## FIFTH COURT OF APPEALS No. 05
- 17
- 00257
- CR Ali L. Ghanbari , Appellant, v. State of Texas , Appellee
On Appeal from the 199 th 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 CLERK2 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. W hat 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 A ttorney 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.)

.3 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 di d 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. Rola ter. 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 r esponding 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 ” )

.4 13. On October 29, 2017, Attorney for Appellant filed a petition for discretionary review , Sims v. State , No. PD

- 0941

- 17 (Tex. C rim. 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 an y 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. P roc. 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 a5 l egitimate 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 t ext 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 appeal6 (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 appell ant 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 pertain ing 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 aler t 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 avo id the page limits for the brief.
24. An alert to this Court (and the State) that the issues in Issue 4 are7 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 ex cerpts 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 page s 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 a n old law review article that is not found on Lexis or Westlaw. This of course is not the case.
26. Attorney for App ellant 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 S tate 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 C ourt agrees that the Appendix is included only as a courtesy to the Court and the S tate 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 exp ect the State to address arguments8 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 appropria te 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