                                                                                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
                              PD-0887-15                                        ABEL ACOSTA
                                                                                        CLERK

                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
       July 22, 2015
                                             Fax: (713) 368-9278
                                             angela.cameron@pdo.hctx.net

                                             Counsel for Appellant
               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




                              ii
                                                   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
                                                                    iii
                     Expectation of Privacy.................................................................................... 7

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

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

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

APPENDIX .............................................................................................................................. 12




                                                                     iv
                                              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

                                                                 v
Constitutional Provisions

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

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




                                                                 vi
                    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 [14th 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.




                                            1
                         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, PD-
1396-14. Oral argument was held on May 20, 2015.




                                      2
                               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

                                           3
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


                                          4
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


                                           5
       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) third-

party 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.




                                           6
                                   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.).

                                                   7
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.




                                             8
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

                                              9
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 20th day of July
2015.

                                                 /s/ Angela Cameron
                                                 ANGELA CAMERON


                                            10
                            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




                                            11
Hankston v. State, Not Reported in S.W.3d (2015)


                                                                    the complainant standing in Jordan's mother's driveway and
                                                                    the complainant told the neighbor that he was “protecting
                  2015 WL 3751551
                                                                    their house.” Jordan's stepfather also found the complainant's
    Only the Westlaw citation is currently available.
                                                                    cell phone outside her window. When Jordan moved to her
          SEE TX R RAP RULE 47.2 FOR                                apartment complex, the complainant approached her and
    DESIGNATION AND SIGNING OF OPINIONS.                            asked if she needed help with her groceries. Jordan stated
                                                                    that this was strange because she did not know how the
     DO NOT PUBLISH—TEX. R. APP. P. 47.2(B).                        complainant found out where she had moved. Jordan testified
            Court of Appeals of Texas,                              that all of these encounters scared her.
              Houston (14th Dist.
                                                                    On May 19, 2011, Jordan was at home in her apartment with
          Gareic Jerard Hankston, Appellant
                                                                    her daughter when she heard a soft knock at the door. Jordan
                          v.                                        asked who was there, but no one responded. The person
             The State of Texas, Appellee                           knocked again and Jordan looked out the front window and
                                                                    saw a dark-skinned male standing outside. Jordan also saw
             NO. 14–13–00923–CR |
                                                                    a white van that she knew belonged to the complainant. At
        Memorandum Opinion filed June 16, 2015                      8:44 p.m, Jordan called 911, her parents, and her boyfriend,
                                                                    the appellant.
On Appeal from the 178th District Court, Harris County,
Texas, Trial Court Cause No. 1326559
                                                                    The police responded to the 911 call and arrived at Jordan's
Attorneys and Law Firms                                             apartment at 8:57 p.m. Appellant and Jordan's parents were
                                                                    also present. Jordan testified that appellant was aware of the
Devon Anderson and Eric Kugler, for The State Bar of Texas.         complainant's stalking but he did not seem upset or bothered
                                                                    by the knocking incident. However, Jordan also stated that
Angela Lee Cameron, for Gareic Jerard Hankston.
                                                                    appellant did not think the police were taking the situation
Panel consists of Justices Christopher, Donovan, and Wise.          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
               MEMORANDUM OPINION
                                                                    house. While at her mother's house, Jordan heard gunshots.
Ken Wise, Justice                                                   Jordan stated that she did not know where appellant was when
                                                                    she heard the gunshots. Jordan testified that appellant came to
 *1 Appellant Gareic Jerard Hankston was convicted of               her mother's house after she got there, but could not remember
murder and sentenced to twenty years in prison. Appellant           the exact time.
contends that the evidence is legally insufficient to support his
conviction for murder and that the trial court erred by failing     The complainant's wife Tonie was not aware that her husband
to grant his pre-trial motion to suppress his cell phone records.   had been stalking Jordan. Tonie testified that on May 19,
We affirm.                                                          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
                      BACKGROUND
                                                                    looking at someone wearing jeans and a white t-shirt walking
The complainant, Keith Brown, stalked appellant's girlfriend        down the street. Tonie went back inside the house, but when
Crystal Jordan on several occasions. The complainant                she tried to close the door, the complainant told her not
lived two houses down from Jordan's mother's house. One             to leave him out there. The complainant eventually came
day, when Jordan was living at her mother's house, the              inside the house and began sweeping the front room. The
complainant watched Jordan wash her car and took his                complainant's four children were all home at the time.
shirt off to pose for her. The complainant would also leave
notes on Jordan's door. On one occasion, a neighbor saw



