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Nos. 01-15-00416-CR, 01-15-00417-CR, 01-15-00418-CR

 

IN THE COURT OF APPEALS

FOR THE FIRST DISTRICT OF TEXAS

TRAVIS MARCELLAUS EDWARDS

Appellant 

v. 

THE STATE OF TEXAS

Appellee 

On Appeal from Cause Numbers 1353154, 1443321, and 1443322 

From the 228th District Court of Harris County, Texas 

BRIEF FOR APPELLANT

 ALEXANDER BUNIN

 Chief Public Defender 

Harris County, Texas 

 DAUCIE SCHINDLER

 Assistant Public Defender 

 Harris County, Texas 

 Texas Bar Number 24013495 

1201 Franklin, 13th Floor 

Houston, Texas 77002 

Phone: (713) 368-0016

Fax: (713) 386-9278

Counsel for Appellant 

Oral Argument is Requested 

ACCEPTED

01-15-00418-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS

11/24/2015 9:46:06 AM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 11/24/2015 9:46:06 AM CHRISTOPHER A. PRINE Clerk
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IDENTITY OF PARTIES AND COUNSEL

APPELLANT: Mr. Travis M. Edwards

TDCJ No. 01996602

Garza West Transfer Facility

4250 Highway 202

Beeville, Texas 78102

TRIAL PROSECUTOR: Mr. Aaron Chapman

Assistant District Attorneys

 Harris County, Texas

 1201 Franklin

Houston, Texas 77002

DEFENSE COUNSEL AT TRIAL: Ms. Allie R. Booker

4801 Woodway, Suite 300E

Houston, Texas 77056

Mr. Ronald Ray, Sr.

1456 FM 1960 West

Houston, Texas 77090

PRESIDING JUDGE: Hon. Marc Carter

228th District Court

Harris County, Texas

 1201 Franklin,16

th Floor

Houston, Texas 77002

COUNSEL ON APPEAL FOR APPELLANT: Ms. Daucie Schindler

 Assistant Public Defender

 Harris County, Texas

 1201 Franklin, 13th Floor

Houston, Texas 77002

Daucie.Schindler@pdo.hctx.net
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TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL................................................................................... 2

TABLE OF CONTENTS ............................................................................................................. 3

INDEX OF AUTHORITIES......................................................................................................... 5

STATEMENT OF THE CASE...................................................................................................... 7

STATEMENT OF FACTS ............................................................................................................ 7

SUMMARY OF THE ARGUMENT ............................................................................................ 13

ARGUMENT............................................................................................................................ 14

ISSUE ONE: The trial court erred by denying Mr. Edwards’ Motion 

to Suppress evidence seized pursuant to a general 

search warrant. 

ARGUMENT .......................................................................................................... 14

ISSUE TWO: The trial court abused its discretion in admitting over 

objection text messages that the State claimed to have 

been authored by Mr. Edwards and an unknown 

individual, where the evidence was not sufficiently 

authenticated. There was inadequate circumstantial 

evidence establishing that such evidence was what its 

proponent claimed it to be, namely, a message actually 

sent by Mr. Edwards.

ARGUMENT .......................................................................................................... 18

APPLICABLE LAW, STANDARD OF REVIEW, AND DISCUSSION ........................ 19

HARM ANALYSIS .................................................................................................. 24

ISSUE THREE: The evidence is legally insufficient to sustain Mr. 

Edwards’ conviction for aggravated robbery because a 

reasonable doubt exists regarding whether he was in 

the course of committing theft at the time he allegedly 

used force against the complainant.

STANDARD OF REVIEW....................................................................................... 25
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ISSUE FOUR: Without some form of factual sufficiency review, Mr.

Edwards is deprived of his right to meaningful review of his 

conviction for aggravated robbery, as guaranteed by the U.S. 

Constitution and this Court should conclude that the 

evidence in this case is factually insufficient to support that 

conviction. 

ARGUMENT ......................................................................................................... 27

PRAYER .................................................................................................................................. 31

CERTIFICATE OF COMPLIANCE............................................................................................ 32

CERTIFICATE OF SERVICE .................................................................................................... 33
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INDEX OF AUTHORITIES

Cases

Angleton v. State, 971 S.W.2d 65 (Tex. Crim. App. 1998). ................................................ 19

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)......................................26, 28, 30

Campbell v. State, No. 13-11-00834-CR, 2012 WL 3793431 (Tex. App. -Austin August 

31, 2012, no pet.). .................................................................................................20, 21, 22

Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996)................................................... 30

Coolidge v. New Hampshire, 403 U.S. 443 (1971) .....................................................14, 16, 17

Druery v. State, 225 S.W.3d 491 (Tex. Crim. App), cert denied, 128 S.Ct. 627 (2007).. 20

Griffin v. Illinois, 351 U.S. 12 (1956). ................................................................................... 27

Griffin v. State, 19 A.3d 415 (Md. 2011).............................................................................. 22

Hacker v. State, 389 S.W.3d 860 (Tex. Crim. App. 2014). ................................................ 27

Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007)...................................................... 27

In re Winship, 397 U.S. 358 (1970)....................................................................................... 28

Jackson v. Virginia, 443 U.S. 307 (1979). .......................................................................26, 29

Lemons v. State, 298 S.W.3d 658 (Tex. App. –Tyler 2009, pet. ref’d).............................. 17

Maryland v. Garrison, 480 U.S. 79 (1987).......................................................................14, 16

M.L.B. v. S.L.J., 519 U.S. 102 (1996). ................................................................................ 28

Moreno v. State, 755 S.W.2d 866 (Tex. Crim. App. 1988). ................................................ 26

Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002).................................................... 24

Rich v. State, 160 S.W.3d 575 (Tex. Crim. App. 2005)...................................................... 24

Riley v. United States, 13-132, 2014 WL 2864483, ___U.S.___ (June 25, 2014)............. 18

State v. Dixon, 13-09-004445-CR, 2010 WL3419231 (Tex. App. -Corpus Christi Aug. 

