PD-0887-15

IN THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

GAREIC JERARD HANKSTON

Petitioner/Appellant 

v. 

THE STATE OF TEXAS

Respondent/Appellee 

On Petition for Discretionary Review from the Fourteenth Court of Appeals 

in Cause No. 14-13-00923-CR, affirming the conviction in 

Cause Number 1326559 from the 178th District Court of Harris County 

PETITION FOR DISCRETIONARY REVIEW

ORAL ARGUMENT NOT REQUESTED ALEXANDER BUNIN

 Chief Public Defender 

Harris County, Texas 

 ANGELA CAMERON

 Assistant Public Defender 

 Harris County, Texas 

Texas Bar No. 00788672 

1201 Franklin, 13th Floor 

Houston, Texas 77002 

Phone: (713) 368-0016 

Fax: (713) 368-9278 

 angela.cameron@pdo.hctx.net 

Counsel for Appellant

PD-0887-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 7/20/2015 4:32:01 PM

Accepted 7/22/2015 4:26:01 PM

ABEL ACOSTA

CLERK
ii

IDENTITY OF PARTIES AND COUNSEL

APPELLANT: Mr. Gareic Hankston 

TDC#1893832

4304 Hwy 202

Beeville, Texas 78102

PRESIDING JUDGE: Hon. David Mendoza

 178th District Court 

Harris County, Texas

 1201 Franklin Avenue, 9th floor

Houston, Texas 77002

TRIAL PROSECUTOR: Ms. Britni Cooper

APPELLATE PROSECUTOR: Mr. Eric Kugler

Assistant District Attorneys

 Harris County, Texas

 1201 Franklin Avenue, 6th floor

 Houston, Texas 77002

DEFENSE COUNSEL AT TRIAL: Mr. Brent Mayr

4101 Washington Ave., 2nd Fl.

Houston, Texas 77007

Mr. Chris Morton

1001 Texas Suite 1400

Houston, Texas 77002

DEFENSE COUNSEL ON APPEAL: Ms. Angela Cameron

 Assistant Public Defender

Harris County, Texas

 1201 Franklin Avenue, 13th floor

Houston, Texas 77002
iii

TABLE OF CONTENTS

Identity of Parties and Counsel..............................................................................................ii

Table of Contents...................................................................................................................iii

Index of Authorities............................................................................................................... v

Statement Regarding Oral Argument................................................................................... 1

Statement of the Case ............................................................................................................ 1

Statement of Procedural History .......................................................................................... 1

Grounds for Review............................................................................................................... 2

Reasons for Review................................................................................................................ 2

Statement of Facts.................................................................................................................. 3

Argument................................................................................................................................. 4

First Issue for Review............................................................................................................ 4

Did the Court of Appeals err when it “utilize[d] Fourth Amendment 

precedent” in determining Art. 1 Section 9 of the Texas Constitution 

was not violated when the State obtained Appellant’s cell phone records 

without a warrant in light of Richardson v. State, 865 S.W.2d 844 (Tex. 

Crim. App. 1993)?

The Court of Appeals’ Holding..................................................................... 4

The Court of Appeals failed to properly address Appellant’s State 

Constitutional Claim under Separate State Grounds.................................. 4

Second Issue for Review........................................................................................................ 7

Did the Court of Appeals err in finding Appellant did not have a Fourth 

Amendment reasonable expectation of privacy in his cell phone records 

under the third-party doctrine?

The Court of Appeals’ Holding..................................................................... 7
iv

Expectation of Privacy.................................................................................... 7

PRAYER ..................................................................................................................................10

CERTIFICATE OF SERVICE....................................................................................................10

CERTIFICATE OF COMPLIANCE ...........................................................................................11

APPENDIX.............................................................................................................................. 12
v

INDEX OF AUTHORITIES

Cases

Barfield v. State, 416 S.W.3d 743 (Tex. App. – Houston [14th Dist.] 2013, no pet.) .... 7, 8

Crittenden v. State, 899 S.W.2d 668 (Tex. Crim. App. 1995) ........................................... 5, 6

Hankston v. State, 14-13-00923-CR, 2015 WL 3751551(Tex. App. – Houston

[14th Dist.] June 16, 2015)(mem. op. not designated for publication).................passim