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             1
Hankston v. State, Not Reported in S.W.3d (2015)


 *2 Shortly after the complainant went inside his house,
someone started banging loudly on the front door. When
                                                                                    ISSUES AND ANALYSIS
the complainant asked who was there, the person responded
by saying “it's your son-in-law, Chad.” 1 The complainant          Appellant contends that the evidence is legally insufficient
opened the blinds to look outside, turned off the porch light,     to support his conviction for murder. Appellant also asserts
and then began slowly opening the door. The complainant            that the trial court erred by denying his motion to suppress his
opened the door a few inches, but then attempted to shut           cell phone records because the State obtained those records
it when the person outside began pushing it back. The              without a warrant in violation of the Fourth Amendment and
person then fired six gunshots through the door, striking the      Article I, section 9 of the Texas Constitution.
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          I. The Evidence is Legally Sufficient to Convict
the police were dispatched to the scene at 9:34 p.m.               Appellant of Murder
                                                                   When reviewing the sufficiency of the evidence, we view
1                                                                  all of the evidence in the light most favorable to the
       The complainant did not have a son-in-law named Chad
                                                                   verdict and determine, based on that evidence and any
       or any relatives named Chad. Tonie testified that the
                                                                   reasonable inferences from it, whether any rational trier of
       complainant used to produce music with a man named
                                                                   fact could have found the elements of the offense beyond
       Chad but they had not spoken in at least a year. Tonie
       also testified that her son Gregory had an uncle named      a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746
       Chad who lived in Louisiana but he and the complainant      (Tex.Crim.App.2011); see also Jackson v. Virginia, 443
       had never met or spoken.                                    U.S. 307, 318–19 (1979). The jury is the exclusive judge
                                                                   of credibility of the witnesses and the weight to be given
The complainant's nine-year-old son Malik was in the front
                                                                   to the evidence. See Isassi v. State, 330 S.W.3d 633,
living room when the shooting occurred. After the knock on
                                                                   638 (Tex.Crim.App.2010). Further, we defer to the jury's
the door, Malik ran to the window and saw a man holding
                                                                   responsibility to fairly resolve conflicts in testimony, weigh
a black handgun. Malik made eye contact with the man for
                                                                   the evidence, and to draw reasonable inferences from basic
several seconds. Malik described the man to the police as a
                                                                   facts to ultimate facts. Id. This standard applies to both
bald, dark-skinned male wearing a white tank top and jeans.
                                                                   circumstantial and direct evidence. Id. We do not engage
Although Malik told the police that he saw two other people,
                                                                   in a second evaluation of the weight and credibility of the
he could not testify at trial as to whether he was positive that
                                                                   evidence, but only ensure the jury reached a rational decision.
he saw the other people. Malik was shown three different
                                                                   Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App.1993).
photo spreads throughout the course of the investigation. On
November 4, 2011, Malik selected appellant's photo from
                                                                    *3 The jury was instructed on murder and the law of parties.
the third photo spread he was shown and identified appellant
                                                                   A person commits the offense of murder if he intentionally
as the man he saw with a gun outside the door before the
                                                                   or knowingly causes the death of an individual. Tex. Penal
shooting.
                                                                   Code § 19.02(b)(1). A person may be guilty as a party
                                                                   to murder if the defendant committed the offense by his
At trial, the State offered cell tower records along with
                                                                   own conduct or by the conduct of another for which he is
the expert testimony of Officer Robert Brown to establish
                                                                   criminally responsible. Tex. Penal Code § 7.01(a). “A person
appellant's whereabouts during times relevant to when the
                                                                   is criminally responsible for an offense committed by the
complainant was killed. The State also used appellant's cell
                                                                   conduct of another if: ... acting with intent to promote or
phone records to show who he called and when the phone calls
                                                                   assist the commission of the offense, he solicits, encourages,
were made. The State obtained appellant's cell phone records
                                                                   directs, aids, or attempts to aid the other person to commit the
by using a subpoena. The State did not obtain a warrant. The
                                                                   offense.” Id. § 7.02(a)(2).
trial court denied appellant's pre-trial motion to suppress the
cell phone records.
                                                                   Appellant argues that the evidence to convict him of murder
                                                                   is legally insufficient because (1) Malik's identification was
On September 27, 2013, the jury found appellant guilty of
                                                                   unreliable; (2) the description of the vehicle fleeing the scene
murder and assessed punishment at twenty years in prison.
                                                                   was different from the vehicle being driven by appellant;