27, 2010, pet. ref'd)........................................................................................................... 17

Tibbs v. Florida, 457 U.S. 31 (1982) ..................................................................................... 26

Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012). .............................. 19, 20, 21, 22

Trevino v. Thaler, 133 S. Ct. 1911 (2013)........................................................................28, 29

United States v. Finley, 477 F.3d 250 (5

th Cir. 2007)............................................................ 17

United States v. Leary, 846 F.2d 592 (10th Cir. 1988). ......................................................... 17

United States v. Ross, 456 U.S. 798 (1982)............................................................................ 15

United States v. Warshak, 631 F.3d 266 (6

th Cir. 2010) ...................................................... 17

Tolentino v. State, 638 S.W.2d 499 (Tex. Crim. App. [Panel Op.] 1982) ......................... 14

Williams v. State, 235 S.W.3d 742 (Tex. Crim App. 2007)................................................ 26

Winfrey v. State, 323 S.W.3d 875 (Tex. Crim. App. 2010)................................................. 27
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Statutes

Texas Criminal Procedure Code Ann. Art. 18.01 ............................................................ 14

Texas Penal Code §29.02..................................................................................................... 25

Texas Penal Code §31.03..................................................................................................... 25

Rules

Texas Rules of App. Proc. 44.2(b). ..............................................................................19, 24

Texas Rules of Evidence 104.............................................................................................. 19

Texas Rules of Evidence 401.............................................................................................. 19

Texas Rules of Evidence 901........................................................................................19, 20 

Constitutional Provisions

U.S. Constitution Amendment IV..................................................................................... 14
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STATEMENT OF THE CASE

Mr. Edwards was charged by indictment on August 14, 2012, with aggravated 

assault in cause number 1353154. (1 C.R. at 17). He was charged by indictment on 

September 30, 2014, with aggravated robbery in cause number 1443321, (2 C.R. at 5), 

and with felon in possession of a firearm in cause number 1443322. (3 C.R. at 5). 

The indictments further alleged an enhancement paragraph for a prior conviction for 

aggravated robbery. Mr. Edwards pled “not guilty” as charged in the indictments. (3 

R.R. at 23). After a jury trial, Mr. Edwards was found guilty on all three charges and 

sentenced to thirty (30) years in the Institutional Division of the Texas Department 

of Criminal Justice for both the aggravated assault and the aggravated robbery. He 

was sentenced to ten (10) years for the felon in possession of a weapon charge and all 

three sentences were ordered to run concurrently. (6 R.R. at 66). Timely Notice of 

Appeal was filed on April 23, 2015, and undersigned counsel with the Harris County 

Public Defender’s Office was appointed to represent Mr. Edwards on appeal. (1 C.R. 

at 501-503, 2 C.R. at 59-61, and 3 C.R. at 57-59). 

STATEMENT OF FACTS

Angel Madrazo, a Cuban immigrant to the United States, worked as a security 

guard for Texas Line Agency Patrol with the assignment of monitoring the admission 

of patrons to a game room. Only individuals with membership cards were admissible 

to the game room and he was responsible for refusing admission to nonmembers. 

Mr. Madrazo wore a security guard’s uniform, but he took off the shirt and left it in 
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his truck when he used the restroom because the restroom was small and had no 

place to hang clothing. On June 21, 2012, he removed his shirt to use the restroom, 

but when he returned to his post, two male nonmembers attempted to enter the game 

room. When he refused admission one of the men pulled out a gun. Unable to 

retrieve his own weapon quickly enough, Mr. Madrazo kicked the man with the gun 

causing him to fall backwards and accidently discharge his weapon. That man, who 

Mr. Madrazo identified in the courtroom as Mr. Edwards, regained his balance and 

took off running. Mr. Madrazo chased the man and noticed two additional men; one 

in a car and the other behind the car. A shootout ensued and Mr. Madrazo 

discharged his weapon at least fifteen times. (4 R.R. at 140-161). 

Two patrons of the game room, Katherine Butler and Curtis Young, saw the 

men attempt to enter and heard several shots fired. Ms. Young was able to see the 

guard follow the men out of the game room and duck behind a big pillar; firing his 

gun. Mr. Young was outside and saw an illegally parked car with a man sitting in it. 

Both of them believed that bullets seemed to be “coming from everywhere.” Mr. 

Young called 911 and he was able to approach Mr. Madrazo and allow him to speak 

with the 911 operator. (4 R.R. at 95; 110-124). 

The first responder to the scene was deputy Tommy Wilks with the Harris 

County Sheriff’s Office. When he arrived at the location he identified a Hispanic 

male, Mr. Madrazo, and found him to be in possession of a 9-milimeter pistol. Mr. 
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Madrazo gave him the weapon and an empty magazine. Deputy Wilks conducted a 

protective sweep, secured the scene, and took the statements of witnesses while other 

officers and the crime scene investigation unit arrived. (5 R.R. at 10-23).