In re Application of U.S. for an Order Directing a Provider of Elec. Commc'n Serv. to Disclose 

Records to Gov't, 620 F.3d 304 (3d Cir. 2010).................................................................... 9

In re U.S. for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013) ................................... 7

Johnson v. State, 912 S.W.2d 227 (Tex. Crim. App. 1995) ............................................... 4, 5

Ford v. State, 444 S.W.3d 171(Tex. App. – San Antonio 2014, pet. granted)................... 9

Richardson v. State, 865 S.W.2d 844 (Tex. Crim. App. 1993) ......................................2, 4, 6

Riley v. California, 134 S.Ct. 2473 (2014) .........................................................................9, 10

Smith v. Maryland, 442 U.S. 735 (1979) ............................................................................. 6, 8

United States v. Jones, 132 S. Ct. 945 (2012)........................................................................... 8

United States v. Miller, 425 U.S. 435 (1976) ....................................................................... 6, 8

Statutes

Tex. Pen. Code §22.011 ......................................................................................................... 1

Rules

Tex. R. App. P. 66.3(b) .......................................................................................................... 2

Tex. R. App. P. 66.3(c)........................................................................................................... 2
vi

Constitutional Provisions

U.S. Const. amend IV........................................................................................................... .6

Tex. Const. Art. 1. §9......................................................................................................... 4, 6
1

STATEMENT REGARDING ORAL ARGUMENT

Oral argument is not requested. 

STATEMENT OF THE CASE

Mr. Hankston was charged with murder (C.R. at 14). See Tex. Pen. Code 

§19.02. Hankston entered a plea of “not guilty.” (8 R.R. at 27). After a jury trial, 

Hankston was found guilty and sentenced by a jury to twenty (20) years imprisonment 

in the Texas Department of Corrections – Institutional Division (C.R. at 180). Timely 

notice of appeal was filed (C.R. at 185). 

STATEMENT OF PROCEDURAL HISTORY

In an unpublished opinion, the Fourteenth Court of Appeals affirmed Mr. 

Hankston’s conviction. Hankston v. State, No. 14-13-00923-CR, 2015 WL 3751551 

(Tex. App. – Houston [14

th Dist.], June 16, 2015) (mem. op., not designated for 

publication). The Court upheld the trial court’s denial of a Motion to Suppress 

Historical Cell Phone Records which were obtained without a warrant. The State 

used the record to establish that close to the time of the murder Hankston was near 

the complainant’s home and that immediately thereafter his phone usage was more 

than any other comparable time frame in the preceding seven months. No motion for 

rehearing was filed. This petition is timely if filed on or before August 17, 2015.
2

GROUNDS FOR REVIEW

Did the Court of Appeals err when it “utilize[d] Fourth Amendment 

precedent” in determining Art. 1 Section 9 of the Texas Constitution 

was not violated when the State obtained Appellant’s cell phone records 

without a warrant in light of Richardson v. State, 865 S.W.2d 844 (Tex. 

Crim. App. 1993)?

Did the Court of Appeals err in finding Appellant did not have a Fourth 

Amendment reasonable expectation of privacy in his cell phone records 

under the third-party record doctrine? 

REASON FOR REVIEW

The Fourteenth Court of Appeals has decided an important question of 

state and federal law that has not been, but should be settled by the 

Court of Criminal Appeals. Tex. R. App. P. 66.3(b). 

The Fourteenth Court of Appeals has decided an important question of 

state law in a way that conflicts with this Court’s decision in Richardson v. 

State, 865 S.W.2d 844 (Tex. Crim. App. 1993). Tex. R. App. P. 66.3(c).

This Court is currently considering similar issues in Ford v. State, PD1396-14. Oral argument was held on May 20, 2015. 
3

 STATEMENT OF FACTS

Keith Brown, the complainant, was shot through his front door after someone 

tried to enter his home when Brown went to answer a knock on the door (8 R.R. at 

181-186). Brown subsequently died from the gunshot wounds (10 R.R. at 143). 