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


(3) appellant did not have a motive to kill the complainant;       The jury also heard evidence that appellant had a possible
and (4) appellant's cell phone records do not conclusively         motive for the killing. The shooting occurred less than one
establish that he was at the complainant's house during the        hour after the complainant showed up at Jordan's apartment.
shooting. Although appellant attacks each piece of evidence        Appellant knew that the complainant had stalked Jordan on
individually, the court must “consider the combined and            several occasions and knew the complainant knocked on her
cumulative force of all the evidence when viewed in the light      door that night. Jordan testified that she and appellant did
most favorable to the verdict.” Clayton v. State, 235 S.W.3d       not think the police were taking the stalking seriously enough
772, 778 (Tex.Crim.App.2007).                                      and that the police told appellant to be quiet during their
                                                                   investigation. Although Jordan testified that appellant seemed
Appellant suggests that Malik's identification was unreliable      normal that night, she stated that “[h]e wasn't happy with the
because Malik (1) was only nine years old at the time; (2)         situation.” Officer Burrow also testified that he believed the
stated that appellant was bald with no tattoos when appellant      crime was personally motivated because the shooter did not
has hair and tattoos; (3) told his mom on the night of the         wear a mask or try to force entry into the home and he banged
shooting that he did not see the shooter's face; and (4)           loudly on the door and shot appellant through the door as soon
felt pressured to select someone in the photo spread. Malik        as he saw that someone was there.
testified that he saw appellant holding a gun outside the
door before the shooting occurred. Malik made eye contact           *4 Appellant's phone records established that he was in
with the appellant for three to four seconds. Although Malik       the vicinity of the complainant's home during the shooting.
described the appellant as bald, the State offered a photograph    Although appellant contends that this is the same area where
at trial in which the sides of appellant's head were bald          Jordan's mother's house is located, Jordan testified that she
three weeks before the shooting occurred. Malik selected           did not know where the appellant was when she heard the
appellant's photograph out of a photo spread presented by          gunshots. The cell phone records also reflected that there
Officer Condon. It took Malik three to four minutes to select      was a lull in activity on appellant's phone from 9:24 p.m. to
appellant's photo and he stated that he was “pretty sure” it       9:32 p.m., when the shooting occurred. During this period of
was him. At trial, Malik testified that he was confident that      time, there were no incoming or outgoing communications on
appellant was the man he saw outside his window on the             appellant's phone. The complainant's son called 911 at 9:32
night of the shooting. The determination of what weight to be      p.m. Officer Burrow testified that at 9:32 p.m., there was a
given to testimonial evidence rests within the sole province       burst in activity on appellant's phone in which thirty-eight
of the jury because it turns on an evaluation of credibility and   telecommunications were exchanged from 9:32 p.m. to 9:55
demeanor. Davis v. State, 177 S.W.3d 355, 359 (Tex.App.–           p.m. Officer Burrow stated that this was the highest volume
Houston [1st Dist.] 2005, no pet.). The jury was free to believe   in appellant's phone records over the course of a seven-month
or disbelieve any or part of Malik's testimony. See id.            period.

The State also offered evidence to corroborate Malik's             Viewing the evidence in the light most favorable to the
testimony, including (1) the description of appellant's vehicle;   verdict, we conclude that a rational trier of fact could have
(2) appellant's motive for the killing; and (3) appellant's cell   found the essential elements of murder beyond a reasonable
phone records reflecting his whereabouts during the shooting       doubt. See Gear, 340 S.W.3d at 746. Because the evidence
and phone calls he made before and after the shooting.             is legally sufficient to convict appellant as the principal, we
                                                                   need not determine whether the evidence is legally sufficient
The State established that the appellant's car matched the         to convict appellant of murder as a party to the shooting. See
description of a vehicle seen fleeing the scene after the          Barnes v. State, 62 S.W.3d 288, 299 (Tex.App.–Austin 2001,
shooting. Officer Burrow testified that he spoke to a neighbor     pet. ref'd) (“When different theories of liability are submitted
who saw a 2000 or 2006 burgundy Honda Civic being driven           to the jury in the disjunctive, a general verdict is sufficient if
from the scene. The appellant was driving a 2002 burgundy          the evidence supports one of the theories.”) (citing Rabbani
Honda Accord on the night of the shooting. Officer Burrow          v. State, 847 S.W.2d 555, 558–59 (Tex.Crim.App.1992));
testified that the police examined photographs of Honda            see also Morris v. State, 892 S.W.2d 205, 208 (Tex.App.–
Civics and Honda Accords from those years and found that           Texarkana 1994, no pet.) (holding that “even if the law of
they were “pretty similar.”                                        parties was incorrectly applied, it would be harmless error
                                                                   because the conviction could be supported on the State's main