Deputy Gary Clayton with the Harris County Sheriff’s Office crime scene unit

arrived at the scene and recovered a number of spent shell casings and one firearm 

from outside the game room, but he was denied access to the interior of the game 

room. In addition, the vehicle at the scene was processed and it was determined that 

the ignition system had been broken suggesting that the vehicle had been stolen. A

deformed projectile was found on the floor of the vehicle and a cell phone was found 

on top of the vehicle. Finger prints were lifted from the lid of the trunk and the 

fingerprints indicated a possible match to Mr. Edwards. (5 R.R. at 26-55). 

Deputy Clayton recovered four (4) Winchester Lugar 9-millimeter spent 

casings, five (5) PPU Lugar 9-millimeter spent casings, one (1) CBC 9-millimeter 

Lugar spent casing, two (2) Blazer 9-millimeter Lugar spent casings, one (1) 

Winchester 9-millimeter Lugar spent casing, and one (1) Federal .380 caliber auto 

spent casing at the scene. (5 R.R. at 83). The gun that was obtained from the security 

guard at the scene was a 9-millimeter semiautomatic firearm. (5 R.R. at 78). 

Therefore, nearly all of projectiles recovered were fired from the security guard’s gun. 

(5 R.R. 96).
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Deputy Roberto Rincon with the robbery division of the Harris County 

Sheriff’s Office was assigned to the case on June 27, 2012. He produced a photo 

array that included a picture of Mr. Edwards and he presented it to Mr. Madrazo who 

identified Mr. Edwards. (4 R.R. at 41-48; 54). Mr. Madrazo also gave a statement 

indicating that he had discharged his weapon and believed that he had hit one of the 

suspects. On the day of the robbery, a man named Rory Jones was admitted to the 

hospital with a gunshot wound and he too was identified as a suspect in the robbery. 

An employee at the game room, Maria Madina, was able to identify Mr. Jones as one 

of the shooters at the scene, but she was not able to identify Mr. Edwards. (4 R.R. at 

49-58). Accord to Deputy Rincon, Mr. Edwards was originally charged with 

aggravated assault, not aggravated robbery, because there was no evidence that he 

“demanded any money.” (4 R.R. at 78). In addition, Rebecca Mikulasovich, a DNA 

analyst with the Harris County Institute of Forensic Sciences, analyzed several swabs 

for this case and was not able to match any of the samples taken to a DNA sample 

obtained from Mr. Edwards. (5 R.R. at 132-158). 

Tuan Pham, an investigator with the Harris County District Attorney’s Office, 

received the cell phone that was obtained in connection with this case and he 

downloaded the data from the phone to a thumb drive. He generated a report 

documenting all of the data obtained from the phone and the phone’s SD card 
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including pictures, e-mails, and text messages that predated and were unrelated to this 

case. 

However, on June 21, 2012, there was a series of text messages suggesting that 

someone was scoping out an unknown location for purposes of committing a 

robbery. The text messages were admitted into evidence as follows:

Incoming Text: A lil Mexican man for security. One man, two chicks, 

Mexicans. They by the door. The Mexican chick in purple 

got the money. 

Outgoing text: So it’s four people total. One security guard, two floor 

workers both ladies and a dude? What side does he have 

his strap on? Also is he opening the doors to let people 

out? 

Incoming Text: Right side but he old.

Incoming text: He swing the door open wide

Outgoing text: How many people total on the floor, 3 r 4? Whenever its 

good. We ready.

Incoming text: Yea, he open it and he watching TV with two of the 

workers talking. The one with the money in the purple got 

the money.

Outgoing Text: So it’s just two ladies n a security guard? I keep asking 

bcuz I don’t won’t no surprises.

Incoming text: One other Mexican man in a gray shirt.

Outgoing Text: Do we have a strap?

Incoming Text: Yea, on the right side.

Outgoing Text: We were finding a escape route. Is it still good?
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Incoming Text: Yea

Incoming Text: They emptying two machines.

Outgoing Text: Let them empty them all out. Keep ur eyes open. They 

‘bout to hit the back room and count the scrill.

Incoming Text: Ok.

Outgoing Text: Where is the employees only room located?

Incoming Text: In the front.

Outgoing Text: To the left r right? Queen, I need specific details.

Incoming Text: Nall the back, but let me watch them ‘cause they signs 

fucked up. That’s a restroom right in front, but it’s two 

doors in the back.

Incoming Text: They all doing the machines with the money in a 

Honeybun box.

Outgoing Text: Let them finish n when they all on the floor, text me when 

it’s good.

Incoming Text: Money room back right-hand side on the ATM side.

Incoming Text: Ok, one chick in the back, but they close at 12.

Outgoing Text: Is U ready? Can that door be kicked open? Is the money 

room open?

Incoming Text: The chick in black in there and the chain off the door. 

What I need to do?

Outgoing text: If it’s cool n that security guard chilling, draw ur tic n hit 

me.

Incoming Text: I’m da only person left. What’s good?
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Outgoing Text: When u c us, pull up, cum out, When he get out.

(5 R.R. at 184-194; State’s Exhibit 205).