Brown’s nine year old son, M.B., was the only person to have claimed seeing the 

shooter (9 R.R. 107 & 147). When M.B. heard the knock on the door, he looked out 

the window and saw a man with a gun (9 R.R. 112-28). M.B. only saw the man for 

about 3-4 seconds (9 R.R. 137). 

Gareic Hankston was the sixth suspect in the investigation. (10 R.R. 287-315). 

His arrest resulted from M.B. identifying Hankston, in the third photo lineup 

presented to M.B. over a period of several months. (9 R.R. 185-188; 11 R.R. 186).

The State’s theory at trial was that Hankston shot Brown because Brown had 

been stalking Hankston’s girlfriend for some time, including the night of the murder 

(10 R.R. at 14) (12 R.R. at 137-140). One officer testified this motive was “the most 

important piece of corroborating evidence” especially in light of the fact Brown had 

been at Hankston’s girlfriend’s home “only 45 minutes to an hour before he was 

killed.” (11 R.R. at 36-37).

The State obtained Hankston’s cell phone records without a warrant and 

instead relied on an ex parte court order (4 R.R. at 5-6). The records obtained 

included call logs as well as cell site information (10 R.R. at 340). The State used the 

records to 1) place Hankston in the vicinity of Brown’s home near the time of the 
4

murder and 2) to discredit Hankston’s alibi witness by showing Hankston had called 

her shortly before and after the murder and 3) to show Hankston had a higher call 

volume during the “23 minutes immediately after the murder... than for any other 23 

minute period in 206 days” (11 R.R. at 39-40). 

ARGUMENT

First Issue for Review

Did the Court of Appeals err when it “utilize[d] Fourth Amendment 

precedent” in determining Art. 1 Section 9 of the Texas Constitution

was not violated when the State obtained Appellant’s cell phone records 

without a warrant in light of Richardson v. State, 865 S.W.2d 844 (Tex. 

Crim. App. 1993)?

The Court of Appeals’ Holding

The Court of Appeals held the State’s obtaining of appellant’s cell phone 

records without a warrant did not violate Article 1, section 9 of the Texas 

Constitution because “he could not have a reasonable expectation of privacy in 

information he voluntarily conveyed to a third party” Hankston v. State, 14-13-00923-

CR, 2015 WL 3751551, 5-6 (Tex. App. – Houston [14th Dist.] June 16, 2015, no 

pet.)(mem. op. not designated for publication). 

The Court of Appeals failed to properly address Appellant’s State 

Constitutional Claim under Separate State grounds.

In overruling Appellant’s Texas Constitutional claim, the Court of Appeals 

determined it should “utilize Fourth Amendment precedent” to address Appellant’s 

claim, relying on language from this Court’s opinions in Johnson v. State, 912 S.W.2d 
5

227 (Tex. Crim. App. 1995) and Crittenden v. State, 899 S.W.2d 668 (Tex. Crim. App. 

1995). The Court of Appeals stated: 

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 difference” 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 between the respective drafters, there would be no 

apparent reason to prefer an interpretation of Article I, § 9 

any different from our preferred 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).

Hankston at 6. 

However, in Johnson this Court went on to say its opinion did not mean 

“that there will be a reversion to interpreting Art. I, § 9 in lock-step with the 

Supreme Court's interpretation of the Fourth Amendment...[and that]...if the 

Courts of Appeals and this Court decide to raise the ceiling of the freedom of 

Texas citizens from unreasonable searches and seizures, it will be done by 

choosing in individual cases to interpret Art. I, § 9 in a manner justified by the 

facts of the case, state precedent on the issue, and state policy considerations.” 

Johnson at 234 (Tex. Crim. App. 1995).

The Court of Appeals further concluded that 
6

Aside from citing to Richardson, appellant does not provide any reasoning 

as to why the Texas Constitution affords greater protection in this 

instance. Appellant cites to no authority for this proposition and does 

not point to any difference in the two provisions to warrant such a 

result. 

Hankston v. State, at 6. 