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


theory that [the defendant] was a primary actor because the         Cir.2010). However, this court recently rejected appellant's
evidence clearly supported such a theory”).                         argument in Barfield v. State. See 416 S.W.3d 743 (Tex.App.–
                                                                    Houston [14th Dist.] 2013, no pet.).
We overrule appellant's first issue regarding the legal
sufficiency of his conviction.                                       *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
II. The Trial Court Did Not Err by Denying Appellant's              State obtained the records through use of a subpoena and
Motion to Suppress                                                  did not obtain a search warrant. Id. The defendant in
In his second issue, appellant contends that the State's            Barfield similarly argued that the State violated his reasonable
acquisition of his cell phone records violated the Fourth           expectation of privacy because it obtained the cell tower
Amendment to the United States Constitution and Article I,          records without a warrant. Id. at 748. This court in Barfield
section 9 of the Texas Constitution.                                disagreed and reasoned that:

When reviewing a trial court's ruling on a motion to suppress,                   When an individual knowingly
we apply an abuse of discretion standard and overturn                            exposes his activities to third parties,
the trial court's ruling only if it is outside the zone of                       he surrenders Fourth Amendment
reasonable disagreement. Martinez v. State, 348 S.W.3d 919,                      protections, and, if the Government
922 (Tex.Crim.App.2011). We view the evidence in the                             is subsequently called upon to
light most favorable to the trial court's ruling. Johnson v.                     investigate his activities for possible
State, 414 S.W.3d 184, 192 (Tex.Crim.App.2013). Although                         violations of the law, it is free to
we generally defer to a trial court's determination of facts                     seek out these third parties, to inspect
and credibility, we review a constitutional legal ruling, such                   their records, and to probe their
as whether a search or seizure governed by the Fourth                            recollections for evidence.
Amendment occurred in a particular case, under a de novo
standard of review. Wall v. State, 184 S.W.3d 730, 742              Id. (quoting In re Application of United States for Historical
(Tex.Crim.App.2006).                                                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).
A. Fourth Amendment Challenge                                       The mere fortuity of whether or not the third party, in its
The Fourth Amendment to the United States Constitution              own discretion, elects to store the information makes no
protects against unreasonable searches and seizures. U.S.           constitutional difference. Barfield, 416 S.W.3d at 748. Once
Const. amend. IV; Walter v. State, 28 S.W.3d 538, 540               an individual exposes information to a third party, it can
(Tex.Crim.App.2000). The capacity to claim the protection           be used for any purpose, including conveying it to law
of the Fourth Amendment depends upon whether the person             enforcement authorities. Id.
has a legitimate expectation of privacy in the invaded place.
Walter, 28 S.W.3d at 541. Under the Fourth Amendment,               The court also emphasized the fact that the transmission of
a search conducted without a warrant issued upon probable           location information by the cell user to the service provider is
cause is “per se unreasonable ... subject only to a few             voluntary because the user knows generally that “cell phones
specifically established and well-delineated exceptions.”           exchange signals with nearby cell towers, that if they are in
Reasor v. State, 12 S.W.3d 813, 817 (Tex.Crim.App.2000)             an area without network towers, their call will not connect,
(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 219               and if they are in an area with heavy cell usage, they may also
(1973)).                                                            have trouble connecting.” Id. The user voluntarily decides
                                                                    to obtain a cell phone, choose a provider, and make a call
In arguing that he has a reasonable expectation of privacy in       from a particular location. Id. at 748–49. Thus, in relying
his historical cell site records, appellant relies on the Supreme   primarily on the Fifth Circuit's decision in In re Application
Court's decision in United States v. Jones, 132 S.Ct. 945           of United States, this court held that the State's obtaining of
(2012), and the Third Circuit's decision in In re Application       cell tower records from a third-party provider does not violate
of United States for an Order Directing a Provider of Elec.         a defendant's reasonable expectation of privacy. Id. at 749.
Commc'n Serv. to Disclose Records to Gov't, 620 F.3d 304 (3d