SUMMARY OF THE ARGUMENT

The trial court erred in denying Mr. Edward’s Motion to Suppress and 

improperly admitting evidence obtained from a cell phone found at the scene and 

searched pursuant to an impermissibly general search warrant. Even if the search 

warrant is deemed sufficiently specific, the text messages obtained from the phone 

and attributed to Mr. Edwards and an unknown individual were inadmissible because 

the state failed to properly authenticate them and the probative value of admission 

was outweighed by the prejudicial effect. 

In addition, Mr. Edwards argues that the evidence is in no way sufficient to 

support a conviction for aggravated robbery, as there was not even a modicum of 

evidence that Mr. Edwards took any measure toward committing theft of property. 

Even if the evidence is legally sufficient, Mr. Edwards will be denied due process of 

law if this court fails to conduct a factual sufficiency review because the evidence is 

factually insufficient to support his conviction for aggravated robbery.
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ARGUMENT

ISSUE ONE: The trial court erred by denying Mr. Edwards’ Motion 

to Suppress evidence seized pursuant to a general 

search warrant. 

STANDARD OF REVIEW

The Fourth Amendment to the United States Constitution requires that “no 

warrants shall issue, but upon probable cause, supported by oath or affirmation, and 

particularly describing the place to be searched, and the person or things to be 

seized.” U.S. Const amend. IV. Likewise, the Texas Code of Criminal Procedure 

article 18.01(c) requires a probable cause affidavit to set forth facts establishing that 

(1) a specific offense has been committed, (2) the item to be seized constitutes 

evidence of the offense or evidence that a particular person committed the offense, 

and (3) the item is located at or on the person, place, or thing to be searched. Tex. 

Code Crim. Proc. Art. 18.01(c); see Tolentino v. State, 638 S.W.2d 499, 501 (Tex. Crim. 

App. [Panel Op.] 1982). 

Items, such as data, can only be seized if there is probable cause to support 

their seizure. See Coolidge v. New Hampshire, 403 U.S. 443 (1971). With respect to the 

particularity requirement, the Supreme Court has recognized that it “ensures that the 

search will be carefully tailored to its justifications, and will not take on the character 

of the wide-ranging exploratory searches the Framers intended to prohibit.” Maryland 

v. Garrison, 480 U.S. 79, 84 (1987). As a result, “the scope of a lawful search is 

‘defined by the object of the search and the places in which there is probable cause to 
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believe that it may be found. Just as probable cause to believe that a stolen 

lawnmower may be found in a garage will not support a warrant to search an upstairs 

bedroom, probable cause to believe that undocumented aliens are being transported 

in a van will not justify a warrantless search of a suitcase.’” Id. at 84-85 (citing United 

States v. Ross, 456 U.S. 798, 824 (1982)). 

Here, the search warrant was overbroad and failed to show that the items 

seized were contraband, instruments of committing a crime, or evidence of a crime’s 

commission. The search requested by law enforcement here was the very “general” 

search that precipitated the enactment of the Fourth Amendment. The warrant 

reads:

NOW, THEREFORE, you are commanded to enter and search one cell 

phone, for items and information constituting evidence of an offense, 

specifically: Aggravated Assault of a Security Officer, Theft of an Automobile, 

and/or Aggravated Robbery or constitution evidence tending to show that a 

particular person committed an offense that may be found therein. The 

phones may be more particularly described as: a Huawei M865 cell phone with 

black touchscreen and blue case, with serial number #T8U9MA1172104698. 

The phone was found abandoned on top of a vehicle belonging to 

complainant Ashley Alexander, at or near 12750 Woodforest, Houston, Texas, 

on June 21st, 2012. At this time the cellular phone is now in the possession of 

Affiant at 1201 Franklin St., Houston, Harris County, Texas, and you are 

commanded to enter this phone for the purpose of searching for and seizing 

all stored communication located in an electronic mailbox, voicemail, Personal 

Identification Numbers, text messages, names, numbers and addresses stored 

in a phone book application, all cell phone memory including flash drives, 

photographs and any data, video, audio, and cellular number files listed in the 

memory or stored on this cellular phone, electronic media; digital notes stored 

within; audio recordings stored within; history of web sites accessed on the 

world wide web; emails received, sent, deleted, saved, or otherwise; call logs 

received, sent, deleted, saved or otherwise; phone numbers received, sent, 
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deleted, saved, or otherwise; text messages received, sent, deleted, saved or 

otherwise; instant messaging received, sent, deleted, saved or otherwise; voice 

messages received, sent, deleted, saved, or otherwise; photographs received, 

sent, deleted, saved or otherwise; videos received, sent, deleted, saved, or 

otherwise. 

(See State’s Exhibit 4). The Supreme Court has recognized two constitutional 

protections served by the warrant requirement of the Fourth Amendment. “First, the 

magistrate’s scrutiny is intended to eliminate altogether searches not based on 

probable cause. The premise here is that any intrusion in the way of the search or 

seizure is an evil, so that no intrusion at all is justified without a careful prior 

determination of necessity.” Coolidge, 403 U.S. at 467. Second, “those searches 

deemed necessary should be as limited as possible. Here, the specific evil is the 

‘general warrant’ abhorred by the colonists, and the problem is not that of intrusion 

per se, but of a general, exploratory rummaging in a person’s belongings.” Id.