Richardson is enough authority for the proposition that Art. 1 § 9 provides 

greater protection than the Fourth Amendment regarding the warrantless obtaining of 

phone records. In Richardson, the Court found that under the Texas Constitution the 

use of pen register could be a search despite the Supreme Court’s finding that it was 

not a search under the Fourth Amendment. Richardson specifically discussed the Smith 

v. Maryland, 442 U.S. 735 (1979) and United States v. Miller, 425 U.S. 435 (1976) thirdparty business records analysis upon which the Court of Appeals relies. The Richardson

Court was “persuaded by the weight and persuasiveness of critical and judicial 

authority that the Supreme Court was wrong to conclude in Smith that there was no 

objectively reasonable expectation of privacy in the numbers one dials on the 

telephone.” Crittenden v. State, 899 S.W.2d 668, 673 n.8 (Tex. Crim. App. 1995). Thus 

Richardson provides precedent that the Texas Constitution provides greater protection 

in regards to records from third parties and as such the Court of Appeals erred in not 

addressing Appellant’s claim under the Texas Constitution and this Court should 

grant review.
7

Second Issue for Review

Did the Court of Appeals err in finding Appellant did not have a Fourth 

Amendment reasonable expectation of privacy in his cell phone records 

under the third-party record doctrine? 

The Court of Appeals’ Holding

The Court of Appeals held that the State’s actions in obtaining Appellant’s cell 

phone records did not violate Appellant’s Fourth Amendment rights. In reaching this 

conclusion, the Court of Appeals stated:

Based on this court's precedent,

1

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 appellant'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 actions 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.

Hankston v. State, No. 14-13-00923-CR, 2015 WL 3751551, at *5 (Tex. App. June 16, 

2015) (footnote added).

Expectation of Privacy

The Barfield opinion is based on the reasoning of In re U.S. for Historical Cell Site 

Data, 724 F.3d 600, 610 (5th Cir.2013). As recognized by the Barfield court “[t]he 

 

1 The Court of Appeals is referencing its prior case of Barfield v. State, 416 S.W.3d 743 (Tex. App. –

Houston [14th Dist.] 2013, no pet.). 
8

Fifth Circuit opinion hinges on a determination of whether individuals have a 

‘reasonable expectation of privacy’ in their location information transmitted each time 

they make a cell phone call and received and stored by their service provider.” Barfield 

at 747. In finding no Fourth Amendment violation, the Fifth Circuit relied on the 

third-party doctrine of Smith v. Maryland, 442 U.S. 735 (1979) and United States v. Miller, 

425 U.S. 435 (1976). 

However, the validity of the third-party records doctrine as applied to 

technological advances is not certain. In her concurring opinion in United States v. 

Jones, Justice Sotomayor noted: 

it may be necessary to reconsider the premise that an individual has no 

reasonable expectation of privacy in information voluntarily disclosed to 

third parties. This approach is ill suited to the digital age, in which people 

reveal a great deal of information about themselves to third parties in the 

course of carrying out mundane tasks. People disclose the phone 

numbers that they dial or text to their cellular providers; the URLs that 

they visit and the e-mail addresses with which they correspond to their 

Internet service providers; and the books, groceries, and medications 

they purchase to online retailers. Perhaps, as Justice ALITO notes, some 

people may find the “tradeoff” of privacy for convenience 

“worthwhile,” or come to accept this “diminution of privacy” as 

“inevitable,” post, at 962, and perhaps not. I for one doubt that people 

would accept without complaint the warrantless disclosure to the 

Government of a list of every Web site they had visited in the last week, 

or month, or year. But whatever the societal expectations, they can attain 

constitutionally protected status only if our Fourth Amendment 

jurisprudence ceases to treat secrecy as a prerequisite for privacy. I 

would not assume that all information voluntarily disclosed to some 

member of the public for a limited purpose is, for that reason alone, 

disentitled to Fourth Amendment protection. 
9

United States v. Jones, 132 S. Ct. 945, 957, 181 L. Ed. 2d 911 (2012) (internal citations 

omitted). 

Additionally, whether the user of a cell phone voluntarily reveals his location to 

his service provider is also not settled law. The Third Circuit reached the opposite 

conclusion from the Fifth Circuit on this issue and stated:

A cell phone customer has not “voluntarily” shared his location 

information with a cellular provider in any meaningful way. As the EFF 

notes, it is unlikely that cell phone customers are aware that their cell 

phone providers collect and store historical location information. 