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


Appellant asks this court to reconsider its holding in Barfield,    (Tex.Crim.App.1991). Despite this conclusion, at least one
arguing that it was wrongly decided. Appellant directs this         appellate court has reasoned that merely “[b]ecause we can
court to the Third Circuit's decision in In re Application of       do so, however, does not mean we should do so.” Johnson
United States for an Order Directing a Provider of Elec.            v. State, 864 S.W.2d 708, 718 (Tex.App.–Dallas 1993),
Commc'n Serv. to Disclose Records to Gov't. See 620 F.3d            aff'd, 912 S.W.2d 227 (Tex.Crim.App.1995) (emphasis in
at 317–18 (holding that a “cell phone customer has not              original). The Court of Criminal Appeals also noted that “[a]
‘voluntarily’ shared his location information with a cellular       plain reading and comparison of the language of the Fourth
provider in any meaningful way”). However, we decline               Amendment and Art. I, § 9 reveals no substantive difference”
appellant's invitation to review our prior decision on this         and they both protect the same right. Johnson, 912 S.W.2d at
issue. Based on this court's precedent, appellant cannot            232. The Court of Criminal Appeals has further stated that:
successfully claim that the State's acquisition of his cell tower
records from Sprint violated his reasonable expectation of                       Absent some significant difference in
privacy. The cell site records acquired by the State are simply                  the text of the two provisions, or some
the business records memorializing appellant's voluntary                         historically documented difference
subscriber transaction with Sprint for the service he wanted                     in attitude between the respective
from his cellular provider, i.e. the ability to transmit and                     drafters, there would be no apparent
receive data on Sprint's network of cell towers. Ford v. State,                  reason to prefer an interpretation of
444 S.W.3d 171, 188 (Tex.App.–San Antonio 2014, pet.                             Article I, § 9 any different from our
granted) (citing Barfield, 416 S.W.3d at 748). The fact that                     preferred interpretation of the Fourth
this data happens to reveal the general location of appellant's                  Amendment. We will not read Article
cell phone, and presumably appellant himself, at given points                    I, § 9 differently than the Fourth
in time is of no consequence to the legal analysis. Id. The                      Amendment in a particular context
State's actions did not violate appellant's Fourth Amendment                     simply because we can.
rights because he could not have a reasonable expectation
                                                                    Crittenden v. State,        899    S.W.2d     668,     673   n.8
of privacy in information he voluntarily conveyed to a third
                                                                    (Tex.Crim.App.1995).
party.

                                                                    2      As noted by the First Court of Appeals, at least one
B. Texas Constitution Challenge                                            scholarly treatise has recognized that there are only
 *6 Appellant also contends that the State's acquisition                   three cases in which the Court of Criminal Appeals has
of his cell phone records without a warrant violated his                   construed Article I, section 9 more broadly than the
rights under Article I, section 9 of the Texas Constitution                Fourth Amendment. Rothenberg v. State, 176 S.W.3d 53,
                                                                           59 n.7 (Tex.App.–Houston [1st Dist.] 2004, pet. ref'd)
because the Texas Constitution provides greater protection
                                                                           (citing 40 George E. Dix & Robert O. Dawson, Texas
than the Supreme Court decisions that address the Fourth
                                                                           Practice: Criminal Practice & Procedure § 5.04 (2d ed.
Amendment. In support of his contention, appellant cites to
                                                                           2011)).
Richardson v. State, a case in which the Court of Criminal
Appeals held that “the use of a pen register may well               Aside from citing to Richardson, appellant does not provide
constitute a ‘search’ under Article I, § 9 of the Texas             any reasoning as to why the Texas Constitution affords
Constitution.” 865 S.W.2d 944, 953 (Tex.Crim.App.1993).             greater protection in this instance. Appellant cites to no
                                                                    authority for this proposition and does not point to any
Like the Fourth Amendment, the Texas Constitution provides          difference in the two provisions to warrant such a result. Thus,
that “[t]he people shall be secure in their persons, houses,        we utilize Fourth Amendment precedent to conclude that the
papers and possessions, from all unreasonable seizures or           State's acquisition of appellant's cell phone records does not
searches....” Tex. Const. art. I, § 9. In Heitman v. State, the     violate Article I, section 9 of the Texas Constitution.
Court of Criminal Appeals acknowledged that it can interpret
this provision in a manner that grants defendants greater           We overrule appellant's first issue regarding his motion to
rights under Article I, section 9 of the Texas Constitution         suppress.
than afforded by the Supreme Court's interpretation of the
United States Constitution. 2 815 S.W.2d 681, 690 & n.1



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



                      CONCLUSION

We conclude that the evidence is legally sufficient to convict       All Citations
the appellant of murder and the trial court did not err by           Not Reported in S.W.3d, 2015 WL 3751551
denying appellant's motion to suppress.

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




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                6