Therefore, to follow the dictates of the Fourth Amendment and avoid issuing a 

general warrant, there must be probable cause to seize each item specified in the 

warrant. Here, the warrant casts a dragnet over data and communications that surely 

have nothing to do with this case, including those to and from third parties, who will 

never know of the State’s seeing their communications with Mr. Edwards about 

unrelated matters. With respect to searches of electronic information, careful 

attention must be paid to the dictates of the particularity requirements of the Fourth 
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Amendment, which limits the “authorization to search to the specific areas and things 

for which there is probable cause to search.” Garrison, 480 U.S. at 84. 

Any search of an electronic source has the potential to unearth tens or 

hundreds of thousands of individual documents, pictures, movies, or other 

constitutionally protected content. It is thus imperative that the State “describe the 

items to be seized with as much specificity as the government’s knowledge and 

circumstances allow.” United States v. Leary, 846 F.2d 592, 600 (10th Cir. 1988). The 

general warrant in this case allowed the State to conduct a “general, exploratory 

rummaging in a person’s belongings” –in this case an individual’s cellphone. Coolidge, 

403 U.S. at 467. This overly broad warrant makes no effort to balance the law 

enforcement interest against the expectation of privacy cellphone owners have. See 

United States v. Warshak, 631 F.3d 266, 285-86 (6th Cir. 2010). 

In Dixon, the court found that there was some evidence that Dixon owned the 

cell phone in question, therefore he had a right to exclude others and he had a 

reasonable expectation of privacy in his cell phone. State v. Dixon, 13-09-00445-CR, 

2010 WL 3419231 at *5-6 (Tex. App. –Corpus Christi Aug. 27, 2010, pet. Ref’d). The 

Corpus Christi Court of Appeals stated that “[a] person has a privacy interest in 

information contained in a cellular phone.” Id. at *6(quoting Lemons v. State, 298 

S.W.3d 658, 662 (Tex. App. –Tyler 2009, pet. Ref’d) citing United States v. Finley, 477 
18

F.3d 250, 259-60 (5th Cir. 2007)); see Riley v. United States, 13-132, 2014 WL 2864483, 

___ U.S. ___ (June 25, 2014).

The trial court abused its discretion in denying Mr. Edwards’ Motion to 

Suppress and this constitutes reversible error because the only evidence admitted at 

trial that even suggests a robbery was intended came from text messages retrieved 

from the overly broad search of the phone.

 ISSUE TWO: The trial court abused its discretion in admitting 

over objection, text messages that the State claimed to 

have been authored by Mr. Edwards and an unknown 

individual, where the evidence was not sufficiently 

authenticated. There was inadequate circumstantial 

evidence establishing that such evidence was what its 

proponent claimed it to be, namely, a message actually 

sent by Mr. Edwards. 

ARGUMENT

The problem with the text messages that purport to reflect a conversation 

between Mr. Edwards and an unknown individual, is that the prosecutor did not take 

the reasonable steps that were available to authenticate such evidence, i.e., to lessen 

the possibility that the messages came from someone else posing as Mr. Edwards. 

The failure of the prosecutor to take the necessary steps to prove that the text 

messages were what he claimed them to be, i.e., messages sent by Mr. Edwards from 

his cell phone, left open the possibility that the messages in question were not 

authentic and were sent by someone else under his name. By allowing the 

introduction of an exhibit that had not been properly authenticated under Tex. R. 
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Evid. 901, the trial court abused its discretion and Mr. Edwards suffered harm under 

Tex. R. App. P. 44.2(b). 

APPLICABLE LAW, STANDARD OF REVIEW AND DISCUSSION

The question of whether or not to admit evidence at trial is a preliminary 

matter to be decided by the trial court. Tex. R. Evid. 104(a). In order to be 

admissible, the evidence in question must of course be relevant. Tex. R. Evid. 401. 

The Texas Rules of Evidence define relevant evidence as “evidence having any 

tendency to make the existence of any fact that is of consequence to the 

determination of the action more probable or less probable than it would be without 

the evidence.” Id. 

Sometimes the relevancy of the evidence depends upon its source, its identity, 

or its connection with a particular person, place, thing, or event, in which case the 

proponent of the evidence must authenticate it before it becomes relevant. Angleton v. 

State, 971 S.W.2d 65 (Tex. Crim. App. 1998). The proponent meets this threshold 

requirement of authenticity by satisfying the trial court, as part of the court’s “gatekeeping” function under rule 104, that the matter in question is in fact what it is 

claimed to be. Tex. R. Evid. 901(a); Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. 

App. 2012). The ultimate question of whether an item of evidence is what the 

proponent claims is a question for the fact finder. Id. In a jury trial, the preliminary 

question for the trial court to decide is whether the proponent of the proffered 
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evidence has supplied facts that are sufficient to support a reasonable jury 

determination that the evidence is authentic. Druery v. State, 225 S.W.3d 491, 502 (Tex. 

Crim. App.), cert. denied, 128 S. Ct. 627 (2007); Campbell v. State, No. 03-11-00834-CR, 

2012 WL 3793431 at *3 (Tex. App. -Austin August 31, 2012, no pet.). An appellate 

court reviews a trial court’s decision as to whether evidence is properly authenticated 

for an abuse of discretion. Tienda, 358 S.W.3d at 638. 