Therefore, “[w]hen a cell phone user makes a call, the only information 

that is voluntarily and knowingly conveyed to the phone company is the 

number that is dialed and there is no indication to the user that making 

that call will also locate the caller; when a cell phone user receives a call, 

he hasn't voluntarily exposed anything at all.” 

In re Application of U.S. for an Order Directing a Provider of Elec. Commc'n Serv. to Disclose 

Records to Gov't, 620 F.3d 304, 317-18 (3rd Cir. 2010) (internal citations omitted).

Finally, as Justice Chapa pointed out in her dissent in Ford v. State, 

the Supreme Court has recently recognized that modern cell phones—

now a “pervasive and insistent” part of modern life—present privacy 

concerns far beyond the founding principles of the Fourth Amendment 

and the circumstances of the founding era... The Court recognized that 

“[m]odern cell phones, as a category, implicate privacy concerns far 

beyond those implicated by the search of a cigarette pack, a wallet, or a 

purse” and that “[c]ell phones differ in both a quantitative and a 

qualitative sense from other objects that might be kept on an arrestee's 

person.” Id. at 2488–89. 

Ford v. State, 444 S.W.3d 171, 202 (Tex. App. – San Antonio 2014, pet. granted) citing 

Riley v. California, 134 S.Ct. 2473 (2014). Justice Chapa went on to conclude that 

“[s]imilar to the way that the search-incident-to-arrest doctrine was ill suited to the 
10

digital data contained on cell phones seized during an arrest, the third-party doctrine is 

‘ill suited to the digital age, in which people reveal a great deal of information about 

themselves to third parties in the course of carrying out mundane tasks.’” Id. 

The issue of how the third-party record doctrine applies in light of the modern 

technology of cell phones is a novel question of law that has yet to be answered by 

this Court or U.S. Supreme Court and as such this Court should grant review. 

PRAYER

For these reasons, Mr. Hankston prays this Court to grant discretionary review.

Respectfully submitted,

ALEXANDER BUNIN

Chief Public Defender

Harris County Texas 

/s/ Angela Cameron 

ANGELA CAMERON

Assistant Public Defender 

1201 Franklin, 13th floor

Houston Texas 77002

(713) 368-0016

TBA No. 00788672

email: angela.cameron@pdo.hctx.net

CERTIFICATE OF SERVICE

I certify that I provided a copy of the foregoing petition to the Harris County District 

Attorney and the State Prosecuting Attorney via e-filing service on the 20

th day of July 

2015.

/s/ Angela Cameron 

ANGELA CAMERON
11

CERTIFICATE OF COMPLIANCE

 Pursuant to Rule 9.4(i)(3), undersigned counsel certifies that this brief complies 

with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).

1. This petition for discretionary review contains 3,236 words printed in a 

proportionally spaced typeface.

2. This brief is printed in a proportionally spaced, serif typeface using Garamond 

14 point font in text and Garamond 12 point font in footnotes produced by 

Microsoft Word software.

3. Upon request, undersigned counsel will provide an electronic version of this 

brief and/or a copy of the word printout to the Court.

4. Undersigned counsel understands that a material misrepresentation in 

completing this certificate, or circumvention of the type-volume limits in Tex. R. App. 

Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against 

the person who signed it.

/s/ Angela Cameron

ANGELA L. CAMERON
Hankston v. State, Not Reported in S.W.3d (2015)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

2015 WL 3751551

Only the Westlaw citation is currently available.

SEE TX R RAP RULE 47.2 FOR

DESIGNATION AND SIGNING OF OPINIONS.

DO NOT PUBLISH—TEX. R. APP. P. 47.2(B).

Court of Appeals of Texas,

Houston (14th Dist.

Gareic Jerard Hankston, Appellant

v.

The State of Texas, Appellee

NO. 14–13–00923–CR |

Memorandum Opinion filed June 16, 2015

On Appeal from the 178th District Court, Harris County,

Texas, Trial Court Cause No. 1326559

Attorneys and Law Firms

Devon Anderson and Eric Kugler, for The State Bar of Texas.

Angela Lee Cameron, for Gareic Jerard Hankston.

