FIFTH COURT OF APPEALS

No. 05-17-00257-CR

Ali L. Ghanbari, Appellant, 

v.

State of Texas, Appellee 

On Appeal from the 199th District Court, Collin County

No. 199-81974-2013

Appellant’s Response to 

State’s Motion to Strike Appellant’s Brief

 

Michael Mowla 

P.O. Box 868 

Cedar Hill, TX 75106 

Phone: 972-795-2401 

Fax: 972-692-6636 

michael@mowlalaw.com 

Texas Bar No. 24048680 

Attorney for Appellant

ACCEPTED

05-17-00257-CR

FIFTH COURT OF APPEALS

DALLAS, TEXAS

6/1/2018 6:12 PM

LISA MATZ

CLERK

 FILED IN 5th COURT OF APPEALS DALLAS, TEXAS 06/01/2018 6:12:54 PM LISA MATZ Clerk
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To the Honorable Justices of the Court of Appeals:

Attorney for Appellant files this response to the State’s motion to strike the 

Appellant’s Brief:

1. The allegation that Attorney for Appellant used the Appendix avoid 

the word-limit on the Appellant’s Brief is unfounded

1. On June 1, 2018, the State filed a motion to strike the Appellant’s Brief, 

arguing that Attorney for Appellant attempted to use the Appendix to avoid the 

word-limit on the Appellant’s Brief.

2. This allegation is unfounded. 

3. The State also claims in its certificate of conference that “[O]n May 16, 

2018, Assistant District Attorney John Rolater spoke with Appellant’s counsel, 

Michael Mowla, about this motion. Mr. Mowla disagreed that his brief violates the 

word limit and would oppose this motion.”

4. What Attorney for Appellant told John Rolater is that for the reasons 

stated in the Appellant’s Brief, his conversation with Mr. Rolater, and explained in 

this Response, this is a nonissue for Attorney for Appellant. 

5. As Attorney for Appellant explained in the Appellant’s Brief, the issue 

of whether Tex. Code Crim. Proc. Art. 38.23(a) requires suppression of all the 

evidence obtained by the police concerning the “Ali-cellphone” is pending before

the Texas Court of Criminal Appeals (“TCCA”) in Sims v. State, No. PD-0941-17 

(Tex. Crim. App., pet. gr.). 
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6. Attorney for Appellant is the attorney for Appellant Sims in that case.

7. In the Appellant’s Brief, Attorney for Appellant explained, “The issue 

regarding whether Tex. Code Crim. Proc. Art. 38.23(a) (2016) requires suppression 

of the evidence involves detailed briefing and cannot be presented in full in this 

Brief due to the word-limitation.”

8. This means that Issue 4 is complex and cannot be briefed in full as it 

was briefed in Sims.

9. Attorney for Appellant did not state that Issue 4 is inadequately 

briefed so Attorney for Appellant desires this Court to look to the Appellant’s Brief 

in Sims that is attached in the Appendix for “additional briefing.” 

10. This is precisely what Attorney for Appellant told Mr. Rolater. 

11. And, Attorney for Appellant told Mr. Rolater that he included the Brief 

in Sims as a courtesy to this Court and to the State (rather than simply providing a 

link to the Sims brief, which Attorney for Appellant could have done to avoid 

spending time responding to this motion).

12. As Attorney for Appellant explains in the Appellant’s Brief, in Sims v. 

State, 526 S.W.3d 638 (Tex. App. Texarkana 2017), the Sixth Court of Appeals ruled 

that Art. 38.23(a) does not require suppression when the evidence is obtained in 

violation of Tex. Code Crim. Proc. Art. 18.21 § 1(3)(c) (2016) or the Federal Stored 

Communication Act (“SCA”). 
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13. On October 29, 2017, Attorney for Appellant filed a petition for 

discretionary review, Sims v. State, No. PD-0941-17 (Tex. Crim. App., pet. filed Oct. 

29, 2017), which was granted on February 14, 2018 on Grounds 1 and 2. Sims v. 

State, No. PD-0941-17 (Tex. Crim. App., pet. gr.). 

14. In Ground 1, Attorney for Appellant argued that the Sixth Court of 

Appeals erred by ruling that under Tex. Code Crim. Proc. Art. 38.23(a), violations 

of the Federal Stored Communication Act (“SCA”) and Tex. Code Crim. Proc. Art. 

18.21 do not require suppression of evidence pertaining to the warrantless pinging 

of a cellphone because: (1) the plain-language of Tex. Code Crim. Proc. Art. 

38.23(a) states that no evidence obtained by an officer or other person in violation 

of any provisions of Texas or federal law shall be admitted in evidence against the 

accused; (2) Tex. Code Crim. Proc. Art. 38.23(a) is intended to provide greater 

protection than the Fourth Amendment; and (3) it is irrelevant that the SCA and Tex. 

Code Crim. Proc. Art. 18.21 do not provide that suppression is available since they 

are laws of Texas and the United States, and neither prohibits suppression of 

illegally obtained evidence under Art. 38.23(a).

15. In Ground 2, Attorney for Appellant argued that the Sixth Court of 

Appeals erred by holding that Appellant was not entitled to a reasonable expectation 

of privacy in the real-time, tracking-data that was illegally seized because under the 

Fourth Amendment and Tex. Code Crim. Proc. Art. 38.23(a), a person has a 
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legitimate expectation of privacy in real-time tracking-data regardless of whether he 

is in a private or public location. 