In Campbell, supra, the issue was whether the trial court’s introduction of 

Facebook messages (allegedly sent by the defendant to the complainant) was an abuse 

of discretion because they were not shown to have actually been sent by the 

defendant. Thus, the question became whether such evidence had been properly 

authenticated. The Austin court made the following general comments about Tex. R. 

Evid. 901, which are applicable here:

Rule 901 of the Texas Rules of Evidence provides a nonexclusive 

list of methods for authentication of evidence. See Tex.R. Evid. 901. For 

example, evidence may be authenticated by testimony from a witness 

with knowledge that a matter is what it is claimed to be. Id. R. 901(b)(1). 

Evidence may also be authenticated by “appearance, contents, 

substance, internal patterns, or other distinctive characteristics, taken in 

conjunction with circumstances.” Id. R. 901(b)(4). In the context of 

communications, the authentication issue that generally arises is whether 

the evidence is sufficiently linked to the purported author. With respect 

to electronic communications-such as e-mails, text messages, and as in 

this case, Facebook-the rules of evidence, including rule 901, are 

considered at least generally “adequate to the task.” See Tienda, 358

S.W.3d at 638. Printouts of emails, internet chat room dialogues, and 

text messages have all been admitted into evidence when found to be 
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sufficiently linked to the purported author so as to justify the 

submission to the jury for its ultimate determination. See id. at 639.

Notwithstanding the above, it is important to note that given the nature of 

electronic communication, the mere fact that a communication has come from a 

certain electronic source is, without more, not enough to establish that it therefore 

must have come from a certain person. In Tienda, supra, which dealt with the 

admissibility of what was claimed by the State to be a MySpace page of the defendant, 

the Court of Criminal Appeals pointed out:

However, mindful that the provenance of such electronic writings can 

sometimes be open to question—computers can be hacked, protected 

passwords can be compromised, and cell phones can be purloined—

courts in other cases have held that not even the prima facie 

demonstration required to submit the issue of authentication to the jury 

has been satisfied. That an email on its face purports to come from a 

certain person’s email address, that the respondent in an internet chat 

room dialogue purports to identify himself, or that a text message 

emanates from a cell phone number assigned to the purported author—

none of these circumstances, without more, has typically been regarded 

as sufficient to support a finding of authenticity. Tienda, 358 S.W.3d at 

641; see also Tienda, footnote 35 (a list of citations where authentication 

of electronic messages was not found to be adequate, where there were 

no contextual clues to show that the message came both from the 

particular site and from the sender in question).

In Campbell, supra, the Austin Court of Appeals pointed out a twofold problem 

with respect to establishing that a Facebook message came from a specific individual:

Facebook presents an authentication concern that is twofold. First, 

because anyone can establish a fictitious profile under any name, the 
22

person viewing the profile has no way of knowing whether the profile is 

legitimate. Griffin v. State, 19 A.3d 415, 421 (Md. 2011)(citing David 

Hector Montes, Living Our Lives Online: The Privacy Implications of Online 

Social Networking, J.L. & Pol’y for the Info. Soc’y, Spring 2009, at 507, 

508). Second, because a person may gain access to another person’s 

account by obtaining the user’s name and password, the person viewing 

communications on or from an account profile cannot be certain that 

the author is in fact the profile owner. Id. Thus, the fact that an 

electronic communication on its face purports to originate from a 

certain person’s social networking account is generally insufficient 

standing alone to authenticate that person as the author of the 

communication. See Tienda, 358 S.W.3d at 642. However, the most

appropriate method for authenticating electronic evidence, as with any 

kind of evidence, “will often depend on the nature of the evidence 

and the circumstance of the particular case.” Id. at 641. Campbell, 

supra, 2012 WL 3793431 at *4.

There are differences between the Facebook messages in Campbell and the text 

messages in this case. First, the messages sent from Campbell’s Facebook account

contained a “unique speech pattern...that Campbell, a native of Jamaica, used in 

testifying at trial.” Campbell, supra, 2012 WL 3793431 at *6. No pattern was established 

in this case by showing any similarity between the text messages attributed to Mr. 

Edwards and his normal way of speaking or writing. 

Anyone in possession of the Mr. Edwards’ cellphone could have posted the 

text message. It is not hard to imagine a different outcome in this case, especially with 

regard to his conviction of aggravated robbery, if it had turned out that the message 

allegedly sent from Mr. Edwards had been sent from someone else. In determining 

whether the context of the text messages suggests that they are authentic, i.e., that 
23

they were really sent by Mr. Edwards, this Court should remain mindful of what 

available steps the prosecutor could have taken...but didn’t bother to take. 

The instant case also differs from Campbell in that whereas the message in 

Campbell specifically referenced the criminal incident for which Campbell was on trial, 

the text messages in the instant case did not. Campbell was accused of hitting his 

girlfriend several times in the face. He specifically alluded to this by stating in the 

Facebook message “I should never put my hand on you, who is me to do that to 

you.” Campbell, supra, 2012 WL 3793431 at *5. He also specifically indicated in the 

message his awareness that he had committed the criminal act he was on trial for 

(“don’t lock me up please I am begging you” and “I am guilty what was I thinking”). 

In contrast, the text messages here make no specific allusion to any particular location 

and do not comport with the evidence otherwise admitted describing the scene and 

the complainant who was described as a “lil Mexican” in the text message, but in 

actuality is “very tall”. (5 R.R. at 188; 4 R.R. at 94).

