                                                                                    ACCEPTED
                                                                                05-17-00257-CR
                                                                      FIFTH COURT OF APPEALS
                                                                               DALLAS, TEXAS
                                                                               6/1/2018 6:12 PM
                                                                                     LISA MATZ
                                                                                         CLERK


               FIFTH COURT OF APPEALS
                                                               FILED IN
                      No. 05-17-00257-CR                5th COURT OF APPEALS
                                                             DALLAS, TEXAS
                                                        06/01/2018 6:12:54 PM
                                                               LISA MATZ
                  Ali L. Ghanbari, Appellant,                    Clerk
                              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
      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


                                          4
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


                                         5
(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


                                          6
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


                                          7
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


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