16. Attorney for Appellant simply stated in the Appellant’s Brief, “For a 

better understanding of the issues, undersigned counsel attaches the Appellant’s 

Brief in Sims in the Appendix. The arguments for Appellant would be substantially 

similar as those undersigned counsel made for Mr. Sims. Sims is pending before the 

TCCA, and the opinion of the TCCA will likely control the resolution of this Issue.”

17. This is all and nothing more.

2. The State’s argument that a party may include in the appendix only 

those pages that come strictly from the record on appeal and cannot 

include text from a statute, excerpts from an old law review article, or 

things pertinent to the issues or points presented for review is 

incorrect

18. Further, the State argues that because the Sims brief was “outside the 

appellate record,” it should not be considered. 

19. In support of this argument, the State cites Bertrand v. Bertrand, 449 

S.W.3d 856, 863 & n.8 (Tex. App. Dallas 2014, no pet.) and states that this court 

held that “documents contained in an appendix but outside the appellate record 

cannot be considered.”

20. However, a cursory glance at page 863 and footnote 8 of Bertrand

reveals that the offending party submitted affidavits (i.e., evidence outside the 

record) in the Appendix, which obviously were not included in the record on appeal 
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(emphasis supplied): 

On February 5, 2013, appellant filed a pleading which contained objections to 

John and Andrea's motion to strike his response to the amended motion for 

summary judgment and a motion to vacate the order granting summary 

judgment and final judgment. In that pleading, appellant stated he "mailed 

reply brief exhibits to the Court under separate cover" from his response to 

the amended motion for summary judgment. The documents filed "under 

separate cover" are not included in the appellate record. Although appellant 

included a number of citations to the appellate record in his brief, he also 

cites extensively to documents included in his appendix, including to a 

number of affidavits. We cannot consider documents cited in a brief and 

attached as an appendix if they are not formally included in the record on 

appeal. See Am. Heritage Capital, LP v. Gonzalez, 436 S.W.3d 865, 882 n.3 

(Tex. App.—Dallas 2014, no pet.).

21. Obviously, affidavits, which are new evidence and are never in a record 

on appeal, are not appropriate for an appendix. 

22. Attorney for Appellant did not include “documents” that are evidence 

pertaining to Appellant’s case that are outside the record on appeal such as affidavits 

or other documents. Attorney for Appellant merely attached the Sims brief to alert 

this Court and the State. 

23. Bertrand is a civil case. The only applicable rule for an Appendix is 

Tex. Rule App. Proc. 38.1(k)(2) (2018), which provides, 

Optional Contents. The appendix may contain any other item pertinent to the 

issues or points presented for review, including copies or excerpts of relevant 

court opinions, laws, documents on which the suit was based, pleadings, 

excerpts from the reporter’s record, and similar material. Items should not be 

included in the appendix to attempt to avoid the page limits for the brief.

24. An alert to this Court (and the State) that the issues in Issue 4 are 
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pending before the TCCA can reasonably be construed as “[a]ny other item pertinent 

to the issues or points presented for review, including copies or excerpts of relevant 

court opinions, laws, documents on which the suit was based, pleadings, excerpts 

from the reporter’s record, and similar material.” 

25. Otherwise, if the State were correct that the only items that could be 

included in the Appendix are pages that come strictly from the record on appeal, a 

party would not be permitted to include in an appendix text from a statute or excerpts 

from an old law review article that is not found on Lexis or Westlaw. This of course 

is not the case.

26. Attorney for Appellant rarely uses an appendix in criminal appeals, and 

again, Attorney for Appellant included the Sims brief only as a courtesy to the Court 

and the State so that both are alerted to the pending Sims case and the fact that the 

decision of the TCCA in Sims will be controlling on Issue 4.

27. Attorney for Appellant awaits this Court’s instructions. 

28. If this Court asks Attorney for Appellant to file an amended brief 

without the Appendix, Attorney for Appellant will be happy to do so.

29. If, on the other hand, this Court agrees that the Appendix is included 

only as a courtesy to the Court and the State so that both are alerted to the pending 

Sims case and the fact that the decision of the TCCA in Sims will be controlling on 

Issue 4, Attorney for Appellant will not expect the State to address arguments 
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outside what is briefed in Issue 4 in the body of the Appellant’s Brief. 

30. Attorney for Appellant certainly will not expect the State to respond to 

the arguments contained in the Sims brief, as this would not be appropriate and 

would be irrelevant since the decision of the TCCA will likely control. 

Prayer

Attorney for Appellant awaits instructions from this Court.

Respectfully submitted,

Michael Mowla 

P.O. Box 868

Cedar Hill, TX 75106

Phone: 972-795-2401

Fax: 972-692-6636

michael@mowlalaw.com

Texas Bar No. 24048680

Attorney for Appellant

/s/ Michael Mowla

Michael Mowla

Certificate of Service

I certify that on June 1, 2018, a copy of this document was served on John 

Rolater of the Collin County District Attorney’s Office, Appellate Division, by 

Texas efile or email to daappeals@collincountytx.gov.

/s/ Michael Mowla

Michael Mowla