DEFENDANT’S FAILURE TO 

TESTIFY AS EVIDENCE AGAINST HIM AT TRIAL AND AGAINST 

THREE SPECIFIED MEMBERS OF THE JURY VENIRE WHO 

INDICATED THAT THEY COULD NOT CONSIDER ASSESSING 

PROBATION IN AN APPROPRIATE CASE.

RELEVANT FACTS, AUTHORITIES & ARGUMENT

In Appellant’s case, at the conclusion of voir dire, the attorneys and 

the trial judge engaged in a bench conference regarding challenges for cause 

(RR-V2 116-149). After allowing for duplicate challenges excused by 

agreement, the trial court took up the remaining non-agreed challenges for 

cause. (RR-V2 116-147). The trial court summarily granted all five of the 

challenges for cause made by the State. (RR-V2 117). Allowing for the 

duplicate challenges excused by agreement, Appellant’s trial counsel had 

lodged challenges for cause against 14 venire members, but the trial court 

denied seven of those challenges (specifically, jurors #4, #28, #38, #40, #42, 

#54, and #57). (RR-V2 118-147). Appellant’s trial counsel then requested 

seven additional peremptory challenges, which the trial court denied. (RRV2 147-148). Appellant’s trial attorney subsequently used all ten of his 

allotted peremptory strikes, including strikes on the seven specific jurors for 

which the trial court had denied his challenges for cause. (CR-A 81-83; CR-
9

B 89-91). When the jury was seated for trial, Appellant’s attorney objected 

to the jury as seated, and identified nine objectionable jurors on the panel on 

whom he would have used peremptory strikes had he not had to use them on 

the jurors for which his challenges for cause were denied by the trial court 

(specifically, jurors #10, #21, #23, #24, #25, #26, #32, #33, and #39). (RRV2 148-149). The trial court overruled Appellant’s objection. (RR-V2 149).

A jury venire member is subject to removal via a challenge for cause 

when he has a bias or prejudice against any of the law applicable to the case 

upon which the defendant is entitled to rely, either as a defense to some 

phase of the offense for which the defendant is being prosecuted or as 

mitigation thereof or of the punishment therefore. Cordova v. State, 733 

S.W.2d 175 (Tex. Crim. App. 1987); citing Tex. Code Crim. Proc. Art. 

35.16(c)(2). A venire member is subject to removal for cause if he would 

consider the defendant’s failure to testify at trial as evidence against the 

defendant in determining guilt. Montoya v. State, 810 S.W.2d 160 (Tex. 

Crim. App. 1989). A venire member is also subject to removal for cause if 

he is unable to consider the full range of punishment, including the 

minimum, and more specifically probation for an eligible defendant. 

Cardenas v. State, 325 S.W.3d 179 (Tex. Crim. App. 2010); Pierce v. State, 

696 S.W.2d 899 (Tex. Crim. App. 1985). The burden of demonstrating that a 
10

venire member should be excused for cause is on the party urging the 

excusal. Castillo v. State, 913 S.W.2d 529 (Tex. Crim. App. 1995). The 

burden is only by a preponderance of the evidence. Fuller v. State, 829 

S.W.2d 191 (Tex. Crim. App. 1992).

During his voir dire examination of the jury venire, Appellant’s trial 

attorney asked the venire members if any of them would consider a 

defendant’s failure to testify at trial as evidence of his guilt. (RR-V2 90-99).

Several venire members indicated that they would do so, including juror #4 

(RR-V2 90-92), juror #38 (RR-V2 94-95), juror #40 (RR-V2 95-96), and 

juror #42 (RR-V2 96-97). These four venire members statements on the 

record clearly established by a preponderance of the evidence that they were 

biased against applicable law upon which Appellant was entitled to rely, 

specifically his constitutional right not to testify at trial. Appellant’s trial 

attorney properly challenged these four venire members for cause on that 

basis, and it was error for the trial court to deny those challenges. (RR-V2 

118-120, 126-134). 

Appellant’s trial attorney also asked the venire members during voir 

dire if they could consider the full range of available punishment, including 

probation in the appropriate case. (RR-V2 108-112). Several venire 

members indicated that they could not consider assessing probation, 
11

including juror #28 (RR-V2 110), juror #54 (RR-V2 112), and juror #57 

(RR-V2 112). Again, the record clearly shows by a preponderance of the 

evidence that these three jurors were biased against applicable law upon 

which Appellant was entitled to rely, specifically his right to have 

consideration of the full range of punishment, including probation. 

Appellant’s trial attorney properly challenged these three venire members 

for cause on that basis, and it was error for the trial court to deny those 

challenges. (RR-V2 122-126, 138-146). 

POINT OF ERROR TWO

THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S 

MOTION TO SUPPRESS EVIDENCE OBTAINED FROM A CELL 

PHONE PURSUANT TO A SEARCH WARRANT WHERE THE 

AFFIDAVIT SUPPORTING THE SEARCH WARRANT FAILED TO 

ESTABLISH PROBABLE CAUSE.