Panel consists of Justices Christopher, Donovan, and Wise.

MEMORANDUM OPINION

Ken Wise, Justice

*1 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 court erred by failing

to grant his pre-trial motion to suppress his cell phone records.

We affirm.

BACKGROUND

The complainant, Keith Brown, stalked appellant's girlfriend

Crystal Jordan 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 complainant standing in Jordan's mother's driveway and

the complainant told the neighbor that he was “protecting

their house.” Jordan's stepfather also found the complainant's

cell phone outside her window. When Jordan moved to her

apartment complex, the complainant 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, 2011, 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 Jordan'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 situation

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

she 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 taken PCP because he was nonresponsive

to her. The 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 complainant 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.
Hankston v. State, Not Reported in S.W.3d (2015)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

*2 Shortly after the complainant went inside his house,

someone started banging loudly on the front door. When

the complainant asked who was there, the person 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 gunshots 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.

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 never met or spoken.

The complainant's nine-year-old son Malik was in the front

living room when the shooting occurred. 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 jeans.

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 punishment at twenty years in prison.

ISSUES AND ANALYSIS

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 records because the State obtained those records

without a warrant in violation of the Fourth Amendment and

Article I, section 9 of the Texas Constitution.

I. The Evidence is Legally Sufficient to Convict

Appellant of Murder

When reviewing the sufficiency of the 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 reasonable 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 conflicts 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 of the

evidence, but only ensure the jury reached a rational decision.

Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App.1993).

*3 The jury was instructed on murder and the law of parties.

A person commits the offense of murder if he intentionally

or knowingly causes the death of an individual. Tex. Penal

Code § 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 Code § 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 of the vehicle fleeing the scene

was different from the vehicle being driven by appellant;
Hankston v. State, Not Reported in S.W.3d (2015)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

(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 Malik'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 shooter'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 determination 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 was free to believe

or disbelieve any or part of Malik's testimony. See id.

The State also offered evidence to corroborate Malik's

testimony, including (1) the description of appellant's vehicle;

(2) appellant's motive for the killing; and (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. Officer Burrow testified that he spoke to a neighbor

who saw a 2000 or 2006 burgundy Honda Civic being driven

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 photographs 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. The shooting occurred less than one

hour after the complainant showed up at Jordan's apartment.

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 seriously 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 believed 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.

*4 Appellant's phone records established that he was in

the vicinity of the complainant's home during the shooting.

Although appellant contends that this is the same area where

Jordan'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, 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 murder 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 one of the theories.”) (citing Rabbani

v. State, 847 S.W.2d 555, 558–59 (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 State's main
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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

Motion 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 Constitution and Article I,

section 9 of the Texas Constitution.

When reviewing a trial court'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 evidence 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

as 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 States Constitution

protects 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 legitimate 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 relies 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. to 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.3d 743 (Tex.App.–

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

*5 In Barfield, the State used third-party cell tower records

to establish the defendant's whereabouts 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 reasonable

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. (quoting 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 conveying 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 nearby 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 provider, and make a call

from a particular location. Id. at 748–49. Thus, in relying

primarily on the 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 expectation of privacy. Id. at 749.
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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 Provider of Elec.

Commc'n Serv. to 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 precedent, 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 appellant'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 actions 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

*6 Appellant also contends that the State's acquisition

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 the Supreme Court decisions that address the Fourth

Amendment. In support 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.Crim.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. State, the

Court of Criminal Appeals acknowledged that it can interpret

this provision in a manner that grants defendants greater

rights under Article I, section 9 of the Texas Constitution

than afforded by the Supreme Court's interpretation of the

United States Constitution. 2 815 S.W.2d 681, 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 difference”

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 between the respective

drafters, there would be no apparent

reason to prefer an interpretation of

Article I, § 9 any different from our

preferred 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).

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. Rothenberg 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)).

Aside from citing to Richardson, appellant does not provide

any reasoning as to why the Texas Constitution affords

greater protection in this instance. 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 does not

violate Article I, section 9 of the Texas Constitution.

We overrule appellant's first issue regarding his motion to

suppress.
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CONCLUSION

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.

All Citations

Not Reported in S.W.3d, 2015 WL 3751551

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.