In summary, the trial court abused its discretion in allowing the text messages 

into evidence over defense counsel’s objection that there was no proper foundation 

and the probative value does not “substantially outweigh the undue prejudice.’ (5 

R.R. at 175-180). The trial court’s ruling was not within the zone of reasonable 

disagreement and it was error to admit the text messages.
24

HARM ANALYSIS

Because error in the admission of evidence is non-constitutional, the Appellant 

must show that the error affected his substantial rights. Tex. R. App. P. 44.2(b). A 

substantial right is affected when the error has a substantial or injurious effect or 

influence in determining the jury’s verdict. Rich v. State, 160 S.W.3d 575, 577 (Tex. 

Crim. App. 2005). In determining whether the error influenced the jury, or only had a 

slight effect, a reviewing court must consider whether the State emphasized the error, 

whether the erroneously admitted evidence was cumulative, and whether it was 

elicited from an expert. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).

The prosecutor repeatedly referred to the text messages in closing argument. 

Without the introduction of the text messages, the State’s case turned entirely upon 

the testimony of the Complainant. The text messages formed the main part of the 

prosecutor’s closing argument (6 R.R. at 31-33). The jury specifically requested the 

text messages during deliberation, (1 C.R. at 483 and 2 C.R. at 41), and the text 

messages were not cumulative of other evidence, but in fact the only evidence to 

suggest an intended theft. As a result, the error in admitting the text messages was 

harmful under Tex. R. App. P. 44.2(b). 
25

ISSUE THREE: The evidence is legally insufficient because a 

reasonable doubt exists in the record regarding 

whether Mr. Edwards was in the course of committing 

theft at the time he used force against the complainant. 

Under the Texas Aggravated Robbery statute a person commits robbery if, in 

the course of committing theft and with intent to obtain or maintain control of the 

property, he intentionally or knowingly threatens or places another in fear of 

imminent bodily injury or death. Tex. Penal Code § 29.02(a)(2). A person commits 

theft if he unlawfully appropriates property with intent to deprive the owner of it. 

Tex. Penal Code § 31.03(a). Appropriation is unlawful if it is without the owner’s 

effective consent. Tex. Penal code § 31.03(b)(1). A person commits aggravated 

robbery if he uses or exhibits a deadly weapon during the commission of robbery. 

Tex. Penal Code § 29.03(a)(2). Thus, Mr. Edwards committed the offense of 

aggravated robbery as alleged in the indictment if (a) while in the course of unlawfully 

appropriating property, and (b) without Madrazo’s consent (c) with the intent to 

deprive him of property, (d) Mr. Edwards (e) intentionally or knowingly (f) 

threatened or placed Madrazo in fear of bodily injury or death (g) while using or 

exhibiting a deadly weapon. See Tex. Penal Cod §§ 29.02(a)(2), 29.03(a)(2), § 

31.03(a), (b)(1). 

In order to obtain a valid conviction under this statute, the fact finder must 

decide that the defendant is guilty “beyond a reasonable doubt,” but, ultimately, the 
26

evidence on which the case is decided must be sufficient to support the conviction. 

See Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010); Jackson v. Virginia, 443 U.S. 

307 (1979). Evidence is legally insufficient when the “only proper verdict” is 

acquittal. Tibbs v. Florida, 457 U.S. 31, 41-42 (1982). The appellate court’s role is that 

of a due process safe guard, ensuring only the rationality of the trier of fact’s finding 

of the essential elements of the offense beyond a reasonable doubt. Moreno v. State, 

755 S.W.2d 866, 867 (Tex. Crim. App. 1988). Although deference is accorded to the 

fact finder to weigh the evidence presented and to draw reasonable inferences from 

the facts, the appellate court must “ensure that the evidence presented actually 

supports a conclusion that the defendant committed” the criminal offense of which 

he is accused. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Under 

Jackson, there are two circumstances in which evidence is legally insufficient: “(1) the 

record contains no evidence, or merely a ‘modicum’ of evidence, probative of an 

element of the offense, or (2) the evidence conclusively establishes a reasonable 

doubt. 

No witness testified that he attempted to obtain control over their property. 

In fact, Deputy Robert Rincon testified that Mr. Edwards was not originally charged 

with aggravated robbery because there was no evidence that he ever “demanded any 

money.” (4 R.R. at 78). There is some suspicion that Mr. Edwards could have been 

there to take property based on text messages that cannot be affirmatively attributed 
27

to him, but even the text messages are not conclusive evidence of his intent to 

commit theft as alleged in the indictment. The fact finder is “not permitted to draw 

conclusions based on speculation.” Hooper v. State, 214 S.W.3d 9, 16 (Tex. Crim. App. 

2007). If the evidence at trial raises only a suspicion of guilt, even a strong suspicion, 

then that evidence is insufficient. Winfrey v. State, 323 S.W.3d 875, 882 (Tex. Crim. 

App. 2010). Evidence of “suspicion linked to other suspicion” is not enough to 

sustain a conviction. Hacker v. State, 389 S.W.3d 860, 874 (Tex. Crim. App. 2014). 

Although Mr. Edwards may have been aggressive in his attempt to enter the 

game room, the state chose to charge him with aggravated robbery and the evidence 

at trial fails to prove that he intended to obtain or maintain control of any property. 