RELEVANT FACTS, AUTHORITIES & ARGUMENT

At Appellant’s trial, the State offered into evidence numerous 

photographs and text messages that were taken from a cell phone that 

belonged to Appellant and which was allegedly left at the complainant’s 

residence and turned over to the police by her mother. (RR-V3 39-41, 50,

78-80, 85-99; State’s Exhibits 5 through 15, 17, 18, & 21). These photos and 

text messages were obtained pursuant to a search warrant obtained by the 

investigating officer. (RR-V3 60-66, 78-87, State’s Exhibits 19 & 20). 
12

Appellant’s attorney filed a motion to suppress this evidence alleging that 

the affidavit supporting the search warrant did not contain sufficient credible 

facts to establish probable cause, and that the search warrant was therefore 

deficient. (CR-B 95-99; RR-V3 54-56). Appellant’s attorney urged his 

motion to suppress and objected to the admission of the evidence obtained 

pursuant to the search warrant several times during Appellant’s trial, but the 

trial court denied his motion and overruled his subsequent objections. (CR-B 

99, 135; RR-V3 54-56, 81-82, 87-89). 

A search or seizure must be supported by probable cause. U.S. Const., 

Amend. IV; Tex. Const. Art. I §9; Tex. Code Crim. Proc. Art. 1.06; 

Estrada v. State, 154 S.W.3d 604 (Tex. Crim. App. 2005). A search warrant 

may not be issued without sufficient credible evidence establishing probable 

cause for the search being presented under oath or affirmation to a 

magistrate. Tex. Code Crim. Proc. Art. 18.01(b); Reese v. State, 712 

S.W.2d 131 (Tex. Crim. App. 1986). In determining if there is probable 

cause to support the issuance of a search warrant, the inquiry is limited to the 

four corners of the affidavit supporting the search warrant. State v. McLain, 

337 S.W.3d 268 (Tex. Crim. App. 2011). The credibility and reliability of 

not just the affiant but also his sources of information are part of the totality 

of the circumstances that must be considered in determining if probable 
13

cause has been established. Jaben v. United States, 381 U.S. 214 (1965);

Johnson v. State, 803 S.W.2d 272 (Tex. Crim. App. 1990). An affidavit 

does not establish probable cause for the search when it contains no 

recitation as to how the affiant learned or came by the information he relates 

in support of probable cause. Matamoros v. State, 901 S.W.2d 470 (Tex. 

Crim. App. 1995); Evans v. State, 530 S.W.2d 932 (Tex. Crim. App. 1975). 

In Appellant’s case, an examination confined to the four corners of the 

affidavit in support of the search warrant shows that it does not establish

sufficient probable cause to search the cell phone. It does not establish the 

credibility and reliability of the sole source of the affiant’s information about 

the cell phone, specifically the complainant’s mother, Isela Hearn. The 

affidavit merely states that Ms. Hearn represented that the cell phone was a 

gift from Appellant to the complainant, but contains no recitation of how 

Ms. Hearn learned that information or knows it to be factually true. The 

affidavit states that “Affiant was told that there were messages sent via the 

Cellular phone from the DEFENDANT [Appellant] to the COMPLAINANT 

which were recently intercepted by Ms. Hearn”, but again contains no 

recitation of how the affiant came by that information – who told the affiant, 

and how does that person know it to be true? This particular assertion by the 

affiant is especially critical and goes to the very heart of the matter, because 
14

absent credible and reliable information establishing the presence of such 

evidence in the cell phone – something to connect Appellant to the phone 

and to the complainant – there would be no probable cause to search it. And 

this affidavit presents nothing more on this critical issue than a fairly 

conclusory statement. Further, a close reading of the affidavit calls into 

question the thoroughness of any impartial review of the sufficiency of the 

probable cause since the bulk of the affidavit actually consists of the same 

paragraph (beginning with the words “Affiant was given the above 

mentioned Samsung Cellular phone ...” and ending with the words “a 

statement against her own interest”) repeated three times in close succession. 

(See State’s Exhibit #19).

Given that the affidavit in support of the search warrant does not 

establish sufficient probable cause to support the issuance of the search 

warrant, it was error for the trial court to deny Appellant’s motion to 

suppress.
15

CONCLUSION AND PRAYER

For the reasons set out in the foregoing points of error, Appellant 

prays that this Honorable Court of Appeals will reverse Appellant’s 

conviction and sentence and remand this case back to the trial court for a 

new trial or such other relief as this Honorable Court deems appropriate.

Respectfully submitted,

/s/ Randall J. Ayers

RANDALL J. AYERS

Attorney for Appellant

State Bar No. 01465950

P.O. Box 1569

Houston, Texas 77251-1569

rjayerslaw@comcast.net (email)

(281) 493-6333 (telephone)

(281) 493-9609 (fax)
16

CERTIFICATE OF SERVICE

 I certify that I served the foregoing Appellant’s Brief on the District 

Attorney of Harris County, Texas, by sending a copy to Mr. Alan Curry, 

Chief of the Appellate Division, Harris County District Attorney’s Office,

via electronic service to curry_alan@dao.hctx.net on September 23, 2015. 

/s/ Randall J. Ayers

RANDALL J. AYERS

Attorney for Appellant

State Bar No. 01465950

P.O. Box 1569

Houston, Texas 77251-1569

rjayerslaw@comcast.net (email)

(281) 493-6333 (telephone)

(281) 493-9609 (fax)

CERTIFICATE OF COMPLIANCE

 Pursuant to Rule 9(i)(3) of the Texas Rules of Appellate Procedure I 

certify that this document contains a total of 2,873 words.

/s/ Randall J. Ayers

RANDALL J. AYERS

Attorney for Appellant

State Bar No. 01465950

P.O. Box 1569

Houston, Texas 77251-1569

rjayerslaw@comcast.net (email)

(281) 493-6333 (telephone)

(281) 493-9609 (fax)