It is impossible to say from the evidence at trial that the acts of Mr. Edwards tended 

to effect the commission of aggravated robbery. Because the evidence is insufficient 

to find that Mr. Edwards committed the offense of aggravated robbery as alleged in 

the indictment he should be acquitted by this court of that offense. 

ISSUE FOUR: Without some form of factual sufficiency review, 

Mr. Edwards is deprived of his right to meaningful 

review of his conviction for aggravated robbery, as 

guaranteed by the U.S. Constitution and this Court 

should conclude that the evidence in this case is 

factually insufficient to support that conviction. 

If a state gives criminal defendants a right to appeal, the process of appellate 

review must be consistent with the requirements of due process and equal protection. 

See Griffin v. Illinois, 351 U.S. 12, 18 (1956). The Supreme Court’s decisions 
28

concerning access to judicial process reflect both equal protection and due process 

concerns. “(I)n the Court’s Griffin-line cases, ‘[d]ue process and equal protection 

principles converge.’ ...The due process concern homes in on the essential fairness 

of the state-ordered proceedings anterior to adverse state action.” M.L.B. v. S.L.J., 

519 U.S. 102, 120 (1996). 

In a case from Texas, the Supreme Court said: “[F]or present purposes, a 

distinction between (1) a State that denies permission to raise [a] claim on direct 

appeal and (2) a State that in theory grants permission but, as a matter of procedural 

design and systemic operation, denies a meaningful opportunity to do so is a 

distinction without a difference.” Trevino v. Thaler, 133 S.Ct. 1911, 1921 (2013).

The problem with Texas’ legal-sufficiency review as applied to criminal appeals 

post-Brooks is this: the courts of appeal have too often used catch phrases like 

“almost total deference” and “any evidence to support the verdict” to deny 

meaningful review of whether the State actually satisfied its burden to prove every 

essential fact necessary to an offense beyond a reasonable doubt. The reasonable 

doubt standard is “indispensable to command the respect and confidence of the 

community in applications of criminal law. It is critical that the moral force of the 

criminal law not be diluted by a standard of proof that leaves people in doubt 

whether innocent men are being condemned. It is also important in our free society 

that every individual going about his ordinary affairs have confidence that his 
29

government cannot adjudge him guilty of a criminal offense without a proper 

factfinder of his guilt with utmost certainty.” In re Winship, 397 U.S. 358, 364 (1970).

In Trevino, the Supreme Court concluded that Texas law did not offer a 

meaningful opportunity for defendants to present a claim of ineffective assistance of 

trial counsel on direct appeal. Because of this problem, which the Court considered 

to be structural constitutional error, the Court decided that the defendant was not 

procedurally barred from raising a federal habeas claim of ineffective assistance. 

Trevino, 133 S.Ct. at 1921.

In this case, the structural problem relates to how Jackson deferential standard 

of a “scintilla of evidence” impairs meaningful review of whether Mr. Edwards was 

convicted of aggravated robbery on evidence beyond a reasonable doubt.

When reviewing courts limit their analysis to the question of whether any 

evidence at all supports a jury’s verdict, they can never reach the real question: did 

the evidence prove beyond a reasonable doubt that the defendant was guilty? The 

“merging” of the legal and factual sufficiency standards of review is not facially 

problematic, but, as in Trevino, the systemic operation of the Brooks rule makes it 

highly unlikely that a defendant will have a meaningful review of evidentiary 

sufficiency issues.

Even if the evidence were found to be legally sufficient to convict Mr. 

Edwards of aggravated robbery, it was not factually sufficient under the pre-Brooks
30

standard, which required the appellate courts to review the evidence in a neutral light, 

not in the light most favorable to the verdict. See Clewis v. State, 922 S.W.2d 126, 129 

(Tex. Crim. App. 1996), overruled by Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 

2010). Viewing all of the evidence in a neutral light, no rational jury could find 

beyond a reasonable doubt that Mr. Edwards had the intent to obtain and maintain 

control of the property of the complainant. The evidence was factually insufficient to 

support the conviction.
31

PRAYER

Mr. Edwards prays that this Honorable Court reverse the judgment of the trial 

court and order a judgment of acquittal as to the aggravated robbery conviction and 

reverse the judgment of the trial court and order a new trial as to the aggravated 

assault and felon in possession of a firearm convictions. Or, in the alternative, Mr. 

Edwards asks this court to reverse all three convictions and remand to the trial court 

for a new trial. 

Respectfully submitted,

Alexander Bunin

Chief Public Defender

/s/ Daucie Schindler

Daucie Schindler

State Bar No. 24013495

Public Defender’s Office

Harris County, Texas

Assistant Public Defender

1201 Franklin, 13th Floor

Houston, Texas 77002

Daucie.Schindler@pdo.hctx.net

Tel: 713-274-6717

Fax: 713-368-9278
32

CERTIFICATE OF COMPLIANCE

 Pursuant to proposed 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. Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1), this brief 

contains fewer than 7,142 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 13 point font in footnotes produced by 

Microsoft Word Software.

3. 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/ Daucie Schindler

 DAUCIE SCHINDLER
33

CERTIFICATE OF SERVICE

I certify that on the 24

th day of November, 2015, a copy of the foregoing 

instrument has been electronically served upon the Appellate Division of the Harris 

County District Attorney’s Office.

 /s/ Daucie Schindler

 DAUCIE SCHINDLER